Annotated criminal legislation New South Wales : 2019-2020 edition [2019-2020 edition.] 9780409351330, 0409351334

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Criminal Procedure

Quick Reference Directory

Sentencing

This directory should be used to quickly locate material in this volume.

Trial Procedure

To use the directory, place right thumb on the outer edge of this page against the required area. Then fold back the remaining pages to align the directory with the corresponding page tab.

Crimes

Bail

Drugs

Summary Offences

Investigation

LEXISNEXIS ANNOTATED ACTS

ANNOTATED CRIMINAL LEGISLATION NEW SOUTH WALES 2019–2020 EDITION

Legislation Current to 11 October 2019

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LEXISNEXIS ANNOTATED ACTS

ANNOTATED CRIMINAL LEGISLATION NEW SOUTH WALES 2019–2020 EDITION Legislation Current to 11 October 2019 RODERICK N HOWIE QC BA LLM (Hons) A former Justice of the Supreme Court of New South Wales

PETER A JOHNSON BA LLM A Judge of the Supreme Court of New South Wales

LexisNexis Butterworths Australia 2020

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LexisNexis AUSTRALIA LexisNexis Butterworths 475–495 Victoria Avenue, Chatswood NSW 2067 On the internet at: www.lexisnexis.com.au ARGENTINA LexisNexis, BUENOS AIRES AUSTRIA LexisNexis Verlag ARD Orac GmbH & Co KG, VIENNA BRAZIL LexisNexis Latin America, SAO PAULO CANADA LexisNexis Canada, Markham, ONTARIO CHILE LexisNexis Chile, SANTIAGO CHINA LexisNexis China, BEIJING, SHANGHAI CZECH REPUBLIC Nakladatelství Orac sro, PRAGUE FRANCE LexisNexis SA, PARIS GERMANY LexisNexis Germany, FRANKFURT HONG KONG LexisNexis Hong Kong, HONG KONG HUNGARY HVG-Orac, BUDAPEST INDIA LexisNexis, NEW DELHI ITALY Dott AGiuffrè Editore SpA, MILAN JAPAN LexisNexis Japan KK, TOKYO KOREA LexisNexis, SEOUL MALAYSIA LexisNexis Malaysia Sdn Bhd, PETALING JAYA, SELANGOR NEW ZEALAND LexisNexis, WELLINGTON POLAND Wydawnictwo Prawnicze LexisNexis, WARSAW SINGAPORE LexisNexis, SINGAPORE SOUTH AFRICA LexisNexis Butterworths, DURBAN SWITZERLAND Staempfli Verlag AG, BERNE TAIWAN LexisNexis, TAIWAN UNITED KINGDOM LexisNexis UK, LONDON, EDINBURGH USA LexisNexis Group, New York, NEW YORK LexisNexis, Miamisburg, OHIO

ISBN: 9780409351330 EISBN: 9780409351347 ©2020

Reed International Books Australia Pty Limited trading as LexisNexis

This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Printed in Australia. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Table of Contents Page

Currency note Currency note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

xi

Publisher’s note Publisher’s note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

xiii

Features of this Book Features of this Book . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

xv

Table of Cases Table of Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

xix

Proceedings Before Magistrates Proceedings Before Magistrates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1

Criminal Procedure Act 1986 Table of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Table of Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Criminal Procedure Act 1986 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

23 43 53

Criminal Procedure Regulation 2017 Table of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Table of Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Criminal Procedure Regulation 2017 . . . . . . . . . . . . . . . . . . . . . . . . . .

441 447 449

Crimes (Sentencing Procedure) Act 1999 Table of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Table of Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Crimes (Sentencing Procedure) Act 1999 . . . . . . . . . . . . . . . . . . . . . .

499 507 513

Crimes (Sentencing Procedure) Regulation 2017 Table of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Table of Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Crimes (Sentencing Procedure) Regulation 2017 . . . . . . . . . . . . . .

699 701 703

Trial Procedure Trial Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

713

vii

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ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Page

Crimes Act 1900* Table of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Table of Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Crimes Act 1900 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

741 763 769

Crimes (Domestic and Personal Violence) Act 2007 Table of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Table of Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Crimes (Domestic and Personal Violence) Act 2007 . . . . . . . . . . .

1323 1331 1333

Crimes Regulation 2015 Table of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Table of Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Crimes Regulation 2015 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1419 1421 1423

Crimes (High Risk Offenders) Act 2006 Table of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Table of Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Crimes (High Risk Offenders) Act 2006 . . . . . . . . . . . . . . . . . . . . . . .

1425 1429 1431

Bail Act 2013 Table of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Table of Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Bail Act 2013 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1469 1475 1477

Drug Misuse and Trafficking Act 1985 Table of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Table of Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Drug Misuse and Trafficking Act 1985 . . . . . . . . . . . . . . . . . . . . . . . .

1547 1553 1557

Drug Misuse and Trafficking Regulation 2011 Table of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Table of Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Drug Misuse and Trafficking Regulation 2011 . . . . . . . . . . . . . . . . .

1673 1677 1679

Summary Offences Act 1988* Table of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Table of Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Summary Offences Act 1988 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1699 1703 1707

Summary Offences Regulation 2015 Table of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1771

*

Proof material has been relocated to follow the section of the Act to which it relates.

viii

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TABLE OF CONTENTS

Page

Table of Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Summary Offences Regulation 2015 . . . . . . . . . . . . . . . . . . . . . . . . . . .

1773 1775

Crimes (Forensic Procedures) Act 2000 Table of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Table of Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Crimes (Forensic Procedures) Act 2000 . . . . . . . . . . . . . . . . . . . . . . .

1781 1789 1793

Crimes (Forensic Procedures) Regulation 2014 Table of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Table of Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Crimes (Forensic Procedures) Regulation 2014 . . . . . . . . . . . . . . . .

1887 1889 1891

Law Enforcement (Powers and Responsibilities) Act 2002 Table of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Table of Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Transitional Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Law Enforcement (Powers and Responsibilities) Act 2002 . . . .

1897 1911 1920 1923

Law Enforcement (Powers and Responsibilities) Regulation 2016 Table of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Table of Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Law Enforcement (Powers and Responsibilities) Regulation 2016 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2103

Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2175

ix

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2097 2101

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Currency note Introduction This volume of LexisNexis Annotated Acts provides practitioners and students with a guide to key criminal legislation in New South Wales — all legislation is annotated with comprehensive and detailed commentary. This volume also includes proof material for the Crimes Act 1900, the Drug Misuse and Trafficking Act 1985 and the Summary Offences Act 1988. Each set of proof material has been relocated from the end of the volume to follow the section to which it relates.

Currency of legislation Unless otherwise specified legislation in this book is consolidated to include amendments in force as at 11 October 2019.

Amending legislation At the time of going to press, the following amending the Acts listed below had yet to commence. Crimes Act 1900 • Modern Slavery Act 2018 No 30; not yet commenced. Criminal Procedure Act 1986 • Court Information Act 2010 No 40; not yet commenced. • Property, Stock and Business Agents Amendment (Property Industry Reform) Act 2018 No 5; not yet commenced. • Community Gaming Act 2018 No 60; not yet commenced. Crimes (Domestic and Personal Violence) Act 2007 • Modern Slavery Act 2018 No 30; not yet commenced • Crimes Legislation Amendment Act 2018 No 83; not yet commenced. Law Enforcement (Powers and Responsibilities) Act 2002 • Passenger Transport Act 2014 No 46; not yet commenced. • Security Industry Amendment (Private Investigators) Act 2016 No 40; not yet commenced. • Fair Trading Amendment (Commercial Agents) Act 2016 No 52; not yet commenced. • Property, Stock and Business Agents Amendment (Property Industry Reform) Act 2018 No 5; not yet commenced. • Strata Schemes Management Amendment (Building Defects Scheme) Act 2018 No 49; not yet commenced. • Community Gaming Act 2018 No 60; not yet commenced. • Building and Development Certifiers Act 2018 No 63; not yet commenced.

xi

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ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

• Statute Law Miscellaneous Provisions) Act 2019 No 1; not yet commenced. • Justice Legislation Amendment Act 2019 No 10; Sch 1.15 not yet commenced. Law Enforcement (Powers and Responsibilities) Regulation 2016 • Justice Legislation Amendment Act 2019 No 10; Sch 1.16 not yet commenced.

xii

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Publisher’s note Legislation The publisher, authors, contributors and endorsers of this publication each excludes liability for loss suffered by any person resulting in any way from the use of, or reliance on, this publication. The publisher gratefully acknowledges permission to reprint the Law Part Codes in relevant sections of legislation in this service from the Lawcodes database, available through the Judicial Commission of New South Wales. © LexisNexis. The legislation reproduced in this work does not purport to be an official or authorised version.

Cross references The text of this book has been extracted from the four-volume looseleaf service Criminal Practice and Procedure New South Wales by Roderick N Howie QC and Justice Peter A Johnson, and broadly follows the internal arrangement of the looseleaf service. This book therefore contains cross-references to other areas of the looseleaf service which have not been extracted. When this occurs, reference should be made to Criminal Practice and Procedure New South Wales. The commentary and proof material contain: • internal cross-references to paragraphs of the Acts and Regulations and to other paragraphs in the volume where the same or related issues are discussed in more detail and in other contexts; • cross-references to cases, other Acts and Regulations and other publications dealing with aspects of the issues under discussion.

xiii

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Features of this Book Legislation tabs This edition includes a Quick Reference Directory and grey shaded tabs on the side of the legislation, which have been added to facilitate quick and easy access to information.

Index The index locates references to given topics in all the legislation published.

Running heads Running heads at the top of each page indicate the section and paragraph number of the legislation as set out on each page as follows: Left page:

s1

Right page:

[2-s 1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020 CRIMINAL PROCEDURE ACT 1986

[2-s 1] s1

Paragraph numbers The text in this book has been extracted from the looseleaf service Criminal Practice and Procedure New South Wales. Hence the paragraph numbers appear as they do in the looseleaf publication.

Commentary The Acts and Regulations have been annotated by R N Howie and P A Johnson and provide authoritative and comprehensive commentary to key pieces of legislation.

General commentary on a section of the Act General commentary on a given section of the Act is located at the end of the section. This provides an overview of the section and links the topic under discussion to related areas. It also describes the background and purpose of the legislation, outlining the structure and general operation of the section.

Detailed commentary on a subsection of the Act Where relevant, detailed commentary on a subsection follows the general commentary.

How to find commentary on a particular topic Information within the commentary can be researched according to the topic, case law or provision of the legislation by using the:

xv

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ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Table of Contents This table appears at page vii.

Table of Cases This table appears at page xix.

Index The index appears at page 2175.

Tables of Provisions Located before the Acts and Regulations, the tables show the division of the legislation into parts, divisions and subdivisions, and include the title of every section or regulation. This is a convenient starting point if you need an overview of the structure of the legislation to find commentary on a particular topic.

Legislative histories To find out the full name and date of assent and commencement of an amending Act, or the number and date of gazettal and commencement of an amending Rule, turn to the relevant Table of Amendments in front of the Act or Regulations. The Table of Amendments gives a list of amendments to the legislation.

Historical notes Where a section or subsection, regulation or schedule has been amended, an historical note compiled by the editor has been inserted in square brackets, in small typeface, immediately beneath the provision. This note details the history of the provision as amended and the commencement date of the particular statute. The notes may also be read with the legislative histories of the Acts (see below). Examples [Div 3 insrt Act 55 of 2001 s 3 and Sch 2 item 13, opn 15 July 2001]

Division 3 was inserted into the principal Act by Schedule 2 item 13 of Act 55 of 2001, the insertion taking effect on 15 July 2001. [def subst Act 55 of 2001 s 3 and Sch 2 item 12, opn 15 July 2001]

The definition was completely replaced by the new definition inserted by Schedule 2 item 12 of Act 55 of 2001, the substitution taking effect on 15 July 2001.

Cross-references The commentary contains internal cross-references to sections, subdivisions, divisions and parts of the Act and to other paragraphs in the book where the same or related issues are discussed in more detail and in another context. It also contains cross-references to cases, other Acts and Regulations and other publications dealing with aspects of the issues under discussion.

xvi

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FEATURES OF THIS BOOK

Butterworths Case Numbers and Media Neutral Citations Citations in the style BC200002707 are Butterworths Case Numbers. These numbers are unique to each case and are used for identification and cross-referencing purposes within LexisNexis products and publications. Citations in the form [2008] FCA 1765 are Media Neutral Citations. These citations comprise the year of the decision, the court which handed down the decision, and the case number. A bracketed number which follows a Media Neutral Citation (for example, “at [14]”) is a reference to a specific paragraph in the judgment.

xvii

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Table of Cases References are to paragraph numbers A2 v R; Magennis v R; Vaziri v R [2018] NSWCCA 174; BC201807084 . .[8-s 45.5], [8-s 45A.5] AB (A Pseudonym) v R [2019] NSWCCA 82; BC201903135 . . . . . . . . . . .[2-s 306S.1] AB v — [2014] NSWCCA 31; BC2014015532 . . . . . . . . . . . . .[5-s 44.15], [5-s 53A.5] Abbas, Bodiotis, Taleb and Amoun v — [2013] NSWCCA 115; BC201302632 . . .[5-s 33.5] Abbott v Smith [1965] 2 QB 662n; [1964] 3 All ER 762 . . . . . . . . . . . . . . . . . .[11-395.5] Aboud v A-G (NSW) (1987) 10 NSWLR 671 . . . . . . . . . . . . . . . . . . . . . .[7-220] Abrahams v Cavey [1968] 1 QB 479 . .[8-s 56.10] Abrahamson v R (1994) 63 SASR 139 .[2-s 132.1], [10-s 25.35] Achurch v — (2014) 306 ALR 566; 88 ALJR 490 . . . . . . . . . . . . . . . . . . . .[5-s 43.1] Acuthan v Coates (1986) 6 NSWLR 472; 24 A Crim R 304 . . . . . . . . . . . . . . .[2-s 117.10] Adamiczka v R (1993) 33 NSWLR 68; 71 A Crim R 291 . . . . . . . . . . . .[1-130], [2-s 289.1] Adams v Chas S Watson Pty Ltd (1938) 60 CLR 545; [1938] ALR 365 . . . . . . . . . .[2-s 179.1] — v Kennedy (2000) 49 NSWLR 78 .[21-s 99.15] — v R [2018] NSWCCA 303; BC201812474 .[2-s 293.1] — v — [2011] NSWCCA 47; BC201101502 . .[8-s 33.20] — v — (2008) 234 CLR 143; 244 ALR 270 .[10-s 25.25] Adler v District Court (NSW) (1990) 19 NSWLR 317; 48 A Crim R 420 . . . . . . . .[2-s 19.5] — v DPP (2004) 51 ACSR 1; 22 ACLC 1460 .[2-s 19.5] AG v R [2016] NSWCCA 102; BC201604186 .[5-s 23.1] AH v — [2015] NSWCCA 51; BC201502298 .[5-s 21A.20] Ahmad v — [2006] NSWCCA 177; BC200604022 . . . . . . . . . . . . . . . . . . . .[5-s 22.5] Ah-See v Heilpern (2000) 115 A Crim R 1 . . .[2-s 281.1] Ainsworth v Hanrahan (1991) 25 NSWLR 155 . . . . . . . . . . . . . . . . . . .[2-s 228.10] AJB v R (2007) 169 A Crim R 32 .[5-s 44.15], [8-s 66A.40] Albert v Lavin [1981] 2 WLR 1070 .[8-s 546C.15] Alderson v Booth [1969] 2 QB 216; (1969) 53 Cr App R 301 . . . . . . . . . . . . .[21-s 99.5] Alesbhi v R; Esbhi v R [2018] NSWCCA 30;

BC201801504 . .[2-s 168.1], [5-s 21A.5], [5-s 58.1] Alexander v R (1981) 145 CLR 395; 34 ALR 289 . . . . . . . . . . . . . . . . . . .[2-s 161.55] Alford v Magee (1952) 85 CLR 437; 59 ALR 101 . . . . . . . . . . . .[2-s 161.1], [2-s 161.25] Ali v R [2010] NSWCCA 35; BC200801606 . .[5-s 21A.5] Alister v — (1984) 154 CLR 404; 51 ALR 480 . . . . . . . . . . . . . . . . . . .[2-s 222.30] Alla v Gleeson (NSWSC, Roden J, 25 October 1985, unreported) .[21-s 206.1], [21-s 206.5], [21-s 206.10] Allan v R [2017] NSWCCA 6; BC201700487 .[2-s 293.1] — v R (No 2) [2011] NSWCCA 27; BC201100884 . . . . . . . . . . . . . . . . . . . .[5-s 59.5] Allen v R [2010] NSWCCA 47; BC201001303 . . . . . . . . . . . . . . . . . . . .[8-s 86.15] Allerton v DPP (1991) 24 NSWLR 550; 53 A Crim R 33 . . . . . . . . . . . . . . . . . . . .[1-230] Alliston v R [2011] NSWCCA 281; BC201110694 . . . . . . . . . . . . . . . . . . .[10-s 29.15] Allitt v Sullivan [1988] VR 621 . . . .[21-s 48.40] Alseedi v R [2009] NSWCCA 185; BC200906177 . . . . . . . . . . . . . . . . . . .[5-s 21A.10] Alvares and Farache v — [2011] NSWCCA 33; BC201101505 . . . . . . . . . . .[5-s 21A.10] Amalgamated Television Services Pty Ltd v Marsden (2001) 122 A Crim R 166 . . . . .[2-s 202.1] Anderson v Judges of the District Court (NSW) (1992) 27 NSWLR 701; 62 A Crim R 277 . .[8-s 527C.10], [8-s 527C.25], [21-s 219.1] — v Kynaston [1924] VLR 214 . . . .[11-125.20] — v R (NSWCCA, Gleeson CJ, 12 October 1989, BC8901598) . . . . .[2-s 222.10], [2-s 227.5] Andrews v Ardler (2012) 266 FLR 177 . . . . .[2-s 134.20] — v DPP [1937] AC 576; [1937] 2 All ER 552; (1937) 101 JP 386; 26 Cr App Rep 34; 2 All ER 552 . . . . . . . . . . .[8-s 18.50], [8-s 54.5] Anglim and Cooke v Thomas [1974] VR 363 .[10-s 12.1] Anic v R (1993) 68 A Crim R 313 . .[8-s 117.10], [8-s 117.15] Anjoul v — [2014] NSWCCA 234; BC201409108 . . . . . . . . . . . . . . . . . . . .[5-s 44.5] Annakin v — (1988) 17 NSWLR 202; 37 A Crim R 131 .[2-s 21.10], [2-s 21.15], [2-s 161.5], [8-s 18.5]

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ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020 . . . . . . . . . . . . . . .[5-s 33.1], [5-s 37.1] Attorney-General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 2 of 2002) (2002) 137 A Crim R 196 . . . . . .[8-s 60.20] Attorney-General’s Reference (No 3 of 1987) (1987) 48 SASR 1; 30 A Crim R 343 . . . . .[7-525] Attorney-General’s Reference (No 3 of 1994) [1996] 2 All ER 10 . . . . . . . . . . . . . .[8-s 20.1] Attorney-General’s Reference No 6 of 1980 [1981] QB 715 . . . . . . . . . . . . . . . .[8-s 58.5] Aubrey v R (2017) 343 ALR 538; 91 ALJR 601 . . . . . . . . .[8-s 4.1], [8-s 18.1], [8-s 35.10] Auld v Purdy (1933) 50 WN (NSW) 218 . . . .[8-s 93X.10] Australia Competition and Consumer Commission v Lux Pty Ltd [2003] FCA 89; BC200300344 . . . . . . . . . . . . . . . . . . .[2-s 222.20.5] Australian Broadcasting Corporation v Cloran (1984) 4 FCR 151; 57 ALR 742 . . . . .[21-s 48.25] Australian Securities and Investment Commission v Farley (2001) 51 NSWLR 494 . . .[2-s 117.1], [2-s 214.1] Bailey v Dept of Land and Water Conservation (2009) 74 NSWLR 333 . . . . . . . . . . .[2-s 142.5] Baker v Campbell (1983) 153 CLR 52; 49 ALR 385 . . . . . . . . . . .[2-s 222.20.5], [21-s 48.40] — v Evans (1987) 77 ALR 565 . . .[2-s 222.20.5], [21-s 48.40] — v R (2004) 223 CLR 513; 210 ALR 1 . .[5-Sch 1.1] Bales v Parmeter (1935) 35 SR (NSW) 182; 52 WN (NSW) 41 . . . . . . . . . . . . .[21-s 99.20] Ball v McIntyre (1966) 9 FLR 237 . . .[11-125.10], [11-125.20] Banditt v R (2005) 224 CLR 262; 223 ALR 633 . . . . . . . . . . . . . . . . . . . .[8-s 61I.5] Banks v — [2018] NSWCCA 41; BC201801898 . . . . . . . . . . . . . . . . . . . .[5-s 44.15] Bannister v Clarke [1920] 3 KB 598 . .[2-s 202.10] Bantick v Blunden (1981) 36 ALR 541; 58 FLR 414 . . . . . . . . . . . . . . . . . . . . .[5-s 10.5] Bao v R [2016] NSWCCA 16; BC201600790 . .[5-s 53A.5] Baradi v — [2018] NSWCCA 143; BC201806073 . . . . . . . . . . . . . . . . . . . . .[8-s 86.1] Barca v — (1975) 133 CLR 82; 7 ALR 78; 50 ALJR 108 . . . . . . . . . . . . . . . . .[2-s 161.15] Barker v Harvey (1942) 60 WN (NSW) 32 . . .[8-s 93X.10] — v R (1983) 153 CLR 338; 47 ALR 1 . . . . .[8-s 112.15], [8-s 117.35] Bar-Mordecai v Hillston [2003] NSWSC 1269; BC200308531 . . . . . . . . . . . .[8-s 338.1] Barns v Edwards (1993) 31 NSWLR 714; 68 A Crim R 140 . . . . . . . . . . . . . . . . . .[1-010] Barr (A Pseudonym) v Director of Public Prosecutions (DPP) (NSW) [2018] NSWCA 47;

Anson v DPP (2002) 129 A Crim R 328 . .[1-055], [1-280], [2-s 6.1] Aoun v R [2011] NSWCCA 284; BC201110365 . . . . . . . . . . . . .[10-s 3.45], [10-s 25.25] — v — [2007] NSWCCA 292; BC200708836 .[5-s 21A.10] Apostilides v — (1984) 154 CLR 563; 53 ALR 445 . . . . . . . . . . . . . . . . . . . . . .[7-485] Application by Attorney General (No 3 of 2002), Re (2004) 61 NSWLR 305; 147 A Crim R 546 . . . . . . . . . . . . .[5-s 37.1], [8-s 52A.45] Apps v R [2006] NSWCCA 290; BC200607306 . . . . . . . . . . . . . . . . . . . .[8-s 19A.5] Archer v — [2017] NSWCCA 151; BC201704980 . . . . . . . . . . . . . . . . . . . .[5-s 21A.5] Argytis v Stones 1959 AR (NSW) 145 . .[2-s 16.35] Arrowsmith v R (1994) 55 FCR 130 . .[2-s 161.20] Aslan v — (2015) 21 DCLR (NSW) 101 .[8-s 53.5] Aslett v — [2006] NSWCCA 49; BC200601952 . . . . . . . . . . . . . . . . . . . .[5-s 21A.5] Astor v Hayes (1988) 38 A Crim R 219 . . . . .[8-s 117.35] Atkinson v Coady (NSWSC, Campbell J, 20 October 1989, BC8901561) . . . . . . . . .[21-s 61.5] — v R [2014] NSWCCA 262; BC201410622 . .[5-s 22.5] — v Samuels (1977) 17 SASR 129 . . . .[11-395.5] Attorney General (NSW) v Tillman [2007] NSWCA 119; BC200703909 . . .[29-950.5], [29-956.5], [29-965.5] Attorney -General (SA) v Brown [1960] AC 432; [1960] ALR 395 . . . . . . . . . . .[2-s 160.1] Attorney-General (Cth) v Breckler (1999) 197 CLR 83; 163 ALR 576 . . . .[8-s 43.5], [8-s 43A.5] Attorney-General (NSW) v Hayter [2007] NSWSC 983; BC200708445 . . .[29-956.5], [29-965.5] — v Jackson (1906) 3 CLR 730; 12 ALR 375 .[2-s 285.1] — v Kintominas (1987) 28 A Crim R 371 . .[7-220] — v Mayas Pty Ltd (1988) 14 NSWLR 342 . .[2-s 57.1] — v Milat (1995) 37 NSWLR 370 . . . .[2-s 36.1] — v Stuart (1994) 34 NSWLR 667; 75 A Crim R 8 . . . . . . . . . . . . . . .[1-250], [2-s 222.30] Attorney-General (NT) v Kearney & Northern Land Council (1985) 158 CLR 500; 61 ALR 55 .[2-s 222.20.5], [21-s 48.40] Attorney-General v Tichy (1982) 30 SASR 84 .[5-s 55.1] — v West Gloustershire Water Co [1909] 1 Ch 636 . . . . . . . . . . . . . . . . . . . .[8-s 41A.5] Attorney-General’s Application (No 1); R v Ponfield (1999) 48 NSWLR 327 . . . . .[5-s 37.1], [8-s 112.20], [8-s 113.15] Attorney-General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; 137 A Crim R 180

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TABLE OF CASES BC201802823 . . . . . .[9-s 16A.5], [9-s 74.5] Barrett v R [2011] NSWCCA 213; BC201107694 . . . . . . . . . . . . . . . . . . . .[5-s 44.15] Barrington v Austin [1939] SASR 130 . . . . .[21-s 206.10] Barrom v Valdmanis (NSWSC, Meares J, 2 May 1978, No 7869/77, unreported[1978] ACLD 374 . . . . . . . . . . . . .[10-s 10.35], [10-s 43.1] Barron v A-G (NSW) (1987) 10 NSWLR 215 .[2-s 8.10] Bartho v R (1978) 52 ALJR 520; 19 ALR 418 .[2-s 161.10] Barton v Armstrong [1969] 2 NSWR 451 .[8-s 58.5] — v Berman [1980] 1 NSWLR 63 . . .[2-s 117.10] — v R (1980) 147 CLR 75; 32 ALR 449 . . . .[2-s 8.10], [2-s 19.5], [7-220] Basto v — (1954) 91 CLR 628; 28 ALJR 519 .[2-s 161.30], [8-s 27.1], [8-s 27.45], [8-s 39.35], [8-s 41.35] Beavan v — (1954) 92 CLR 660; [1954] ALR 775 . . . . . . . . . . . . .[2-s 161.20], [8-s 18.25] Beavis v — [2018] NSWCCA 248; BC201810418 . . . . . . . . . . . . . . . . . . . .[5-s 21A.5] Beckwith v — (1976) 135 CLR 569; 12 ALR 333; 51 ALJR 247 . . . . . . . . . . . . . . .[8-s 7.1] Behman v — [2014] NSWCCA 239; BC201409192 . . . . . . . . . . . . . . . . . . . .[5-s 53A.5] Bell v Atwell (1988) 32 A Crim R 181 . . . . .[8-s 547D.10] — v R; Jelisavac v R [2009] NSWCCA 206; BC200907562 . . . . . . . . . . . .[5-s 44.15] Bellchambers v R [2011] NSWCCA 131; BC201104171 . . . . .[5-s 44.15], [8-s 61I.65] — v — [2008] NSWCCA 235; BC200809092 .[8-s 428B.1] Bellino v Clair [1993] 2 Qd R 236; (1992) 63 A Crim R 346 . . . . . . . . . . . . . . . .[2-s 160.1] Benasic v R (1987) 77 ALR 340 . . . . .[8-s 99.10] Bennett v Daniels (1912) 12 SR (NSW) 134 . .[2-s 16.15] — v Marr (1978) 4 Petty SR 1824 . . . .[2-s 190.1] Berrigan v R [1995] 20 Leg Rep C2c . .[2-s 293.1] Berryman v — [2017] NSWCCA 297; BC201710692 . . . . . . . . . . . . . .[5-s 22.5], [5-s 53A.5] Berwin v Donohue (1915) 21 CLR 1 . . .[2-s 14.1] Betts v R [2015] NSWCCA 39; BC201501792 .[5-s 21A.5] Biddle v — [2017] NSWCCA 128; BC201704509 . . . . . . . . . . . . . . . . . . . .[5-s 22A.1] Bikhit v — [2007] NSWCCA 202; BC200705470 . . . . . . . . . . . . . . . . . . . .[5-s 10A.1] Biles v — [2014] NSWCCA 170; BC201406791 . . . . . . . . . . . . . . . . . . .[5-s 21A.10] Billing v Pill [1954] 1 QB 70 . . . . . .[8-s 117.15] Bird v Adams [1972] Crim LR 174 . . .[10-s 12.1] Black v Breen [2000] NSWSC 987; BC200006417

. . . . . . . . . . . . . . . . . . . .[21-s 49.15] — v Corkery (1988) 33 A Crim R 134 .[8-s 545C.5] — v R (1993) 179 CLR 44; 118 ALR 209 . . .[2-s 161.12], [7-805] Blackwell v — (2011) 208 A Crim R 392 . . . .[8-s 4A.5], [8-s 35.5] — v — [2012] NSWCCA 227; BC201208964 .[5-s 22.5] Blanch v Deputy Commissioner of Taxation (2004) 58 ATR 113 . . . . . . . . . . . . . .[2-s 228.10] Blazevski v Judges of the District Court (1992) 29 ALD 197 . . . . . . . . . . . . . . .[2-s 193.1] Blewitt v R (1988) 80 ALR 353; 62 ALJR 503 .[2-s 150.5] Blight v Barber (2007) 164 IR 136 . . . .[2-s 175.1] Blondin (1971) 2 CCC(2d) 118 . . . . .[10-s 10.15] BM v R [2017] NSWCCA 133; BC201704587 .[2-s 161.35] Boag v — (1994) 73 A Crim R 35 . . . .[2-s 207.1] Bollmeyer v Daly [1933] SASR 295 .[8-s 154A.10] Bolton v Dance [1968] VR 631 . . . . . .[11-155.1] Bond v R (1990) 48 A Crim R 1 . . . . .[5-s 23.1] Booth Pty Ltd v Barlett 1956 AR (NSW) 720 . .[2-s 16.15] Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 . . . . . . . . . . . . .[2-s 11.1] Borodin v R [2006] NSWCCA 83; BC200601917 . . . . . . . . . . . . . . . . . . . . .[2-s 21.1] Botany Bay Instrumentation and Control Pty Ltd v Stewart [1984] 3 NSWLR 98 . . . .[2-s 227.1] Boughey v R (1986) 161 CLR 10; 65 ALR 609; 20 A Crim R 156 .[8-s 18.5], [8-s 44.5], [8-s 58.5], [8-s 93G.10], [8-s 193H.5] Boujaoude v — [2008] NSWCCA 35; BC200801070 . . . . . . . . . . . . . . . . . . . .[10-s 25.23] Bourke v — (2010) 199 A Crim R 38 .[5-s 21A.15], [8-s 33.3], [8-s 33.20] Boyd v — [2016] NSWSC 1691 . . .[5-s 44.40], [5Sch 1.1] — v R (No 3) [2017] NSWSC 863; BC201705235 . . . . . . . . . . . . .[5-s 44.40], [5-Sch 1.1] Bradshaw v R (WACCA, Malcolm CJ, Pidgeon and Owen JJ, 142/1996, 13 May 1997, BC9701944) . . . . . . . . . . . . . . . . . . . . . .[7-485] Brady v Schatzel [1911] St R Qd 206 . . .[8-s 58.5] Brebner v Seager [1926] VLR 166 . . .[8-s 527C.1] Brennan v R [2018] NSWCCA 22; BC201800945 . . . . . . . . . . . . . . . . . . . .[5-s 44.15] Brindley v — (1993) 66 A Crim R 204 .[5-s 44.15] British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; 273 ALR 429 . . . . . . . . . . . . . . . . . . . . . .[1-015] Bromley v R (1986) 161 CLR 315; 67 ALR 12 .[2-s 161.40] Broome v Chenoweth (1947) 73 CLR 583; 20 ALJ 401; [1947] VLR 1; 8 ATD 218 . . . .[7-105], [7-160]

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ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020 Brotherton v R (1992) 29 NSWLR 95; 65 A Crim R 301 . . . . . . . . . .[2-s 161.35], [2-s 161.55] Brown v GJ Coles & Co Ltd (1985) 8 FCR 304; 59 ALR 455; 17 A Crim R 79 . . . .[21-s 99.30] — v R [2018] NSWCCA 257; BC201811027 . .[5-s 21A.10] — v — (1986) 160 CLR 171; 64 ALR 161 .[7-200] — v Robinson (1959) 60 SR (NSW) 297; 76 WN (NSW) 758 . . . . . . . . . . . . .[2-s 193.5] Browne v Dunn (1893) 6 R 67 . . . . . .[2-s 150.5] — v Dunne: Khamis v R [2010] NSWCCA 179; BC20105950 . . . . . . . . . . . . . . .[7-555] Brownlee v R (2001) 207 CLR 278; 108 ALR 301 . . . . . . . . . . . . . . . . . . . .[2-s 131.1] BRS v — (1997) 191 CLR 275; 148 ALR 101 .[2-s 161.45] Bruce v — (1987) 74 ALR 219 . . . . .[8-s 188.25] Brutus v Cozens [1972] 2 All ER 1297; [1973] AC 854 . . . . . . . . . . . . . . . . .[11-125.10] Bryan v Mott (1975) 62 Cr App Rep 71 . . . . . . . . . . . . . . . . . . . .[11-230.10] Bryant v R [2011] NSWCCA 26; BC201101121 . . . . . . . . . . . . . . . . . . . .[2-s 281.1] Buckman v — [2013] NSWCCA 258 . .[10-s 25.20] Bugmy v — (1990) 169 CLR 525; 92 ALR 552 . . . . . . . . . . . . . . . . . . . .[5-s 44.10] Bui v — [2008] NSWCCA 297; BC200811261 . . . . . . . . . . . . . . . . . . .[10-s 23A.5] Bungie v — [2015] NSWCCA 9; BC201500543 . . . . . . . . . . . . . . . . . . . . .[5-s 43.1] Burns v — (2012) 290 ALR 713 . .[8-s 18.50], [8-s 18.55] Burrell v — (2009) 196 A Crim R 199 .[2-s 161.15] BUSB v Director-General of Security [2011] NSWCA 49; BC201101463 . . . . . . . . . . . .[7-490] Bush v R (1993) 43 FCR 549; 115 ALR 654 . . . . . . . . . . . . . . . . . . . . . .[7-495] Butters v — [2010] NSWCCA 1; BC201000367 . . . . . . . . . . . . . . . . . . .[5-s 21A.10] Cahyadi v — (2007) 168 A Crim R 41 . .[5-s 55.1] Cain v Banks [1959] Qd R 234 . . . . . .[8-s 117.5] — v Douglas (1946) 72 CLR 409; [1946] ALR 490 . . . . . . . . . . . . . . . . . . .[8-s 351B.5] Callaghan v R (2006) 160 A Crim R 145 .[5-s 47.1] Caltex Refining Co Pty Ltd v Maritime Services Board (NSW) (1995) 36 NSWLR 552; 78 A Crim R 368 . . . . .[2-s 116.15], [2-s 213.15] Calvert v Mayes [1954] 1 QB 342 . . . .[11-380.5], [11-380.10] Camp, Appeal of [1975] 1 NSWLR 452 .[11-125.15] Campbell v R (1980) 2 A Crim R 157 . .[8-s 18.15] Canceri v Taylor (1994) 123 ALR 667; 55 IR 316 . . . . . . . . . . . . . . . . . . . .[2-s 117.1] Caratti v R [1984] WAR 313; (1984) 10 A Crim R 328 . . . . . . . . . . . . .[8-s 157.5], [8-s 161.1] Carew v Carone (1991) 5 WAR 1 . . . . . .[7-485]

Carney and Cambey v R [2011] NSWCCA 223; BC201108760 . . . . . . . . . . . .[8-s 18.25] Carr v — (1988) 165 CLR 314; 81 ALR 236 . .[2-s 161.40] Carroll v A-G (NSW) (1993) 70 A Crim R 162 .[2-s 222.30] — v Mijovich (1991) 25 NSWLR 441; 58 A Crim R 243 . . . . . . . . . . .[21-s 65.1], [21-s 76.1] Carter v Managing Partner, Northmore Hale Davy and Leake (1995) 183 CLR 121; 129 ALR 593 . . . . . . . . . . . . . . . . . . .[2-s 222.20.5] Carusi v R (1990) 64 ALJR 657 . .[10-s 3.30], [10-s 26.1] Carver v Law Society of New South Wales (1998) 43 NSWLR 71 . . . . . . . . . . . . . . .[1-015] Cashel v R [2018] NSWCCA 292; BC201812126 . . . . . . . . . . . . . . . . . . . .[10-s 3.85] Cassaniti v Croucher (2000) 48 NSWLR 623; 175 ALR 113 . . .[21-s 48.15], [21-s 48.20], [21-s 60.1] Castle v Olen (1985) 3 NSWLR 26 . . .[10-s 3.35], [10-s 27.5] — v R [2016] NSWCCA 148; BC201606383 . .[8-s 86.1] Cattell v Rolfe (1993-94) 1 NSWCR 49 . . . .[21-s 134.1] CC v R [2010] NSWCCA 337; BC201010020 .[2-s 161.1] CES v Superclinics (Aust) Pty Ltd (1995) 38 NSWLR 47 . . . . . . . . . . . . . . . . . . .[8-s 84.5] CH v R [2019] NSWCCA 68; BC201902352 . .[5-s 33.1] Chamberlain v R (No 2) (1984) 153 CLR 521; 51 ALR 225; 58 ALJR 133 . . .[2-s 161.10], [2-s 161.15] Chaplin v R (2006) 160 A Crim R 85 . .[8-s 86.15] Chapman v — [2013] NSWCCA 91; BC201302135 . . . . . . . . . . . . . . . . . . . .[10-s 25.1] Charara v — (2006) 164 A Crim R 39 . . . .[1-510] Cheatle v — (1993) 177 CLR 541; 116 ALR 1 . . . . . . . . . . . . . . . . . . . . . .[7-810] Cheney v — (1991) 28 FCR 103; 99 ALR 360 . . . . . . . . . . . . . . . . . . . . . .[7-575] Cheng v — [2000] HCA 53; (2000) 203 CLR 248 . . . . . . . . . . . . . . . . . . . .[10-s 25.1] Cheung v — (2001) 209 CLR 1 . . . . .[5-s 54B.5] Chief Executive Officer of Customs v Au (2005) 153 A Crim R 21 . . . . . . . . . . . . .[2-s 208.5] Christie v Leachinsky [1947] AC 573; [1947] 1 All ER 567 . . . . . . . . . . . . . . .[21-s 99.15] Chung v R [2017] NSWCCA 48; BC201701935 . . . . . . . . . . . . . . . . . . . .[5-s 22A.1] Church v — [2012] NSWCCA 149; BC201205031 . . . . . . . . . . . . . . . . . . . .[8-s 319.15] Cicciarello v — [2009] NSWCCA 272; BC200910122 . . . . . . . . . . . .[5-s 21A.5]

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TABLE OF CASES CJ v — [2012] NSWCCA 258; BC201209878 .[2-s 133.1] CL v DPP (NSW) [2011] NSWSC 943; BC201106872 . . . . . . . . . . . . . . . . . . . .[2-s 281.1] Clark v R [2008] NSWCCA 122; BC200803971 . . . . . . . . . . . . . . . . . . .[2-s 294A.5] — v Ryan (1960) 103 CLR 486; [1960] ALR 524 . . . . . . . . . . . . . . . . . . . .[10-s 12.1] Clarkson v DPP (Vic) [1990] VR 745 . . . .[7-485] Clayton v John L Pty Ltd [1984] 1 NSWLR 344 . . . . . . . . . . . . . . . . . . . . .[2-s 11.1] Cleary v Hammond [1976] 1 NSWLR 111 . . .[8-s 527C.10] Cleland v Harris [1950] AR (NSW) 271 .[2-s 16.35] — v R (1982) 151 CLR 1; 43 ALR 619 . . . . .[2-s 161.30] Clements Dunne & Bell Pty Ltd v Cmr, Aus Federal Police (No 1) [2000] FCA 1387; BC200005867 . . . . . . . . . . . . . . . . . . . .[21-s 48.40] — v Cmr, Aus Federal Police (No 2) (2001) 188 ALR 515 . . . . . . . . . . . . . . . . .[21-s 48.40] Clixby v Weston (1988) 15 NSWLR 35; 83 ALR 485 . . . . . . . . . . . . . . . . . . .[8-s 154A.15] Close v R (1992) 31 NSWLR 743; 65 A Crim R 55 . . . . . . . . . . . . . . . . . . . .[5-s 44.15] Clyne v A-G (Cth) (1984) 12 A Crim R 378 . . . . . . . . . . . . . . . . . . . . . .[7-005] Colbourn, In the Appeal of (NSWSC, Gee DCJ, 21 October 1977, unreported) . . . . . .[10-s 3.1] Coleman v DPP (2000) 49 NSWLR 371 .[11-410.5] Collier v DPP (NSW) [2011] NSWCA 202; BC201105441 . . . . .[2-s 192.1], [2-s 193.1] — v R [2012] NSWCCA 213; BC201208028 . .[5-s 44.15] Collins v Murray; Ex parte Murray [1989] 1 Qd R 614 . . . . . . . . . . . . . . . . . . . . .[2-s 19.5] — v Wilcock (1984) 1 WLR 1172 . . . . .[8-s 58.5] Colosimo v DPP (2005) 64 NSWLR 645; 155 A Crim R 573 . . . . . . . . .[8-s 93C.10], [8-s 418.1] — v — [2006] NSWCA 293; BC200609029 . .[8-s 93C.10] Commissioner for Railways (NSW) v Young (1962) 106 CLR 535 . . . . . . . . . . . .[10-s 43.1] Commissioner for Railways v Small (1938) 38 SR (NSW) 564; 55 WN (NSW) 215 .[2-s 222.10], [2-s 227.1], [2-s 227.5] Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; 141 ALR 545 . . . . . . . . .[2-s 222.20.5], [21-s 48.40] Commissioner of Police (NSW) v Folkes [2015] NSWSC 1887; BC201512199 . . . .[11-535.5], [11-540.15] Commissioner of Police v Allen (1984) 14 A Crim R 244 . . . . . . . . . .[11-530.10], [11-540.15] — v Atkinson (1991) 23 NSWLR 495; 54 A Crim R 378 . . . .[21-s 48.35], [21-s 61.1], [21-s 61.5] — v Bennett (1991) 9 Petty SR 4311 . .[21-s 219.1]

— v Fandakis [2001] NSWSC 586; BC200103907 . . . . . . . . . . . . . .[2-s 118.1], [2-s 216.1] — v Gabriel (2004) 141 A Crim R 566 .[11-540.15] — v Pecover [2014] NSWSC 1427; BC201409098 . . . . . . . . . . . . . . . . . . . .[21-s 218.5] — v Reid (1989) 16 NSWLR 453 . . . .[8-s 338.1] — v Rintoul [2003] NSWSC 662; BC200303953 . . . . . . . . . . . . .[11-530.10], [11-540.15] — v Wilson [1984] AC 242 . . . . . . . .[8-s 58.5] Commonwealth v Northern Land Council (1993) 176 CLR 604; 112 ALR 409 . . . . . .[2-s 228.5] Comptroller of Customs v Western Lectric Co Ltd [1966] AC 367 . . . . . . . . . . . .[10-s 12.1] Connelly v DPP (UK) [1964] AC 1254; [1964] 2 All ER 401 . . . . . . . . . . . . . . . .[2-s 193.5] Conners v Craigie (1993-94) 1 NSWCR 69 . . . . . . . . . . . . . . . . . . . .[11-125.20] — v — (1994) 76 A Crim R 502 . . . .[11-125.20], [11-125.25] Connolly v Willis [1984] 1 NSWLR 373 . . . . . . . . . . . . . . . . . . . .[11-125.20] Considine v Kirkpatrick [1971] SASR 73 .[8-s 4.5], [11-230.10] Cooke v Purcell (1988) 14 NSWLR 51; 91 FLR 350 . . . . . . . . . . . . . . . . . . . . .[2-s 19.5] Cooper v Shield [1971] 2 QB 334; 2 All ER 917 . . . . . . . . . . . . . . . . . . . .[11-125.10] Corbett v NSW [2006] NSWCA 138; BC200604217 . . . . . . . . . . . . . . . . . . . .[21-s 60.1] Corcoran v Gurney (1853) 1 Ellis and Blackburn 456 . . . . . . . . . . . . . . . . . . . . .[8-s 32.1] Cordwell v Lincoln [1914] QSR 186 . .[8-s 502.10] Corkery v Black (NSWCA, 2 August 1989, BC8901886) . . . . . . . . . . . .[8-s 545C.5] Cornelius and Briggs v R (1988) 34 A Crim R 49 . . . . . . . . . . . . . . . . . . . .[2-s 160.1] Cornwall v Attorney-General (NSW) [2007] NSWCA 374; BC200711457 . . . . . . . . . .[29-950.5] Couloumbis v R [2012] NSWCCA 264; BC201209687 . . . . . . . . . . . .[5-s 21A.5] Coulter v — (1987) 61 ALJR 537 . . . .[8-s 59.10] Coventry v — (1938) 59 CLR 633 . . .[8-s 52A.45] Cowling v — [2015] NSWCCA 213; BC201507549 . . . . . . . . . . . . .[5-s 21A.1], [5-s 21A.5] Cox v Salt (1994) 12 WAR 12 . . . . . .[2-s 202.1] C-P v R [2009] NSWCCA 291; BC200911181 .[5-s 33.1] Crabbe v — (1985) 156 CLR 464; 58 ALR 417 . . . . . . . . . . . . . . . . . . . . .[8-s 18.5] Crafter v Kelly [1941] SASR 237 . .[8-s 189A.10], [11-275.1] Craig v SA (1995) 184 CLR 163; 131 ALR 595 . . . . . . . . . . . . . . . . . . . . .[2-s 36.1] Cramp v R (1999) 30 MVR 9; 110 A Crim R 198 . . . . . . . . . . . . .[2-s 161.7], [8-s 18.62] Crampton v — (2000) 206 CLR 161; 176 ALR 369

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ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020 . . . . . . . . . . . . . . . . . . . .[2-s 161.40] Crichton v Victorian Dairies Ltd (1965) VR 49 .[2-s 14.1] Cross v R (No 2) [2012] NSWCCA 234; BC201209055 . . . . . . . . . . . . .[5-s 50.1] Crothers v Sheil (1933) 49 CLR 399; 33 SR (NSW) 525 . . . . . . . . . . . . . . . . . .[2-s 16.35] Croton v R (1967) 117 CLR 326; [1968] ALR 331 . . . . . . . . . . . . .[8-s 117.20], [8-s 162.1] Crowe v Graham (1968) 121 CLR 375; [1968] ALR 524 . . . . . . . . . . . . . . . . . .[11-135.5] CT v R [2017] NSWCCA 15; BC201700968 . .[8-s 66A.40] CTM v — (2008) 247 ALR 1; 82 ALJR 978 . .[8-s 66C.10] — v — (2007) 171 A Crim R 371 . . .[8-s 66D.10] Cullen v Meckelenburg [1977] WAR 1 . .[11-135.5] — v R [2014] NSWCCA 162; BC201406584 . .[5-s 53A.5] Cumberland v DPP (NSWSC, Hulme J, 7 June 1996, BC9606848) . . . . . . . . . . . . .[2-s 212.5] Czako v R [2015] NSWCCA 202; BC201507195 . . . . . . . . . . . . . . . . . . . .[10-s 25.45] D v — [2016] NSWCCA 60 . . . . . . . . .[7-010] Da Silva v — [2016] NSWCCA 40; BC201605196 . . . . . . . . . . . . . . . . . . . . .[2-s 30.1] DAC v — [2006] NSWCCA 265; BC200606707 . . . . . . . . . . . . . . . . . . . .[5-s 54B.1] Daher v — [2018] NSWCCA 287; BC201812123 . . . . . . . . . . . . . . . . . . .[10-s 25A.5] Dale v DPP [2009] VSCA 212; BC200908579 .[9-s 19.10] Dallison v Caffery [1965] 1 QB 348; [1964] 2 All ER 610 . . . . . . . . . . . . . . . . . . . .[7-485] Dang v R [2013] NSWCCA 246; BC201314491 . . . . . . . . . . . . . . . . . . . .[10-s 24.40] Danial v — [2008] NSWCCA 15; BC200800416 . . . . . . . . . . . . . . . . . . . . .[5-s 22.5] Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543; 192 ALR 561 . . . .[2-s 222.20.5] Darby v DPP (2004) 61 NSWLR 558; 150 A Crim R 314 . . . . . . . . . . . . . . . . . .[21-s 21.1] Darcey v Pre-Term Foundation Clinic [1983] 2 NSWLR 497 . . . . . . . . . . . .[2-s 227.10] Darch v Weight [1984] 1 WLR 659 . .[8-s 310G.5] Davidson v R (2009) 75 NSWLR 150; 195 A Crim R 406 . . . . . . . . . . . . . . . . .[2-s 161.15] Davies and Cody v — (1937) 57 CLR 170; 43 ALR 321; [1937] VLR 205 . . . . . . .[2-s 161.55] Davis v Gell (1924) 35 CLR 275 . . . . . . .[7-105] — v Lisle [1936] 2 KB 434 .[8-s 58.45], [8-s 58.50] — v R (1998) 73 ALJR 139; 20 Leg Rep C 19c . . . . . . . . . . . . . . . . . . . . .[8-s 23.3] — v — [2006] NSWCCA 392; BC200610292 .[8-s 86.2]

— v — (1991) 103 ALR 417; 66 ALJR 22 . .[10-s 19.1] — v — (1991) 66 ALJR 22 . . . . . . .[10-s 27.1] — v — [2018] NSWCCA 67; BC201802688 . .[5-s 21A.10] Dawson v — (1961) 106 CLR 1; [1962] ALR 365 . . . . . . . . . . . . . . . . . . . .[2-s 161.10] Day v — (1984) 153 CLR 475; 51 ALR 353 . .[8-s 310D.10] — v Rugala [1978] 33 FLR 208 . . . . . .[2-s 11.1] De Campos v R [2006] NSWCCA 51; BC200601099 . . . . . . . . . . . . . . . . . . . . .[5-s 23.1] De Gruchy v — (2002) 211 CLR 85; 190 ALR 441 . . . . . . . . . . . . . . . . . . . .[2-s 161.25] De Jesus v — (1986) 68 ALR 1; 61 ALJR 1 . .[2-s 21.15] De Londo’s Case (1765) 2 Eas PC 1098 .[8-s 28.1] De Romanis v Sibraa [1977] 2 NSWLR 264 . .[2-s 11.1] De Varda v Constable Stengord [2011] NSWSC 868; BC201110512 . . . . . . . . . . . .[2-s 214.1] Deakin v R (1984) 54 ALR 765; 58 ALJR 367; 11 A Crim R 88 . . . . . . . . . . . . . .[5-s 44.10] Dean v — [2015] NSWCCA 307; BC201511889 . . . . . . . . . . . . . . . . . . . . .[5-s 61.1] Dearing v Passi (1994) 12 NSWCR 117; (1995) 2 Crim LN 13 . . . . . . . . . . . .[21-s 99.15] Decision restricted [2018] NSWCCA 288 . . . .[2-s 161.62] — [2019] NSWCCA 43 . . . . . . . .[8-s 192E.20] Delk v R (1999) 46 NSWLR 340; 106 A Crim R 240 . . . . . . . . . . . . . . . . . . . . .[8-s 94.2] Demetriou v DPP (2000) 32 MVR 485 .[2-s 16.15] Dendic & Mazzeo v R (1987) 34 A Crim R 40 . . . . . . . . . . . . . . . . . . . .[10-s 3.45] Department of Health and Community Services (NT) v JWB (Marion’s case) (1992) 175 CLR 218; 106 ALR 385 . . . . . . . . . . . . .[8-s 58.5] Derriman v Slattery [1982] 1 NSWLR 214; (1982) 41 ALR 482; 61 FLR 230 . . . . . . . .[5-s 55.1] Dever v Creevey; Ex parte Creevey [1993] 1 Qd R 232; (1991) ASC 56–100 . . . . . . .[2-s 14.1] DG v R [2017] NSWCCA 139; BC201704749 .[5-s 33.5] Dhanhoa v — (2003) 217 CLR 1; 199 ALR 547 . . . . . . . . . . . .[2-s 161.55], [2-s 161.62] Diaz v — [2018] NSWCCA 33; BC201801665 .[8-s 86.15] Dickson v Cmr of Police (1999) 48 NSWLR 156; 108 A Crim R 494 . . . . . . . . . . .[21-s 138.1] Dietrich v R (1992) 177 CLR 292; 109 ALR 385 . . . .[2-s 19.5], [2-s 36.1], [2-s 40.1], [7-400] Dimian v — (1995) 83 A Crim R 358 . .[2-s 293.1] Dimitrou v Samuels (1975) 10 SASR 331 . . .[10-s 43.1] Director General NSW Dept of Agriculture v Temmingh [2003] NSWSC 598; BC200303816

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TABLE OF CASES . . . . .[2-s 116.15], [2-s 213.15], [2-s 215.1] — v — [2003] NSWSC 247; BC200301726 . .[8-s 10A.10] Director of Prosecutions (NSW) v Knight (2006) 162 A Crim R 555 . . . . . . . . . . . .[2-s 16.15] Director of Public Prosecutions (Cth) v Cassaniti [2006] NSWSC 1103; BC200608435 . . .[9-s 22.5] — v Heng [2015] NSWCCA 333; BC201513370 . . . . . . . . . . . . . . . . . . . .[9-s 16A.5] — v Ngo [2012] NSWSC 1521; BC201209750 .[2-s 214.1] Director of Public Prosecutions (DPP) (NSW) v Al-Zuhairi [2018] NSWCCA 151; BC201807259 . . . . . . . . . . .[2-s 289F.5] — v Banks [2019] NSWSC 363; BC201902564 . . . . . . . . . . . . . . . . . . . .[2-s 289F.5] — v Best [2016] NSWSC 261; BC201601623 .[8-s 60.5] — v Chaouk [2010] NSWSC 1418; BC201009315 . . . . . . . . . . . . . . . . . . . .[2-s 187.5] — v Elias [2013] NSWSC 28; BC201300526 . .[1485], [2-s 202.15] — v Farrugia [2017] NSWCCA 197; BC201712343 . . . . . . . . . . . . .[2-s 132.1], [2-s 132A.1] — v Horwood (2009) 78 NSWLR 32; 208 A Crim R 146 . . . . . . . . . . . . . . . . . .[21-s 11.5] — v Hughes [2017] NSWSC 492; BC201704458 . . . . . . . . . . . . . . . . . . . .[8-s 91H.5] — v Nikolovski [2017] NSWSC 1038; BC201706020 . . . . . . . . . . . . . . . . . . . . .[8-5250.5] — v O’Conner (2006) 181 A Crim R 294 .[2-s 84.1] — v Wililo [2012] NSWSC 713; BC201204764 .[1005], [2-s 134.20], [2-s 194.5], [8-s 58.2] Director of Public Prosecutions (DPP) v Gramelis [2010] NSWSC 787; BC201005079 . .[1-485] — v Lazzam [2016] NSWSC 145; BC201601079 . . . . . . . . . . . . . . . . . . . .[2-s 188.1] — v Lee [2006] NSWSC 270; BC200602273 . .[2-s 202.1] — v Losurdo (1998) 44 NSWLR 618; 103 A Crim R 189 . . . . . . . . . . . . . .[1-510], [2-s 85.1] — v Tamcelik [2012] NSWSC 1008; BC201206880 . . . . . . . . . . . . . . . . . . . .[21-s 82.1] — v Williams [2018] NSWSC 1832; BC201811523 . . . . . . . . . . . . . . . . . . . . .[8-s 4.20] — v Wunderwald [2004] NSWSC 182; BC200401191 . . . . . . . . . . . . . . . . . . . .[2-s 194.5] Director of Public Prosecutions (NSW) v Boykin (NSWSC, Wood J, 21 June 1994, BC9405141) . . . . . . . . . . . . . . . . . . . .[2-s 212.1] — v Campbell [2015] NSWCCA 173; BC201505760 . . . . . . . . . . . . . .[9-s 67.1], [9-s 16A.5] — v Dagdanasar [2016] NSWSC 1089; BC201606571 . . . . . . . . . . . .[9-s 18.10] — v Elskaf [2012] NSWSC 21; BC201200277 .[2-s 194.5], [2-s 202.1]

— v Fungavaka [2010] NSWSC 917; BC201006159 . . . . . . . . . . . . . . . . . . . .[2-s 183.5] — v Harrison [2008] NSWSC 349; BC200802605 . . . . . . . . . . . . . . . . . . . .[2-s 16.15] — v Illawarra Cashmart Pty Ltd (2006) 67 NSWLR 402 . . . . . . . . . . . . . . . . .[2-s 202.15] — v Lucas [2014] NSWSC 1441; BC201408778 . . . . . . . . . . . . . . . . . . . .[8-s 195.5] — v Mawad [2015] NSWCCA 227 . . .[9-s 16A.5], [9-s 31.5] — v Nassif (2002) 135 A Crim R 391 . .[21-s 10.1] — v Roberts [2016] NSWSC 1224; BC201608608 . . . . . . . . . . . . . . . . . . . .[21-s 69.1] — v Tikomaimaleya [2015] NSWCA 83; BC201502323 .[9-s 16A.5], [9-s 16A.10], [9-s 19.5], [9-s 66.5] — v Yeo (2008) 51 MVR 157 . . .[2-s 190.1], [2-s 193.1] — v Zaiter [2016] NSWCCA 247 . .[9-s 1.30], [9-s 16A.5], [9-s 66.15] Director of Public Prosecutions Reference (No 1 of 1988) [1989] VR 857; (1989) 40 A Crim R 461 . . . . . . . . . . . . . . . . . . . .[8-s 197.5] Director of Public Prosecutions Reference No 1 of 1993; R v K (1993) 118 ALR 596; 46 FCR 336 . . . . . . . . . . . .[8-s 58.55], [8-s 546C.15] Director of Public Prosecutions (SA) Reference No 2 of 1995 (1995) 65 SASR 508; 82 A Crim R 263 . . . . . . . . . . . . . . . . . . . .[10-s 6.15] Director of Public Prosecutions v Alderman (1998) 45 NSWLR 526 . . . . . . .[2-s 11.1], [2-s 16.35] — v Armstrong [2010] NSWSC 885; BC201006200 . . . . . . . . . . . . . . . . . . . .[21-s 99.50] — v Aydogan (2006) 67 NSWLR 727 .[8-s 317.15] — v B (1998) 155 ALR 539 . . . . . . . . .[7-105] — v Boykin (NSWSC, Wood J, 21 June 1994, BC9405141) . . . . . . . . . . . .[2-s 227.10] — v Brooks [1974] 2 WLR 899; [1974] AC 862 . . . . . . .[8-s 7.1], [10-s 10.5], [10-s 10.40] — v Cakici [2006] NSWSC 454; BC200603471 . . . . . . . . . . . . . . . . . . . .[2-s 202.20] — v Carr (2002) 127 A Crim R 151 . .[11-130.10], [21-s 99.5] — v Cassell (1995) 80 A Crim R 160 . .[2-s 208.5] — v Curby [2000] NSWSC 745; BC200004322 . . . . . . . . . . . . . . . . . . . .[8-s 99.10] — v Daley [1980] AC 237 . . . . . . . .[8-s 18.15] — v Darby [2002] NSWSC 1157; BC200207203 . . . . . . . . . . . . . . . . . . . .[21-s 21.1] — v Deeks (1994) 34 NSWLR 523; 74 A Crim R 85 . . . . . . . . . . . . . . .[1-020], [2-s 227.10] — v Evans [2017] NSWSC 33; BC201700415 .[8-s 418.1] — v FD [2017] NSWSC 679; BC201704149 . .[8-s 61AA.1], [8-s 61AA.5] — v Goben [1999] NSWSC 696; BC9903990 .[2-s 213.1]

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ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020 — v Gribble (2005) 151 A Crim R 256 .[8-s 58.55] — v Heagney [1999] NSWSC 303; BC9901442 . . . . . . . . . . . . . . . . . . . .[2-s 156.1] — v Humphrys [1977] AC 1; [1976] 2 All ER 497 . . . . . . . . . . . . . . . . . . . .[2-s 193.5] — v JWH (NSWSC, Hulme J, 17 October 1997, BC9705937) . . . . . . . . . . . . . .[8-s 58.5] — v K (1999) 49 NSWLR 226 . . . . . .[8-s 99.10] — v Merriman [1973] AC 584 . . . . . .[2-s 21.10] — v Newbury [1977] AC 500 . . . . . .[8-s 18.55] — v Nock [1978] AC 979; [1978] 3 WLR 57 .[10-s 6.10], [10-s 40.1] — v Puskar (1992) 10 Petty SR 4521 . .[8-s 58.55] — v Ray [1974] AC 370; [1973] 3 All ER 131 .[8-s 192B.15], [8-s 192E.20] — v Ridley (2015) 73 MVR 125 . . . . .[2-s 38.1] — v Rogers [1953] 2 All ER 644 . . . . .[8-s 58.5] — v Shirvanian (1998) 44 NSWLR 129; 102 A Crim R 180 . . . . . . . . . . . .[1-020], [2-s 192.5] — v Sinclair (NSWSC, Sperling J, 014409/1996, 1 April 1997, BC9701516) . . . . . .[8-s 311.1] — v Sinton (2001) 51 NSWLR 659; 33 MVR 549 . . . . . . . . . . . . . . . . . . . .[2-s 167.1] — v Sounthorn [1999] NSWSC 786; BC9904395 . . . . . . . . . . . . . . . . . . . .[2-s 183.1] — v TY (No 2) (2006) 14 VR 430; 167 A Crim R 596 . . . . . . . . . . . . . . . . . . . .[8-s 18.55] — v Vella [1999] NSWSC 49; BC9900681 . . .[2-s 156.1] — v — (2005) 156 A Crim R 113 . . . . .[8-s 60.5] — v Webb (2001) 52 NSWLR 341; 164 FLR 394 . . . . . . . . . . . . . . . . . . . .[2-s 183.1] — v West (2000) 48 NSWLR 647 . . .[2-s 134.20], [2-s 183.5], [2-s 187.1], [2-s 187.5], [2-s 188.1] Director-General of Fair Trading v O’Shane (NSWSC, Graham AJ, 22 August 1997, BC9703791) . . . . .[2-s 202.10], [2-s 208.5] Dixon v McCarthy [1975] 1 NSWLR 617 . . . .[5-s 10.10] — v Stephens (NSWSC, Street J, 2 September 1971, unreported) . . . . . . . . . . . . . .[21-s 49.5] DJ v R [2017] NSWCCA 319; BC201711037 . .[2-s 167.1] DJB v — [2007] NSWCCA 209; BC200711453 . . . . . . . . . . . . . . . . . . . . .[2-s 20.1] DJS v — [2010] NSWCCA; BC201007150 . . .[2-s 161.45] Dodd v — (1991) 56 A Crim R 451 .[2-s 19.5], [2-s 156.1], [2-s 193.5], [7-160], [10-s 10.50], [10-s 25.15] Doe v Fairfax Media Publications Pty Ltd [2018] NSWSC 1996; BC201813040 . . .[8-s 578A.5] — v R [2013] NSWCCA 248; BC201314493 . .[8-s 61I.65] Doja v — [2009] NSWCCA 303; BC200911598 . . . . . . . . . . . . . . . . . . . . .[2-s 16.1]

Doklu v — [2010] NSWCCA 309; BC201009853 . . . . . . . . . . . . . . . . . . . .[2-s 161.12] Domican v — (1989) 43 A Crim R 24 .[2-s 21.15], [2-cl 21.5] — v — (1992) 173 CLR 555; 106 ALR 203; 66 ALJR 285 . .[2-s 161.25], [2-s 161.30], [2-s 161.55], [7-625] Dominguez v — (1985) 63 ALR 181 .[2-s 161.10], [2-s 161.30] Donaczy v — [2010] NSWCCA 143; BC201004642 . . . . . . . . . . . . . .[5-s 22.5], [8-s 24.30] Donald v — (1983) 34 SASR 10; 11 A Crim R 47 . . . . . . . . . . . . . . . . . . . . .[2-s 19.5] Doney v — (1990) 171 CLR 207; 96 ALR 539 .[2-s 154.1], [7-525] Donges v Ratcliffe [1975] 1 NSWLR 501 . .[1-485], [2-s 202.15] Donnelly v Jackman [1970] 1 WLR 562; 1 All ER 987 . . . . . . . . . . . . .[8-s 58.45], [8-s 546C.5] Donoghue v Coombe (1987) 45 SASR 330 . . .[8-s 117.15], [8-s 117.25] Doodeward v Spence (1908) 6 CLR 406 . . . .[8-s 117.15] Doolan v R (2006) 160 A Crim R 54 . .[5-s 21A.5] Douar v — (2005) 159 A Crim R 154 . . .[5-s 5.1] Dougan v — (2006) 160 A Crim R 135 .[5-s 21A.5] Douglas v Blackler [2001] NSWSC 901; BC200106390 . . . . .[21-s 48.25], [21-s 61.1] — v R [2005] NSWCCA 419; BC200511150 . .[8-s 418.1] Doumit v — [2011] NSWCCA 134; BC201104172 . . . . . . . . . . . . . . . . . . . . .[5-s 33.1] Dover v Ridge (NSWSC, Dunford J, 30090/98, 3 September 1998, BC9805274) . .[21-s 48.25], [21-s 49.5] Downey v R (1994) 68 ALJR 371 . .[8-s 192B.15], [8-s 192E.20] Dowse v NSW [2012] NSWCA 337; BC201208026 . . . . . . . . . . . . . . . . . . . .[21-s 99.5] Doyle v R [2014] NSWCCA 4; BC201400988 .[2-s 293.1] DPP v Harika [2001] VSC 237; BC200104512 .[9-s 16A.10] — v Zhang (2007) 48 MVR 78 . . . . . . .[1-455] Drew v R [2016] NSWCCA 310 . . . . .[5-s 21A.5] Dryburgh v — (1961) 105 CLR 532; 35 ALJR 254 . . . . . . . . . . . . . . . . . . . . . .[7-505] Drymalik v Feldman [1966] SASR 227 .[21-s 99.5] DS v R [2012] NSWCCA 159; BC201205518 .[2-s 130.1] Duffield v — (1992) 28 NSWLR 638; 110 ALR 323 . . . . . . . . . . . . . . . .[2-s 8.10], [7-010] Dunn v — (1986) 32 A Crim R 203 . .[10-s 10.15], [10-s 25.1] — v — [2007] NSWCCA 312; BC200709737 .[5-s 44.15]

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TABLE OF CASES Dunsmore v Weber (1988) 8 MVR 133 . . . . .[8-s 52A.40] Dupas v R (2010) 241 CLR 237; 267 ALR 1 . .[2-s 30.1] DW v — (2004) 150 A Crim R 139 . . .[2-s 133.1] Dyason v Butterworth [2015] NSWCA 52; BC201501468 . . . . . . . . . . . .[8-6360.5] Dyers v R (2002) 210 CLR 285; 192 ALR 181 .[2-s 161.30] E (a Child) (1994) 13 WAR 1; 76 A Crim R 343 . . . . . . . . . . . . . . . . . . .[21-s 206.10] Eager v Smith (1988) 38 A Crim R 272 .[10-s 3.10] Eastman v R (1997) 158 ALR 107; 76 FCR 9 .[2-s 222.25] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; 176 ALR 644 . . . . . . . .[1-015] Edens v Cleary [1975] 1 NSWLR 278 . . . . . .[8-s 527C.25] Edwards v Macrae (1991) 14 MVR 193 .[8-s 52A.5] — v R (1993) 178 CLR 193; 117 ALR 600 . . .[2-s 161.10], [2-s 161.62] Eedens v — [2009] NSWCCA 254; BC200909053 . . . . . . . . . . . . . . . . . . . . .[5-s 33.1] EG v — [2015] NSWCCA 21; BC201501032 . .[5-s 28.1] Egan v Bott [1985] VR 787 . . . . . . . . .[1-455] — v McLernon (1949) 51 WALR 83 . .[11-380.15] Einfeld v R (2008) 252 ALR 375; 51 MVR 200 . . . . . . . . . . . . .[8-s 312.5], [8-s 319.5] EK v — [2010] NSWCCA 199; BC201006600 .[2-s 306I.10] El Hassan v DPP [2000] NSWCA 330; BC200007117 . . . . . . . . . . . . . . . . . . . .[2-s 193.1] Eldridge v R [2011] NSWCCA 144; BC201104501 . . . . . . . . . . . . . . . . . . . . .[5-s 47.1] El-Hilli and Melville v — [2015] NSWCCA 146; 22(7) Crim LN [3550]; BC201505080 . . .[9-s 22.5] Elliot and Hitchens (1983) 9 A Crim R 238 . . .[8-s 98.5] Ellis v Fingleton (1972) 3 SASR 437 . .[11-125.20] — v Lawson (1987) 33 A Crim R 69 . .[2-s 16.20], [8-s 117.10], [8-s 117.20] Elsaj v R [2017] NSWCCA 124; BC201704369 . . . . . . . . . . . . . .[5-s 22.5], [5-s 53A.5] Elyard v — (2006) 45 MVR 402 . . . .[5-s 21A.1] El-Youssef v — [2010] NSWCCA 4; BC201000373 . . . . . . . . . . . . . . . . . . . . .[5-s 33.1] Emery v Magistrate of the Local Court at Tamworth (NSWSC, Sully J, 19 September 1990, BC9003273) . . . . . . . . . . . .[2-s 202.10] Emmerson v Clarke (1872) 3 QSCR 76 . . . . .[8-s 131.15] Employers Mutual Ltd v Heise [2018] NSWSC 1842 . . . . . . . . . . . . . . . . . . . . .[2-s 14.1] Enriquez v R [2012] NSWCCA 60; BC201202127 . . . . . . . . . . . . . . . . . . . .[5-s 21A.5]

Environment Protection Authority v Alkem Drums Pty Ltd (2000) LGERA 130; 121 A Crim R 152 . . . . . . . . . . . . . . . . . . . .[2-s 179.5] — v Australian Iron and Steel Pty Ltd (1992) 28 NSWLR 502; 64 A Crim R 124 . .[2-s 193.5] — v Waight (No 2) (1999) 109 A Crim R 288 .[2-s 227.1] ER v Khan [2015] NSWCCA 230; BC201510819 . . . . . . . . . . . . . . . . . . .[2-s 299B.5] Erickson v Pittard [1976] 2 NSWLR 528 . . .[10-s 11.1] Erohin v R [2006] NSWCCA; BC200601979 . .[2-s 161.45] Esso Australia Ltd v Curran (1989) 39 A Crim R 157 . . . . . . . . . . . . .[21-s 48.30], [21-s 49.5] Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49; 168 ALR 123 . . . .[2-s 222.20], [2-s 222.20.5], [21-s 48.40] — v Plowman (1995) 183 CLR 10; 128 ALR 391 . . . . . . . . . . . . . . . . . . . .[2-s 228.10] Evans v DPP [2000] NSWSC 1005; BC200006674 . . . . . . . . . . . . . . . . . . . .[2-s 208.1] — v Frances (NSWSC, Lusher J, 10 August 1990, unreported) . . . . . . . . . . . . .[11-125.20] Evgeniou v R (1964) 37 ALJR 508; [1965] ALR 209 . . . . . . . . . . . . . . . . . . . . . .[7-525] Ewen v — [2015] NSWCCA 117; BC201504420 . . . . . . . . . . .[2-s 161.45], [2-s 294AA.1] Ex parte Bignell (1915) 32 WN (NSW) 91 . . .[2-s 16.15] Ex parte Bluett; Re Nyngan Municipal Council (1929) 46 WN (NSW) 120; 9 LGR 72 . . .[2-s 16.15] Ex parte Bowman (1866) 6 SCR (NSW) 15 . . .[8-s 131.15] Ex parte Burnett; Re Wicks [1968] 2 NSWR 119 . . . . . . . . . . . . . . . . . . . .[2-s 16.35] Ex parte Consolidated Press Ltd; Re Harris (1961) 78 WN (NSW) 261 . . . . . . . . . . .[2-s 16.35] Ex parte Corbishley; Re Locke [1967] 2 NSWR 547; (1967) 67 SR (NSW) 396; 86 WN (Pt 2) (NSW) 215 . . . . . . . . . . . . . . . . .[2-s 202.30] Ex parte Cousens; Re Blacket (1946) 47 SR (NSW) 145; 63 WN (NSW) 228 . . . . . . . .[1-200] Ex parte Cunliffe (1871) 10 SCR (NSW) 250 . .[2-s 16.35] Ex parte Dustings; Re Jackson (1967) 87 WN (Pt 1) (NSW) 98; [1968] 1 NSWR 257 . . .[2-s 36.5] Ex parte Ferguson; Re Alexander (1945) 45 SR (NSW) 64; 62 WN (NSW) 15 . .[8-s 417A.1] Ex parte Homer; Re McElligott (1933) 50 WN (NSW) 158 . . . . . . . . . .[2-s 193.5], [8-s 351B.1] Ex parte Johnstone (1935) 52 WN (NSW) 194 .[8-s 154A.10] Ex parte Kelly; Re Teece [1966] 2 NSWR 674; (1966) 85 WN (Pt 1) (NSW) 151 . .[2-s 202.10], [2-s 202.30] Ex parte Kirkpatrick (1916) 16 SR (NSW) 541; 34

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ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020 WN (NSW) 15 . . . . . . . . . . .[2-s 16.35] Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153; 55 WN (NSW) 63 . . . . . . .[2-s 16.35] Ex parte McDonald (1880) 1 LR(NSW) 252 . .[8-s 131.10] Ex parte McPherson (1933) 50 WN (NSW) 25 .[8-s 159.15], [8-s 527C.1], [11-230.5] Ex parte Miller; Re Hamilton (1934) 51 WN (NSW) 101 . . . . . . . . . . . . . . . . .[8-s 527C.5] Ex parte O’Sullivan; Re Craig (1944) 44 SR (NSW) 291; 61 WN (NSW) 197 . . . . . . .[2-s 16.5] Ex parte Patmoy; Re Jack (1944) 44 SR (NSW) 351 . . . . . . . . . .[8-s 527C.10], [8-s 527C.20] Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1; 63 WN (NSW) 34 . . . . . . . . .[2-s 202.15] Ex parte Pritchard (1914) 31 WN (NSW) 104 . .[8-s 502.5] Ex parte Reid; Re Lynch (1943) 43 SR (NSW) 207; 60 WN (NSW) 148 . . . . . . . .[2-s 202.15] Ex parte Schaefer; Re Field (1943) 60 WN (NSW) 99 . . . . . . . . . . . . . . . . . . . .[2-s 179.5] Ex parte Stanton (1928) 28 SR (NSW) 516; 45 WN (NSW) 118 . . . . . . . . . . . . . .[2-s 16.35] Ex parte Walton (1885) 1 WN (NSW) 141 . . .[8-s 131.5] Ex parte Watts (1906) 23 WN (NSW) 69 . . . . . . . . . . . . . . . . . . . .[11-380.15] Ex parte Wicks; Re Cameron (1935) 52 WN (NSW) 144 . . . . . . . . . . . . . . . . . .[11-380.5] Ex parte Williams (1909) 9 SR (NSW) 140; 26 WN (NSW) 9 . . . . . . . . . . . . . . .[2-s 16.35] Ex parte Wimborne (RJ) Pty Ltd; Re Beale [1958] SR (NSW) 353; 75 WN (NSW) 372 .[8-s 417A.1] Ex parte Work (1887) 3 WN (NSW) 125 . . . .[8-s 131.10] Fagan v Metropolitan Police Cmr [1969] 1 QB 439 . . . . . . . . . . . . . . . . . . . . .[8-s 58.5] Fairclough v Whipp [1951] 2 All ER 834 .[8-s 58.5] Fan v R (1991) 103 ALR 485 . . . . . .[10-s 28.1] Fantakis v Commissioner of Police [2013] NSWSC 685 . . . . . . . . . . . . . . . . .[21-s 219.1] Fardon v Attorney-General (Qld) (2004) 223 CLR 575; 210 ALR 50 . . . . . . . . . .[9-s 19.10] Farkas v R [2014] NSWCCA 141; BC201406199 . . . . . . . . . . . . . . . . . . . .[10-s 25.50] FB v — [2011] NSWCCA 217; BC201107721 .[2-s 132.1] Feather v Rogers (1909) 9 SR (NSW) 192; 26 WN (NSW) 27 . . . . . .[21-s 48.10], [21-s 48.15] Felix v Smerdon (1944) 18 ALJR 30 . .[2-s 16.15], [2-s 16.35] Fell v Chenhall [2018] NSWSC 1574; BC201809763 . . . . . . . . . . . . . . . . . . . .[2-s 172.5] Finch v R [2016] NSWCCA 133 . . . . .[10-s 4.1] Finnie v Dalglish (1982) 1 NSWLR 400 .[2-s 227.5] Firbank v R [2011] NSWCCA 171; BC201111030 . . . . . . . . . . . . .[8-s 105A.1], [8-s 112.7]

Fisher v Bennett (1987) 85 FLR 469 . .[8-s 192D.5] — v Godfrey (NSWSC, Enderby J, 17 February 1989, unreported) . . . . . . . . . . . . . .[10-s 27.5] Fitzgerald v DPP (1991) 24 NSWLR 45; 56 A Crim R 262 . . . . . . . . . . . . . . . . . .[2-s 21.15] — v Montoya (1989) 16 NSWLR 164 . .[11-140.5] — v R (1992) 106 FLR 331 . . . . . . . . .[7-640] Fleet v District Court of NSW [1999] NSWCA 363; BC9906539 . . . . . . . . . . . . .[21-s 99.5] Fleming v R (1998) 197 CLR 250; 158 ALR 379 . . . . . . . . . . . . . . . . . . . .[2-s 133.1] — v White [1981] 2 NSWLR 719; (1981) 7 A Crim R 448 . . .[1-005], [2-s 202.25], [8-Sch 2.1], [9-s 1.30], [9-s 66.15] Flynn v R [2010] NSWCCA 171; BC201005508 . . . . . . . . . . . . . . . . . . . .[5-s 44.15] Foley v — (1984) 13 A Crim R 29 . . . . .[7-485] Forster v DPP [2017] NSWSC 458; BC201702770 . . . . . . . . . . . . . . . . . . .[8-s 93X.10] Fosse v — (1989) 16 NSWLR 540; 42 A Crim R 289 . . . . . . . . . . . . . . . . . . . .[2-s 116.5] — v — [1999] NSWSC 367; BC9901959 . . . .[2-s 117.1], [2-s 214.1] Foster v R (1967) 118 CLR 117 . . . . .[8-s 118.1] Fowler v Lanning [1959] 1 QB 426; [1959] 1 All ER 290 . . . . . . . . . . . . . . . . . .[8-s 58.30] FP v R [2012] NSWCCA 182; BC201206278 . .[8-s 61J.1] Francis v Flood [1978] 1 NSWLR 113 .[8-s 417A.1] Franklin v Commissioner of Police [2018] NSWSC 310; BC201801667 .[2-s 222.25], [2-s 222.30] — v Durkin (NSWSC, Levine J, 21 October 1994, unreported) . . . . . . . . . . . . .[11-390.10] Franks v Franks [2012] NSWCA 209; BC201205181 . . . . . . . . . . . . . .[8-5845.5], [8-6360.1] Fraser [2008] NSWSC 244; BC200803020 . . .[8-s 195.5] Fraser v R (No 2) (1985) 1 NSWLR 680; 19 A Crim R 248 . . . . . . . . . . . . . . . . . .[2-s 8.1] Frawley v R (1993) 69 A Crim R 208; 18 Crim LJ 165 . . . . . . . . . . . . . . . . . . . . .[2-s 36.1] Frigiani v — [2007] NSWCCA 81; BC200702156 . . . . . . . . . . . . . . . . . . . .[5-s 21A.5] Frodsham v O’Gorman [1979] 1 NSWLR 683 . .[1240], [2-s 207.1] Frost v R [1969] Tas SR 172 . . . . . .[2-s 161.20] Frugtniet v Garbutt [2003] NSWSC 770; BC200304815 . . . . . . . . . . .[2-s 222.30] FS v R [2009] NSWCCA 301; BC200911596 . .[5-s 23.1] Fullerton v Cmr of Police [1984] 1 NSWLR 159 . . . . . . . . . . . . . . . . . . . .[21-s 133.3] Furnell v Betts (1978) 20 SASR 300 . . . . .[1-455] Galea v Galea (1990) 19 NSWLR 263 . .[2-s 132.1] Gall v R [2015] NSWCCA 69; BC201502779 .[2-s 161.62]

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TABLE OF CASES Gammage v — (1969) 122 CLR 444; [1970] ALR 385 . . . . . . . . . . . . .[2-s 161.20], [8-s 18.25] Ganin Burden and Creswell v NSW Crime Commission (1993) 32 NSWLR 423; 70 A Crim R 417 . . . . . . . . . . . . . . . . .[2-s 33.5] Ganke v Corporate Affairs Commission (1990) 19 NSWLR 449; 1 ACSR 764 . . . . .[2-s 179.5] Garde v Dowd (2011) 80 NSWLR 620 . .[8-6830.5] Gardiner v R [2018] NSWCCA 27; BC201801303 . . . . . . . . . . . . . . . . . . . . .[5-s 47.1] Garrett v — (1977) 139 CLR 437; 18 ALR 237 . . . . . . . . . . . . . . . . . . . .[2-s 193.5] Gauci v Driscoll [1985] VR 428 . . . . .[10-s 40.1] Gaudie v Local Court of NSW [2013] NSWSC 1425; BC201313230 . . . . . . . . . . . . . .[1-015] GD v R [2018] NSWCCA 18; BC201800851 . .[2-s 294.5] GDD v — [2010] NSWCCA 62; BC201002181 . . . . . . . . . . . . . . . . . . . . . .[7-600] Gedeon v — [2013] NSWCCA 257; BC201314570 . . . . . . . . . . . . . . . . . . . .[10-s 25.20] GEH v — (2012) 228 A Crim R 32 . . .[2-s 293.1] George v Rockett (1990) 170 CLR 104; 93 ALR 483 . . . . . . . . . . . . .[21-s 48.1], [21-s 48.10] Georgopolous v R [2010] NSWCCA 246; BC201008279 . . . . . . . . . . .[5-s 21A.10] Gerakiteys v — (1984) 153 CLR 317 . .[2-cl 21.5] GG v — [2010] NSWCCA 230; BC201007553 .[2-s 161.45] GH Photography Pty Ltd v McGarrigle [1974] 2 NSWLR 635 . . . . . . . . . . . . .[21-s 49.5] Ghamrawi v R [2017] NSWCCA 195; BC201707619 . . . . . . . . . . . . . . . . . . . .[8-s 112.5] Ghani v Jones [1970] 1 QB 693; [1969] 3 All ER 1700 . . . . . . . . . . . . . . . . . . . .[21-s 49.5] Gilbert v R (2000) 201 CLR 414; 170 ALR 88 .[2-s 161.20] Gilham v — (2007) 73 NSWLR 308; 178 A Crim R 72 . . . . . . . . . . . .[2-s 19.5], [2-s 153.1] Gill Herron v Walton (1991) 25 NSWLR 190 . .[2-s 19.5] Gillard v R (2003) 219 CLR 1; 202 ALR 202 . .[2-s 161.20], [8-s 18.25] Gilmour v Midways Springwood Pty Ltd (1980) 33 ALR 605; 49 FLR 36 . .[2-s 14.1], [2-s 16.35] Gilroy v Jebara (1992) 29 NSWLR 20 . . . . . .[8-s 527C.30] Gilson v R (1991) 172 CLR 353; 100 ALR 729 . . . . . . . . . . . . . . . . . . . .[8-s 121.5] Giorgianni v — (1985) 156 CLR 473; 58 ALR 641; 2 MVR 97 . . . .[8-s 52A.5], [8-s 52A.20], [8-s 117.35], [8-s 351.15], [8-s 351B.10], [10-s 10.15], [10-s 19.1], [10-s 27.1] Glenister v — [1980] 2 NSWLR 597; (1980) 3 A Crim R 210 . . . . . .[8-s 125.25], [8-s 134.5] Glover v — [2016] NSWCCA 316; BC201611040 . . . . . . . . . . . .[8-s 91D.25], [8-s 91F.15]

Gollan v Nugent (1988) 166 CLR 18; 82 ALR 193 . . . . . . . . . . . . .[21-s 49.5], [21-s 219.5] Gordon v R [2018] NSWCCA 54; BC201802176 . . . . . . . . . . . . . . . . . . . . .[5-s 22.5] Gore v — [2010] NSWCCA 330; BC201010021 . . . . . . . . . . . . . . . . . . . .[5-s 21A.5] Gorman v Fitzpatrick (1987) 32 A Crim R 330 .[2-s 285.1] Goss v Nicholas [1960] Tas SR 133 . . .[8-s 58.25] Gouldham v R [1970] WAR 119 . . . . . . .[7-485] Gower v — (1991) 56 A Crim R 115 . .[5-s 44.15] GP v — [2016] NSWCCA 150; BC201606403 .[2-s 293.1] Graham v — (1998) 195 CLR 606; 157 ALR 404 . . . . . . . . . . . . . . . . . . . .[8-s 61I.10] Grajewski v Director of Public Prosecutions (NSW) [2019] HCA 8; BC201901701 . . .[8-s 195.5] — v DPP (NSW) [2017] NSWCCA 251; BC201708844 . . . . . . . . . . . .[8-s 195.5] Grant, Appeal of (1981) 6 Petty SR 2568 . . .[21-s 219.5] Grant v Downs (1976) 135 CLR 674; 11 ALR 577; 51 ALJR 198 . . . . .[2-s 222.20.5], [21-s 48.40] — v R (1975) 11 ALR 503 . . . . . . .[2-s 161.15] — v — (1981) 147 CLR 503; 35 ALR 97 . . . .[8-s 527C.1] Grassby v — (1989) 168 CLR 1; 87 ALR 618 . .[1020], [1-200], [2-s 8.10], [2-s 227.10] Gray v — [2018] NSWCCA 39; BC201805764 .[5-s 21A.5] Grbic v Pitkethly (1992) 38 FCR 95; 110 ALR 577 . . . . . . . . . . . . . . . . . . . . . .[1-485] Grealish v R [2013] NSWCCA 336; BC201316196 . . . . . . . . . . . . . . . . . . . .[5-s 53A.5] Green v — (1971) 126 CLR 28; [1972] ALR 524; 46 ALJR 545 . . . . . .[2-s 161.10], [2-s 161.25] — v — (1997) 191 CLR 334; 148 ALR 659; 72 ALJR 19 . . . . . . . . . . . . . . . . . . .[8-s 23.3] Greenbury v Lyon [1957] QSR 433 . . .[8-s 58.30] Greentree v R [2018] NSWCCA 227; BC201809607 . . . . . . . . . . . . . . . . . . . . .[5-s 23.1] Greer v Cmr of NSW Police (2002) 128 A Crim R 586 . . . . . . . . . . . . .[21-s 49.5], [21-s 49.45] Grey v R (2001) 184 ALR 593; 75 ALJR 1708 .[2-s 142.5] Griffiths v — (1977) 137 CLR 293; 15 ALR 1 .[5-s 11.1], [7-170] Grills v — (1996) 70 ALJR 905; [1996] 15 Leg Rep C2a . . . . . . . . . . . . . . . . . .[2-s 293.1] Hadba v — (2004) 182 FLR 472; 146 A Crim R 291 . . . . . . . . . . .[8-s 428A.1], [8-s 428G.1] Hadchiti v — (2016) 93 NSWLR 671 .[2-s 161.10] Haggard v Mason [1976] 1 All ER 337; 1 WLR 187 . . . . . . . . . . . . . . . . . . . .[10-s 40.1] Haidy v DPP [2004] VSC 247; BC200404078 .[9-s 19.10]

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ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020 Haines v R [2016] NSWCCA 90; BC201603556 . . . . . . . . . . . . . . . . . . . . .[5-s 22.5] Haken v Johnson (NSWSC, Wood J, 15 October 1993, BC9302396) . . . . . . . . . . .[8-s 527C.10] Hall v R [2015] NSWCCA 298; BC201511627 .[2-s 263.5] — v — (1988) 36 A Crim R 368 . . . .[8-s 23A.10] Halliday v Neville (1984) 155 CLR 1; 57 ALR 331 . . . . . . . . . . . . . . . . . . . .[21-s 99.25] Hammersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 . . . . . . . . . . . . . . . . .[2-s 228.10] Hammond [v R (2013) 85 NSWLR 313; 231 A Crim R 373 . . . . . . . . . . . . . . . .[8-s 195.5] Hampton, Application of (1972) 3 DCR 59 . .[21-s 219.1] Hampton v R [2014] NSWCCA 131; BC201405594 . . . . . . . . . . . . . . . . . . . . .[5-s 24.1] Hamze v — [2006] NSWCCA 36; BC200601102 . . . . . . . . . . . . .[5-s 21A.1], [5-s 21A.5] Hamzy v — (1994) 74 A Crim R 341 . .[2-s 16.25], [10-s 25.1], [10-s 33.5] Hanna v Horler (1999) 154 FLR 166 . . .[2-s 117.5] — v R (2008) 73 NSWLR 390; 191 A Crim R 302 . . . . . . . . . . . . . . . . . . . .[2-s 161.12] Haoui v — [2008] NSWCCA 209; BC200807970 . . . . . . . . . . . . . . . . . . . . . .[8-s 4.1] Hardie v R; Phillipsen v R [2012] NSWCCA 6; BC201200770 . . . . . . . . . . . . .[5-s 5.1] Hardman v Minehan (2003) 57 NSWLR 390 . .[8-s 93G.15] Hargraves v R (2011) 282 ALR 214 . .[2-s 161.35] Harkins v — [2015] NSWCCA 263; BC201509456 . . . . . . . . . . . . . . . . . . . . . .[8-s 4.5] Harrigan v — (2005) 45 MVR 352 . . . .[5-s 55.1] Harris v Harrison [1963] Crim LR 497 .[8-s 117.35] Harrison v Duke of Rutland [1893] 1 QB 142 .[8-s 58.30] — v Hodgson [1830] 10 B Cr 445 . . . .[8-s 58.40] Hartingdon v Director-General of Department of Community Services (1993) 17 Fam LR 126 . . . . . . . . . . . . . . . . . . . . . .[1-020] Hartnett v NSW [1999] NSWSC 265; BC9901190 . . . . . . . . . . . . .[21-s 71.1], [21-s 76.5] Hasan v R (2010) 31 VR 28; 222 A Crim R 306 . . . . . . . . . . . . . . . . . . .[5-s 21A.15] Hatfield v — [2011] NSWCCA 286; BC201110711 . . . . . . . . . . . . . . . . . . . . .[5-s 22.5] Haw Tua Tau v Public Prosecutor [1982] AC 136; [1981] 3 WLR 395 . . . . .[2-s 202.1], [7-525] Hawes v Governor of Goulburn Correctional Centre (NSWCA, Mason P, Handley and Cole JJA, 40638/97, 18 December 1997, BC9707659) . . . . . . . . . . . . . . . . . . . .[21-s 138.1] Hawkins v R [2011] NSWCCA 153; BC201106353 . . . . . . . . . . . . . . . . . . . . .[5-s 22.5] Hayes v DPP (NSW) [2019] NSWSC 378; BC201902606 . . . . . . . . . . . .[2-s 182.1]

— v Wilson [1984] 2 Qd R 114; 1 MVR 198 . .[2-s 16.35] Hayward v R [2018] NSWCCA 104; BC201804516 . . . . . . . . . . . . . . . . . . . .[2-s 128.1] He Kaw Teh v — (1985) 157 CLR 523; 60 ALR 449; 15 A Crim R 203 .[8-s 7.1], [10-s 10.5], [10-s 10.15] Healey v Williams (1985) 10 FCR 254; 64 ALR 140 . . . . . . . . . . . . . . . . . . . .[2-s 116.1] Heard v R (1987) 11 NSWLR 46; 34 A Crim R 320 . . . . . . . . . . . . . . .[5-s 22.5], [5-s 23.1] Heatley v — [2008] NSWCCA 229; BC200808653 . . . . . . . . . . . . . . . . . . . .[5-s 21A.5] Hedges v — [2011] NSWCCA 263; BC201110712 . . . . . . . . . . . . . . . . . . .[8-s 52A.45] Heinze v Burnley (1992) 57 SASR 452; 17 MVR 54 . . . . . . . . . . . . . . . . . . . . .[2-s 19.5] Hejazi v R [2009] NSWCCA 282; BC200910598 . . . . . . . . . . . . .[5-s 21A.5], [5-s 44.15] Henderson v — [2016] NSWCCA 8; BC201600429 . . . . . . . . . . . . . . . . . . . .[5-s 53A.5] Hernandez v — [2013] NSWCCA 51; BC201300863 . . . . . . . . . . . . . . . . . . .[5-s 21A.10] Heron v — (2003) 140 A Crim R 317; 197 ALR 81 . . . . . . . . . . . . . . . . . . . . .[8-s 23.3] Herron v McGregor (1986) 6 NSWLR 246 .[7-220] Hewitt v R (2007) 180 A Crim R 306 . .[5-s 21A.5] HG v — (1999) 197 CLR 414; 160 ALR 554 . .[2-s 293.1] Hibbert v McKiernan [1948] 2 KB 142 . . . . .[8-s 117.10], [8-s 117.15] Hildebrandt v Stephen [1964] NSWR 740 . . . .[8-s 56.10] Hili v R; Jones v R (2010) 242 CLR 520; 272 ALR 465 . . . . . . . . . . . . . . . . .[10-s 25.25] Hills v Henderson (1991) 9 Petty SR 4120 . . .[10-s 30.1] Hinchliffe v Sheldon [1955] 1 WLR 1207; 3 All ER 406 . . . . . . . . . . . . . . . . . .[8-s 58.50] Hoare v R (1989) 167 CLR 348 . . . . . .[5-s 33.5] Hoch v — (1988) 165 CLR 292; 81 ALR 225 .[2-s 21.15] Holland v Jones (1917) 23 CLR 149 . . .[10-s 3.20] — v R (1993) 117 ALR 193 . . . .[2-s 161.1], [2-s 161.20] Holloway v — [2015] NSWCCA 207; BC201507292 . . . . . . . . . . . . . . . . . . . .[8-s 556.1] Holmden and Crawford v Bitar (1987) 75 ALR 522; 47 SASR 509; 75 ALR 522 . . . . .[2-s 19.5] Holohan v R [2012] NSWCCA 105; BC201203646 . . . . . . . . . . . . . . . . . . . .[8-s 95.10] Homsi v — [2011] NSWCCA 164; BC201105612 . . . . . . . . . . . . . . . . . . . . .[8-s 86.1] Horne v Coleman (1929) 46 WN (NSW) 30 . .[8-s 58.55], [8-s 546C.15] Horowitz v Condie (1989) 41 A Crim R 285 . .[21-s 48.25]

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TABLE OF CASES Hoskins v van Den-Braak (1998) 43 NSWLR 290 . . . . . . . . . . . . . . . . . . . . . .[1-020] Hosler v Maughan (1989) 40 A Crim R 281 .[1-015] Hosseini v R [2009] NSWCCA 52; BC200901266 . . . . . . . . . . . .[10-s 24.33], [10-s 25.73] House v — (1936) 55 CLR 499; 10 ALJR 202 .[2-s 40.1] Howard v — [2019] NSWCCA 109; BC201904867 . . . . . . . . . . . . . . . . . . . . .[5-s 23.1] Huang aka Liu v — [2018] NSWCCA 70; BC201803059 . . . . . . . . . . . . .[5-s 22.5] Huang v — [2017] NSWCCA 312; BC201710923 . . . . . . . . . . . . . . . . . . . .[5-s 21A.5] Hudson v — [2016] NSWCCA 278; BC201610294 . . . . . . . . . . . . . . . . . . . .[5-s 21A.5] Hughes v — (2008) 49 MVR 420; 185 A Crim R 155 . . . . . . . . . . . . .[5-s 47.1], [8-s 52A.45] Humes v Townsend (1989) 4 WAR 196 . . . . .[8-s 117.20] Humphries v R [2015] NSWCCA 319; BC201512560 . . . . . . . . . . . . . . . . . . . .[2-s 157.5] Hunt v — [2017] NSWCCA 305; BC201710690 . . . . . . . . . . . . . . . . . . . .[5-s 53A.5] Huynh v — (2013) 295 ALR 624; 87 ALJR 434 . . . . . . . . . . . . . . . . . . . .[2-s 161.1] Hyder v Commonwealth [2012] NSWCA 336; BC201208863 . . . . . . . . . . .[21-s 99.10] Iannella v French (1968) 119 CLR 84; [1968] ALR 385 . . . . . . . . . . . . . . . . .[8-s 22A.1] Ibbs v R (1987) 163 CLR 447; 74 ALR 1 . . . .[5-s 21.1], [5-s 61.1] Ibrahim v — [2014] NSWCCA 160; BC201406502 . . . . . . . . . . . . . . . . . . . . .[8-s 86.4] Ignjatic v — (1993) 68 A Crim R 333 .[2-s 21.15], [8-s 23A.1] IL v — (2017) 345 ALR 375; 91 ALJR 764 . .[8-s 18.1], [8-s 18.15], [8-s 18.20] Ilich v — (1986) 162 CLR 110; 69 ALR 231 . .[8-s 117.5], [8-s 117.10], [8-s 117.20], [8-s 117.55], [8-s 125.20] Ingleton v Dibble [1972] 1 All ER 275 .[8-s 58.50] Inglis v Fish [1961] VR 607 . . . . . . .[11-125.20] Iqbal v R [2012] NSWCCA 72; BC201210938 .[2-s 8.10] Isaac v — [2012] NSWCCA 195; BC201207151 . . . . . . . . . . . . . . . . . . . . .[5-s 23.1] Ishac v — (2011) 211 A Crim R 102 . . .[8-s 312.5] Itaoui v — (2005) 158 A Crim R 233 . . .[5-s 44.5] Ith v — [2012] NSWCCA 70; BC201206758 . .[2-s 161.1] J Robins and Sons Ltd v Maloney (No 2) [1935] AR (NSW) 155; (1935) IR 155 . . . . .[2-s 179.5] Jackson v R (1918) 25 CLR 113 . . . . . .[2-s 31.1] — v — (1976) 134 CLR 42; 9 ALR 65 . . . . .[2-s 161.25] — v — (1988) 33 A Crim R 413 . . . . .[5-s 21.1]

— v Wells (1985) 5 FCR 296; 59 ALR 281 . . .[2-s 228.5] JAD v R [2012] NSWCCA 73; BC201202978 .[8-s 73.1] Jago v District Court of NSW (1989) 168 CLR 23; 87 ALR 577; 41 A Crim R 307 . .[2-s 19.5], [2-s 192.5], [7-220] JAL and LL, In the Appeals of (1974) 3 DCR 182 . . . . . . . . . . . . . . . . . . .[8-s 527C.35] Jamal v DPP [2013] NSWCA 355; BC201314135 . . . . . . . . . . . . . . . . . . . . .[2-s 40.1] James v R (2014) 306 ALR 1; 88 ALJR 427 . .[2-s 161.20] Jamieson v — (1993) 177 CLR 574; 116 ALR 193 . . . . . . . . . .[8-s 192B.15], [8-s 192E.20] — v — [1988] VR 879; (1987) 34 A Crim R 308 . . . . . . . . . . . . . . . . . . .[8-s 249B.10] — v — (1992) 60 A Crim R 68 . . . . . . .[7-485] Jarret v — [2014] NSWCCA 140; BC201406013 . . . . . . . . . . . . . . . . . . .[2-s 306S.1] Jeffs v Graham (1987) 8 NSWLR 292; Petty SR 3463 . . . . . . . . . . . . . . . . . . . .[11-125.10] Jensen v Eleftheriou [1982] VR 184 .[8-s 546C.15] Jiang v R [2010] NSWCCA 277; BC201008919 . . . . . . . . . . . .[2-s 161.40], [2-s 161.45] Jidah v — [2014] NSWCCA 270; BC201410327 . . . . . . . . . . . . . . . . . . . .[10-s 25.15] Jiminez v — (1992) 173 CLR 572; 106 ALR 162 . . . . . . . . . . . . . . . . . . . .[8-s 52A.5] Jitjarden v Thompson (1995) 38 NSWLR 611 . . . . . . . . . . . . . . . . . . . . .[11-390.5] JL v R [2014] NSWCCA 130; BC201405598 . .[5-s 23.1], [5-s 53A.5] JM v — [2014] NSWCCA 297 . . . . .[5-s 53A.5] Johanson v Dixon (1979) 143 CLR 376; 25 ALR 65; 53 ALJR 494 . . . . . . . . . . .[8-s 93X.10] John Fairfax & Sons Pty Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 . . . . . . . .[2-s 57.1] John Fairfax Group Pty Ltd v Local Court of NSW (1991) 26 NSWLR 131; 59 A Crim R 68 . . . . . . . . . . . . . . . . . . . . . .[1-020] John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344; 50 ACSR 380 . . . . . . . . . . . . . . . . .[1-020], [7-810] — v Ryde Local Court (2005) 62 NSWLR 512; 220 ALR 248 . . . . . . . . .[2-s 57.5], [8-5135.1] John L Pty Ltd v A-G (NSW) (1987) 163 CLR 508; 73 ALR 545 . . . . . . . . . .[2-s 8.1], [2-s 11.1] John Lewis & Co Ltd v Tims [1952] AC 676; [1952] 1 All ER 1203 . . . . . . . . . . .[21-s 99.30] Johns v R (1980) 143 CLR 108; 28 ALR 155 . .[8-s 351B.5] Johnson v DPP (1996) 2 NSWCR 83 . .[2-s 193.5], [8-s 52AA.1] — v Johnson (2000) 201 CLR 488; 174 ALR 655 . . . . . . . . . . . . . . . . . . . . . .[1-015] — v Miller (1937) 59 CLR 467; 11 ALJR 344; [1938]

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ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020 ALR 104 . . . . . . . . .[2-s 16.5], [2-s 16.35] — v R (1976) 136 CLR 619; 11 ALR 23; 51 ALJR 57; (1977) 51 ALJR 57 . . . .[8-s 23.1], [8-s 23.3] — v — (2004) 205 ALR 346; 78 ALJR 616 . .[5-s 55.1] Johnston v — [2007] NSWCCA 133; BC200703591 . . . . . . . . . . . . . . . . . . . .[2-s 161.35] — v — [2019] NSWCCA 108; BC201904295 .[8-s 319.5] Jones v Daire (1983) 32 SASR 369 . .[8-s 546C.10] — v Dunkel (1959) 101 CLR 298; [1959] ALR 367 . . . . . . . . . . . . . . . . . . . .[2-s 161.30] — v Stephens (NSWSC, McInerney J, 8 October 1985, unreported) . . . . . . . . . .[10-s 3.40] Jonson v R [2016] NSWCCA 286; BC201610577 . . . . . . . . . . . .[5-s 21A.5], [5-s 21A.25] Jordan v Burgoyne [1963] 2 QB 744 . .[11-125.10] Josefski v R [2010] NSWCCA 41; BC201001109 . . . . . . . . . . . . . . . . . . . .[5-s 21A.5] JSM v — [2010] NSWCCA 255; BC2011010646 . . . . . . . . . . . . . . . . . . . .[2-s 129.1] Justins v — [2010] NSWCCA 242; BC201008007 . . . . . . . . . . . . . . . . . . . .[8-s 18.50] JW v Blackley (2007) 172 A Crim R 483 . . . . . . . . . . . . . . . . . . . .[21-1535.5] K v Minister for Youth and Community Services [1982] 1 NSWLR 311; (1982) 8 Fam LR 756 . . . . . . . . . . . . . . . . . . . . .[8-s 84.5] Kahatapitiye v R (2004) 146 A Crim R 542 . . .[2-s 16.1] Kalache v — (2000) 21(20) Leg Rep C3b . . . .[5-s 23.1] Kamara v DPP [1974] AC 104 . . . . .[8-s 545C.5] Kamm v R [2007] NSWCCA 201; BC200705305 . . . . . . . . . . . . . . . . . . . . .[2-s 20.1] Kanaan v — [2006] NSWCCA 109; BC200602243 . . . . . . . . . . . . . . . . . . . .[2-s 160.1] Kassis v Katsantonis [1984] 3 NSWLR 330 . . .[8-s 117.50] Katsis v R [2018] NSWCCA 9; BC201800619 .[5-s 21A.5] Kelleher v Corrective Services Commission (NSW) (1987) 8 NSWLR 423; 29 A Crim R 1 . .[8-s 310D.10] Kelly v R (2004) 218 CLR 216; 205 ALR 274 .[2-s 281.1] Kennedy v — [2017] NSWCCA 193; BC201706271 . . . . . . . . . . . . . . . . . . .[8-s 61H.10] Kennett v Holt [1974] VR 644 . . . . . .[2-s 16.35] Kennison v Daire (1985) 38 SASR 404 .[8-s 117.20] — v — (1986) 160 CLR 129; 64 ALR 17 . . . .[8-s 117.20] Kerr v Cmr of Police [2001] NSWSC 637; BC200104228 . . . .[21-1230.1], [21-1595.1], [21-2385.1] Khawaja v R [2014] NSWCCA 80; BC201404948 . . . . . . . . . . . . . . . . . . . .[5-s 53A.5]

Khoury v — (2011) 209 A Crim R 509 .[5-s 54B.5] Killick v — (1981) 147 CLR 565; 37 ALR 407 . . . . . . . . . . . . . . . . . . . . . .[7-495] King v — (1986) 161 CLR 423; 67 ALR 379 . .[2-s 16.5], [2-s 161.20] — v — (2012) 288 ALR 565; 86 ALJR 833 . .[8-s 52A.5] — v — [2010] NSWCCA 33; BC201001247 . .[5-s 21A.5] Kings Cross Chamber of Commerce and Tourism Inc v Uniting Church of Australia Property Trust (NSW) (2001) 160 FLR 300 . . .[10-s 36A.1] Kinney v Police [1971] NZLR 924 . . .[11-125.10] Klewer v Walton [2004] FCA 410; BC200401696 . . . . . . . . . . . . . . . . . . . .[2-s 213.1] Knaggs v DPP (2007) 170 A Crim R 366 . . . .[2-s 175.1] Knezevic v Markovic (1985) 5 FCR 219; 59 ALR 557 . . . . . . . . . . . . . . . . . . . .[8-s 556.1] Knight v R (1992) 175 CLR 495; 109 ALR 225; 66 ALJR 860 . . . . . . .[2-s 161.15], [8-s 27.15] — v — [2010] NSWCCA 51; BC201002115 . .[5-s 21A.5] — v — (2006) 164 A Crim R 126 . . . . .[5-s 61.1] KNP v — (2006) 67 NSWLR 227 . . . .[2-s 160.1] Kolalich v DPP (1991) 173 CLR 222; 103 ALR 630; 66 ALJR 25 . . . . . . . . .[1-225], [8-s 23.3] Kolosque v Miyazaki (NSWSC, Dowd J, 17 February 1995, BC9501931) . . . . . . . . .[8-s 117.20] Krakouer v R (1998) 194 CLR 202; 155 ALR 586 . . . . . . . . . . . . . . . . . . . .[10-s 29.5] Krecichwost v — (2012) 88 ACSR 339 . .[8-s 4B.5] KRM v — (2001) 206 CLR 221; 178 ALR 385 .[2-s 161.45] KS v Veitch (No 2) [2012] NSWCCA 266; BC201209735 . .[2-s 296.5], [2-s 298.5], [2-s 299B.5], [2-s 299D.1] KSC v R [2012] NSWCCA 179; BC201210760 .[2-s 296.5], [2-s 298.5], [8-s 61H.10] Kukovec v — [2014] NSWCCA 308; BC201410600 . . . . . . . . . . . . . . . . . . . .[5-s 21A.5] Kupferberg v — (1918) 13 Cr App Rep 166 . .[2-s 193.5] Kural v — (1987) 162 CLR 502; 70 ALR 658 .[8-s 7.1], [10-s 10.15] Kuru v New South Wales (2008) 236 CLR 1; 246 ALR 260 . . . . . . . . . . . . . . .[21-s 82.1] Kwok v R [2018] NSWCCA 200; BC201808717 . . . . . . . . . . . . . . . . . . . .[10-s 25.25] L v Johnson [2003] NSWSC 1246; BC200308046 . . . . . . . . . . . . . . . . . . . . .[2-s 19.5] — v Lyons (2002) 56 NSWLR 600; (2002) 137 A Crim R 93; 56 NSWLR 600 . . . .[21-1505.1], [21-1535.5] La Fontaine v R (1976) 136 CLR 62; 11 ALR 307 . . . . . . . . . . . . .[2-s 161.10], [8-s 18.5] Lacey v DPP (Qld) [2007] QCA 413; BC200710074

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TABLE OF CASES . . . . . . . . . . . . . . . . . . .[9-s 16A.10] Lam v R (1991) 53 A Crim R 118 . . . . .[5-s 21.1] Lamb v Moss (1983) 49 ALR 533; 76 FLR 296; 5 ALD 446 . . . . . . . . . . . . . . . . .[1-270] Lane v R [2013] NSWSC 146; BC201300840 .[9-s 22.5] — v — [2017] NSWCCA 46; BC201701823 . .[2-s 161.7] — v — (2013) 241 A Crim R 321 . . .[2-s 161.62] Larsson v Cmr of Police (1988) 16 NSWLR 173; 40 A Crim R 301 . . . . . .[21-s 49.1], [21-s 49.10] Latham v R (1864) 9 Cox CC 516 . . . .[2-s 21.5] Latoudis v Casey (1990) 170 CLR 534; 97 ALR 45 . .[2-s 117.10], [2-s 213.15], [2-s 214.10], [2-s 215.1] Laughton v R [2019] NSWCCA 74; BC201902639 . . . . . . . . . . . . . . . . . . . .[2-s 161.40] Lawler v Johnson (2002) 56 NSWLR 1; 134 A Crim R 199 . . . . . . . . . . . . . . . . . .[2-s 84.1] Lawless v R (1979) 142 CLR 659; 26 ALR 161 . . . . . . . . . . . . . . . . . . . . . .[7-485] Lawrence v — (1981) 38 ALR 1 . . . . . . .[7-495] Laws v Australian Broadcasting Tribunal (1990) 170 CLR 71; 93 ALR 435 . . . . . . . . . .[1-015] Lawson v Wallace (1968) 88 WN (Pt 1) 505 . .[2-s 208.5] Lay v Cleary (NSWSC, James J, 23 February 1993, BC9303691) . . . . . .[2-s 208.1], [2-s 208.5] Lee v R [2019] NSWCCA 15; BC201900524 . .[5-s 21A.5] Leeth v Cth (1992) 174 CLR 455; 107 ALR 672 . . . . . . . . . . . . . . . . . . . .[5-s 44.10] Leigh v Cole (1853) 6 Cox CC 329 . .[21-s 99.35] Lenthall v Cavender [1931] SASR 164 .[11-380.15] Leonard v Morris (1975) 10 SASR 528 . . . . .[8-s 546C.10] Levinge v Director of Custodial Services (1987) 9 NSWLR 546; 89 FLR 133 . . . . . .[2-s 19.5] Lewis v Cox [1985] 1 QB 509 . . . . . .[8-s 58.50] — v Sergeant Riley [2017] NSWCA 272; BC201709036 . . . . . . . . . . . .[21-2230.1] Leydon v Forrest (1980) 23 SASR 364 .[2-s 179.5] Liang v R (1995) 82 A Crim R 39; 124 FLR 350 . . . . . . . . . . . . . . . . . . . . .[5-s 21.1] Liberato v — (1985) 159 CLR 507; 61 ALR 623 . . . . . . . . . . . . . . . . . . . .[2-s 161.10] Lindsay v — (2015) 146 ALD 456; 319 ALR 207 . . . . . . . . . . . . . . . . . . . . .[8-s 23.3] Linney v — [2013] NSWCCA 251; BC201314326 . . . . . . . . . . . . . . . . . . . .[8-s 326.15] Lippl v Haines (1989) 18 NSWLR 620; 47 A Crim R 148 . . . . . . . . . . . . . . . . . .[21-s 10.1] Liu v R [2005] NSWCCA 450; BC200511590 .[5-s 54B.1] Livermore v — (2006) 67 NSWLR 659 . . .[7-600] Livesey v NSW Bar Association (1983) 151 CLR 288;

47 ALR 45 . . . . . . . . . . . . . . . .[1-015] Llewellyn v R [2011] NSWCCA 66; BC201102125 . . . . . . . . . . . . . . . . . . . .[2-s 161.30] Lloyd v Bibbin [1962] VR 593 . . . . . . . .[1-210] — v R [2017] NSWCCA 303; BC201710949 . .[5-s 21A.5] Lodhi v — (2006) 199 FLR 303 . . .[2-s 11.1], [2-s 11.10] Long v Rawlins (1874) 4 QSCR 86 . . .[8-s 56.10] Longman v R (1989) 168 CLR 79; 89 ALR 161 . . . . . . . . . . . . .[2-s 133.1], [2-s 161.40] Longworth v — [2017] NSWCCA 119; BC201704183 . . . . . . . . . . . .[5-s 21A.5] Lorraway v — [2010] NSWCCA 46; BC201002173 . . . . . . . . . . . . . . . . . . . .[10-s 25.25] Lose v Brown (NSWSC, Yeldham J, 24 October 1986, unreported) . . . . . . . . . . . . . .[10-s 3.20] Losurdo v R (1998) 101 A Crim R 162 . .[2-s 85.1] Louizos v — [2009] NSWCCA 71; BC200901713 . . . . . . . . . . . . . . . . . . . .[2-s 161.40] Lowe v Hooker [1987] Tas R 153; (1987) 35 A Crim R 90 . . . . . . . . . . . . . . . . .[8-s 117.30] Lu v R [2014] NSWCCA 307; BC201411201 . .[5-s 21A.5] Ludwigs Canberra Bond Cellar Pty Ltd v Sheen (1982) 46 ACTR 13; 65 FLR 347 .[2-s 202.15] Lule v New South Wales [2018] NSWCA 125; BC201804938 . . . . . . . . . . .[21-s 99.10] Ly v Jenkins (2001) 114 FCR 237; 187 ALR 178 . . . . . . . . . . . .[2-s 116.15], [2-s 213.15] Lynch v Attwood (1983) 3 NSWLR 1 .[8-s 417A.1] Lyndon v R [2014] NSWCCA 112; BC201404949 . . . . . . . . . . . . . . . . . . . .[2-s 161.45] Lynn v New South Wales [2016] NSWCA 57; BC201601901 . . . .[29-950.10], [29-954E.5], [29-973.5] M v M (1988) 166 CLR 69; 82 ALR 577; 63 ALJR 108 . . . . . . . . . . . . . . . . . .[9-s 19.10] — v R (1993) 67 A Crim R 549 . . . . .[2-s 293.1] Ma and Pham v — [2007] NSWCCA 240; BC200706635 . . . . . . . . . . .[10-s 25.25] Mac v — [2014] NSWCCA 24 . . . . . .[2-s 21.5] MacCarron v Coles Supermarkets Aus Pty Ltd (2001) 23 WAR 355 . . . . . . . . . . . . .[2-s 14.1] MacGibbon v Warner (1997) 98 A Crim R 450 . . . . . . . . . . . . . . . . . . . .[21-s 48.30] Mackay v R (1977) 136 CLR 465; 15 ALR 541 . . . . . . . . . . . . . .[2-s 21.1], [2-s 21.10] Mackinlay v Wiley [1971] WAR 3 . . . .[11-135.5] Maclay v R (1990) 19 NSWLR 112; 46 A Crim R 340 . . . . . . . . . . . . . . . . . . . .[5-s 44.10] Macpherson v Beath (1975) 12 SASR 174 . . .[8-s 58.5] — v Brown (1975) 12 SASR 184 . . . . .[8-s 58.5] MacPherson v R (1981) 147 CLR 512; 37 ALR 81 . . . . . . . . . . . . . . . . . . . . . .[7-405]

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ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020 Macrae v Redmond (1987) 8 Petty SR 3534

. .[2-s 190.1] Madden v R [2014] NSWCCA 291; BC201410245 . . . . . . . . . . . . . . . . . . .[8-s 193D.10] Maddison v Goldrick [1976] 1 NSWLR 651 . .[2-s 36.5] Maglis v R [2010] NSWCCA 247; BC201008612 . . . . . . . . . . . . . . . . . . . .[5-s 44.15] Maglovski v — [2014] NSWCCA 238; BC201409197 . . . . . . . . . . . . . . . . . . . .[5-s 44.15] Maher v — (1987) 163 CLR 221; 72 ALR 351 .[2-s 21.1] Mahmood v Western Australia (2008) 232 CLR 397; 241 ALR 606 . . . . . . . . . . . .[2-s 161.40] Makarov v R (No 4) [2008] NSWCCA 341; BC200813578 . . . . . . . . . . . . .[5-s 59.5] Makrynikos v R [2006] NSWCCA 170; BC200603847 . . . . . . . . . . . .[5-s 21A.5] Mallard v — (2005) 224 CLR 125; 222 ALR 236 . . . . . . . . . . . . . . . . . . . .[2-s 142.5] Mamote-Kulang of Tamagot v — (1963) 111 CLR 62 . . . . . . . . . . . . . . . . . . . .[8-s 18.60] Mann v Carnell (1999) 201 CLR 1; 168 ALR 86 . . . . . . . . . . .[2-s 222.20], [2-s 222.20.5] — v R [2016] NSWCCA 10; BC201600815 . .[8-s 93C.10] Manning v Thompson [1977] 2 NSWLR 249 . .[2-s 202.10] Mansfield v Kelly [1972] VR 744 . . . .[11-125.15] Many v R (1990) 51 A Crim R 54 . . . . .[5-s 23.1] Mapp v — [2010] NSWCCA 269; BC201009500 . . . . . . . . . . . . . . . . . . . .[8-s 112.20] Maraache v — [2013] NSWCCA 199 .[2-s 161.30] Marinko v Rames (NSWSC, Hope J, 13 August 1971, unreported) . . . . . . . . . . . . . .[21-s 49.5] Marinovich (1990) 46 A Crim R 282 . .[10-s 25.50] Markarian v R (2005) 228 CLR 357; 215 ALR 213 . . . . . . . . . . . . . . .[5-s 33.1], [5-s 33.5] Markisic v Vizza [2002] NSWCCA 53; BC200200834 . . . . . . . . . . . . . . . . . . . .[2-s 212.1] Markou v R [2012] NSWCCA 64; BC201203093 . . . . . . . . . . . . . . . . . . . . .[8-s 59.5] Marlow v — [1990] 1 Tas SR 1 . . . . .[2-s 193.1], [7-170] Marshall v Benson [1970] 1 NSWR 458; (1969) 72 SR (NSW) 151; 91 WN(NSW) 280 . . . .[10-s 10.10] Martin v Pridgeon (1859) 23 JP 630 . . .[2-s 16.35] — v R [2014] NSWCCA 124; BC201405388 . .[5-s 53A.5] Masciantonio v — (1995) 183 CLR 58; 129 ALR 575; 69 ALJR 598 . . . . . . . . . . . . .[8-s 23.3] Mason v Lyon [2005] NSWSC 804; BC200505736 . . . . . . . . .[1-480], [2-s 38.1], [2-s 160.1] Massey v R (1995) 13 Leg Rep C14 . . .[2-s 19.5] Masters v Watt (1992) 10 Petty SR 4507 .[8-s 58.5]

Mattar v R [2012] NSWCCA 98; BC201203260 . . . . . . . . . . . . . . . . . . . . .[5-s 57.1] Matthews v Fountain [1982] VR 1045 .[8-s 192D.5] Matu v R [2019] NSWCCA 23; BC201900782 .[5-s 21A.5] Maxwell v Keun [1928] 1 KB 645 . . . .[2-s 190.1] — v R (1996) 184 CLR 501; 135 ALR 1 . . . .[2-s 153.1], [2-s 193.1], [2-s 207.1], [7-105], [7-170] May v O’Sullivan (1955) 92 CLR 654; [1955] ALR 671 . . . . . . . . . . . . . . .[1-485], [7-525] Mazjoub v Kepreokis [2009] NSWSC 314; BC200903138 . . . . . . . . . . .[21-s 48.25] McAndrew v R [2016] NSWCCA 58; BC201602668 . . . . . . . . . . . . . . . . . . . .[9-s 16A.5] McCabe v BAT Aust Services Ltd [2002] VSC 150; BC200202143 . . . . . . . . . . .[2-s 228.10] McCarthy v R (1993) 71 A Crim R 395 . . . . .[2-s 161.55], [8-s 188.25] McConnell Dowell Constructors (Aust) Pty Ltd v EPA (NSWCCA, Cole, Sully JJA and Adams AJ, 60386/1996; 60387/1996, 25 October 1996, BC9606890) . . . . . . . . . . . . . .[2-s 14.1] McCormack v Langham (1990) 9 Petty SR 4265 . . . . . . . . . . . . . . . . . . . .[11-125.20] McCullough v R [1982] Tas R 43; (1982) 6 A Crim R 274 . . . . . . . .[2-s 160.1], [7-475], [7-600] — v — (2009) 194 A Crim R 439 .[5-s 21A.5], [8-s 33.20] McDonald v Camerotto (1984) 36 SASR 66; 14 A Crim R 1 . . . . . . . . . . . . . . . . .[1-460] McDonnell v Smith (1918) 24 CLR 409 .[2-s 14.1] McIlwraith v R [2017] NSWCCA 13; BC201700871 . . . . . . . . . . . . . . . . . . . . .[8-5250.5] McIntosh v — [2015] NSWCCA 184; BC201506297 . . . . . . . . . . . . . . . . . . . .[5-s 53A.5] McIntyre v — (2009) 198 A Crim R 549 . . . .[8-s 58.57], [8-s 59.5], [8-s 61.7] McIvor v — [2010] NSWCCA 7; BC201000443 . . . . . . . . . . . . . . . . . . . .[8-s 97.20] McKell v — [2019] HCA 5; BC201900676 . . .[2-s 161.25] McKellar v DPP (2014) 240 A Crim R 285 . . .[2-s 192.1], [2-s 196.1] McLachlan v Mesics (1966) 40 ALJR 204 . . .[8-s 58.45] — v — (1966) 116 CLR 340 . . . . .[8-s 546C.15] McLean v Case and Deignan Pty Ltd [1961] NSWR 873; 78 WN (NSW) 476; 6 LGRA 395 . .[2-s 16.35] McLiney v Minister [1911] VLR 347; 17 ALR 336 . . . . . . . . . . . . . . . . . . . .[8-s 58.45] Medina v R (1990) 3 WAR 21; 46 A Crim R 132 . . . . . . . . . . . . . . . . . . . .[2-s 161.15] Meehan v Cmr of Police [1991] ANZ ConvR 4 . . . . . . . . . . . . . . . . . . . .[21-s 48.40] Meggitt Overseas Ltd v Grdovic (1998) 43 NSWLR

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TABLE OF CASES 527 . . . . . . . . . . . . . . . . . .[2-s 190.1] Mehajer v R [2014] NSWCCA 167; BC201406853 . . . . . . . . . .[8-s 249B.10], [8-s 249B.15] Meissner v — (1995) 184 CLR 132; 130 ALR 547 . . . . . . .[2-s 154.5], [2-s 207.1], [8-s 319.5] Meller v Low (2000) 48 NSWLR 517 . . .[8-s 60.5] Melser v Police [1967] NZLR 437 . .[21-s 206.10] Mencarious v R (2008) 189 A Crim R 219 . . .[2-s 161.1] Mendham v — (1993) 71 A Crim R 382 . . . .[2-s 285.1] Merrick v — [2017] NSWCCA 264; BC201709793 . . . . . . . . . . . . . . . . . . . . .[5-s 22.5] MG v — (2007) 69 NSWLR 20 . . . . .[2-s 19.10] Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; 86 ALJR 14 . . . . . . . . .[1-015] Michaels v R (1995) 184 CLR 117; 130 ALR 581; 69 ALJR 686 . . . . .[8-s 310D.10], [21-s 99.20] Mifsud v — [2009] NSWCCA 313; BC200911592 . . . . . . . . . . . . . . . . . . . .[8-s 94.30] Mikic v Local Court of NSW [2013] NSWSC 334; BC201301852 . . . . . . . . . . . . .[8-s 58.2] Milat v R; Klein v R [2014] NSWCCA 29; BC201401528 . . . . . .[5-s 22.5], [5-s 25F.1] Milgate v R (1964) 38 ALJR 162 . . . .[2-s 161.12] Mill v — (1988) 166 CLR 59; 83 ALR 1; 36 A Crim R 468 . . . . . . . . . . . . . . . . .[5-s 55.1] Miller v Page (1983) 6 Petty SR 2854 .[10-s 3.25], [10-s 40.1] — v Sweeney (2000) 157 FLR 1 . . . .[21-s 48.25], [21-s 48.50] Milne v Mutch [1927] VLR 190 . . . . .[11-125.15] Minehan v R (2010) 201 A Crim R 243 .[8-s 91H.1] Minigall v McCammon [1970] SASR 82 . . . .[8-s 117.20], [8-s 117.25] Minister for Immigration v Dela Cruz (1992) 34 FCR 348; 110 ALR 367 . . . . . . . .[8-s 192G.20] Mitchell v Nestle Australia Ltd (1988) 36 A Crim R 119 . . . . . . . . . . . . . . . . . .[10-s 43.1] — v Norman [1965] Qd R 587 . . . . . .[8-s 58.30] MJ v R [2013] NSWCCA 250; BC201314495 .[2-s 16.1] MM v — [2011] NSWCCA 262; BC201110755 . . . . . . . . . . . . . . . . . . . . .[2-s 21.1] — v — [2018] NSWCCA 158; BC201806669 .[8-s 61J.2] Moage Ltd v Jagelman (2002) 43 ACSR 173 . .[2-s 228.10] Moffa v R (1977) 138 CLR 601; 13 ALR 225; 51 ALJR 403 . . . . . . . . . . . . . . .[8-s 23.3] Moore v — [2016] NSWCCA 185; BC201607068 . . . . . . . . . . . . . . . . . . . .[2-s 161.10] — v — [2016] NSWCCA 260; BC201610237 .[8-s 192B.15] Moors v Burke (1919) 26 CLR 265; 25 ALR 213 . . . . . . .[8-s 7.1], [10-s 10.10], [10-s 10.25]

Morgan v Babcock and Wilcox Ltd (1929) 43 CLR 163; [1929] ALR 313 . . . . . . .[2-s 179.10] — v Colman (1981) 27 SASR 334 . . . .[8-s 58.25] Morris v R [2010] NSWCCA 152; BC201005732 . . . . . . . . . . . . . . . . . . . . . .[7-575] Morrison v Dartbrook Coal Pty Ltd (2002) 116 IR 252; [2002] NSWIR Comm 127 . . .[2-s 14.1] — v R [2009] NSWCCA 211; BC200907698 . .[5-s 21A.5], [5-s 21A.10] — v United Collierier Pty Ltd [2002] NSWIR Comm 173 . . . . . . . . . . . . . . . . . .[2-s 14.1] Morrissey v R (NSWCCA, 15 July 1994, unreported) . . . . . . . . . . . . . . . . . . . .[5-s 44.15] Morton v — [2014] NSWCCA 8; BC201400992 . . . . . . . . . . . . . . . . . . . . .[5-s 22.5] Moss v Brown [1979] 1 NSWLR 114 . . . .[1-200] Moukhallaletti v Director of Public Prosecutions (DPP) [2016] NSWCCA 314; BC201610839 . . . . . . . . . . . . . . . . . . . .[9-s 16A.5] Moussa v R [2017] NSWCCA 237; BC201708243 . . . . . . . . . . . . . . . . . . . .[8-s 18.15] Moyse v — (1988) 38 A Crim R 169 . . .[5-s 55.1] MPB v — (2013) 234 A Crim R 576 .[5-s 25AA.1] Mraz v — (1955) 93 CLR 493; [1955] ALR 929 . . . . . . . . . . . . . . . . . . . . .[8-s 18.1] — v R (No 2) (1956) 96 CLR 62; [1956] 63 ALR 999; (1956) 30 ALJR 604; [1956] ALR 999 . .[2-s 193.5], [8-s 18.20] MRW v R [2011] NSWCCA 260; BC201109746 . . . . . . . . . . . . . . . . . . . .[5-s 21A.5] Muggleton v — [2015] NSWCCA 62; BC201502535 . . . . . . . . . . . . . . . . . . . . .[5-s 28.1] Muldrock v — (2011) 244 CLR 120; 281 ALR 652; (2011) 281 ALR 652; 85 ALJR 1154 . . .[5-s 3A.1], [5-s 54A.1], [5-s 54A.5], [5-s 54B.5] Mullins v Lillyman (2007) 169 A Crim R 571 . . . . . . . . . . . . . . . . . . . .[21-1535.5] Munday v Gill (1930) 44 CLR 38; [1930] ALR 313 . . . . . . . . . . . . . .[7-100], [8-s 545C.10] Murphy v Porter (1984) 12 A Crim R 38 . . . .[8-s 188.30] — v R (1989) 167 CLR 94; 86 ALR 35 .[2-s 40.1], [21-s 48.50] — v — (1988) 52 SASR 186; 37 A Crim R 405 . . . . . . . . . . . . . . . . . . . .[2-s 153.1] Murray v — (1987) 11 NSWLR 12; 30 A Crim R 315 . . . . . . . . . . . . .[2-s 161.40], [8-s 61I.5] — v — (2002) 211 CLR 193; 189 ALR 40 . . .[8-s 18.15] Muscat v Vucko (NSWSC, Studdert J, 28 June 1993, unreported) . . . . . . . . . . . . . . . .[1-460] MWJ v R (2005) 222 ALR 436; 80 ALJR 329 .[2-s 161.40] Myers v Claudianos (1990) 100 FLR 362 . . . .[2-s 202.1] — v Simpson (1965) 6 FLR 440; [1965] ALR 1148 . . . . . . . . . . . . . . . . . . . .[11-125.15]

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ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020 Nalberski v R (1989) 44 A Crim R 434 .[2-s 285.1] Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General (NSW) v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96; BC201703462 . . . . . . . . . . . . . . . . . . .[2-s 257B.1] Nassr v R [2015] NSWCCA 284; BC201511144 . . . . . . . . . . . . . . . . . . . . .[8-s 4.20] National Employers Mutual General Association Ltd v Waind [1978] 1 NSWLR 372 . .[2-s 222.10], [2-s 227.1] Neal v R (1982) 149 CLR 305 . . . . . .[5-s 54B.5] Neale, Re an Application for Bail [2013] QSC 310; BC201314420 . . . . . . . . . . .[9-s 16A.10] New South Wales Commissioner of Police v Tuxford [2002] NSWCA 139; BC200202538 . . . .[2-s 222.10], [2-s 227.1], [2-s 228.1] New South Wales Meat Industry Authority v Randall (NSWCA, 20 April 1994, BC9402484) . .[2-s 208.5] New South Wales v Beck [2013] NSWCA 437; BC201315785 . . . . . . . . . . . .[11-125.15] — v Bouffler (2017) 95 NSWLR 521 . . .[21-s 9.1], [21-s 9.5], [21-s 10.10] — v Conway [2011] NSWSC 976; BC201106939 . . . . . . . . . . . . . . . . . . . . .[29-950.5] — v Corbett (2007) 230 CLR 606; 237 ALR 39 . . . . . . . . . . . . . . . . . . . .[21-s 60.1] — v Darrego [2011] NSWSC 1449; BC201109226 . . . . . . . . . . . . . . . . . . . . .[29-950.5] — v Donovan [2015] NSWCA 280; BC201508975 . . . . . . . . . . . . .[29-954E.5], [29-973.5] — v Manners [2008] NSWSC 1242; BC200810289 . . . . . . . . . . . . . .[29-956.5], [29-965.5] — v Richardson (No 2) (2011) 210 A Crim R 220 . . . . . . . . . . . . . . . . . . . .[9-s 19.10] — v Riley (2003) 57 NSWLR 496 . . .[21-s 99.15] — v Ryan (1998) 101 LGERA 246 . . .[2-s 222.25] — v Smith (2017) 95 NSWLR 662 . . . .[21-s 9.1] — v Windle (No 3) [2017] NSWSC 727; BC201704379 . . . . . . . . . . . .[29-959.1] Newman v R [2018] NSWCCA 208; BC201808949 . . . . . . . . . . . . . . . . . . .[5-s 21A.10] Ng v Haskett [2002] NSWSC 258; BC200201396 . . . . . . . . . . . . . . . . .[1-460], [7-505] — v R (2003) 217 CLR 521; 197 ALR 10 . . .[2-s 131.1] Nguyen v — [2015] NSWCCA 78; BC201503259 . . . . . . . . . . . . . . . . . . . .[2-s 161.15] — v — [2007] NSWCCA 14; BC200700369 . .[5-s 55.1] — v Tao v R [2018] NSWCCA 176; BC201807051 . . . . . . . . . . . . . . . . . . .[10-s 25A.2] Nicholls v R; Coates v R (2005) 213 ALR 1; (2005) 79 ALJR 468 . . . . . . . . . . . .[2-s 281.1] Niven v R (1968) 118 CLR 513; [1969] ALR 187 . . . . . . . . . . . . . . . . . . . . . .[7-575]

NM v — [2012] NSWCCA 215; BC201208029 .[8-s 61I.65] Norris v — (2007) 176 A Crim R 42 . .[2-s 161.1] North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146; 206 ALR 315 . . . . . . . . . . . . . . . . . . . . . .[1-001] Noufl v Director of Public Prosecutions (DPP) (NSW) [2018] NSWSC 1238; BC201806995 . . .[9-s 48.10] NW v R [2014] NSWCCA 217; BC201408698 .[8-s 91FB.1] Nydam v — [1977] VR 430 . . . . . . .[8-s 18.50] Obeid v R (No 2) [2016] NSWCCA 321; BC201611600 . . . . . . . . . . . . .[9-s 22.5] O’Brien v Smith (NSWSC, Yeldham J, 9 May 1986, unreported) . . . . . . . . . . . . . .[10-s 3.30] Ohlsen v Jones (1991) 53 A Crim R 136 . . . .[21-s 21.1] Ohlson v Hylton [1975] 1 WLR 724 . .[11-230.10] Ohn v Walton (1995) 36 NSWLR 77 .[2-s 213.15], [2-s 215.1] Ollis v R [2011] NSWCCA 155; BC201105175 .[5-s 21A.5] Optical Prescription Spectacle Makers Pty Ltd v Withers (1987) 13 FCR 594; 71 ALR 269; 25 A Crim R 143 . . . . . . . . . . . . .[21-s 48.25] Orban v Bayliss [2004] NSWSC 428; BC200403259 . . . . . .[21-1000.1], [21-1535.5], [21-3170.1] Osland v R (1998) 197 CLR 316; 159 ALR 170; 73 ALJR 173 . . . . . . . .[8-s 18.15], [8-s 23.3] O’Sullivan v Brady [1954] SASR 140 . .[11-125.15] — v Tregaskis [1948] SASR 12 . . . .[8-s 527C.10] O’Toole v Samuels (1972) 3 SASR 30 .[8-s 125.15] Ousley v R (1997) 192 CLR 69; 148 ALR 510 . . . . . . . . . . . . . . . . . . . .[21-s 48.50] Ower, Appeal of (1945) 46 SR (NSW) 51; 62 WN (NSW) 222 . . . . . . . . . . . . . .[2-s 11.1] Pallante v Stadiums Pty Ltd (No 1) [1976] 3 VR 331 . . . . . . . . . . . . . . . . . . . . .[8-s 58.5] Palmer v R (1998) 193 CLR 1; 151 ALR 16 . .[2-s 161.10] Palos Verdes Estates Pty Ltd v Carbon (1991) 6 WAR 223; 72 LGRA 414 . . . . . . . . . .[2-s 14.1] Panchal v R; R v Panchal [2014] NSWCCA 275; BC201409995 . . . . . . . . . . .[2-s 306P.5] Panetta v R [2016] NSWCCA 85; BC201603486 . . . . . . . . . . . . . . . . . . . . .[5-s 23.1] Papakosmas v — (1999) 196 CLR 297; 164 ALR 548 . . . . . . . . . . . . . . . . . . . .[8-s 61I.10] Parente v — [2017] NSWCCA 284; BC201710271 . . . . . . . . . . . . . . . . . . . .[10-s 25.25] Parhizkar v — [2014] NSWCCA 240; BC201409191 . . . . . . . . . . . . . . . . . . . .[8-s 93B.5] Parissienne Basket Shoes v Whyte (1938) 59 CLR 369; [1938] ALR 119 . . . . . . . .[2-s 179.1] Park v R [2019] NSWCCA 105; BC201904666 .[8-s 19A.1]

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TABLE OF CASES — v — [2010] NSWCCA 151; BC201005731 .[8-s 30.1] Parker v Churchill (1986) 9 FCR 334; 65 ALR 107 . . . . . . . . . . . . . . . . . . . .[21-s 48.25] — v — (1985) 9 FCR 316; 63 ALR 326 . . . .[21-s 49.5] — v DPP (1992) 28 NSWLR 282; 65 A Crim R 209 . . . . . . . . . . . . . . . . . . . . . .[1-510] — v R (1964) 111 CLR 665; [1964] AC 1369; [1964] ALR 1153 . . . . . . .[2-s 161.30], [8-s 23.3] — v — (1963) 111 CLR 610; [1963] ALR 524; (1963) 37 ALJR 3 . . . . . . . . . . . . . .[8-s 23.3] — v Todhunter (1987) 26 A Crim R 169 . . . .[8-s 527C.10] Parks v Bullock [1982] VR 258 . . . . .[10-s 12.1] Parmeter v Proctor (1949) 66 WN (NSW) 48 . .[2-s 16.15], [2-s 16.35] Parsons v R (1999) 195 CLR 619; 160 ALR 531 . . . . . . . . . . . . . . . . . . . . .[8-s 4.10] Pascoe v Nominal Defendant (Qld) (No 2) [1964] Qd R 373 . . . . . . . . . . . . . . . .[11-125.25] Patten v JP, Redfern Court (1986) 22 A Crim R 94 . . . . . . . . . . . .[21-s 48.10], [21-s 48.35] Patterson v Alsleben (NSWSC, Newman J, 5 June 1990, unreported) . . . . . . . . . .[11-125.25] Peacock v R (1911) 13 CLR 619; 17 ALR 566 .[2-s 31.1], [2-s 161.15] Pearce v — (1998) 194 CLR 610; 156 ALR 684; 72 ALJR 1416 . . . . .[2-s 19.5], [2-s 156.1], [5-s 53A.5], [5-s 55.1], [8-s 113.15] Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435; 162 ALR 336 . . . . . . . .[1-020] Pemble v R (1971) 124 CLR 107; [1971] ALR 762 . . . .[2-s 161.1], [2-s 161.30], [8-s 18.5], [8-s 18.55], [8-s 58.5] Pengilley v — [2006] NSWCCA 163; BC200603582 . . . . . . . . . . . . . . . . . . . .[2-s 161.5] Penza and Di Maria v — [2013] NSWCCA 21; BC201300634 . . . . . . . . . . . .[8-s 18.20] Pereira v DPP (1988) 82 ALR 217; 35 A Crim R 382; (1989) 63 ALJR 1; (1988) 35 A Crim R 382 . . . . . . . . . . . . . .[8-s 7.1], [10-s 10.15] Perry v R (1990) 49 A Crim R 243 . .[8-s 23A.10] Peters v Asplund [2008] NSWSC 1061; BC200808827 . .[2-s 222.1], [2-s 222.5], [2-s 229.5] Petroulias v R [2010] NSWCCA 95; BC201002944 . . . . . . . . . . . . . . . . . . . . .[9-s 22.5] — v — (2007) 176 A Crim R 302 . . . . .[2-s 19.5] Pfeiffer v — [2009] NSWCCA 145; BC200904660 . . . . . . . . . . . . . . . . . . . .[5-s 21A.5] Pfitzner v — [2010] NSWCCA 314; BC201010468 . . . . . . . . . . . . . . . . . . .[5-s 21A.10] PG v — [2017] NSWCCA 179; BC201705719 .[5-s 22.5], [5-s 53A.5] PGM (No 2) v — [2012] NSWCCA 261; BC201210735 . . . . . . . . . . .[2-s 306D.5]

PH v — [2009] NSWCCA 161; BC200905526 .[8-s 66A.40] Phillips v Cassar [1979] 2 NSWLR 340 . . . . .[8-s 417A.1] Piddington v Bates [1960] 3 All ER 660; [1961] 1 WLR 162 . . . . .[8-s 546C.5], [8-s 546C.15] Pinkstone v R (2004) 219 CLR 444; 206 ALR 84 . . . . . . . . . . . . . . . . . . . .[10-s 3.30] Pioch v Lauder (1976) 13 ALR 266; 27 FLR 79 . . . . . . . . . . . . . . . . . . . . . .[1-205] Pirani v Hardy (NSWSC, Smart J, 9 September 1994, unreported) . . . . . . . . . . . . . .[21-s 99.5] Pittman v Di Francesco (1985) 4 NSWLR 133 .[8-s 527C.10], [8-s 547D.1] Platt v Sloman [1946] AR (NSW) 324 . .[2-s 16.35] Plenty v Dillon (1991) 171 CLR 635; 98 ALR 353 . . . . . . . . . . . . .[21-s 10.1], [21-s 99.25] Plomp v R (1963) 110 CLR 234; [1964] Qd R 170; [1964] ALR 267 . . .[2-s 161.15], [8-s 18.65] Plunkett v Kroemer [1934] SASR 124 . . . . . .[8-s 546C.10] PM v R (2007) 232 CLR 370; 240 ALR 1 . . .[2-s 8.10] Poidevin v Semaan [2013] NSWCA 334; BC201313632 . . . . . . . . . . .[21-s 201.1] Police v Bugmy [2011] NSWLC 28 . .[2-s 314.10] — v Drummond [1973] 2 NZLR 263 . . .[11-135.5] — v Greaves [1964] NZLR 295 . . . . . .[8-s 58.5] Polley v Johnson [2015] NSWCA 256; BC201508154 . . . . . . . . . . . . . . . . . . . .[21-s 48.20] Pollitt v R (1992) 174 CLR 558; 108 ALR 1; 62 A Crim R 190 . . . . . . . . . . . . .[2-s 161.40] Popa v — (1991) 53 A Crim R 102 . . .[10-s 25.1], [10-s 29.20] Porter v Fitzpatrick (1987) 7 Petty Sessions Review 3485 . . . . . . . . . . . . . . . . .[10-s 12.1] — v Martin [1910] VLR 38; (1909) 16 ALR 12 . . . . . . . . . . . . . . . . . . . .[11-380.15] Potier v Huber (2004) 148 A Crim R 399 . . . .[2-s 49.1], [2-s 174.1] — v R [2014] NSWCCA 177; BC201407056 . .[9-s 22.5], [9-s 74.5] Pounder v Police [1971] NZLR 1080 . .[8-s 58.55] Powch v R (1987) 163 CLR 496; 75 ALR 13 . .[8-s 310D.10] Power v R; sub nom Lyons v R (1974) 131 CLR 623; 3 ALR 553; 3 ALR 553 . . . . . . .[5-s 44.10] PPC v Stylianou [2018] NSWCCA 300; BC201812422 . . . . . . . . . . .[2-s 299B.5] — v Williams [2013] NSWCCA 286; BC201319110 . . . . . . . . . . . . . . . . . . . .[2-s 298.5] Premier Travel Pty Ltd v Satellite Centres of Australia Pty Ltd [2004] NSWSC 864; BC200406096 . . . . . . . . . . . . . . . . . . . .[2-s 228.10] Presidential Security Services of Australia Pty Ltd v Brilley (2008) 67 ACSR 692 . . . . .[5-s 16.1] Price v Ferris (1994) 34 NSWLR 704; 74 A Crim R

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ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020 127 . . . . . . . . . . . . . . . . . . . .[1-275] — v Humphries [1958] 2 QB 353; [1958] 2 All ER 725 . . . . . . . . . . . . . . . . . .[2-s 14.1] Principal Registrar of the Supreme Court of NSW v Tastan (1994) 75 A Crim R 498 . .[2-s 222.30] Producers and Citizens Co-operative Assurance Co Ltd v Packer [1955] AR (NSW) 1002 . . .[2-s 16.35] Public Guardian v Guardianship Board (1997) 42 NSWLR 201 . . . . . . . . . . . .[2-s 132.10] Pulitano v R [2010] NSWCCA 45; BC201001318 . . . . . . . . . . . . . . . . . . . . .[5-s 24.1] Purdon v Dittmar [1972] 1 NSWLR 94 . . . . .[8-s 527C.15] Pureau v R (1990) 19 NSWLR 372; 47 A Crim R 230 . . . . . . . . . . . . . . . . . . . .[2-s 162.1] Quayle v — [2010] NSWCCA 16; BC201000467 . . . . . . . . . . . . . . . . . . . .[5-s 44.15] Question of Law Reserved (No 3 of 1998) (1998) 71 SASR 223; 101 A Crim R 395 . . .[21-s 21.1] Question of Law Reserved (No 4 of 1997) (1998) 71 SASR 228; 101 A Crim R 561 . . .[10-s 6.15] Question of Law Reserved on Acquittal (No 3 of 1995) (1996) 88 A Crim R 1 . . . . . .[7-105] Quinlan v R (2006) 164 A Crim R 106 .[2-s 161.62] R (Cth) v Baladjam (No 21) [2008] NSWSC 1446; BC200813556 . . . . . . . . . . . . .[9-s 1.15] — v Petroulias (No 1) (2006) 217 FLR 242; 177 A Crim R 153 . . . . . . . . . . . . .[2-s 16.25] — v Petroulias (No 11) [2007] NSWSC 533; BC200711112 . . . . . . . . . . . . .[2-s 40.1] — v Petroulias (No 22) (2007) 213 FLR 293; 176 A Crim R 309 . . . . . . . . . . . . .[2-s 222.20] — v Petroulias (No 34) [2007] NSWSC 1462; BC200711474 . . . . . . . . . . . .[2-s 161.5] R v — (No 2) [2016] NSWSC 1255 . . .[21-s 14.1] — v A [2003] NSWCCA 157; BC200303127 . .[8-s 91D.20] — v A2; R v Magennis; R v Vaziri (No 23) [2016] NSWSC 282; BC201601706 . . . .[8-s 45.10] — v A2; R v Magennis; R v Vaziri (No 24) [2016] NSWSC 737; BC201604468 . . . .[8-s 45.10] — v AA [2017] NSWCCA 84; BC201703070 .[5-s 23.1] — v AB (2011) 59 MVR 356 . . . .[5-s 22.5], [5-s 25F.5], [8-s 52A.45] — v Abboud [2005] NSWCCA 251; BC200505225 . . . . . . . . . . . . . . . . . . . . .[8-s 61.7] — v Abbrederis (1981) 36 ALR 109; [1981] 1 NSWLR 530 . . . . . .[8-s 7.1], [8-s 527C.10] — v Abdullah (2001) 127 A Crim R 46 . . . . .[2-s 161.35] — v Achurch [2011] NSWCCA 186; BC201106195 . . . . . . . . . . . . . . . . . . . .[10-s 25.25] — v ACK (NSWCCA, Gleeson CJ, Studdert and Dowd JJ, 60601/1994, 22 April 1996, BC9601665) . . . . . . . . . . . . .[2-s 21.15]

— v Adam (1999) 106 A Crim R 510 .[2-s 161.62] — v — (1999) 47 NSWLR 267 . . . . . . .[7-485] — v Addison (1993) 70 A Crim R 213 .[10-s 3.30], [10-s 3.45], [10-s 3.75] — v Adler (NSWCCA, 11 June 1992, unreported) . . . . . . . . . . . . . . . . . . . . .[2-s 19.5] — v Adomako [1995] 1 AC 171; [1994] 3 All ER 79; [1994] 3 WLR 288; (1994) 99 Cr App Rep 362 . . . . . . . . . . . . . . . . . . . .[8-s 18.50] — v AEM (Snr) [2002] NSWCCA 58; BC200200785 . . . . . . . . . . . . . . . . . . . . .[5-s 55.1] — v Agic (NSWCCA, 18 May 1992, unreported) . . . . . . . . . . . . . . . . . . . .[10-s 29.10] — v AGR (NSWCCA, Mason P, Grove and James JJ, 24 July 1998, BC9803670) . . . .[8-s 61I.65] — v Ahmed [2001] NSWCCA 450; BC200107455 . . . . . . . . . . . . . . . . . . . .[8-s 197.5] — v Ainsworth (1994) 76 A Crim R 127 . . . .[8-s 19A.1] — v AJP (2004) 150 A Crim R 575 . .[8-s 66A.40] — v Al Khair (NSWCCA, Gleeson CJ, Priestley JA, Wood J, 20 June 1994, BC9402671) . . .[10-s 25.35], [10-s 25.45] — v Aldridge (1993) 67 A Crim R 371 . .[2-s 21.1] — v — (1990) 20 NSWLR 737; 51 A Crim R 281 . . . . . . . . . . . . . . . . .[7-495], [7-575] — v Alexander (1994) 78 A Crim R 141 . . . .[8-s 24.30] — v Alexandridis [2014] NSWSC 662; BC201403896 . . . . . . . . . . . . . . . . . . . .[9-s 19.10] — v Alexandroaia (1995) 81 A Crim R 286 . . .[2-s 40.1], [2-s 190.1] — v Ali (1981) 6 A Crim R 161 .[2-s 161.25], [2-s 161.30] — v Allan (1841) 174 ER 513; Car M 295 . . .[8-s 310C.1] — v Allen (1984) 16 A Crim R 441 . .[2-s 161.55] — v Allison (2003) 138 A Crim R 378 .[2-s 207.1] — v Ambrosi (2004) 144 A Crim R 67 . . .[7-485] — v AN (2000) 117 A Crim R 176 . . .[2-s 161.45] — v Anastasiou (aka Peters) (1991) 21 NSWLR 394; 52 A Crim R 7 . . . . . . . . .[7-405], [7-475] — v Anderson (2001) 127 A Crim R 116 . . . .[2-s 161.10] — v — (1983) Petty SR 2897 . .[10-s 10.25], [10-s 10.40] — v Andrews [1973] 1 QB 422 . . . . .[8-s 319.5] — v Annecchini (NSWCCA, Gleeson CJ, Allen and James JJ, 24 April 1996, BC9601668) . .[2-cl 21.20] — v Antill and Brown (1863) 2 SCR (NSW) 50 . . . . . . . . . . . . . . . . . . . .[2-s 160.1] — v Antonelli (1905) 70 JP 4 . . . . . .[8-s 26.20] — v Appelby (1940) 28 Cr App R 1 . . .[8-s 58.45] — v ARD [2000] NSWCCA 443; BC200006761 . . . . . . . . . . . . .[2-s 161.45], [8-s 319.5]

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TABLE OF CASES — v Asim (1997) 92 A Crim R 97 . . . .[10-s 3.30] — v Asquith (1994) 72 A Crim R 250 .[2-s 161.35] — v Assaad [2009] NSWCCA 182; BC200906528 . . . . . . . . . . . . . . . . . . . . . .[5-s 5.1] — v Assim [1966] 2 QB 249; [1966] 2 All ER 881 . . . . . . . . . . . . . . . . . . . .[2-s 21.10] — v Atkinson (1970) 55 Cr App R 1 .[8-s 52A.20] — v ATM [2000] NSWCCA 475; BC200007412 . . . . . . . . . . . . . . . . . . . .[2-s 161.45] — v Attard [1970] 1 NSWR 750 . . . . .[2-s 31.1] — v — (NSWCCA, Gleeson CJ, Priestley JA and Campbell J, 20 April 1993, BC9301923) .[8-s 61J.1], [8-s 98.5] — v Avery [1965] NSWR 1419 . . . . . .[2-s 31.1] — v Aziz [1982] 2 NSWLR 322 . . . .[2-s 161.55] — v B (1993) 68 A Crim R 547 . . . . .[8-s 41.15] — v — (1990) 12 MVR 540 . . . .[8-s 52A.5], [8-s 52A.10] — v — (NSWCCA, 7 December 1994, unreported) . . . . . . . . . . . . . . . . . . . .[8-s 61I.65] — v BA [2014] NSWCCA 148; BC201405995 .[5-s 44.20] — v Baartman (NSWCCA, Gleeson CJ, Powell JA, Smart J, 60499/94, 6 October 1994, BC9405200) . . . . . . . . . . . . .[2-s 21.15] — v Bacon [1973] 1 NSWLR 87 . . . .[1-225], [2-s 14.1], [2-s 161.12] — v — [1977] 2 NSWLR 507 . . . . .[11-125.25], [11-140.5] — v Baden-Clay [2016] HCA 35; BC201607352 . . . . . . . . . . . .[2-s 161.35], [2-s 161.62] — v Bahsa (2003) 138 A Crim R 245 . . .[5-s 55.1] — v Bailey [1924] QWN 38 . . . . . .[8-s 117.30] — v — (1907) 24 WN (NSW) 23 . . .[8-s 126.10] — v Baird (1985) 3 NSWLR 331 . .[8-s 7.1], [10-s 10.15], [10-s 12.1] — v Baker (NSWCCA, Gleeson CJ, Smart J, Studdert J, 23 May 1994, BC9402549) . . .[8-s 19A.1] — v Bakewell (NSWCCA, Gleeson CJ, McInerney and Studdert JJ, 27 June 1996, unreported, BC9602796) . . . . . . . . . . . . . .[5-s 28.1] — v Baleisuva [2004] NSWCCA 344; BC200406822 . . . . . . . . . . . . .[5-s 21A.10], [5-s 23.1] — v Banner [1970] VR 240 . . . . . .[8-s 310D.10] — v Barakat [2004] NSWCCA 201; BC200403884 . . . . . . . . . . . . . . . . . . . .[5-s 44.15] — v Barca (NSWCCA, 17 August 1978, unreported) . . . . . . . . . . . . . . . . . . . . .[2-s 40.1] — v Barron [1914] 2 KB 570 . . . . . .[2-s 193.5] — v Bartalesi (1997) 41 NSWLR 641; 93 A Crim R 274 . . . . . . . .[1-120], [2-s 258.1], [7-010] — v Barton [2004] NSWCCA 229; BC200404319 . . . . . . . . . . . . . . . . . . . .[2-s 21.15] — v — (2001) 121 A Crim R 185 . . . . .[5-s 33.5] — v Basha (1989) 39 A Crim R 337 . .[1-200], [2-s 8.10], [7-220], [7-225], [7-485]

— v Bateman (1925) 94 LJKB 791; 133 LT 730; 41 TLR 557; 19 Cr App Rep 8 . .[8-s 18.50], [8-s 54.5] — v Batiste (1994) 35 NSWLR 437; 77 A Crim R 266 . . . . . . . . . . . . . . . . . . . . .[2-s 36.1] — v Bavadra (2000) 115 A Crim R 152 .[5-s 33.1], [5-s 55.1] — v Bazley (1989) 9 Petty SR 4136 . .[10-s 10.25] — v BD (1997) 94 A Crim R 131 . . . .[8-s 61I.10] — v — (2001) 122 A Crim R 28 . . . . .[10-s 6.10] — v Beavan (1952) 69 WN (NSW) 140 .[2-s 21.15] — v Beckett (2015) 325 ALR 385; 90 ALJR 1 .[8-s 312.5], [8-s 319.5] — v Beckwith [1976] 1 NSWLR 511 . . .[8-s 7.1] — v Beeby (1999) 104 A Crim R 142 .[2-s 153.1], [7-170] — v Beech (1912) 7 Cr App R 197 . . .[8-s 18.15] — v Beissel (1996) 89 A Crim R 210 . . .[5-s 10.1] — v Belghar [2012] NSWCCA 86; BC201202863 . . . . . . . . . . . . . . . . . . . .[2-s 132.1] — v Bell (1985) 2 NSWLR 466 . . . . . .[5-s 61.1] — v Bellamy (NSWCCA, 15 February 1993, BC9301860) . . . . . . . . . . . . .[8-s 94.10] — v — (1981) 3 A Crim R 432 . . . . .[8-s 188.25] — v Bellino and Conte [1993] 1 Qd R 521; (1992) 59 A Crim R 323 . . . . . . . . . . . . . .[7-485] — v Bellman [1989] AC 836; (1989) 88 Cr App R 252 . . . . . . . . . . . . . .[2-s 16.10], [2-s 21.5] — v Bennett [2014] NSWCCA 197; BC201408247 . . . . . . . . . . . . . . . . . . . .[5-s 21A.5] — v Bennie [1953] VLR 583 . . . . . .[8-s 125.15] — v Berg (2004) 41 MVR 399 . .[5-s 21A.5], [8-s 52A.45] — v Bergin (NSWCCA, 22 June 1984, unreported) . . . . . . . . . . . . . . . . . . . .[10-s 43.1] — v Bernhard [1938] 2 KB 264 . . . .[8-s 117.35] — v Bernthaler (NSWCCA, Kirby P, Badgery-Parker J, Ireland J, 60394/1993, 17 December 1993, BC9302364) . . . . . . . . . . . . .[2-s 293.1] — v Berrigan (NSWCCA, 7 October 1994, unreported) . . . . . . . . . . . . . .[2-s 293.1] — v Beserick (1993) 30 NSWLR 510; 66 A Crim R 419 . . .[2-s 293.1], [8-s 61I.1], [8-s 80AB.1] — v Besim (2004) 148 A Crim R 28 . .[8-s 18.55] — v Beydoun (1990) 22 NSWLR 256; 51 A Crim R 89; (1990) 51 A Crim R 89 . . .[8-s 192B.15], [8-s 192E.20] — v Bielaczek (NSWSC, Badgery-Parker J, 19 March 1992, BC9202765) . . . . . . . . . .[5-s 21.1] — v Bikic (2000) 112 A Crim R 300 . .[2-s 21.15] — v Bilick (1984) 36 SASR 321; 11 A Crim R 452 . . . . . . . . . . . . . . .[2-s 202.1], [7-525] — v Bingapore (1975) 11 SASR 469 . .[8-s 18.15] — v Bircham [1972] Crim LR 430 . . . .[2-s 160.1] — v Black [1963] WLR 1311 . . . . . .[2-s 160.1] — v — (NSWCCA, Spigelman CJ, Sully and Ireland

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ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020 — v Brenner [1990] Tas R 131 . . . . .[8-s 117.55] — v Brett [2004] NSWCCA 372; BC200407211 . . . . . . . . . . . . . . . . . . . . .[5-s 22.5] — v Briggs (1987) 24 A Crim R 98 . . . . .[7-525] — v Broadbent [1964] VR 733 . . . . . .[2-s 153.1] — v — [1967] 2 QB 857; [1967] 2 All ER 671; [1967] 3 WLR 209; (1967) 51 Cr App Rep 351 . .[2-s 153.1] — v Broadfoot [1976] 3 All ER 753 . .[8-s 91A.5] — v Brown (1989) 17 NSWLR 472; 44 A Crim R 385 . . . . . . . . .[2-s 8.10], [2-s 153.1], [7-001] — v — (1987) 78 ALR 368; 32 A Crim R 162 .[2-s 161.30] — v — (1982) 79 FLR 148 . . . . . . .[8-s 24.15] — v — (1883) 10 QBD 381 . . . . . . . .[8-s 30.1] — v — [1994] 1 AC 212 . . . . . . . . .[8-s 58.5] — v — [1993] 2 WLR 556 . . . . . . . .[8-s 59.5] — v — [2009] NSWCCA 6; BC200901586 . . .[5-s 11.1] — v — [2012] NSWCCA 199; BC2012073329 .[5-s 53.5], [5-s 53A.5] — v Browne (1987) 30 A Crim R 278 .[7-495], [7575], [8-s 351.15] — v Brownlowe (1986) 7 NSWLR 461; 24 A Crim R 377 . . . . . . . . . . . . . . . . .[2-s 161.55] — v Buchanan [1966] VR 9 . . . . . .[8-s 52A.35] — v Bucic (2016) 263 A Crim R 515 . .[10-s 3.85], [10-s 6.20], [10-s 24.5] — v Buckett (1995) 132 ALR 669; 79 A Crim R 303 . . . . . . . . . . . .[8-s 117.35], [8-s 351.15] — v Buckley [1979] Crim LR 665 . . . .[10-s 3.30] — v Burgess (1862) L C 258 . . . . . . .[8-s 30.1] — v — (2005) 152 A Crim R 100 . . . .[8-s 418.1] — v Burke [1993] 1 Qd R 166; (1991) 56 A Crim R 242 . . . . . . . . . . . . . .[2-s 36.1], [7-405] — v — [2002] NSWCCA 353; BC200205003 .[5-s 23.1] — v Burnett (1996) 85 A Crim R 76 . .[8-s 52A.45] — v Burns (1920) 20 SR (NSW) 351; 37 WN (NSW) 77 . . . . . . . . . . . .[2-s 16.30], [2-s 21.1] — v — (2011) 205 A Crim R 240 . . . . .[8-s 39.7] — v Burton [2008] NSWCCA 128; BC200804752 . . . . . . . . . . . . .[5-s 22.5], [8-s 323.20] — v Busby [2018] NSWCCA 136; BC201805763 . . . . . . . . . . . . .[10-s 25.1], [10-s 25.7] — v Buswell [1972] 1 All ER 75 . . . . . .[8-s 7.1] — v Butcher [1986] VR 43; (1985) 16 A Crim R 1 . . . . . . . . . . . . . . . . . . . .[8-s 18.15] — v Butler (1991) 24 NSWLR 66; 56 A Crim R 231 . . . . . . .[2-s 8.10], [7-001], [7-010], [7-220] — v Buttle (1960) SR (NSW) 320; (1959) 77 WN (NSW) 154 . . . . .[8-s 117.20], [8-s 126.10] — v Buttsworth [1983] 1 NSWLR 658 . . . . .[8-s 52A.15] — v BWM (1997) 91 A Crim R 260 . . .[2-s 153.1] — v BWT (2002) 54 NSWLR 241; 129 A Crim R 153

JJ, 23 July 1998, BC9805277) . .[8-s 52A.45] — v — (1983) 35 SASR 261; (1984) ACLD 113 . . . . . . . . . . . . . . . . . . . .[10-s 3.25] — v Blacklidge (NSWCCA, Gleeson CJ, Grove and Ireland JJ, 12 December 1995, BC9501665) . . . . . . . . . . . . . . . . . . . .[8-s 24.30] — v Blackwell (1996) 186 LSJS 336; 87 A Crim R 289 . . . . . . . . . . . . . . . . .[10-s 25.50] — v Blair (1985) 1 NSWLR 584 . .[2-s 19.5], [2-s 193.5] — v — (2005) 152 A Crim R 462 . . . .[10-s 3.30] — v Blakeney (NSWCCA, Finlay, Newman JJ and Barr AJ, 15 December 1994, BC9403425) .[8-s 39.20] — v Blaue [1975] 1 WLR 1411 . . . . .[8-s 18.15] — v Blinkhorn (1994) 32 NSWLR 706 . . . . .[8-s 310G.5] — v Bloxham (1943) 29 Cr App R 37 .[8-s 117.20] — v Boatswain (NSWCCA, 15 December 1993, unreported) . . . . . . . . . . . . .[8-s 61I.65] — v Boden (1844) 1 Car & Kir 395 . .[8-s 117.35] — v Boehner (NSWCCA, 17 August 1978, unreported) . . . . . . . . . . . . .[10-s 10.35] — v Bogacki [1973] 1 QB 832 . . . . .[8-s 154A.5] — v Bollen (1998) 99 A Crim R 510 . . .[5-s 28.5] — v Bolton (Cooper DCJ, District Court of NSW, 14 May 1981, unreported) . . . . . . . .[8-s 53.5] — v Bond (NSWCCA, Grove, James JJ and Hamilton JA, 60001/1996, 20 August 1996, BC9603728) . . . . . . . . . . . . . . . . . . . .[2-s 293.1] — v Bonora (1994) 35 NSWLR 74 . . . .[8-s 58.5] — v Booth [2014] NSWCCA 156; BC201406807 . . . . . . . . . . . . . . . . . . . . .[5-s 55.1] — v — [1982] 2 NSWLR 847; (1982) 8 A Crim R 81 . . . . . . . . . . . . . . . . . . . . . .[7-485] — v Borkowski (2009) 52 MVR 528; 195 A Crim R 1 . . . . . .[5-s 22.5], [8-s 18.55], [8-s 24.30] — v Boston (1923) 33 CLR 386; 30 ALR 185 .[2-s 17.5] — v Bouch (1983) 76 Cr App R 11 . . . .[8-s 28.1] — v Boulad [2005] NSWCCA 289; BC200506979 . . . . . . . . . . . . . . . . . . . .[5-s 21A.5] — v Bourchas (2002) 133 A Crim R 413 .[5-s 23.1] — v Bourke (1987) 28 A Crim R 216 . . . .[7-640] — v Bourne (1952) 36 Cr App Rep 125 .[8-s 79.1], [8-s 351B.5] — v Bowden (1981) 7 A Crim R 378 . .[8-s 110.5] — v Boyle [1954] 2 QB 292 . . . . . . . . .[7-150] — v Bradley (NSWCCA, Kirby ACJ, Badgery-Parker J, Loveday AJ, 060686/1992, 26 October 1993, BC9302270) . . . . . . . . . . . . .[8-s 94.20] — v Brady (1980) 2 A Crim R 42; Petty SR 2199; Petty Sessions Review 2199 . . . .[10-s 12.1] — v Brandt (2004) 42 MVR 262 . . . . .[5-s 33.1] — v Breen (1990) 99 FLR 474; 47 A Crim R 298 . . . . . . . . . . . . . . . . . . . . . .[7-105]

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TABLE OF CASES — v Challita (1988) 37 A Crim R 175 . .[2-cl 21.5], [10-s 26.1] — v Chan (1992) 28 NSWLR 421 . .[8-s 527C.10], [8-s 527C.25] — v — [1999] NSWCCA 103; BC9901998 . .[10-s 25.25] — v Chandler [1913] 1 KB 125 . . . . .[8-s 112.5] — v Chan-Fook [1994] 1 WLR 691 . . . .[8-s 59.5] — v Chant [2009] NSWSC 290; BC200902937 .[5-s 10A.1] — v Charles [1977] AC 177 . . .[8-s 192B.15], [8-s 192E.20] — v Charlton [1972] VR 758 . . . . . . . .[7-485] — v Chatwood [1980] Crim LR 46 . . .[10-s 12.1] — v Chatzidimitriou (2000) 1 VR 493; 112 A Crim R 95 . . . . . . . . . . . . . . . . . .[2-s 161.10] — v Checconi (1988) 34 A Crim R 160 .[2-s 32.5], [2-s 161.25], [2-s 161.40], [2-cl 21.5] — v Cheikh; R v Hoete [2004] NSWCCA 448; BC200408756 . . . . . . . . . . . . .[5-s 22.5] — v Chhay (1994) 72 A Crim R 1; (1995) 19 Crim LJ 37 . . . . . . . . . . . . . . . . . . .[8-s 23.3] — v Chin (1985) 157 CLR 671; 59 ALR 1 .[7-495] — v Chiron [1980] 1 NSWLR 218 . . .[2-s 207.1], [7-170] — v Chisari [2006] NSWCCA 19; BC200601106 . . . . . . . . . . . . .[5-s 21A.1], [5-s 21A.5] — v Chong [2003] NSWCCA 274; BC200305650 . . . . . . . . . . . . . . . . . . . . .[5-s 44.5] — v Chow (1987) 11 NSWLR 561 . . .[10-s 3.30], [10-s 26.1] — v Christoff (2003) 38 MVR 218; 140 A Crim R 45 . . . . . . . . . . . . .[5-s 44.15], [8-s 52A.15] — v Church [1966] 1 QB 59 .[8-s 18.1], [8-s 18.55] — v Ciantar (2006) 16 VR 26; 46 MVR 461 . .[2-s 161.62] — v Cicekdag (2004) 150 A Crim R 299 .[5-s 55.1] — v Cincotta NSWCCA, Hunt CJ, Grove and Allen JJ, 60472/1995, 1 November 1995, BC9501631) . . . . . . . . . . . . . . . . . . . .[2-s 207.1] — v City of London Coroner; Ex parte Barber [1975] 1 WLR 1310 . . . . . . . . . . . .[8-s 31C.5] — v Clarence [1886–90] All ER Rep 133; (1888) 53 JP 149; 58 LJMC 10; 22 QBD 23 . .[8-s 4.1] — v — (1888) 22 QBD 23 . . . . . . . .[8-s 58.5] — v Clark (NSWCCA unreported, 15 March 1990) . . . . . . . . . . . . . . . . . . . .[10-s 25.25] — v Clarke (1993) 71 A Crim R 58 .[2-s 21.1], [2-s 161.55] — v — (1995) 78 A Crim R 226 .[2-s 161.15], [8-s 121.5] — v — (1997) 97 A Crim R 414 . . . .[2-s 161.55] — v — [2013] NSWCCA 260; BC201314803 .[5-s 53A.5] — v Clarkson [1987] VR 962; (1987) 25 A Crim R 277 . . .[7-105], [8-s 192B.15], [8-s 192E.20]

. . . . . . . . . . . . . . . . . . . .[2-s 161.45] v Byrne [1960] 2 QB 396 . . . . . .[8-s 23A.1] v Caine (1990) 48 A Crim R 464 . . . . .[7-640] v Cakovski (2004) 149 A Crim R 21 .[8-s 58.35] v Calderoni [2000] NSWCCA 511; BC200007790 . . . . . . . . . . . . . . . . . . . . .[5-s 23.1] — v Callaghan [1994] 2 Qd R 300; (1993) 70 A Crim R 350 . . . . . . . . . . . . . . . .[2-s 160.1] — v Cameron [1983] 2 NSWLR 66; (1983) 8 A Crim R 466 .[2-s 161.20], [2-s 162.1], [8-s 61I.85], [8-s 80AB.1] — v — (2005) 157 A Crim R 70 . . . . .[8-s 24.30] — v — (1924) 24 SR (NSW) 302 . . .[8-s 117.10] — v — (2002) 209 CLR 339; 187 ALR 65 . . .[5-s 22.5] — v Campbell [2005] NSWCCA 132; BC200502032 . . . . . . . . . . . . . . . . . . . .[2-s 161.62] — v — [2004] NSWCCA 314; BC200406256 .[8-s 121.5] — v Cardoso (2003) 137 A Crim R 535 .[5-s 22.5] — v Carey (1990) 20 NSWLR 292; 50 A Crim R 163 . . . . . . . . . . . . .[10-s 3.30], [10-s 29.5] — v Carlairs (1925) 25 SR (NSW) 515 . . .[7-525] — v Carr (NSWCCA, Lee CJ at CL, Allen and Badgery-Parker JJ, 17 October 1990, BC9001863) . . . . . . . . . . . . . .[8-s 58.5] — v — [1972] 1 NSWLR 608 . . . . .[21-s 133.3] — v Carr-Briant [1943] KB 607 . . . . .[11-125.25] — v Carrol [1975] 2 NZLR 474 . . . . .[11-230.10] — v Carroll (2010) 267 ALR 57 . . . . .[8-s 24.30] — v Carruthers (2008) 50 MVR 29; 182 A Crim R 481 . . . . . . . . . . . . . . . . .[8-s 52A.45] — v Carter (1978) 4 Petty SR 1859 .[8-s 527C.10] — v — [2003] NSWCCA 243; BC200305119 .[5-s 44.15] — v Cartwright (1989) 17 NSWLR 243 .[5-s 23.1] — v Carusi (1989) 17 NSWLR 516 . . .[10-s 3.30], [10-s 26.1] — v Cassell (NSWCCA, Gleeson CJ, Sully and Hulme JJ, 60162/96, 24 July 1996, unreported; BC9607104) . . . . . . . . . . . . . .[2-s 11.1] — v Catalano (1992) 107 FLR 31; 61 A Crim R 323 . . . . . . . . . . . . . . . . . . . . .[2-s 19.5] — v Cato [1976] 1 All ER 260; [1976] 1 WLR 110 . . . . . . . . . . . . .[8-s 18.15], [8-s 18.50] — v Catt (1993) 68 A Crim R 189 . . . . . .[7-495] — v CDH [2002] NSWCCA 103; BC200201373 . . . . . . . . . . . . . . . . . . . . .[5-s 22.5] — v Ceissman (2001) 160 FLR 252; 119 A Crim R 535 . . . . . . . . . . . . . . . . . .[8-s 97.20] — v Chai (1992) 27 NSWLR 153; 60 A Crim R 305 . . . . . . . . . . . . .[2-s 32.5], [2-s 161.40] — v — (2002) 187 ALR 436; 76 ALJR 628 . .[2-s 161.1] — v — [2000] NSWCCA 320; BC200005097 .[8-s 18.55] — — — —

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ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020 — v Clayton (1997) 42 NSWLR 268 . . .[5-s 58.1] — v Clear [1968] 2 WLR 122 . . . . . .[8-s 99.10] — v Clogher [1999] NSWCCA 397; BC9908862 . . . . . . . . . . . . . . . . . . .[8-s 192G.20] — v Clough (1992) 28 NSWLR 396; 64 A Crim R 451 . . . . . . . . . . . . . . . . .[2-s 161.40] — v Clout (1995) 41 NSWLR 312 . . .[2-s 161.55] — v Cogan [1976] QB 217; [1975] 2 All ER 1059 . . . . . . . . . . . . . . . . . . .[8-s 351B.5] — v Cole [1965] 2 QB 388; [1965] 2 All ER 29; [1965] 3 WLR 263; (1965) 49 Cr App Rep 199 . . . . . . . . . . . . . . . . . . . .[2-s 153.1] — v Coleman (1990) 19 NSWLR 467; 47 A Crim R 306 . . . . .[2-s 161.63], [8-s 4A.5], [8-s 18.1] — v — (1991) 56 A Crim R 369 . . . .[10-s 25.25] — v Coles [1984] 1 NSWLR 726; (1984) 9 A Crim R 419 . . . . . . . . . . . . . . . . . .[10-s 3.30] — v Collet NSWCCA, 7 June 1979, unreported, . . . . . . . . . . . . . . . . . . . . .[8-s 86.1] — v Colling (1847) 2 Cox CC 184 . . . . .[7-105] — v Collins [1973] QB 100; [1972] 2 All ER 1105 . . . . . . . . . . . . . .[8-s 111.5], [8-s 112.5] — v Comptroller of Customs [1899] 1 QB 909 . . . . . . . . . . . . . . . . . . . . . .[7-105] — v Condon (1995) 83 A Crim R 335 .[2-s 161.1], [2-s 161.25] — v Coney (1882) 8 QBD 534 . . . . . .[8-s 58.5] — v Conlon (1993) 69 A Crim R 92; (1995) 19 Crim LJ 44 . . . . . . . . . .[8-s 58.20], [8-s 418.1] — v Cook (NSWCCA, Clarke JA, Campbell and Allen JJ, 60572/1989, 9 May 1990, BC9002472) . . . . . . . . . . . . . . . . . . . . .[2-s 21.1] — v — [2004] NSWCCA 52; BC200401046 . .[2-s 161.62] — v Coomer (1989) 40 A Crim R 417 . .[8-s 18.55] — v Cooper (NSWCCA, Gleeson CJ, Ireland and Bruce JJ, 60956/97, 24 February 1998, BC9800322) . . . . . . . . . . . . .[2-s 21.10] — v — (1979) 69 Cr App Rep 229 . . .[2-s 150.1] — v Cosgrove (1988) 34 A Crim R 299 . . . . .[2-s 161.25] — v Costi (1987) 48 SASR 269 . . . . .[2-s 160.1] — v Cotterill (NSWCCA, 7 June 1993, unreported) . . . . . . . . . . . . . . . . . . . .[10-s 43.5] — v Coulter [1914] 31 WN (NSW) 21 . .[2-s 31.1] — v Cox [1960] VR 665 . . . . . . . . . .[2-s 40.1] — v — (1818) R R 362 . . . . . . . . . .[8-s 33.5] — v CPK (NSWCCA, Gleeson CJ, Clarke and Hulme JJA, 60330/1994, 21 June 1995, BC9504846) . . . . . . . . . . . . . . . . . . . . . .[7-485] — v Cramp (1880) 5 QBD 307 . . . . . .[8-s 39.5] — v — [2004] NSWCCA 264; BC200404883 .[5-s 21A.1], [5-s 44.15] — v Crawford [1989] 2 Qd R 443; (1988) 36 A Crim R 182 . . . . . . . . . . . . . . . . .[2-s 17.1] — v Crisologo (1997) 99 A Crim R 178 . . . . .[2-s

161.20], [2-s 162.1], [8-s 61I.65] — v Croft (1933) 50 WN(NSW) 56 . . . . .[7-640] — v Crombie [1999] NSWCCA 297; BC9906339 . . . . . . . . . . . . . . . . . . . .[10-s 25.25] — v Cross (1995) 84 A Crim R 242 . .[8-s 188.25] — v Crotty (1993) 1 NSWCR 71 . . . .[8-s 94.20] — v Crowe [2016] NSWCCA 39; BC201601466 . . . . . . . . . . . . . . . . . . . . .[5-s 3A.1] — v Crowley (1963) 82 WN (Pt 1) (NSW) 238 . . . . . . . . . . . . . . . . . . . .[8-s 117.5] — v Cruse (1838) 8 C P 541 . . . . . . .[8-s 27.15] — v CWW (1993) 32 NSWLR 348; 70 A Crim R 517 . . . . . . . . . . . . .[10-s 23.30], [10-s 25.1] — v D [1984] 3 NSWLR 29 . . . . .[8-s 54.5], [8-s 212.10] — v Dalby [1982] 1 WLR 425; 1 All ER 916 .[10-s 3.30], [10-s 13.10] — v Dale (1852) 6 Cox CC 14 . . . . . .[8-s 27.1] — v Daley (1879) 12 SCR (NSW) 151 .[8-s 117.15] — v Damic [1982] 2 NSWLR 750; (1982) 6 A Crim R 35 . . . . . . . . . . . . . . . . . . .[7-485] — v Dang [1999] NSWCCA 42; BC9901567 . .[8-s 19A.1], [8-s 24.30], [8-s 52A.45] — v — [2005] NSWCCA 430; BC200510784 .[10-s 25.25] — v Dann [2000] NSWCCA 185; BC200002589 . . . . . . . . . . . . . . . . . . . .[8-s 61I.48] — v Darby (1982) 148 CLR 668; 40 ALR 594; 56 ALJR 688 . . . . . . . .[2-s 21.15], [2-cl 21.5] — v Darling (1884) 5 LR (NSW) 405; 1 WN 74 . . . . . . . . . . . . . . . . . . . .[8-s 56.10] — v — [1974] 2 NSWLR 542 . . . . . .[11-140.5] — v D’Arrigo [1994] 1 Qd R 603; (1991) 58 A Crim R 71 . . . . . . . . . . . . . . . . . .[2-s 32.5] — v Darwich [2018] NSWCCA 46; BC201801979 . . . . . . . . . . . . . . . . . . .[8-s 91D.20] — v Dasilva [2015] NSWSC 1909; BC201513520 . . . . . . . . . . . . . . . . . . . . .[2-s 30.1] — v Davenport [1954] 1 All ER 602 . .[8-s 157.10] — v David and Gugea (NSWCCA, 10 October 1995, unreported) . . . . . . . . . . . . .[10-s 25.45] — v Davidson [1969] VR 667 . . . . . . .[8-s 84.5] — v Davies (1993) 19 MVR 481 . . . .[2-s 207.1] — v — [1970] VR 27 . . .[8-s 117.10], [8-s 117.20] — v — (1973) 7 SASR 375 . . . . . . .[8-s 327.10] — v Davis [1999] NSWCCA 15; BC9900945 . .[2-s 161.1] — v — (1998) 100 A Crim R 573 . . . . .[8-s 23.3] — v — [1968] 1 QB 72 . . . . . . . . .[8-s 31C.5] — v — [2004] NSWCCA 298; BC200406330 .[8-s 61I.48] — v Dawson (1985) 81 Cr App Rep 150 . . . .[8-s 18.55] — v DBG (2002) 133 A Crim R 227 .[2-s 306X.1], [2-s 306ZI.1]

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TABLE OF CASES — v De Cressac (1985) 1 NSWLR 381 . . . . .[2-s 161.55] — v De Leeuw [2015] NSWCCA 183; BC201506248 . . . . . . . . . . . . . . . . . . . .[8-s 91H.1] — v De Simoni (1981) 147 CLR 383; 35 ALR 265 . . . . .[2-s 153.1], [8-s 91H.1], [10-s 25A.5] — v De Souza (1997) 41 NSWLR 656; 95 A Crim R 1 . . . . . . . . . . . . . . . . . . .[8-s 23A.1] — v Dean (1932) NZLR 753 . . . . . . .[2-s 16.15] — v — [2013] NSWSC 661; BC201302789 . .[2-s 132.1] — v Deeble (CCA(NSW), 19 September 1991, BC9101554) . . . . . . . . . . . . . .[5-s 47.1] — v Dellapatrona (1993) 31 NSWLR 123 . . . .[2-s 161.40], [2-s 161.62] — v Delon (1992) 29 NSWLR 29 . . . . . .[7-505] — v Demiroz [2003] NSWCCA 146; BC200303668 . . . . . . . . . . . . . . . . . . . .[2-s 161.55] — v Deng (1996) 91 A Crim R 80 . . . .[10-s 6.15] — v Denning (NSWCCA, Carruthers, Smart and Grove JJ, 60807/1991, 15 May 1992, BC9203052) . . . . . . . . . . .[8-s 310D.35] — v Derbas (1993) 66 A Crim R 327 . .[10-s 25.5] — v Devenish [1969] VR 737 . . . . . . . .[7-485] — v DH (NSWCCA, Newman, James and Hidden JJ, 14 July 1997, BC9703242) . . . .[8-s 61H.10] — v Dhanhoa [2000] NSWCCA 257; BC200004701 . . . . . . . . . . . . . . . . . . .[8-s 52A.45] — v Dhillon (CCA(NSW), 26 April 1989, BC8902251) . . . . . . . . . . . . .[8-s 61.25] — v Diamond (1920) 84 JP 211 . . . . .[8-s 26.10] — v Dib (1991) 52 A Crim R 64 . .[8-s 7.1], [10-s 7.1], [10-s 10.10], [10-s 10.25] — v — [2003] NSWCCA 117; BC200302577 .[5-s 22.5] — v — [2002] NSWSC 934; BC200205992 . . . . . . . . . . . . . . . . . . . . . .[7-170] — v Dickinson [2005] NSWCCA 284; BC200506727 . . . . . . . . . . . . . . . . . . . .[5-s 44.10] — v Dileski (2002) 132 A Crim R 408 .[8-s 349.5] — v Dillon (1878) 1 SCR (NS) (NSW) 159 . . .[8-s 117.35] — v — [1982] VR 434 . . . . . . . .[8-s 249B.10] — v — [1983] 2 Qd R 627 . . . . . . . .[10-s 12.1] — v Dinh [2010] NSWCCA 74; BC201002663 .[8-s 47.15] — v Dirani (No 19) [2018] NSWSC 1135; BC201813265 . . . . . . . . . . . .[2-s 161.5] — v Dirani (No 33) [2019] NSWSC 288; BC201902338 . . . . . . . . . . .[2-s 314.15] — v Dirani (No 7) [2018] NSWSC 945; BC201813258 . . . . . . . . . . . . .[2-s 34.1] — v Dittmar [1973] 1 NSWLR 722 . .[8-s 527C.1], [8-s 527C.25] — v DMC (2002) 137 A Crim R 246 . . .[8-s 86.1] — v Dodd (1991) 57 A Crim R 349 . .[8-s 52A.45]

— v Dolan [1969] 1 WLR 1479 . . . . .[11-125.25] — v Donohoe (NSWCCA, 2 August 1993, unreported) . . . . . . . . . . . . .[10-s 25.30] — v Donovan [1934] 2 KB 498 . . . . . .[8-s 59.5] — v Dookheea (2017) 347 ALR 529; 91 ALJR 960 . . . . . . . . . . . . . . . . . . . .[2-s 161.10] — v Doorey [2000] NSWCCA 456; BC200006608 . . . . . . . . . . . . . . . . . . . .[8-s 97.20] — v Dossi (1918) 13 Cr App R 158 . . .[2-s 16.15], [2-s 21.1] — v Downs (1985) 3 NSWLR 312 .[8-s 18.1], [8-s 18.25] — v Doyle [2006] NSWCCA 118; BC200602231 . . . . . . . . . . . . . . . . . . .[8-s 52A.45] — v Drinkwater (1981) 27 SASR 396 .[8-s 117.15] — v Dudko (2002) 132 A Crim R 371 .[8-s 310B.5] — v Dugan [1984] 2 NSWLR 554 . . .[8-s 114.20] — v Dunbar (1982) 1 All ER 188 . . . .[10-s 11.5] — v Dungay (2001) 126 A Crim R 216 . . . .[21-s 99.15] — v Dunks [1982] 2 NSWLR 747; (1982) 8 A Crim R 267 . . . . . . . . . . . . . . . .[8-s 310D.30] — v Dunn (NSWCCA, Carruthers J, 15 April 1992, unreported) . . . . . . . . . . . . .[8-s 61H.5] — v — [1973] 2 NZLR 481 . . . . . . .[8-s 81C.5] — v Dunne (NSWCCA, 1 March 1993, unreported) . . . . . . . . . . . . . . . . . . . .[8-s 52A.5] — v — (NSWCCA, 26 March 1993, unreported) . . . . . . . . . . . . . . . . . . .[8-s 52A.15] — v Duru [1973] 3 All ER 715 . . . . .[8-s 117.30] — v Dutton [2005] NSWCCA 248; BC200505157 . . . . . . . . . . . . . . . . . . .[8-s 52A.45] — v DW [2012] NSWCCA 66; BC201203094 . . . . . . . . . . . . . . . . . . . .[10-s 25.25] — v Dwyer [1999] NSWCCA 47; BC9901059 .[8-s 61I.10] — v Dykyj (1993) 29 NSWLR 273 . . .[8-s 188.15] — v Dziduch (1990) 47 A Crim R 378 .[8-s 58.20] — v E (1996) 39 NSWLR 450 . . . . .[2-s 161.10] — v Eade (2002) 131 A Crim R 390 . . .[10-s 27.5] — v Easom [1971] 2 QB 315 . . . . . .[8-s 117.30] — v — (1981) 28 SASR 134; 4 A Crim R 171 . . . . . . . . . . . . . . . . . . . . . .[7-485] — v Economou (1989) 51 SASR 421; 44 A Crim R 88 . . . . . . . . . . . . . . . . . . . . . .[7-105] — v Edelsten (1990) 21 NSWLR 542; 51 A Crim R 397 . . . . . . . . . . . . . . . . . .[8-s 319.5] — v Edwards [1998] 2 VR 354; (1997) 94 A Crim R 204 . . . . . . . . . . . . . . . . . .[2-s 19.5] — v — [2015] NSWCCA 24; BC201513831 . .[2-s 293.1] — v — [2008] SASC 303; BC200809979 . . . .[8-s 18.55] — v Ehrlich [2012] NSWCCA 38; BC201201670 . . . . . . . . . . . . . . . . . . . . .[5-s 23.5] — v El Azzi [2001] NSWCCA 397; BC200106121

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ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020 . . . . . . . . . . . . . . . . . . . .[10-s 6.10] — v El Hani [2004] NSWCCA 162; BC200403011 . . . . . . . . . . . . . . .[5-s 22.5], [5-s 23.1] — v El Helou [2010] NSWCCA 111; BC201003286 . . . . . . . . . . . . . . . . . . . .[10-s 25.20] — v El Mir (1957) 75 WN (NSW) 191 . . . . .[2-s 161.10], [7-640] — v El-Andouri [2004] NSWCCA 178; BC200403645 . . . . . . . . . . . . .[5-s 22.5] — v ELD [2004] NSWCCA 219; BC200404881 . . . . . . . . . . . . . . . . . . . .[8-s 61I.48] — v El-Hayek (2004) 144 A Crim R 90 .[5-s 44.15] — v Ellames [1974] 3 All ER 130; 1 WLR 1391 . . . . . . . . . . . . . . . . . . . .[8-s 114.10] — v Ellis (1993) 68 A Crim R 449 . . .[8-s 97.20] — v — (NSWCCA, 27 February 1987, unreported) . . . . . . . . . . . . . . . . . . . .[10-s 25.30] — v — (1986) 6 NSWLR 603 . . . . . . .[5-s 23.1] — v — (1973) 57 Cr App R 571 . . . . . . .[7-150] — v El-Zeyat [2002] NSWCCA 138 . .[8-s 315.15] — v Emery (1975) 11 SASR 169 . . . .[8-s 94.10] — v English (1989) 17 NSWLR 149 . .[8-s 527C.5] — v — [2000] NSWCCA 245; BC200003829 .[5-s 47.1] — v Errington (1999) 29 MVR 344 . .[8-s 52A.45] — v Esposito (1998) 45 NSWLR 442; 105 A Crim R 27 . . . . . . . . . . . . . . . . . .[2-s 281.1] — v Essex Justices, Ex parte Final [1963] 2 QB 816; [1962] 3 All ER 924 . . . . . . . .[2-s 202.10] — v Evans [1962] SASR 303 . . . . . . .[2-s 31.1] — v — [1842] Carrington and Marshman 298 .[8-s 56.10] — v Evans and Gardiner (No 2) [1976] VR 523 . . . . . . . . . . . . . . . . . . . .[8-s 18.15] — v Evenett; Ex parte A-G (Qld) [1987] 2 Qd R 753; 24 A Crim R 330 . . . . . . . . . .[8-s 117.20] — v Everingham (1949) 66 WN (NSW) 122 . .[8-s 58.5] — v Eyles (1997) 3 NSWCR 43 . . . . .[11-135.10] — v F (1996) 90 A Crim R 356 . .[2-s 16.25], [10-s 25.1] — v — (1995) 83 A Crim R 502 . . . .[2-s 161.10] — v — (1996) 40 NSWLR 245; 89 A Crim R 250 . . . . . . . . . . . . . . . . . . . .[8-s 52A.5] — v — [1957] SR(NSW) 543; 74 WN 211 . . .[8-s 52A.25] — v Fabian (1992) 64 A Crim R 365 . .[10-s 25.25] — v Falconer-Atlee (1974) 58 Cr App R 348 . . . . . . . . . . . . . . . . . . . . . .[7-525] — v Falzon (2018) 357 ALR 394 . . . .[10-s 25.30] — v Falzon (No 2) [1993] 1 Qd R 618 . .[2-s 32.5] — v Fan (1989) 98 FLR 119 . . . . . . .[2-s 19.5] — v Farlow [1980] 2 NSWLR 166; (1979) 2 A Crim R 266 . . . . . . . . .[5-s 55.1], [8-s 310D.35] — v Farrar (1983) 78 FLR 10 . . . . . . .[8-s 97.5] — v Favero [1999] NSWCCA 320; BC9906690

. . . . . . . . . . . . . . . . . . . .[2-s 207.1] — v Fazio (1997) 69 SASR 54; 93 A Crim R 522 . . . . . . . . . . . . . . . . . . . .[10-s 25.50] — v FD & JD (2006) 160 A Crim R 392 .[5-s 22.5] — v Felton (2002) 135 A Crim R 328 . .[5-s 33.1] — v Fennell [1971] 1 QB 428; [1970] 3 All ER 215 . . . . . . . . . . . . . . . . . . . .[8-s 58.55] — v Fenwick [1954] 71 WN 102 . . . .[2-s 21.10] — v Fernando [1999] NSWCCA 66; BC9901709 . . . . . . . . . . . . . . . . . . . .[2-s 21.15] — v — [2004] NSWCCA 147; BC200402658 .[5-s 23.1] — v Ferrer-Esis (1991) 55 A Crim R 231 . . . .[2-s 207.1] — v Fidow [2004] NSWCCA 172; BC200403273 . . . . . . . . . . . . . . . . . . . .[5-s 44.15] — v Filimoehala (2003) 138 A Crim R 299 . . .[2-s 153.1], [7-170] — v Filippetti (1978) 13 A Crim R 335 . .[8-s 7.1], [10-s 10.25], [10-s 10.40] — v Finlayson (1964) 3 SCR (NSW) 3 .[8-s 117.20] — v Finn (1988) 34 A Crim R 425 . .[2-s 161.55], [7-640] — v Fisher (2002) 54 NSWLR 467 . . .[1-055], [1280], [2-s 6.1], [8-s 61.1] — v — (2003) 56 NSWLR 625; 138 A Crim R 318 . . . . . . . . . . . . . . .[2-s 19.1], [2-s 19.5] — v Fleming and Robinson (1989) Crim LR 658 . . . . . . . . . . . . . . . . . . . . .[11-185.5] — v Flemming [1989] Crim LR 71 . . .[11-230.10] — v Flesch and McKenzie (1986) 7 NSWLR 554 . . . . . . . . . . . . .[2-s 161.1], [2-s 161.10] — v Fong (NSWCCA, 29 November 1996, unreported) . . . . . . . . . . . . . .[10-s 3.30] — v Forbes (2005) 160 A Crim R 1 . . .[2-s 161.5] — v Forgione [1969] SASR 248 . . . . .[2-cl 21.5] — v Foster (1995) 78 A Crim R 517 . .[8-s 94.10], [8-s 97.5] — v — (2001) 33 MVR 565 . . . . . . . .[5-s 5.1] — v — (1992) 25 NSWLR 732 . . . . . .[5-s 23.1] — v Foulstone (NSWCCA, Hunt J, Wood J and Finlay J, 18 July 1990, BC9002230) . . . .[8-s 24.30] — v Fowler (2003) 151 A Crim R 166 . . . . .[2-s 161.15], [2-s 161.25], [2-s 161.35], [2-s 161.60], [2-s 161.62] — v Francis (2004) 145 A CrimR 233 .[2-s 222.25] — v Franklin (NSWCCA, Gleeson CJ, Handley JA and Studdert J, 60197/1989, 17 September 1990, BC9001999) . . . . . . . . . . . . . .[2-s 31.1] — v Franks [2005] NSWCCA 196; BC200503392 . . . . . . . . . . . . . . . . . . . .[5-s 21A.5] — v Fransisco and Dorain (NSWCCA, 24 August 1995, unreported) . . . . . . . . . . .[2-s 19.5] — v Fraser [2003] NSWSC 965; BC200306355 . . . . . . . . . . . . . . . . . . . .[2-s 151.5]

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TABLE OF CASES Frazer (2002) 128 A Crim R 89 . .[10-s 3.30] Fretwell (1864) L C 443 . . . . . . .[8-s 29.1] Friel (1890) 17 Cox CC 325 . . . .[2-s 193.5] Fuge (2001) 123 A Crim R 310 . .[8-s 94.15], [8-s 117.35] — v Fura [1954] 1 QB 503 . . . . . . .[11-125.25], [11-140.10] — v Fuschello [1940] 2 All ER 489 . .[8-s 188.15] — v Gadd [1911] QWN 31 . . . . . . .[8-s 117.15] — v Gaffney [1971] 1 NSWLR 511 .[8-s 310D.10] — v Galambos (1980) 2 A Crim R 388 . . . . .[2-s 161.30] — v Galea (1989) 46 A Crim R 158 . . .[8-s 112.5] — v Galey [1985] 1 NZLR 230 . . . . .[8-s 97.10] — v Gallagher (1989) 44 A Crim R 256 . . . .[2-cl 21.20] — v — [1986] VR 219; (1985) 16 A Crim R 215 . . . . . . . . . . . . . . . . . . .[8-s 249B.10] — v — (1991) 23 NSWLR 220; 53 A Crim R 248 . . . . . . . . . . . . . . . . . . . . .[5-s 23.1] — v Galvin (No 2) [1961] VR 740 .[8-s 58.45], [8-s 546C.5] — v Ganderton NSWCCA, 17 September 1998, unreported . . . . . . . . . . . . . .[2-s 207.1] — v GAR [2003] NSWCCA 224; BC200304769 . . . . . . . . . . . . . . . . . . . .[2-s 161.45] — v Gardenal-Williams [1989] TasR 62; (1989) 43 A Crim R 29 . . . . . . . . . . . . . .[8-s 22A.1] — v Garnet-Thomas [1974] 1 NSWLR 702 . . .[8-s 417A.1] — v Gavel (2014) 239 A Crim R 469 . .[5-s 3A.1], [5-s 21A.5] — v Gawell (2004) 150 A Crim R 376 .[10-s 6.10] — v GDR (1994) 35 NSWLR 376; 75 A Crim R 319 . . . . . . . . . . . . . . . . . . . .[5-s 44.10] — v GED (2003) 141 A Crim R 135 . .[2-s 161.40] — v Georgiadis [1984] VR 1030 . . . . .[2-s 32.5] — v Giang [2001] NSWCCA 276; BC200105020 . . . . . . . . . . . . . . . . . . . .[8-s 319.15] — v Gibbons (1862) XII CCC 100 . . .[8-s 327.10] — v Gibson (1989) 42 A Crim R 265 . . .[2-s 21.1] — v — [2002] NSWCCA 401; BC200205919 . . . . . . . . . . . . . . . . . . . . . .[7-485] — v Gidley [1984] 3 NSWLR 168 . . . . . .[7-405] — v Giffin [1971] Qd R 12 . . . . . . . .[2-s 160.1] — v Gilbert [1953] SASR 163 . . . . .[8-s 125.15] — v Gilham (2007) 190 A Crim R 303 . .[2-s 19.5] — v Gillan (1991) 100 ALR 66; 54 A Crim R 475 . . . . . . . . . . . . . . . . . . . . .[5-s 10.1] — v Gillard (1999) 105 A Crim R 479 .[8-s 61I.10] — v Gills [1986] 1 Qd R 459; (1986) 22 A Crim R 115 . . . . . . . . . . . . . . . . . .[5-s 55.1] — v Giorgi (1982) 7 A Crim R 305; [1983] ACLD 54 . . . . . . . . . . . . . . . . . . . .[10-s 3.10] — v GKA (1998) 99 A Crim R 491 . . . . .[7-105] — v GLB [2003] NSWCCA 210; BC200304634 — — — —

v v v v

. . . . . . . . . . . . . . . . . . . . .[5-s 22.5] — v GLC [2000] NSWCCA 99; BC200001596 .[2-s 21.15] — v Glencourse (1995) 78 A Crim R 256 . . . .[2-s 161.40] — v Glennon (1992) 173 CLR 592; 106 ALR 177; 66 ALJR 344 . . . . . . . . . . . . . . .[2-s 19.5] — v Glynn (1994) 33 NSWLR 139; 71 A Crim R 537 . . . . . . . . . . . . . . . . . . . . .[2-s 17.5] — v Goldburg (NSWCCA, 23 February 1993, BC9302038) . . . . . . .[2-s 19.5], [2-s 192.5] — v Goldie; Ex parte Picklum (1937) 59 CLR 254; [1938] ALR 25 . . . . . . . . . . .[8-s 351B.5] — v Gommeson [2014] NSWCCA 159 . .[5-s 55.1] — v Goodman (NSWCCA, Hunt CJ at CL, Allen and Badgery-Parker JJ, 10 December 1991, unreported) . . . . . . . . . . . . .[8-s 52A.15] — v Gorman (2002) 137 A Crim R 326 . .[5-s 55.1] — v Gosling [2002] NSWCCA 351; BC200205009 . . . . . . . . . . . . . . . . . . . .[8-s 18.10] — v Gover (2000) 118 A Crim R 8 . . .[2-s 289.1] — v GPP (2001) 129 A Crim R 1 . . . . . .[7-640] — v Grace (1930) 30 SR (NSW) 158; 47 WN (NSW) 51 . . . . . . . . . . . . . . . . .[8-s 527C.10] — v Grant (2002) 55 NSWLR 80; 131 A Crim R 510 . . . . . . .[8-s 18.5], [8-s 18.30], [8-s 428B.1] — v Grassby (1988) 15 NSWLR 109 . . . .[7-001] — v Gray [2018] NSWCCA 241; BC201810001 . . . . . . . . . . . . . . . . . . . . .[5-s 47.1] — v Grbin [2004] NSWCCA 220; BC200404068 . . . . . . . . . . . . . . . . . . . . .[5-s 22.5] — v Greatorex (1994) 74 A Crim R 496 . . . .[2-s 161.1], [10-s 25.1] — v Grech (NSWCCA 11 December 1998, unreported) . . . . . . . . . . . . .[8-s 61I.65] — v Greenfield (1973) 57 Cr App R 849; [1973] 1 WLR 1151 . . . . . . . .[2-s 17.1], [2-cl 21.5] — v Greenham [1999] NSWCCA 8; BC9900796 . . . . . . . . . . . . . . . . . . . .[2-s 161.45] — v Greer (1992) 62 A Crim R 442 . . . .[2-s 36.1] — v Gregory (1867) LR 1 CCR 77 . . .[8-s 117.35] — v — [1983] 3 NSWLR 172 . . . .[8-s 310D.15] — v Grooms (NSWCCA, 9 October 1989, unreported) . . . . . . . . . . . . . . .[8-s 7.1] — v Grubbe [2005] NSWCCA 140; BC200502037 . . . . . . . . . . . . . . . . . . . . .[5-s 33.1] — v Guerin [1967] 1 NSWR 255 . . . .[2-s 161.30] — v Guldur (1986) 8 NSWLR 12; 25 A Crim R 271 . . . . . . . . . . . . . . . . . . . .[2-s 21.15] — v Gulliford (2004) 148 A Crim R 558 . . . .[2-s 161.20], [8-s 61I.48], [8-s 112.5] — v GW (2016) 328 ALR 583; 90 ALJR 407 .[2-s 161.40] — v GWM [2012] NSWCCA 240; BC201209125 . . . . . . . . . . . . . . . . . . .[5-s 21A.15] — v H (1980) 3 A Crim R 53 . . . . . . .[5-s 21.1]

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ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020 — v Haas (NSWCCA, 30 June 1972, unreported) . . . . . . . . . . . . . . . . . . . . .[2-s 23.5] — v Hain (1966) 85 WN (Pt 1) (NSW) 7 . . . .[8-s 52A.15] — v Hakim (1989) 41 A Crim R 372 . . .[2-s 19.5] — v Haley (1959) 76 WN (NSW) 550 . .[8-s 29.1] — v Hall (NSWCCA,Gleeson CJ, Grove and Abadee JJ, 60326/1992, 28 September 1995, BC9501747) . . . . . . . . . . . . .[8-s 94.20] — v — (1903) 3 SR (NSW) 307; (1903) 20 WN (NSW) 74 . . . . . . . . . . . . .[8-s 126.10] — v Hallett [1969] SASR 141 . . . . . .[8-s 18.15] — v Hallocoglu (1992) 29 NSWLR 67 . . . . .[8-s 52A.45] — v Halmi (2005) 62 NSWLR 263; 156 A Crim R 150 . . . . . . . . . . .[2-s 16.40], [2-s 126.1] — v — [1999] NSWCCA 354; BC9907457 . . .[2-s 19.5] — v Hamid (2006) 164 A Crim R 179 . .[8-5135.1] — v Hamilton (1993) 66 A Crim R 575; 10 Petty SR 4551 . . . . .[8-s 4.5], [8-s 33B.3], [8-s 33B.5] — v Hammoud (2000) 118 A Crim R 66 .[5-s 55.1] — v Hampton (1998) 44 NSWLR 729; 101 A Crim R 399 . . . . . . . . . . . . . . . . . .[5-s 44.10] — v Hands (1887) 16 Cox CC 188 . . .[8-s 117.20] — v Hann (1883) SALR 119 . . .[8-s 125.20], [8-s 125.25] — v Hannes (2000) 36 ACSR 72; 158 FLR 359 . . . . . . . . . . . . . . . . . . . .[2-s 161.35] — v Harkins (1958) VR 543; [1958] ALR 461 .[2-s 14.1] — v Harley (1830) 4 C P 369 . . . . . . .[8-s 27.1] — v Harmouche (2005) 158 A Crim R 357 . . .[5-s 22.5] — v Harran [1969] Crim LR 662 . . . .[8-s 114.10] — v Harris (1988) 17 NSWLR 158 . . .[8-s 61H.1] — v — [1961] Crim LR 256 . . .[8-s 114.10], [10-s 10.35] — v — (1968) 52 Cr App R 277 . . . . .[10-s 3.30] — v — (2001) 125 A Crim R 27 . . . . .[5-s 33.1] — v — (2000) 50 NSWLR 409; 121 A Crim R 342 . . . . . . . . . . . . . .[5-s 44.10], [5-s 61.1] — v Harrison (1995) 79 A Crim R 149 .[2-cl 21.5] — v Hartikainen (NSWCCA, Gleeson CJ, Meagher JA, Newman J, 8 June 1993, BC9301848) .[8-s 61I.65] — v Hartley [1972] 2 QB 1 . . . . . . .[2-s 16.15] — v Harvey (NSWCCA, 3 October 1985, unreported) . . . . . . . . . . . . . . . . . . .[8-s 52A.45] — v Hass (1986) 22 A Crim R 299 . . . . .[7-525] — v Hassan [1971] 1 QB 423 . . . . . .[2-s 150.1] — v Hawes (1994) 35 NSWLR 294 . . .[8-s 58.20] — v Hawi (No 18) [2011] NSWSC 1664 . . . .[8-s 93B.30] — v Hay [1968] Qd R 459 . . . . . . . .[2-s 160.1] — v Hayden (CCA(NSW), 14 July 1993, unreported)

. . . . . . . . . . . . . . . . . . . .[2-s 161.55] — v Haywood (1994) 73 A Crim R 41 .[8-s 61I.45] — v Heinrich (1992) 15 MVR 225; 61 A Crim R 212 . . . . . . . . . . . . . . . . . . .[8-s 52A.45] — v Helmhout (2000) 112 A Crim R 10 . . . .[21-s 112.1] — v Helmling (NSWCCA, 11 November 1993, unreported) . . . . . . . . . . . . .[8-s 52A.5] — v Hemsley (1988) 36 A Crim R 334 .[8-s 61I.5] — v Hendricks [2011] NSWCCA 203; BC201106989 . . . . . . . . . . . . . . . . . . . .[8-s 61I.65] — v Hennah (1877) 13 Cox CC 547 . . .[8-s 39.5] — v Hennessy [2001] NSWCCA 36; BC200100544 . . . . . . . . . . . . . . . . . . . . .[8-s 97.5] — v Hennigan [1971] 3 All ER 133 . . .[8-s 18.15], [8-s 18.50] — v Henning (NSWCCA, 11 May 1990, BC9002977) . . . . . . . . . . . . . . . . . . . .[2-s 293.1] — v — (NSWCCA, Gleeson CJ, Campbell and Mathews JJ, 11 May 1990, BC9002977) . .[8-s 61I.5] — v Henry (1999) 46 NSWLR 346; 106 A Crim R 149 . . .[5-s 37.1], [5-s 42.1], [8-s 97.20], [8-s 98.20] — v — [2007] NSWCCA 90; BC200702210 . .[8-s 98.20] — v — (1992) 28 NSWLR 348 . . . . . .[5-s 23.1] — v Hetherington [2016] NSWCCA 165; BC201607030 . . . . . . . . . . . .[8-s 97.20] — v Heuston (1996) 90 A Crim R 213 .[2-s 150.1], [2-s 150.5], [7-485] — v — (1995) 81 A Crim R 387 . . . .[2-s 161.55] — v Heyde (1990) 20 NSWLR 234 . .[2-s 161.62] — v Hibberd [2009] NSWCCA 20; BC200901464 . . . . . . . . . . . . . . . . . . .[8-s 66A.40] — v Hildebrandt (1963) 81 WN (NSW) 143 . .[2-s 193.5] — v Hill [1988] 1 Qd R 654 . . . . . .[2-s 161.25] — v — (1981) 3 A Crim R 397 . . . . .[8-s 24.30] — v Hill; R v Churchman [1914] 2 KB 386 . . . . . . . . . . . . . . . . . . . .[11-380.10] — v Hillier (2007) 228 CLR 618; 233 ALR 634 . . . . . . . . . . . . . . . . . . . .[2-s 161.15] — v Hillsley (2006) 164 A Crim R 252 .[8-s 19A.5] — v Hilton (1987) 7 NSWLR 745 . . . .[9-s 1.10] — v Hinds (1957) 41 Cr App Rep 143 . . . . .[8-s 310D.3], [8-s 310D.25] — v Hinton (1976) Petty SR 1749 . . .[10-s 10.5], [10-s 10.40] — v Hird [2017] NSWSC 1400; BC201708566 .[9-s 74.5] — v Ho (2002) 130 A Crim R 545 . . .[2-s 161.10] — v — (NSWCCA, 11 February 1988, unreported) . . . . . . . . . . . . . . . . . . . .[2-cl 21.20] — v — (1989) 39 A Crim R 145 . . .[8-s 192B.15], [8-s 192E.20]

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TABLE OF CASES — v Hoar (1981) 148 CLR 32; 37 ALR 357 . .[2-cl 21.5], [2-cl 21.20], [5-s 21.1] — v Hodge (1993-4) 1 NSWCR 61 . . .[8-s 97.20] — v Hodges [1957] 41 Cr App R 218 .[8-s 114.10] — v Hoerler (2004) 147 A Crim R 520 .[8-s 19A.1], [8-s 24.30] — v Hofschuster (1993) 70 A Crim R 260 .[7-105] — v Holden [1974] 2 NSWLR 548 . . .[2-s 161.30] — v Holder [1983] 3 NSWLR 245; (1983) 13 A Crim R 375 . . . . . . . . . . . . . . . . .[5-s 55.1] — v Hollis (1873) 12 Cox CC 463 . . . .[8-s 27.1] — v Holmes [2003] NSWCCA 258; BC200305376 . . . . . . . . . . . . . . . . . . . .[5-s 44.15] — v Holton (2004) 41 MVR 89 . . . .[8-s 52AA.1] — v Holzer [1968] VR 481 .[8-s 18.55], [8-s 18.60] — v Hopton (NSWCCA, Spigelman CJ, Abadee and Ireland JJ, 8 October 1998, BC9805510) .[8-s 52A.15] — v Hornby (NSWCCA, 3 March 1985, unreported) . . . . . . . . . . . . . . . . . . .[8-s 310D.35] — v Horsington and Bortolus [1983] 2 NSWLR 72 . . . . . . . . . . . . . . . . . . . .[2-cl 21.15] — v Horton (1998) 45 NSWLR 426; 104 A Crim R 306 . . . . . . . . . . . . . . . . . .[2-s 281.1] — v Horvath [1972] VR 533 . . . . . .[8-s 52A.35] — v — (NSWCCA, 6 February 1986, BC8601273) . . . . . . . . . . . . . . . . . . . .[8-s 61I.65] — v House [2005] NSWCCA 88; BC200501960 . . . . . . . . . . . . . . . . . . . .[5-s 21A.1] — v Houssein (1980) 70 Cr App R 267 .[2-s 161.5] — v Howard (1992) 29 NSWLR 242 . .[7-100], [7105], [7-150] — v Howars [1993] Crim L R 213 . . . .[8-s 28.1] — v Howe [1987] AC 417; [1987] 1 All ER 771 . . . . . . . . . . . . . . . . . . . .[8-s 117.35] — v Howes (2000) 2 VR 141; 116 A Crim R 249 . . . . . . . . . . . . . . . . . . .[8-s 61H.10] — v Hua [2002] NSWCCA 384; BC200205679 . . . . . . . . . . . . . . . . . . . .[8-s 94.20] — v Huang [2010] NSWCCA 68; BC201002330 . . . . . . . . . . . . . . . . . . . . .[5-s 22.5] — v Hudd (NSWCCA, Carruthers, Newman and Dowd JJ, 60800/1993, 9 December 1994, BC9403564) . . . . . . . . . . . .[2-s 161.40] — v Hudson (NSWCCA, 24 May 1995, unreported) . . . . . . . . . . . . . . . . . . . .[10-s 29.20] — v Hughes & Curtis (1983) 49 ALR 110; 10 A Crim R 125 . . . . . . . .[10-s 29.10], [10-s 29.15] — v Hull (1989) 16 NSWLR 385; 41 A Crim R 262 . . . . . . . . . . . . . . .[2-s 8.1], [2-s 8.10] — v Humphries (1997) 98 A Crim R 233 . . . .[8-s 208.10] — v Hunt [1999] NSWCCA 375; BC9907764 .[2-s 117.5], [2-s 214.5] — v Hunter (NSWCCA, 12 August 1992, unreported) . . . . . . . . . . . . . . . . . . . .[8-s 61I.65]

— v Hura (2001) 121 A Crim R 472 . .[2-s 157.1], [2-s 207.1] — v Hussey (1924) 18 Cr App R 121 . .[8-s 58.30] — v Hutchinson [2018] NSWCCA 152; BC201807221 . . . . . . . . . . . .[8-s 91H.1] — v Hutty [1953] VLR 338; [1953] ALR 689; ALR 689 . . . . . . . . . . .[8-s 20.1], [8-s 22A.1] — v Huynh (NSWCCA, Gleeson CJ, Levine and Dowd JJ 13 May 1996, BC9601945) . . .[10-s 25.45] — v Ibrahimi [2005] NSWCCA 153; BC200502338 . . . . . . . . . . . . .[5-s 21A.1], [5-s 21A.5] — v Iby (2005) 63 NSWLR 278; 45 MVR 1 . .[8-s 18.65], [8-s 20.1] — v IL [2016] NSWCCA 51; BC201602329 . .[8-s 18.1], [8-s 18.20] — v Ingivald (NSWCCA, Gleeson CJ, Lee CJ and Campbell J, 60101/1986, 14 April 1989, BC8902289) . . . . . . . . . . . . . .[2-s 23.5] — v Ingrassia (1997) 41 NSWLR 447; 91 A Crim R 383 . . . . . . . . . . . . . . . . . .[5-s 10.5] — v Inwood [1973] 2 All ER 645 . . . .[21-s 99.5] — v Ion (1996) 89 A Crim R 81 . . . . .[2-s 132.1] — v Isaacs (1997) 41 NSWLR 374 . . .[8-s 18.62], [8-s 24.30] — v Itamua [2000] NSWCCA 502; BC200007658 . . . . . . . . . . . . . . . . . . . . .[5-s 55.1] — v Jackson (1890) 17 Cox CC 104 . . .[8-s 29.1] — v — (1864) 9 Cox CC 505 . . . . .[8-s 125.20] — v — [2004] NSWCCA 110; BC200402093 .[10-s 25A.1] — v Jacobs (2004) 151 A Crim R 452 .[8-s 18.110] — v Jamal (2008) 72 NSWLR 258 . . . .[2-s 30.1] — v — (1993) 69 A Crim R 544 . . . .[8-s 61I.45] — v Jameson [1896] 2 QB 425 . . . . . . .[7-160] — v Janceski (2005) 64 NSWLR 10; 223 ALR 580 . .[2-s 8.1], [2-s 8.10], [2-s 16.40], [2-s 17.0], [2-s 126.1], [2-s 130.1], [7-150], [8-s 52A.45] — v Janceski (No 2) (2005) 44 MVR 328 . . .[5-s 55.1] — v Jarrold (1863) Leigh Cave 301 . . .[8-s 111.5] — v Jasper (2003) 139 A Crim R 329 . .[10-s 3.80] — v JCE (2000) 120 A Crim R 18 . . . . .[5-s 5.1] — v JDB (2005) 153 A Crim R 164 . . .[5-s 21A.5] — v Jell; Ex parte A-G [1991] 1 Qd R 48; 46 A Crim R 161 . . . . . . . . . . . . . . . . . .[7-105] — v Jenkins (1877) Knox 295 . . . . . .[8-s 35.65] — v Jenkyns (1993) 32 NSWLR 712 . .[8-s 61I.45] — v Jeremiah [2016] NSWCCA 241; BC201609289 . . . . . . . . . . . . . . . . . . . . .[5-s 56.1] — v Jimenez (2000) 119 A Crim R 299 . . . .[21-s 49.45] — v Jione [2007] NSWCCA 170; BC200704860 . . . . . . . . . . . . . . . . . . . .[8-s 33.20] — v JMR (1991) 57 A Crim R 39 . . . . . .[7-525] — v Johal [1973] 1 QB 475; (1972) 56 Cr App R 348

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ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020 . . . . . . . . . . . . . . . . . . . . .[2-s 21.1] — v John [1974] 1 WLR 624 . . . . . .[11-125.25] — v Johnson [1945] KB 419 . . . . . . .[2-s 16.1] — v — (NSWCCA, Gleeson CJ, Clarke AJA and Studdert J, 60262/1989, 3 July 1990, BC9002976) . . . . . . . . . . . . . .[2-s 23.5] — v — (1786) 2 East PC 448 . . . . . .[8-s 112.5] — v — [2005] NSWCCA 186; BC200503397 .[5-s 21A.1] — v — [2004] NSWCCA 76; BC200402002 . .[5-s 21A.5] — v — (1979) 22 SASR 161; 4 ACLR 80 .[7-475] — v Johnson (No 4) [2017] NSWSC 609; BC201703781 . . . . . . . . . . .[8-s 25A.15] — v Johnstone [2004] NSWCCA 307; BC200405937 . . . . . . . . . . . . . . . . . . . . .[5-s 22.5] — v Jolly [1982] VR 46 . . . . . . . . . .[5-s 55.1] — v Jones (1974) 59 Cr App R 120 . . .[2-s 17.1], [2-cl 21.5] — v — (1986) 22 A Crim R 42 . . . . .[8-s 23A.1] — v — (1839) 9 C P 258 . . . . . . . . .[8-s 27.15] — v — (1995) 78 A Crim R 504 . . . . .[8-s 58.20] — v — (NSWCCA, Lee, Roden and Newman JJ, 441/1987, June 1988, BC8801835) . . . . .[8-s 327.10] — v — (NSWCCA, Carruthers J, Abadee J, Blanch J, 60630/1993, 14 April 1994, BC9402488) . . . . . . . . . . . . . . . . . . . . . .[7-170] — v Jordan (1956) 40 Cr App R 152 . .[8-s 18.15] — v Jorgic (1963) 80 WN (NSW) 761 .[2-s 161.10] — v Jovanovic (1997) 98 A Crim R 1 .[2-s 161.10] — v Joyce [1968] NZLR 1070 . . . . . .[8-s 97.10] — v JTAC [2005] NSWCCA 345, . . . .[5-s 21A.5] — v Jurisic (1998) 45 NSWLR 209; 101 A Crim R 259; 29 MVR 49 . . .[5-s 37.1], [8-s 52A.45] — v Justelius [1973] 1 NSWLR 471 . . .[2-s 16.35] — v Kain (1985) 38 SASR 309 . . . . . .[5-s 55.1] — v Kalache (2000) 111 A Crim R 152 .[5-s 22.5], [5-s 23.1] — v Kalazich (1997) 94 A Crim R 41 . .[5-s 61.1] — v Kaliti (2001) 34 MVR 160 . . . . .[5-s 44.15] — v Kama (2000) 110 A Crim R 47 . . .[5-s 44.15] — v Kanaan (2005) 64 NSWLR 527; 157 A Crim R 238 . . . . . . . . . . . . . . . . .[2-s 161.30] — v — [2003] NSWCCA 396; BC200308057 .[8-s 93G.15] — v Kane (2004) 144 A Crim R 496 . .[21-1010.3] — v Karageorge [1999] NSWCCA 213; BC9904370 . . . . . . . . . . . . . . . . . . . . .[5-s 24.1] — v Kastratovic (1985) 42 SASR 59; 19 A Crim R 28 . . . . . . . . . . . . . . . . . . . .[8-s 117.35] — v Katarzynski [2002] NSWSC 613; BC200203724 . . . . . . . . . . . . . . . . . . . .[8-s 418.1] — v Kawicki (1995) 82 A Crim R 191 . . . . .[8-s 310G.5] — v Kayrouz (NSWCCA, 6 July 1979, unreported)

. . . . . . . . . . . . . .[8-s 7.1], [10-s 10.25] — v Keenan (2009) 236 CLR 397; 252 ALR 198 . . . . . . . . . . . . . . . . . . . .[2-s 161.15] — v — (1994) 76 A Crim R 374 . . . .[8-s 545B.5] — v Kelly (1993) 113 ALR 535; 30 NSWLR 64 . . . . . . . . . . . . . . . . . . . . .[5-s 23.1] — v Kendrick (1931) 144 LT 748; 23 Cr App Rep 1 . . . . . . . . . . . . . . . . . . . .[2-s 193.5] — v Kennedy (1997) 94 A Crim R 341 .[2-s 8.10], [2-s 36.1], [7-220] — v — (2000) 118 A Crim R 34 . . . . .[2-s 16.15] — v Kennedy (No 2) [2008] 1 AC 269; [2007] 4 All ER 1083; [2007] 3 WLR 612 . . . .[8-s 18.55] — v Kenney [1983] 2 VR 470 . . . . . . .[8-s 23.3] — v Kent-Newbold (1939) 62 CLR 398 . . .[7-160] — v Kenworthy (NSWCCA, Grove, Newman, Dunford JJ, 3 August 1995, unreported) . .[5-s 44.15] — v Kerekes [1951] 70 WN(NSW) 102 .[2-s 21.15] — v Kern [1986] 2 Qd R 209; (1985) 18 A Crim R 191 . . . . . . . . . . . . . . . . . . . .[7-575] — v Keur (1973) 7 SASR 13; 2 ALR 237 . . .[2-s 17.1], [5-s 10.5] — v Khoo (2013) 97 ACSR 1 . . . . . . .[9-s 22.5] — v Khouzame (1999) 108 A Crim R 170 . . .[8-s 61I.7] — v Kilby (No 1) [1970] 1 NSWR 158 . .[2-s 31.1] — v Kilic (2016) 339 ALR 229; 91 ALJR 131 .[5-s 21.1] — v Kinash (1981) 5 A Crim R 240 . . .[8-s 18.15] — v Kindon (1957) 41 Cr App R 208 .[8-s 117.20] — v King [2013] NSWSC 448; BC201302092 .[2-s 132.1] — v — [2000] NSWCCA 507; BC200007789 .[2-s 161.40] — v — (2004) 59 NSWLR 515; 144 A Crim R 405 . . . . . . . . . . . . . . . . . . . .[2-s 162.1] — v — (2003) 59 NSWLR 472; 139 A Crim R 132 . . . . . . . . . . . . . . .[8-s 4.1], [8-s 33.1] — v — [2009] NSWCCA 117; BC200903121 .[8-s 61I.65], [8-s 66A.40] — v — [1987] QB 547 . . . . .[8-s 192B.15], [8-s 192E.20] — v — [1978] Crim LR 228 . . . . . . .[10-s 3.30] — v — (2004) 150 A Crim R 409 . . . .[5-s 21A.5] — v Kinghorne (1982) 8 A Crim R 41 .[8-s 52A.5], [8-s 52A.10] — v Kipic [2004] NSWCCA 452; BC200408651 . . . . . . . . . . . . . . . . . . . . .[5-s 22.5] — v Kirby [2000] NSWCCA 330; BC200006176 . . . . . . . . . . . . . . . . . . . .[2-s 161.40] — v Kirkwood [1982] Qd R 158 . . . . .[10-s 3.10] — v Kitchener (1993) 29 NSWLR 696 .[8-s 61I.5] — v Kite (1992) 60 A Crim R 226 . . . .[2-s 19.5] — v Kneebone (1999) 47 NSWLR 450 . . .[7-485] — v Knight (1988) 35 A Crim R 314 . . .[8-s 58.5]

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TABLE OF CASES — v — (2001) 160 FLR 465; 120 A Crim R 381 . . . . . . . . . . . . . . . . . . . .[21-s 133.3] — v Knight; R v Biuvanua (2007) 176 A Crim R 338 . . . . . . . . . . . . . . . . . . . . .[5-s 22.5] — v KNL (2005) 154 A Crim R 268 . . .[5-s 10.1] — v Kolalich (NSWCCA, Cole JA, Allen and Sperling JJ, 60641/1993, 9 October 1995, BC9505504) . . . . . . . . . . . . . . .[7-805] — v Komornick [1986] VR 845; (1984) 14 A Crim R 256 . . . . . . . . . . . . . . . . . . . .[7-485] — v Koolmatrie (1989) 52 SASR 482 . .[2-s 19.5] — v Koosmen (2004) 42 MVR 123 . .[8-s 52A.45] — v Kouroumalos [2000] NSWCCA 453; BC200006730 . . . . . . . . . . . .[10-s 6.10] — v Kovacs [1974] 1 All ER 1236; (1974) 138 JP 425; (1973) 58 Cr App Rep 412 . . . . . .[8-s 192B.15], [8-s 192D.5], [8-s 192E.20] — v Krause (1902) 18 TLR 238; 66 JP 121 . . .[8-s 26.25] — v Kringle [1953] Tas SR 52 . . . . . .[2-s 16.15] — v Kyroglou [1999] NSWCCA 106; BC9902349 . . . . . . . . . . . . . . . . . . . .[10-s 25.25] — v Lackey [1954] Crim LR 57 . . . . .[8-s 112.5] — v Ladue (1965) 51 WWR 175; [1965] 4 Can Crim R 264 . . . . . . . . . . . . . . . .[8-s 81C.5] — v Lago [2014] NSWSC 660; BC201403986 .[9-s 19.10] — v Lai (1989) 42 A Crim R 460 . . .[10-s 10.25] — v Lamb (1967) 51 Cr App R 417 . . .[8-s 18.55] — v — [2002] NSWSC 357; BC200203802 . .[21-s 112.1] — v Lambert (1976) 65 Cr App Rep 12 .[8-s 58.5] — v Lameri and Cohen [2004] NSWCCA 217; BC200404129 . . . . . . . . .[7-225], [7-450] — v Lane [2011] NSWCCA 157; BC201105360 . . . . . . . . . . . . . . . . . . . .[2-s 161.62] — v Lang [1965] NSWR 1313 . . . . . .[2-s 31.1] — v Langham (1984) 36 SASR 48; 12 A Crim R 391 . . . . . . . . . . . . .[8-s 94.15], [8-s 117.35] — v Lanteri (1985) 4 NSWLR 359 .[2-cl 21.5], [8-s 351.15] — v Lardner (NSWCCA, 10 September 1998, BC9804715) . . . . . . .[8-s 58.5], [8-s 59.5] — v Larkin [1943] 1 All ER 217 . . . . .[8-s 18.55] — v Lars aka Larsson (1994) 73 A Crim R 91 .[2-s 21.1], [2-s 154.5] — v Lattouf (1980) 2 A Crim R 65 . . .[2-s 150.1] — v Lau (1998) 105 A Crim R 167 . .[10-s 10.15] — v Lavelle (1987) 2 Crim LJ 105 . .[8-s 527C.10] — v Lavender (2005) 222 CLR 67; 218 ALR 521 . . . . . . . . . . . . .[8-s 18.40], [8-s 18.50] — v Lawrence [1981] 1 All ER 974; (1981) 73 Cr App R 1 . . . . . . . . . . . . . . .[2-s 161.1] — v — [1980] 1 NSWLR 122; (1980) 32 ALR 72 . . . . . . . . . . . . .[2-s 161.30], [5-s 21.1]

— v Le [2000] NSWCCA 49; BC200001004 . .[8-s 61I.10] — v — (2005) 151 A Crim R 564 . . .[21-s 99.10] — v Le Boursicot (1994) 79 A Crim R 548 . . .[2-s 118.1], [2-s 216.1] — v Leahy [2004] NSWCCA 148; BC200402757 . . . . . . . . . . . . . . . . . . . . .[5-s 11.1] — v Lean and Aland (1993) 66 A Crim R 296 .[8-s 58.20] — v Lee (1994) 76 A Crim R 271 . . .[10-s 33.10] — v Leete (2001) 125 A Crim R 37 .[5-s 24.1], [5-s 51.1] — v Lemene (2001) 118 A Crim R 131 . .[5-s 33.1] — v Lenard (1992) 57 SASR 164; 58 A Crim R 123 . . . . . . . . . . . . . . . . . . . .[8-s 117.35] — v Leoni [1999] NSWCCA 14; BC9900970 . .[8-s 97.10] — v Lester; R v Byast (1955) 30 Cr App R 157 . . . . . . . . . . . . . . . . . . . .[8-s 114.10] — v Lewis [1969] 2 QB 1 . . . . . . . .[2-s 150.1] — v — [2001] NSWCCA 448; BC200106902 .[8-s 19A.1] — v — (1833) 9 C P 523 . . . . . . . . .[8-s 29.1] — v — (1914) 10 Tas LR 48 . . . . . .[8-s 327.10] — v Lewis-Hamilton [1998] 1 VR 630; (1997) 92 A Crim R 532 . . . . . . . . . . . . . . .[7-485] — v Li (2003) 140 A Crim R 288 . . . .[2-s 285.1] — v — (NSWCCA, Abadee and Studdert JJ, 9 July 1997, BC9703285) .[8-s 61J.2], [8-s 95.2], [8-s 97.2], [8-s 105A.1] — v Liberti (1991) 55 A Crim R 120 . .[2-s 207.1] — v Lineham [1921] VLR 582; 27 ALR 348 . .[8-s 327.15] — v Liristis (2004) 146 A Crim R 547 .[7-600], [8-s 327.5] — v Lister (1955) 72 WN (NSW) 491 . .[2-s 16.35] — v Littler (2001) 120 A Crim R 512 . . .[2-s 19.5] — v Livingstone (2004) 150 A Crim R 117 . . .[2-s 142.5] — v Lloyd [1967] 1 QB 175 . . . . . . .[8-s 23A.1] — v — [1985] 3 WLR 30 . . . . . . . .[8-s 117.15] — v Lo [2003] NSWCCA 313; BC200306668 .[5-s 22.5], [5-s 23.1] — v Locchi (1991) 22 NSWLR 309 . . .[10-s 3.70], [10-s 25.1] — v Lolesio [2014] NSWCCA 219; BC201408696 . . . . . . . . . . . . . . . . . . . .[5-s 53A.5] — v Longbottom (1849) 3 Cox CC 439 .[8-s 18.50] — v Longshaw (1990) 20 NSWLR 554; (1990) 50 A Crim R 401 . . . . . . . . . . . . . . .[1-001] — v Lopatta (1983) 35 SASR 101 . . .[8-s 112.15], [8-s 117.35] — v Love (1989) 17 NSWLR 608 . . .[8-s 117.35] — v Loveridge [2014] NSWCCA 120; BC201405292 . . . . . . . . . . . . . . . . . . . .[8-s 24.30] — v Lowe (2003) 57 NSWLR 102; 139 A Crim R 240

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ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020 — v — [1933] 1 KB 529 . . . . . . . . .[8-s 319.5] — v Mansfield (NSWCCA, 17 February 1991, unreported) . . . . . . . . . . . . . .[2-s 31.1] — v Mansour (1999) 29 MVR 409 . .[8-s 52A.45] — v Manton (2002) 132 A Crim R 249 . .[8-s 60.5] — v Manwaring [1983] 2 NSWLR 82; 12 A Crim R 253 . . . . . . . . . . . . . . . . . .[2-s 16.25] — v Marchione (2002) 128 A Crim R 574 . . .[10-s 6.10] — v Marcus [2016] NSWCCA 237; BC201609121 . . . . . . . . . . . . . .[9-s 16A.5], [9-s 67.1] — v — [1981] 2 All ER 833 . . . .[8-s 39.10], [8-s 41.10] — v Marie (1983) 13 A Crim R 440 . .[2-cl 21.20], [10-s 25.25] — v Markby (1978) 140 CLR 108; 21 ALR 448 . . . . . . . . . . . . . . . . . . . .[2-s 161.20] — v Markuleski (2001) 52 NSWLR 82; 125 A Crim R 186 . . . . . . . . . . . . . . . . .[2-s 161.45] — v Marshall (NSWCCA, 15 October 1990, unreported) . . . . . . . . . . . . . .[2-s 150.5] — v — (1987) 49 SASR 133 . . . . . . .[8-s 29.1] — v Marsham; Ex parte Pethick Lawrence [1912] 2 KB 362; [1911–13] All ER Rep 639 . . . .[2-s 193.5], [2-s 202.10] — v Martin (1904) 4 SR (NSW) 720; 21 WN (NSW) 233 . . . . . . . . . . . . . . . . . .[2-s 193.1] — v — (1984) 51 ALR 540; 16 A Crim R 87 .[8-s 18.55] — v — [2005] NSWCCA 190; BC200503395 .[5-s 21A.1], [5-s 21A.5], [5-s 44.15] — v Martindale [1986] 3 All ER 31 . . . .[8-s 7.1] — v Maslen (1995) 79 A Crim R 199 . . . . . .[8-s 192G.20] — v Mason (1820) 168 ER 876 . . . . .[8-s 94.10] — v Masters (1992) 26 NSWLR 450; 59 A Crim R 445 . . . . . . . . . . . . . . . . . .[2-s 21.20] — v Matthews (1950) 34 Cr App R 55 .[8-s 117.30] — v Mayberry [2000] NSWCCA 531; BC200007665 . . . . . . . . . . . . . . . . . . . .[2-s 161.45] — v McAuliffe (1993) 70 A Crim R 303 . . . .[8-s 18.15] — v McBride [1962] 2 QB 167 . . . .[8-s 52A.15] — v McCallum (NSWCCA, Priestley JA, Smart and Ireland JJ, 60715/93, 13 April 1995, unreported) . . . . . . . . . . . . . . . . . . . .[2-s 161.35] — v McConnell [1977] 1 NSWLR 715 .[2-s 21.10] — v — (1993) 69 A Crim R 39 . . . . .[8-s 188.15] — v McCormack [2015] NSWCCA 221; BC201507788 . . . . . . . . . . . .[9-s 16A.5] — v — [1981] VR 104 . . . . . . . . .[8-s 93B.15] — v McCoy (2001) 51 NSWLR 702 . . .[10-s 6.10] — v McCready (1985) 20 A Crim R 32 .[2-cl 21.5] — v McDonald [1980] 2 NZLR 102; [1983] NZLR 252 . . . . . . . . . . . . . . . . . .[2-s 32.5] — v — [1984] 1 NSWLR 428 . . . . .[2-s 161.10]

. . . . . . . . . . . . .[8-s 311.1], [8-s 322.10] — v LRS [2001] NSWCCA 338; BC200105260 . . . . . . . . . . . . . . . . . . . . . .[5-s 5.1] — v Lucas (1970) 120 CLR 171; [1970] ALR 835 . . . . . . . . . . . . . . . . . . . .[2-s 161.20] — v Ludlow [1971] AC 29; [1970] 1 All ER 567 . . . . . . . . . . . . . . . . . . . . .[2-s 21.5] — v Lulham [2016] NSWCCA 287; BC201610564 . . . . . . . . . . . . .[5-s 21A.5], [5-s 44.10] — v Lumsden [1951] 2 KB 513; [1951] 1 All ER 1101 . . . . . . . . . . . . . . . . . . . .[8-s 112.5] — v Lun (1932) 32 SR (NSW) 363 . . .[8-s 117.35] — v Lusher [1976] 1 NSWLR 227 . . . . .[7-805] — v Lykouras [2005] NSWCCA 8; BC200500707 . . . . . . .[2-s 16.10], [2-s 21.5], [2-s 21.15] — v Lynch [1979] 2 NSWLR 775; (1979) 1 A Crim R 117 . . . . . . . . . . . . . . . . . .[2-s 285.1] — v M [1980] 2 NSWLR 195; (1979) 4 ACLR 610 . . . . . . . . . . . . . . . . . . .[8-s 192G.25] — v — [1991] 2 Qd R 68 . . . . . . . . . .[7-475] — v MA [2001] NSWCCA 30; BC200100796 .[5-s 28.1], [5-s 30.1] — v MacDonald [1983] AC 252 . . . . . .[2-s 32.5] — v — (2000) 110 A Crim R 238 .[2-s 154.1], [2-s 167.1], [7-165] — v Macdonald (NSWCCA, Gleeson CJ, Kirby P and Hunt CJ, 12 December 1995, BC9501664) . . . . . . . . . . . . . .[5-s 24.1], [8-s 24.30] — v MacDonald [1983] 1 NSWLR 729 . . . . .[8-s 117.25] — v Macdonald; R v Maitland [2017] NSWSC 638; BC201704214 . . . . . . . . . . . .[5-s 24C.1] — v MacDonnell (2002) 128 A Crim R 44 . . .[5-s 23.1], [10-s 25.25] — v MacIntyre (1988) 38 A Crim R 135 . . . .[8-s 52A.45] — v MacKenzie (1995) 82 A Crim R 473 . . . .[8-s 328.1] — v Madercine (1899) 15 WN (NSW) 235 . . .[2-s 16.1] — v Maginnis [1987] AC 303 . . . . . .[10-s 3.30] — v Maharaj (NSWCCA, Gleeson CJ, Beazley JA and Donovan AJ, 60558/1997, 1 May 1998, BC9801519) . . . . . . . .[2-s 16.10], [7-100] — v Maher (2005) 154 A Crim R 457 .[8-s 93B.15] — v Mai (1992) 26 NSWLR 371 . .[2-s 16.1], [2-s 19.5] — v MAK [2005] NSWCCA 369; BC200509808 . . . . . . . . . . . . . . . . . . . .[5-s 21A.5] — v MAK and MSK (2006) 167 A Crim R 159 . . . . . .[5-s 21A.5], [5-s 21A.10], [5-s 22.5] — v Makisi (2004) 151 A Crim R 245 .[2-s 161.63], [8-s 98.15], [8-s 428B.1] — v Malcherech [1981] 1 WLR 690 . . .[8-s 18.15] — v Manley (2000) 49 NSWLR 203; 112 A Crim R 570 . . . . . . . . . . . . . . . . . .[2-s 116.5]

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TABLE OF CASES — v — (2005) 154 A Crim R 40 . . .[8-s 203E.10] — v Milnes and Green (1983) 33 SASR 211 . .[2-s 32.5], [7-160] — v Mitchell (NSWCCA, Gleeson CJ, Cole, Sperling JJ, 60321/94, 5 April 1995, BC9504682) .[2-s 161.45], [7-170] — v — [1983] 1 QB 741 . . . . . . . . .[8-s 18.55] — v Mitchell, R v Gallagher (2007) 177 A Crim R 94 . . . . . . . . . . . . . . . . . . . .[8-s 33.20] — v MJB [2014] NSWCCA 195; BC201408161 . . . . . . . . . . . . .[5-s 21A.5], [5-s 53A.5] — v MJR (2002) 54 NSWLR 368; 130 A Crim R 481 . . . . . . . . . . . . . . . . . . . . .[5-s 19.1] — v MM (2004) 145 A Crim R 148 . . .[2-s 159.1], [2-s 160.1], [7-477] — v — (2000) 112 A Crim R 519 . . .[2-s 161.45] — v MMK (2006) 164 A Crim R 481 . .[5-s 3A.1] — v Moffat (NSWCCA, Blanch J, 21 June 1994, unreported) . . . . . . . . . . . . . .[5-s 44.15] — v Moffitt (1990) 20 NSWLR 114; 49 A Crim R 20 . . . . . . . . . . . . . . . . . . . .[5-s 44.10] — v Mohamadin [2004] NSWCCA 401; BC200408093 . . . . . . . . . . . .[5-s 21A.5] — v Mok (1987) 27 A Crim R 438 .[2-s 16.5], [2-cl 21.5], [7-495] — v Molloy [1921] 2 KB 364 . . . . . .[8-s 139.5] — v Moore [2015] NSWCCA 316; BC201512362 . . . . . . . . . . . . . . . . . . . .[8-s 18.50] — v — [1979] Crim LR 789 . . . . . . .[10-s 3.30] — v Morgan (1993) 30 NSWLR 543; 67 A Crim R 526 . . . . . . . . . . . . . . . . . .[2-s 293.1] — v — [1970] 3 All ER 1053 . . . . .[8-s 249B.5] — v Morgan; Ex parte A-G (Qld) [1987] 2 Qd R 627; (1986) 24 A Crim R 342 . . .[2-s 161.25], [8-s 23A.1] — v Morris (1867) 10 Cox CC 480 . . .[2-s 193.5] — v — [1983] 3 All ER 288 . . . . . . .[8-s 118.1] — v Morrison (1889) 10 LR (NSW) 197 .[2-s 31.1] — v Mosely (1992) 28 NSWLR 735; (1992) 65 A Crim R 542; 65 A Crim R 542; (1992) 65 A Crim R 452 .[1-020], [2-s 19.1], [2-s 227.10], [7-915] — v Mossop (1991) 9 Petty SR 4453 . . .[11-140.5] — v Most (1881) 7 QBD 244 . . . . . .[8-s 26.20] — v Moussad . . . . . . . . . . . . . . .[2-s 16.25] — v — (1999) 152 FLR 373 . . . . . . .[2-s 16.25] — v MPW (NSWCCA, 14 December 1995, BC9507332) . . . . . . . . . . . . .[2-s 133.1] — v MSK and MAK (2004) 61 NSWLR 204; 148 A Crim R 453 . . . . . . . . . . . .[2-s 294A.1] — v Muldoon (1870) 9 SCR (NSW) 116 . . . .[8-s 327.15] — v Munro (2001) 51 NSWLR 540 . . .[8-s 58.15], [8-s 58.20], [8-s 418.1] — v — (1981) 4 A Crim R 67 . . . . . . .[8-s 96.5] — v Murnin (NSWCCA, 16 August 1985, unreported)

v — [1992] 2 Qd R 634 . . . . . . .[8-s 117.20] v — (1998) 28 MVR 432 . . . . . . .[5-s 44.10] v McEndoo 5 A Crim R 52 . . . . .[2-s 161.15] v McGarritty (NSWCCA, Grove J, Studdert J, Blanch J, 60556/93, 10 June 1994, BC9405228) . . . . . .[2-s 156.1], [2-s 193.5], [8-s 18.110] — v McGarvey (1987) 10 NSWLR 632; 34 A Crim R 119 . . . . . . . . . . . . . . . . . .[2-s 293.1] — v McGarvie (1986) 5 NSWLR 270 . .[8-s 23A.1] — v McGuigan and Cameron (1991) Crim LR 719 . . . . . . . . . . . . . . . . . . . . .[11-185.5] — v McHardie [1983] 2 NSWLR 733; (1983) 10 A Crim R 51 . . . . . . . . . . . . . . . .[7-455] — v McHugh (1985) 1 NSWLR 588 . . .[5-s 47.1] — v McIntyre (2000) 111 A Crim R 211 . . . .[2-s 161.15] — v McLean (1981) 5 A Crim R 36; 5 Petty SR 2497 . . . . . . . . . . . . .[10-s 3.30], [10-s 13.10] — v McLean and Funk; Ex parte A-G (Qld) [1991] 1 Qd R 231; (1990) 47 A Crim R 240 .[2-s 32.5] — v McLoughlin; Ex parte DPP [1988] 1 Qd R 464; (1987) 31 A Crim R 256 . . . . . . . .[7-105] — v McMahon (NSWCCA, 26 June 1996, BC9602908) . . . . . . . . . . . . .[2-s 160.1] — v — (NSWCCA, 23 June 1978, unreported) . . . . . . . . . . . . . . . . . . . .[10-s 25.30] — v McMillan [2005] NSWCCA 28; BC200500727 . . . . . . . . . . . .[5-s 21A.5], [8-s 52A.45] — v McMullen (1990) 54 SASR 55 . . .[8-s 161.1] — v McNamara [1954] VLR 137; ALR 291 . .[8-s 58.5] — v — [1965] VR 372 . . . . . . . . . .[8-s 94.10] — v — [2005] NSWCCA 195; BC200503393 .[5-s 21A.5] — v McNaughton (2006) 66 NSWLR 566; 163 A Crim R 381 . . . . . . . . . . . . .[5-s 21A.5] — v McNeil (2015) 250 A Crim R 12 . .[2-s 132.1] — v McPhail (1988) 36 A Crim R 390 .[21-s 133.3] — v Meher [2004] NSWCCA 355; BC200406985 . . . . . . . . . . . . .[2-s 161.1], [2-s 161.25] — v Meissner (1994) 76 A Crim R 81 .[2-s 222.25], [2-s 222.30] — v Mellifont (1992) 64 A Crim R 75 . . .[7-105] — v Melville (1956) 73 WN (NSW) 579 . . . .[2-s 161.30] — v Merrin (2007) 174 A Crim R 100 . .[5-s 55.1] — v Merrit [1999] NSWCCA 29; BC9900749 .[2-s 161.15] — v Merritt [2002] NSWCCA 368; BC200205146 . . . . . . . . . . . . . . . . . . . .[21-s 10.1] — v — (2004) 59 NSWLR 557; 146 A Crim R 309 . . . . . . . . . . . . . . . . . . . . .[5-s 61.1] — v Messeruy (1932) 49 WN 221 . . . .[8-s 99.20] — v Millard (1906) 23 SR (NSW) 38 .[8-s 125.15] — v Mills (NSWCCA, Gleeson CJ, Cole JA, Sperling J, 3 April 1995, BC9504475) . . . .[8-s 19A.1] — — — —

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ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020 . . . . . . . . . . . . . . . . . . .[8-s 52A.45] — v Murphy [1965] VR 187 . . . . . . .[2-s 207.1] — v — (1985) 158 CLR 596; 61 ALR 139 .[1-200], [8-s 319.5] — v — [2005] NSWCCA 182; BC200503070 .[5-s 21A.1], [5-s 21A.5] — v Murray [1906] 2 KB 385 . . . . . .[2-s 16.20] — v — (NSWCCA, Lee, Reynolds and Campbell JJ, 136/1986, 11 September 1986, BC8601280) . . . . . . . . . . . . . . . . . . . .[8-s 94.20] — v — (NSWCCA, Newman and Barr JJ 29 October 1997, BC9705899) . . . . . . . . . .[5-s 23.1] — v Musumeci (NSWCCA, Hunt CJ, McInerney and Hulme JJ, 30 October 1997, BC9705741) .[8-s 52A.45] — v Naa [2009] NSWSC 851; BC200908038 . .[2-s 281.1] — v Nahlous (2010) 77 NSWLR 463; 201 A Crim R 150 . . . . . . . . . . . . . . . . . .[2-s 19.5] — v Nai Poon (2003) 56 NSWLR 284 .[10-s 25.25] — v Naizmand [2016] NSWSC 836; BC201605159 . . . . . . . . . . . . . . . . . . . . .[9-s 1.15] — v Nanka [1984] 1 NSWLR 722 . .[8-s 310D.15] — v Negus (1873) LR 2 CCR 34 . . . .[8-s 156.5] — v Nelson [2016] NSWCCA 130; BC201605494 . . . . . . . . . . . . . . . . . . .[8-s 66A.40] — v Nerbas [2012] 1 Qd R 362; (2011) 210 A Crim R 494 . . . . . . . . . . . . . . . . . .[2-s 207.1] — v Newell [2004] NSWCCA 183; BC200403547 . . . . . . . . . . . . . . . . . . . .[8-s 86.15] — v Nguyen (1995) 36 NSWLR 397 . .[8-s 58.20] — v — (NSWCCA, Hunt CJ, Ireland J and Bell AJ, 20 February 1997, BC9700251) . .[8-s 121.5] — v — (2004) 149 A Crim R 343 . . .[8-s 319.15] — v — [2002] NSWCCA 183; BC200202582 .[5-s 10.1] — v Nguyen; R v Cannistra [2006] NSWCCA 389; BC200610047 . . . . . . . . . . .[10-s 23.50] — v Niass [2005] NSWCCA 120; BC200501841 . . . . . . . . . . . . . . . . . . . .[2-s 161.10] — v — (NSWCCA, Gleeson and Lee CJJ, Allen J, 16 November 1988, BC8801314) . . . .[5-s 24.1] — v Nicolaidis (1994) 33 NSWLR 364; 72 A Crim R 394 . . . . . . . . . . . . . . . . . . . .[7-150] — v Nilson [1971] VR 853 . . . . .[7-405], [7-600] — v Novakovic [2004] NSWCCA 437; BC200408421 . . . . . . . . . . . .[5-s 44.15] — v NP [2003] NSWCCA 195; BC200303815 .[5-s 22.5], [5-s 23.1] — v Nundah (1916) 16 SR (NSW) 482 . . . . .[8-s 117.35] — v Nykolyn [2012] NSWCCA 219; BC201208031 . . . . . . . . . . . . . .[5-s 53.5], [5-s 53A.5] — v NZ (2005) 63 NSWLR 628 .[2-s 289I.1], [2-s 306S.1], [2-s 306U.1], [2-s 306Z.1] — v O’Brien (1921) 21 SR 136 . . . . .[8-s 117.20]

— v O’Donoghue (1988) 34 A Crim R 397 . . .[2-s 160.1] — v — (2005) 151 A Crim R 597 . . .[8-s 105A.1], [8-s 112.7] — v — (1917) 23 CLR 9 . . . . . . . .[8-s 159.30] — v Ogochukwu [2004] NSWCCA 473; BC200409545 . . . . . . . . . . . .[5-s 44.10] — v O’Grady (NSWCCA, Gleeson CJ, Hunt CJ and Sully J, 13 May 1997, BC9703122) . . . .[8-s 61I.65] — v Oinonen [1999] NSWCCA 310; BC9906740 . . . . . . . . . . . . . . . . . . . . .[5-s 22.5] — v Olbrich (1999) 199 CLR 270; 166 ALR 330 . . . . . . . . . . . . . . . . . . . .[10-s 25.25] — v Oliver (1984) 57 ALR 543 .[2-s 161.40], [2-cl 21.20] — v — (1980) 7 A Crim R 174 . . . . . .[5-s 21.1] — v O’Loughlin; Ex parte Ralphs (1971) 1 SASR 219 . . . . . . . . . . . . . . . . . . . . .[2-s 19.5] — v Olsen [2005] NSWCCA 243; BC200505162 . . . . . . . . . . . . . . . . . . . .[5-s 21A.5] — v OM (2011) 212 A Crim R 293 . . .[8-s 312.5], [8-s 319.5] — v O’Meagher (1997) 101 A Crim R 196 . . .[8-s 61I.5] — v O’Neill [1979] 2 NSWLR 582; (1979) 1 A Crim R 59 . . . . . . . . . . . . . . . . .[2-s 153.1] — v O’Neill (2001) 122 A Crim R 510 .[21-s 10.1] — v O’Neill & Parker (1980) 2 A Crim R 401 . . . . . . . . . . . . . . . . . . . .[10-s 3.15] — v Onufrejczyk [1955] 1 QB 388 . . .[8-s 18.65] — v Orchard (1993) 70 A Crim R 289 .[10-s 23.35] — v Orcher (1999) 48 NSWLR 273 . .[8-s 326.10] — v Orton [1922] VLR 469 . . . . . . .[2-s 160.1] — v Overall (1993) 71 A Crim R 170 . .[8-s 59.20] — v Overton (1843) 4 QB 83 . . . . . .[8-s 327.10] — v Owens (1987) 30 A Crim R 59 . .[8-s 52A.15] — v Ozcan (NSWCCA, 1 December 1988, BC8802303) . . . . . . . . . . . . .[2-s 21.10] — v Packer [1932] VLR 225 . . . . . . .[8-s 79.1] — v Pagett (1983) 76 Cr App R 279 . . .[8-s 18.15] — v Painter (1870) 9 SCR (NSW) 277 . .[2-s 17.0] — v Palu (2002) 134 A Crim R 174 . . . .[5-s 11.1] — v Panetta (1997) 2 MVR 332 . . . .[8-s 52A.45] — v Pangallo (1989) 51 SASR 254; 44 A Crim R 462 . . . . . . . . . . . . . . . . . . .[8-s 23A.10] — v Paris [2001] NSWCCA 83; BC200104818 .[5-s 10.1] — v Park [2003] NSWCCA 203; BC200304065 . . . . . . . . . . . . . . . . . . . .[2-s 161.15] — v Parker [1974] 1 NSWLR 14 . . . .[7-640], [8-s 188.15] — v Partridge (1930) 30 SR (NSW) 410 .[2-cl 21.5] — v Pateman (1983) 33 A Crim R 212; [1984] 1 Qd R 312 . . . . . . . . . . . . . . . . . .[7-485]

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TABLE OF CASES — v Paterson (2006) 163 A Crim R 122 . . . . .[9-s 16A.10] — v Patterson [1962] 2 QB 429 . . . .[8-s 114.10] — v Payne (1866) LT 1 CCR 27 . . . .[8-s 310C.5] — v Pearce [1966] 3 All ER 618 . . . .[8-s 212.15] — v Pearson [2005] NSWCCA 116; BC200502327 . . . . . . . . . . . . .[5-s 21A.1], [5-s 21A.5] — v Peehi (1997) 41 NSWLR 476 . . .[8-s 310D.5] — v Peel [1971] 1 NSWLR 247 . . . . . .[5-s 21.1] — v Peisley (1990) 54 A Crim R 42; (1992) 16 Crim LJ 197 . . . . . . . . . . . . . . . . .[8-s 23.3] — v Penich and Maxwell (1991) 55 A Crim R 464 . . . . . . . . . . . . . . .[2-s 160.1], [7-475] — v Pennisi [2001] NSWCCA 326; BC200105217 . . . . . . . . . . . . . . . . . . . . .[5-s 22.5] — v Perez (NSWCCA, Gleeson CJ, Kirby P and Campbell J, 11 December 1991, BC9101351) . . . . . . . . . . . . . . . . . . . .[8-s 33B.3] — v — [2004] NSWCCA 218; BC200404318 .[5-s 44.10] — v Perez-Vargas (1987) 8 NSWLR 559 .[5-s 23.1] — v Perry (No 1) (1981) 27 SASR 166 . . .[7-485] — v Peters and Heffernan (1995) 83 A Crim R 142 . . . . . . . . . . . . . . . . . . . . .[2-s 19.5] — v Petroff (1980) 2 A Crim R 101 . . .[2-s 161.5] — v Petronius-Kuff [1983] 3 NSWLR 178; (1978) 8 A Crim R 18 . . . . . . . . . . . . .[8-s 117.5] — v Pham [2004] NSWCCA 190; BC200404890 . . . . . . . . . . . . . . . . . . . .[2-s 21.15] — v — [2005] NSWCCA 94; BC200501606 . .[5-s 47.1], [5-s 57.1], [8-s 310D.35] — v Phillips [1971] ALR 740; (1971) 45 ALJR 467 . . . . . . . . . . . . . . . . . . . . .[8-s 58.5] — v — [1973] 1 NSWLR 275 . . . . .[8-s 114.10] — v Phung [2001] NSWSC 115; BC200100670 . . . . . . . . . . . . . . . . . . . .[21-s 112.1] — v Piccin (No 2) [2001] NSWCCA 323; BC200105655 . . . . . . . . . . . . .[5-s 10.1] — v Picknell [1970] 1 NSWR 604; (1969) 90 WN (Pt 1) (NSW) 731 . . . . . . . . . . . . . .[7-505] — v Pierpont (1993) 71 A Crim R 187 .[8-s 114.10] — v Pilley (1991) 56 A Crim R 202 . .[10-s 25.25], [10-s 29.25], [10-s 43.5] — v Piltz (2004) 59 NSWLR 538 . . .[8-s 93G.20] — v Pipe (1966) 51 Cr App Rep 17 . . . .[2-s 32.5] — v Pittman (1862) 172 ER 192 . . . .[8-s 117.20] — v PJE (NSWCCA, 9 October 1995, unreported) . . . . . . . . . . . . . .[2-s 19.5], [2-s 293.1] — v PL (2009) 261 ALR 365 . . . .[8-s 18.15], [8-s 18.40] — v Plimmer (1975) 61 Cr App R 264 .[2-s 161.65] — v Pocock (1851) 5 Cox CC 172 . . . .[8-s 18.50] — v Popescu (1989) 39 A Crim R 137 . . .[7-575] — v Porte [2015] NSWCCA 174; BC201505867 . . . . . . . . . . . . . . . . . . . .[8-s 91H.1] — v Porter (2004) 61 NSWLR 384; 186 FLR 350

. . . . . . . . . . . . . . . . . . .[8-s 527C.10] — v Potisk (1973) 6 SASR 389 . .[8-s 117.15], [8-s 117.55] — v Potter (1994) 72 A Crim R 108 . . .[5-s 23.1] — v Powles (1831) 4 C & P 571 . .[8-s 27.45], [8-s 39.35], [8-s 41.35] — v PPB [1999] NSWCCA 360; BC9907459 . .[5-s 23.1] — v Preval [1984] 3 NSWLR 647 . . .[8-s 61H.5] — v Previtera (1997) 94 A Crim R 76 .[5-s 21A.5], [5-s 28.5], [8-s 19A.1], [8-s 24.30], [8-s 52A.45] — v PRFN [2000] NSWCCA 230; BC200003392 . . . . . . . . . . . . . . . . . . . .[8-s 58.20] — v Price (2016) 75 MVR 89 . . .[2-s 168.1], [5-s 53A.5] — v — [2004] NSWCCA 186; BC200405783 .[8-s 52A.45] — v — [2005] NSWCCA 285 . . . . . .[5-s 21A.5] — v Ptohopoulos (1967) 52 Cr App Rep 47 . . . . . . . . . . . . . . . . . . . .[11-380.10] — v Puciarello (NSWCCA, 4 June 1990, unreported) . . . . . . . . . . . . . .[2-s 16.5], [10-s 25.1] — v — (NSWCCA, 4 June 1990, BC9002361) . . . . . . . . . . . . . . . . . . . .[10-s 25.25] — v Pullen (2018) 87 MVR 47 . . .[5-s 68.5], [8-s 52AB.5] — v Pullman (1991) 25 NSWLR 89 . .[8-s 18.55], [8-s 54.10] — v Purdy [1982] 2 NSWLR 964; (1982) 7 A Crim R 122 . . . . . . . . . .[8-s 23A.1], [8-s 23A.10] — v Pureau (1990) 19 NSWLR 372 . .[2-s 161.20], [8-s 61I.20] — v Purtell (2001) 120 A Crim R 317 .[8-s 319.15] — v Qaumi [2016] NSWSC 1473; BC201610277 . . . . . . . . . . . . . . . . . . . .[2-s 132.1] — v Quartly (1986) 11 NSWLR 332; 22 A Crim R 252 . . . . . . . . . . . . . . . . . .[8-s 23.3] — v Quin [2009] NSWCCA 16; BC200900696 .[5-s 44.15] — v Quinn (NSWCCA, 13 June 1991, unreported) . . . . . . . . . . . . . . . . . . . . .[2-s 23.5] — v — (1991) 55 A Crim R 435 . . . .[2-s 161.20] — v R (1989) 18 NSWLR 74; 44 A Crim R 404 . . . . . . . . . . . . . . .[2-s 154.1], [7-525] — v — (1995) 63 SASR 417; 180 LSJS 443; 79 A Crim R 191 . . . . . . . . . . . . .[8-s 18.20] — v R2 (1990) 19 NSWLR 513 . .[10-s 4.1], [10-s 29.5] — v Raabe (1984) 14 A Crim R 381 . . .[8-s 58.5] — v Raad [1983] 3 NSWLR 344 . . . .[8-s 188.15] — v Radic (2001) 122 A Crim R 70 . .[8-s 117.60] — v Radju (2001) 53 NSWLR 471 . . . . .[7-800] — v Radley (1973) 58 Cr App R 394 . . .[2-s 21.1] — v Rae [2013] NSWCCA 9; BC201300291 . .[5-s 53.5], [5-s 53A.5]

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ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020 — v — [2002] NSWCCA 359; BC200205630 .[5-s 22.5] — v Robson [1978] 1 NSWLR 73 . . . .[8-s 86.1] — v Roddom [2001] NSWCCA 168; BC200102187 . . . . . . . . . . . . . . . . . . . .[2-s 161.40] — v Rogers (1868) 1 LR 136 . . . . . . . .[8-s 7.1] — v — (1996) 86 A Crim R 542 . . .[8-s 310D.25] — v Rogerson (1992) 174 CLR 268; 107 ALR 225 . . . . . . . . . . . . . . . . . . . .[8-s 319.5] — v — (1990) 51 A Crim R 359 . . . . .[8-s 319.5] — v Rolfe (1952) 36 Cr App Rep 4 . . . .[8-s 58.5] — v Rondo (2001) 126 A Crim R 562 .[21-s 21.1], [21-s 99.10], [21-s 120.1] — v Rose [2003] NSWCCA 411; BC200308558 . . . . . . . . . . . . . . . . . . . . .[8-s 86.1] — v — (1993) 69 A Crim R 1 . . . . . . . .[7-575] — v Rowe (2001) 50 NSWLR 510; 118 A Crim R 421 . . . . . . . . . . . . . . . . . . . .[2-s 281.1] — v Rowland [1910] 1 KB 458 . . . . .[8-s 502.5] — v RTB [2002] NSWCCA 104; BC200201374 . . . . . . . . . . . . . . . . . . . .[2-s 161.25] — v Rugari (2001) 122 A Crim R 1 . . .[2-s 160.1] — v Rushby [1977] 1 NSWLR 594 . .[8-s 52A.45] — v Rushton [1967] VR 842 . . . . . . .[2-s 17.1] — v Russell-Jones (1995) 1 Cr App Rep 538; 3 All ER 239 . . . . . . . . . . . . . . . . . .[7-485] — v Russell-Smith (1981) 35 ACTR 31; 51 FLR 42 . . . . . . . . . . . . . . . . . . . . . .[7-485] — v RWO [2002] NSWCCA 133; BC200203809 . . . . . . . . . . . . . . . . . . . . .[2-s 19.5] — v Ryan (1995) 90 A Crim R 191 . . .[8-s 23A.1] — v — (2003) 39 MVR 395; 141 A Crim R 403 . . . . . . . . . . . . . . . . . . .[8-s 52A.45] — v — (1890) 11 LR (NSW) 171 . . . .[8-s 58.45] — v Rye (1909) 2 Cr App R 155 . . . .[8-s 117.45] — v Rymer (2005) 156 A Crim R 84 . . . .[7-495] — v S [2016] NSWCCA 189 . . . . . .[9-s 16A.5] — v — (1991) 22 NSWLR 548 . . . .[8-s 52A.15] — v — (2000) 111 A Crim R 225 . .[5-s 23.1], [5-s 44.15] — v SA [2011] NSWCCA 60; BC201102131 . .[211380.5], [21-s 133.5] — v Sagiv (1986) 22 A Crim R 73 . . . .[2-s 207.1] — v Salameh (1986) 26 A Crim R 353 .[8-s 94.10] — v Saldaneri [2001] NSWCCA 480; BC200107856 . . . . . . . . . . . . . . . . . . . . . .[5-s 5.1] — v Saleib [2005] NSWCCA 85; BC200501605 . . . . . . . . . . . . . . . . . . . .[5-s 21A.5] — v Salisbury [1976] VR 452 . . . . . . .[8-s 58.5] — v Salvo [1980] VR 401 . . . . . . . .[8-s 117.35] — v Sanders (1991) 57 SASR 102 . . .[8-s 117.35] — v Sandford (1994) 33 NSWLR 172 . .[2-s 36.1], [2-s 161.1], [7-225], [7-485], [7-640] — v Saraswati (1989) 47 A Crim R 1 . . . .[7-001] — v Saunders (2002) 37 MVR 270; 133 A Crim R 104 . . . . . . . . . . . . . . . . .[8-s 52A.15]

— v Rahme [2004] NSWCCA 233; BC200404413 . . . . . . . . . . . . . . . . . . . .[2-s 293.1] — v — (1993) 70 A Crim R 357 . . . .[11-395.10] — v Ramsay [1967] NZLR 1005 . . . . .[8-s 18.1] — v Randall (1991) 53 A Crim R 380 .[8-s 61H.1], [8-s 61H.5] — v Ransford (1874) 31 LTNS 488 . . .[8-s 26.25] — v RAT (2000) 111 A Crim R 360 . .[2-s 161.20], [2-s 161.45] — v Rawcliffe [1977] 1 NSWLR 219 .[10-s 10.10] — v Rawlinson (2013) 246 A Crim R 1 . .[2-s 30.1] — v Ray (2003) 57 NSWLR 616 . . . .[2-s 161.62] — v Raz (NSWCCA, 17 December 1992, BC9201407) . . . . . . . . . . . . . .[5-s 23.1] — v Read (2010) 55 MVR 280 . . . .[8-s 52A.45] — v Readman (1990) 47 A Crim R 181 .[8-s 94.20] — v Reardon (No 2) (2004) 60 NSWLR 454; 146 A Crim R 475 . . . . . . . .[2-s 142.5], [7-485] — v Rees [2001] NSWCCA 23; BC200100279 .[8-s 18.55] — v Reeves (1992) 29 NSWLR 109 . .[2-s 161.10] — v — (CCA(NSW), 13 September 1993, unreported) . . . . . . . . . . . . .[2-s 161.35] — v Reid [1999] NSWCCA 258; BC9905412 .[2-s 281.1] — v — [1999] NSWCCA 355; BC9907386 . . .[8-s 323.10] — v Reinsch [1978] 1 NSWLR 483 . . . .[5-s 10.1] — v Reynhoudt (1962) 107 CLR 381; [1962] ALR 483 . .[8-s 58.55], [8-s 546C.5], [8-s 546C.15] — v Reynolds (NSWCCA, Slattery CJ at CL, Reynolds and Carruthers JJ, 22 August 1986, BC8601306) . . . . . . . . . . . .[8-s 114.10] — v — (NSWCCA, 25 August 1992, unreported) . . . . . . . . . . . . . . . . . . . .[10-s 43.1] — v Rice (2004) 150 A Crim R 37 . .[8-s 105A.1] — v Richards (1994) 64 SASR 42; 77 A Crim R 1 . . . . . . . . . . . . . . . . . . . . .[2-s 19.5] — v — (CCA(NSW), 27 November 1995, BC9501889) . . . . . . . . . . . .[2-s 161.55] — v — (1974) QB 776 . . . . . . . . .[8-s 117.35] — v Richardson (1998) 3 WLR 1292 . . .[8-s 58.5] — v Riddell [2009] NSWCCA 96; BC200902409 . . . . . . . . . . . . . . . . . . . . .[5-s 55.1] — v RJS (1993) 31 NSWLR 649 . . . .[8-s 61J.1] — v RNS [1999] NSWCCA 122; BC9908888 .[2-s 161.45] — v Roberts (1971) 56 Cr App R 95 . .[8-s 18.15] — v — (1994) 73 A Crim R 306 . . . . .[8-s 94.20] — v Robinson (2000) 111 A Crim R 388 . . . .[2-s 161.20] — v — [2000] NSWSC 972; BC200006239 . .[2-s 161.45] — v — (NSWCCA, 15 September 1989, BC8901702) . . . . . . . . . . . . . . . . . . . . .[5-s 11.1]

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TABLE OF CASES — v — (1993) Petty SR 4537 . . . . . .[10-s 25.1] — v Sayak (NSWCCA, Clarke JA, Hunt CJ at CL, Grove J, 16 September 1993, BC9304078) . . . . . . . . . . . . . . . . . . . . .[5-s 24.1] — v Sbarra (1917) 13 Cr App R 118 . .[8-s 188.15] — v Scaramanga [1963] 2 QB 807; [1963] 2 All ER 852 . . . . . . . . . . . . . . . . . .[2-s 21.10] — v Schaffer (2005) 153 A Crim R 372 . . . . .[8-s 322.20] — v Schelberger (NSWCCA, Yeldham, Grove and McInerney JJ, 2 June 1988, BC8801878) .[8-s 24.30] — v Schipanski (1989) 17 NSWLR 618 . .[8-s 7.1], [8-s 188.15] — v Schlesinger (1847) 10 QB 670 . . .[8-s 327.5] — v Schneidas (No 2) [1981] 2 NSWLR 713 . .[2-s 161.20], [8-s 18.25] — v Scott (2003) 39 MVR 166; 141 A Crim R 323 . . . . . . . . . . . . . . . . . . .[8-s 52A.15] — v — [1967] VR 276 . . . . . . . .[8-s 310D.20] — v — [2003] NSWCCA 286; BC200305880 .[5-s 22.5] — v — (1993) 42 FCR 1; 116 ALR 703 . .[7-001], [7-105] — v SDM (2001) 51 NSWLR 530; 127 A Crim R 318 . . . . . . . . . . . . . . . . . . . .[8-s 97.20] — v Sellen (1991) 57 A Crim R 313 . . .[5-s 44.15] — v Seller; R v McCarthy [2015] NSWCCA 76; BC201503262 . . . . . . . . . . . . .[2-s 19.5] — v Selvage [1982] QB 372 . . . . . . .[8-s 319.5] — v Senior (1832) 1 Mood CC 346 . . . .[8-s 20.1] — v Sepulveda [2003] NSWCCA 131; BC200302273 . . . . . . . . . . . . . . . . . . . . .[2-s 20.1] — v Serratore (1999) 48 NSWLR 101 . .[2-s 202.1] — v Seymour [1954] 1 All ER 1006; 1 WLR 678; (1954) 38 Cr App Rep 68 . . . . . . .[2-cl 7.1] — v — [1954] 1 WLR 678 . . . . . . .[8-s 117.50] — v — [2001] NSWCCA 272; BC200103962 .[10-s 25A.1] — v Shaluga (1957) 75 WN (NSW) 120; 58 SR (NSW) 151 . . . . . . . . . . . . . .[11-380.5] — v Shankley [2003] NSWCCA 253; BC200305296 . . . . . . . . . . . . . . . . . . . .[5-s 21A.5] — v Sharah (1992) 30 NSWLR 292; 63 A Crim R 361 . . . . . . . . . . . . . . . . . . . .[8-s 18.20] — v Sharma (2002) 54 NSWLR 300; 130 A Crim R 238 . . . . . . . . . . . . . . . . . .[5-s 22.5] — v Sharp (2003) 143 A Crim R 344 . .[2-s 281.1] — v Shashati (2018) 85 MVR 194 . . .[8-s 52A.15] — v Shaw (1991) 57 A Crim R 425 . . . . .[7-485] — v Shenton [2003] NSWCCA 346; BC200307075 . . . . . . . . . . . . . . . . . . . . .[5-s 22.5] — v Shephard [1919] 2 KB 125; [1918-19] All ER Rep 374 . . . . . . . . . . . . . . .[8-s 26.15] — v Shepherd [2003] NSWCCA 351; BC200307249 . . . . . . . . . . . . . . . . . . . . .[8-s 35.5]

— v — [1999] NSWCCA 162; BC9903822 . .[10-s 25.25] — v Sheppard [1981] AC 394; [1980] 3 All ER 899 . . . . . . . . . . . . . . . . . . . . .[8-s 53.5] — v Shortus (1917) 17 SR (NSW) 66 . . .[2-s 31.1] — v Silver [1956] 1 All ER 716; 1 WLR 281 . . . . . . . . . . . . . . . . . . . . .[11-380.5] — v Simon [2005] NSWCCA 123; BC200501844 . . . . . . . . . . . . . . . . . . . .[5-s 44.10] — v Simonds (NSWCCA, Priestley JA, Wood J and Finlay J, 60479/1990, 6 May 1991, BC9102035) . . . . . . . . . . . . . . . . . . .[8-s 310D.35] — v Simpson [1956] VLR 490; ALR 623 .[2-s 31.1] — v — (2001) 53 NSWLR 704; 126 A Crim R 525 . . . . . . . . . . . . . . . . . . . .[5-s 44.15] — v Sing (2002) 54 NSWLR 31 . . . . . . .[7-485] — v Skaf [2004] NSWCCA 74; BC200401711 .[8-s 61I.48] — v Skivington (1967) 51 Cr App R 167 . . . .[8-s 94.15] — v Slack [2004] NSWCCA 128; BC200402455 . . . . . . . . . . . . . . . . . . . .[5-s 21A.5] — v Slattery [2002] NSWCCA 367; BC200205109 . . . . . . . . . . . . . . . . . . . .[2-s 161.40] — v — (1996) 90 A Crim R 519 . . . .[8-s 52A.45] — v SLD [2002] NSWSC 758; BC200204988 .[5-s 60C.5] — v — (2003) 58 NSWLR 589; 142 A Crim R 503 . . . . . . . . . . . . . . . . . . . .[5-s 60C.5] — v Smails (1957) 74 WN 150 . . . . .[8-s 117.30] — v Smart [1963] NSWR 706; (1962) 80 WN (NSW) 1125 . . . . . . . . .[2-s 161.25], [2-s 161.30] — v Smiroldo (2000) 112 A Crim R 47 . . . .[10-s 25A.5] — v Smith [1995] 1 VR 10; (1994) 73 A Crim R 384 . . . . . . . . . . . . . . . . . . . . .[2-s 19.5] — v — [2000] NSWCCA 468; BC200007410 .[2-s 161.10] — v — [1959] 2 QB 35 . . . . . . . . .[8-s 18.15] — v — (1837) 8 C & P 173 . . . . . . . .[8-s 35.5] — v — [1982] 2 NSWLR 569; 8 A Crim R 131 . . . . . . . . . . . . . . . . . . . .[8-s 61H.1] — v — (1827) 1 Mood 178 . . . . . . .[8-s 112.5] — v — [1960] 2 QB 423; [1960] 1 All ER 256 . . . . . . . . . . . . . . . . . . . .[8-s 133.5] — v — (1982) 7 A Crim R 437 .[8-s 192B.15], [8-s 192E.20] — v — (NSWCCA, 11 September 1991, unreported) . . . . . . . . . . . . . . . . . . . .[10-s 25.25] — v — [1974] 2 NSWLR 586 . . . . . .[11-125.20] — v — (1948) 48 SR (NSW) 268; 65 WN (NSW) 101 . . . . . . . . . . . . . . . . . . . . . .[7-505] — v Smith and Bardini (NSWCCA, 11 September 1987, unreported) . . . . . . . . . .[8-s 115.5] — v Smith (EJ) [1982] 2 NSWLR 608 .[2-s 160.1], [7-405]

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ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020 — v Smith (GWJ) [1982] 2 NSWLR 490 . . . .[8-s 80AB.1] — v Solomon [1980] 1 NSWLR 321 .[2-s 161.20], [8-s 18.5] — v — (2005) 153 A Crim R 32 .[5-s 21A.5], [8-s 97.20] — v Solway (1984) 2 Qd R 75 . . . . .[10-s 10.25] — v Southammavong [2003] NSWCCA 312; BC200306669 . . . . . . . . . . .[2-s 161.10] — v Spartels [1953] VLR 194; ALR 554 . . . .[8-s 27.15], [8-s 58.25] — v Speechley [2012] NSWCCA 130; BC2001204915 . . . . . . . . . . .[8-s 86.15] — v Sperotto [1970] 1 NSWR 502; (1970) 71 SR(NSW) 334 . . . . . . . . . . . .[2-s 21.10] — v Spicer (2003) 139 A Crim R 206 . .[10-s 6.10] — v Spiero (1979) 22 SASR 543 . . . . .[5-s 55.1] — v Spiteri (2004) 61 NSWLR 369 . . .[2-s 142.5], [7-485] — v Spurge [1961] 2 QB 205; 45 Cr App R 191 . . . . . . . . . . . . . . . . . . .[8-s 52A.20] — v Stackelroth (1996) 86 A Crim R 438 . . . .[2-s 285.1], [2-s 289.1] — v Stambolis (2006) 160 A Crim R 510 .[5-s 22.5] — v Stanford (NSWCCA, 19 September 1990, unreported) . . . . . . . . . . . . . .[8-s 26.10] — v Stanley (NSWCCA, 7 April 1995, unreported) . . . . . . . . . . . . . . . . . . . . .[8-s 58.5] — v — [2003] NSWCCA 233; BC200304770 .[8-s 97.20] — v Stanton (1991) 52 A Crim R 164 . .[2-s 8.10], [7-220] — v Stead [1994] 1 Qd R 665; (1992) 62 A Crim R 40 . . . . . . . . . . . . . . . . . . . . .[2-s 32.5] — v Steele (1952) 70 WN (NSW) 167 .[8-s 117.10] — v Stevens (1991) 23 NSWLR 75; 102 ALR 42 . . . . . . . . . . . . . . . . . . . .[10-s 25.20] — v Stewart (2001) 52 NSWLR 301; 124 A Crim R 371 . . . . . . . . . . . . . . . . .[2-s 161.40] — v Stewart; Ex parte A-G (Qld) [1989] 1 Qd R 590 . . . . . . . . . . . . . . . . . . . .[2-s 161.25] — v Stokes (1925) Cr App R 71 . . . . .[8-s 27.65] — v Stokes and Difford (1990) 51 A Crim R 25 . . . . . . . . . . . .[2-s 161.30], [8-s 117.35] — v Stone (1995) 85 A Crim R 436 . . .[5-s 44.15] — v Storey (1978) 140 CLR 364; 22 ALR 47 .[2-s 193.5] — v Stoupe [2015] NSWCCA 175; BC201505960 . . . . . . . . . . . .[5-s 21A.20], [8-s 91K.1] — v Strahan (1855) 7 Cox CC 85 . . . . . .[7-160] — v Street [2005] NSWCCA 139; BC200502036 . . . . . . . . . . . . . . . . . . . .[5-s 21A.5] — v Stringer (2000) 116 A Crim R 198 .[2-s 16.15] — v Su [1997] 1 VR 1; (1995) 129 FLR 120 . . . . . . . . . . . . . . . . . . . . . .[7-485] — v Sukkar (2006) 172 A Crim R 151 . .[5-s 23.1]

— v Sullivan (NSWCCA, Gleeson, Powell, Hulme JJ, 22 August 1995, BC9505248) . . .[2-s 289.1] — v — [2003] NSWCCA 100; BC200301699 . . . . . . . . . . . . . . . . . . . . . .[7-485] — v Sultana (1994) 74 A Crim R 27 . .[10-s 25.40] — v Sumner [1935] VLR 197; ALR 350 . . . .[8-s 327.15] — v Supple (1870) 1 VR 151 . . . . . .[8-s 18.10] — v Sutton (1986) 5 NSWLR 697 . . .[2-s 161.62] — v — (1877) 13 Cox CC 648 . . . . . . .[8-s 4.5] — v — (2004) 41 MVR 40 . . . . . . . .[5-s 22.5] — v Swan (2003) 140 A Crim R 243 . .[10-s 3.45] — v Swift (NSWCCA, 11 April 1991, unreported) . . . . . . . . . . . . . . . . . . .[8-s 52A.45] — v SY [2003] NSWCCA 291; BC200306107 .[5-s 22.5] — v Tadman (2001) 34 MVR 54 . . . .[8-s 52A.45] — v Tadrosse (2005) 65 NSWLR 740 .[5-s 21A.1], [5-s 21A.5] — v Taha (2000) 120 A Crim R 161 . . .[8-s 97.5] — v Tahau [1975] 1 NSWLR 479 . . . . .[8-s 4.20] — v Taikmaskis (1986) 19 A Crim R 383 . . . .[8-s 310D.35] — v Tait [1990] 1 QB 290; [1989] 3 All ER 682 . . . . . . . . . . . . . . . . . . . . .[8-s 20.1] — v Taktak (1988) 14 NSWLR 226; 34 A Crim R 334 . . . . . . . . . . . . . . . . . . . .[8-s 18.50] — v Tangmashuk (1986) 7 NSWLR 551 .[2-s 31.1] — v Tannous, Fahda and Dib [2012] NSWCCA 243; BC201209067 . . . . . . . . . . .[8-s 154G.5] — v Tao [1977] 1 QB 141 . . . . . . . . .[10-s 6.5] — v Taouk (NSWCCA, Mahoney JA, Hunt CJ at CL, Badgery-Parker J, 17 December 1992, BC9203128) . . . . . . . . . . . . .[2-s 21.20] — v — [1982] 2 NSWLR 974 . .[10-s 3.10], [10-s 23.35] — v Tarrant [2018] NSWSC 774; BC201804245 . . . . . . . . . . . . . . . . . . . .[8-s 23A.5] — v Taylor [2003] NSWCCA 194; BC200306670 . . . . . . . . . . . . . . . .[2-s 20.1], [7-150] — v — (2002) 129 A Crim R 146 .[8-s 18.27], [8-s 418.1] — v — (1904) 21 WN (NSW) 43 . . .[8-s 131.15] — v Taylor and Little [1992] 1 All ER 299; QB 645 . . . . . . . . . . . . . . . . . . . . .[8-s 58.5] — v Teasdale (2004) 145 A Crim R 345 .[2-s 160.1] — v Templeton [1956] VLR 709; ALR 706 . . .[8-s 310D.10] — v Thabo Meli [1954] 1 WLR 228 . . .[8-s 18.1] — v Thawer [2009] NSWCCA 158; BC200904895 . . . . . . . . . . . . . . . . . . . .[5-s 54C.1] — v Thiagarajah (1989) 41 A Crim R 45 .[5-s 21.1] — v Thomas (1985) 81 Cr App R 331 . .[8-s 58.5] — v — (1992) 65 A Crim R 269 . . . . .[8-s 58.20] — v — (1953) 37 Cr App R 169 . . . .[8-s 117.20] — v — (1993) 67 A Crim R 308 . . . . .[10-s 6.10]

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TABLE OF CASES — v — (1981) 6 A Crim R 66 . . . . .[10-s 10.20] — v — [2007] NSWCCA 269; BC200709863 .[5-s 21A.10] — v — [1957] 2 All ER 181 . . . . . . .[11-380.5] — v Thomas Sam (No 14) [2009] NSWSC 561; BC200905452 . . . . . . . . . . . . . .[7-600] — v Thompson (1925) 25 SR (NSW) 250 . . . .[2-s 21.1] — v — (NSWCCA, 24 June 1976, unreported) .[2-s 153.1] — v — (1988) 36 A Crim R 223 . . . .[8-s 23A.1] — v — [1976] 2 NSWLR 453 . . . . .[8-s 52A.30] — v — (1945) 45 SR(NSW) 374 . . . . . .[7-640] — v Thomson (NSWCCA, Street CJ, Lee and Foster JJ, 380/1985, 21 May 1986, BC8601015) .[8-s 310D.35] — v Thomson and Dann (2002) 134 A Crim R 252 . . . . . . . . . . . . . . . . . . . . .[2-s 21.5] — v Thomson and Houlton (2000) 49 NSWLR 383; 115 A Crim R 104 . . . .[5-s 22.5], [5-s 37.1] — v Thorpe [1972] 1 WLR 342; [1972] 56 CR App R 93 . . . . . . . . . . . . . . . . .[8-s 52A.15] — v Thurborn (1848) 169 ER 293 . . .[8-s 117.15] — v Tierney (1885) 1 WN (NSW) 114a .[8-s 35.65] — v Tight (NSWCCA, Yeldham, Lusher and Carruthers JJ, 14 March 1986, BC8601309) . . . . . . . . . . . . . . . . . . . .[10-s 25.25] — v Tillett; Ex parte Newton (1969) 14 FLR 101 . . . . . . . . . . . .[21-s 48.10], [21-s 48.35] — v Tillot (1995) 38 NSWLR 1 . . . .[8-s 61I.45] — v Tillott (1991) 53 A Crim R 46 . .[2-s 161.15], [2-s 161.25], [8-s 115.5] — v Timmins [1976] Crim LR 129 . .[8-s 310D.5] — v Tobar (2004) 150 A Crim R 104 . .[5-s 44.10] — v Todd (1977) 6 A Crim R 105 . . .[10-s 10.20] — v Toki [2003] NSWCCA 125; BC200302309 . . . . . . . . . . . . . . . . . . . .[8-s 18.10] — v Toksoz [2015] NSWSC 1234 . . . .[9-s 16A.5] — v Tolmie (NSWCCA, 7 December 1994, unreported) . . . . . . . . . . . . . .[2-s 19.5] — v — (NSWCCA, Hunt CJ, McInerney and Bruce JJ, 60503/94, 7 December 1994, unreported) . . . . . . . . . . . . . . . . . . . .[2-s 192.5] — v — (1995) 37 NSWLR 660 . . . . .[8-s 61I.5] — v Toma [2018] NSWCCA 45; BC201801975 . . . . . . . . . . . . . . . . . . .[8-s 91D.20] — v Tonks [1963] VR 121 . . . . . . . . . .[7-170] — v Tonner [1985] 1 All ER 807 . . . . . .[7-455] — v Tout (1987) 11 NSWLR 251 . . . .[8-s 61K.5] — v Towers (1984) 14 A Crim R 12 . .[2-s 154.1], [7-525] — v Towle (1954) 72 WN (NSW) 338 . . . . .[2-s 161.20], [2-s 161.25], [2-cl 21.5] — v Towner (1991) 56 A Crim R 221 .[2-s 161.10] — v Tracey (1895) 6 QLJ 272 . . . . . . .[8-s 29.1] — v Trad [2003] NSWCCA 213; BC200304257

. . . . . . . . . . . . . . . . . . . . .[5-s 22.5] — v Traino (1987) 45 SASR 473; 27 A Crim R 271 . . . . . . . . . . . . . . . . . . . .[8-s 327.5] — v Trainor [1992] 2 Qd R 572; 56 A Crim R 102 . . . . . . . . . . . . . . . . . . . . .[2-s 19.5] — v Treacy [1971] AC 537 . . . . . . . .[8-s 99.15] — v Trindall (2002) 133 A Crim R 119 . .[5-s 11.1] — v Tripodina (1988) 35 A Crim R 183 . . . . .[2-s 161.5], [7-640] — v Trivett (NSWCCA, 13 June 1991, BC9101892) . . . . . . . . . . . . . . . . . . . . . .[7-640] — v Trotter (1993) 35 NSWLR 428; 68 A Crim R 536 . . . . . . . . . . . .[8-s 23A.1], [8-s 23A.10] — v Trudgeon (1988) 39 A Crim R 252 .[2-cl 21.5], [10-s 26.1] — v TS [2017] NSWCCA 247; BC201708556 . . . . . . . . . . . . . . . . . . . . . .[7-525] — v Tuala [2015] NSWCCA 8; BC201500546 .[5-s 21A.5], [5-s 28.1] — v Tubou [2001] NSWCCA 243; BC200103428 . . . . . . . . . . . . . . . . . . . .[2-s 293.1] — v Tugaga (1994) 74 A Crim R 190 . . . .[7-525] — v Tuhakaraina (2016) 75 MVR 434 . .[5-s 44.10] — v Tuki (No 4) [2013] NSWSC 1864 . . . . .[8-s 93T.10] — v Turnbull (No 1) [2016] NSWSC 189; BC201604060 . . . . . . . . . . . . .[2-s 30.1] — v Turner (1910) 4 Cr App Rep 203 . .[8-s 27.1] — v Tuuta [2014] NSWCCA 40; BC201402311 . . . . . . . . . . . . . . . . . . . .[5-s 44.15] — v Tyford (1893) 14 LR (NSW) 51 . . .[2-s 31.1] — v Uhrig (NSWCCA, Hunt CJ, Newman and Ireland JJ, 60200/1996, 24 October 1996, BC9605087) . . . . . . . . . . . . . . . . . . . .[2-s 161.10] — v Underhill (NSWCCA, Street CJ, Hunt and Campbell JJ, 9 May 1986, BC8601036) . .[8-s 97.20] — v Utans (1982) 29 SASR 592; 5 A Crim R 315 . . . . . . . . . . . . . . . . . . . . . .[7-485] — v Vaa [2006] NSWCCA 44; BC200601076 .[5-s 55.1] — v Valentini (1989) 46 A Crim R 23 . .[8-s 94.20] — v Valera [2002] NSWCCA 50; BC200201640 . . . . . . . . . . . . . . . . . . . . .[5-s 61.1] — v Van Beelen (1973) 4 SASR 353 . .[8-s 18.20] — v Van der Lubbe (1949) 66 WN (NSW) 140; (1949) 49 SR (NSW) 309 . . . . .[8-s 545B.1] — v Van Dyk [2000] NSWCCA 67; BC200001101 . . . . . . . . . . . . . . . . . . .[8-s 80AB.1] — v Vanecek (1954) 72 WN (NSW) 72 .[2-s 152.1] — v Varley [1973] 2 NSWLR 427 .[2-s 160.1], [8-s 18.65] — v Vasic (2005) 11 VR 380; 155 A Crim R 26 . . . . . . . . . . . . . . . . . . .[8-s 192D.5] — v Veatufunga (2007) 47 MVR 324 .[8-s 52A.50] — v Velardi (NSWCCA, Gleeson CJ, Allen and James

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ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020 JJ, 60611/1995, 24 May 1996, BC9601940) . . . . . . . . . . . . . . . . . . . . . .[7-150] — v Velevski (2000) 117 A Crim R 30 . .[9-s 22.5] — v Vella (NSWCCA, Mahoney, Grove and Sperling JJ, 15 December 1995, unreported) .[8-s 24.30] — v Venables (1908) 8 SR 612; (1908) 25 WN (NSW) 190 . . . . .[8-s 117.20], [8-s 126.10] — v Venna [1976] QB 421 . . . . . . . . .[8-s 58.5] — v Veverka [1978] 1 NSWLR 478 . .[2-s 161.30] — v VHP (NSWCCA, Gleeson CJ, Handley JA and Studdert J, 60733/1996, 7 July 1997, BC9702876) . . . . . . . . . . . . .[2-s 16.15] — v Vickers (1975) 61 Cr App R 48 . .[8-s 23A.1] — v Viers [1983] 2 Qd R 1 . . . . . . . .[2-s 19.5] — v Vreones [1891] 1 QB 361 . . . . . .[8-s 319.5] — v Vu (NSWCCA, 11 November 1993, unreported) . . . . . . . . . . . . . . . . . . . .[8-s 94.20] — v Wade (1869) 11 Cox CC 549 . . .[8-s 117.35] — v Wald (1971) 3 DCR (NSW) 25 . . .[8-s 84.5] — v Walkden (1845) 1 Cox CC 282 . . .[8-s 58.5] — v Walker (NSWCCA, Gleeson CJ, Allen J and Barr AJ, 20 November 1995, BC9501896) . . .[8-s 58.20] — v — [2005] NSWCCA 109; BC200501614 .[5-s 21A.5] — v Walsh (2002) 131 A Crim R 299 . .[2-s 161.7] — v — (1990) 52 A Crim R 80 . . . .[8-s 192D.5] — v — [2004] NSWCCA 428; BC200408411 .[5-s 59.5] — v Walters (1992) 62 A Crim R 16 . . .[8-s 121.5] — v Waqa (No 2) (2005) 156 A Crim R 454 . .[5-s 23.1] — v Ward (1938) 38 SR (NSW) 308; 55 WN 80 . . . . . . . . . . . . .[8-s 117.5], [8-s 125.15] — v Waring (No 2) [1972] Qd R 263 . . . .[7-405] — v Waterhouse (1911) 11 SR (NSW) 217 . . .[8-s 117.15] — v Watkins (NSWCCA, Gleeson CJ, Cole JA, Sperling J, 5 April 1995, BC9504520) . . .[8-s 188.15] — v Way [1981] 2 NSWLR 653; (1981) 3 A Crim R 465 . . . . . . . . . . . . . . . .[8-s 310D.30] — v — (2004) 60 NSWLR 168 . .[5-s 21A.1], [5-s 21A.5], [5-s 44.10], [5-s 44.15], [5-s 44.25] — v Weatherall [1968] Crim LR 115 . .[8-s 39.10] — v Weatherspoon (NSWCCA, 4 December 1992, unreported) . . . . . . . . . . . . .[8-s 61I.65] — v Weatherstone (1987) 8 Petty SR 3729 . . .[8-s 117.30] — v Weaver (1931) 45 CLR 321 . .[2-cl 21.5], [2-cl 21.15], [7-001] — v Webb and Hay (1992) 64 A Crim R 38 . .[2-s 160.1] — v Webley (1967) 111 Sol Jo 111 . . .[8-s 114.10] — v Webster (1998) 43 NSWLR 256; 100 A Crim R 26 . . . . . . . . . . . . . . . . . . . .[1-020]

— v Webster and Jones (NSWCCA, Gleeson CJ, Hunt CJ at CL and Mathews J, 3 August 1992, BC9201710) . . . . . . . . . . . . . .[5-s 24.1] — v Wen Fei Gu [2006] NSWCCA 104; BC200601976 . . . . . . . . . . .[10-s 25.25] — v West [1962] 2 All ER 624; [1962] 3 WLR 218 . . . . . . . . . . . . . . . . . . . .[2-s 202.10] — v — (1848) 175 ER 329 . . . . . . . .[8-s 20.1] — v — [2011] NSWCCA 91 . . . . . . .[8-s 24.30] — v — (1880) 1 LR(NSW) 329 . . . . .[8-s 131.5] — v — [1948] 1 KB 709 . . . . . . . . . . .[7-100] — v Westerman (1991) 55 A Crim R 353 . . . .[2-s 16.15] — v Whalen (2003) 56 NSWLR 454 . .[10-s 23.30] — v Wheeldon (1839) 8 Carrington & Payne 747 . . . . . . . . . . . . . . . . . . . .[8-s 112.10] — v Wheeler (1844) 1 Cox CC 106 . . . .[8-s 33.5] — v Wheller (1829) 3 C P 585 . . . . . .[8-s 56.10] — v White (NSWCCA, 25 July 1991, unreported) . . . . . . . . . . . . . . . . . . . .[2-cl 21.20] — v — [1910] 2 KB 124 . . . . . . . . .[8-s 18.70] — v — (1904) 21 WN(NSW) 104 . . .[8-s 117.15] — v — (1853) 169 ER 696 . . . . . . .[8-s 117.15] — v — (1912) 7 Cr App R 266 . . . . .[8-s 117.15] — v — (CCA(NSW), Spigelman CJ, Sheller JA and Newman J, 23 June 1998, BC9803139) . .[5-s 22.5] — v Whitmore (1999) 109 A Crim R 51 . . . .[8-s 61I.10] — v Whyte (2002) 55 NSWLR 252; 37 MVR 1 . . . . . . . . . . . . .[5-s 37.1], [8-s 52A.45] — v Wickham [2004] NSWCCA 193; BC200403646 . . . . . .[5-s 21A.1], [5-s 21A.5], [5-s 44.15] — v Wilhelm (2010) 77 NSWLR 1; 200 A Crim R 413 . . . . . . . . . . . .[8-s 38.10], [8-s 39.7] — v Wilk (1982) 32 SASR 12 . . . . . . .[2-s 17.1] — v Wilkes (2001) 122 A Crim R 310 . .[2-s 207.1] — v Williams [2018] NSWSC 994; BC201805517 . . . . . . . . . . . . . . . . . . . . .[9-s 22.5] — v — (1990) 50 A Crim R 213 . .[2-s 161.1], [8-s 58.5], [8-s 59.10] — v — (1999) 104 A Crim R 260 . . . .[2-s 161.1] — v — (1986) 21 A Crim R 460 . . . .[8-s 117.35] — v — (1982) 7 A Crim R 46 . . . .[8-s 310D.35] — v — [2005] NSWCCA 99; BC200501608 . .[5-s 21A.1], [5-s 21A.5] — v — (2005) 62 NSWLR 481; 152 A Crim R 405 . . . . . . . . . . . . . . . . . . . . .[5-s 51.1] — v Williams and Dark [1908] QWN 33 .[8-s 33.5] — v Williamson (2000) 1 VR 58 . . . . .[8-s 18.25] — v Williamson and Morell (NSWCCA, 11 October 1991, unreported) . . . . . . . . . .[2-s 21.10] — v Williamson (No 1) (1996) 67 SASR 428 . .[2-s 161.1] — v Wills [1983] 2 VR 201 . . . . . . .[8-s 18.55] — v Wilson (1994) 34 NSWLR 1; 73 A Crim R 532

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TABLE OF CASES . . . . . . . . . . . . . . . . . . . . .[9-s 22.5] — v — (1979) 69 Cr App R 83 . . . . .[2-s 16.25] — v — (1992) 174 CLR 313; 107 ALR 257 . .[8-s 18.25], [8-s 18.55], [8-s 18.60] — v — [1955] 1 All ER 744 . . . . . . .[8-s 58.5] — v — [1985] 2 Qd R 420 . . . . . . . .[8-s 58.5] — v — [1996] 3 WLR 125 . . . . . . . .[8-s 58.5] — v — (2005) 62 NSWLR 346 . . . . . .[5-s 28.1] — v — (NSWCCA, Spigelman CJ, Sully and Ireland JJ, 60599/97, 15 July 1998, BC9805276) . . . . . . . . . . . . . . . . . . . . . .[7-405] — v Winner (1995) 79 A Crim R 528 . .[2-s 133.1] — v Winningham (NSWCCA, 10 May 1995, unreported) . . . . . . . . . . . . . .[2-s 133.1] — v — (NSWCCA, Studdert, Sully and James JJ, 60486/94, 10 May 1995, unreported) . . . .[8-s 93G.10] — v Withers [1975] AC 842 . . . . . . .[8-s 319.5] — v Wong (1988) 37 A Crim R 385 . .[2-s 161.20], [2-cl 21.5] — v — (1999) 48 NSWLR 340; 154 FLR 80 . .[5-s 37.1] — v Wood [2014] NSWCCA 184; BC201407793 . . . . . . . . . . . . . . . . . . . .[8-s 24.30] — v Woodland (1836) 1 M R 549 . . . .[8-s 150.5] — v Woodman [1974] QB 754 . . . . .[8-s 117.15] — v Woods [2009] NSWCCA 55; BC200903214 . . . . . . . . . . . . . . . . . . .[8-s 66A.40] — v Woodward [1995] 2 Cr App R 388 . . . . .[8-s 52A.15] — v Worthington [1921] VLR 660 . . . .[8-s 133.5] — v WRC (2003) 59 NSWLR 273; (2003) 143 A Crim R 503 . . . . . . . . . . . . . .[2-s 19.5] — v Wright (NSWCCA, Grove, Ireland and Levine JJ, 8 July 1997, BC9702913) . . . .[8-s 26.25] — v — (1879) 2 SCRNS 110 . . . . . . .[8-s 29.1] — v — [1980] VR 593; (1980) 4 ACLR 931 . .[8-s 192G.25] — v — (1976) 62 Cr App Rep 169 . . .[10-s 10.20] — v Wynn (1887) 16 Cox CC 231 . . .[8-s 125.20], [8-s 125.25] — v XHR [2012] NSWCCA 247; BC201209166 . . . . . . . . . . . . . . . .[7-525], [8-s 61I.1] — v XX [2017] NSWCCA 90; BC201703330 .[5-s 23.1] — v — [2009] NSWCCA 115; BC200902934 .[5-s 55.1] — v XY (2013) 84 NSWLR 363; 231 A Crim R 474 . . . . . . . . . . . . . .[9-s 1.30], [9-s 66.15] — v Yates (1963) 80 WN (NSW) 744; [1963] SR (NSW) 477 . . . .[8-s 97.5], [8-s 114.10], [8-s 546B.1] — v Yildiz (2006) 160 A Crim R 218 .[5-s 21A.5], [10-s 25.1] — v Youkana [2005] NSWCCA 231; BC200504601 . . . . . . . . . . . . . . . . . . . .[8-s 59.20]

— v Youkhana [2004] NSWCCA 412; BC200408415 . . . . . . . . . . . . .[5-s 21A.5], [8-s 97.20] — v Young [2006] NSWSC 1499 . . . . .[9-s 22.5] — v — (1999) 46 NSWLR 681; 107 A Crim R 1 . . . . . . . . . . . . . . . . . . . .[2-s 222.40] — v — [2003] NSWCCA 276; BC200305724 .[8-s 94.20] — v — [1953] 1 All ER 21 . . . . . . .[8-s 188.35] — v — (NSWCCA, 27 October 1993, unreported) . . . . . . . . . . . . . . . . . . .[8-s 310D.35] — v Zaiter [2005] NSWCCA 61; BC200500749 . . . . . . . . . . . . . . . . . . . .[10-s 6.15] — v Zamagias [2002] NSWCCA 17; BC200200346 . . . . . . . . . . . . . . . . . . . . . .[5-s 5.1] — v Zeilaa [2009] NSWSC 532; BC200905192 . . . . . . . . . . . . . . . . . . . . .[5-s 22.5] — v Zischke [1983] 1 Qd R 240 . . . . . . .[7-640] — v Zorad (1990) 19 NSWLR 91; 47 A Crim R 211 .[2-s 160.1], [2-s 161.1], [2-s 161.25], [7-405], [10-s 3.60] — v — [1979] 2 NSWLR 764 . . . . . .[8-s 61I.5] Radi v R [2010] NSWCCA 265; BC201008770 . . . . . . . . . . . . . . . . . . . .[10-s 25.40] Rainbow v — [2018] NSWCCA 42; BC201801897 . . . . . . . . . . . . . . . . . . . .[5-s 21A.1] Rajendran v — [2010] NSWCCA 322; BC201009864 . . . . . . . . . . . . . . . . . . . . .[2-s 20.1] Ramey v — (1994) 68 ALJR 917 . . . .[2-s 161.35] Ramos v — [2018] NSWCCA 206; BC201808865 . . . . . . . . . . . . . . . . . . .[8-s 193B.5] Ramsay v Watson (1961) 108 CLR 642 . . . . .[8-s 23A.10] Ran v R (1996) 16 WAR 447 . . . . . .[2-s 222.30] Raspor v — (1958) 99 CLR 346 . . . .[2-s 161.30] Ravnjak, Appeal of (1973) 3 DCR(NSW) 166 . .[8-s 58.45] Raybos Australia Pty Ltd v Tectran Corp Pty Ltd (1986) 6 NSWLR 272 . . . . . . . . . .[1-015] Re Asmar [2005] VSC 487; BC200510874 . . .[9-s 16A.10] Re Attorney-General’s Application under s 37 Crimes (Sentencing Procedure) Act (No 3 of 2002) (2004) 61 NSWLR 305; 147 A Crim R 546 . . . . . . . . . . . . . . . . . . . . .[5-s 10.1] Re Avory; Question of Law Reserved (No 1 of 2003) (2003) 87 SASR 392; 143 A Crim R 514 . . . . . . . . . . . . . . . . . . . .[10-s 6.10] Re Culleton (No 2) (2017) 91 ALJR 311 .[5-s 25.5] Re Director of Public Prosecutions (DPP) Reference No 1 of [2019] HCA 9; BC201901939 .[7-530] Re F [1990] 2 AC 1 . . . . . . . . . . . .[8-s 58.5] Re Glover (1885) 2 WN (NSW) 27b . .[11-380.15] Re K [2002] NSWCCA 374; BC200205230 . . .[2-s 19.10] Re M (an infant) [1968] 1 WLR 1897 . .[2-s 190.1] Re Marland [1963] 1 DCR 224 . . . . .[11-125.20]

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ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020 Rogers v Arnott [1960] 2 QB 244 . . . .[8-s 125.20] — v R (1994) 181 CLR 251; 123 ALR 417 . . .[2-s 19.5], [2-s 193.5] Rogerson v — (1992) 65 A Crim R 530 . . . . .[2-s 161.15] Romeyko v Samuels (1972) 2 SASR 529; 19 FLR 322 . . . . . . . . . . . . . . . . . . . .[2-s 16.25] Roos v R [2019] NSWCCA 67; BC201902300 .[2-s 161.30] Rose v Kempthorne (1910) 103 LT 730; 22 Cox CC 356 . . . . . . . . . . . . . . . . . .[8-s 58.40] — v Matt [1951] 1 KB 810 . . . . . . .[8-s 117.10] Rosza v Samuels [1969] SASR 205 . . . .[8-s 58.5] Rowell v Larter (1986) 6 NSWLR 21; 24 A Crim R 222 . . . . . . . . . . . . . . . . . .[21-s 49.5] Royall v R (1991) 172 CLR 378; 100 ALR 669 .[8-s 18.1], [8-s 18.5], [8-s 18.10], [8-s 18.15], [8-s 18.25] Roylance v Director of Public Prosecutions (DPP) (NSW) [2018] NSWSC 933; BC201805860 . . . . . . . . . . . . . . . . . . . .[2-s 182.1] RP v R [2013] NSWCCA 192; BC201312214 . .[5-s 21A.5], [5-s 28.1] RPS v — (2000) 199 CLR 620; 168 ALR 729 .[2-s 161.35] Russell v — [2010] NSWCCA 248; BC201008531 . . . . . . . . . . . . . . . . . . . .[5-s 44.15] — v Wilson (1923) 33 CLR 538; 30 ALR 75 .[21-s 219.5] RWB v R [2010] NSWCCA 147; BC201004918 . . . . . . . . . . . .[2-s 161.10], [2-s 161.40] Ryan v Kuhl [1979] VR 315 . . . . . . . .[8-s 58.5] — v R (1967) 121 CLR 205; [1967] ALR 577; (1967) 40 ALJR 488 . . . .[8-s 18.1], [8-s 18.15], [8-s 18.20], [8-s 98.10] — v — (2001) 206 CLR 267; 179 ALR 193 . .[5-s 21A.10], [5-s 22.5] S v — (1989) 168 CLR 266; 89 ALR 321; 45 A Crim R 221 . .[2-s 8.1], [2-s 16.5], [2-s 16.15], [2-s 16.25], [2-s 19.5], [8-s 61I.7], [10-s 3.70], [10-s 25.1] Saad v — (1987) 70 ALR 667; 61 ALJR 243; 29 A Crim R 20 . . . . . . . .[8-s 7.1], [10-s 10.15] Saddler v — [2009] NSWCCA 83; BC200902237 . . . . . . . . . . . . . . . . . . . .[5-s 21A.5] Saffron (No 1) v — (1988) 17 NSWLR 395; 36 A Crim R 262 . . . . . . . . .[2-cl 21.5], [7-495] Saffron v FCT (No 1) (1992) 109 ALR 695 . . .[2-s 33.5] Sako v Anthony (SC(NSW), 8 March 1991, BC9102654) . . . . . . . . . . . . .[8-s 61.25] Saleam v R (1989) 16 NSWLR 14; 39 A Crim R 406 . . .[2-s 222.30], [2-s 222.35], [8-s 121.5], [8-s 188.25] Saler v Klingbiel [1945] SASR 171 . . .[8-s 58.25] Salter v DPP [2011] NSWCA 190; BC201105364 . . . . . . . . . . . . . . . . . . .[8-s 308B.5]

Re Munton v West [1927] 1 Ch 262 . . . .[8-s 53.5] Re Seidler [1986] 1 Qd R 486 . . . . . . . .[7-105] Re Van Beelen (1974) 9 SASR 163 . . . . .[7-485] Reardon v Baker [1987] VR 887; (1987) 25 A Crim R 203 . . . . . . . . . . . . . . . . . .[10-s 12.1] Reddy v R (2018) 86 MVR 96 . . . . . .[5-s 47.1] Redman v — [2015] NSWCCA 110; BC201504333 . . . . . . . . . . . . . . . . . . . .[2-s 132.1] — v Willcocks (2010) 79 NSWLR 226 . .[8-6830.5] Reece v Harris [1943] SASR 127 . . . .[8-s 125.15] Reeves v R [2013] NSWCCA 34; BC201300682 . . . . . . . . . . . . . . .[8-s 33.5], [8-s 58.5] — v — (2013) 304 ALR 251; 88 ALJR 215 . .[8-s 58.5] Registrar, Court of Appeal (NSW) v Craven (No 1) (1994) 126 ALR 668; 77 A Crim R 410 . .[2-s 33.5] Reid v Nominal Defendant (1968) 88 WN (Pt 1) (NSW) 601 . . . . . . . . . . . . .[11-125.15] Relf v Webster (1978) 24 ACTR 3 . . . .[10-s 12.1] Rend v R (2006) 160 A Crim R 178 . . . . .[7-495] Reynolds v — (1983) 10 A Crim R 30 . .[5-s 55.1] Rice v Connolly [1966] 2 QB 414; 2 All ER 649 . . . . . . . . . . . . . . . . . . .[8-s 546C.15] Richardson v R [2013] NSWCCA 218; BC201313312 . . . . . . . . . . . . . . . . . . . .[8-s 19A.1] — v — (1974) 131 CLR 116; 3 ALR 115 . .[7-485] Ridgeway v — (1995) 184 CLR 19; 129 ALR 41 . . . . . . . . . . . . . . . . . . . . .[2-s 19.5] Riley v — [2011] NSWCCA 238; BC201108764 . . . . . . . . . . . . . .[8-s 38.10], [8-s 39.7] Ringstaad v Butler [1978] 1 NSWLR 754 . . .[10-s 3.1], [10-s 3.5], [10-s 40A.1] Ristevski v R [2007] NSWCCA 87; BC200702579 . . . . . . . . . . . . . . . . . . . .[2-s 161.62] Ritson v Myers [2013] NSWCA 176; BC201303074 . . . . . . . . . . . . . . . . . . . .[8-s 556.1] RJS v R 173 A Crim R 100 . . . . . . .[2-s 161.12] RJT v — [2012] NSWCCA 280; BC201209875 . . . . . . . . . . . . . . . . . . . . .[5-s 23.1] RM v — [2012] NSWCCA 35; BC201201583 .[2-s 19.5] Roads and Traffic Authority of NSW v Conolly (2003) 57 NSWLR 310; 38 MVR 444 . .[2-s 222.30] Robinson v Balmain New Ferry Co Ltd [1910] AC 295 . . . . . . . . . . . . . . . . . .[8-s 58.30] — v New South Wales [2018] NSWCA 231; BC201809521 . . . . .[21-s 99.1], [21-s 99.5] — v R (2006) 162 A Crim R 88 . . . . . . .[7-625] — v R (No 2) (1991) 180 CLR 531; 102 ALR 493; 65 ALJR 644 . . . . . . . . . . . . .[2-s 161.35] Rodden v R (2008) 182 A Crim R 227 .[2-s 161.45] Roff v — [2017] NSWCCA 208; BC201706782 . . . . . . . . . . . . . . . . . . .[5-s 21A.10] Rogan v Hyde (1995) 84 A Crim R 519 .[2-s 32.5], [2-s 33.5]

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TABLE OF CASES Crim R 466 . . .[2-s 161.15], [2-cl 21.20], [5-s 21.1] Shepherd v — (1990) 170 CLR 573; 97 ALR 161; 65 ALJR 132; 51 A Crim R 181 . . .[2-s 161.10], [2-s 161.15] — v — (1988) 94 FLR 55; 37 A Crim R 303 .[2-cl 21.5] SHR v — [2014] NSWCCA 94; BC201404288 .[5-s 53A.5] Shultz v Pettitt (1980) 25 SASR 427 . . .[2-s 16.35] Shumack v R [2008] NSWCCA 311; BC200811198 . . . . . . . . . . . . . . . . . . .[8-s 52A.45] Siafakas v — [2016] NSWCCA 100; BC201605018 . . . . . . . . . . . . .[10-s 24.5], [10-s 25.1] Silbert v DPP (WA) (2004) 205 ALR 43; 78 ALJR 464 . . . . . . . . . . . . . . . . . . . .[2-s 208.5] Simpson v R [2014] NSWCCA 23; BC201401108 . . . . . . . . . . . . . . . . . . . .[8-s 61I.65] Singh v — [2019] NSWCCA 110; BC201904571 . . . . . . . . . . . . . . . . . . . .[8-s 112.5] Sivaraja v R; Sivathas v R [2017] NSWCCA 236; BC201708307 . . . . . . . . . . . .[8-s 418.1] Sivell v R [2009] NSWCCA 286; BC200910950 . . . . . . . . . . . . . . . . . . . .[5-s 21A.5] Skondin v — [2005] NSWCCA 417; BC200510614 . . . . . . . . . . . . . . . . . . . .[2-s 150.1] Slattery v — (1905) 2 CLR 546 . . . .[8-s 125.15] Sloggett v Adams (1953) 70 WN (NSW) 206 . .[2-s 179.5] Slotboom v R [2013] NSWCCA 18; BC201301009 . . . . . . . . . . . . . . . . . . . . .[2-s 40.1] Small v — (1994) 33 NSWLR 575; 72 A Crim R 462 . . . . . . . . . . . . . . . .[2-s 36.1], [7-400] Smith and Kirton v — (1990) 47 A Crim R 43 .[2-s 16.1], [7-100], [8-s 94.55], [8-s 95.35] Smith v Desmond [1965] AC 960 .[8-s 94.10], [8-s 117.10] — v Moody [1903] 1 KB 56 .[2-s 16.5], [2-s 16.15] — v R (1985) 159 CLR 532; 71 ALR 631 . . .[2-s 36.1], [7-405] — v — (1970) 121 CLR 572; [1971] ALR 183 .[2-s 161.5] — v — [2007] NSWCCA 138; BC200703798 .[5-s 21A.5] — v Superintendent of Woking Police Station (1983) 76 Cr App R 234 . . . . . . . . . . .[8-s 58.5] Smithers v Andrews; Ex parte Andrews [1978] Qd R 64 . . . . . . . . . . . . . . . . . . . .[1-455] Soames v R [2012] NSWCCA 188; BC201206674 . . . . . . . . . . . . . . . . . . . . . .[7-600] Soma v — (2003) 212 CLR 299; 196 ALR 421 . . . . . . . . . . . . . . . . . . . . . .[7-495] Sorby v Cth (1983) 152 CLR 281; 46 ALR 237 . . . . . . . . . . . . . . . . . . . . .[2-s 33.5] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 . . . . . . .[1-485], [2-s 202.15] Southon v Plath obh Dept of Environment and

Sam v R (2011) 206 A Crim R 67 . . . .[8-s 18.50] Samuel v — [2017] NSWCCA 239; BC201708383 . . . . . . . . . . . . . . . . . . . . .[5-s 22.5] Sankey v Whitlam (1978) 142 CLR 1; 21 ALR 505 . . . . . . . . . . . . . . . . . . . . . .[1-200] Sasterawan v Morris (2007) 69 NSWLR 547 . .[2-s 14.1], [2-s 173.1], [2-s 174.1] SAT v R [2009] NSWCCA 172; BC200905662 .[5-s 54B.1] Saunders v — (1994) 72 A Crim R 347 .[2-s 21.15] Savvas v — (1995) 183 CLR 1; 129 ALR 319 .[2-cl 21.20] Sawtell v Regan (1882) 3 LR(NSW) 362 . . . . . . . . . . . . . . . . . . . .[11-125.15] SBF v R (2009) 53 MVR 438; 198 A Crim R 219 . . . . . . . . . . . . . . . . . . . .[8-s 24.15] SC v — [2019] NSWCCA 25; BC201900783 . .[8-s 61I.65] Schiavini v — (1999) 108 A Crim R 161 . . . .[2-s 281.1] Schneidas (No 2) (1981) 4 A Crim R 101 . .[7-555] Schreiber v Santora 1935 AR (NSW) 168 . . . .[2-s 16.15] Scott v Metropolitan Police Cmr [1975] AC 819 . . . . . . . . . . . . . . . . . . . .[2-cl 21.15] — v R [2011] NSWCCA 221; BC201107783 . .[8-s 24.30] See v Milner (1980) 2 A Crim R 210 . .[10-s 10.40] Selbeck v McDonald [1978] 1 NSWLR 1 . . . . . . . . . . . . . . . . . . . . .[11-425.1] Seong Won Lee and Do Young Lee v R (2012) 224 A Crim R 278 . . . . . . . . . . . . . .[9-s 22.5] Sergi v DPP (NSWCCA, Kirby P, Meagher and Handley JJA, 40518/1991, 10 September 1991, BC9101577) . . . . . . . . .[2-s 8.10], [7-010] Seymour v Price (FCA, French, O’Connor and North JJ, 8 September 1998, BC9805031) . . . .[2-s 228.5] SGJ v R [2008] NSWCCA 258; BC200809879 .[5-s 33.1] Sharman v DPP (2006) 161 A Crim R 1 .[2-s 178.1] Sharp v McCormick [1986] VR 869 . .[8-s 117.30] — v R [2012] NSWCCA 134; BC201204615 . .[8-s 33.5] Sharrett v Gill (1993) 113 FLR 316; 65 A Crim R 44 . . . . . . . . . . . . . . . . . . . . . .[1-485] Shaw v DPP [1961] 2 All ER 446; [1962] AC 220 . . . . . . . . . . . . . . . . . . . . .[11-380.5] — v R [2010] NSWCCA 23; BC201001197 . .[5-s 23.1] — v — (1989) 39 A Crim R 343 . . . . .[5-s 55.1] — v — (1952) 85 CLR 365; [1952] ALR 257 . . . . . . . . . . . . . . . . . . . . . .[7-495] Sheen v — [2011] NSWCCA 259; BC201109701 . . . . . . . .[2-s 162.1], [7-625], [8-s 115A.5] Shepherd (No 2) v — (1988) 16 NSWLR 1; 37 A

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ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020 Climate Change [2010] NSWCCA 292; BC201009506 . . .[2-s 257C.5], [2-s 257D.5] Spark v R [2012] NSWCCA 140; BC201204954 . . . . . . . . . . . . . . . . . . . .[8-s 24.30] Sparkes v — [2015] NSWCCA 203; BC201507094 . . . . . . . . . . . . . . . . . . . .[5-s 53A.5] Sparos v — [2013] NSWCCA 223; BC201313586 . . . . . . . . . . . . . . . . . . . . .[5-s 33.1] Spence v Loguch (1990) 9 Petty SR 4404 . . . . . . . . . . . . . . . . . . . .[11-125.20] Spratt v DPP [2010] NSWSC 355; BC201002668 . . . . . . . . . . . . . . . . . . . .[2-s 293.1] Stafford v R (1993) 67 ALJR 510 . . . .[2-s 161.35] Standen v Director of Public Prosecutions (DPP) (Cth) [2011] NSWCCA 187; BC201106085 . . . . . . . . . . . . . . . . . . . . .[2-s 19.5] Stanley v Farlow (2001) 161 FLR 250 . .[2-s 192.5] — v Powell [1891] 1 QB 86 . . . . . . .[8-s 58.30] Stanton v Abernathy (1990) 19 NSWLR 656; 48 A Crim R 16 . . .[1-020], [2-s 11.1], [2-s 16.25], [2-s 16.35], [2-s 50.5] — v Dawson (1987) 31 A Crim R 104 . . .[1-440] — v R (2003) 198 ALR 41 . . .[7-805], [8-s 18.25] State Pollution Control Commission v Tallow Products Pty Ltd (1992) 29 NSWLR 517; 65 A Crim R 509 . . . . . . .[2-s 156.1], [2-s 193.5] Steer v R (2008) 191 A Crim R 435 . .[2-s 161.62] Steffan v — (1993) 30 NSWLR 633 . . . . .[7-525] Stevens v — [2007] NSWCCA 152; BC200704397 . . . . . . . . . . . . . . . . . . .[8-s 93C.15] Stewart v — (1921) 29 CLR 234; 27 ALR 173 .[2-s 31.1] — v — [2009] NSWCCA 152; BC200904561 .[8-s 24.30] Stingel v — 97 ALR 1 . . .[2-s 161.30], [8-s 23.3] Stoeski v — [2014] NSWCCA 161; BC201406653 . . . . . . . . . . . . . . . . . . . .[5-s 53A.5] Sturdy v Katarzynski (NSWSC, Sperling J, 17 March 1997, unreported . . . . . . . . .[8-s 527C.35] Stutsel v Reid (1990) 20 NSWLR 661 .[11-125.15] Subramaniam v R (2004) 211 ALR 1; 79 ALJR 116 . . . . . . . . . . . . . . . . . . . . .[2-s 19.5] — v — [2013] NSWCCA 159; BC201303198 .[5-s 53A.5] Sudath v — [2008] NSWCCA 207; BC200807955 . . . . . . . . . . . . . . . . . . .[2-s 294B.1] Suleman v — [2009] NSWCCA 70; BC200901710 . . . . . . . . . . . . . . . . . . . .[5-s 21A.5] Sullivan v — [2011] NSWCCA 270; BC201109699 . . . . . . . . . . . . . . . . . . . .[2-s 161.63] — v R; Skillin v R (2008) 51 MVR 572 .[5-s 22.5] Sumrein v R [2019] NSWCCA 83; BC201903096 . . . . . . . . . . . . . . . . . . .[8-s 93G.30] Surman v SA Police (1996) 65 SASR 421; 23 MVR 175 . . . . . . . . . . . . . . . . . .[2-s 16.35] Surujpaul v R [1958] 1 WLR 1050 . . . .[10-s 12.1]

Sutherland Shire Council v Benedict Industries Pty Ltd [2013] NSWLEC 121; BC201311573 .[2-s 247A.5], [2-s 247E.5] SW v R [2013] NSWCCA 103; BC201310229 .[2-s 161.62] Swan v — [2016] NSWCCA 79; BC201603252 . . . . . . . . . . . . . . . . . . . . . .[8-s 4.1] Swann v Price (1986) 7 Petty Sessions Review 3481 . . . . . . . . . . . . . . .[1-015], [10-s 12.1] Swansson v R (2007) 168 A Crim R 263 .[2-s 8.1], [7-100] SZ v — (2007) 168 A Crim R 249 . . . .[5-s 23.1] Tabcorp Holdings Ltd v Fitzsimons (2007) 176 A Crim R 28 . . . . . . . . . . . . . . .[2-s 14.1] Taikato v R (1996) 186 CLR 454; 139 ALR 386 . . . .[8-s 43.5], [8-s 43A.5], [8-s 417.1], [8-s 547D.10], [11-125.25] Tajjour v New South Wales (2014) 254 CLR 508; 313 ALR 221 . . . . . . . . . . . . . .[8-s 93X.10] Taleb v R [2015] NSWCCA 105; BC201504055 . . . . . . . . . . . . . . . . . . . .[2-s 293.1] Tam v DPP (Cth) (NSWSC, Harrison M, 11909/98, 21 October 1998, BC9805444) . . . . . . .[7-485] Tampion v Anderson (1973) 3 ALR 414; 48 ALJR 11 . . . . . . . . . . . . . . . . . . . . .[2-s 19.5] Tan v R [2010] NSWCCA 207; BC201006992 .[5-s 61.1] Tannous v — (1989) 64 ALJR 141 . . . .[10-s 26.1] Tarrant v — [2018] NSWCCA 21; BC201800944 . . . . . . . . . . . . . . . . . . . .[8-s 23A.5] Taylor v — [2009] NSWCCA 180; BC200912275 . . . . . . . . . . . . . . . . . . . .[2-s 293.1] — v — (1978) 45 FLR 343; 22 ALR 599 . . . .[8-s 23A.10] Taysavang v — [2017] NSWCCA 146; BC201704912 . . . . . . . . . . . . . . . . . . .[5-s 21A.10] Tazelaar v — [2009] NSWCCA 119; BC200903215 . . . . . . . . . . . . . . . . . . . . .[5-s 22.5] Tegge v Caldwell (1988) 15 NSWLR 226 . . . .[8-s 527C.20] Tepania v R [2018] NSWCCA 247; BC201810350 . . . . . . . . . . . . . . . . . . . .[5-s 54B.5] Tez v Longley (2004) 142 A Crim R 122 .[2-s 84.1] Thomas v Bell (1989) 42 A Crim R 318 . . . . .[2-s 202.10] — v R (1960) 102 CLR 584; [1960] ALR 233 .[2-s 161.10] Thommeny v Humphries (NSWSC, Foster J, 19 June 1987, unreported) . . . . . . . . . .[11-125.20] Thompson v R (1989) 169 CLR 1; 86 ALR 1 . .[2-s 13.1], [2-s 14.1], [7-160] — v — (1968) 117 CLR 313; [1968] ALR 432 . . . . . . . . . . . . . . . . . . . .[10-s 23.35] — v Vincent (2005) 153 A Crim R 577 .[21-s 4.1], [21-s 99.15] Thorneloe v Filipowski (2001) 52 NSWLR 60; 123 A Crim R 92 . . . . . . . . . . . . . . .[5-s 10.1]

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TABLE OF CASES Tien Hung Vu v R [2006] NSWCCA 188; BC200604589 . . . . . . . . . . .[10-s 25.25] Tiknius v — [2011] NSWCCA 215; BC201107348 . . . . . . . . . . . . . . . . . . .[5-s 21A.10] Tillman v Attorney-General (NSW) (2007) 70 NSWLR 448; 178 A Crim R 133 . .[29-950.5] TJ v R (2009) 197 A Crim R 508 .[2-s 161.45], [2-s 294.5] TMTW v — [2008] NSWCCA 50; BC200801364 . . . . . . . . . . . . . . . . . . . .[5-s 21A.5] Toalepai v — [2009] NSWCCA 270; BC200909849 . . . . . . . . . . . . . . . . . . . .[2-s 161.45] Tonari v — [2013] NSWCCA 232; BC201313860 . . . . . . . . . . . . . . . . . . . . .[2-s 16.1] Torrance v Cornish (1985) 79 FLR 87 . .[2-s 202.1] Towney v R [2018] NSWCCA 65; BC201802701 . . . . . . . . . . . . . . . . . . . .[2-s 161.10] Trainer v — (1906) 4 CLR 126; 13 ALR 53 . .[2-s 16.20] Tran v — [2018] NSWCCA 220; BC201809399 . . . . . . . . . . . . . . . . . . .[10-s 23A.10] Traveland v Doherty (1982) 41 ALR 563; 63 FLR 41 . . . . . . . . . . . . . . . . . . . . .[2-s 14.1] Trinh v R [2016] NSWCCA 110; BC201604512 . . . . . . . . . . . . . . . . . . . . .[9-s 22.5] Trobridge v Hardy (1955) 94 CLR 147 .[21-s 99.5] Trujillo-Mesa v R [2010] NSWCCA 201; BC201006699 . . . . . . . . . . . . .[5-s 22.5] Trumbich v Weston [1986] WAR 169 . .[8-s 117.15] Truong v R; R v Le, Nguyen v R; R v Nguyen [2013] NSWCCA 36; BC201300855 . . .[5-s 53A.5] TS v James [2014] NSWSC 984; BC201405753 . . . . . . . . . . . . . . . . . . . .[21-1535.5] Tsakonas v R [2009] NSWCCA 258; BC200909563 . . . . . . . . . . . . . . . . . . . .[5-s 21A.5] TT v — [2014] NSWCCA 206; BC201408396 .[8-s 24.30] Tucs v Manley (1985) 62 ALR 460 . .[8-s 527C.10] Tumanako v R (1992) 64 A Crim R 149; (1993) 17 Crim LJ 110 . . . . .[8-s 18.5], [8-s 23.3], [8-s 23A.1], [8-s 23A.10] Turnbull v — [2019] NSWCCA 97; BC201904236 . . . . . . . . . . . . . . . . . . . .[5-s 21A.5] Turner v — [2017] NSWCCA 304; BC201710691 . . . . . . . . . . . . . . . . . . .[8-s 91FB.1] Tye v Cmr of Police (1995) 84 A Crim R 147 .[21-s 49.5] Ugle v R (2002) 211 CLR 171; 189 ALR 22 . .[8-s 18.15] Underhill v Murden (2007) 173 A Crim R 336 . . . . . . . . . . . . . . . . . . . . .[8-6180.1] United States Government v Atkinson [1969] 2 All ER 1151 . . . . . . . . . . . . . . . . .[2-s 193.5] Vakauta v Kelly (1989) 167 CLR 568; 87 ALR 633 . . . . . . . . . . . . . . . . . . . . . .[1-015] Valentine v Eid (1992) 27 NSWLR 615; 15 MVR 541 . . . . . . . . . . . . . . .[1-005], [2-s 202.25]

Vallance v R (1961) 108 CLR 56; [1963] ALR 461 . . . . . . . . . . . . . . . . . . . . .[8-s 58.5] Van den Hoek v — (1986) 161 CLR 158; 69 ALR 1; (1987) 61 ALJR 19 . .[2-s 161.30], [8-s 18.25] Van Leeuwen v — (1981) 55 ALJR 726; 36 ALR 591 . . . . . . . . . . . . . . . . . . . .[2-s 161.10] Van Tongeren v ODPP (Qld) [2013] QMC 16 . .[9-s 16A.10] Vaovasa v R (2007) 174 A Crim R 116 . .[5-s 55.1] Varley v — (1976) 12 ALR 347; 51 ALJR 243 .[2-s 160.1], [2-s 161.30] Veen v — (1979) 143 CLR 458; 23 ALR 281 . .[8-s 23A.5] — v R (No 2) (1988) 164 CLR 465; 77 ALR 385 .[5-s 3A.1], [5-s 21.1], [5-s 21A.5], [5-s 33.5], [5-s 61.1], [8-s 23A.5] Velevski v R (2002) 187 ALR 233 . . . . . .[7-485] Vella v — (1990) 2 WAR 537; 47 A Crim R 119 . . . . . . . . . . . . . . .[2-s 160.1], [7-475] Velmin v O’Connor (NSWSC, Carruthers J, 28 October 1991, unreported) . . . . . .[11-395.5] Veness v Hodge [2015] NSWCA 20; BC201500890 . . . . . . . . . . . . . . . . . . . . .[8-6360.5] Verma v R (1987) 30 A Crim R 441 . . .[2-s 21.15], [2-s 23.5] Verrier v DPP [1967] 2 AC 195 . . . . .[2-cl 21.20] Vines v Djordjevitch (1955) 91 CLR 512; [1955] ALR 431 . . . . . . . . . . . . . . . . .[8-s 417A.1] Viro v R (1978) 141 CLR 88; 18 ALR 257 . . .[2-s 161.30] Visser v — [2011] NSWCCA 146; BC201104567 . . . . . . . . . . . . . . . . . . . . .[5-s 22.5] Von Lieven v Stewart (1990) 21 NSWLR 52; 3 ACSR 118 . . . . . . . . . . . . . . . .[8-s 351B.10] Vougdis v R (1989) 41 A Crim R 125 . . .[5-s 33.1] W v — [2014] NSWCCA 110; BC201405596 .[2-s 133.1] Wainohu v New South Wales (2011) 278 ALR 1; 85 ALJR 746 . . . . . . . . . . . . . . . . . . . . Wakefield v R [2010] NSWCCA 12; BC201000466 . . . . . . . . . . . . . . . . . . . .[5-s 44.15] Wakeling v — [2016] NSWCCA 33; BC201601309 . . . . . . . . . . . . . . . . . . .[8-s 66C.60] Walden v Hensler (1987) 163 CLR 561; 75 ALR 173 . . . . . . . . . . . . . .[5-s 10.1], [8-s 117.35] Walker v Bugden (2005) 155 A Crim R 416 . . . . . . . . . . . . . . . . . . . .[21-1535.5] — v Walker [1967] 1 All ER 412; [1967] 1 WLR 327 . . . . . . . . . . . . . . . . . . . .[2-s 190.1] — v West [1981] 2 NSWLR 570 . . . . .[21-s 49.5] Wallis v Lane [1964] VR 293 . . . . . .[8-s 117.20] Walsh v Sainsbury (1925) 36 CLR 464; [1925] ALR 343 . . . . . . . . . . . . . . . . .[8-s 351B.5] — v Tattersall (1996) 188 CLR 77; 139 ALR 27 . . . . . . . .[2-s 8.1], [2-s 16.25], [10-s 25.1] Walton v Gardiner (1993) 177 CLR 378; 112 ALR 289 . . . . . . . . . . . . . . . . . .[2-s 19.5]

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ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020 — v Salmon (1992) 10 Petty SR 4530 .[8-s 195.10] WAP v R [2017] NSWCCA 212; BC201707089 . . . . . . . . . . . . . . . . . . . .[5-s 21A.5] Warby v — (2007) 171 A Crim R 575 . .[8-s 324.5] Ward v Marsh [1959] VR 26; [1958] ALR 724 . . . . . . . . . . . . . . . . . . . .[11-125.15] Warner v Elder (NSWSC, Temby AJ, 23 April 1997, BC9703044) . . . . . . . . . . . .[21-s 48.30] — v Met Police Cmr [1969] 2 AC 256; 2 All ER 356 . . . . . . . . . . . .[8-s 159.20], [10-s 10.30] Wasow v R (1985) 18 A Crim R 348 . . . .[7-505] Water Board v EPA (1994) 83 LGERA 174 . . .[2-s 14.1] Watson v A-G (NSW) (1987) 8 NSWLR 685; 28 A Crim R 332 . . . . . . . . .[2-s 19.5], [7-220] — v Watson (1970) 70 SR 203 . . . . . .[2-s 190.1] Waugh v Kippen (1986) 160 CLR 156; 64 ALR 195 . . . . . . . . . . . . . . . . . . . . .[8-s 44.5] Weaver v Bush (1798) 8 Term Rep 78 . .[8-s 58.30] Webb and Hay v R (1994) 181 CLR 41; 122 ALR 41 . . . . . . . . . . .[1-015], [2-s 21.15], [7-460] Weekes v Lahood (1992) 10 Petty SR 4501 . . .[8-s 58.55], [8-s 546C.15] — v — (NSWSC, Grove J, 11795 of 1992, 31 July 1002, BC9201717) .[21-s 99.20], [21-s 105.1] Wehebe v Voulgarakis (1991) 9 Petty Sessions Review 4363; (1991) 9 Petty SR 4363 . . .[2-s 11.1], [2-s 16.35] Weissensteiner v R (1993) 178 CLR 217; 117 ALR 545 . . . . . . . . . . . . . . . . .[2-s 161.35] Welham v DPP [1961] AC 103 . . . . .[2-cl 21.15] Wells v Hopwood (1832) 3 Barnewall and Adolphus 20 . . . . . . . . . . . . . . . . . .[8-s 57.10] Weston v Cmr of Police, Qld [2004] 1 Qd R 103 . . . . . . . . . . . .[8-s 10A.10], [8-s 10E.1] WGC v R (2007) 233 CLR 66; 241 ALR 199; 82 ALJR 220; 179 A Crim R 193 . . .[2-s 16.15] Whelan v — [2012] NSWCCA 147; BC201204946 . . . . . . . . . . . . . . . . . . . .[8-s 52A.5] White v — (1989) 18 NSWLR 332; 46 A Crim R 251 . . . . . . . . . . . . . . . . . . . .[2-s 293.1] — v — (1906) 4 CLR 152; 13 ALR 102 . . . .[8-s 319.5] — v — [2014] NSWCCA 329; BC201411148 .[10-s 25A.1] — v Ridley (1978) 140 CLR 342; 21 ALR 661 .[8-s 18.15], [8-s 351B.5] Whitehorn v R (1983) 152 CLR 657; 49 ALR 448 . . . . . . . . . . . . . . .[2-s 160.1], [7-485] Whittaker v Campbell [1983] 3 WLR 676 . . . .[8-s 154A.10] Whitten v Hall (1993) 29 NSWLR 680 . .[2-s 19.5], [2-s 192.5] Wiggins v R [2010] NSWCCA 30; BC201000966 . . . . . . . . . . . . . . .[5-s 24.1], [5-s 47.1] Wilcox v — [2011] NSWCCA 42 . . . .[8-s 97.20]

Wilde v NSW [2015] NSWCA 28; BC201500929 . . . . . . . . . . . . . . . . . . . . .[29-960.5] Wilkins v R [2009] NSWCCA 222; BC200908931 . . . . . . . . . . . . . . . . . . . .[8-s 33.20] Williams v Douglas (1949) 78 CLR 521; [1950] ALR 223 . . . . . . . . . . . .[8-s 7.1], [10-s 10.10] — v DPP(NSW) [2011] NSWSC 1085; BC201107318 . . . . . . . . . .[8-s 546C.15] — v Lewer [1974] 2 NSWLR 91 . . . .[5-s 10.10] — v Phillips (1957) 41 Cr App R 5 . .[8-s 117.10], [8-s 117.15] — v R (2012) 62 MVR 382 . .[7-410], [7-455], [8-s 52A.15] — v — (2006) 160 A Crim R 151 . . . . .[8-s 86.3] — v — (1978) 140 CLR 591; 22 ALR 195 . .[10-s 10.30] — v — [2010] NSWCCA 15; BC201000929 . .[5-s 21A.5] — v — [1982] WAR 277 . . . . . . . . . . .[7-525] — v Spautz (1992) 174 CLR 509; 107 ALR 635 . . . . . . . . . . . . . .[2-s 19.5], [2-s 192.5] Williamson v DPP (Qld) [2001] 1 Qd R 99 . . .[9-s 19.10] Willmott v Attack [1976] 3 WLR 753 . .[8-s 58.50] Wills v Williams [1971] WAR 29 . . . .[11-125.25], [11-140.10] Wilson v DPP [2002] NSWSC 935; BC200206024 . . . . . . . . . . . . .[11-130.10], [21-s 99.5] — v DPP (NSW) [2017] NSWCA 128; BC201704276 . . . . . . . . . . . .[8-s 316.15], [8-s 580F.1] — v Kuhl [1979] VR 315 . . . . . . . .[11-230.10] Wiltshire v Barrett [1966] 1 QB 312; [1965] 2 All ER 271 .[8-s 546C.15], [21-s 99.20], [21-s 105.1], [21-s 231.1] Windle v R [2011] NSWCCA 277; BC201110827 . . . . . . . . . . . . . . . . . . .[5-s 21A.10] Winn v — [2007] NSWCCA 44; BC200700958 . . . . . . . . . . . . . . . . . . . .[8-s 60.15] Winner v — (1989) 39 A Crim R 180 . .[2-s 162.1] Withers v DPP [1974] 3 WLR 751 . . .[2-cl 21.15] Wong Kam-Ming v R [1980] AC 247; [1979] 1 All ER 939 . . . . . . . . . . . . . . . . . .[2-s 31.1] Wong Pooh Yin v Public Prosecutor [1955] AC 93 . . . . . . . . . . . . . .[8-s 417.1], [11-275.1] Wong v DPP (2005) 155 A Crim R 37 . .[2-s 207.1] — v R [2009] NSWCCA 101; BC200912274 . .[2-s 161.30] — v — (2001) 207 CLR 584; 185 ALR 233 . .[5-s 22.5], [5-s 37.1] Woodley v Boyd [2001] NSWCA 35; BC200100621 . . . . . . . . . . . . . . . . . . . .[21-s 231.1] Woodroffe v NCA (1999) 168 ALR 585 . . . . .[2-s 222.25] Woods v DPP [2014] VSC 1; BC201400057 . .[9-s 16A.10], [9-s 19.10] Woodward v Wallace (NSWSC, 23 April 1985,

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TABLE OF CASES unreported) . . . . . . . . . . . . . .[10-s 3.20] Wooley v Fitzgerald [1969] Tas SR 65 . .[8-s 58.5] Woolworths Ltd v Waverley Council (1999) 103 LGERA 227 . . . . . . . . . . . . . . .[1-020] Worcester v Smith [1951] VLR 316 . . .[11-125.20] WorkCover Authority of NSW (Inspector Keenan) v Lucon (Aust) Pty Ltd (2002) 112 IR 332 .[2-s 179.1] Worsley v Aitken (1990) 9 Petty SR 4074 . . . .[5-s 10.10], [8-s 546C.10] WW v R [2012] NSWCCA 165; BC201206782 .[8-s 52A.45] x (NSWCCA, Gleeson CJ, 11 June 1992, unreported) . . . . . . . . . . . . . . . . . . . .[2-s 192.5] Xiao v R (2018) 329 FLR 1 .[5-s 22.5], [5-s 25A.5] Yager v — (1977) 139 CLR 28; 13 ALR 247 . .[2-s 161.25] Yenice v — (1994) 72 A Crim R 234 . . .[5-s 23.1] Young v Cmr for Railways (1962) 62 SR (NSW) 647 . . . . . . . . . . . . . . . . . . . .[10-s 43.1]

— v Sprague [2015] NSWSC 1874; BC201512127 . . . . . . . . . . . . . . . . . . . .[2-s 177.5] Z v R [2014] NSWCCA 323; BC201411203 . .[5-s 23.1] ZA v — [2018] NSWCCA 116; BC201804738 .[8-s 66EB.7], [8-s 66EB.10] Zanetti v Hill (1962) 108 CLR 433; [1963] ALR 165 . . . . . . . . . . . . . . . . . . . . . .[7-525] Zanker v Vartzokas (1988) 34 A Crim R 11 . . .[8-s 58.5] Zecevic v DPP (Vic) (1987) 162 CLR 645; 71 ALR 641 . . . .[8-s 18.25], [8-s 58.20], [8-s 418.1] Ziems v The Prothonotary (1957) 97 CLR 279; [1957] ALR 620 . . . . . . . . . . . . . . . . .[7-485] Zoneff v R (2000) 200 CLR 234; 172 ALR 1 . .[2-s 161.62] Zwam v — [2017] NSWCCA 127; BC201704412 . . . . . . . . . . . . . . . . . . .[5-s 21A.10] ZZ v — [2013] NSWCCA 83; BC201301960 . .[5-s 21A.15]

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Proceedings Before Magistrates CONTENTS Paragraph

INTRODUCTION: PROCEEDINGS BEFORE MAGISTRATES The Local Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Decisions of Supreme and District Courts . . . . . . . . . . . . . . . . . . . . . Statutory reforms affecting the Local Court . . . . . . . . . . . . . . . . . . . Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Interest or bias . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Express and implied powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Local Court may give directions in circumstances not covered by rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

INDICTABLE

OFFENCES: PROCEEDINGS MAGISTRATES

[1-001] [1-005] [1-007] [1-010] [1-015] [1-020] [1-025]

BEFORE

Commencement of prosecution Who may prosecute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Indictable offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The court attendance notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Service of notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[1-050] [1-055] [1-060] [1-065]

Procedure before committal proceedings Bail . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Adjournment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Summary disposal of indictable offences by Local Courts . . . . Other indictable offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2017 amendments concerning committal proceedings . . . . . . . . . Paper committal procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Attendance of witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Subpoenas to give evidence or produce documents . . . . . . . . . . . . Open court, suppression orders and non-publication orders . . . . Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[1-100] [1-105] [1-120] [1-125] [1-127] [1-130] [1-140] [1-145] [1-150] [1-155]

Committal proceedings Committal proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Procedures in committal proceedings generally . . . . . . . . . . . . . . . . The prosecution case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 62 initial determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[1-200] [1-205] [1-210] [1-215]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Paragraph

The defence case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The section 64 decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Committal for sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Setting aside ex parte order of committal . . . . . . . . . . . . . . . . . . . . . . Appeal to Court of Criminal Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . Supreme Court appeal and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . District Court appeal and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Federal Court appeal and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

SUMMARY

OFFENCES: PROCEEDINGS MAGISTRATES

[1-220] [1-225] [1-230] [1-240] [1-245] [1-250] [1-260] [1-265] [1-270]

BEFORE

Commencement of prosecution Who may prosecute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Summary offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The court attendance notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Service of notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[1-275] [1-280] [1-285] [1-290]

Procedure before summary hearing Bail . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Adjournment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Accused person suffering from mental illness or condition . . . . Subpoenas to give evidence and produce documents . . . . . . . . . . Open court, suppression orders and non-publication orders . . . . Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Indictable offences punishable summarily . . . . . . . . . . . . . . . . . . . . .

[1-350] [1-355] [1-360] [1-365] [1-370] [1-375] [1-380]

Summary offences Written plea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ex parte proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Briefs of evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Failure of prosecutor or accused person to appear . . . . . . . . . . . . . Joint hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The prosecution case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Re-opening prosecution case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . No case to answer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The defence case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Case in reply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Addresses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Decision of magistrate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[1-425] [1-430] [1-435] [1-440] [1-445] [1-450] [1-455] [1-460] [1-465] [1-470] [1-475] [1-480] [1-485] [1-490]

PROCEEDINGS BEFORE MAGISTRATES

Paragraph

Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Review by Local Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appeal and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[1-495] [1-500] [1-510]

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Proceedings Before Magistrates INTRODUCTION: PROCEEDINGS BEFORE MAGISTRATES [1-001] The Local Court The Local Court of New South Wales is constituted under the provisions of Pt 2 of the Local Court Act 2007: see [29-55,075] and following. Magistrates are appointed under Div 2 of Pt 2 of that Act: see [29-55,115] and following. As to the history of the magistracy in NSW, see R v Longshaw (1990) 20 NSWLR 554; (1990) 50 A Crim R 401; North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146; 206 ALR 315; [2004] HCA 31; BC200403588 at [4], [37], [44] and H Golder, High and responsible offıce: a history of the NSW magistracy, Sydney University Press, Sydney, 1991. For a history of the criminal jurisdiction of the Courts of Petty Sessions up to 1966, see J M Smail, Justices Act 1902–1966, Butterworths, Sydney, 1966, pp 113–17. For a history of the civil jurisdiction of the present Local Court and its predecessors, see Ritchie’s Uniform Civil Procedure NSW, LexisNexis Butterworths, looseleaf, at [20,000].

[1-005] Decisions of Supreme and District Courts A magistrate is bound to follow a decision of the Supreme Court or a court above that is in the judicial hierarchy: Fleming v White [1981] 2 NSWLR 719 at 725–6; (1981) 7 A Crim R 448. A magistrate is not bound to follow a decision of the District Court although such a decision would be, except on rare occasions, “compellingly persuasive”: Valentine v Eid (1992) 27 NSWLR 615; 15 MVR 541. The importance of a magistrate following binding precedent of the Supreme Court was stressed in Director of Public Prosecutions (DPP) (NSW) v Wililo [2012] NSWSC 713; BC201204764; 19(7) Crim LN [3088] where it was noted that a particular magistrate had repeatedly erred in a fundamental way in the conduct of summary criminal prosecutions despite there being a number of successful appeals against her decisions in the Supreme Court.

[1-007] Statutory reforms affecting the Local Court The Justices Act 1902 was repealed with effect from 7 July 2003. The following Acts commenced on that day: (a) the Criminal Procedure Amendment (Justices and Local Courts) Act 2001; (b) the Crimes (Local Courts Appeal and Review) Act 2001; (c) the Justices Legislations Repeal and Amendment Act 2001; (d) the Justices of the Peace Act 2002. The Criminal Procedure Amendment (Justices and Local Courts) Act 2001 enacted a comprehensive statutory regime in the Criminal Procedure Act 1986, at Guidecard 2, providing for summary criminal proceedings, committal proceedings and a range of ancillary provisions.

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[1-007]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

The Crimes (Appeal and Review) Act 2001 at Guidecard 4 provides for applications to the Local Court for annulment of convictions and sentences and appeals to the Supreme Court, Land and Environment Court and District Court against conviction, sentence and, in limited circumstances, acquittal in the Local Court. The Local Court Act 2007 commenced on 1 July 2009 with the repeal of the Local Courts Act 1982.

[1-010] Jurisdiction The Local Court has civil, special and criminal jurisdictions: s 9 Local Court Act 2007 at [29-55,085]. The Local Court, wherever sitting, has jurisdiction throughout the whole of NSW: s 11 Local Court Act 2007 at [29-55,095]. As to geographical jurisdiction, see ss 10A–10E Crimes Act at [8-s 10A] and following. As to ouster of jurisdiction of the Local Court where a question of rights over land is concerned, see Barns v Edwards (1993) 31 NSWLR 714; 68 A Crim R 140 and s 273 Criminal Procedure Act at [2-s 273]. For jurisdiction of state courts with respect to federal offences, see Pt X of the Judiciary Act 1903 (Cth) at [20-15,800] and following.

[1-015] Interest or bias A judge or magistrate should not hear and determine proceedings if affected by actual bias, or if there is a reasonable apprehension that the judge or magistrate is not impartial and unprejudiced. Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or a juror), the governing principle is that, subject to qualifications relating to waiver or necessity, a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question that the judge is required to decide: Ebner v Offıcial Trustee in Bankruptcy (2000) 205 CLR 337; 176 ALR 644; [2000] HCA 63; BC200007446 at [6]; Johnson v Johnson (2000) 201 CLR 488; 174 ALR 655; [2000] HCA 48; BC200005268; Webb and Hay v R (1994) 181 CLR 41; 122 ALR 41; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; 273 ALR 429; [2011] HCA 2; BC201100308 at [139], [146]–[152]. Deciding whether a judicial officer or juror might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability: Ebner v Offıcial Trustee in Bankruptcy, above, at [7]. The duty of a judge to disqualify him or herself for proper reason is matched by an equal duty not to disqualify except for proper reason: Ebner v Offıcial Trustee in Bankruptcy, above, at [19]–[20]; Raybos Australia Pty Ltd v Tectran Corp Pty Ltd (1986) 6 NSWLR 272; BC8600683, although in a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view: Ebner v Offıcial Trustee in Bankruptcy, above, at [20]–[21]. The circumstance that a judge has a not insubstantial, direct, pecuniary or proprietary interest in the outcome of litigation will ordinarily result in disqualification: Ebner v Offıcial Trustee in Bankruptcy, above, at [58].

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[1-020]

As a matter of prudence and professional practice, judges should disclose interests and associations if there is a serious possibility that they are potentially disqualifying: Ebner v Offıcial Trustee in Bankruptcy, above, at [69]. Reasonable apprehension of bias was demonstrated where members of a court had heard an earlier case involving the same issues and a common witness and had made findings as to credit: Livesey v NSW Bar Association (1983) 151 CLR 288; 47 ALR 45, and where a magistrate had convicted a defendant upon one information and proceeded to hear a further information against the same defendant where the subject matter of the second information was inextricably interwoven with the first: Swann v Price (1986) 7 Petty Sessions Review 3481 at 3484–5, and where the magistrate had disbelieved the defendant at the first hearing: Hosler v Maughan (1989) 40 A Crim R 281 at 283; BC8902279. Where reasonable apprehension of bias is said to arise by way of prejudgment, it is necessary to consider the nature and strength of any previous findings which are relied upon in support of the application and in particular whether the findings concern the credibility of a witness or witnesses: British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; 273 ALR 429; [2011] HCA 2; BC201100308 at [139]–[145]; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; 86 ALJR 14; [2011] HCA 48; BC201109206 at [31]–[33], [67]–[73]. The hypothetical observer will have in mind the fact that judges are equipped by training, experience and their oath or affirmation to decide factual contests solely on the material that is in evidence in the particular case: British American Tobacco Services Ltd v Laurie at [140]. When a party is in a position to object but takes no step to do so, that party cannot be heard to complain later that the judge was biased: Vakauta v Kelly (1989) 167 CLR 568; 87 ALR 633; BC8902709. However, a party cannot effectively waive a right without being aware of the facts giving rise to the right: Carver v Law Society of New South Wales (1998) 43 NSWLR 71; BC9800186 at [36]. The rule of necessity permits a member of a court who has some interest in the subject matter of the litigation to sit in a case where no judge without such an interest is available to sit: Laws v Australian Broadcasting Tribunal (1990) 170 CLR 71 at 88–9, 96–8; 93 ALR 435 at 448, 454; BC9002913; Ebner v Offıcial Trustee in Bankruptcy (2000) 205 CLR 337; 176 ALR 644; [2000] HCA 63; BC200007446 at [64]–[65]. The relevant principles concerning apprehended bias were considered in Gaudie v Local Court of NSW [2013] NSWSC 1425; BC201313230, in the context of a disqualification application arising from statements made by a magistrate in a letter to a newspaper and a subsequent interview with a journalist.

[1-020] Express and implied powers The Local Court is a statutory court of record: s 7(1) Local Court Act 2007 at [29-55,075]. It is an inferior court with a limited jurisdiction which arises expressly under statute or is derived by implication from statutory provisions conferring particular jurisdiction: Grassby v R (1989) 168 CLR 1; 87 ALR 618; BC8902704 at CLR 16–17. The Local Court has no inherent jurisdiction: Grassby v R, above. An implied power may be found where a court has jurisdiction under statute but no provision is made in the statute for the making of an order “which is necessary to carry [the court’s] statutory powers into effect”: R v Mosely (1992) 28 NSWLR 735; (1992) 65 A Crim R 452; BC9203074 at NSWLR 739. In hearing and determining the proceedings under the court’s statutory jurisdiction, it may do that which is “really necessary to secure the

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[1-020]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

proper administration of justice in the proceeding before it”: John Fairfax Group Pty Ltd v Local Court of NSW (1991) 26 NSWLR 131; 59 A Crim R 68 at NSWLR 160. The term “necessary” does not mean “essential” but rather “subjected to the touchstone of reasonableness”; it is to be understood as identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of statutory powers: Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435; 162 ALR 336; [1999] HCA 19; BC9902072 at ALR 348. Since Grassby v R, above, implied powers have been held to exist with respect to an inferior court of record in Stanton v Abernathy (1990) 19 NSWLR 656; 48 A Crim R 16 at NSWLR 671 (particulars, amendment and election in the Local Court), John Fairfax Group Pty Ltd v Local Court of NSW, above, (pseudonym orders in extortion cases in the Local Court), Lay v Cleary (NSWSC, James J, 14202/1992, 23 February 1993, unreported, BC9303691); Director-General of Fair Trading v O’Shane (NSWSC, Graham AJ, 10578/1996, 22 August 1997, unreported, BC9703791); (leave to withdraw information in Local Court); Hartingdon v Director-General of Department of Community Services (1993) 17 Fam LR 126; BC9302279 (NSWSC, Levine J) (leave to withdraw care proceedings in Children’s Court); Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129; 102 A Crim R 180; BC9802628; (1998) 5 Crim LN 39 [854] (power of Local Court to order permanent stay of summary prosecution as an abuse of process) and R v Webster (1998) 43 NSWLR 256; 100 A Crim R 26; BC9800565; (1998) 5 Crim LN 10 [808] (power of Local Court to issue bench warrant for the arrest of a periodic detainee on the non-appearance of a detainee on a cancellation application of a periodic detention order and on the Department of Corrective Services establishing a prima facie case). Implied powers have been held not to exist with respect to an inferior court of record in R v Mosely, above costs in criminal proceedings in District Court); Director of Public Prosecutions v Deeks (1994) 34 NSWLR 523; 74 A Crim R 85; BC9404935 at NSWLR 531–3 (costs application under Confiscation of Proceeds of Crime Act 1989 in District Court); Director of Public Prosecutions v Boykin (NSWSC, Wood J, 10204/1994, 21 June 1994, unreported, BC9405141) (costs where Local Court orders permanent stay of summary prosecution); Woolworths Ltd v Waverley Council (1999) 103 LGERA 227; [1999] NSWSC 308; BC9901833 (costs of appeal to Local Court under Impounding Act 1993); John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344; 50 ACSR 380; [2004] NSWCA 324; BC200406122; (2004) 11 Crim LN 96 [1772] (non-publication order with respect to verdict following District Court trial). As to the incidental power of the Local Court to set aside orders in civil proceedings as an incident of its function as a court of justice, see Hoskins v van Den-Braak (1998) 43 NSWLR 290; BC9801033.

[1-025] Local Court may give directions in circumstances not covered by rules In relation to particular proceedings, the Local Court may give directions with respect to any aspect of practice and procedure not provided for by or under the Local Court Act 2007, the Criminal Procedure Act 1986, the Civil Procedure Act 2005 or any other Act: s 28 Local Court Act 2007 at [29-55,255]. Anything done in accordance with such a direction (including the commencing of proceedings and the taking of any step in proceedings) is taken to have been validly done: s 28(2) at [29-55,255].

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[1-060]

INDICTABLE OFFENCES: PROCEEDINGS BEFORE MAGISTRATES COMMENCEMENT OF PROSECUTION [1-050] Who may prosecute A prosecution or proceeding in respect of any offence under an Act may be instituted by any person unless the right to institute the prosecution or proceeding is expressly conferred by that Act on a specified person or class of persons: s 14, Criminal Procedure Act at [2-s 14]. Committal proceedings, as defined at [2-s 3], are commenced on the date on which a court attendance notice is filed at a Local Court: [2-s 47]. As to the commencement of a public prosecution see [2-s 48]; and a private prosecution see [2-s 49]. See [2-s 50] for the requirements of a valid court attendance notice. Certain offences may only be prosecuted with the consent of the Attorney General or some other designated public official and some of these offences may be prosecuted with the consent of the NSW DPP: s 11, Director of Public Prosecutions Act 1986 at [29-10,245]. The NSW DPP may institute or take over the prosecution of an indictable offence: ss 8 and 9 Director of Public Prosecutions Act at [29-10,230] and [29-10,235]. See paragraph 4 of the Prosecution Guidelines for the Office of the Director of Public Prosecutions NSW at [28-25,020] for criteria to be taken into account in a decision to prosecute. See paragraph 6 of those Guidelines at [28-25,030] concerning charge selection and paragraph 8 at [28-25,040] concerning election for offences to be dealt with on indictment. See paragraph 20 of those Guidelines at [28-25,100] concerning charge negotiation and agreement, agreed statements of facts and Form 1 offences.

[1-055] Indictable offences An offence must be dealt with on indictment unless it is an offence that under any Act is permitted or required to be dealt with summarily: s 5(1) Criminal Procedure Act 1986 at [2-s 5]. An offence may be dealt with on indictment if it is an offence that under any Act is permitted to be dealt with summarily or on indictment: s 5(2) at [2-s 5]. Section 6 of the Criminal Procedure Act at [2-s 6] provides for offences which must or may be dealt with summarily. The expression “required to be dealt with on indictment” in s 6(1)(c) Criminal Procedure Act 1986 at [2-s 6] should be treated as being subject to s 260 of that Act: R v Fisher (2002) 54 NSWLR 467; [2002] NSWCCA 188; BC200202699; (2002) 9 Crim LN 39 [1430]; Anson v DPP (2002) 129 A Crim R 328; [2002] NSWSC 408; BC200202513.

[1-060] The court attendance notice The Local Court is given jurisdiction with respect to an alleged indictable offence by the filing of a court attendance notice alleging the offence pursuant to ss 47–9 at [2-s 47]–[2-s 49]. For the requirements of a valid court attendance notice, see [2-s 11], [2-s 16], [2-s 50]. Generally speaking, there is no time limit for commencing a prosecution for an indictable offence.

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[1-065]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

[1-065] Service of notice When a court attendance notice alleging an indictable offence has been issued, the notice ought be filed and served on the accused person: [2-s 52].

PROCEDURE BEFORE COMMITTAL PROCEEDINGS [1-100] Bail Where a person is charged with an indictable offence, bail may be granted by police under s 44 of the Bail Act 2013 at [9-s 44]ff. Bail may be granted by the Local Court under s 48 of the Bail Act 2013 at [9-s 48]ff.

[1-105] Adjournment The court has power to grant or refuse adjournments at any time during the proceedings: [2-s 40]. The power to adjourn is discretionary but ought not be exercised so as to work a manifest injustice to one of the parties: see authorities at [2-s 40.1] and [2-s 190.1]. See [2-s 40] for adjournment where there is a variance between the process and the evidence and the accused person has been misled by the variance. See also [2-s 118] for the power to order costs on adjournment by reason of the unreasonable conduct or delay of a party. Proceedings caught by the Pre-Trial Diversion of Offenders Act 1985 may also be adjourned to allow compliance with that Act: see s 9 and following at [29-65,165].

[1-120] Summary disposal of indictable offences by Local Courts See [2-s 5]–[2-s 6] as to indictable and summary offences. Sections 258–273 of the Criminal Procedure Act at [2-s 258] and following operate with respect to summary disposal of indictable offences by Local Courts. See generally R v Bartalesi (1997) 41 NSWLR 641; 93 A Crim R 274; BC9702655; (1997) 4(6) Crim LN 44 [709]. Indictable offences listed in Table 1 of Sch 1 of that Act at [2-Sch 1] are to be dealt with summarily unless the prosecutor or person charged elects otherwise: s 260(1) Criminal Procedure Act at [2-s 260]. Indictable offences listed in Table 2 of Sch 1 of that Act at [2-Sch 1] are to be dealt with summarily unless the prosecutor elects otherwise: s 260(2) Criminal Procedure Act at [2-s 260]. The magistrate is not called upon to exercise any discretion. All offences listed in Tables 1 and 2 will be dealt with summarily unless the relevant election is made. Where no election is made, the matter is to be determined summarily: s 261 Criminal Procedure Act at [2-s 261]. Where an election is made, the matter proceeds by way of committal proceedings: s 262 Criminal Procedure Act at [2-s 262]. Provision is made for the time to make an election and withdrawal of an election: [2-s 263]–[2-s 264]. Provision is made for certain information to be given to a person charged with a Table 1 offence including provision of a statement of the person’s right to make an election and its consequences and service of the prosecution brief and the person’s criminal record (if any): [2-s 265]. Section 267 at [2-s 267] provides for maximum penalties for Table 1 offences which are dealt with summarily. Section 268 at [2-s 268] provides for maximum penalties for Table 2 offences which are dealt with summarily. Nothing in Div 3 of Pt 2 of the Act confers jurisdiction on a Local Court to deal with an offence if the Children’s Court has exclusive jurisdiction to hear and determine the matter: [2-s 269]. The time limits contained at [2-s 179] or any other Act do not apply to offences dealt with summarily: s 179(2)(b) at [2-s 179].

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[1-140]

See paragraph 8 of the Prosecution Guidelines of the NSW DPP at [28-25,040] concerning election for offences to be dealt with on indictment.

[1-125] Other indictable offences Prosecutions for all indictable offences other than those nominated in Tables 1 and 2 in Sch 1 of the Criminal Procedure Act proceed by way of committal proceedings only.

[1-127] 2017 amendments concerning committal proceedings Major changes were made concerning committal proceedings by the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 which commenced on 30 April 2018. The new provisions abolish the substantive committal decision so that magistrates will no longer be required to consider the evidence and determine whether there is a reasonable prospect that a properly instructed jury would convict the accused person of the offence. Instead, the magistrate will need to be satisfied that the new steps certifying the charges and holding a case conference have been completed before committing the matter to a higher court for trial or sentence. With respect to proceedings commenced on or after that day, the new system of committal proceedings is contained in s 55 and following of the Criminal Procedure Act 1986 at [2-s 55]ff. The amendments are explained generally at [2-s 55.1]–[2-s 55.10]. With respect to proceeding commenced before 30 April 2018, the pre-existing provisions continue to apply so that the annotations at [1-130], [1-140] and [1-200]–[1-225] remain relevant to that class of case. The removed provisions (ss 55–108 Criminal Procedure Act 1986) have been retained temporarily at [REP 2-s 55]–[REP 2-s 108] and following for the convenience of subscribers.

[1-130] Paper committal procedures Section 74 at [REP 2-s 74] and following establishes a mandatory procedure for service of statements of prosecution witnesses upon the accused person. As to the contents of statements, see [REP 2-s 79] and following. Section 89 at [REP 2-s 89] requires information as to the rights of the accused person to be served in addition to written statements and this requirement is mandatory: Adamiczka v R (1993) 33 NSWLR 68 at 74E, 76G; 71 A Crim R 291; BC9303906. Section 76 at [REP 2-s 76] provides for special requirements as to transcripts of recordings of interviews with children. The prosecution is directed by the court to serve statements under [REP 2-s 75] within a specified period and the accused person is allowed a further specified period to indicate whether he or she desires the attendance at the committal proceedings of the persons who made statements.

[1-140] Attendance of witnesses Section 91 at [REP 2-s 91] provides that, on the application of the accused person or the prosecutor or on the court’s own motion, the magistrate may direct the attendance of a prosecution witness who has made a statement. Such a direction must be given if one party applies for it and the other party consents: s 91(2). In the case of a witness who is the alleged victim of an offence involving violence, such a direction may only be given if the magistrate is of the opinion that there are special reasons why, in the interests of

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justice, the witness should attend to give oral evidence: [REP 2-s 93]. In the case of any other witness, such a direction may only be given if the magistrate is of the opinion that there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence: s 91(3) at [REP 2-s 91]. Evidence not complying with the paper committal procedures may be allowed in certain circumstances: [REP 2-s 90].

[1-145] Subpoenas to give evidence or produce documents The provisions in ss 220–232 Criminal Procedure Act 1986 relating to the attendance of witnesses and production of evidence apply to committal proceedings: s 59(b) at [REP 2-s 59]. See annotations at [2-s 222] and following.

[1-150] Open court, suppression orders and non-publication orders Subject to any Act or other law, s 56 at [REP 2-s 56] provides that committal proceedings shall take place in open court. The Court Suppression and Non-publication Orders Act 2010 at [29-9001] and following creates a statutory power for courts, including the Local Court and Children’s Court, to make suppression orders and non-publication orders. See [REP 2-s 56.1] and [REP 2-s 56.5] for powers of the Local Court to close the court or make associated orders with respect to committal proceedings.

[1-155] Children The Children’s Court has jurisdiction to hear, inter alia, committal proceedings in respect of any indictable offence where the offence is alleged to have been committed by a child (a person under 18 years) when the offence was committed and the person is under 21 years when charged before the Children’s Court: s 28(1)(b) Children (Criminal Proceedings) Act 1987 at [16-15,460]. See ss 27 and 31 at [16-15,455] and [16-15,525] concerning committal proceedings in the Children’s Court. The prosecution of a child charged with a “serious indictable offence” must proceed by way of committal proceedings and cannot be heard and determined summarily in the Children’s Court: ss 3(1) and 28(1) Children (Criminal Proceedings) Act at [16-15,010] and [16-15,460].

COMMITTAL PROCEEDINGS [1-200] Committal proceedings The hearing of committal proceedings is an administrative and not a judicial function although the person conducting them must act judicially: see [REP 2-s 57.1] and, in particular, Ex parte Cousens; Re Blacket (1946) 47 SR (NSW) 145 at 147–8; 63 WN (NSW) 228; Grassby v R (1989) 168 CLR 1; 87 ALR 618; BC8902704 at CLR 11, 15; Sankey v Whitlam (1978) 142 CLR 1 at 83–4; 21 ALR 505; R v Murphy (1985) 158 CLR 596 at 616; 61 ALR 139. The purpose of committal proceedings is to examine and permit the testing of the evidence led by the prosecution to see whether there is sufficient evidence to warrant the accused being put on trial and they are not conducted merely to aid the preparation of the defence case: see [REP 2-s 57.1] and, in particular, Moss v Brown [1979] 1 NSWLR 114; R v Basha (1989) 39 A Crim R 337 at 340; BC8902533.

[1-205] Procedures in committal proceedings generally Committal proceedings shall be conducted in the presence of the accused person unless that person is to be represented and applies to be excused or, in certain

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[1-225]

circumstances, where the accused person fails to appear: [REP 2-s 71]–[REP 2-s 73]. In respect of state offences, if a question arises as to the defendant’s fitness to plead, the committal proceedings continue as usual and the question of fitness is dealt with in the trial court: Pioch v Lauder (1976) 13 ALR 266; 27 FLR 79 at 85. Section 31(1) of the Mental Health (Forensic Provisions) Act 1990 at [17-2350] provides that Pt 3 of that Act does not apply to committal proceedings.

[1-210] The prosecution case There is no obligation on the prosecution at committal proceedings to call every witness upon whom it wishes to rely at trial but the discretion should not be exercised for tactical reasons: see [REP 2-s 59.15]. As to the use of interpreters, see [REP 2-s 59.10]. The magistrate may terminate the examination or cross examination of a witness on any particular matter if satisfied that any further examination or cross examination on the matter will not help the magistrate to make the initial determination under s 62 or a decision under s 64: [REP 2-s 69]. The magistrate must not exclude evidence on any of the discretionary grounds set out in s 90 or Pt 3.11 of Evidence Act 1995: [REP 2-s 70]. The evidence adduced in committal proceedings should be admissible under the normal rules of evidence: Lloyd v Bibbin [1962] VR 593 at 594. The Evidence Act 1995 at [3-s 1] and following makes extensive provision with respect to adducing evidence, admissibility of evidence, proof and other related matters.

[1-215] Section 62 initial determination After all the evidence of the prosecution has been presented, the magistrate must consider whether he or she is of the opinion that, having regard to all the evidence before him or her, the evidence is capable of satisfying a jury properly instructed, beyond reasonable doubt that the accused person has committed an indictable offence: [REP 2-s 62]. If not of this opinion, the accused person should be discharged: s 62(2). If the magistrate is of that opinion, he or she should proceed in accordance with s 63. As to the nature of the opinion under s 62, see [REP 2-s 62.5].

[1-220] The defence case If the magistrate is of the opinion that the prosecution evidence is capable of satisfying a reasonable jury, properly instructed, beyond reasonable doubt that the accused person committed an indictable offence, the magistrate must give the accused person an opportunity to answer the charge and a warning in the form prescribed by the rules and proceed to take any statement by or any evidence adduced by the accused person: [REP 2-s 63]. The accused person is entitled to give evidence and call witnesses: [REP 2-s 97].

[1-225] The section 64 decision When all the prosecution and defence evidence has been taken, the magistrate must consider whether he or she is of the opinion that, on the basis of all the evidence before him, there is a reasonable prospect that a reasonable jury properly instructed would convict the accused person of an indictable offence: [REP 2-s 64]. If he or she is of this opinion, the accused person should be committed for trial: s 65(1). If he or she is not of this opinion, the accused person should be discharged: [REP 2-s 66]. As to the nature of the opinion under s 64, see [REP 2-s 65.1]. The accused person should be committed for trial on a specific charge or charges and where the magistrate finds evidence sufficient to

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support a charge other than that with which the accused person was originally before the court, he or she should recharge the accused person: Kolalich v DPP (1991) 173 CLR 222; 103 ALR 630; BC9102610 at CLR 255–7. The magistrate cannot commit for an offence in respect of which consent by a person is required before a prosecution can be commenced: R v Bacon [1973] 1 NSWLR 87 at 95. See, generally, Procedures for Hearings on Indictment at [7-001] and following for procedures in the Supreme and District Court following committal for trial.

[1-230] Costs Where an accused person is discharged, the matter is withdrawn or he or she is committed for trial or sentence for an indictable offence which is not the same as the indictable offence the subject of the court attendance notice, the court has power to order the prosecutor to pay the accused person’s costs: [2-s 116]. Section 117 restricts the circumstances under which costs may be ordered against a public informant. In cases brought by an informant acting in a private capacity, the court has a broad discretion to order costs, see [2-s 117.10]. A magistrate may grant a certificate under s 2 of the Costs in Criminal Cases Act 1967 to an accused person who is discharged at committal proceedings. See Allerton v DPP (1991) 24 NSWLR 550 at 555–6; 53 A Crim R 33. Section 118 at [2-s 118] empowers the Local Court to order one party to pay to the other party additional costs incurred by reason of the unreasonable conduct or delay of the offending party.

[1-240] Committal for sentence Where an accused person pleads guilty to an indictable offence and the plea is accepted by the magistrate and summary jurisdiction is not available or is not availed of, the accused person is committed for sentence to the Supreme or District Court: [2-s 99]–[2-s 102]. The magistrate is entitled to reject the plea and should do so where the offence does not appear to be made out by the evidence: ss 100–1 and Frodsham v O’Gorman [1979] 1 NSWLR 683. See [2-s 104] as to referral back by the Supreme or District Courts of committal proceedings to the Local Court. See [5-001] and following for sentencing procedure and practice.

[1-245] Setting aside ex parte order of committal Where an accused person has been committed for trial in his or her absence, a magistrate may set aside the order of committal and any warrant of commitment issued thereon if, upon application by the accused person made before presentation or filing of an indictment, good and proper reason is shown for his or her absence and the magistrate is satisfied that it is in the interests of justice to do so: [2-s 67].

[1-250] Appeal to Court of Criminal Appeal Section 5F of the Criminal Appeal Act 1912 at [20-265] provides for appeal against an interlocutory judgment or order in committal proceedings: see [20-265.1] and Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667; 75 A Crim R 8; BC9405113. A person may not seek leave to appeal under the Crimes (Appeal and Review) Act 2001 against a decision of a Local Court that has been the subject of an appeal or application for leave to appeal to the Court of Criminal Appeal: [4-s 60]. A person may not appeal under s 5F of the Criminal Appeal Act to the Court of Criminal Appeal against any interlocutory order if the person has instituted an appeal

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[1-275]

against the interlocutory judgment or order to the Supreme Court under Pt 5 of the Crimes (Appeal and Review) Act 2001: s 5F(7) Criminal Appeal Act at [20-265].

[1-260] Supreme Court appeal and review Section 53(3)(a) Crimes (Appeal and Review) Act 2001 at [4-s 53] enables any person to appeal to the Supreme Court against any order made in relation to the person in any committal proceedings, on a question of law alone, but only with the leave of the Supreme Court. A person may not seek leave to appeal under that Act against a decision of a Local Court that has been the subject of an appeal or application for leave to appeal to the Court of Criminal Appeal: [4-s 60]. A person may not appeal under s 5F Criminal Appeal Act to the Court of Criminal Appeal against any interlocutory order if the person has instituted an appeal against that order to the Supreme Court under Pt 5 of the Crimes (Appeal and Review) Act 2001: s 5F(7) Criminal Appeal Act at [20-265]. Declaratory relief and mandamus under ss 65, 69 and 75 of the Supreme Court Act remain available. See [20-20,575], [20-20,585] and [20-20,610] and the authorities referred to in those paragraphs. See the authorities at [2-s.65.15](e) concerning the reluctance of the Supreme Court to intervene with respect to committal proceedings.

[1-265] District Court appeal and review Section 23(2) Crimes (Appeal and Review) Act 2001 at [4-s 23] enables a prosecutor to appeal against a cost order made under ss 116–18 Criminal Procedure Act 1986 at [2-s 116]–[2-s 118] in respect of committal proceedings.

[1-270] Federal Court appeal and review A magistrate’s decision in a committal proceeding whilst exercising federal jurisdiction is reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth): Lamb v Moss (1983) 49 ALR 533; 76 FLR 296; 5 ALD 446.

SUMMARY OFFENCES: PROCEEDINGS BEFORE MAGISTRATES COMMENCEMENT OF PROSECUTION [1-275] Who may prosecute See [1-050]. Where the DPP has taken over a summary prosecution under ss 9 and 10 of the Director of Public Prosecutions Act, the original prosecutor is subsumed in the DPP and the DPP may not thereafter commence proceedings (eg, by way of appeal) in the name of the original prosecutor but must do so as the DPP: Price v Ferris (1994) 34 NSWLR 704; 74 A Crim R 127; BC9404940. If a prosecution or proceeding that has been taken over by the DPP under s 9 is remitted to the Local Court, the DPP may hand the matter back to the original prosecutor: s 9A Director of Public Prosecutions Act at [29-10,238].

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[1-280] Summary offences Section 6 of the Criminal Procedure Act 1986 at [2-s 6] provides for offences which must or may be dealt with summarily. The expression “required to be dealt with on indictment” in s 6(1)(c) Criminal Procedure Act at [2-s 6] should be treated as being subject to s 260 of that Act: R v Fisher (2002) 54 NSWLR 467; [2002] NSWCCA 188; BC200202699; (2002) 9 Crim LN 39 [1430]; Anson v DPP (2002) 129 A Crim R 328; [2002] NSWSC 408; BC200202513.

[1-285] The court attendance notice The Local Court is given jurisdiction with respect to an alleged summary offence by the filing of a court attendance notice: [2-s 178]. As to the requirements of a court attendance notice, see [2-s 175.1]. See [2-s 179] for the limitation period for commencing a summary prosecution. See [2-s 173] for commencement of a public prosecution and [2-s 174] for commencement of a summary prosecution. See s 45 of the Local Court Act 2007 at [29-55,505] for proceedings commenced by application in the special jurisdiction of that court.

[1-290] Service of notice See [2-s 177] concerning service of a court attendance notice.

PROCEDURE BEFORE SUMMARY HEARING [1-350] Bail See [1-100] and the Bail Act 2013 at [9-s 1] and following.

[1-355] Adjournment The court has power to grant or refuse adjournments: [2-s 40]. The power to adjourn is discretionary but ought not to be exercised so as to work a manifest injustice to one of the parties: see [2-s 40.1] and [2-s 190.1]. See [2-s 40] for adjournment where there is a variance between the process and the evidence and the accused person has been misled by the variance. See also [2-s 216] for the power to order costs on adjournment by reason of the unreasonable conduct or delay of a party. See s 187(4) at [2-s 187] as to adjournment where the prosecutor has not served the brief of evidence in accordance with the Act.

[1-360] Accused person suffering from mental illness or condition Part 3 of the Mental Health (Forensic Provisions) Act 1990 at [17-2350] and following makes provision for magistrates to make orders of a diversionary type where an accused person is charged with a summary offence. Section 33 at [17-2360] applies where the accused person appears to be “mentally ill” within the Mental Health Act 2007. Section 32 at [17-2355] applies where the accused person appears to be developmentally disabled or to be suffering from a mental illness or condition but not to be “mentally ill”.

[1-365] Subpoenas to give evidence and produce documents See [2-s 222]–[2-s 232] generally as to subpoenas in criminal proceedings in the Local Court.

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[1-435]

[1-370] Open court, suppression orders and non-publication orders Subject to any Act or other law, s 191 at [2-s 191] provides that summary proceedings are to be heard in open court. The Court Suppression and Non-publication Orders Act 2010 at [29-9001] and following creates a statutory power for courts, including the Local Court and Children’s Court, to make suppression orders and non-publication orders. See [2-s 56.1] and [2-s 56.5] for powers of the Local Court to close the court or make associated orders with respect to summary proceedings.

[1-375] Children The Children’s Court has jurisdiction to hear and determine by way of summary hearing proceedings in respect of all summary and indictable offences except “serious indictable offences”: see ss 3 and 28(1), Children (Criminal Proceedings) Act 1987 at [16-15,010] and [16-15,460]. For circumstances in which the Children’s Court may decline to hear and determine an indictable offence summarily and will commit for trial, see s 31 at [16-15,525]. As to procedure for summary hearings in the Children’s Court, see s 4 and following at [16-15,125]. Generally, the procedures for hearing matters are those which apply for the hearing of matters in the Local Court: s 27 at [16-15,455].

[1-380] Indictable offences punishable summarily See [1-120] for indictable offences which are to be dealt with summarily, in the absence of election to the contrary, pursuant to s 260 Criminal Procedure Act at [2-s 260].

SUMMARY OFFENCES [1-425] Written plea An accused person who is issued a court attendance notice may lodge a written plea of guilty or not guilty in the prescribed form with the clerk of the Local Court: s 182(1) at [2-s 182]. If a guilty plea is indicated, the notice may be accompanied by additional written material in mitigation of the offence: s 182(2). Where written notice of the plea is received not later than 7 days before the return date, the defendant is not required to attend: s 182(3).

[1-430] Ex parte proceedings Where an accused person does not appear and has not notified a plea of not guilty under s 182, the magistrate may proceed to hear the matter in accordance with ss 190(3), 196, 197. Sections 199–200 at [2-s 199]–[2-s 200] provide for the material to be considered by the court in ex parte proceedings. The provisions of s 10 of the Crimes (Sentencing Procedure) Act 1999 at [5-s 10] apply to ex parte proceedings: [2-s 209].

[1-435] Briefs of evidence If an accused person pleads not guilty to a summary offence, the prosecutor must, unless the court otherwise orders, serve on the accused person a copy of the brief of evidence relating to the offence: [2-s 183].

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The brief of evidence is to be served on the accused person at least 14 days before the hearing of the evidence for the prosecution unless the accused person consents or the court orders otherwise: s 183(3) and (4) at [2-s 183]. See [2-s 183] and following and annotations at [2-s 183.5]–[2-s 188.1]. As to case management of criminal proceedings in the Local Court, see annotations at [2-s 134.20] and Local Court Practice Note Crim 1 at [28-15,205].

[1-440] Hearing Where both parties appear, the magistrate shall proceed to hear the case: [2-s 192]. Where the accused person appears at the hearing, the substance of the offence shall be stated and he or she shall be asked if he or she pleads guilty or not guilty: s 192(2). The court may decide not to accept the plea of guilty: see ss 193–4 and cases at [2-s 193.1]. A plea of guilty is an admission of all the elements of the offence charged. The court has a discretion whether to allow the accused person to change his plea: see [2-s 207.1] and Stanton v Dawson (1987) 31 A Crim R 104; BC8701057. The accused person can plead not guilty generally or enter a special plea on the basis that the court is without jurisdiction, or he has been pardoned for the offence, or a plea in bar on the basis that the accused person has previously been convicted or acquitted of the offence charged: [2-s 193.5].

[1-445] Failure of prosecutor or accused person to appear See [2-s 201] for procedure where the prosecutor is not present or the prosecutor and the accused person are both not present.

[1-450] Joint hearing Where an accused person is charged with two or more offences or two or more accused persons are separately charged with offences, a magistrate may hear the matters together if the parties consent or if the offences arise out of the same set of circumstances or the offences form or are part of a series of offences of a same or similar character: [2-s 29].

[1-455] The prosecution case See [1-435] for service of the prosecution brief of evidence upon the accused person. The practice upon the hearing shall in respect of the examination and cross examination of witnesses be as near as possible to that for a trial on indictment in the Supreme Court: [2-s 38]. See, generally, Procedure for Hearings on Indictment at [7-001]. Evidence shall be recorded: [2-s 39]. As to the taking of evidence, see [2-s 195]. It may be appropriate for a magistrate to hold a voir dire on the admissibility of evidence: Smithers v Andrews; Ex parte Andrews [1978] Qd R 64; Furnell v Betts (1978) 20 SASR 300; Egan v Bott [1985] VR 787. The role of a voir dire in summary criminal proceedings was considered in DPP v Zhang (2007) 48 MVR 78; [2007] NSWSC 308; BC200702344 at [107]–[112]. The Evidence Act 1995 at [3-s 1] ff makes extensive provision with respect to adducing evidence, admissibility of evidence, proof and other related matters.

[1-460] Re-opening prosecution case The magistrate has a discretion, in limited circumstances, to allow the prosecution to reopen its case: McDonald v Camerotto (1984) 36 SASR 66 at 70; 14 A Crim R 1 at 5–9;

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[1-485]

Muscat v Vucko (NSWSC, Studdert J, 28 June 1993, unreported); Ng v Haskett [2002] NSWSC 258; BC200201396 and authorities at [7-505].

[1-465] No case to answer At the conclusion of the prosecution case, the accused person can submit that there is no case to answer. See [2-s 202.1].

[1-470] The defence case Where the magistrate finds that there is a case to answer, the accused person may give evidence or call witnesses and make full answer and defence: s 195(2) at [2-s 195]. The accused person cannot make an unsworn statement: [2-s 31]. As to evidence for the defence generally, see [7-555].

[1-475] Case in reply If the accused person gives evidence or calls witnesses as to any matter other than as to his general character, the prosecutor may call and examine witnesses in reply: [2-s 195]. See also [7-495] and [7-575] with respect to the obligation of the prosecution to present its case completely and not split its case by calling evidence in reply to the defence case where it could have anticipated that the defence would raise such an issue.

[1-480] Addresses The practice in respect of making written submissions and addresses before a magistrate was considered in Mason v Lyon [2005] NSWSC 804; BC200505736; (2005) 12 Crim LN 64 [1915] where it was held that s 160 of the Criminal Procedure Act 1986 was not determinative of how the matter should proceed in the Local Court as there was no parallel between proceedings before a jury and those before a magistrate. It was also held that there was no error by the magistrate in directing that written submissions by both the prosecutor and the defendant be submitted on the same date and that s 26 of the Local Courts Act 1982 (see now s 28 Local Court Act 2007 at [29-55,255]) provided the magistrate with the discretion to make the order that he did.

[1-485] Decision of magistrate After hearing what each party has to say and the witnesses and the evidence adduced, the magistrate shall consider and determine the whole matter and convict the accused person or dismiss the matter: [2-s 202]. A magistrate must ensure procedural fairness to the parties by raising any matter that the magistrate believes may affect his or her decision but has not been raised in the evidence or addresses of the parties before delivering judgment: Director of Public Prosecutions (DPP) v Gramelis [2010] NSWSC 787; BC201005079; 17(8) Crim LN [2772]. In that case a magistrate had taken judicial notice of the speed of a vehicle in second gear and some apparent inconsistency in the prosecution evidence without raising either of these matters so that she could be addressed on them. Where the accused person has not given or called evidence, the question remains whether the court is satisfied beyond reasonable doubt of the accused person’s guilt: May v O’Sullivan (1955) 92 CLR 654 at 658; [1955] ALR 671; BC5500740. The court can take into account that the accused person did not give evidence when deciding the weight to be given to inferences arising in the prosecution case: May v O’Sullivan,

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[1-485]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

above, at CLR 658–9. In determining the matter, the court should give itself the appropriate warnings necessary to evaluate the evidence: Grbic v Pitkethly (1992) 38 FCR 95 at 107–8; 110 ALR 577; Sharrett v Gill (1993) 113 FLR 316; 65 A Crim R 44 at 49. The magistrate should give reasons for his or her decision stating the findings of fact and law applied, including the authorities relied upon: Donges v Ratcliffe [1975] 1 NSWLR 501; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279; Director of Public Prosecutions (DPP) (NSW) v Elias [2013] NSWSC 28; BC201300526; 20(3) Crim LN [3186].

[1-490] Sentencing As to sentencing procedure and practice, see [5-001] and following.

[1-495] Costs Where an accused person is convicted, the magistrate may order the accused person to pay the costs of the prosecutor as seem just and reasonable: [2-s 215]. Where an information is withdrawn or dismissed, the prosecutor may be ordered to pay the accused person’s costs subject to the statutory restriction provided for in s 214 where the prosecutor is a public informant. A magistrate may grant a certificate under s 2 of the Costs in Criminal Cases Act 1967 at [19-5005] where the information is dismissed.

[1-500] Review by Local Court Part 2 of the Crimes (Appeal and Review) Act 2001 at [4-s 4] and following makes provision for review by the Local Court of convictions, orders or sentences of the court.

[1-510] Appeal and review (a) Supreme Court An accused person may appeal to the Supreme Court under s 52 Crimes (Appeal and Review) Act 2001 at [4-s 52] against a conviction, order or sentence in summary proceedings upon a ground that involves a question of law. An accused person may seek leave to appeal to the Supreme Court under s 53 at [4-s 53]. A prosecutor may appeal to the Supreme Court under s 56 at [4-s 56]. Sections 65, 69 and 75 of the Supreme Court Act at [2-20,575], [20-20,585] and [20-20,610] providing for prerogative and declaratory relief remain available with respect to criminal proceedings. (b) District Court An accused person may appeal to the District Court against any conviction made or sentence imposed by a magistrate by lodging a written notice of appeal within 28 days: [4-s 11]. Where an appeal is made to the District Court with respect to sentence, the appeal shall proceed on the evidence before the Local Court and fresh evidence given on appeal: [4-s 17]. An appeal against conviction is by way of rehearing on the transcripts of evidence heard before the magistrate who made the conviction or imposed the sentence except as provided by ss 18 and 19 at [4-s 18]–[4-s 19]. The nature of an appeal to the District Court was considered in Charara v R (2006) 164 A Crim R 39; [2006] NSWCCA 244;

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PROCEEDINGS BEFORE MAGISTRATES

[1-510]

BC200606505; 13 Crim LN 69 [2089]. Section 18(2) provides that, on an appeal, new evidence may be given only with the leave of the court if the court is of the opinion that it is in the interests of justice that the evidence be given. Sections 18 and 19 at [4-s 18]–[4-s 19] provide that the District Court may direct that a person attend to give evidence in person in appeal proceedings: (i) if the person is an alleged victim of an offence involving violence if the court is of the opinion that there are special reasons why, in the interests of justice, the witness should attend to give evidence or, (ii) in any other case, the court is of the opinion that there are substantial reasons why, in the interests of justice, the witness should attend to give evidence. If the District Court refuses to give a direction that a witness attend to give evidence in person, the court must give reasons for the refusal: [4-s 18]. Sections 18 and 19 introduce the concepts of “special reasons” and “substantial reasons” from ss 91 and 93 Criminal Procedure Act at [s 91] and following relating to committal proceedings. These terms have been judicially construed in the context of committal proceedings. See the authorities referred to at [2-s 91.10] and [2-s 93.5]. In Director of Public Prosecutions v Losurdo (1998) 44 NSWLR 618; 103 A Crim R 189; BC9804896; 5 Crim LN 74 [906], the court stated that it was not helpful to refer to a number of different meanings of “substantial” to construe its meaning in repealed s 48E. The meaning of the word depended upon its context. The court said at 622–3: “it is enough to say that the reasons which must be advanced must have substance in the context of the nature of committal proceedings and the provisions of the Justices Act relating to them.” Accordingly, for the purpose of s 18, reasons must have substance in the context of an appeal where the judge must decide whether the guilt of the appellant is proved beyond reasonable doubt. The context is markedly different from committal proceedings. The powers of the District Court in determining appeals by the accused person are contained at [4-s 20]. The District Court retains the power to increase sentence on an accused person’s appeal: The principles in Parker v DPP (1992) 28 NSWLR 282; 65 A Crim R 209 will continue to operate where a judge is contemplating an increased sentence. (c) Stated Case to Court of Criminal Appeal Section 5B of the Criminal Appeal Act 1912 at [20-230] permits a case to be stated, at the request of a party to the appeal, from the District Court to the Court of Criminal Appeal with respect to a question of law even though the appeal proceedings during which the question arose have been disposed of. The question of law must be submitted not later than 28 days after the end of the appeal proceedings or within such longer period as the Court of Criminal Appeal may allow. Section 5BA of the Criminal Appeal Act at [20-235] makes similar provision with respect to a stated case from the Land and Environment Court hearing an appeal from the Local Court concerning an environmental offence. (d) Industrial Relations Commission in Court Session An appeal against a conviction or penalty imposed by the Local Court for an offence against the Industrial Relations Act 1996 or related Acts including the Occupational Health and Safety Act 1983, lies to the Industrial Relations Commission in Court Session and not the District or Supreme Courts: s 197 Industrial Relations Act 1996.

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Criminal Procedure

Criminal Procedure Act 1986 TABLE OF PROVISIONS Section

Title

Paragraph

CHAPTER 1 — PRELIMINARY 1 2 3 4 4A

Name of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Regulations and rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 1] [2-s 2] [2-s 3] [2-s 4] [2-s 4A]

CHAPTER 2 — GENERAL PROVISIONS PART 1 — OFFENCES 5 6 7 8 9 10 11 12 13 14 14A

Certain offences to be dealt with on indictment . . . . . . . . . Certain offences to be dealt with summarily . . . . . . . . . . . . . Certain summary offences may be dealt with by Local Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Prosecution of indictable offences . . . . . . . . . . . . . . . . . . . . . . . Name in which prosecutions may be instituted . . . . . . . . . . Indictment of bodies corporate . . . . . . . . . . . . . . . . . . . . . . . . . . Description of offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Short description of certain offences . . . . . . . . . . . . . . . . . . . . . Venue in indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Common informer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Proceedings for offences commenced by officers of ICAC or LECC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 5] [2-s 6] [2-s 7] [2-s 8] [2-s 9] [2-s 10] [2-s 11] [2-s 12] [2-s 13] [2-s 14] [2-s 14A]

PART 2 — INDICTMENTS AND OTHER MATTERS 15 16 17 18 19 20 21 22

Application of Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Certain defects do not affect indictment . . . . . . . . . . . . . . . . . When formal objections to be taken . . . . . . . . . . . . . . . . . . . . . Judgment on demurrer to indictment . . . . . . . . . . . . . . . . . . . . Traversing indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amendment of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Orders for amendment of indictment, separate trial and postponement of trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amended indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[2-s [2-s [2-s [2-s [2-s [2-s

15] 16] 17] 18] 19] 20]

[2-s 21] [2-s 22]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Section

23 24 25 26 27

Title

Indictment may contain up to 3 similar counts . . . . . . . . . . Accessories may be charged together in one indictment . Indictment charging previous offence also . . . . . . . . . . . . . . . Description of written instruments . . . . . . . . . . . . . . . . . . . . . . . Supreme Court rules may prescribe forms of indictments .

Paragraph

[2-s [2-s [2-s [2-s [2-s

23] 24] 25] 26] 27]

PART 3 — CRIMINAL PROCEEDINGS GENERALLY 28 29 30 31 32 33 34 35 36 36A 37 38 39 40 41 42 43 44

Application of Part and definition . . . . . . . . . . . . . . . . . . . . . . When more than one offence may be heard at the same time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Change of venue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Abolition of accused person’s right to make unsworn statement or to give unsworn evidence . . . . . . . . . . . . . . . . Indemnities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Undertakings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Practice as to entering the dock . . . . . . . . . . . . . . . . . . . . . . . . . Right to inspect depositions on trial . . . . . . . . . . . . . . . . . . . . . Representation and appearance . . . . . . . . . . . . . . . . . . . . . . . . . Representation and appearance in penalty notice matters . Conduct of case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Hearing procedures to be as for Supreme Court . . . . . . . . Recording of evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Adjournments generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . How accused person to be dealt with during adjournment ....................................................... Witnesses in mitigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Restitution of property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . When case not to be proceeded with: accused person to be released from custody . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 28] [2-s 29] [2-s 30] [2-s 31] [2-s 32] [2-s 33] [2-s 34] [2-s 35] [2-s 36] [2-s 36A] [2-s 37] [2-s 38] [2-s 39] [2-s 40] [2-s 41] [2-s 42] [2-s 43] [2-s 44]

CHAPTER 3 — INDICTABLE PROCEDURE PART 1 — PRELIMINARY 45 46

Application of Chapter and definitions . . . . . . . . . . . . . . . . . . Jurisdiction of courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 45] [2-s 46]

PART 2 — COMMITTAL PROCEEDINGS DIVISION 1 — COMMENCEMENT OF PROCEEDINGS

47 48 49

Commencement of committal proceedings by court attendance notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Commencement of proceedings by police officer or public officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Commencement of private prosecutions . . . . . . . . . . . . . . . .

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[2-s 47] [2-s 48] [2-s 49]

Section

50 51 52 53 54

Title

Form of court attendance notice . . . . . . . . . . . . . . . . . . . . . . . . Court attendance notice to be for one matter only [Repealed] Service of court attendance notices . . . . . . . . . . . . . . . . . . . . . . When proceedings commence . . . . . . . . . . . . . . . . . . . . . . . . . . Attendance of accused person at proceedings . . . . . . . . . . .

Paragraph

[2-s 50]

[2-s 52] [2-s 53] [2-s 54]

DIVISION 2 — COMMITTAL PROCEEDINGS GENERALLY

55 56 57 58 59 60

Outline of committal proceedings steps . . . . . . . . . . . . . . . . . . Magistrate to conduct committal proceedings . . . . . . . . . . . . Committal proceedings to be heard in open court . . . . . . . Application of other procedural provisions to committal proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Explanation of committal process and discount for guilty plea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application of Drug Court proceedings . . . . . . . . . . . . . . . . . .

[2-s 55] [2-s 56] [2-s 57] [2-s 58] [2-s 59] [2-s 60]

DIVISION 3 — DISCLOSURE OF EVIDENCE

61 62 63 64

Requirement to disclose evidence . . . . . . . . . . . . . . . . . . . . . . . Matters to be disclosed in brief of evidence . . . . . . . . . . . . . Additional material to be disclosed . . . . . . . . . . . . . . . . . . . . . . Exceptions to requirement to provide copies of material .

65

Prosecutors who may exercise charge certificate and case conference functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Charge certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Charge certificate must be filed . . . . . . . . . . . . . . . . . . . . . . . . . . Failure to file charge certificate . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s [2-s [2-s [2-s

61] 62] 63] 64]

[2-s [2-s [2-s [2-s

65] 66] 67] 68]

[2-s [2-s [2-s [2-s [2-s [2-s [2-s [2-s

69] 70] 71] 72] 73] 74] 75] 76]

DIVISION 4 — CHARGE CERTIFICATES

66 67 68

DIVISION 5 — CASE CONFERENCES

69 70 71 72 73 74 75 76 76A 77 78

Exceptions to requirements for case conference procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Case conferences to be held . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Case conference procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Obligations of legal representative of accused . . . . . . . . . . . Joint accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Case conference certificate must be completed and filed . Contents of case conference certificate . . . . . . . . . . . . . . . . . . Failure to complete case conference obligations . . . . . . . . . Recordings of interviews with domestic violence complainants [Repealed] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Further offers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Case conference certificate and other evidence not admissible in other proceedings . . . . . . . . . . . . . . . . . . . . . . .

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[2-s 76A] [2-s 77] [2-s 78]

Criminal Procedure

CRIMINAL PROCEDURE ACT 1986

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Section

79 79A 80 81

Title

Confidentiality of case conference certificate matters . . . . Form and requirements for recorded statements [Repealed] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Prohibition on publication of case conference material . . Certain matters not taken to be pre-trial disclosures . . . . .

Paragraph

[2-s 79] [2-s 79A] [2-s 80] [2-s 81]

DIVISION 6 — EXAMINATION OF PROSECUTION WITNESSES

82 83 84 85 86 87 88 89 90 91 92

Magistrate may direct witness to attend . . . . . . . . . . . . . . . . . Witnesses who cannot be directed to attend . . . . . . . . . . . . . Victim witnesses, sexual offence witnesses and vulnerable witnesses generally not to be directed to attend . . . . . . Evidence of prosecution witness . . . . . . . . . . . . . . . . . . . . . . . . . Exceptions to oral evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Evidence to be taken in presence of accused person . . . . . Evidentiary effect of statements . . . . . . . . . . . . . . . . . . . . . . . . . Statements must comply with requirements . . . . . . . . . . . . . . Evidence not to be admitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Magistrate may set aside requirements for statements . . . False statements or representations . . . . . . . . . . . . . . . . . . . . . .

[2-s 82] [2-s 83] [2-s [2-s [2-s [2-s [2-s [2-s [2-s [2-s [2-s

84] 85] 86] 87] 88] 89] 90] 91] 92]

DIVISION 7 — COMMITTAL FOR TRIAL WHERE UNFITNESS TO BE TRIED RAISED

93 94

Committal for trial where unfitness to be tried raised . . . . Committal may take place after charge certification . . . . .

[2-s 93] [2-s 94]

DIVISION 8 — COMMITTAL FOR TRIAL OR SENTENCE

95 96 97 98 99

Committal timing generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Committal for trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Guilty pleas and committal for sentence . . . . . . . . . . . . . . . . . Committal of unrepresented persons . . . . . . . . . . . . . . . . . . . . . Attorney General or Director of Public Prosecutions may direct that no further proceedings be taken . . . . . . . . . . . .

[2-s [2-s [2-s [2-s

95] 96] 97] 98]

[2-s 99]

DIVISION 9 — PROCEDURE ON COMMITTAL

100 101 102 103 104 105 106 107 108

Procedure applicable after committal for sentence . . . . . . . Higher court may refer accused person back to Magistrate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Disposal of proceedings by higher court . . . . . . . . . . . . . . . . . Change to not guilty plea in higher court . . . . . . . . . . . . . . . . Meaning of “accused person” . . . . . . . . . . . . . . . . . . . . . . . . . . . Disposal of proceedings by higher court [Repealed] . . . . . Change to not guilty plea in higher court [Repealed] . . . . Attorney General or Director of Public Prosecutions may direct that no further proceedings be taken [Repealed] . Meaning of “accused person” [Repealed] . . . . . . . . . . . . . . .

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[2-s 100] [2-s [2-s [2-s [2-s [2-s [2-s

101] 102] 103] 104] 105] 106]

[2-s 107] [2-s 108]

Section

Title Paragraph DIVISION 10 — GENERAL PROCEDURES AFTER COMMITTAL

109 110 111 112 113

Accused person to be committed to correctional centre . Bail acknowledgment to be notified . . . . . . . . . . . . . . . . . . . . . Papers to be sent to officer of higher court . . . . . . . . . . . . . Responsibilities of appropriate officer . . . . . . . . . . . . . . . . . . . Copies of trial papers to be given to Director of Public Prosecutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Copies of transcripts of evidence . . . . . . . . . . . . . . . . . . . . . . . . Meaning of “accused person” . . . . . . . . . . . . . . . . . . . . . . . . . . .

114 115

[2-s 109] [2-s 110] [2-s 111] [2-s 112] [2-s 113] [2-s 114] [2-s 115]

DIVISION 11 — COSTS

116 117 118 119 120

When costs may be awarded to accused persons . . . . . . . Limit on circumstances when costs may be awarded against a public officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Costs on adjournment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Content of costs orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Enforcement of costs orders . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 116] [2-s 117] [2-s 118] [2-s 119] [2-s 120]

PART 3 — TRIAL PROCEDURES DIVISION 1 — LISTING

121 122 123 124 125

Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Listing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Authority of Criminal Listing Director . . . . . . . . . . . . . . . . . . Liaison . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Certain matters not affected . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s [2-s [2-s [2-s [2-s

121] 122] 123] 124] 125]

DIVISION 2 — COMMENCEMENT AND NATURE OF PROCEEDINGS

126 127 128 129 130 130A 131 132 132A 133

Signing of indictments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Manner of presenting indictments . . . . . . . . . . . . . . . . . . . . . . . Directions as to indictments to be presented in District Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Time within which indictment to be presented . . . . . . . . . . Trial proceedings after presentation of indictment and before empanelment of jury . . . . . . . . . . . . . . . . . . . . . . . . . . . Pre-trial orders and orders made during trial bind trial Judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Trial by jury in criminal proceedings . . . . . . . . . . . . . . . . . . . . Orders for trial by Judge alone . . . . . . . . . . . . . . . . . . . . . . . . . . Applications for trial by judge alone in criminal proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Verdict of single Judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[2-s 126] [2-s 127] [2-s 128] [2-s 129] [2-s 130] [2-s 130A] [2-s 131] [2-s 132] [2-s 132A] [2-s 133]

Criminal Procedure

CRIMINAL PROCEDURE ACT 1986

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Section Title Paragraph DIVISION 3 — CASE MANAGEMENT PROVISIONS AND OTHER PROVISIONS TO REDUCE DELAYS IN PROCEEDINGS

134 135 136 137 138 139 140 141 142 143 144 145 146 146A 147 148 149 149A 149B 149C 149D 149E 149F

Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Directions for conduct of proceedings . . . . . . . . . . . . . . . . . . . Notice of prosecution case to be given to accused person [Repealed] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Notice of defence response to be given to prosecutor [Repealed] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Pre-trial hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Pre-trial conferences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mandatory pre-trial disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . Prosecution’s notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Defence response . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Prosecution response to defence response . . . . . . . . . . . . . . . Dispensing with formal proof . . . . . . . . . . . . . . . . . . . . . . . . . . . Sanctions for non-compliance with pre-trial disclosure requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Drawing of inferences in certain circumstances . . . . . . . . . . Disclosure requirements are ongoing . . . . . . . . . . . . . . . . . . . . Court may waive requirements . . . . . . . . . . . . . . . . . . . . . . . . . . Requirements as to notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Copies of exhibits and other things not to be provided if impracticable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Personal details not to be provided . . . . . . . . . . . . . . . . . . . . . . Requirements as to statements of witnesses . . . . . . . . . . . . . Exemption for matters previously disclosed . . . . . . . . . . . . . Court powers to ensure efficient management and conduct of trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Miscellaneous provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 134] [2-s 135] [2-s 136] [2-s 137] [2-s [2-s [2-s [2-s [2-s [2-s [2-s [2-s

138] 139] 140] 141] 142] 143] 144] 145]

[2-s 146] [2-s 146A] [2-s 147] [2-s 148] [2-s 149] [2-s 149A] [2-s 149B] [2-s 149C] [2-s 149D] [2-s 149E] [2-s 149F]

DIVISION 4 — PRE-TRIAL DISCLOSURE — GENERAL

150 151

Notice of alibi . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Notice of intention to adduce evidence of substantial mental impairment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 150] [2-s 151]

DIVISION 5 — PLEADINGS ON TRIAL

152 153 154 155 156 157

Arraignment on charge of previous conviction . . . . . . . . . . Guilty plea to offence not charged . . . . . . . . . . . . . . . . . . . . . . . Plea of “not guilty” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Refusal to plead . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Plea of autrefois convict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Change to guilty plea during trial . . . . . . . . . . . . . . . . . . . . . . .

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[2-s [2-s [2-s [2-s [2-s [2-s

152] 153] 154] 155] 156] 157]

Section

158 159 160 161 162 163 164 164A

Title DIVISION 6 — OTHER PROVISIONS RELATING TO TRIALS

Transcript of statement in committal proceedings . . . . . . . . Opening address to jury by accused person . . . . . . . . . . . . . . Closing address to jury by accused person . . . . . . . . . . . . . . Summary by Judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alternative verdict of attempt on trial for any indictable offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . No further prosecution after trial for serious indictable offence where alternative verdict possible . . . . . . . . . . . . . Joint trial in case of perjury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Judge unable to continue in trial by jury . . . . . . . . . . . . . . . .

Paragraph

[2-s [2-s [2-s [2-s

158] 159] 160] 161]

[2-s 162] [2-s 163] [2-s 164] [2-s 164A]

DIVISION 7 — CERTAIN SUMMARY OFFENCES MAY BE DEALT WITH

165 166 167 168 169

Definitions and application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Certification and transfer of back up and related offences . Manner of dealing with back up and related offences . . . Procedures for dealing with certain offences related to indictable offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Remission of certain offences related to indictable offences to Local Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 165] [2-s 166] [2-s 167] [2-s 168] [2-s 169]

CHAPTER 4 — SUMMARY PROCEDURE PART 1 — PRELIMINARY 170 171

Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 170] [2-s 171]

PART 2 — TRIAL PROCEDURES IN LOWER COURTS DIVISION 1 — COMMENCEMENT OF PROCEEDINGS

172 173 174 175 176 177 178 179 180 181

Commencement of proceedings by court attendance notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Commencement of proceedings by police officer or public officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Commencement of private prosecutions . . . . . . . . . . . . . . . . Form of court attendance notice . . . . . . . . . . . . . . . . . . . . . . . . Court attendance notice to be for one offence only [Repealed] Service of court attendance notices . . . . . . . . . . . . . . . . . . . . . . When proceedings commence . . . . . . . . . . . . . . . . . . . . . . . . . . Time limit for commencement of summary proceedings . Relationship to other law or practice . . . . . . . . . . . . . . . . . . . . Attendance of accused person at proceedings . . . . . . . . . . . .

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[2-s 172] [2-s 173] [2-s 174] [2-s 175]

[2-s [2-s [2-s [2-s [2-s

177] 178] 179] 180] 181]

Criminal Procedure

CRIMINAL PROCEDURE ACT 1986

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Section

182 183 184 185 185A 186 187 188 189

Title DIVISION 2 — PRE-TRIAL PROCEDURES

Written pleas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Brief of evidence to be served on accused person where not guilty plea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recording of interviews with vulnerable persons . . . . . . . . Recordings of interviews with domestic violence complainants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of copy of brief of evidence . . . . . . . . . . . . . . . . . . . . . . When brief of evidence need not be served . . . . . . . . . . . . . Evidence not to be admitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . False statements or representations . . . . . . . . . . . . . . . . . . . . .

Paragraph

[2-s 182] [2-s 183] [2-s 184] [2-s 185] [2-s 185A] [2-s 186] [2-s 187] [2-s 188] [2-s 189]

DIVISION 3 — HEARINGS

190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210

Time for hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Proceedings to be open to public . . . . . . . . . . . . . . . . . . . . . . . Procedures where both parties present . . . . . . . . . . . . . . . . . . Procedure if offence admitted . . . . . . . . . . . . . . . . . . . . . . . . . . . Procedure if offence not admitted . . . . . . . . . . . . . . . . . . . . . . . How evidence is taken . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Procedure if accused person not present . . . . . . . . . . . . . . . . Adjournment when accused person not present . . . . . . . . . Absent accused person taken to have pleaded not guilty . Material to be considered when matter determined in absence of accused person . . . . . . . . . . . . . . . . . . . . . . . . . . . When court may require prosecution to provide additional evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Procedure if prosecutor or both parties not present . . . . . Determination by court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Additional powers to adjourn summary proceedings . . . . Record of conviction or order to be made . . . . . . . . . . . . . . Order dismissing matter to be made . . . . . . . . . . . . . . . . . . . . Effect of certificate that matter has been dismissed . . . . . Power to set aside conviction or order before sentence . Dismissal of matter if matter withdrawn . . . . . . . . . . . . . . . . Application of section 10 of the Crimes (Sentencing Procedure) Act 1999 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Penalties applying to traffic offences committed by children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s [2-s [2-s [2-s [2-s [2-s [2-s [2-s [2-s

190] 191] 192] 193] 194] 195] 196] 197] 198]

[2-s 199] [2-s [2-s [2-s [2-s [2-s [2-s [2-s [2-s [2-s

200] 201] 202] 203] 204] 205] 206] 207] 208]

[2-s 209] [2-s 210]

DIVISION 4 — COSTS

211 211A 212

Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Imposition of court costs levy . . . . . . . . . . . . . . . . . . . . . . . . . . . When costs may be awarded . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[2-s 211] [2-s 211A] [2-s 212]

Section

213 214 215 216 217 218

Title

When professional costs may be awarded to accused persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Limit on award of professional costs to accused person against prosecutor acting in public capacity . . . . . . . . . . . When professional costs may be awarded to prosecutor . Costs on adjournment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Enforcement of costs orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . Public officers and police officers not personally liable for costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Paragraph

[2-s 213] [2-s [2-s [2-s [2-s

214] 215] 216] 217]

[2-s 218]

DIVISION 5 — RULES

219

Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 219]

PART 3 — ATTENDANCE OF WITNESSES AND PRODUCTION OF EVIDENCE IN LOWER COURTS 220 221 222 223 224 225 226 227 228 229 230 231 232

Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Issue of subpoenas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Time for service of subpoenas . . . . . . . . . . . . . . . . . . . . . . . . . . Conduct money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Limits on obligations under subpoenas . . . . . . . . . . . . . . . . . Production by non-party . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Subpoena may be set aside . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inspection of subpoenaed documents and things . . . . . . . . Action that may be taken if person does not comply with subpoena . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application of Bail Act 2013 . . . . . . . . . . . . . . . . . . . . . . . . . . . . Action that may be taken if witness refuses to give evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rules relating to subpoenas . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s [2-s [2-s [2-s [2-s [2-s [2-s [2-s [2-s

220] 221] 222] 223] 224] 225] 226] 227] 228]

[2-s 229] [2-s 230] [2-s 231] [2-s 232]

PART 4 — WARRANTS DIVISION 1 — PRELIMINARY

233 234

Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

235 236 237 238 239 240

When arrest warrants may be issued for accused persons . Form of arrest warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Duration of arrest warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Persons who may execute arrest warrant . . . . . . . . . . . . . . . . Procedure after arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Revocation of warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 233] [2-s 234]

DIVISION 2 — ARREST WARRANTS

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[2-s [2-s [2-s [2-s [2-s [2-s

235] 236] 237] 238] 239] 240]

Criminal Procedure

CRIMINAL PROCEDURE ACT 1986

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Section

241 242 243 244

Title DIVISION 3 — WARRANTS OF COMMITMENT

Power to commit person to correctional centre subject to Bail Act 2013 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of warrants of commitment . . . . . . . . . . . . . . . . . . . . . . . Procedure for taking person to correctional centre or other place . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Defects in warrants of commitment . . . . . . . . . . . . . . . . . . . . .

Paragraph

[2-s 241] [2-s 242] [2-s 243] [2-s 244]

PART 5 — SUMMARY JURISDICTION OF SUPREME COURT AND OTHER HIGHER COURTS DIVISION 1 — JURISDICTION

245

Summary jurisdiction of Supreme Court . . . . . . . . . . . . . . . .

[2-s 245]

DIVISION 2 — APPEARANCE OF ACCUSED PERSONS

246 247

Orders for appearance or apprehension of accused persons ....................................................... Notices to be given to prosecutor . . . . . . . . . . . . . . . . . . . . . . .

[2-s 246] [2-s 247]

DIVISION 2A — CASE MANAGEMENT PROVISIONS AND OTHER PROVISIONS TO REDUCE DELAYS IN PROCEEDINGS

247A 247B 247C 247D 247E 247F 247G 247H 247I 247J 247K 247L 247M 247N 247O 247P 247Q 247R 247S

Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Directions for conduct of proceedings . . . . . . . . . . . . . . . . . . Notice of prosecution case to be given to defendant . . . . . Notice of defence response to be given to prosecutor . . . Preliminary hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Preliminary conferences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Court may order preliminary disclosure in particular case . Prosecution notice — court-ordered preliminary disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Defence response — court-ordered preliminary disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Prosecution response to defence response — court-ordered preliminary disclosure . . . . . . . . . . . . . . . . . . Dispensing with formal proof . . . . . . . . . . . . . . . . . . . . . . . . . . . Sanctions for non-compliance with preliminary disclosure requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Disclosure requirements are ongoing . . . . . . . . . . . . . . . . . . . . Court may waive requirements . . . . . . . . . . . . . . . . . . . . . . . . . . Requirements as to notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Copies of exhibits and other things not to be provided if impracticable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Personal details not to be provided . . . . . . . . . . . . . . . . . . . . . .

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[2-s 247A] [2-s 247B] [2-s 247C] [2-s 247D] [2-s 247E] [2-s 247F] [2-s 247G] [2-s 247H] [2-s 247I] [2-s 247J] [2-s 247K] [2-s 247L] [2-s 247M] [2-s 247N] [2-s 247O] [2-s 247P] [2-s 247Q] [2-s 247R] [2-s 247S]

Section

247T 247U 247V 247W 247X 247Y

Title

Requirements as to statements of witnesses . . . . . . . . . . . . . Exemption for matters previously disclosed . . . . . . . . . . . . . Court powers to ensure efficient management and conduct of trial or sentencing hearing . . . . . . . . . . . . . . . . . . . . . . . . . . Preliminary orders and other orders bind presiding Judge ....................................................... Miscellaneous provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Review of Division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Paragraph

[2-s 247T] [2-s 247U] [2-s 247V] [2-s 247W] [2-s 247X] [2-s 247Y]

DIVISION 3 — TRIAL PROCEDURE

248 249 250 251 252 253 254 255 256 257

Pre-trial procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Procedure where prosecutor does not, but accused person does, appear . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Procedure where accused person does not obey order to appear . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Procedure where both parties do not appear . . . . . . . . . . . . Procedure where both parties appear . . . . . . . . . . . . . . . . . . . . Court may order payment of costs [Repealed] Enforcement of fines and orders . . . . . . . . . . . . . . . . . . . . . . . . Termination of lower court proceedings on commencement of proceedings under this Part . . . . . . . Effect of conviction under this Part . . . . . . . . . . . . . . . . . . . . . Rules for summary criminal procedure . . . . . . . . . . . . . . . . .

[2-s 248] [2-s 249] [2-s 250] [2-s 251] [2-s 252] [2-s 254] [2-s 255] [2-s 256] [2-s 257]

DIVISION 4 — COSTS

257A 257B 257C 257D 257E 257F 257G

Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . When costs may be awarded to prosecutor . . . . . . . . . . . . . . When professional costs may be awarded to accused person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Limit on award of professional costs against a prosecutor acting in a public capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . Public officers and police officers not personally liable for costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Costs on adjournment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Calculation of costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 257A] [2-s 257B] [2-s 257C] [2-s 257D] [2-s 257E] [2-s 257F] [2-s 257G]

CHAPTER 5 — SUMMARY DISPOSAL OF INDICTABLE OFFENCES BY LOCAL COURT 258 259 260 261

Objects of this Chapter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Offences to which this Chapter applies . . . . . . . . . . . . . . . . . . Offences to be dealt with summarily unless election made to proceed on indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Procedure for dealing with offences summarily if no election made . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[2-s 258] [2-s 259] [2-s 260] [2-s 261]

Criminal Procedure

CRIMINAL PROCEDURE ACT 1986

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Section

262 263 264 265 266 267 268 269 270 271 272 273

Title

Procedure for dealing with offences if election made . . . . Time for making election . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Election may be withdrawn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Criminal record to be given to person charged (Table 1 offences) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Maximum penalties for Table 1 offences . . . . . . . . . . . . . . . . Maximum penalties for Table 2 offences . . . . . . . . . . . . . . . . Offences by children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . No time limit for offences dealt with summarily under this Chapter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Effect of conviction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application of Chapter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Jurisdiction of Magistrates in respect of offences arising under Part 4AD of Crimes Act 1900 . . . . . . . . . . . . . . . . . .

Paragraph

[2-s 262] [2-s 263] [2-s 264] [2-s [2-s [2-s [2-s [2-s

265] 266] 267] 268] 269]

[2-s 270] [2-s 271] [2-s 272] [2-s 273]

CHAPTER 6 — EVIDENTIARY MATTERS PART 1 — PRELIMINARY 274 275

Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 274] [2-s 275]

PART 2 — GENERAL 275A 275B 275C 276 277 278 279 279A 280 280A 281

NSW Police Force exhibits management system . . . . . . . . . Witness with communication difficulty entitled to assistance from person or communication aid . . . . . . . . . Court may direct expert evidence be given concurrently or consecutively . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Proof of service of notice to produce . . . . . . . . . . . . . . . . . . . . Stealing goods from vessel or wharf . . . . . . . . . . . . . . . . . . . . . Incriminating statements admissible though on oath . . . . . Compellability of family members to give evidence in certain proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Admission of evidence of complainant from related proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Disclosure of address or telephone number of witness . . . Disclosure of personal information in subpoenaed documents and things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Admissions by suspects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 275A] [2-s 275B] [2-s 275C] [2-s 276] [2-s 277] [2-s 278] [2-s 279] [2-s 279A] [2-s 280] [2-s 280A] [2-s 281]

PART 2A — SENSITIVE EVIDENCE DIVISION 1 — PRELIMINARY

281A

Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[2-s 281A]

Section

281B

Title

Sensitive evidence — meaning . . . . . . . . . . . . . . . . . . . . . . . . . .

Paragraph

[2-s 281B]

DIVISION 2 — EVIDENCE HELD BY PROSECUTING AUTHORITY

281C 281D 281E 281F

Accused person not entitled to copy of sensitive evidence . Procedures for giving access to sensitive evidence to accused person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Prosecuting authority entitled to retain possession of sensitive evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Improper copying or circulation of sensitive evidence . . .

[2-s 281C] [2-s 281D] [2-s 281E] [2-s 281F]

DIVISION 3 — EVIDENCE HELD BY HEALTH AUTHORITY

281FA 281FB 281FC 281FD 281FE 281FF 281FG

Accused person not entitled to obtain sensitive evidence from health authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Health authority to give sensitive evidence notice . . . . . . . Access to be given to accused person . . . . . . . . . . . . . . . . . . . Supervised access arrangements . . . . . . . . . . . . . . . . . . . . . . . . . Health authority entitled to retain possession of sensitive evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Improper copying or circulation of sensitive evidence . . . Evidence may be provided to prosecuting authority . . . . .

[2-s 281FA] [2-s 281FB] [2-s 281FC] [2-s 281FD] [2-s 281FE] [2-s 281FF] [2-s 281FG]

PART 2B — TERRORISM EVIDENCE 281G 281H 281I 281J 281K 281L 281M 281N

Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Accused person not entitled to copy of terrorism evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Procedure for dealing with terrorism evidence . . . . . . . . . . . Return of designated terrorism evidence . . . . . . . . . . . . . . . . . Procedures for giving access to designated terrorism evidence to unrepresented accused person . . . . . . . . . . . . Improper copying or circulation of designated terrorism evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Accused person not to possess designated terrorism evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Prosecuting authority entitled to retain possession of terrorism evidence during criminal proceedings . . . . . . .

[2-s 281G] [2-s 281H] [2-s 281I] [2-s 281J] [2-s 281K] [2-s 281L] [2-s 281M] [2-s 281N]

PART 3 — SCIENTIFIC EXAMINATIONS AND LAW ENFORCEMENT DEVICES 282 283

Scientific examinations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Law enforcement devices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 282] [2-s 283]

PART 3A — STATEMENTS 283A 283B 283C

Application of Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form and requirements for written statements . . . . . . . . . . . Recordings of interviews with vulnerable persons . . . . . . .

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[2-s 283A] [2-s 283B] [2-s 283C]

Criminal Procedure

CRIMINAL PROCEDURE ACT 1986

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Section

283D 283E 283F 283G 283H

Title

Recordings of interviews with domestic violence complainants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form and requirements for recorded statements . . . . . . . . . Death of person who made statement . . . . . . . . . . . . . . . . . . . . Use of previous statements in cases involving prescribed sexual offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Regulations relating to requirements for statements . . . . . .

Paragraph

[2-s 283D] [2-s 283E] [2-s 283F] [2-s 283G] [2-s 283H]

PART 4 — DEPOSITIONS AND WRITTEN STATEMENTS 284 285 286 287 288 289

Depositions by persons dangerously ill . . . . . . . . . . . . . . . . . . Depositions tendered by prosecution . . . . . . . . . . . . . . . . . . . . . Depositions tendered by accused person . . . . . . . . . . . . . . . . . Evidentiary effect of certain transcripts . . . . . . . . . . . . . . . . . . Depositions taken during pre-trial investigations . . . . . . . . . Written statements admitted in committal proceedings . . .

[2-s [2-s [2-s [2-s [2-s [2-s

284] 285] 286] 287] 288] 289]

PART 4A — USE OF RANDOM SAMPLE EVIDENCE 289A 289B

Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Use of random sample evidence in child abuse material cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 289A] [2-s 289B]

PART 4B — GIVING OF EVIDENCE BY DOMESTIC VIOLENCE COMPLAINANTS DIVISION 1 — PRELIMINARY

289C 289D 289E

Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Meaning of “recorded statement” . . . . . . . . . . . . . . . . . . . . . . . . Relationship to Evidence Act 1995 . . . . . . . . . . . . . . . . . . . . . .

[2-s 289C] [2-s 289D] [2-s 289E]

DIVISION 2 — GIVING OF EVIDENCE OF OUT OF COURT REPRESENTATIONS

289F 289G 289H 289I 289J 289K

Complainant may give evidence in chief in form of recording . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Determination as to whether evidence will be given by recording . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Use of evidence in concurrent or related domestic violence proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Admissibility of recorded evidence . . . . . . . . . . . . . . . . . . . . . . Warning to jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Transcripts of recordings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 289F] [2-s 289G] [2-s 289H] [2-s 289I] [2-s 289J] [2-s 289K]

DIVISION 3 — SERVICE OF AND ACCESS TO RECORDED STATEMENTS

289L 289M

Service of recorded statement . . . . . . . . . . . . . . . . . . . . . . . . . . . Access to recorded statement . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[2-s 289L] [2-s 289M]

Section

289N 289O 289P 289Q 289R 289S

Title DIVISION 4 — MISCELLANEOUS

Validity of proceedings not affected . . . . . . . . . . . . . . . . . . . . . Prosecutor entitled to retain possession of recorded statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Improper copying or dissemination of recorded statement . Court powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rules of court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Paragraph

[2-s 289N] [2-s 289O] [2-s 289P] [2-s 289Q] [2-s 289R] [2-s 289S]

PART 5 — EVIDENCE IN SEXUAL OFFENCE PROCEEDINGS DIVISION 1 — EVIDENCE IN CERTAIN SEXUAL OFFENCE PROCEEDINGS

290 290A 291 291A 291B 291C 292 293 293A 294 294AA 294A

294B 294C 294CA 294D

Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Proceedings must be held in camera when complainant gives evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Other parts of proceedings may be heard in camera . . . . . Incest offence proceedings to be held entirely in camera . Media access to proceedings held in camera . . . . . . . . . . . . Publication of evidence may be forbidden in certain cases [Repealed] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Admissibility of evidence relating to sexual experience . Warning may be given by Judge if differences in complainant’s account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Warning to be given by Judge in relation to lack of complaint in certain sexual offence proceedings . . . . . . . Warning to be given by Judge in relation to complainants’ evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Arrangements for complainant in prescribed sexual offence proceedings giving evidence when accused person is unrepresented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Giving of evidence by complainant in prescribed sexual offence proceedings — alternative arrangements . . . . . . Complainant entitled to have support person or persons present when giving evidence . . . . . . . . . . . . . . . . . . . . . . . . . Admission of evidence of sexual offence witness given as complainant in earlier proceedings . . . . . . . . . . . . . . . . . . . . Protections of Division extend to tendency witnesses . . . .

[2-s 290] [2-s 290A] [2-s 291] [2-s 291A] [2-s 291B] [2-s 291C] [2-s 292] [2-s 293] [2-s 293A] [2-s 294] [2-s 294AA] [2-s 294A] [2-s 294B] [2-s 294C] [2-s 294CA] [2-s 294D]

DIVISION 2 — SEXUAL ASSAULT COMMUNICATIONS PRIVILEGE

295 296 297 298

Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . What is a protected confidence? . . . . . . . . . . . . . . . . . . . . . . . . . Protected confidences — preliminary criminal proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Protected confidences — criminal proceedings . . . . . . . . . .

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[2-s 295] [2-s 296] [2-s 297] [2-s 298]

Criminal Procedure

CRIMINAL PROCEDURE ACT 1986

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Section

298A 299 299A 299B 299C 299D 300 301 302 303 304 305 305A 306

Title

Victim cannot be required to identify counsellor . . . . . . . . Court to inform of rights under Division . . . . . . . . . . . . . . . . Protected confider has standing . . . . . . . . . . . . . . . . . . . . . . . . . . Determining if there is a protected confidence . . . . . . . . . . . Notice of application for leave . . . . . . . . . . . . . . . . . . . . . . . . . . Determining whether to grant leave . . . . . . . . . . . . . . . . . . . . . Effect of consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Loss of sexual assault communications privilege: misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ancillary orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Court to inform of rights to make applications and objections [Repealed] Court may inspect documents [Repealed] Inadmissibility of evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Subpoenas for production of counselling communications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application of common law . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Paragraph

[2-s 298A] [2-s 299] [2-s 299A] [2-s 299B] [2-s 299C] [2-s 299D] [2-s 300] [2-s 301] [2-s 302]

[2-s 305] [2-s 305A] [2-s 306]

DIVISION 3 — SPECIAL PROVISIONS RELATING TO RETRIALS OF SEXUAL OFFENCE PROCEEDINGS

306A 306B 306C 306D 306E 306F 306G

Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Admission of evidence of complainant or special witness in new trial proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Complainant or special witness not compellable to give further evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Complainant or special witness may elect to give further evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form in which record of original evidence of complainant or special witness is to be tendered . . . . . . . . . . . . . . . . . . . Access to audio visual or audio recording . . . . . . . . . . . . . . . Exhibits may also be tendered . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 306A] [2-s 306B] [2-s 306C] [2-s 306D] [2-s 306E] [2-s 306F] [2-s 306G]

DIVISION 4 — SPECIAL PROVISIONS RELATING TO SUBSEQUENT TRIALS OF SEXUAL OFFENCE PROCEEDINGS

306H 306I 306J 306K 306L

Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Admission of evidence of complainant or special witness in new trial proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Whether complainant or special witness compellable to give further evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Complainant or special witness may elect to give further evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application of provisions dealing with form of record of original evidence, access to recordings and exhibits . . .

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[2-s 306H] [2-s 306I] [2-s 306J] [2-s 306K] [2-s 306L]

Section

Title

Paragraph

PART 6 — GIVING OF EVIDENCE BY VULNERABLE PERSONS DIVISION 1 — PRELIMINARY

306M 306N 306O 306P

Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Words and expressions used in Evidence Act 1995 . . . . . . Relationship to Evidence Act 1995 . . . . . . . . . . . . . . . . . . . . . . Application of Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 306M] [2-s 306N] [2-s 306O] [2-s 306P]

DIVISION 2 — RECORDING OF OUT OF COURT STATEMENTS

306Q

Regulations may require interviews with vulnerable persons to be recorded . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 306Q]

DIVISION 3 — GIVING EVIDENCE OF OUT OF COURT REPRESENTATIONS

306R 306S 306T 306U 306V 306W 306X 306Y 306Z

Evidence to which this Division applies . . . . . . . . . . . . . . . . . Ways in which evidence of vulnerable person may be given . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Wishes of vulnerable person to be taken into account . . . Vulnerable person entitled to give evidence in chief in form of recording . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Admissibility of recorded evidence . . . . . . . . . . . . . . . . . . . . . . Alternative arrangements for giving evidence . . . . . . . . . . . . Warning to jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Evidence not to be given in form of recording if contrary to interests of justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Transcripts of recordings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 306R] [2-s 306S] [2-s 306T] [2 s 306U] [2-s 306V] [2-s 306W] [2-s 306X] [2-s 306X] [2-s 306Z]

DIVISION 4 — GIVING OF EVIDENCE BY CLOSED-CIRCUIT TELEVISION

306ZA 306ZB 306ZC 306ZD 306ZE 306ZF 306ZG 306ZH

306ZI

Application of Division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Vulnerable persons have a right to give evidence by closed-circuit television . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Accused vulnerable persons may be allowed to give evidence by closed-circuit television . . . . . . . . . . . . . . . . . . Giving evidence by closed-circuit television . . . . . . . . . . . . . Giving identification evidence when closed-circuit television is used . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Proceedings may be moved to allow use of closed-circuit television facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Use of closed-circuit television or similar technology . . . Vulnerable persons have a right to alternative arrangements for giving evidence when closed-circuit television facilities not available . . . . . . . . . . . . . . . . . . . . . . Warning to jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 306ZA] [2-s 306ZB] [2-s 306ZC] [2-s 306ZD] [2-s 306ZE] [2-s 306ZF] [2-s 306ZG]

[2-s 306ZH] [2-s 306ZI]

DIVISION 5 — MISCELLANEOUS

306ZJ

Validity of proceedings not affected . . . . . . . . . . . . . . . . . . . . .

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[2-s 306ZJ]

Criminal Procedure

CRIMINAL PROCEDURE ACT 1986

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Section

306ZK 306ZL 306ZM 306ZN 306ZO 306ZP

Title

Vulnerable persons have a right to presence of a support person while giving evidence . . . . . . . . . . . . . . . . . . . . . . . . . Vulnerable persons have a right to alternative arrangements for giving evidence when accused is unrepresented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Court orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . General discretion of court not affected . . . . . . . . . . . . . . . . . . Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rules of court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Paragraph

[2-s 306ZK] [2-s 306ZL] [2-s 306ZM] [2-s 306ZN] [2-s 306ZO] [2-s 306ZP]

PART 7 — MISCELLANEOUS 306ZQ

Complainants in domestic violence offence proceedings have a right to presence of a support person while giving evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 306ZQ]

CHAPTER 7 — MISCELLANEOUS PART 1 — GENERAL 307 308 309 309A 310 311 312 313 314 314A 315 316 317 317A

No court fees to be taken from accused persons . . . . . . . . . Bail decision may be made in respect of witness who fails to attend trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Certificate as to indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Certificate may be issued to victim of identity crime . . . . Warrants that may be issued on production of certificate . Procedure after arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Persons arrested under bench warrants . . . . . . . . . . . . . . . . . . Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Media access to court documents . . . . . . . . . . . . . . . . . . . . . . . . Review of pre-trial disclosure provisions enacted by Criminal Procedure Amendment (Case Management) Act 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Savings, transitional and other provisions . . . . . . . . . . . . . . . Provisions relating to offences . . . . . . . . . . . . . . . . . . . . . . . . . . Bail Act 2013 to prevail . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Courts to deal expeditiously with persons arrested for sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 307] [2-s 308] [2-s 309] [2-s 309A] [2-s 310] [2-s 311] [2-s 312] [2-s 313] [2-s 314] [2-s 314A] [2-s 315] [2-s 316] [2-s 317] [2-s 317A]

PART 3 — PENALTY NOTICE OFFENCES 332 333 334 335 336 337

Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Police may issue penalty notices for certain offences . . . . Penalty notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Penalty notices may not be issued to children . . . . . . . . . . . Penalty notice offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Penalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

40

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[2-s [2-s [2-s [2-s [2-s [2-s

332] 333] 334] 335] 336] 337]

Section

338 339 340 341 342 343 344 344A

Title

Paragraph

Effect of payment of penalty . . . . . . . . . . . . . . . . . . . . . . . . . . . . Limitation on exercise of penalty notice powers . . . . . . . . . Withdrawal of penalty notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . Powers relating to identity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Effect of Part on other procedures and powers . . . . . . . . . . Limited implementation of penalty notice provisions . . . . Monitoring of Part by Ombudsman . . . . . . . . . . . . . . . . . . . . . . Further review by Ombudsman — Aboriginal and Torres Strait Islander communities . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s [2-s [2-s [2-s [2-s [2-s [2-s

338] 339] 340] 341] 342] 343] 344]

[2-s 344A]

PART 4 — INTERVENTION PROGRAMS DIVISION 1 — PRELIMINARY

345 346

Objects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 345] [2-s 346]

DIVISION 2 — INTERVENTION PROGRAMS

347 348 349

Declaration and regulation of intervention programs . . . . Offences in respect of which an intervention program may be conducted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Eligibility of certain persons to participate in intervention program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 347] [2-s 348] [2-s 349]

DIVISION 3 — ADJOURNMENT OF CRIMINAL PROCEEDINGS IN CONNECTION WITH INTERVENTION PROGRAM

350

Court may adjourn proceedings to allow accused person to be assessed for or to participate in intervention program .......................................................

[2-s 350]

DIVISION 4 — MISCELLANEOUS

351 352

Regulations with respect to the provision or disclosure of information in connection with intervention programs . Relationship with other legislation . . . . . . . . . . . . . . . . . . . . . . . SCHEDULE 1 — INDICTABLE OFFENCES TRIABLE SUMMARILY SCHEDULE 2 — SAVINGS, TRANSITIONAL AND OTHER PROVISIONS SCHEDULE 3 — PROVISIONS OFFENCES

41

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RELATING

TO

[2-s 351] [2-s 352]

Criminal Procedure

CRIMINAL PROCEDURE ACT 1986

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TABLE OF AMENDMENTS Criminal Procedure Act 1986 No 209, received assent 23 December 1986, commenced 13 July 1987 (Gaz 117 of 10 July 1987), as amended by (since 2004): Amending Legislation

Date of Assent

Date of Commencement

Road Transport Legislation Amendment (Public Transport Lanes) Act 2004 No 22

16 April 2004

s 3 and Sch 3: on assent

Crimes Amendment (Child Neglect) Act 2004 No 41

6 July 2004

s 4 and Sch 2 (Gaz 166 of 22 October 2004)

Crimes Legislation Amendment (Terrorism) Act 2004 No 48

6 July 2004

12 November 2004 Sch 2 (s 2(2)) (Gaz 179 of 12 November 2004)

Sydney Opera House Trust Amendment Act 2004 No 49

6 July 2004

5 November 2004 (Gaz 174 of 5 November 2004)

Criminal Procedure Amendment (Sexual Offence Evidence) Act 2004 No 50

6 July 2004

s 3 and Sch 1: on assent (Gaz 117 of 9 July 2004)

Courts Legislation Amendment Act 2004 No 68

6 July 2004

s 3 and Sch 6: on assent

Crimes Amendment (Child Pornography) Act 2004 No 95

15 December 2004

1 January 2005 (Gaz 200 of 17 December 2004)

Legal Profession Act 2004 No 112

21 December 2004

All: 1 October 2005 (s 2 and Gaz No 105 of 19 August 2005)

Marine Safety (Random Breath Testing) Act 2005 No 4

10 March 2005

13 May 2005 (Gaz 54 of 13 May 2005)

Road Transport (General) Act 2005 No 11

14 April 2005

s 247 and Sch 3.33[1]–[3], [15]–[19]: 1 December 2005; rem: 30 September 2005 (Gaz 120 of 30 September 2005)

Criminal Procedure Amendment (Evidence) Act 2005 No 15

12 May 2005

Date of assent (Gaz 57 of 20 May 2005)

Criminal Procedure Further Amendment (Evidence) Act 2005 No 25

31 May 2005

12 August 2005 (Gaz 101 of 12 August 2005); Sch 1[5] and [7]: 25 November 2005

Civil Procedure Act 2005 No 28

1 June 2005

15 August 2005 (Gaz 100 of 10 August 2005)

Crimes Amendment (Road Accidents) (Brendan’s Law) Act 2005 No 74

26 October 2005

13 February 2006 (Gaz 16 of 3 February 2006)

43

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Criminal Procedure

Criminal Procedure Act 1986

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Amending Legislation

Date of Assent

Date of Commencement

Criminal Procedure Amendment (Prosecutions) Act 2005 No 75

26 October 2005

21 September 2005 (Gaz 131 of 28 October 2005)

Crimes Amendment (Animal Cruelty) Act 2005 No 94

24 November 2005

16 December 2005 (Gaz 158 of 16 December 2005)

Criminal Procedure Amendment (Sexual Offence Case Management) Act 2005 No 102

1 December 2005

1 December 2005

Law Enforcement Legislation Amendment (Public Safety) Act 2005 No 119

15 December 2005

On assent

Law Enforcement (Controlled Operations) Amendment Act 2006 No 14

11 April 2006

9 February 2007

Courts Legislation Amendment Act 2006 No 23

17 May 2006

s 3 and Sch 2: 13 July 2006

Crimes Amendment (Organised Car and Boat Theft) Act 2006 No 26

26 May 2006

1 September 2006

Crimes Legislation Amendment (Gangs) Act 2006 No 61

28 September 2006

15 December 2006

Crimes Amendment (Apprehended Violence) Act 2006 No 73

27 October 2006

12 March 2007 (Gaz 130 of 3 November 2006)

Road Transport Legislation Amendment (Drug Testing) Act 2006 No 79

27 October 2006

15 December 2006

Criminal Procedure Amendment (Sexual and Other Offences) Act 2006 No 88

2 November 2006

s 3 and Sch 1: 1 January 2007

Police Amendment (Miscellaneous) Act 2006 No 94

22 November 2006

Sch 3.9: 1 February 2007 (s 2 and Gaz No 22 of 1 February 2007)

Crimes and Courts Legislation Amendment Act 2006 No 107

29 November 2006

Sch 1.11 [1]–[19], [22] and [23]: on assent (s 2(2)); Sch 1.11[20] and [21]: 18 December 2009 (LW 18 December 2009, SI 606 of 2009)

Statute Law (Miscellaneous Provisions) Act (No 2) 2006 No 120

4 December 2006

s 3 and Schs 1.8, 3.7: 4 December 2006

Police Powers Legislation Amendment Act 2006 No 128

12 December 2006

s 6 and Sch 4: 12 December 2006

Criminal Procedure Amendment (Vulnerable Persons) Act 2007 No 6

15 June 2007

12 October 2007

Statute Law (Miscellaneous Provisions) Act 2007 No 27

4 July 2007

Sch 1[1.13]: 1 July 2008

Criminal Procedure Amendment (Local Court Process Reforms) Act 2007 No 34

4 July 2007

14 November 2007

44

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Amending Legislation

Date of Assent

Date of Commencement

Crimes Amendment Act 2007 No 38

27 September 2007

Sch 3.1[1], [3]–[6]: on assent; Sch 3.1[2]: 15 February 2008

Evidence Amendment Act 2007 No 46

1 November 2007

1 January 2009 (s 2 and Gaz 158 of 19 December 2008)

Criminal Legislation Amendment Act 2007 No 57

15 November 2007

Sch 1[1], [11], [12], [15]: 15 November 2007; Sch 1[2]–[10], [12]–[14], [16]: 7 December 2007

Surveillance Devices Act 2007 No 64

23 November 2007

1 August 2008

Crimes Amendment (Sexual Procurement or Grooming of Children) Act 2007 No 74

7 December 2007

18 January 2008 (Gaz 9 of 18 January 2008)

Evidence (Audio and Audio Visual Links) Amendment Act 2007 No 75

7 December 2007

1 January 2009 (Gaz 158 of 19 December 2008)

Crimes (Domestic and Personal Violence) Act 2007 No 80

7 December 2007

s 103 and Sch 2.9: 10 March 2008 (Gaz 30 of 7 March 2008)

Child Protection (Offenders Registration) Amendment Act 2007 No 87

13 December 2007

s 6 and Sch 4.2: 20 October 2008

Miscellaneous Acts (Casino, Liquor and Gaming) Amendment Act 2007 No 92

13 December 2007

Sch 4: 1 July 2008

Miscellaneous Acts (Local Court) Amendment Act 2007 No 94

13 December 2007

Schs 1.28, 2 and 3: 6 July 2009 (s 2 and SI 314 of 2009, LW 3 July 2009)

Electricity Supply Amendment (Offences) Act 2008 No 2

19 March 2008

All: on assent (s 2)

Crimes Amendment (Rock Throwing) Act 2008 No 18

20 May 2008

23 May 2008 (Gaz 56 of 23 May 2008)

Mining Amendment Act 2008 No 19

20 May 2008

Sch 2.2[1] and [3]: 15 November 2010 (s 2 and SI 617 of 2010, LW 5 November 2010); Sch 2.2[2]: 1 August 2008 (s 2 and Gaz 93 of 1 August 2008)

Fines Amendment Act 2008 No 40

25 June 2008

Sch 2: on assent

Children (Criminal Proceedings) Amendment Act 2008 No 54

1 July 2008

Sch 2: 3 November 2008 (s 2(1) and Gaz 138 of 31 October 2008)

Crimes Amendment (Cognitive Impairment — Sexual Offences) Act 2008 No 74

28 October 2008

1 December 2008 (s 2 and Gaz 150 of 21 November 2008)

45

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Criminal Procedure

CRIMINAL PROCEDURE ACT 1986

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Amending Legislation

Date of Assent

Date of Commencement

Crimes Amendment (Sexual Offences) Act 2008 No 105

8 December 2008

Sch 2: 1 January 2009 (s 2(1) and Gaz 158 of 19 December 2008)

Courts and Crimes Legislation Further Amendment Act 2008 No 107

8 December 2008

Sch 7[1]–[10] and [12]: on assent (s 2(1)); Sch 7[11]: 18 December 2009 (s 2(3)(b) and SI 606 of 2009, LW 18 December 2009); Sch 29: 7 April 2009 (s 2(2) and SI 112 of 2009, LW 3 April 2009)

Rural Lands Protection Amendment Act 2008 No 112

10 December 2008

s 4 and Sch 6.3: 1 January 2009

Statute Law (Miscellaneous Provisions) (No 2) Act 2008 No 114

10 December 2008

Sch 2.8[1]–[2], [4]: on assent (s 2); Sch 2.8[3]: 1 August 2008 (Sch 2.8)

Crimes (Appeal and Review) Amendment Act 2009 No 4

30 March 2009

Sch 2: on assent (s 2(1))

Crimes (Criminal Organisations Control) Act 2009 No 6*

3 April 2009

on assent (s 2)

Criminal Organisations Legislation Amendment Act 2009 No 23

19 May 2009

Sch 3: 19 May 2009 (s 2)

Criminal Legislation Amendment Act 2009 No 27

19 May 2009

On assent (s 2)

Energy Legislation Amendment (Infrastructure Protection) Act 2009 No 31

9 June 2009

1 July 2010 (SI 320 of 2010, LW 1 July 2010)

Coroners Act 2009 No 41

19 June 2009

Sch 4: 1 January 2010 (s 2(1) and SI 544 of 2009, LW 27 November 2009)

Road Transport Legislation Amendment (Traffic Offence Detection) Act 2009 No 50

26 June 2009

11 September 2009 (s 2 and SI 454 of 2009, LW 4 September 2009)

Statute Law (Miscellaneous Provisions) Act 2009 No 56

1 July 2009

Schs 2.11 and 3.3: 17 July 2009 (s 2)

Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009 No 99

14 December 2009

22 February 2010 (s 2 and SI 41 of 2010, LW 19 February 2010)

Criminal Procedure Amendment (Case Management) Act 2009 No 112

14 December 2009

1 February 2010 (s 2 and SI 10 of 2010, LW 22 January 2010)

*

On 23 June 2011, the High Court in Wainohu v New South Wales (2011) 278 ALR 1; 85 ALJR 746; [2011] HCA 24; BC201104388 stated in response to the question in that case that “The Crimes (Criminal Organisations Control) Act 2009 (NSW) is invalid”.

46

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Amending Legislation

Date of Assent

Date of Commencement

Fisheries Management Amendment Act 2009 No 114

14 December 2009

Sch 2: 1 April 2010 (s 2 and SI 112 of 2010, LW 1 April 2010)

Crimes Amendment (Police Pursuits) Act 2010 No 2

18 March 2010

On assent (s 2)

Crimes Amendment (Child Pornography and Abuse Material) Act 2010 No 9

28 April 2010

Sch 2[4]–[6] and [10]: on assent (s 2(2)); Sch 2[1]– [3], [7]–[9]: 17 September 2010 (s 2 and SI 517 of 2010)

Relationships Register Act 2010 No 19

19 May 2010

Sch 3: on assent (s 2(2))

Weapons and Firearms Legislation Amendment Act 2010 No 40

15 June 2010

9 July 2010 (s 2 and SI 351 of 2010, LW 9 July 2010)

Health Legislation Amendment Act 2010 No 52

28 June 2010

Sch 1.2: 30 July 2010 (s 2 and SI 385 of 2010, LW 30 July 2010)

Courts Legislation Amendment Act 2010 No 63

28 June 2010

Sch 1.8: 28 June 2010 (s 2)

Law Enforcement and National Security (Assumed Identities) Act 2010 No 73

29 September 2010

On assent (s 2)

Courts and Crimes Legislation Amendment Act 2010 No 88

1 November 2010

Sch 2: on assent (s 2)

Court Suppression and Non-publication Orders Act 2010 No 106

29 November 2010

1 July 2011 (s 2 and SI 296 of 2011, LW 24 June 2011)

Courts and Crimes Legislation Further Amendment Act 2010 No 135

7 December 2010

Sch 12.1 and Sch 12.2[1], [3]–[5]: on assent (s 2); Sch 12.2[2]: 14 January 2011 (s 2)

Statute Law (Miscellaneous Provisions) Act (No 2) 2011 No 62

16 November 2011

Sch 3.7: 6 January 2012 (s 2(1))

Work Health and Safety Legislation Amendment Act 2011 No 67

28 November 2011

Sch 4.6: 1 January 2012 (s 2)

Crimes Amendment (Consorting and Organised Crime) Act 2012 No 3

14 March 2012

Sch 2.2: 9 April 2012 (s 2 and SI 143 of 2012, LW 5 April 2012)

Crimes (Criminal Organisations Control) Act 2012 No 9

21 March 12

Sch 1.4: 21 March 2012 (s 2)

Criminal Procedure Amendment (Summary Proceedings Case Management) Act 2012 No 10

21 March 2012

Sch 1: 30 April 2012 (s 2 and SI 166 of 2012, LW 27 April 2012)

Courts and Crimes Legislation Amendment Act 2012 No 11

21 March 2012

Sch 1.1: 21 March 2012 (s 2)

Courts and Other Legislation Amendment Act 2012 No 60

10 September 2012

Sch 5: 1 January 2014 (s 2 and SI 717 of 2013, LW 20 December 2013)

47

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Criminal Procedure

CRIMINAL PROCEDURE ACT 1986

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Amending Legislation

Date of Assent

Date of Commencement

Crimes Amendment (Cheating at Gambling) Act 2012 No 64

13 September 2012

13 September 2012 (s 2)

Crimes Legislation Amendment Act 2012 No 67

24 September 2012

24 September 2012 (s 2)

Petroleum (Onshore) Amendment (Royalties and Penalties) Act 2012 No 84

29 October 2012

Sch 2.1: 1 January 2013 (s 2 and SI 667 of 2012, LW 21 December 2012)

Statute Law (Miscellaneous Provisions) Act (No 2) 2012 No 95

21 November 2012

Sch 1.7 and 2.8: 4 January 2013 (s 2)

Criminal Procedure Amendment (Court Costs Levy) Act 2013 No 8

25 March 2013

Sch 1: 13 May 2013 (s 2 and SI 193 of 2013)

Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Act 2013 No 10

25 March 2013

1 September 2013 (s 2 and SI 444 of 2013)

Road Transport Legislation (Repeal and Amendment) Act 2013 No 19

3 April 2013

1 July 2013 (s 2 and SI 329 of 2013, LW 28 June 2013)

Local Land Services Act 2013 No 51

1 July 2013

Sch 7: 1 January 2014 (s 2)

Firearms and Criminal Groups Legislation Amendment Act 2013 No 74

23 October 2013

1 November 2013 (s 2 and SI 623 of 2013, LW 1 November 2013)

Child Protection Legislation Amendment (Offenders Registration and Prohibition Orders) Act 2013 No 77

29 October 2013

29 October 2013 (s 2)

Crimes and Courts Legislation Amendment Act 2013 No 80

29 October 2013

29 October 2013 (s 2)

Companion Animals Amendment Act 2013 No 86

11 November 2013

Sch 3: 18 November 2013 (s 2(1) and SI 644 of 2013, LW 15 November 2013)

Crimes Legislation Amendment Act 2013 No 90

20 November 2013

20 November 2013 (s 2)

Civil and Administrative Legislation (Repeal and Amendment) Act 2013 No 95

20 November 2013

1 January 2014 (s 2)

Bail (Consequential Amendments) Act 2014 No 5

12 March 2014

20 May 2014 (s 2 and SI 235 of 2014, LW 24 April 2014)

Crimes Amendment (Strangulation) Act 2014 No 23

5 June 2014

5 June 2014 (s 2)

Child Protection (Offenders Registration) Amendment (Statutory Review) Act 2014 No 54

23 October 2014

23 October 2014 (s 2)

Crimes (High Risk Offenders) Amendment Act 2014 No 58

23 October 2014

7 January 2015 (s 2 and SI 831 of 2014, LW 19 December 2014)

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Amending Legislation

Date of Assent

Date of Commencement

Crimes Legislation Amendment Act 2014 No 59

23 October 2014

23 October 2014 (s 2)

Rural Fires Amendment Act 2014 No 66

28 October 2014

28 October 2014 (s 2)

Criminal Procedure Amendment (Domestic Violence Complainants) Act 2014 No 83

28 November 2014

1 June 2015 (s 2 and SI 247 of 2015, LW 29 May 2015)

Statute Law (Miscellaneous Provisions) Act (No 2) 2014 No 88

28 November 2014

Schs 1.5 and 2.16: 8 January 2015 (s 2(1))

Legal Profession Uniform Law Application Legislation Amendment Act 2015 No 7

9 June 2015

Sch 2.11: 1 July 2015 (s 2(2) and SI 299 of 2015, LW 19 June 2015)

Statute Law (Miscellaneous Provisions) Act 2015 No 15

29 June 2015

Sch 2.14: 8 July 2015 (s 2(1))

Criminal Procedure Amendment (Child Sexual Offence Evidence Pilot) Act 2015 No 46

5 November 2015

5 November 2015 (s 2)

Firearms and Weapons Prohibition Legislation Amendment Act 2015 No 63

24 November 2015

24 November 2015 (s 2)

Courts and Other Justice Portfolio Legislation Amendment Act 2015 No 67

24 November 2015

Sch 1.8: 24 November 2015 (s 2(1))

Crimes (Serious Crime Prevention Orders) Act 2016 No 15

11 May 2016

Sch 2: 25 November 2016 (s 2 and SI 694 of 2016, LW 25 November 2016)

Criminal Legislation Amendment (Organised Crime and Public Safety) Act 2016 No 16

11 May 2016

Sch 4[1], [3]: 8 September 2016 (s 2 and SI 577 of 2016, LW 8 September 2016); Sch 4[2]: 31 March 2017 (s 2 and SI 95 of 2017, LW 24 March 2017)

Criminal Procedure Amendment (Summary Proceedings for Indictable Offences) Act 2016 No 44

28 September 2016

Sch 1: 11 November 2016 (s 2 and SI 661 of 2016, LW 4 November 2016)

Industrial Relations Amendment (Industrial Court) Act 2016 No 48

18 October 2016

Sch 2.13: 8 December 2016 (s 2(1) and SI 674 of 2016, LW 15 November 2016)

Justice Portfolio Legislation (Miscellaneous Amendments) Act 2016 No 54

25 October 2016

Sch 1.7: 25 October 2016 (s 2)

Statute Law (Miscellaneous Provisions) Act (No 2) 2016 No 55

25 October 2016

Sch 3.7: 6 January 2017 (s 2(1))

49

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Criminal Procedure

CRIMINAL PROCEDURE ACT 1986

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Amending Legislation

Date of Assent

Date of Commencement

Law Enforcement Conduct Commission Act 2016 No 61

14 November 2016

Sch 6.11: 1 July 2017 (s 2(1) and SI 256 of 2017, LW 16 June 2017)

Independent Commission Against Corruption Amendment Act 2016 No 65

23 November 2016

Sch 3.2: 7 August 2017

Motor Accident Injuries Act 2017 No 10

4 April 2017

Sch 5.3: 1 December 2017

Firearms and Weapons Legislation Amendment Act 2017 No 26

27 June 2017

Sch 5: 1 November 2017 (s 2 and 2017 (294) LW (30 June 2017))

Crimes Amendment (Intimate Images) Act 2017 No 29

27 June 2017

Sch 2.3: 25 August 2017

Justice Legislation Amendment Act 2017 No 40

14 August 2017

Sch 1.9: 14 August 2017 (s 2(1))

Justice Legislation Amendment Act (No 2) 2017 No 44

25 September 2017

Sch 1.9: 25 September 2017 (s 2(1))

Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 No 53

24 October 2017 (LW 21 September 2018)

Sch 4 item 4.14: 24 September 2018

Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 No 55

24 October 2017

Sch 1: 30 April 2018

Electoral Act 2017 No 66

30 November 2017

Sch 8 item 8.6: 1 July 2018

Terrorism (High Risk Offenders) Act 2017 No 68

30 November 2017 (LW 19 January 2018)

Sch 2.11: 19 January 2018

Justice Legislation Amendment Act 2018 No 4

21 March 2018; LW 13 April 2018

Sch 1.5[1], [10]: 21 March 2018; Sch 1.5[3], [5], [9]: 16 April 2018 (LW 13 April 2018); Sch 1 item 1.5[2], [4], [6]–[8]: 2 July 2018 (s 2(2))

Electoral Funding Act 2018 No 20

30 May 2018

Sch 3 item 3.1: 1 July 2018

Statute Law (Miscellaneous Provisions) Act 2018 No 25

15 June 2018

Sch 1 item 1.7: 30 April 2018; Sch 5 item 5.10: 29 June 2018 (s 2(1))

Justice Legislation Amendment Act (No 2) 2018 No 29

21 June 2018

Sch 1 item 1.10[1]–[13], [15]–[18], Sch 2 item 2.6[1]–[2]: 21 June 2018 (s 2(1)); Sch 1 item 1.10[14]: 1 January 2019 (s 2 and 2018 (675))

Crimes Amendment (Publicly Threatening and Inciting Violence) Act 2018 No 32

27 June 2018 (LW 10 August 2018)

Sch 3: 13 August 2018

50

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Amending Legislation

Date of Assent

Date of Commencement

Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 No 33

27 June 2018 (LW 30 November 2018)

Sch 4[1], [6], [12], [15]: 31 August 2018; Sch 4[2]–[5], [7]–[11], [13], [14], [16]–[19]: 1 December 2018

Criminal Procedure Amendment (Pretrial Disclosure) Act 2018 No 47

27 September 2018 (LW 2 November 2018)

2 November 2018

Crimes Legislation Amendment Act 2018 No 83

28 November 2018

Sch 3 item 3.2: 1 December 2018

Justice Legislation Amendment Act (No 3) 2018 No 87

28 November 2018

Sch 1 item 1.15: 28 November 2018

Crimes Legislation Amendment (Victims) Act 2018 No 88

28 November 2018

Sch 5: 1 December 2018

Community Protection Legislation Amendment Act 2018 No 94

28 November 2018

Sch 1 item 1.5: 28 November 2018

Justice Legislation Amendment Act 2019 No 10

26 September 2019

Sch 1.9: 26 September 2019

Abortion Law Reform Act 2019 No 11

2 October 2019

Sch 2.2: 2 October 2019

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Criminal Procedure

CRIMINAL PROCEDURE ACT 1986

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[Long Title am Act 119 of 2001 s 3 and Sch 1[1], opn 7 July 2003]

CHAPTER 1 — PRELIMINARY [Heading insrt Act 119 of 2001 s 3 and Sch 1[2], opn 7 July 2003]

[2-s 1] Name of Act 1

This Act may be cited as the Criminal Procedure Act 1986.

[2-s 2] Commencement 2 (1) Sections 1 and 2 shall commence on the date of assent to this Act. (2) Except as provided by subsection (1), this Act shall commence on such day as may be appointed by the Governor and notified by proclamation published in the Gazette. COMMENTARY ON SECTION 2 Commencement of amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Proceedings commenced on or after 7 July 2003 . . . . . . . . . . . . . . . . Proceedings commenced before 7 July 2003 . . . . . . . . . . . . . . . . . . . .

[2-s 2.1] [2-s 2.5] [2-s 2.10]

[2-s 2.1] Commencement of amendments Amendments effected to the Criminal Procedure Act 1986 by the Criminal Procedure Amendment (Justices and Local Courts) Act 2001 (“the 2001 Act”) commenced on 7 July 2003. [2-s 2.5] Proceedings commenced on or after 7 July 2003 The provisions of the amended Criminal Procedure Act, and any instruments made under that Act, apply to or in relation to proceedings for an offence committed before 7 July 2003 if proceedings for the offence were not commenced before that date: cl 29(1), Sch 3 at [2-Sch 3]. [2-s 2.10] Proceedings commenced before 7 July 2003 The provisions of the repealed Justices Act 1902 and the Criminal Procedure Act as it stood before amendment by the 2001 Act, and any instruments made under those Acts, continue to apply to or in relation to proceedings for an offence committed before 7 July 2003, if proceedings for the offence were commenced before that date: cl 29(2), Sch 3 at [2-Sch 3]. For the purpose of cl 29(2) of Sch 3, proceedings are taken to have been commenced in respect of an offence if an information was laid or a complaint made, or an attendance notice issued, in relation to the offence, before 7 July 2003: cl 29(3), Sch 3 at [2-Sch 3]. Clause 29 applies to all proceedings for offences (including committal proceedings): cl 29(4), Sch 3 at [2-Sch 3]. Clause 29 does not apply to or in respect of the appeal and review provisions in Pts 4A, 5, 5A and 5B of the repealed Justices Act 1902: cl 29(5), Sch 3 at [2-Sch 3]. See [4-s 2.1] for the savings and transitional provisions applicable to appeals from and review of Local Court criminal decisions. By operation of cl 30, Sch 3 at [2-Sch 3], provisions of the Criminal Procedure Act as it stood before amendment by the 2001 Act, and any instrument made under that Act continue to apply to or in relation to:

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Criminal Procedure

An Act relating to the prosecution of indictable offences, the listing of criminal proceedings before the Supreme Court and the District Court, committal proceedings and proceedings for summary offences and the giving of certain indemnities and undertakings; and for other purposes.

[2-s 2.10]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s2

(a) requiring the appearance of accused persons, witnesses and other persons at proceedings relating to offences to which that Act and the Justices Act continue to apply; (b) the issue and enforcement of and requirements for warrants of apprehension and commitment relating to offences to which that Act and the Justices Act continue to apply; (c) the service of process and other documents relating to offences to which that Act and the Justices Act continue to apply. A warrant issued under the Justices Act 1902 before 7 July 2003 and in force at that date continues to have effect, and may be executed and enforced as if that Act were still in force: cl 31, Sch 3 at [2-Sch 3]. The provisions of the Justices Act 1902 and any instrument made under that Act continue to apply to or in relation to orders for, and the payment of, costs by accused persons or other persons in any proceedings commenced under that Act before 7 July 2003 and the enforcement of any such order: cl 31, Sch 3 at [2-Sch 3]. See also cl 25, Sch 3 at [2-Sch 3] for general savings relating to proceedings where something was done under a repealed provision and where the same thing could have been done under the corresponding provisions of the Criminal Procedure Act, as amended by the 2001 Act, or the now repealed Local Courts Act 1982, as amended by the Justices Legislation Repeal and Amendment Act 2001.

[2-s 3] Definitions 3 (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires: accused person includes, in relation to summary offences, a defendant and, in relation to all offences (where the subject-matter or context allows or requires), an Australian legal practitioner representing an accused person. [def insrt Act 119 of 2001 s 3 and Sch 1[4], opn 7 July 2003; am Act 120 of 2006 s 3 and Sch 3[1], opn 4 Dec 2006]

apprehended violence order has the same meaning as in the Crimes (Domestic and Personal Violence) Act 2007. [def insrt Act 94 of 1999 s 4 and Sch 2[1], opn 1 Jan 2000; subst Act 80 of 2007 s 103 and Sch 2.9, opn 10 Mar 2008]

authorised officer means: (a) a registrar of a court, or (b) an employee of the Attorney General’s Department authorised by the Attorney General as an authorised officer for the purposes of this Act. [def insrt Act 119 of 2001 s 3 and Sch 1[4], opn 7 July 2003] Note. Please see NSW Government Gazette No 109 p 6919 for appointment of authorised officer

bail has the same meaning as it has in the Bail Act 2013. [def insrt Act 119 of 2001 s 3 and Sch 1[4], opn 7 July 2003; am Act 5 of 2014 Sch 2 item 2.15[1], opn 20 May 2014]

case conference means a conference held under Division 5 of Part 2 of Chapter 3. [def insrt Act 55 of 2017 Sch 1[1], opn 30 Apr 2018; am Act 25 of 2018 Sch 5 item 5.10, opn 29 June 2018]

case conference certificate means a case conference certificate required to be completed and filed under Division 5 of Part 2 of Chapter 3. [def insrt Act 55 of 2017 Sch 1[1], opn 30 Apr 2018]

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CRIMINAL PROCEDURE ACT 1986

[2-s 3]

case conference material — see section 78(5). [def insrt Act 55 of 2017 Sch 1[1], opn 30 Apr 2018]

charge certificate — see section 66(1). [def insrt Act 55 of 2017 Sch 1[1], opn 30 Apr 2018]

Chief Magistrate means the Chief Magistrate of the Local Court appointed under the Local Court Act 2007. [def subst Act 94 of 2007 s 3 and Sch 1.28, opn 6 July 2009]

committal proceedings means proceedings before a Magistrate for the purpose of committing a person charged with an indictable offence for trial or sentence. [def am Act 119 of 2001 s 3 and Sch 1[3], opn 7 July 2003; subst Act 55 of 2017 Sch 1[2], opn 30 Apr 2018]

court means: (a) the Supreme Court, the Court of Criminal Appeal, the Land and Environment Court, the District Court or the Local Court, or (b) any other court that, or person who, exercises criminal jurisdiction, but, subject to the Children (Criminal Proceedings) Act 1987, does not include the Children’s Court or any other court that, or person who, exercises the functions of the Children’s Court. [def insrt Act 94 of 1999 s 4 and Sch 2[1], opn 1 Jan 2000; am Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009; Act 48 of 2016 Sch 2.13[1], opn 8 Dec 2016]

Court of Coal Mines Regulation means the Court of Coal Mines Regulation established under the Coal Mines Regulation Act 1982. [def insrt Act 119 of 2001 s 3 and Sch 1[4], opn 7 July 2003]

domestic violence complainant, in proceedings for a domestic violence offence, means the person against whom the domestic violence offence is alleged to have been committed, but does not include a person who is a vulnerable person. [def insrt Act 83 of 2014 Sch 1[1], opn 1 June 2015]

domestic violence offence means a domestic violence offence within the meaning of the Crimes (Domestic and Personal Violence) Act 2007. [def insrt Act 83 of 2014 Sch 1[1], opn 1 June 2015]

exercise a function includes perform a duty. [def insrt Act 119 of 2001 s 3 and Sch 1[4], opn 7 July 2003]

female genital mutilation offence means any of the following: (a) an offence under section 45 or 45A of the Crimes Act 1900, (b) an offence (including an offence under section 86 of the Crimes Act 1900) that includes the commission of, or an intention to commit, an offence under section 45 or 45A of the Crimes Act 1900, (c) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in paragraph (a) or (b). [def insrt Act 88 of 2018 Sch 5[1], opn 1 Dec 2018]

function includes a power, authority or duty. [def insrt Act 119 of 2001 s 3 and Sch 1[4], opn 7 July 2003]

indictable offence means an offence (including a common law offence) that may be prosecuted on indictment.

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Criminal Procedure

s3

[2-s 3]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s3

Industrial Magistrate means an Industrial Magistrate appointed under the Industrial Relations Act 1996. [def insrt Act 119 of 2001 s 3 and Sch 1[4], opn 7 July 2003]

Industrial Relations Commission in Court Session [def rep Act 48 of 2016 Sch 2.13[2], opn 8 Dec 2016]

intervention plan — see section 346. [def insrt Act 100 of 2002 s 3 and Sch 1[1], opn 24 Feb 2003; am Act 100 of 2002 s 3 and Sch 1[3], opn 7 July 2003]

intervention program — see section 346. [def insrt Act 100 of 2002 s 3 and Sch 1[1], opn 24 Feb 2003; am Act 100 of 2002 s 3 and Sch 1[3], opn 7 July 2003]

Licensing Court [def rep Act 92 of 2007 s 6 and Sch 4.5[1], opn 1 July 2008]

Licensing Magistrate [def rep Act 92 of 2007 s 6 and Sch 4.5[1], opn 1 July 2008]

Local Court [def rep Act 94 of 2007 s 3 and Sch 1.28, opn 6 July 2009]

Magistrate [def rep Act 94 of 2007 s 3 and Sch 1.28, opn 6 July 2009]

offence means an offence against the laws of the State (including a common law offence). [def am Act 67 of 2015 Sch 1.8[1], opn 24 Nov 2015]

plea offer — see section 77(1). [def insrt Act 55 of 2017 Sch 1[1], opn 30 Apr 2018]

prescribed sexual offence means: (a) an offence under section 43B, 61B, 61C, 61D, 61E, 61I, 61J, 61JA, 61K, 61KC, 61KD, 61KE, 61KF, 61L, 61M, 61N, 61O, 63, 65, 65A, 66, 66A, 66B, 66C, 66D, 66DA, 66DB, 66DC, 66DD, 66DE, 66DF, 66EA, 66EB, 66EC, 66F, 67, 68, 71, 72, 72A, 73, 73A, 74, 76, 76A, 78A, 78B, 78H, 78I, 78K, 78L, 78M, 78N, 78O, 78Q, 79, 80, 80A, 80D, 80E, 81, 81A, 81B, 87, 89, 90, 90A, 91, 91A, 91B, 91D, 91E, 91F, 91G or 316A of the Crimes Act 1900, or (b) an offence that, at the time it was committed, was a prescribed sexual offence for the purposes of this Act or the Crimes Act 1900, or (c) an offence (including an offence under section 86 of the Crimes Act 1900) that includes the commission of, or an intention to commit, an offence referred to in paragraph (a) or (b), or (d) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in paragraph (a), (b) or (c). [def subst Act 25 of 2005 s 3 and Sch 1, opn 12 Aug 2005; am Act 74 of 2007 s 4 and Sch 2[1], opn 18 Jan 2008; Act 44 of 2017 Sch 1.9[1], [2], opn 25 Sep 2017; Act 33 of 2018 Sch 4[1], [6], opn 31 Aug 2018, Sch 4[2]–[5], opn 1 Dec 2018]

prescribed summary offence has the same meaning as in the Director of Public Prosecutions Act 1986.

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CRIMINAL PROCEDURE ACT 1986

[2-s 3]

prosecuting authority [def rep Act 119 of 2001 s 3 and Sch 1[5], opn 7 July 2003]

prosecutor means the Director of Public Prosecutions or other person who institutes or is responsible for the conduct of a prosecution and includes (where the subject-matter or context allows or requires) an Australian legal practitioner representing the prosecutor. [def insrt Act 119 of 2001 s 3 and Sch 1[5], opn 7 July 2003; am Act 120 of 2006 s 3 and Sch 3[1], opn 4 Dec 2006]

public (a) (b) (c)

officer means any of the following persons, if acting in an official capacity: an employee in the Public Service or the NSW Police Force, an officer or employee of a statutory body representing the Crown, an employee of a council within the meaning of the Local Government Act 1993, (d) a member of staff of Local Land Services, (e) the Director of Public Prosecutions, Deputy Director of Public Prosecutions or Solicitor for Public Prosecutions, (f) an officer or employee of a body declared by the regulations to be a public body for the purposes of this definition.

[def insrt Act 119 of 2001 s 3 and Sch 1[4], opn 7 July 2003; am Act 112 of 2008 s 4 and Sch 6.3, opn 1 Jan 2009; Act 62 of 2011 Sch 3.7, opn 6 Jan 2012; Act 51 of 2013 Sch 7 item 7.8, opn 1 Jan 2014]

recorded statement — see section 289D. [def insrt Act 83 of 2014 Sch 1[1], opn 1 June 2015]

regulations means regulations under this Act. Rule Committee for a court means a person or body having power to make rules for the court. [def insrt Act 119 of 2001 s 3 and Sch 1[4], opn 7 July 2003]

rules means rules made for the purposes of a court to which the relevant provision applies. [def insrt Act 119 of 2001 s 3 and Sch 1[4], opn 7 July 2003]

sexual offence witness has the same meaning as in section 294D. [def insrt Act 88 of 2018 Sch 5[1], opn 1 Dec 2018]

summary offence means an offence that is not an indictable offence. trial Judge means the Judge before whom trial proceedings, following empanelment of a jury in proceedings on indictment, are heard. [def insrt Act 112 of 2009 Sch 1, opn 1 Feb 2010]

vulnerable person has the same meaning as it has in Part 6 of Chapter 6. [def insrt Act 83 of 2014 Sch 1[1], opn 1 June 2015]

warden’s court [def rep Act 107 of 2008 s 3 and Sch 29, opn 7 Apr 2009]

Note. The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. [subs (1) am Act 22 of 1995 s 3 and Sch 1[1], opn 1 Sep 1995]

(2) Notes included in this Act are explanatory notes and do not form part of this Act. [subs (2) subst Act 119 of 2001 s 3 and Sch 1[6], opn 7 July 2003]

(3) In the absence of evidence to the contrary, a person specified in paragraphs (a)–(f)

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Criminal Procedure

s3

[2-s 3]

s3

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

of the definition of public officer who purports to exercise a function as a public officer under this Act is presumed to be acting in an official capacity. [subs (3) insrt Act 107 of 2006 s 3 and Sch 1, opn 29 Nov 2006]

(4) In this Act, a reference to the empanelment of a jury is, in the case of a trial by a Judge alone, taken to be a reference to the point in time when the Judge first assumes the role of the tribunal of fact. [subs (4) insrt Act 112 of 2009 Sch 1, opn 1 Feb 2010]

COMMENTARY ON SECTION 3 “Prescribed summary offences” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . “Public officer” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Prescribed sexual offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 3.1] “Prescribed summary offences” Regulation at [29-15,010].

[2-s 3.1] [2-s 3.5] [2-s 3.10]

See cl 3 of the Director of Public Prosecutions

[2-s 3.5] “Public officer” See cl 113(1) of the Criminal Procedure Regulation 2017 at [2-5870] for the list of bodies declared to be a public body for the purpose of para (f) of the definition of “public officer”. [2-s 3.10] Prescribed sexual offence The amendments made to the definition of “prescribed sexual offence” in s 3(1) by the Criminal Procedure Further Amendment (Evidence) Act 2005, which commenced on 12 August 2005, extend to proceedings in respect of an offence that were instituted or partly heard before the commencement of the amendments: cl 41(1), Sch 2, Criminal Procedure Act 1986 at [2-Sch 2].

[2-s 4] Regulations and rules 4 (1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act. (2) The Rule Committee for a court may make rules, not inconsistent with this or any other Act, for or with respect to the following matters: (a) any matter that is required or permitted to be prescribed by rules, or that is necessary or convenient to be prescribed by rules, in relation to the practice or procedure to be followed to give effect to this Act, (b) any matter incidental to, or relating to, any such practice or procedure. [subs (2) insrt Act 119 of 2001 s 3 and Sch 1[9], opn 7 July 2003]

(3) The rules are to be made in accordance with the Act under which the court is constituted. [subs (3) insrt Act 119 of 2001 s 3 and Sch 1[9], opn 7 July 2003] [s 4 insrt Act 89 of 1989 s 3 and Sch 2(2); renum Act 94 of 1999 s 4 and Sch 2[2], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[8], opn 7 July 2003]

COMMENTARY ON SECTION 4 Regulations and rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 4.1]

[2-s 4.1] Regulations and rules See the Criminal Procedure Regulation 2017 at [2-5000] and following, and the Local Court Rules 2009 at [2-9200] and following.

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CRIMINAL PROCEDURE ACT 1986

[2-s 4A]

[2-s 4A] Fees 4A (1) The regulations may make provision for or with respect to the following matters: (a) the fees payable to a court in relation to the conduct of criminal proceedings in the court, including fees for the following: (i) the filing or registration of any document in the court, (ii) the sealing or other authentication of any document that has been filed in the court, (iii) the issue of any document out of the court, (b) the fees payable in relation to the functions exercised by the Sheriff in relation to criminal proceedings, (c) the fees payable for administrative services provided by a registrar or other officer of the court, whether in connection with the administration of this Act or otherwise, (d) the waiver, postponement and remittal of fees. (2) Fees of the kind referred to in subsection (1)(a) or (b) are not payable by the Crown, or by any person acting on behalf of the Crown, with respect to any criminal proceedings prosecuted by: (a) the Crown, (b) any Minister of the Crown, (c) any person or body prescribed by the regulations or belonging to a class of persons or bodies so prescribed. (2A) Despite subsection (2), such fees are payable by any NSW Government agency or statutory body representing the Crown prescribed by the regulations for the purposes of this subsection. [subs (2A) insrt Act 60 of 2012 Sch 5, opn 1 Jan 2014]

(3) Subsection (2) does not prevent the recovery by the Crown or any such person or body of any fees that would, had they been paid by the Crown or any such person or body, have been so recoverable. (4) Unpaid fees may be recovered by the person to whom they are payable, as a debt, in any court of competent jurisdiction. (5) In this section, criminal proceedings means proceedings for an offence (whether summary or indictable), and includes the following: (a) committal proceedings, (b) proceedings relating to bail, (c) proceedings relating to sentence, (d) proceedings on an appeal against conviction or sentence. [s 4A insrt Act 28 of 2005 s 6(2) and Sch 5.11[1], opn 15 Aug 2005]

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Criminal Procedure

s 4A

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Criminal Procedure

CHAPTER 2 — GENERAL PROVISIONS [Heading insrt Act 119 of 2001 Sch 1[11], opn 7 July 2003]

PART 1 — OFFENCES [Heading insrt Act 119 of 2001 Sch 1[11], opn 7 July 2003]

[2-s 5] Certain offences to be dealt with on indictment 5 (1) An offence must be dealt with on indictment unless it is an offence that under this or any other Act is permitted or required to be dealt with summarily. (2) An offence may be dealt with on indictment if it is an offence that under this or any other Act is permitted to be dealt with summarily or on indictment. [s 5 insrt Act 94 of 1999 s 4 and Sch 2[8], opn 1 Jan 2000; renum Act 119 of 2001 Sch 1[12], opn 7 July 2003]

COMMENTARY ON SECTION 5 Indictable procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 5.1]

[2-s 5.1] Indictable procedures The procedures applicable to indictable offences are found in Ch 3 commencing at [2-s 45] and following. Provisions relating to committal proceedings are found in Pt 2 of that Chapter commencing at [2-s 47] and following, and those relating to trial procedure in P 3 commencing at [2-s 121] and following. The provisions relating to the summary disposal of indictable offences in the Local Court are contained in Ch 5 commencing at [2-s 258] and following.

[2-s 6] Certain offences to be dealt with summarily 6 (1) The following offences must be dealt with summarily: (a) an offence that under this or any other Act is required to be dealt with summarily, (b) an offence that under this or any other Act is described as a summary offence, (c) an offence for which the maximum penalty that may be imposed is not, and does not include, imprisonment for more than 2 years, excluding the following offences: (i) an offence that under any other Act is required or permitted to be dealt with on indictment, (ii) an offence listed in Table 1 or 2 to Schedule 1. [subs (1) am Act 57 of 2007 s 3 and Sch 1[1], opn 15 Nov 2007]

(2) An offence may be dealt with summarily if it is an offence that under this or any other Act is permitted to be dealt with summarily or on indictment. [s 6 insrt Act 94 of 1999 s 4 and Sch 2[8], opn 1 Jan 2000; renum Act 119 of 2001 Sch 1[12], opn 7 July 2003]

COMMENTARY ON SECTION 6 Summary offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 6.1]

[2-s 6.1] Summary offences This section has to be considered in light of s 260 which provides for certain offences to be dealt with summarily unless election is made proceed on indictment, see at [2-s 260]. Similar provisions were considered in: R v Fisher (2002) 54 NSWLR 467; [2002] NSWCCA 188; BC200202699; (2002) 9 Crim LN 39 [1430]; Anson v DPP (2002) 129 A Crim R 328; [2002] NSWSC 408; BC200202513. The effect of these decisions is that ss 6

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[2-s 6.1]

s6

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

and 260 ought be construed so that both operate. The expression “required to be dealt with on indictment” in s 6(1)(c) should be read as being subject to the specific exceptions in s 260.

[2-s 7] Certain summary offences may be dealt with by Local Court 7 (1) An offence that is permitted or required to be dealt with summarily is to be dealt with by the Local Court. [subs (1) am Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009]

(2) This section does not apply to an offence that, under this or any other Act, is required to be dealt with summarily otherwise than by the Local Court. [subs (2) am Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009] [s 7 insrt Act 94 of 1999 s 4 and Sch 2[8], opn 1 Jan 2000; renum Act 119 of 2001 Sch 1[12] and; am Act 119 of 2001 Sch 1[13], opn 7 July 2003] Editor’s note: Section 7 (previously s 9) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 548 of the Crimes Act 1900.

COMMENTARY ON SECTION 7 Summary procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 7.1]

[2-s 7.1] Summary procedures The procedures that apply to the hearing of summary offences generally are found in Ch 4 commencing at [2-s 170] and following. Of special note is s 179 which prescribes that there is a time limit of six months from the time of the commission of the offence for the laying of an information.

[2-s 8] Prosecution of indictable offences 8 (1) All offences shall be punishable by information (to be called an indictment) in the Supreme Court or the District Court, on behalf of the Crown, in the name of the Attorney General or the Director of Public Prosecutions. (2) Such an indictment may be presented or filed whether or not the person to whom the indictment relates has been committed for trial in respect of an offence specified in the indictment. (3) This section does not apply to offences that are required to be dealt with summarily. [subs (3) am Act 94 of 1999 s 4 and Sch 2[3], opn 1 Jan 2000; Act 15 of 2015 Sch 2.14[1], opn 8 July 2015]

(4) This section does not affect any law or practice that provides for an indictable offence to be dealt with summarily. [subs (4) am Act 22 of 1995 s 3 and Sch 1[2]; am Act 94 of 1999 s 4 and Sch 2[4], opn 1 Jan 2000] [s 8 renum Act 94 of 1999 s 4 and Sch 2[9], opn 1 Jan 2000; renum Act 119 of 2001 Sch 1[12], opn 7 July 2003]

COMMENTARY ON SECTION 8 Indictments and informations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Indictable offences heard summarily . . . . . . . . . . . . . . . . . . . . . . . . . . . Ex officio indictments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 8.1] [2-s 8.5] [2-s 8.10]

[2-s 8.1] Indictments and informations At common law and under the repealed Justices Act proceedings were commenced by information or complaint in the Local Court and by indictment in the District and Supreme Court. Criminal proceedings are now generally commenced by a court

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CRIMINAL PROCEDURE ACT 1986

[2-s 8.10]

attendance notice in the Local Court and by indictment in the trial courts. An indictment is an information signed by the Director of Public Prosecutions or a person on his or her behalf, see generally at [29-10,001]. The history of the distinction between informations and indictments was considered in Fraser v R (No 2) (1985) 1 NSWLR 680; 19 A Crim R 248 and see also R v Hull (1989) 16 NSWLR 385; 41 A Crim R 262 where the practice and effect of laying ex officio indictments were considered and see below. The function of an indictment was described in R v Janceski (2005) 64 NSWLR 10; 223 ALR 580; [2005] NSWCCA 281; BC200506067 at [52] as including: (i) Informing the court of the precise identity of the offence with which it is required to deal (John L Pty Ltd v A-G (NSW) (1987) 163 CLR 508 at 519; 73 ALR 545; BC8701799). (ii) Providing the accused with the substance of the charge which he or she is called upon to meet, including identification of the essential factual ingredients (John L, above, at CLR 519). (iii) Enabling the court to ensure that only relevant evidence is admitted and to properly instruct the jury on the relevant law (S v R (1989) 168 CLR 266 at 284–5; 89 ALR 321). (iv) Determining the availability of a plea of autrefois acquit and autrefois convict (S v R above at 284; Walsh v Tattersall (1996) 188 CLR 77 at 90, 110–1; 139 ALR 27; [1996] HCA 26; BC9604533). (v) To invest the trial court with jurisdiction to hear and determine the prosecution (John L, above, at 519). There can be a trial on only one indictment and a trial on two or more indictments at the same time is a nullity: Swansson v R (2007) 168 A Crim R 263; [2007] NSWCCA 67; BC200701920; 14 Crim LN 72 [2223], where there was a trial on multiple indictments each naming a different accused and two indictments against the same accused for different offences. [2-s 8.5] Indictable offences heard summarily An indictable offence can be heard and determined by a magistrate if it is referred to in Table 1 or Table 2 of the Schedule to the Act, see [2-s 259] and following. The maximum penalties where such offences are dealt with summarily are prescribed in ss 267 and 268. No time limit applies to the commencement of the prosecution of indictable offences dealt with summarily: s 270. [2-s 8.10] Ex officio indictments Subsection 8(2) preserves the power of the prosecutor to present an indictment for an offence notwithstanding that the accused was not committed for trial. For a general discussion of the history of committal proceedings and ex officio indictments see Grassby v R (1989) 168 CLR 1; 87 ALR 618; BC8902704. The procedure on ex officio indictments has been examined by the High Court in Barton v R (1980) 147 CLR 75; 32 ALR 449; BC8000111. It was held that there is no legal requirement for committal proceedings prior to the filing of an indictment but the court has power to stay proceedings where injustice may occur by the absence of committal proceedings. The absence of the opportunity to test the prosecution evidence by cross-examination was a vital factor to be considered in deciding whether injustice had occurred but it is not of itself sufficient to warrant a stay: Barron v A-G (NSW) (1987) 10 NSWLR 215. The history and effect of s 6 of the Australian Courts Act 1828 considered in Grassby, above, and which permitted the commencement of a prosecution with leave of the Supreme Court was further considered in R v Janceski (2005) 64 NSWLR 10; 223 ALR 580; [2005] NSWCCA 281; BC200506067 per Howie J where it was held that the section was rendered inoperative by the effect of the legislation passed in 1987 including s 126 of the Criminal Procedure Act 1986. The history and effect of ex officio indictments were also considered in R v Hull (1989) 16 NSWLR 385; 41 A Crim R 262. The power of the Commonwealth Director of Public Prosecutions to file an ex officio indictment was considered in Duffıeld v R (1992) 28 NSWLR 638; 110 ALR 323; BC9203066 where it was held that the power to file an ex officio indictment after a change of plea was valid and not inconsistent with the procedures for committal contained in the Justices Act.

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Criminal Procedure

s8

[2-s 8.10]

s8

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

The Director of Public Prosecutions has power to present an indictment regardless of the fact that there may have been some defect in the committal proceedings and such a procedure will not produce an abuse of process unless it would result in unfairness to the accused at the trial: R v Butler (1991) 24 NSWLR 66; 56 A Crim R 231; Sergi v DPP (NSWCCA, Kirby P, Meagher and Handley JJA, 40518/1991, 10 September 1991, unreported, BC9101577); R v Stanton (1991) 52 A Crim R 164; BC9102279. It has been held that it was not an abuse of process for the DPP to file an ex officio indictment in the District Court in circumstances where a magistrate refused to allow the charge to be dealt with by way of indictment, when the matter had been set down for a summary hearing and after the police prosecutor indicated that there was no election to have the matter dealt with in the District Court: Iqbal v R [2012] NSWCCA 72; BC201210938; 20(6) Crim LN [3228]. Where for some reason the committal proceedings were insufficient to ensure a fair trial for the accused, rather than staying the presentation of the indictment, the court may in an appropriate case permit the calling of evidence on a voir dire hearing for the purpose of examination and cross-examination by the defence: R v Basha (1989) 39 A Crim R 337; BC8902533. The basis for such an inquiry was considered in R v Kennedy (1997) 94 A Crim R 341; BC9702759; 4(6) Crim LN [713]. The court has power to stay an indictment where the Crown elects to proceed on a less serious charge than that for which the accused was committed for trial but it would be a rare case where such power would be exercised: R v Brown (1989) 17 NSWLR 472; 44 A Crim R 385; BC8901555. The Director can present an ex officio indictment in the District Court in respect of an offence alleged against a child notwithstanding s 31 of the Children (Criminal Proceeding) Act 1987: PM v R (2007) 232 CLR 370; 240 ALR 1; [2007] HCA 49; BC200709512; 14(11) Crim LN [2304].

[2-s 9] Name in which prosecutions may be instituted 9 Any prosecution or proceedings instituted by the Attorney General or the Director of Public Prosecutions in respect of any offence (whether an indictable offence or a summary offence) may be instituted in either the official name or the personal name of the Attorney General or the Director of Public Prosecutions. [s 9 renum Act 94 of 1999 s 4 and Sch 2[28], opn 1 Jan 2000; renum Act 119 of 2001 Sch 1[14], opn 7 July 2003]

COMMENTARY ON SECTION 9 Power to commence prosecution on indictment . . . . . . . . . . . . . . . . .

[2-s 9.1]

[2-s 9.1] Power to commence prosecution on indictment As to the functions and powers of the Director of Public Prosecutions see at [29-10,225]. The Attorney General retains the power exercised under the common law to commence a prosecution for an indictable offence, see at [29-10,425] and following. See generally at [7-100] and following.

[2-s 10] Indictment of bodies corporate 10 (1) Unless a contrary intention appears, a provision of an Act relating to an offence applies to bodies corporate as well as to individuals. (2) On arraignment, a body corporate may enter a plea of “guilty” or “not guilty” by means of writing signed by its representative. (3) If no such plea is entered the court is to enter a plea of “not guilty”, and the trial is to proceed as though the body corporate had pleaded “not guilty”. (4) A representative of a body corporate need not be appointed under the body’s seal.

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CRIMINAL PROCEDURE ACT 1986

[2-s 11.1]

(5) A written statement that: (a) purports to be signed by one of the persons having the management of the affairs of the body corporate, and (b) contains a statement to the effect that a named person is the body’s representative, is admissible as evidence that the named person has been so appointed. [s 10 insrt Act 94 of 1999 s 4 and Sch 2[29], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[15], opn 7 July 2003] Editor’s note: Section 10 (previously s 59) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 360A of the Crimes Act 1900.

[2-s 11] Description of offences 11 The description of any offence in the words of an Act or statutory rule or other document creating the offence, or in similar words, is sufficient in law. [s 11 insrt Act 119 of 2001 s 3 and Sch 1[17], opn 19 Apr 2002]

COMMENTARY ON SECTION 11 Description of offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Proof of exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Law Part Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 11.1] [2-s 11.5] [2-s 11.10]

[2-s 11.1] Description of offences The origin of this section was found in s 145A(1) Justices Act 1902 now repealed. There is a considerable number of cases dealing with s 145A(1) and its English counterpart. The effect of those decisions would appear to apply to the operation of s 11 and so are considered below. In order to understand the purpose of the section it is necessary to consider the situation at common law because the provision was intended to overcome the rigidity of the common law requirements for a valid information. At common law and under the Justices Act 1902 criminal proceedings were generally commenced by information. Criminal proceedings are now commenced by way of a court attendance notice, see [2-s 47] and [2-s 172], or indictment [2-s 130]. An indictment is an information, see [2-s 8]. For the purposes of Pt 2 of this Chapter, an indictment includes a court attendance notice. A court attendance notice must describe the offence and briefly state the particulars of the alleged offence: see ss 50(3) and 175(3). At common law a charge had to contain all the essential legal elements necessary to be proved together with sufficient factual particulars to indicate the time, place and manner of the defendant’s acts or omissions which formed the basis of the offence alleged. The charge had also to contain reasonable particularity as to the nature of the offence charged. It need not, however, contain all the particulars that the defendant may require for the preparation of his defence such as would be provided on an application for particulars. Generally if an information followed the wording of the statutory provision which created the offence, it was prima facie valid by reason of s 145A(1): Clayton v John L Pty Ltd [1984] 1 NSWLR 344 at 349, but see Ower, Appeal of (1945) 46 SR (NSW) 51; 62 WN (NSW) 222. This is the effect of s 11. At common law an information would be defective if it failed to “identify an essential factual ingredient of the actual offence”: John L Pty Ltd v A-G (NSW) (1987) 163 CLR 508; 73 ALR 545. This decision was applied in Stanton v Abernathy (1990) 19 NSWLR 656; 48 A Crim R 16, where it was held that s 154A(1) would not of itself save an information which failed to specify the manner in which the offence was committed. However, the failure to provide sufficient particulars in the information was a defect to which s 30 (indictable offences) or s 65 (summary offences) of the Justices Act applied so that the information could not be dismissed on this ground provided that adequate particulars were given: Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501

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Criminal Procedure

s 11

[2-s 11.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 11

at 515–18; BC9302362; R v Cassell (NSWCCA, Gleeson CJ, Sully and Hulme JJ, 60162/96, 24 July 1996, unreported; BC9607104); (1996) 2 NSWCR 89; (1996) 3 Crim LN 50 [594]; Director of Public Prosecutions v Alderman (1998) 45 NSWLR 526; BC9806782; (1997) 4 Crim LN 51 [726]. The provisions are now found in s 16(2). The distinction between “essential factual ingredients”, the absence of which invalidates an information, and particulars generally has been noted in De Romanis v Sibraa [1977] 2 NSWLR 264 at 291 and Day v Rugala [1978] 33 FLR 208 at 212. In Lodhi v R (2006) 199 FLR 303; [2006] NSWCCA 121; BC200602710 at [88]–[94], [97]–[109], it was held that an indictment failed to specify all the essential elements of the offence. An incorrect reference in an information to the section or Act under which the offence is prescribed will not render the information invalid, even if the Act referred to has been repealed, provided that the offence is properly described in the body of the information and all the elements of the offence are referred to: Wehebe v Voulgarakis (NSWSC, Studdert J, 22 October 1991, unreported); (1991) 9 Petty Sessions Review 4363. As to the provision for stating offences by their short description see at [2-s 12]. There are a number of provisions dealing with the contents of indictments and the sufficiency of allegations for particular types of offences: see at [2-Sch 3]. [2-s 11.5] Proof of exceptions

See at [8-s 417A] and the annotations.

[2-s 11.10] Law Part Code An indictment should specify the applicable Law Part Code: Pt 75 r 3D(2A) Supreme Court Rules at [20-26,835]; Lodhi v R (2006) 199 FLR 303; [2006] NSWCCA 121; BC200602710 at [92].

[2-s 12] Short description of certain offences 12 (1) For the purposes of this or any other Act, a summary offence, or an indictable offence that may be dealt with summarily, is taken to be sufficiently stated or described if it is stated or described by the use of a short expression that describes the offence in general terms. (2) This section applies to a statement or description of an offence in any court attendance notice, warrant, subpoena, notice, order or other document. (3) Nothing in this section affects any other method of stating or describing an offence. (4) Nothing in this section affects any requirement made by or under this Act in relation to the form of a court attendance notice or any other document. [s 12 insrt Act 119 of 2001 s 3 and Sch 1[17], opn 19 Apr 2002]

[2-s 13] Venue in indictment 13 (1) New South Wales is a sufficient venue for all places, whether the indictment is in the Supreme Court or any other court having criminal jurisdiction. (2) However, some district or place within, at or near which the offence is charged to have been committed must be mentioned in the body of the indictment. (3) Any such district or place is to be taken to be in New South Wales, and within the jurisdiction of the court, unless the contrary is shown. [s 13 insrt Act 94 of 1999 s 4 and Sch 2[29], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[19], opn 7 July 2003] Editor’s note: Section 13 (previously s 60) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 361 of the Crimes Act 1900.

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CRIMINAL PROCEDURE ACT 1986

COMMENTARY ON SECTION 13 Venue in an indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 14.1]

[2-s 13.1]

[2-s 13.1] Venue in an indictment An indictment is not defective for want of “a proper or perfect venue”: s 16(1)(c). If it is contended that the offence did not occur in New South Wales and, therefore, the court has no jurisdiction, the prosecution must prove that the offence was committed within the jurisdiction on the balance of probabilities. If the question is raised the trial judge should seek a special verdict from the jury on this question before any verdict is taken on the general question of guilt: Thompson v R (1989) 169 CLR 1; 86 ALR 1. As to geographical jurisdiction see Pt 1A of the Crimes Act [8-s 10A].

[2-s 14] Common informer 14 (cf Fines and Penalties Act 1901 sec 4) A prosecution or proceeding in respect of any offence under an Act may be instituted by any person unless the right to institute the prosecution or proceeding is expressly conferred by that Act on a specified person or class of persons. [s 14 insrt Act 99 of 1996 s 130 and Sch 2.6, opn 27 Jan 1998; renum Act 94 of 1999 s 4 and Sch 2[28], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[20], opn 7 July 2003]

COMMENTARY ON SECTION 14 Authority to commence criminal proceedings . . . . . . . . . . . . . . . . . . .

[2-s 14.1]

[2-s 14.1] Authority to commence criminal proceedings Section 14 provides that a prosecution in respect of any offence under an Act may be instituted by any person unless the right to institute the prosecution is confined by statute. In Tabcorp Holdings Ltd v Fitzsimons (2007) 176 A Crim R 28; [2007] NSWSC 836; BC200706184, it was held that the right to institute a prosecution or proceeding for an alleged breach of the Totalizator Act 1997 was expressly conferred by that Act on a specified person or class of persons and, as the prosecutor was not such a person, it was not open to him to institute the prosecution. Generally speaking, where a statute requires written consent for the institution of proceedings for an offence, the consent must be given before the proceedings are instituted: McDonnell v Smith (1918) 24 CLR 409 at 412; [1918] HCA 26; Traveland v Doherty (1982) 41 ALR 563; 63 FLR 41 at 46. As to permissibility of general consents, see Berwin v Donohue (1915) 21 CLR 1 at 24–6, 27–9, 38; [1915] HCA 79; Crichton v Victorian Dairies Ltd (1965) VR 49 at 59; R v Bacon [1973] 1 NSWLR 87 at 94–5; Gilmour v Midways Springwood Pty Ltd (1980) 33 ALR 605 at 607; 49 FLR 36; Traveland, above, at FLR 46–8; Water Board v EPA (1994) 83 LGERA 174 at 179; BC9405345; McConnell Dowell Constructors (Aust) Pty Ltd v EPA (NSWCCA, Cole, Sully JJA and Adams AJ, 60386/1996; 60387/1996, 25 October 1996, unreported, BC9606890) at 13–14. If the prescribed officer has not consented to the prosecution of the offences, it has been said that the court has no jurisdiction to entertain the proceedings and the prosecution must fail: Gilmour, above, at ALR 607; Palos Verdes Estates Pty Ltd v Carbon (1991) 6 WAR 223 at 227; 72 LGRA 414. Where a defendant asserts the absence of consent to commence a prosection, the point may be taken by motion to quash the indictment before the commencement of the trial or may be taken at any time during the trial: Bacon, above, at 95. Whether there has been requisite consent is an issue of procedure rather than an issue which goes to the merits of substance of the case: Price v Humphries [1958] 2 QB 353 at 359; [1958] 2 All ER 725. It has been said that this is an issue for the judge and not the jury: R v Harkins (1958) VR 543 at 545–6; [1958] ALR 461. The issue of consent is not to be regarded as being in the nature of an element of an offence: Dever v Creevey; Ex parte Creevey [1993] 1 Qd R 232 at 236; (1991) ASC 56–100; Morrison v Dartbrook Coal Pty Ltd (2002) 116 IR 252; [2002] NSWIR Comm 127 at [60], [70]. If consent becomes an issue raised by a defendant, the prosecutor must prove consent was granted in order

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Criminal Procedure

s 14

[2-s 14.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 14

for the proceedings to be instituted to the requisite standard, namely the balance of probabilities: MacCarron v Coles Supermarkets Aus Pty Ltd (2001) 23 WAR 355 at [33]; [2001] WASCA 61; BC200100731 applying Thompson v R (1989) 169 CLR 1 at 12–13; 86 ALR 1; Dartbrook Coal, above, at [80]; Morrison v United Collierier Pty Ltd [2002] NSWIR Comm 173. The relationship between this section and s 173 of the Act was considered in Sasterawan v Morris [2007] NSWCA 185; BC200705318 (2007) 14 Crim LN 96 [2251] where it was held that section included police and public officers authorised to commence prosecutions. In Employers Mutual Ltd v Heise [2018] NSWSC 1842, it was said that the right to commence a prosecution as a common informer is an important common law right and its exclusion would have to be expressed in clear terms.

[2-s 14A] Proceedings for offences commenced by officers of ICAC or LECC 14A (1) An officer of ICAC does not have the power to commence proceedings for an offence unless the Director of Public Prosecutions has advised the Independent Commission Against Corruption in writing that the proceedings may be commenced by an officer of ICAC. (2) An officer of LECC does not have the power to commence proceedings for an offence unless the Director of Public Prosecutions has advised the Law Enforcement Conduct Commission in writing that the proceedings may be commenced by an officer of LECC. [subs (2) subst Act 61 of 2016 Sch 6.11[1], opn 1 July 2017]

(3) For the purposes of subsections (1) and (2), the Director of Public Prosecutions may liaise with the Independent Commission Against Corruption or Law Enforcement Conduct Commission, but is to act independently in deciding to advise that proceedings for the offence may be commenced. [subs (3) subst Act 61 of 2016 Sch 6.11[1], opn 1 July 2017]

(4) In this section: officer of ICAC means a person acting in the capacity of a Commissioner, an Assistant Commissioner or officer of the Independent Commission Against Corruption. officer of LECC means an officer of the Law Enforcement Conduct Commission (within the meaning of the Law Enforcement Conduct Commission Act 2016). [subs (4) am Act 61 of 2016 Sch 6.11[2], opn 1 July 2017; Act 65 of 2016 Sch 3.2, opn 7 Aug 2017] [s 14A insrt Act 67 of 2015 Sch 1.8[2], opn 24 Nov 2015; am Act 61 of 2016 Sch 6.11[1], opn 1 July 2017]

PART 2 — INDICTMENTS AND OTHER MATTERS [Heading insrt Act 119 of 2001 s 3 and Sch 1[21], opn 7 July 2003]

[2-s 15] Application of Part 15 (1) This Part applies, to the extent that it is capable of being applied, to all offences, however arising (whether under an Act or at common law), whenever committed and in whatever court dealt with. [subs (1) am Act 82 of 2003 s 3 and Sch 2.9[1], opn 27 Nov 2003]

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CRIMINAL PROCEDURE ACT 1986

[2-s 16]

(2) In this Part: indictment includes a court attendance notice or any other process or document by which criminal proceedings are commenced. [subs (2) insrt Act 119 of 2001 s 3 and Sch 1[23], opn 7 July 2003; am Act 82 of 2003 s 3 and Sch 2.9[1], opn 27 Nov 2003] [s 15 insrt Act 94 of 1999 s 4 and Sch 2[29], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[22], opn 7 July 2003]

[2-s 16] Certain defects do not affect indictment 16 (1) An indictment is not bad, insufficient, void, erroneous or defective on any of the following grounds: (a) for the improper insertion or omission of the words “as appears by the record”, “with force and arms”, “against the peace”, “against the form of the statute” or “feloniously”, (b) for want of an averment of any matter unnecessary to be proved or necessarily implied, (c) for want of a proper or perfect venue or a proper or formal conclusion, (d) for want of any additional accused person or for any imperfection relating to any additional accused person, (e) for want of any statement of the value or price of any matter or thing, or the amount of damage or injury, if such value, price or amount is not of the essence of the offence, (f) for designating any person by the name of his or her office, or other descriptive appellation, instead of by his or her proper name, (g) except where time is an essential ingredient, for omitting to state the time at which an offence was committed, for stating the time wrongly or for stating the time imperfectly, (h) for stating an offence to have been committed on a day subsequent to the finding of the indictment, on an impossible day or on a day that never happened, (i) if the indictment was signed by an Australian legal practitioner who has been instructed to prosecute the proceedings to which the indictment relates on behalf of the Director of Public Prosecutions — for failure by the Director to authorise the Australian legal practitioner by order in writing under section 126(2) to sign indictments for and on behalf of the Director. [subs (1) am Act 75 of 2005 s 3 and Sch 1[1], opn 21 Sep 2005; Act 120 of 2006 s 3 and Sch 3[2], opn 4 Dec 2006]

(2) No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in the Local Court or for any other offence that is to be dealt with summarily are commenced, or to any warrant issued for the purposes of any such proceedings, on the grounds of: (a) any alleged defect in it in substance or in form, or (b) any variance between it and the evidence adduced at the proceedings for the offence charged in the indictment or warrant. Note. An adjournment may be obtained under section 40 where there is a variance between the evidence adduced and the offence charged in the application or order. [subs (2) insrt Act 119 of 2001 s 3 and Sch 1[25], opn 7 July 2003; am Act 40 of 2003 Sch 1.10[1], opn 22 July 2003; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009] [s 16 insrt Act 94 of 1999 s 4 and Sch 2[29], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[24], opn 7 July 2003] Editor’s note: Section 16 (previously s 58) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 360 of the Crimes Act 1900.

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Criminal Procedure

s 16

[2-s 16.1]

s 16

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

COMMENTARY ON SECTION 16 Statement of charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Particulars in the indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alternative counts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Allegation of time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Allegation of ownership of property . . . . . . . . . . . . . . . . . . . . . . . . . . . . Duplicity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amendment of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Defects in form and variance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Signature on indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 16.1] [2-s 16.5] [2-s 16.10] [2-s 16.15] [2-s 16.20] [2-s 16.25] [2-s 16.30] [2-s 16.35] [2-s 16.40]

[2-s 16.1] Statement of charge Generally see at [2-s 11.1] as to what is necessary for the statement of a charge in either a court attendance notice or an indictment. The Supreme Court may prescribe forms of indictments for particular offences, [2-s 27]. Although forms have been prescribed in the past they have been repealed: Smith and Kirton v R (1990) 47 A Crim R 43; BC9002723. There are a number of provisions dealing with the contents of indictments and the sufficiency of allegations for particular types of offences: see at [2-Sch 3]. The statement of a charge in a count in an indictment should follow the words of the statutory provision which creates the offence, see s 11. In Smith and Kirton v R, above, a count alleging that the accused “did assault and rob” was criticised in that the offence provided that the accused was guilty if he “did rob” another person. However, the additional words were mere surplusage. Any additional allegation or circumstance not required can be ignored R v Johnson [1945] KB 419 or deleted by amendment: R v Madercine (1899) 15 WN (NSW) 235. Consideration was given to the effect of a defect in the statement of a charge in an indictment in Kahatapitiye v R (2004) 146 A Crim R 542; [2004] WASCA 189; BC200405402, where some of the charges in the indictment omitted to state that the offence was committed “without her consent” an element of the offence charged. It was held that in the circumstances of that case the charge was not a nullity and the proviso was applied to dismiss the appeal. In Tonari v R [2013] NSWCCA 232; BC201313860; 21(1) Crim LN [3308] it was held that a count in an indictment incorrectly stating an offence under s 61J of the Crimes Act by omitting certain words found in the section was not invalid. It was held that it was merely a misstatement of the particulars of the aggravation alleged, and not a misstatement of the offence. Where the statutory offence changed over the period of the alleged offending it was held that the statement of the charge in the indictment was sufficient to include both the former offence and the new offence and therefore the charge was valid: MJ v R [2013] NSWCCA 250; BC201314495; 21(1) Crim LN [3309]. In Doja v R [2009] NSWCCA 303; BC200911598; 17(2) Crim LN 23 [2680], where offences charged under s 178BB (now repealed) of the Crimes Act failed to state an element of the offence, it was held that the defect was formal for the purpose of the section as the element could be implied and the indictment was valid to give the court jurisdiction to try the charges. The case contains a lengthy consideration of what defects will result in the invalidity of an indictment. In any event the court would have dismissed the appeal as there was no miscarriage because the jury were directed as to the missing element by the trial judge. Where the relevant offence contains a statutory defence, the onus of proving which is upon the defence, s 16 permits the Crown to omit such an allegation from the charge, although it has been said that it would be preferable for the offence to be pleaded in the words of the section which creates it: R v Mai (1992) 26 NSWLR 371 where the indictment omitted the allegation “without lawful excuse” from s 233B(1) of the Customs Act. As to a proof of an exception see [8-s 417A] and the annotations. [2-s 16.5] Particulars in the indictment The statement of charge should contain sufficient particulars so that everyone, particularly the accused, knows the nature of the charge brought

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CRIMINAL PROCEDURE ACT 1986

[2-s 16.15]

against him: King v R (1986) 161 CLR 423; 67 ALR 379. The time, place and manner of the defendant’s acts or omissions must be specified: Smith v Moody [1903] 1 KB 56 at 61, 63. However, see at [2-s 16.10]. It has been stated that a count in an indictment for an offence of supplying a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act should indicate the amount of the drug involved: R v Puciarello (NSWCCA, 4 June 1990, unreported). It is not necessary to state the overt acts relied upon in an indictment for conspiracy but the judge may order particulars: R v Mok (1987) 27 A Crim R 438. A count in an indictment should indicate the nature of the accused’s liability for the offence if possible where it is not alleged that the accused is a principal in the first degree: King v R, above. Even though the indictment appears to have sufficient particulars, the court may order that further particulars be given if the evidence indicates more than one offence: S v R (1989) 168 CLR 266; 89 ALR 321. Refusal to give particulars may lead to dismissal of charge in summary proceedings: Johnson v Miller (1937) 59 CLR 467; 11 ALJR 344; Ex parte O’Sullivan; Re Craig (1944) 44 SR (NSW) 291; 61 WN (NSW) 197. [2-s 16.10] Alternative counts An indictment may contain counts in the alternative and there is no error if the alternative count is more serious than the principal count: R v Maharaj (NSWCCA, Gleeson CJ, Beazley JA and Donovan AJ, 60558/1997, 1 May 1998, unreported, BC9801519); (1998) 5 Crim LN 41 [858]. Alternative counts which are contradictory may be joined in the one indictment and left to the jury if there is a prima facie case on each charge: see R v Bellman [1989] AC 836; (1989) 88 Cr App R 252 and the discussion by Donovan AJ in R v Maharaj, above. Alternative counts can be added with leave at any time before the trial commences and it would be a rare case that it would be unfair or oppressive for the Crown to seek to rely upon an alternative count simply because it might deprive the accused of the chance of an acquittal on the principal charge: R v Lykouras [2005] NSWCCA 8; BC200500707; (2005) 12 Crim LN 20 [1830]. [2-s 16.15] Allegation of time The date of the alleged offence should be specified but unless the date is an essential element of the offence according to the statute which creates it, or the date is made a material particular or vital by the conduct of the trial, then a mis-statement of the date will not vitiate the conviction or invalidate the indictment: R v Dossi (1918) 13 Cr App R 158; R v VHP (NSWCCA, Gleeson CJ, Handley JA and Studdert J, 60733/1996, 7 July 1997, unreported, BC9702876); (1997) 4 Crim LN 44 [710]; Director of Prosecutions (NSW) v Knight (2006) 162 A Crim R 555; [2006] NSWSC 646; BC200605296; WGC v R (2007) 233 CLR 66; 241 ALR 199; 82 ALJR 220; 179 A Crim R 193; [2007] HCA 58; BC200710770. The circumstances in which time may be of the essence of an offence, due to the statute creating the offence making time of the essence were considered in R v Stringer (2000) 116 A Crim R 198; [2000] NSWCCA 293; BC200004512; (2000) 7 Crim LN 59 [1176] where it was stated that the date will only be an essential matter for the prosecution to prove when: (i) an act is criminal only when done within a certain time of some other act or event; (ii) it is an essential ingredient of a particular offence that certain consequences should follow a particular act; (iii) it is an essential ingredient of a particular offence that the act alleged was committed between certain hours of the day or night; or (iv) the prosecution for a particular offence must be commenced within a certain time of the commission of the criminal act alleged. In that case it was held that the prosecutor could not make time of the essence simply by pleading the date of the offence and submitting to be bound by the time which had been pleaded, thus limiting the issues presented for trial regardless of the applicable law. Crennan J in WGC v R, above, observed at 109 that the conduct of a trial may have the effect of rendering a date a “material particular or vital” such that it needs to be proven. This might occur

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Criminal Procedure

s 16

[2-s 16.15]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 16

where the defence raise an alibi in respect of a particular date or where the complainant in a sexual assault case gives evidence that the offence occurred on one specific occasion, see: Director of Prosecutions (NSW) v Knight, above, at [28] and Director of Public Prosecutions (NSW) v Harrison [2008] NSWSC 349; BC200802605. The indictment may be amended to insert the correct date. However, the amendment of the indictment to broaden the date of the offence can result in the alteration of the whole of the content of the evidence and result in the watering down of the defence case such as to lead to an unfair trial: R v Westerman (1991) 55 A Crim R 353; BC9101762. Where the complainant swore that the offence occurred on a particular date and the accused proved an alibi for that date, the jury would not be entitled to find that the offence occurred but on a different date than that positively sworn to by the complainant, and in the absence of any evidence to suggest that it occurred on any other date: R v Dean (1932) NZLR 753, see R v Kringle [1953] Tas SR 52 and R v Kennedy (2000) 118 A Crim R 34; [2000] NSWCCA 487; BC200007416; (2000) 7 Crim LN 93 [1222] where the complainant swore that on the date of the offence she was watching a live coverage of the royal wedding. The offence can be alleged to have been committed on or about a date or between dates where the precise date is not known. In R v Hartley [1972] 2 QB 1 it was held that where “on or about” is used it is sufficient if the offence occurred within some period that has a reasonable proximation to the date alleged. But the prosecution must disclose sufficient particulars so that the defence is aware of the particular case he is required to meet so that, for example, he can raise an alibi if he has one: S v R (1989) 168 CLR 266; 89 ALR 321; BC8902699. In a court attendance notice the date on which an offence is alleged to have been committed is not necessarily material so that unless it takes the information out of time and provided an offence is disclosed, the actual date shown by the evidence may be treated as a variance under s 16(2): Bennett v Daniels (1912) 12 SR (NSW) 134; Ex parte Bignell (1915) 32 WN (NSW) 91 approved by Herron J in Parmeter v Proctor (1949) 66 WN (NSW) 48; Schreiber v Santora 1935 AR (NSW) 168 (omission of date); Booth Pty Ltd v Barlett 1956 AR (NSW) 720 (“on and since”); Ex parte Bluett; Re Nyngan Municipal Council (1929) 46 WN (NSW) 120; 9 LGR 72. Note, however, that in Smith v Moody [1903] 1 KB 56 at 61, 63, it was held that time, place and manner were essential. If time or other matter is an essential element of the offence it would appear that it must be specified or evidence at least must be given: cf Felix v Smerdon (1944) 18 ALJR 30. Where an incorrect date of the alleged offence was stated in the information but the correct date was referred to in evidence and was inside the period of six months from the date upon which the information was laid, it was treated as a variance under s 65(2) of the now repealed Justices Act 1902: Demetriou v DPP (2000) 32 MVR 485; [2000] NSWSC 1060; BC200007005. [2-s 16.20] Allegation of ownership of property Generally, the person alleged to be the owner of the property, the subject of the charge, must be named in the indictment and the ownership of property must be proved: Trainer v R (1906) 4 CLR 126; 13 ALR 53; [1906] HCA 50; BC0600010. If the owner cannot be ascertained, the property can be described as being in a person unknown to the prosecutor. However, the prosecution cannot avoid the obligation to prove ownership merely by alleging that property is in a person unknown and for larceny ownership must be proved in some person other than the accused: Trainer v R, above. If alleging property in a person unknown the prosecution must prove there is no means of ascertaining who has property in the goods: Ellis v Lawson (1987) 33 A Crim R 69; BC8700835. A mistake in the allegation of ownership can be cured by amendment: R v Murray [1906] 2 KB 385. See also cl 16 at [2-Sch 3]. [2-s 16.25] Duplicity As to whether an indictment with a count alleging a statutory offence is bad for duplicity and uncertainty see Romeyko v Samuels (1972) 2 SASR 529; 19 FLR 322 where Bray CJ said: The true distinction, broadly speaking, it seems to me, is between a statute which penalises one or more acts, in which case, two or more offences are created, and a statute which penalises one

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CRIMINAL PROCEDURE ACT 1986

[2-s 16.35]

act if it possesses one or more forbidden characteristics. In the latter case there is only one offence, whether the act under consideration in fact possesses one or several such characteristics. This dicta was applied in R v Manwaring [1983] 2 NSWLR 82; 12 A Crim R 253. See also at [2-s 51.1]. The issue of duplicity in relation to multiple acts of criminality was considered by the High Court in Walsh v Tattersall (1996) 188 CLR 77; 139 ALR 27; [1996] HCA 26; BC9604533; (1996) 3 Crim LN 70 [642]; see R v Moussad (1999) 152 FLR 373; [1999] NSWCCA 337; BC9906994; (1999) 6 Crim LN 87 [1070] but there appears to be no clear and binding ratio from the case. Indictments in relation to repeated acts of supplying drugs have been held to be valid in Hamzy v R (1994) 74 A Crim R 341 and R v F (1996) 90 A Crim R 356; BC9605125; (1996) 3 Crim LN 78. A count in an indictment is not duplicitous if it relates to one activity even though that activity may involve more than one act. Therefore, a count alleging a number of thefts from different departments of the one store is not duplicitous: R v Wilson (1979) 69 Cr App R 83. The test is whether all offences were part of the one activity or transaction. It has been held that an offence is not duplicitous if it refers to a single criminal enterprise: R v Moussad, above. Whether or not the information is duplicitous or valid will depend largely upon how the prosecution presents its case and whether the information deprived the accused of a fair hearing. In every case, the determination whether a charge is bad for duplicity or not involves a question of fact and degree and this depends upon the particular circumstances of the case: R (Cth) v Petroulias (No 1) (2006) 217 FLR 242; 177 A Crim R 153; [2006] NSWSC 788; BC200611474. As to duplicity in sexual assault cases, see [8-s 61I.7]. As to latent duplicity arising from the evidence see S v R (1989) 168 CLR 266; 89 ALR 321; BC8902699 and Stanton v Abernathy (1990) 19 NSWLR 656; 48 A Crim R 16. Where an indictment is duplicitous the prosecution can be required to particularise the specific offence relied upon and elect as to which offence the indictment relates. [2-s 16.30] Amendment of indictment An indictment may not be amended after it is presented, except by the prosecuting authority with the leave of the court or the consent of the accused: s 20. Section 20 does not affect the powers of the court under s 21 at [2-s 21]: s 20(2). An indictment cannot be amended on appeal: R v Burns (1920) 20 SR (NSW) 351; 37 WN (NSW) 77. [2-s 16.35] Defects in form and variance Subsection 16(2) has its origins in ss 30 and 65 of the now repealed Justices Act 1902. The purpose of the provision is to overcome formal and technical objections being taken to the statement of the charge or the evidence called to support the charge and so that the matter may be determined on its merits, even if it is necessary to grant an adjournment to a defendant to overcome any unfairness. An adjournment may be granted under s 40 and an order for costs can be made; see at [2-s 118]. Where an information fails to disclose all the essential legal elements of an offence, the information is invalid and the section cannot be relied upon to save it: Ex parte Burnett; Re Wicks [1968] 2 NSWR 119, and see generally Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153; 55 WN (NSW) 63. However, the section will apply where essential factual particulars have not been given, such as the time, place or the manner of the commission of the offence: Ex parte Stanton (1928) 28 SR (NSW) 516; 45 WN (NSW) 118; or where the information contained wrong particulars: R v Justelius [1973] 1 NSWLR 471; or where it contained irrelevant material; Ex parte Consolidated Press Ltd; Re Harris (1961) 78 WN (NSW) 261. Under the provisions of the Justices Act there was a doubt as to whether the information could be amended to cure defects see Ex parte Cunliffe (1871) 10 SCR (NSW) 250 but compare Crothers v Sheil (1933) 49 CLR 399; 33 SR (NSW) 525. It would now appear that s 21(1), which

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Criminal Procedure

s 16

[2-s 16.35]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 16

applies to a court attendance notice as well as an indictment, would permit an amendment to cure a defect in substance or form to which this section applies. It is erroneous for a magistrate to dismiss an information for lack of particulars without permitting the prosecution the opportunity to provide further particulars: Director of Public Prosecutions v Alderman (1998) 45 NSWLR 526; BC9806782; (1997) 4 Crim LN 51 [726]. In Ex parte Kirkpatrick (1916) 16 SR (NSW) 541; 34 WN (NSW) 15, it was held that on an information charging “fraudulently appropriating a cheque belonging to another person” the failure to allege ownership of the cheque was a defect of substance and that instead of dismissing the information the magistrate should have called on the informant for further particulars and granted any necessary adjournment. In R v Justelius, above, it was held that an erroneous allegation of ownership was a defect of substance and that the judge should have amended the information by re-charging the appellant with the charge alleging ownership in the true owner. The section will also apply to an information which is bad for duplicity either on its face or because of the evidence led by the prosecution: Ex parte Williams (1909) 9 SR (NSW) 140; 26 WN (NSW) 9. In such a case the magistrate ought to ask the prosecution to elect as to the particular offence relied upon either at the outset of the hearing or during the course of the evidence: Johnson v Miller (1937) 59 CLR 467; [1938] ALR 104; BC3800055. See also Stanton v Abernathy (1990) 19 NSWLR 656; 48 A Crim R 16. An incorrect reference in an information to the section or Act under which the offence is prescribed is a defect which can be ignored under the section: Wehebe v Voulgarakis (NSWSC, Studdert J, 22 October 1991, unreported); (1991) 9 Petty SR 4363. The section cannot be used where it would have the effect of creating a new charge against the defendant if to do so would defeat any limitation period applying to the charge, for example under s 179. There have been various tests applied for determining whether any variation or amendment of the charge would have the effect of creating a new offence. These include: • whether the “pith and substance” of the charge remains the same: Shultz v Pettitt (1980) 25 SASR 427; Surman v SA Police (1996) 65 SASR 421; 23 MVR 175; BC9630031; or • whether the offences have a common origin: Kennett v Holt [1974] VR 644; or • whether the new offence is cognate to the old: Hayes v Wilson [1984] 2 Qd R 114; 1 MVR 198. The fact that the evidence necessary to prove the two charges will be the same is not decisive: Gilmour v Midways Springwood Pty Ltd (1980) 33 ALR 605; 49 FLR 36. Variance “is a difference between the mode of stating and the mode of proving the same thing in substance . . . Variance points to some distinction between the allegation of time or place and the proof of it”: Martin v Pridgeon (1859) 23 JP 630, followed in Argytis v Stones 1959 AR (NSW) 145. A variance will be found where there is a mere misstatement of the name of a prosecutor: Crothers v Sheil (1933) 49 CLR 399; 33 SR (NSW) 525; or an accused: R v Lister (1955) 72 WN (NSW) 491; McLean v Case and Deignan Pty Ltd [1961] NSWR 873; 78 WN (NSW) 476; 6 LGRA 395. For other examples of variance which should be disregarded see also Parmeter v Proctor (1949) 66 WN (NSW) 48 (place); Felix v Smerdon (1944) 18 ALJR 30 (time); Platt v Sloman [1946] AR (NSW) 324; Cleland v Harris [1950] AR (NSW) 271; Producers and Citizens Co-operative Assurance Co Ltd v Packer [1955] AR (NSW) 1002. As to the misstatement of the date in the charge or a variation between the charge and the evidence see above at [2-s 16.15]. [2-s 16.40] Signature on indictment Section 16(1)(i) was enacted in 2005 to overcome the decisions in R v Halmi (2005) 62 NSWLR 263; 156 A Crim R 150; [2005] NSWCCA 2; BC200500703 and R v Janceski (2005) 64 NSWLR 10; 223 ALR 580; [2005] NSWCCA 281; BC200506067. Indictments which would have been invalid under the Halmi and Janceski principle are taken to be valid as are the proceedings undertaken pursuant to those indictments: Sch 2 cl 47 Criminal Procedure Act 1986 at [2-Sch 2].

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CRIMINAL PROCEDURE ACT 1986

[2-s 17.5]

[2-s 17] When formal objections to be taken 17 (1) An objection to an indictment for a formal defect apparent on its face must be taken, by demurrer or motion to quash the indictment, before the jury is sworn. (2) The court before which the objection is taken may cause the indictment to be amended and, in that case, the trial is to proceed as if there had been no defect. [s 17 insrt Act 94 of 1999 s 4 and Sch 2[29], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[26], opn 7 July 2003] Editor’s note: Section 17 (previously s 61) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 362 of the Crimes Act 1900.

COMMENTARY ON SECTION 17 Scope of the provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application to quash an indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . Demurrer to an indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 17.0] [2-s 17.1] [2-s 17.5]

[2-s 17.0] Scope of the provision Consideration was given to the scope of the provision in relation to formal defects in the indictment as distinct from defects in the statement of the charge in R v Janceski (2005) 64 NSWLR 10; 223 ALR 580; [2005] NSWCCA 281; BC200506067 in relation to whether the failure to sign an indictment could be a defect coming within the scope of the section in light of s 126 of the Act; cf R v Painter (1870) 9 SCR (NSW) 277. [2-s 17.1] Application to quash an indictment The accused may seek to quash an indictment on the basis that the facts do not disclose an offence, that there is no offence disclosed in the depositions and the accused was not committed for the offence: R v Jones (1974) 59 Cr App R 120 at 126; R v Wilk (1982) 32 SASR 12 at 14; R v Crawford [1989] 2 Qd R 443 at 445–6; (1988) 36 A Crim R 182, or that the count is bad for duplicity: R v Greenfield (1973) 57 Cr App R 849; [1973] 1 WLR 1151. The indictment can be quashed even after plea if there is a substantial defect: R v Rushton [1967] VR 842. Reasons need not be given for quashing an indictment: R v Keur (1973) 7 SASR 13; 2 ALR 237. An application to quash the indictment can be made before the date for the trial in accordance with District Court Rules Pt 53 r 10: see at [2-12,060]. There is a right of appeal to the Court of Criminal Appeal by the Attorney General or the Director of Public Prosecutions against an order quashing an indictment: see Criminal Appeal Act s 5C at [20-240]. There may be an appeal against the failure of the court to quash an indictment under the Criminal Appeal Act s 5F, if such an order is held to be interlocutory for the purposes of that section: see at [20-265]. As to the power of a court to stay an indictment as an abuse of process, see [2-s 19.5]. See cl 8 of the Criminal Procedure Regulation 2017 at [2-5060] with respect to the timing of an application to the Supreme Court or District Court for an order staying or quashing an indictment and any demurrer to an indictment. [2-s 17.5] Demurrer to an indictment A demurrer admits that all the statements in the count in the indictment are true but it maintains that even admitting their truth the offence cannot be made out: R v Boston (1923) 33 CLR 386; 30 ALR 185; BC2300011; R v Glynn (1994) 33 NSWLR 139; 71 A Crim R 537; BC9405320, where it was held that it was an error in determining a demurrer to have regard to depositions or other material indicating the evidence to be relied upon, and if the indictment does not contain every fact relied upon it should be amended to do so.

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Criminal Procedure

s 17

[2-s 18]

s 18

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

[2-s 18] Judgment on demurrer to indictment 18 The judgment against the accused person on demurrer is to be that the person “answer over” to the charge. [s 18 insrt Act 94 of 1999 s 4 and Sch 2[29], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[26], opn 7 July 2003] Editor’s note: Section 18 (previously s 62) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 363 of the Crimes Act 1900.

[2-s 19] Traversing indictment 19 (1) No traverse is to be allowed, or trial postponed, or time to plead to the indictment given, unless the court so orders. (2) However, if the court is of the opinion that the accused person ought to be allowed time, either to prepare for his or her defence or for any other reason, the court is to postpone the trial on such terms as it considers fit. [s 19 insrt Act 94 of 1999 s 4 and Sch 2[29], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[26], opn 7 July 2003] Editor’s note: Section 19 (previously s 63) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 364 of the Crimes Act 1900.

COMMENTARY ON SECTION 19 Adjournment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Stay for abuse of process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Temporary stay of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 19.1] [2-s 19.5] [2-s 19.10]

[2-s 19.1] Adjournment As to the power of a court to adjourn proceedings generally, see [2-s 40]. As to costs on adjournment in the Local Court see [2-s 118] in relation to committal proceedings and [2-s 216] in relation to summary proceedings. There is generally no power to award costs for an adjournment of proceedings on indictment although an adjournment may be granted to the Crown on condition that it pays the costs of the accused; R v Mosely (1992) 28 NSWLR 735; (1992) 65 A Crim R 542; BC9203074. R v Fisher (2003) 56 NSWLR 625; 138 A Crim R 318; [2003] NSWCCA 41; BC200300810; (2003) 10 Crim LN [1541]. [2-s 19.5] Stay for abuse of process The District and Supreme Courts have power to stay proceedings on indictment by reason that the proceedings would amount to an abuse of process: Watson v A-G (NSW) (1987) 8 NSWLR 685; 28 A Crim R 332 where it was held that proceedings before the District Court should be taken in that court whether or not an indictment had been presented. There is no right to a speedy trial as distinct from a fair trial and delay without prejudice will be insufficient to justify a stay: Jago v District Court of NSW (1989) 168 CLR 23; 87 ALR 577; 41 A Crim R 307; BC8902707 at CLR 70, 78; Adler v District Court (NSW) (1990) 19 NSWLR 317; 48 A Crim R 420. The decision of whether to stay an indictment requires a balance between competing interests taking into account delay, actual prejudice to the accused and the interests of the public in the prosecution of serious offences: Jago at CLR 33; Walton v Gardiner (1993) 177 CLR 378; 112 ALR 289; BC9303612. A stay is only to be granted when there is no other procedure available to overcome the unfairness to the accused: Jago, above; Barton v R (1980) 147 CLR 75 at 111; 32 ALR 449. The power is to be exercised in light of the principle that the conferral of jurisdiction imports a prima facie right in a person invoking that jurisdiction to have it exercised: Jago, above at CLR 76; ALR 615.

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CRIMINAL PROCEDURE ACT 1986

[2-s 19.5]

In determining whether by reason of delay, the point has been reached where the trial would necessarily be unfair, the court considers evidence of actual prejudice to the accused in the light of powers of the trial judge to relieve against such unfairness by appropriate directions and warnings to the jury: R v RWO [2002] NSWCCA 133; BC200203809. Matters giving rise to abuse of process for unfairness include: (a) the prosecution destroying evidence: Holmden and Crawford v Bitar (1987) 75 ALR 522; 47 SASR 509; 75 ALR 522; Heinze v Burnley (1992) 57 SASR 452; 17 MVR 54; (b) failure to give sufficient particulars of the offence: S v R (1989) 168 CLR 266; 89 ALR 321; (c) where an indigent accused cannot obtain legal aid on the trial of a serious offence: Dietrich v R (1992) 177 CLR 292; 109 ALR 385, but see at [7-400]; (d) where pre-trial publicity is such that there cannot be a fair trial but this would only be so in an extreme case: R v Glennon (1992) 173 CLR 592 at 623–4; 106 ALR 177; 66 ALJR 344. (e) exceptional unfairness resulting from wasted expenses caused by a discharge of jury as a result of fault by the Crown: R v Fisher (2003) 56 NSWlR 625; 138 A Crim R 318; [2003] NSWCCA 41; BC200300810; Petroulias v R (2007) 176 A Crim R 302; [2007] NSWCCA 154; BC200711442 at [23]. It is not an abuse of process to prosecute an accused who is suffering a memory loss due to brain damage caused by his own deliberate act: R v Richards (1994) 64 SASR 42; 77 A Crim R 1. However, where the accused has impairment of memory as a result of delay in prosecution, it may be sufficient to amount to such unfairness as could give rise to abuse of process: R v Littler (2001) 120 A Crim R 512; [2001] NSWCCA 173; BC200102883 but cf R v RWO, above. The fact that by reason of delay or some other event a witness who would have been called by the defence has died or is otherwise unavailable is not itself generally sufficient to justify a stay of proceedings although there may be exceptional cases where a stay would be justified: R v Adler (NSWCCA, 11 June 1992, unreported); R v Goldburg (NSWCCA, 23 February 1993, unreported, BC9302038); R v Tolmie (NSWCCA, 7 December 1994, unreported). As to the grant of a stay because of lost prosecution evidence see: R v Gilham (2007) 190 A Crim R 303; [2007] NSWSC 231; BC200712178, confirmed in Gilham v R (2007) 73 NSWLR 308; 178 A Crim R 72; [2007] NSWCCA 323; BC200710223, where it was held that proper directions to the jury on the onus and standard of proof will usually be sufficient to overcome any potential unfairness to the accused. However, in RM v R [2012] NSWCCA 35; BC201201583, the court was concerned with the loss of evidence which was relevant to an issue upon which the accused had the onus of proof: the defence of mental illness. A trial judge has no power to stay a criminal trial because the judge perceives that the operation of legislative provisions prescribing the procedure to be followed or the evidentiary rules to be applied would result in an unfair trial to the accused: R v PJE (NSWCCA, 9 October 1995, unreported); (1995) 2 Crim LN 73[474]. Entrapment will not give rise to an abuse of process although the trial judge may in the exercise of discretion reject evidence of an element of the offence: Ridgeway v R (1995) 184 CLR 19; 129 ALR 41; BC9506420; (1995) 2 Crim LN 17 [352]; Massey v R (1995) 13 Leg Rep C14, where the distinction between the situation where the police commit an element of the offence charged against the accused and that where the police merely procured the offence charged was stressed, so that in the latter case a stay will only be granted where the police misconduct is particularly serious. See generally R Lancaster, “Ridgeway and Response” (1995) 2 Crim LN 54 [439]. There is no abuse of process where the Crown prosecuted the accused on the basis of evidence given by the accused in his or her defence at an earlier trial: R v Peters and Heffernan (1995) 83 A Crim R 142; BC9501749; (1995) 2 Crim LN 80 [488]. It has been held that it is not necessarily an abuse of process where the Crown wished to present a different case in respect of one accused from that which it led against a co-accused at an earlier trial: R v Halmi [1999] NSWCCA 354; BC9907457; (1999) 6 Crim LN 354 [1093].

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Criminal Procedure

s 19

[2-s 19.5]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 19

A stay may be granted where the mental health of the accused is such that it “would be out of accord with common humanity” to proceed, but the fact that the accused is unfit to be tried itself is insufficient to warrant a stay of proceedings: Subramaniam v R (2004) 211 ALR 1; 79 ALJR 116; [2004] HCA 51; BC200407421; (2004) 11 Crim LN 107 [1786]. It was not an abuse of process for there to be a criminal prosecution brought against an accused after he was ordered to pay a pecuniary penalty under the Corporations Law and where the criminal charges were different in important respects from the charges in respect of which the pecuniary penalty was ordered: Adler v DPP (2004) 51 ACSR 1; 22 ACLC 1460; [2004] NSWCCA 1790; BC200406850; (2004) Crim LN 110 [1790]. Further the nature and purposes of the criminal proceedings were different from those for the pecuniary penalty and there was no double jeopardy arising from the two proceedings. Where the prosecution is brought for an improper purpose or is otherwise oppressive, it may be stayed even though the trial would be fair: Williams v Spautz (1992) 174 CLR 509 at 522; 107 ALR 635; BC9202694; Walton v Gardiner (1993) 177 CLR 378 at 392–3; 112 ALR 289, where it was held that it would be oppressive if the proceedings were foredoomed to fail. Although the court has power to stay a prosecution on the basis that the trial would be unfair because the accused was unfit to stand trial, the court should not do so without giving appropriate weight to the fact that there is a procedure available for dealing with persons unfit to be tried under Pt 2 of the Mental Health (Criminal Procedure) Act [entitled the Mental Health (Forensic Provisions) Act as of 1 March 2009]: R v WRC (2003) 59 NSWLR 273; (2003) 143 A Crim R 503; [2003] NSWCCA 394; BC200308058; (2004) 11 Crim LN 3 [1638]. Matters giving rise to an abuse of process as being oppressive include: (a) laying an information after offering no evidence on a refusal of an adjournment and where there was an agreement by the defendant not to seek costs: R v Trainor [1992] 2 Qd R 572; 56 A Crim R 102; BC9102515; (b) proceeding on indictment after a summary conviction for similar offences where a plea in bar would not be available: R v Viers [1983] 2 Qd R 1; Dodd v R (1991) 56 A Crim R 451; BC9101494; (c) the continued prosecution of the same or a similar charge arising from the same evidence where no plea in bar is available: Pearce v R (1998) 194 CLR 610; 156 ALR 684; [1998] HCA 57; BC9804554; (1998) 5 Crim LN 70 [902]; Donald v R (1983) 34 SASR 10; 11 A Crim R 47; R v Koolmatrie (1989) 52 SASR 482, cf R v Kite (1992) 60 A Crim R 226; (d) separate charges arising from the same facts: R v O’Loughlin; Ex parte Ralphs (1971) 1 SASR 219; Collins v Murray; Ex parte Murray [1989] 1 Qd R 614; R v Mai (1992) 26 NSWLR 371 where it was held to be oppressive to charge the substantive offence and an attempt to commit the offence on the same indictment where the charges were not in the alternative and R v Nahlous (2010) 77 NSWLR 463; 201 A Crim R 150; [2010] NSWCCA 58; BC201002045 where a charge relying upon the possession of a sum of money was added to a charge relating to obtaining the same sum of money, but cf Pearce v R (1998) 194 CLR 610; 156 ALR 684; [1998] HCA 57; BC9804554; (1998) 5 Crim LN 70 [902] where it was held that the prosecution is entitled to lay charges that reflect the whole of the criminality and see Standen v Director of Public Prosecutions (DPP) (Cth) [2011] NSWCCA 187; BC201106085; 18(9) Crim LN [2960] where it was held there was no abuse of process from charging both a conspiracy to import offence in relation to drugs and an offence of being knowingly concerned in an attempt to possess the same drugs; (e) where the accused was unlawfully brought within the jurisdiction: Levinge v Director of Custodial Services (1987) 9 NSWLR 546; 89 FLR 133; R v Fan (1989) 98 FLR 119; BC8901740; (f) the ill health of the accused: R v Hakim (1989) 41 A Crim R 372; BC8902177;

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CRIMINAL PROCEDURE ACT 1986

[2-s 19.10]

(g) where there has been an earlier stay of similar proceedings and a long delay in recharging: Gill Herron v Walton (1991) 25 NSWLR 190 at 200; Walton v Gardiner (1993) 177 CLR 378 at 398; 112 ALR 289; BC9303612; (h) where a co-conspirator had been acquitted on the same evidence: R v Catalano (1992) 107 FLR 31; 61 A Crim R 323; (i) where the Crown sought to rely upon records of interviews which had been ruled at an earlier trial as being involuntary: Rogers v R (1994) 181 CLR 251; 123 ALR 417; BC9404645; (1994) 1 Crim LN 82 [283]; (j) laying an information before a decision to prosecute has been made in order to overcome a time limitation and then to delay the serving of a summons in order to obtain more evidence: Whitten v Hall (1993) 29 NSWLR 680; (k) where proceedings are foredoomed to fail: Walton v Gardiner (1993) 177 CLR 378; 112 ALR 289; BC9506420; Ridgeway v R (1995) 184 CLR 19; 129 ALR 41; BC9506420; (1995) 2 Crim LN 17 [352] cf R v Smith [1995] 1 VR 10; (1994) 73 A Crim R 384; BC9401043 where it was held that a stay would only be granted where the proceedings must inevitably fail because it is clear beyond argument that there is no evidence of an essential element. There is not necessarily an abuse of process where the accused is subjected to a third trial of the same matter: R v Fransisco and Dorain (NSWCCA, 24 August 1995, unreported); (1995) 2 Crim LN 64 [455]. It was not an abuse of process for the DPP to continue a prosecution where the complainant decided not to proceed with the prosecution when the accused was to stand trial in 1997 but wished to continue and give evidence for the Crown in 2002: L v Johnson [2003] NSWSC 1246; BC200308046; (2004) 11 Crim LN 4 [1639]. It is an abuse of process for the prosecution to rely upon admissions which have previously been held by a trial judge to be involuntary in other proceedings: Rogers v R (1994) 181 CLR 251; 123 ALR 417; BC9404645; (1994) 1 Crim LN 82 [283]. But a trial judge’s rulings are only binding where they concern issues of fact and are not made in the exercise of discretion: R v Edwards [1998] 2 VR 354; (1997) 94 A Crim R 204; BC9702652; (1997) 4 Crim LN 46 [714]. Nor are the rulings binding when the verdict in the trial is overturned: R v Edwards, above, or where the trial has aborted before verdict:R v Blair (1985) 1 NSWLR 584. Instead of staying a prosecution as an abuse of process by reason of unfairness, where a witness has improperly had access to compulsory acquired material from the accused, the court can prohibit the witness from giving evidence at the trial: R v Seller; R v McCarthy [2015] NSWCCA 76; BC201503262; 22(6) Crim LN [3538]. As to abuse of process in respect of the use of a nolle prosequi, see at [7-105]. A stay of proceedings is an interlocutory judgment: Tampion v Anderson (1973) 3 ALR 414; 48 ALJR 11, and does not give rise to a res judicata or any double jeopardy where the stay has been granted and the prosecution appeals: Cooke v Purcell (1988) 14 NSWLR 51; 91 FLR 350. There is an appeal to the Court of Criminal Appeal against an order staying an indictment or a refusal to stay an indictment under the Criminal Appeal Act s 5F: see at [20-265]. See cl 8 of the Criminal Procedure Regulation 2017 at [2-5060] with respect to the timing of an application to the Supreme Court or District Court for an order staying or quashing an indictment and any demurrer to an indictment. [2-s 19.10] Temporary stay of indictment An indictment may be stayed temporarily because publicity given to the particular allegation or otherwise might result in an unfair trial. In Re K [2002] NSWCCA 374; BC200205230; (2002) 9 Crim LN 72 [1476] a stay was granted where there was a risk that the jury would be unfairly influenced by publicity about other matters of a similar nature before the same trial judge. It was held that the test to be applied in determining whether to stay the trial was what the interests of justice required in the particular case. It was not necessary for the accused to show that he or she would not receive a fair trial, but rather that there was a risk that the trial would not be fair.

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Criminal Procedure

s 19

[2-s 19.10]

s 19

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

A temporary stay was granted of a trial until there was a change of Crown prosecutor because of the reasonable conclusion open that the particular prosecutor may not discharge her obligations with appropriate fairness and detachment: MG v R (2007) 69 NSWLR 20; [2007] NSWCCA 57; BC200702772; 14 Crim LN 85 [2237].

[2-s 20] Amendment of indictment 20 (1) An indictment may not be amended after it is presented, except by the prosecutor: (a) with the leave of the court, or (b) with the consent of the accused. [subs (1) am Act 40 of 2003 s 3 and Sch 1.10[2], opn 7 July 2003]

(2) This section does not affect the powers of the court under section 21. [subs (2) am Act 82 of 2003 s 3 and Sch 2.9[2], opn 27 Nov 2003]

(3) For the purposes of this section, an amendment of an indictment includes the substitution of an indictment. [s 20 insrt Act 7 of 2001 s 3 and Sch 1[7], opn 19 Nov 2001; renum Act 119 of 2001 s 3 and Sch 1[26], opn 7 July 2003]

COMMENTARY ON SECTION 20 Application to amend the indictment . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 20.1]

[2-s 20.1] Application to amend the indictment This provision, then s 63A, was considered in R v Sepulveda [2003] NSWCCA 131; BC200302273 where it was held that the section applies to an ex officio indictment. In that case it was held that the trial judge was correct to grant leave to the Crown to amend an indictment to add on further counts of sexual assault offences against a different complainant than those on the original indictment. In R v Taylor [2003] NSWCCA 194; BC200306670; (2004) 11 Crim LN 96 [1629] it was held that a second indictment presented in the same terms as the indictment upon which the accused had originally been arraigned was a substituted indictment for the purposes of the section and was a step in the course of proceedings commenced by the presentation of the original indictment. It is not necessary to have the jury re-sworn where an indictment has been amended but there is no error in having the amended charge read out to the accused and asking the accused to plead to it before the jury: Kamm v R [2007] NSWCCA 201; BC200705305; (2007) 14 Crim LN 98 [2253]. The consent of the accused can be implied to an amendment of an indictment from the circumstances in which an accused pleads to the indictment: DJB v R [2007] NSWCCA 209; BC200711453; (2008) 15 Crim LN 22 [2346]. However it was stated that the preferable course is to follow the section for the amendment of an indictment rather than to act in an informal manner. The power to amend under the section was considered in Rajendran v R [2010] NSWCCA 322; BC201009864; 18(2) Crim LN [2853], where it was held that there was no defect in an indictment as a result of the Crown being unable to prove a circumstances of aggravation and the words were deleted from the indictment.

[2-s 21] Orders for amendment of indictment, separate trial and postponement of trial 21 (1) If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case.

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CRIMINAL PROCEDURE ACT 1986

[2-s 21.1]

(2) If of the opinion: (a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or (b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of the indictment. (3) If of the opinion that the postponement of an accused person’s trial is expedient as a consequence of it having amended an indictment or ordered a separate trial of a count, the court may make such order as appears necessary. (4) An order under this section may be made either before trial or at any stage during the trial. (5) The following provisions apply if an order is made under this section for a separate trial or for the postponement of a trial: (a) if the order is made during the trial, the court may order that the jury be discharged from giving a verdict: (i) on the count or counts in respect of which the trial is postponed, or (ii) on the indictment, as the case may be, (b) the procedure on the separate trial of a count, and the procedure on the postponed trial, are to be the same in all respects (if the jury has been discharged) as if the trial had not commenced, (c) subject to the Bail Act 2013, the court may commit the accused person to a correctional centre. [subs (5) am Act 5 of 2014 Sch 2 item 2.15[1], opn 20 May 2014]

(6) Any power of the court under this section is in addition to and not in derogation of any other power of the court for the same or similar purposes. [s 21 insrt Act 94 of 1999 s 4 and Sch 2[29], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[26], opn 7 July 2003] Editor’s note: Section 21 (previously s 64) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 365 of the Crimes Act 1900.

COMMENTARY ON SECTION 21 Amendment of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Joinder of several offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Joinder of several offenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Separate trials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Summing up in joint trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 21.1] [2-s 21.5] [2-s 21.10] [2-s 21.15] [2-s 21.20]

[2-s 21.1] Amendment of indictment An indictment may not be amended after it is presented, except by the prosecuting authority with the leave of the court or the consent of the accused: s 20. Section 20 does not affect the powers of the court under this section: see s 20(2). There is wide power to amend the indictment at any time during the trial provided no injustice is done to the accused. It seems an indictment can be amended even after verdict: R v Dossi (1918) 13 Cr App R 158. The right of the Crown to amend the indictment is extensive provided that no injustice is caused and the limited view expressed in R v Thompson (1925) 25 SR (NSW) 250 no longer applies to the present section: R v Clarke (1993) 71 A Crim R 58; R v Lars aka Larsson (1994) 73 A Crim R 91; BC9402668 at 145. Leave should be granted to amend an indictment unless the accused would be irreparably prejudiced in meeting the charge as amended and the fact

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Criminal Procedure

s 21

[2-s 21.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 21

that the accused may lose some tactical advantage by reason of the amendment is not sufficient prejudice to refuse leave: Borodin v R [2006] NSWCCA 83; BC200601917; (2006) 13 Crim LN 23 [2040]. However, the Court of Criminal Appeal has no power to amend an indictment: R v Burns (1920) 20 SR (NSW) 351; 37 WN (NSW) 77. In R v Johal [1973] 1 QB 475; (1972) 56 Cr App R 348 it was held that there is no rule of law which precludes amendment of an indictment after arraignment, either by the addition of a new count or otherwise. The decision was followed in R v Radley (1973) 58 Cr App R 394, where it was held that although a new arraignment was desirable, it was not necessary. However an amendment of an indictment during the course of a trial is likely to prejudice an accused and in such a case it is necessary to consider with great care whether an amendment may lead to injustice: R v Aldridge (1993) 67 A Crim R 371; BC9303907. The power to amend an indictment during the trial was considered in MM v R [2011] NSWCCA 262; BC201110755; 19(2) Crim LN [3014] where the timeframe for a number of counts of child sexual assault offences was increased to accord with evidence given in the Crown case. It was held applying Borodin, above, that no unfairness had been occasioned to the defence case. It should be noted that the decision in Maher v R (1987) 163 CLR 221; 72 ALR 351; BC8701791 is not applicable in this State as in that case the court of trial had no power to amend. If there is a defect which is not amended, the conviction will still be valid if there is no miscarriage of justice as where the defect is merely technical: Mackay v R (1977) 136 CLR 465; 15 ALR 541; BC7700072. In R v Cook (NSWCCA, Clarke JA, Campbell and Allen JJ, 60572/1989, 9 May 1990, unreported, BC9002472) it was held that an indictment for culpable driving which alleged that death was occasioned through an impact could be amended to allege that the death was occasioned through the vehicle overturning. The court stated that the power to amend was not limited to mere technicalities. The history of this type of section was considered in R v Gibson (1989) 42 A Crim R 265; BC8902102. [2-s 21.5] Joinder of several offences An indictment may contain more than one count, but each count must allege a separate and distinct offence and there must be a verdict on each: Latham v R (1864) 9 Cox CC 516. See s 23 below, as to the joinder of counts for offences of the same kind occurring within a six month period. See s 29 below as to when offences and accused persons may be joined in the one proceedings. Different offences may be contained in the one indictment if there is some connection between the crimes. This will be so if the evidence of one is admissible on the trial of the other: R v Ludlow [1971] AC 29; [1970] 1 All ER 567. See similar fact evidence at [3-s 98.10]. The indictment may contain counts in the alternative provided that those counts are not inconsistent and would lead to unfairness that cannot be overcome by appropriate directions. In R v Thomson and Dann (2002) 134 A Crim R 252; [2002] NSWCCA 400; BC200205744; (2002) 9 Crim LN 71 [1475], applying R v Bellman [1989] AC 836; (1989) 88 Cr App R 252, it was held that a count alleging a supply of a prohibited drug and an alternative count of attempting to pervert the course of justice were not inconsistent in the circumstances of that case. It was further held at [35] that the principle to be applied is that: [T]here is no rule of law that prevents the inclusion in one indictment of mutually exclusive counts so long as: (i) the evidence establishes a prima face case on both counts at the conclusion of the prosecution case; (ii) the evidence in relation to each count is substantially similar, though not necessarily identical; (iii) a direction can be made which sufficiently removes the risk that the jury will fail to understand the implications of an acquittal on the first count for the second count. The cases and principles relating to the joinder of counts were reviewed in Mac v R [2014] NSWCCA 24; 21(4) Crim LN [3356] where it was held that the various counts were properly joined because of the admissibility of the evidence relating to each count in respect of the other

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CRIMINAL PROCEDURE ACT 1986

[2-s 21.15]

counts. It was also held that a realistic assessment of the Crown case and defence case on each count could not be made by the jury without knowledge of the other counts. The joinder of a count in the alternative on the day of the trial was considered in R v Lykouras [2005] NSWCCA 8; BC200500707; (2005) 12 Crim LN 20 [1830] where it was held that it would rarely be the case that the addition of an alternative count would render a trial unfair or oppressive. [2-s 21.10] Joinder of several offenders Sachs LJ said:

In R v Assim [1966] 2 QB 249; [1966] 2 All ER 881,

As a general rule, it is of course no more proper to have tried by the same jury several offenders on charges of committing individual offences that had nothing to do with each other than it is to try before the same jury offences committed by the same person that have nothing to do with each other. Where, however, the matters which constitute the individual offences of the several offenders are, upon the available evidence, so related whether in time or other factors that the interests of justice are best served by their being tried together then they can properly be the subject of counts in the one indictment and can, subject always to the discretion of the court, be tried together. Such a rule, of course, includes cases where there is evidence that several offenders acted in concert but is not limited to such cases. This passage was approved in Annakin v R (1988) 17 NSWLR 202; 37 A Crim R 131; BC8801294. Where two accused are jointly charged in the one count of the indictment, the count will be valid provided that the Crown is alleging that one accused aided and abetted the offence committed by the other: R v Sperotto [1970] 1 NSWR 502; (1970) 71 SR(NSW) 334 which followed R v Scaramanga [1963] 2 QB 807; [1963] 2 All ER 852. The convictions were quashed because the case was left to the jury on the basis that the accused either acted as a principal in respect to separate offences of rape or aided and abetted the rape by the principal. The court held, overruling R v Fenwick [1954] 71 WN 102, that the single count could not be treated as both a joint and several allegation. However, in Director of Public Prosecutions v Merriman [1973] AC 584 the House of Lords overruled R v Scaramanga, above, and approved R v Fenwick, above. In R v McConnell [1977] 1 NSWLR 715 the Court of Criminal Appeal followed Director of Public Prosecutions v Merriman, above, and R v Fenwick, above, and did not refer to R v Sperotto, above. The High Court considered the conflicting decisions of R v Sperotto and Director of Public Prosecutions v Merriman in Mackay v R (1977) 136 CLR 465; 15 ALR 541 but did not resolve the issue. It was held that if the indictment was defective it was a mere technicality and there was no miscarriage of justice. In R v Ozcan (NSWCCA, 1 December 1988, unreported, BC8802303) a joint count was amended by the trial judge to show separate offences against each accused. The court held the amendment was appropriate but in any event, applying Mackay v R, any defect was technical. In R v Williamson and Morell (NSWCCA, 11 October 1991, unreported), the indictment was held defective applying R v Sperotto, but the court declined to apply the proviso as it held that in that case the error led to a fundamental defect in the conduct of the trial. As to accessories, see ss 346 and 347 of the Crimes Act. A judge has no power to direct that there be a joint trial of offenders and it is a matter for the discretion of the prosecuting authority whether offenders should be joined in an indictment: R v Cooper (NSWCCA, Gleeson CJ, Ireland and Bruce JJ, 60956/97, 24 February 1998, unreported, BC9800322); (1998) 5 Crim LN 14 [818]. [2-s 21.15] Separate trials The trial judge has a discretion to grant separate trials for various counts in the indictment or for various accused persons, where a joint trial would work an injustice to the accused. The exercise of that discretion will not lightly be interfered with on appeal: R v Guldur (1986) 8 NSWLR 12; 25 A Crim R 271 but see Verma v R (1987) 30 A Crim R 441; BC8701074. The accused has an onus of showing that there is a reason for a separate trial and in an appropriate case this may require that the accused adduce evidence of the prejudice to be suffered

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Criminal Procedure

s 21

[2-s 21.15]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 21

so that it can be tested by the Crown: R v Bikic (2000) 112 A Crim R 300; [2000] NSWCCA 106; BC200001441; (2000) 7 Crim LN 19 [1130]. Applications for separate trials ought to be made with the formality required by the District Court Rules 1973 Pt 53 r 10, see [2-12,060]; Fitzgerald v DPP (1991) 24 NSWLR 45; 56 A Crim R 262. An order refusing or granting separate trials is an interlocutory order and may be varied or rescinded if it became inappropriate because of a change of circumstances: Saunders v R (1994) 72 A Crim R 347; BC9405308 where, after an order had originally been made for separate trials, the Crown later reindicted the two co-accused on a joint indictment where the circumstances had changed from those which had pertained at the time of the original order. Where a common purpose is alleged between the accused then prima facie they should be jointly tried: R v Kerekes [1951] 70 WN(NSW) 102, but separate trials may be appropriate where the evidence admissible against one co-accused is significantly different from the evidence against the other: R v Darby (1982) 148 CLR 668; 40 ALR 594; 56 ALJR 688. The desirability of a joint trial for joint offenders was confirmed by the High Court in Webb and Hay v R (1994) 181 CLR 41; 122 ALR 41. There should be separate trials where a direction to a jury as to the impermissible use of evidence not admissible against one of the co-accused would not be sufficient to overcome prejudice to that accused by that evidence being before the jury: Verma v R, above. Normally, such a direction will be sufficient. In R v Baartman (NSWCCA, Gleeson CJ, Powell JA, Smart J, 60499/94, 6 October 1994, unreported, BC9405200) the court adopted as the relevant principles to be applied in determining whether to grant a separate trial a statement from Hunt CJ at CL in R v Middis as follows: 1. where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him; and 2. where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him; and 3. where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material, A separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that a positive injustice would be caused to him in a joint trial. In R v Pham [2004] NSWCCA 190; BC200404890; (2004) 11 Crim LN 77 [1748], it was said that “immeasurably” in the third proposition from R v Middis meant: “significant, though incommensurable”. The starting point is that the inadmissible, prejudicial material is completely irrelevant. If, when placed on the scales, it would be likely to turn a potential acquittal to a conviction then this would . . . amount to “positive injustice”. The need for separate trial of offences involving sexual assaults was considered in De Jesus v R (1986) 68 ALR 1; 61 ALJR 1 where some members of the High Court considered that special rules might apply in such cases, but it seems that ultimately the question is one of whether the accused could have a fair trial: Annakin v R (1988) 17 NSWLR 202; 37 A Crim R 131; BC8801294. Where there is a real possibility of concoction between complainants in a sexual assault trial the judge should order that there be separate trials: Hoch v R (1988) 165 CLR 292; 81 ALR 225 and R v ACK (NSWCCA, Gleeson CJ, Studdert and Dowd JJ, 60601/1994, 22 April 1996, unreported, BC9601665); (1996) 3 Crim LN 30 [561], where it was held that the possibility of concoction was a matter which had to be considered by the trial judge when determining whether to admit evidence of offences against more than one complainant. An application for separate trials on the basis that there was the possibility of concoction between the complainants should be determined in accordance with the Criminal Procedure Rules of the District Court and the admissibility of

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CRIMINAL PROCEDURE ACT 1986

[2-s 23]

evidence should only be dealt with by the trial judge after arraignment of the accused: R v GLC [2000] NSWCCA 99; BC200001596; (2000) 7 Crim LN 28 [1138]. Separate trials should have been granted where there were a number of complainants but some were making allegations of significantly more seriousness than others: R v Barton [2004] NSWCCA 229; BC200404319; (2004) 11 Crim LN 60 [1716]. As to separate trials of co-conspirators, see Domican v R (1989) 43 A Crim R 24. It has been held that where one co-accused will attempt to exculpate himself at the expense of another co-accused, the “cut-throat” defence, it is normally appropriate that there be a joint trial: R v Beavan (1952) 69 WN (NSW) 140 applied in Annakin v R, above. In Ignjatic v R (1993) 68 A Crim R 333 it was held that the existence of a cut-throat defence is not a reason to reject a joint trial and although there may be occasions when it would be appropriate to order a separate trial in such a situation they would be infrequent. The desirability of a joint trial in such a case to avoid inconsistent verdicts was affirmed in Webb and Hay v R, above, and applied in R v Fernando [1999] NSWCCA 66; BC9901709 whether the authorities are reviewed. See generally M D Finlay, “Some Problems in Joint Criminal Trials”, 15 Crim LJ 239. It has been doubted that a court has any jurisdiction to order separate trials in respect of alternative counts in an indictment: R v Lykouras [2005] NSWCCA 8; BC200500707; (2005) 12 Crim LN 20 [1830]. [2-s 21.20] Summing up in joint trial There is a need in joint trials for the trial judge in the summing up to carefully separate the evidence relevant and admissible against each of the accused and to present the case against each of the accused separately, and it is not enough merely to direct the jury that they must consider the case against each accused separately: R v Masters (1992) 26 NSWLR 450; 59 A Crim R 445. Where there are matters of prejudice arising by reason of the case of a joint accused, the trial judge should specifically warn the jury to ignore those matters of prejudice when considering the case of the other accused: R v Taouk (NSWCCA, Mahoney JA, Hunt CJ at CL, Badgery-Parker J, 17 December 1992, unreported, BC9203128).

[2-s 22] Amended indictment 22 (1) If any indictment is amended, a note of the order for amendment is to be endorsed on the indictment, and the indictment in its amended form is to be treated as the indictment for the purposes of the trial and all proceedings in connection with or consequent on the trial. (2) Any verdict or judgment given after the amendment of an indictment is to have the same force and effect as if the indictment had originally been in its amended form. (3) If it is necessary at any time to draw up a formal record of an indictment, the record may be drawn up in the words and form of the amended indictment, without notice of the fact of the amendment. [s 22 insrt Act 94 of 1999 s 4 and Sch 2[29], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[26], opn 7 July 2003] Editor’s note: Section 22 (previously s 65) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in ss 366-368 of the Crimes Act 1900.

[2-s 23] Indictment may contain up to 3 similar counts 23 (1) Up to 3 counts may be inserted in the same indictment, against the same person, for distinct offences of the same kind committed against the same person. (2) This section does not apply if more than 6 months have elapsed between the first and last of the offences.

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Criminal Procedure

s 23

[2-s 23]

s 23

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

(3) Nothing in this section affects the right of the Crown to insert alternative counts in any indictment. [s 66 insrt Act 94 of 1999 s 4 and Sch 2[29], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[26], opn 7 July 2003] Editor’s note: Section 23 (previously s 66) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 370 of the Crimes Act 1900.

COMMENTARY ON SECTION 23 Joinder of separate offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope of section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Separate trials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 23.1] [2-s 23.5] [2-s 23.10]

[2-s 23.1] Joinder of separate offences As to when it is appropriate to join offences in separate counts in an indictment, see at [2-s 21.15] and see s 29 which provides for situations where more than one offence may be heard at the one time. [2-s 23.5] Scope of section The provisions of the section were formerly found in s 370 of the Crimes Act and cases concerning that section would apply to this section. The section is facultative, not limiting and it is not to be taken as limiting the Crown in cases to which it does not apply. The Crown may not be put to election or separate trials ordered in the circumstances and subject to the qualifications set out in the section. It does not prohibit the inclusion in one indictment of a greater number of counts or of counts otherwise outside the terms of the section: R v Johnson (NSWCCA, Gleeson CJ, Clarke AJA and Studdert J, 60262/1989, 3 July 1990, unreported, BC9002976) applying Verma v R (1987) 30 A Crim R 441; BC8701074 and R v Haas (NSWCCA, 30 June 1972, unreported) and R v Ingivald (NSWCCA, Gleeson CJ, Lee CJ and Campbell J, 60101/1986, 14 April 1989, unreported, BC8902289). The history of this section was considered in R v Quinn (NSWCCA, 13 June 1991, unreported) where it was held that a trial judge was not bound to force the prosecution to elect as to which count it would proceed, merely because of a defence application that the Crown elect. [2-s 23.10] Separate trials

As to applications for separate trial see [2-s 21.15].

[2-s 24] Accessories may be charged together in one indictment 24 Any number of accessories (whether before or after the fact) may be charged with substantive serious indictable offences in the same indictment, and may be tried together, even though the principal offender is not included in the indictment, not in custody or not amenable to justice. [s 24 insrt Act 94 of 1999 s 4 and Sch 2[29], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[26], opn 7 July 2003] Editor’s note: Section 24 (previously s 67) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 371 of the Crimes Act 1900.

COMMENTARY ON SECTION 24 Accessories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 24.1] Accessories the fact see [6-105].

[2-s 24.1]

As to accessories before the fact see [6-100]. As to accessories after

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CRIMINAL PROCEDURE ACT 1986

[2-s 27]

[2-s 25] Indictment charging previous offence also 25 In an indictment against a person for an offence committed after the person was convicted of some previous offence (whether indictable or otherwise) it is sufficient, after charging the subsequent offence, to state that the accused person was (at a specified time and place) convicted of the previous offence, without particularly describing the previous offence. [s 25 insrt Act 94 of 1999 s 4 and Sch 2[29], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[26], opn 7 July 2003] Editor’s note: Section 25 (previously s 68) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 372 of the Crimes Act 1900.

COMMENTARY ON SECTION 25 Indictments alleging previous conviction . . . . . . . . . . . . . . . . . . . . . . .

[2-s 25.1]

[2-s 25.1] Indictments alleging previous conviction As to the procedure to be adopted in cases where the charge relates to an offence committed after a previous conviction for a similar offence, see [2-s 152].

[2-s 26] Description of written instruments 26 If: (a) an indictment relates to an instrument that is written or printed, or partly written and partly printed, or (b) it is necessary to make an averment in an indictment with respect to an instrument that is written or printed, or partly written and partly printed, it is sufficient to describe the instrument by any name or designation by which it is usually known, or by its purport, without setting out a copy of the instrument, or otherwise describing the instrument, and without stating the value of the instrument. [s 26 insrt Act 94 of 1999 s 4 and Sch 2[29], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[26], opn 7 July 2003] Editor’s note: Section 26 (previously s 69) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 374 of the Crimes Act 1900.

[2-s 27] Supreme Court rules may prescribe forms of indictments 27 (1) Without limiting the rule-making powers conferred by the Supreme Court Act 1970, rules may from time to time be made under that Act prescribing forms of indictments, records, informations, depositions, convictions, warrants and processes in all courts for any offence. (2) Any form prescribed by those rules is taken to be sufficient for the purpose, and to sufficiently state the offence, for which it is prescribed. [s 27 insrt Act 94 of 1999 s 4 and Sch 2[29], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[27], opn 7 July 2003] Editor’s note: Section 27 (previously s 85) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 567 of the Crimes Act 1900.

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Criminal Procedure

s 27

[2-s 28]

s 28

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

PART 3 — CRIMINAL PROCEEDINGS GENERALLY [Heading insrt Act 119 of 2001 s 3 and Sch 1[28], opn 7 July 2003]

[2-s 28] Application of Part and definition 28 (1) This Part applies, to the extent that it is capable of being applied, to all offences, however arising (whether under an Act or at common law), whenever committed and in whatever court dealt with. (2) In this Part: Judge includes a Magistrate, a Children’s Court Magistrate, an Industrial Magistrate and any other person of a class prescribed by the regulations for the purposes of this definition. [def am Act 107 of 2008 s 3 and Sch 29, opn 7 Apr 2009; Act 48 of 2016 Sch 2.13[3], opn 8 Dec 2016] [s 28 insrt Act 119 of 2001 s 3 and Sch 1[29], opn 7 July 2003; am Act 92 of 2007 s 6 and Sch 4.5[2], opn 1 July 2008]

[2-s 29] When more than one offence may be heard at the same time 29 (1) A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances: (a) the accused person and the prosecutor consent, (b) the offences arise out of the same set of circumstances, (c) the offences form or are part of a series of offences of the same or a similar character. (2) A court may hear and determine together proceedings related to offences alleged to have been committed by 2 or more accused persons in any of the following circumstances: (a) the accused persons and the prosecutor consent, (b) the offences arise out of the same set of circumstances, (c) the offences form or are part of a series of offences of the same or a similar character. (3) Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice. [s 29 insrt Act 119 of 2001 s 3 and Sch 1[29], opn 7 July 2003]

COMMENTARY ON SECTION 29 Joinder of offences and co-accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 29.1]

[2-s 29.1] Joinder of offences and co-accused As to the circumstances in which more than one offence can be determined or more than one accused person can be tried in the one proceedings see above at [2-s 21.5] and [2-s 21.10]. As to when separate trials are appropriate see at [2-s 21.15].

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CRIMINAL PROCEDURE ACT 1986

[2-s 31]

[2-s 30] Change of venue 30 In any criminal proceedings, if it appears to the court: (a) that a fair or unprejudiced trial cannot otherwise be had, or (b) that for any other reason it is expedient to do so, the court may change the venue, and direct the trial to be held in such other district, or at such other place, as the court thinks fit, and may for that purpose make all such orders as justice appears to require. [s 30 insrt Act 94 of 1999 s 4 and Sch 2[10], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[30]; am Act 119 of 2001 s 3 and Sch 1[31] and [32], opn 7 July 2003] Editor’s note: Section 30 (previously s 13) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 577 of the Crimes Act 1900.

COMMENTARY ON SECTION 30 Change of venue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 30.1] [2-s 30.1] Change of venue The history, construction and operation of s 30 were considered in R v Turnbull (No 1) [2016] NSWSC 189; BC201604060, where it was said that: (a) cases which have emphasised the exercise of discretion by the Attorney General with respect to trial venue are no longer apt, given the absence of any function of the Attorney General concerning selection of trial venue in the contemporary criminal justice system (at [61]); (b) the presumption in favour of a local trial is a rule of practice and not a rule of law (at [68]); (c) each application for change of venue (or for trial other than a local trial) falls to be considered on its own merits, without preconceptions; it is not necessary to show exceptional circumstances — what must be shown is that it is necessary for the purpose of securing a fair and impartial trial (at [69]); (d) an assessment of what is “expedient” (s 30(b)) in a particular case will involve a practical consideration of matters bearing upon the balance of convenience for the purpose of a jury trial (at [71]–[72]). Where an accused person seeks a change of venue upon the basis of adverse media publicity in the local area, he or she bears the onus of demonstrating to the court that a fair or unprejudiced trial cannot otherwise be had: R v Rawlinson (2013) 246 A Crim R 1; [2013] NSWSC 1722; BC201319199 at [10]; R v Dasilva [2015] NSWSC 1909; BC201513520 at [35]; Da Silva v R [2016] NSWCCA 40; BC201605196. In considering a change of venue application, on the basis of media publicity, the court should keep in mind that contemporary jurors are independent, and take seriously their oaths or affirmations to deal with a matter in accordance with the evidence — the days when juries were regarded as fragile, and open to the influence of what they may read in the media, are long gone: R v Jamal (2008) 72 NSWLR 258 at 261–2; [2008] NSWCCA 177; 191 A Crim R 1; BC200806771 at [17], [21]; Dupas v R (2010) 241 CLR 237 at 247–9; 267 ALR 1; [2010] HCA 20; BC201004003 at [26]–[29]; R v Dasilva at [41]–[42].

[2-s 31] Abolition of accused person’s right to make unsworn statement or to give unsworn evidence 31 Any rule of law, procedure or practice that permits a person who is charged with the commission of a criminal offence to make an unsworn statement or to give unsworn evidence in answer to the charge is abolished. [s 31 insrt Act 94 of 1999 s 4 and Sch 2[31], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[33], opn 7 July 2003] Editor’s note: Section 31 (previously s 95) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 404A of the Crimes Act 1900.

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Criminal Procedure

s 31

[2-s 31.1]

s 31

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

COMMENTARY ON SECTION 31 Unsworn statement by the accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 31.1]

[2-s 31.1] Unsworn statement by the accused Only a person who was charged with an offence before 10 June 1994 is entitled to make a statement from the dock. An accused may make an unsworn statement and then give evidence, but cannot do so after he has given or called evidence R v Attard [1970] 1 NSWR 750, unless a bona fide mistake has occurred: R v Shortus (1917) 17 SR (NSW) 66. Nor can he, after giving a statement, swear on oath that what he said in the statement was true: R v Tangmashuk (1986) 7 NSWLR 551. The statement must be oral: R v Morrison (1889) 10 LR (NSW) 197 although quaere whether it can be read: R v Tyford (1893) 14 LR (NSW) 51. If the accused gives evidence he can be cross-examined about his statement either at that trial or at a later trial: R v Lang [1965] NSWR 1313. The Crown can adduce evidence of the contents of the accused’s statement given at a previous trial whether or not he gives evidence at the later trial: Wong Kam-Ming v R [1980] AC 247; [1979] 1 All ER 939; Stewart v R (1921) 29 CLR 234; 27 ALR 173; BC2100042. An unsworn statement may be contradicted by evidence given at an earlier occasion: R v Coulter [1914] 31 WN (NSW) 21. Where the accused has given evidence on a voir dire as to the admissibility of a confession and the evidence has been admitted, the evidence on the voir dire may be used to rebut the statement given by the accused: Wong Kam-Ming v R [1980] AC 247; [1979] 1 All ER 939; R v Franklin (NSWCCA, Gleeson CJ, Handley JA and Studdert J, 60197/1989, 17 September 1990, unreported, BC9001999); R v Mansfield (NSWCCA, 17 February 1991, unreported). The unsworn statement has evidentiary value and can be used to prove facts in issue: Peacock v R (1911) 13 CLR 619; 17 ALR 566; [1911] HCA 66; BC1100014; R v Avery [1965] NSWR 1419 but it is not evidence in the same sense as statements made by witnesses on oath: Jackson v R (1918) 25 CLR 113; [1918] HCA 37. In practice considerable latitude is given to an accused person in giving a statement so that often it will not conform to the rules of evidence: R v Kilby (No 1) [1970] 1 NSWR 158. The statement of the accused is not admissible against a co-accused because the accused cannot be cross-examined: R v Simpson [1956] VLR 490; ALR 623; R v Evans [1962] SASR 303. The proper direction in regard to the unsworn statement is that “the jury should take the prisoner’s statement as prima facie a possible version of the facts and should consider it with the sworn evidence giving it such weight as it appears to be entitled to in comparison with such facts as are clearly established by the sworn evidence”: Peacock v R (1911) 13 CLR 619; 17 ALR 566; [1911] HCA 66; BC1100014. The jury can also be told: “That statement is something which the law requires you to take into consideration together with the evidence, but it is not in itself evidence in the same sense as a statement of a witness given upon oath; it is not subject in any way to test by cross-examination”: Jackson v R (1918) 25 CLR 113; [1918] HCA 37.

[2-s 32] Indemnities 32 (1) The Attorney General may, if of the opinion that it is appropriate to do so, grant a person an indemnity from prosecution (whether on indictment or summarily): (a) for a specified offence, or (b) in respect of specified acts or omissions. (2) If the Attorney General grants such an indemnity, no proceedings may thereafter be instituted or continued against the person in respect of the offence or the acts or omissions. (3) Such an indemnity may be granted conditionally or unconditionally.

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CRIMINAL PROCEDURE ACT 1986

[2-s 33]

(4) Such an indemnity may not be granted in respect of a summary offence that is not a prescribed summary offence, unless the Attorney General has consulted the Minister administering the enactment or instrument under which the offence is created. [s 32 renum Act 94 of 1999 s 4 and Sch 2[25], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[34], opn 7 July 2003]

COMMENTARY ON SECTION 32 Power of the Director of Public Prosecutions . . . . . . . . . . . . . . . . . . . Indemnities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 32.1] [2-s 32.5]

[2-s 32.1] Power of the Director of Public Prosecutions The Director may not grant an indemnity but may request that the Attorney General do so: see s 19(1)(a) of the Director of Public Prosecutions Act at [29-10,285]. See paragraph 17 of the Prosecution Guidelines of the NSW DPP at [28-25,085] concerning the grant of indemnities under s 32. [2-s 32.5] Indemnities As to the history of the prerogative of the Attorney General to give an immunity see R v D’Arrigo [1994] 1 Qd R 603 at 608; (1991) 58 A Crim R 71; R v Stead [1994] 1 Qd R 665 at 668–9; (1992) 62 A Crim R 40. An indemnity is not a pardon but an agreement not to prosecute (although not strictly binding): R v Milnes and Green (1983) 33 SASR 211; R v Georgiadis [1984] VR 1030 and see also R v McDonald [1980] 2 NZLR 102; [1983] NZLR 252 2 NZLR 102 (CA), NZLR 252 (PC). The matters which should be addressed in any request to the Attorney General for an immunity are set out in the NSW Director of Public Prosecutions Guideline 11 at [28-30,085]. Where the Crown has indemnified a witness, it should be the routine practice to show the indemnity to the person before his evidence is taken: R v MacDonald [1983] AC 252. The DPP’s Guidelines require that the prosecution reveal the existence of any indemnity to the defence before the witness gives evidence: see Guideline 10 at [28-30,085]. The court will give the immunity its widest meaning: R v Georgiadis, above. A court has no power to reject evidence of a witness simply because the witness had been indemnified, although there may be a discretion to reject that evidence but such a discretion could only be used in very exceptional circumstances: R v McLean and Funk; Ex parte A-G (Qld) [1991] 1 Qd R 231 at 242–6, 252–5; (1990) 47 A Crim R 240; applied in R v Chai (1992) 27 NSWLR 153; 60 A Crim R 305, disapproving R v Pipe (1966) 51 Cr App Rep 17. The jury should be told of the grant of an indemnity and what is its effect: R v Checconi (1988) 34 A Crim R 160; BC8801781 at 171; R v Falzon (No 2) [1993] 1 Qd R 618. An indemnity given by the Attorney General in respect not only of offences which had been committed but also of offences to be committed in the future has been severely criticised and a conviction based upon evidence of the indemnified witness quashed: R v D’Arrigo, above, and R v Stead, above. As to “use derivative use” indemnities and undertakings, see Rogan v Hyde (1995) 84 A Crim R 519; BC9506821.

[2-s 33] Undertakings 33 (1) The Attorney General may, if of the opinion that it is appropriate to do so, give to a person an undertaking that: (a) an answer that is given, or a statement or disclosure that is made, by the person in the course of giving evidence in specified proceedings, or (b) the fact that the person discloses or produces a document or other thing in specified proceedings, being proceedings for an offence against a law of the State (whether an indictable offence or a summary offence), will not be used in evidence against the person.

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Criminal Procedure

s 33

[2-s 33]

s 33

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

(2) If the Attorney General gives such an undertaking: (a) an answer that is given, or a statement or disclosure that is made, by the person in the course of giving evidence in the specified proceedings, or (b) the fact that the person discloses or produces a document or other thing in the specified proceedings, is not admissible in evidence against the person in any civil or criminal proceedings, other than proceedings in respect of the falsity of evidence given by the person. (3) Such an undertaking may be given conditionally or unconditionally. (4) Such an undertaking may not be given in respect of a summary offence that is not a prescribed summary offence, unless the Attorney General has consulted the Minister administering the enactment or instrument under which the offence is created. [s 33 renum Act 94 of 1999 s 4 and Sch 2[25], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[33], opn 7 July 2003]

COMMENTARY ON SECTION 33 Power of Director of Public Prosecutions . . . . . . . . . . . . . . . . . . . . . . . Effect of undertaking not to use evidence . . . . . . . . . . . . . . . . . . . . . . .

[2-s 33.1] [2-s 33.5]

[2-s 33.1] Power of Director of Public Prosecutions The Director has no power to grant an undertaking under this section but may request that the Attorney General do so see: s 19(1)(b) of the Director of Public Prosecutions Act 1986 at [29-10,285]. See paragraph 17 of the Prosecution Guidelines of the NSW DPP at [28-25,085] concerning the grant of undertakings under s 33. [2-s 33.5] Effect of undertaking not to use evidence The privilege against self-incrimination subsists even in the face of an indemnity against the use of the evidence of a witness, so that in order for the indemnity to effectively remove the privilege it must preclude resort to evidence discovered as a result of the use of the evidence: Registrar, Court of Appeal (NSW) v Craven (No 1) (1994) 126 ALR 668; 77 A Crim R 410; BC9403328 applying Sorby v Cth (1983) 152 CLR 281; 46 ALR 237; BC8300067. However it has been held that the Attorney General can bind himself in honour not to use the evidence notwithstanding that the area is not covered by s 33 such that the claim of privilege will be denied on the basis that there is no real or appreciable risk of a prosecution by reason of the giving of the evidence: Saffron v FCT (No 1) (1992) 109 ALR 695 at 700. See also Ganin Burden and Creswell v NSW Crime Commission (1993) 32 NSWLR 423; 70 A Crim R 417. As to “use derivative use” indemnities and undertakings, see Rogan v Hyde (1995) 84 A Crim R 519; BC9506821.

[2-s 34] Practice as to entering the dock 34 The Judge may order the accused person to enter the dock or other place of arraignment or may allow him or her to remain on the floor of the court, and in either case to sit down, as the Judge considers appropriate. [s 34 insrt Act 94 of 1999 s 4 and Sch 2[31], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[35], opn 7 July 2003] Editor’s note: Section 34 (previously s 93) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 400 of the Crimes Act 1900.

COMMENTARY ON SECTION 34 Practice as to accused entering the dock and standing when the jury and judge enter and depart the courtroom . . . . . . . . . . . . . . . . . . . .

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[2-s 34.1]

CRIMINAL PROCEDURE ACT 1986

[2-s 36.1]

[2-s 34.1] Practice as to accused entering the dock and standing when the jury and judge enter and depart the courtroom The history and proper construction of s 34 were considered in R v Dirani (No 7) [2018] NSWSC 945; BC201813258 in the context of unsuccessful applications by an accused person in a terrorist trial to be permitted during the trial to sit in the body of the courtroom and not the dock and to be excused from compliance with the obligation to stand at all times required of accused persons during a jury trial.

[2-s 35] Right to inspect depositions on trial 35 An accused person is entitled on his or her trial to inspect, without fee, all depositions taken against the person and returned to, or held by, the court before which he or she is on trial. [s 35 insrt Act 94 of 1999 s 4 and Sch 2[31], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[35], opn 7 July 2003] Editor’s note: Section 35 (previously s 94) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 403 of the Crimes Act 1900.

[2-s 36] Representation and appearance 36 (1) A prosecutor or accused person may appear personally or by an Australian legal practitioner or other person empowered by an Act or other law to appear for the prosecutor or accused person. [subs (1) am Act 120 of 2006 s 3 and Sch 3[1], opn 4 Dec 2006]

(2) A prosecutor who is a police officer may appear personally or by a person permitted by subsection (1) or by a police prosecutor. [s 36 insrt Act 119 of 2001 s 3 and Sch 1[37], opn 7 July 2003]

COMMENTARY ON SECTION 36 Representation of accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Representation of prosecutor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 36.1] [2-s 36.5]

[2-s 36.1] Representation of accused The section does not give the accused a right to be provided with counsel at public expense but a trial for a serious offence would normally be unfair where an indigent accused is not legally represented through no fault of his or her own: Dietrich v R (1992) 177 CLR 292; 109 ALR 385; BC9202663; Attorney-General (NSW) v Milat (1995) 37 NSWLR 370; BC9505404, where the extent of the principles and their relationship with the provision of legal aid are considered. The requirement that there be no fault on the part of the accused does not indicate that every instance of misbehaviour would automatically preclude an entitlement to a stay or that the power to grant a stay is excluded just because of some contributory fault on the part of the accused: Craig v SA (1995) 184 CLR 163; 131 ALR 595; [1995] HCA 58; BC9506437. What must be looked at is the reasonableness of the conduct of the accused in all the circumstances: R v Kennedy (1997) 94 A Crim R 341; BC9702759; (1997) 4 Crim LN 46 [712] where the decision in Craig v State of South Australia was considered. As to the right to “legal assistance of own choosing” under article 143(3)(d) of the International Covenant on Civil and Political Rights, see R v Sandford (1994) 33 NSWLR 172; BC9405309 where it was held that the right was intended only to indicate that the accused has the means to choose his own legal assistance rather than have it assigned to him or her, and the right is not an absolute one. An accused is not entitled to an adjournment when he unjustifiably withdrew instructions from counsel at the commencement of a trial: R v Greer (1992) 62 A Crim R 442; BC9201672. See also Frawley v R (1993) 69 A Crim R 208; 18 Crim LJ 165 where it was held that there was no miscarriage of justice where the accused was unrepresented by reason of his own conduct.

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Criminal Procedure

s 36

[2-s 36.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 36

There is no right to an adjournment where the accused has neglected to arrange representation although the trial judge should seriously consider whether to proceed with the trial: Small v R (1994) 33 NSWLR 575; 72 A Crim R 462; BC9405328. It is the responsibility of the accused to show that the absence of representation is through no fault of his or hers: see R v Batiste (1994) 35 NSWLR 437; 77 A Crim R 266; BC9403428; (1995) 2 Crim LN 6 [330]. The accused has no right to be assisted by a person who is not appearing for him or her (a “McKenzie friend”): Smith v R (1985) 159 CLR 532; 71 ALR 631; BC8501047; R v Burke [1993] 1 Qd R 166; (1991) 56 A Crim R 242. Clause 5 of the Criminal Procedure Regulation 2017 at [2-5045] provides for filing of a notice of appearance. See at [7-405] as to the unrepresented accused. [2-s 36.5] Representation of prosecutor Proceedings for indictable offence are generally conducted by the Director of Public Prosecutions and the Director is generally represented by a member of the office of the solicitor for public prosecutions or a Crown prosecutor. Generally see at [29-10,230] and as to Crown prosecutors at [29-5200] and following. Although an unqualified police prosecutor may be allowed to appear the “police prosecutor in a court of petty sessions is not, in relation to an informant, in a like position to that of a solicitor of a barrister preparing for litigation on behalf of his client”. Hence communications between a police prosecutor and his instructing officer are not privileged: Ex parte Dustings; Re Jackson (1967) 87 WN (Pt 1) (NSW) 98; [1968] 1 NSWR 257 at 262 per Walsh JA (CA). In Maddison v Goldrick [1976] 1 NSWLR 651 at 664–6, it was held that no legal professional privilege attached to a “police brief” where a police prosecutor was appearing for the informant as no solicitor-client relationship existed.

[2-s 36A] Representation and appearance in penalty notice matters 36A (1) In any criminal proceedings relating to an offence for which a penalty notice was issued under this or any other Act, the prosecutor of the offence may be represented and appear by a police prosecutor. (2) Nothing in this section: (a) requires a police prosecutor to represent or appear for any person, or (b) prevents any person from appearing personally, or being represented and appearing by an Australian legal practitioner or other person empowered by an Act or other law to appear for the person, in any proceedings. [s 36A insrt Act 40 of 2008 s 4 and Sch 2.1, opn 25 June 2008]

[2-s 37] Conduct of case 37 (1) The prosecutor’s case may be conducted by the prosecutor or by the prosecutor’s Australian legal practitioner or any other person permitted to appear for the prosecutor (whether under this or any other Act). [subs (1) am Act 120 of 2006 s 3 and Sch 3[4], opn 4 Dec 2006]

(2) The accused person’s case may be conducted by the accused person or by the accused person’s Australian legal practitioner or any other person permitted to appear for the accused person (whether under this or any other Act). [s 37 insrt Act 119 of 2001 s 3 and Sch 1[37], opn 7 July 2003; am Act 120 of 2006 s 3 and Sch 3[4], opn 4 Dec 2006]

[2-s 38] Hearing procedures to be as for Supreme Court 38 In any proceedings for an offence (other than in the Supreme Court for an indictable offence), the procedures and practice for the examination and

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CRIMINAL PROCEDURE ACT 1986

[2-s 40.1]

cross-examination of witnesses, and the right to address the court on the case in reply or otherwise, are, as far as practicable, to be conducted in accordance with Supreme Court procedure for the trial of an indictable offence. [s 38 insrt Act 119 of 2001 s 3 and Sch 1[37], opn 7 July 2003]

COMMENTARY ON SECTION 38 Trial procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 38.1]

[2-s 38.1] Trial procedures As to the procedures of a criminal trial before the District or Supreme Court see generally Trial Procedures at [7-001] and following. The scope of this section in relation to the procedures for making submissions and addresses in the Local Court was considered in Mason v Lyon [2005] NSWSC 804; BC200505736; (2005) 12 Crim LN 64 [1915]. The proper manner in which to conduct a voir dire hearing before a magistrate was discussed in Director of Public Prosecutions v Ridley (2015) 73 MVR 125; [2015] NSWSC 1478; BC201509786; 23(3) Crim LN [3654].

[2-s 39] Recording of evidence 39 (1) The evidence of each witness in criminal proceedings must be recorded. (2) Rules may be made for or with respect to the manner in which the evidence may be recorded and the authentication of evidence or of transcripts of evidence given in proceedings. [s 39 insrt Act 119 of 2001 s 3 and Sch 1[37], opn 7 July 2003]

[2-s 40] Adjournments generally 40 (1) A court may at any stage of criminal proceedings adjourn the proceedings generally, or to a specified day, if it appears to the court necessary or advisable to do so. (2) An adjournment may be in such terms as the court thinks fit. (3) A matter that is adjourned generally must be listed before the court or a registrar not later than 2 years after the adjournment. (4) Without limiting subsection (1), a court may, at the request of an accused person, adjourn criminal proceedings if it appears to the court that a variance between any process or document by which the proceedings were commenced and the evidence adduced in respect of the offence charged in that process or document is such that the accused person has been misled by the variance. [s 40 insrt Act 119 of 2001 s 3 and Sch 1[37], opn 7 July 2003]

COMMENTARY ON SECTION 40 Adjournment of proceedings on indictment . . . . . . . . . . . . . . . . . . . . .

[2-s 40.1]

[2-s 40.1] Adjournment of proceedings on indictment Whether or not an adjournment should be granted is a matter which lies within the discretion of the trial judge. The judge is not confined to the interests of the accused but the interests of justice as well: R v Cox [1960] VR 665, approved in R v Barca (NSWCCA, 17 August 1978, unreported). An appeal based upon a judge’s refusal to grant an adjournment will be allowed only where it has been established that the judge has erred in the proper exercise of discretion in accordance with the principles in House v R (1936) 55 CLR 499 at 504–505; 10 ALJR 202; BC3690121; Jamal v DPP [2013] NSWCA 355; BC201314135 at [52]. It is basic to the rules of procedural fairness that an accused must be given a reasonable opportunity to present his or her own case, which necessarily includes a reasonable opportunity to

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Criminal Procedure

s 40

[2-s 40.1]

s 40

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

prepare that case before being called upon to present it. The appearance that justice has been done is particularly important in a criminal trial, but nonetheless some limitation is required to be placed upon the right of an accused to delay the trial to prepare his or her case: R v Alexandroia (1995) 81 A Crim R 286 at 290; BC9505041; Jamal v DPP at [54]. A trial judge is entitled to take into account the strong public interest that, once fixed for hearing upon the basis that the parties were ready to proceed, a criminal trial should ordinarily proceed with expedition: R v Alexandroia at 291. The significance of this consideration has been reinforced by the enactment of the case management provisions in ss 134–149F of the Criminal Procedure Act 1986: Slotboom v R [2013] NSWCCA 18; BC201301009 at [36]. As to the approach to be taken where application for an adjournment is made by an unrepresented indigent accused charged with a serious offence, see Dietrich v R (1992) 177 CLR 292; 109 ALR 385; BC9202663 and annotations at [19-10,001]–[19-10,001.15]. See R (Cth) v Petroulias (No 11) [2007] NSWSC 533; BC200711112 where application for adjournment of a trial was made, not on a Dietrich basis, but to allow steps to be taken to ensure that monies were available to fund the defence. Where an adjournment is sought because of media publicity the judge must not only consider the importance of ensuring the accused a fair trial but also the necessity to have the trial heard expeditiously in the interests not only of the accused but of witnesses and in some cases the family of the victim: Murphy v R (1989) 167 CLR 94; 86 ALR 35. An application for an adjournment may be made before the day of the hearing in accordance with District Court Pt 53 r 10: see [2-12,060]. As to adjournments of summary proceedings see at [2-s 190.1].

[2-s 41] How accused person to be dealt with during adjournment 41 (1) A court may, if bail is not dispensed with or granted to an accused person for the period of an adjournment, remand the accused person to a correctional centre or other place of security during the adjournment. (2) The warrant of commitment may be signed by any Judge or authorised officer. (3) A Judge may at any time, by written notice to the parties, shorten or end an adjournment if the accused person is not in custody. [s 41 insrt Act 119 of 2001 s 3 and Sch 1[37], opn 7 July 2003]

[2-s 42] Witnesses in mitigation 42 (1) After convicting an accused person of an offence, and before passing sentence, the court may summon witnesses and examine them on oath in respect of any matter in mitigation of the offence. (2) The court may do so on application made by or on behalf of the Crown or by or on behalf of the accused person. [s 42 insrt Act 94 of 1999 s 4 and Sch 2[31], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[38], opn 7 July 2003] Editor’s note: Section 42 (previously s 100) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 424 of the Crimes Act 1900.

COMMENTARY ON SECTION 42 Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 42.1]

[2-s 42.1] Sentencing As to the practices and procedures for sentencing offenders see Sentencing Procedure at [5-001] and following.

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CRIMINAL PROCEDURE ACT 1986

[2-s 44.5]

[2-s 43] Restitution of property 43 (1) In any criminal proceedings in which it is alleged that the accused person has unlawfully acquired or disposed of property, the court may order that the property be restored to such person as appears to the court to be lawfully entitled to its possession. (2) Such an order may be made whether or not the court finds the person guilty of any offence with respect to the acquisition or disposal of the property. (3) Such an order may not be made in respect of: (a) any valuable security given by the accused person in payment of a liability to which the person was subject when the payment was made, or (b) any negotiable instrument accepted by the accused person as valuable consideration in circumstances in which the person had no notice, or cause to suspect, that the instrument had been dishonestly come by. [s 43 insrt Act 94 of 1999 s 4 and Sch 2[31], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[39], opn 7 July 2003] Editor’s note: Section 43 (previously s 126) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 438 of the Crimes Act 1900.

COMMENTARY ON SECTION 43 Restitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 43.1]

[2-s 43.1] Restitution As to restitution of property in police custody see at [2-s 318] and following. As to livestock, see at [2-s 324] and following.

[2-s 44] When case not to be proceeded with: accused person to be released from custody 44 (1) On deciding that no further proceedings are to be taken with respect to a person who is in custody on remand, whether or not the person has been committed for trial, the Attorney General or Director of Public Prosecutions may cause a certificate to that effect, in the form prescribed by the regulations, to be delivered to the Supreme Court. (2) On receipt of such a certificate, the Supreme Court may, by order, direct that the person to whom the certificate relates be released from custody. [s 44 insrt Act 94 of 1999 s 4 and Sch 2[31], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[39], opn 7 July 2003] Editor’s note: Section 44 (previously s 127) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 358 and the Third Schedule of the Crimes Act 1900.

COMMENTARY ON SECTION 44 Form of certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . No further proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 44.1] [2-s 44.5]

[2-s 44.1] Form of certificate See cl 114 of the Criminal Procedure Regulation 2017 at [2-5875] and Form 4 at [2-5955] for the prescribed form of certificate under s 44. [2-s 44.5] No further proceedings As to the power of prosecution to determine not to proceed by finding no bill see at [7-005].

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Criminal Procedure

s 44

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PART 1 — PRELIMINARY [Heading insrt Act 119 of 2001 s 3 and Sch 1[40], opn 7 July 2003]

[2-s 45] Application of Chapter and definitions 45 (1) This Chapter applies to or in respect of proceedings for indictable offences (other than indictable offences being dealt with summarily). (2) In this Chapter: Judge includes a Magistrate. Magistrate includes a Children’s Court Magistrate and any other person of a class prescribed for the purposes of this definition. [def am Act 107 of 2008 s 3 and Sch 29, opn 7 Apr 2009]

registrar means, for the purposes of Part 2: (a) in the case of committal proceedings before a Local Court Magistrate, a registrar of the Local Court, or (b) in the case of committal proceedings before a Children’s Court Magistrate, the Children’s Registrar appointed under the Children’s Court Act 1987. [def am Act 94 of 2007 s 3 and Sch 1.28, opn 6 July 2009] [s 45 insrt Act 119 of 2001 s 3 and Sch 1[41], opn 7 July 2003]

[2-s 46] Jurisdiction of courts 46 (1) The Supreme Court has jurisdiction in respect of all indictable offences. (2) The District Court has jurisdiction in respect of all indictable offences, other than such offences as may be prescribed by the regulations for the purposes of this section. [s 46 renum Act 94 of 1999 s 4 and Sch 2[9], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[42], opn 7 July 2003]

COMMENTARY ON SECTION 46 Jurisdiction of the District Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 46.1]

[2-s 46.1] Jurisdiction of the District Court The District Court has no jurisdiction in respect of offences within s 12 (treason and treason-related offences) and s 19A (murder) of the Crimes Act: cl 115, Criminal Procedure Regulation 2017 at [2-5880].

PART 2 — COMMITTAL PROCEEDINGS [Pt 2 insrt Act 119 of 2001 s 3 and Sch 1[43], opn 7 July 2003]

DIVISION 1 — COMMENCEMENT OF PROCEEDINGS

[2-s 47] Commencement of committal proceedings by court attendance notice 47 (1) Committal proceedings for an offence are to be commenced by the issue and filing of a court attendance notice in accordance with this Division.

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Criminal Procedure

CHAPTER 3 — INDICTABLE PROCEDURE [Heading insrt Act 119 of 2001 s 3 and Sch 1[40], opn 7 July 2003]

[2-s 47]

s 47

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

(2) A court attendance notice may be issued in respect of a person if the person has committed or is suspected of having committed an offence. (3) A court attendance notice may be issued in respect of any offence for which proceedings may be taken in this State, including an offence committed elsewhere than in this State. (4) Nothing in this Part affects any law or practice relating to indictments presented or filed in the Supreme Court or the District Court by the Attorney General or the Director of Public Prosecutions. (5) If an Act or a statutory rule provides for committal proceedings to be commenced otherwise than by issuing and filing a court attendance notice, the proceedings may be commenced in accordance with this Act. COMMENTARY ON SECTION 47 Commencing committal proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . Filing of documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 47.1] [2-s 47.5]

[2-s 47.1] Commencing committal proceedings “Committal proceedings” are defined in s 4. Committal proceedings commence on the date on which a court attendance notice is filed at a Local Court: s 53(1). As to the requirements of a court attendance notice: see at [2-s 50.1]. A court attendance notice can relate to only one offence: s 51. As to the jurisdiction of a court in the state to deal with offences committed outside the state see at Crimes Act Pt 1A at [8-s 10A] and following. As to the commencement of a private prosecution, see s 49. As to the law and practice relating to indictments presented and filed in the Supreme and District Court, see Trial Procedure at [7-100] and following. [2-s 47.5] Filing of documents concerning the filing of documents.

See r 8.7 of the Local Court Rules 2009 at [2-9845]

[2-s 48] Commencement of proceedings by police officer or public officer 48 If a police officer or public officer is authorised under section 14 of this Act or under any other law to commence committal proceedings, the officer may commence committal proceedings for an offence against a person by issuing a court attendance notice and filing the notice in accordance with this Division. [s 48 am Act 107 of 2006 s 3 and Sch 1, opn 29 Nov 2006]

[2-s 49] Commencement of private prosecutions 49 (1) If a person other than a police officer or public officer is authorised under section 14 of this Act or under any other law to commence committal proceedings against a person for an offence, the person may commence the proceedings by issuing a court attendance notice, signed by a registrar, and filing the notice in accordance with this Division. [subs (1) am Act 107 of 2006 s 3 and Sch 1, opn 29 Nov 2006]

(2) A registrar must not sign a court attendance notice if: (a) the registrar is of the opinion that the notice does not disclose grounds for the proceedings, or (b) the registrar is of the opinion that the notice is not in the form required by or under this Act, or

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CRIMINAL PROCEDURE ACT 1986

[2-s 50.1]

(c) the registrar is of the opinion that a ground for refusal set out in the rules applies to the notice. (3) If a registrar refuses to sign a court attendance notice proposed to be issued by any such person, the question of whether the court attendance notice is to be signed and issued is to be determined by a Magistrate on application by the person. COMMENTARY ON SECTION 49 Law Part Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Private prosecutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 49.0] Law Part Code

[2-s 49.0] [2-s 49.1]

The Law Part Code for s 49(3) is 51508.

[2-s 49.1] Private prosecutions As to the requirements of a court attendance notice see at [2-s 50.1]. The Director of Public Prosecutions has power to control proceedings for indictable offences and in particular can require a person who has commenced a prosecution to provide information: see at [29-10,275]; and can take over and carry on the proceedings or terminate them: see at [29-10,235]. See r 8.4 of the Local Court Rules 2009 at [2-9830] for grounds for a registrar to refuse to sign a court attendance notice. The operation of s 49 and the now repealed r 57 of the Local Courts (Criminal and Application Procedure) Rule 2003 (the predecessor to r 8.4 of the Local Court Rules 2009) was considered in Potier v Huber (2004) 148 A Crim R 399; [2004] NSWSC 720; BC200405049 where a challenge to a magistrate’s refusal to issue court attendance notices was rejected.

[2-s 50] Form of court attendance notice 50 (1) A court attendance notice must be in writing and be in the form prescribed by the rules. (2) The rules may prescribe one or more forms of court attendance notice. (3) A court attendance notice must do the following: (a) describe the offence, (b) briefly state the particulars of the alleged offence, (c) contain the name of the prosecutor, (d) require the accused person to appear before the Magistrate at a specified date, time and place, unless a warrant is issued for the arrest of the person or the person is refused bail, (e) state, unless a warrant is issued for the arrest of the person or the person is refused bail, that failure to appear may result in the arrest of the person or in the matter being dealt with in the absence of the person. [subs (3) am Act 99 of 2002 s 3 and Sch 1.2[1], opn 7 July 2003]

(4) The rules may prescribe additional matters to be included in court attendance notices. (5) A court attendance notice may describe an offence, act or other thing in any way that is sufficient under this Act for the purposes of an indictment or an averment in an indictment. COMMENTARY ON SECTION 50 Requirements of a court attendance notice . . . . . . . . . . . . . . . . . . . . . . Duplicity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[2-s 50.1] [2-s 50.5]

Criminal Procedure

s 50

[2-s 50.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 50

[2-s 50.1] Requirements of a court attendance notice As to the description of an offence in a court attendance notice, see at [2-s 11.1]. The offence may be described in the prescribed short form for the offence, see at [2-s 12]. As to the description of an offence in an indictment or an averment in an indictment, see s 16 and the annotations to that section. In particular there are provisions relating to the description of particular offences contained in Pt 3 of Sch 2. See r 3.2 of the Local Court Rules 2009 at [2-9370] concerning the approved form and contents of a court attendance notice commencing proceedings for an indictable offence. For all the approved form of court attendance notice see [2-11,5640]–[2-11,5650]. For the approved form of notice, see Forms at [2-5600] and following. In the course of the second reading speech for the Courts Legislation Miscellaneous Amendments Act 2002, which amended s 50(3)(b) and omitted s 51, Mr Moss, Parliamentary Secretary on behalf of the Attorney-General, said (NSW Hansard, Legislative Assembly, 23 October 2002): It was not intended that the Justices Act reform package change the law in relation to the contents of the initiating process. Therefore ss 50 and 175 will be amended to more closely reflect the language of the current law. Schedule 1.2[2] will amend ss 51 and 176 of the Criminal Procedure Act which provide that a court attendance notice may not relate to more than one offence. This restriction will cause significant problems for the police when they issue field court attendance notices. The benefits of being able to issue court attendance notices out in the field, without having to come to court to file the documents, would be lost if police had to issue multiple notices where a person was being charged with a number of offences. The bill will repeal those sections. [2-s 50.5] Duplicity A court attendance notice is not necessarily invalid because it is duplicitous either on its face or having regard to the evidence led in support of it: see at [2-s 16.30]. As to duplicity generally see at [2-s 16.20]. If there is duplicity arising from the evidence the magistrate may require the prosecutor to elect which evidence is being relied upon to support the charge: see Stanton v Abernathy (1990) 19 NSWLR 656; 48 A Crim R 16.

Court attendance notice to be for one matter only 51

[s 51 rep Act 99 of 2002 s 3 and Sch 1.2[2], opn 7 July 2003]

[2-s 52] Service of court attendance notices 52 (1) A court attendance notice issued by a police officer must be served by a police officer or prosecutor in accordance with the rules. [subs (1) am Act 107 of 2006 s 3 and Sch 1, opn 29 Nov 2006]

(2) A court attendance notice issued by a public officer must be served by a police officer, public officer or other person prescribed by the rules, in accordance with the rules. (3) A court attendance notice issued by a person other than a police officer or public officer must be served by a person prescribed by the rules in accordance with the rules. (4) A copy of a court attendance notice must be filed in the registry of a court in accordance with the rules. [subs (4) subst Act 107 of 2006 s 3 and Sch 1, opn 29 Nov 2006]

(5) [subs (5) rep Act 107 of 2006 s 3 and Sch 1, opn 29 Nov 2006]

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CRIMINAL PROCEDURE ACT 1986

COMMENTARY ON SECTION 52 Service of court attendance notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2 s 54.0]

[2-s 52.5]

[2-s 52.5] Service of court attendance notice See Pt 5 of the Local Court Rules 2009 at [2-9540] and following concerning service of notices.

[2-s 53] When proceedings commence 53 (1) All proceedings are taken to have commenced on the date on which a court attendance notice is filed in the registry of a relevant court in accordance with this Division. (2) [subs (2) rep Act 107 of 2006 s 3 and Sch 1, opn 29 Nov 2006] (3) Nothing in this section affects any other Act or law under which proceedings are taken to have commenced on another date.

[2-s 54] Attendance of accused person at proceedings 54 (1) A person who issues a court attendance notice may, at any time after the notice is issued and before the date on which the accused person is required to first attend before a Magistrate for the hearing of committal proceedings, apply for a warrant to arrest the accused person. (2) An authorised officer may, when a court attendance notice is issued by the registrar, or filed in the court, or at any time after then and before the matter is first before a Magistrate, issue a warrant to arrest the accused person if the authorised officer is satisfied there are substantial reasons to do so and that it is in the interests of justice to do so. (3) The rules may make provision for or with respect to matters that may be taken into account by an authorised officer in determining whether to issue a warrant under this section. (3A) If an accused person is not present at the day, time and place set down for the hearing of committal proceedings (including any day to which proceedings are adjourned), or absconds from the committal proceedings, the Magistrate may issue a warrant to arrest the accused person if the Magistrate is satisfied there are substantial reasons to do so and that it is in the interests of justice to do so. [subs (3A) insrt Act 130 of 2002 s 3 and Sch 6[1], opn 7 July 2003]

(4) A Magistrate or authorised officer before whom an accused person is brought on arrest on a warrant issued under this section may, if bail is not dispensed with or granted, issue a warrant: (a) committing the accused person to a correctional centre or other place of security, and (b) ordering the accused person to be brought before a Magistrate at the date, time and place specified in the order. (5) The Magistrate or authorised officer must give notice of the date, time and place to the prosecutor. COMMENTARY ON SECTION 54 Law Part Codes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[2 s 54.0] [2-s 54.1]

Criminal Procedure

s 54

[2 s 54.0]

s 54

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

[2 s 54.0] Law Part Codes The Law Part Code for s 54(1) is 51517. The Law Part Code for s 54(2) is 51518. The Law Part Code for s 54(3A) is 59957. [2-s 54.1] Warrants Provisions concerning arrest warrants are found in Pt 4 Div 2 at [2-s 235] and following. A warrant must be in a form prescribed by the rules, may be issued on any day of the week and need not be returnable at any particular time but continues in force until it is carried out. A person who is arrested on a warrant must be brought before a magistrate as soon as practicable: [2-s 239]. Editor’s note: on 30 April 2018 Divs 2–5 of Pt 2 of Ch 3 (ss 55–108) were removed by the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 No 55. These provisions can now be located, for a period of transition, immediately after the Criminal Procedure Act 1986 at [REP 2-s 55] and following.

DIVISION 2 — COMMITTAL PROCEEDINGS GENERALLY [Div 2 subst Act 55 of 2017 Sch 1[3], opn 30 Apr 2018]

[2-s 55] Outline of committal proceedings steps 55 Subject to this Part, the steps for committal proceedings are generally as follows: (a) committal proceedings are commenced by the issuing and filing of a court attendance notice, (b) a brief of evidence is served on the accused person by the prosecutor, (c) a charge certificate setting out the offences that are to be proceeded with is filed in the Local Court and served by the prosecutor on the accused person, (d) if the accused person is represented, 1 or more case conferences are held by the prosecutor and the legal representative for the accused person, (e) if the accused person is represented, a case conference certificate is filed in the Local Court, (f) the accused person pleads guilty or not guilty to each offence being proceeded with and the Magistrate commits the accused person for trial (if the accused person pleads not guilty) or for sentence (if the accused person pleads guilty). COMMENTARY ON SECTION 55 Committal proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The broad 2017 reforms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application of the 2017 reforms to committal proceedings . . . . . . . Local Court Practice Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 55.1] [2-s 55.5] [2-s 55.10] [2-s 55.15]

[2-s 55.1] Committal proceedings Major reforms to committal proceedings were made by the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (“the 2017 Act”) which commenced on 30 April 2018. In the second reading speech for the 2017 Act (Legislative Assembly, 11 October 2017), the Attorney General Mr Mark Speakman said that the “bill abolishes the substantive committal decision and committal hearings so that magistrates will no longer be required to consider the evidence and determine if there is a reasonable prospect that a jury, properly instructed, would convict the accused person of the offense. Instead, magistrates will need to be satisfied that the new steps certifying the charges and holding a case conference have been completed before committing the matter to a higher court for trial or sentence. The NSW Law Reform Commission

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CRIMINAL PROCEDURE ACT 1986

[2-s 55.15]

recommended that committal hearings be abolished because magistrates were exercising the discretion to discharge in only 1 per cent of cases. Under the reform, the prosecutor will perform a gatekeeping role earlier in the process by certifying which charges will proceed.” [2-s 55.5] The broad 2017 reforms Apart from reforms to committal proceedings, the Attorney General (in the second reading speech) explained further elements of the 2017 reforms: (a) The investigating agency that charged the accused person with the offence, usually the NSW Police Force or the Australian Federal Police, will provide a simplified brief of evidence to the NSW Director of Public Prosecutions(ODPP) or the Commonwealth Director of Public Prosecutions(CDPP); (b) A senior prosecutor in the ODPP or CDPP will review the evidence and file a charge certificate with the Local Court that confirms the charges that will proceed to trial and identifies any charges that should be withdrawn — this will reduce the likelihood that the charges will change closer to the trial date and provides certainty to the defence; (c) The prosecutor and the defence lawyer will then be required to have a case conference to discuss the case and to determine whether there are any offences to which the accused person is willing to plead guilty; (d) The legislation prescribes sentencing discounts given for the utilitarian value of guilty pleas by introducing a statutory sentencing discount scheme. The Attorney General stated that additional funding was being provided to the ODPP and Legal Aid (NSW) “to ensure the continuity of senior lawyers for both the prosecution and the defence from start to finish . . . Having the same senior prosecutor and defence lawyer in the case throughout its life will increase certainty about the charges, avoid last-minute changes in charges and pleas at trial and improve communications with victims about the process. The Attorney General said that: (a) These “measures are designed to remove the perverse incentives that currently operate and cause parties to delay entering a guilty plea and to strengthen the incentives for defendants to enter appropriate guilty pleas in the process. In addition, the improved case management under the reforms will ensure contested trials will be shorter and more efficient by narrowing the issues in dispute”; (b) “By frontloading the work so that prosecutors are involved early to certify charges and by encouraging early resolution of cases, we are improving victims’ experience in the process”. Provision is made for examination of prosecution witnesses (at ss 82–92 — see [2-s 82]ff) for the purposes of committal proceedings with the Attorney General observing that these “hearings may assist the parties to assess better the case against the accused and to facilitate further negotiations about the charges and possible offers to plead guilty”. [2-s 55.10] Application of the 2017 reforms to committal proceedings The amendments made by the 2017 Act do not apply to committal proceedings for an offence commenced before the 2017 amendments came into effect, with the former committal provisions applying to those proceedings: cl 98, Sch 2 at [2-Sch 2]. See s 47ff Criminal Procedure Act 1986 and annotations to those provisions at [2-s 47.1]. The amendments made by the 2017 Act extend to proceedings commenced on or after 30 April 2018, whether the offence is said to have been committed before or after that date: cl 100, Sch 2 at [2-Sch 2]. [2-s 55.15] Local Court Practice Notes See Local Court Practice Note Comm 2 (issued on 14 March 2018) at [28-15,203] for procedures to be adopted for committal proceedings in the Local Court pursuant to the Early Appropriate Guilty Plea Scheme. Local Court Practice Note Comm 1 at [28-15,200] continues to apply to committal proceedings governed by provisions before amendment by the 2017 Act.

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Criminal Procedure

s 55

[2-s 56]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 56

[2-s 56] Magistrate to conduct committal proceedings 56 (1) Committal proceedings are to be conducted by a Magistrate. (2) A Magistrate may fix days for the purpose of taking steps or doing other things in committal proceedings. COMMENTARY ON SECTION 56 Conduct of committal proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 56.1] [2-s 56.1] Conduct of committal proceedings See Local Court Practice Note Comm 2 (issued on 14 March 2018) at [28-15,203] concerning committal proceedings.

[2-s 57] Committal proceedings to be heard in open court 57 (1) Committal proceedings are to be heard as if in open court. (2) This section is subject to any other Act or law. (3) For the purpose only of facilitating the use of an electronic case management system established under the Electronic Transactions Act 2000 in committal proceedings, the hearing of a matter may be conducted in the absence of the public, with the consent of the parties to the proceedings concerned, if the matter: (a) arises after the first appearance of the accused person in committal proceedings, and (b) is of a procedural nature, and (c) does not require the resolution of a disputed issue, and (d) does not involve a person giving oral evidence. COMMENTARY ON SECTION 57 Open court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 57.1] Media access to court documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 57.5] [2-s 57.1] Open court A fundamental rule of the common law was that the administration of justice must take place in open court: John Fairfax & Sons Pty Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 476; Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 345–350. The test for making a non-publication or suppression order at common law was one of necessity — where it was really necessary to secure the proper administration of justice: John Fairfax & Sons Pty Ltd v Police Tribunal (NSW) at 476-477. See the Court Suppression and Non-publication Orders Act 2010 at [29-9001]ff. [2-s 57.5] Media access to court documents See s 314 at [2-s 314] concerning media access to court exhibits. In John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512; 220 ALR 248; [2005] NSWCA 101; BC200501968, consideration was given to express and implied powers to grant access to court documents with it being said that open justice was a principle rather than a right and that there was no common law to obtain access to a document filed in proceedings and retained as part of the court record.

[2-s 58] Application of other procedural provisions to committal proceedings 58 The following provisions of this Act apply, subject to any necessary modifications and to any provision of this Part, to committal proceedings conducted by a Magistrate in the same way as they apply to proceedings for offences before the Local Court:

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CRIMINAL PROCEDURE ACT 1986

[2-s 60.1]

(a) sections 30, 36, 37, 38, 39, 40, 41 and 44, (b) Part 3 (Attendance of witnesses and production of evidence in lower courts) of Chapter 4, (c) Part 4 (Warrants) of Chapter 4. Note. The Chief Magistrate may issue practice notes about the practice or procedure to be followed in criminal proceedings (see sections 26 and 27 of the Local Court Act 2007).

[2-s 59] Explanation of committal process and discount for guilty plea 59 (1) The Magistrate in committal proceedings must give the accused person an oral and written explanation of the following matters: (a) the committal process under this Part, including charge certification, case conferences and committal for trial or sentence, (b) the scheme under Part 3 of the Crimes (Sentencing Procedure) Act 1999 for the sentence discount that applies in the case of a guilty plea. (2) The oral and written explanation must be given: (a) if a case conference is required to be held, after the charge certificate is filed and before the first day on which a case conference is held, or (b) in any other case, after the charge certificate is filed and before the day on which the accused person is committed for trial or sentence. (3) The explanations are to include the matters prescribed by the regulations for the purposes of this section. (4) The Magistrate is not required to give an explanation of the scheme for the sentence discount in a case concerning an offence under a law of the Commonwealth. (5) A failure by a Magistrate to comply with this section does not affect the validity of anything done or omitted to be done by the Magistrate or any other person in or for the purposes of the committal proceedings. COMMENTARY ON SECTION 59 Explanations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Explanations of committal process . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 59.1] [2-s 59.5]

[2-s 59.1] Explanations See s 25A and following at [5-s 25A] for provisions concerning sentencing discounts for guilty pleas for indictable offences. [2-s 59.5] Explanations of committal process See cll 9A and 9B of the Criminal Procedure Regulation 2017 at [2-5067]–[2-5070] for the prescribed forms of oral and written explanations of the committal process.

[2-s 60] Application of Drug Court proceedings 60 An accused person may be dealt with under the Drug Court Act 1998 at any stage of committal proceedings despite any requirement of this Part. COMMENTARY ON SECTION 60 Drug Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 60.1]

[2-s 60.1] Drug Court In the second reading speech for the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (Legislative Assembly, 11 October 2017), the Attorney

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Criminal Procedure

s 60

[2-s 60.1]

s 60

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

General said that s 60 “reflects the intention that the reform is not intended to change any of the important work done by the Drug Court of New South Wales” and that the addition of s 25F(6) Crimes (Sentencing Procedure) Act 1999 at [5-s 25F] “will make clear that the Drug Court may apply a 25 per cent discount to an offender who is referred to the program before committal and pleads guilty as part of the condition for entering the program”.

DIVISION 3 — DISCLOSURE OF EVIDENCE [Div 3 subst Act 55 of 2017 Sch 1[3], opn 30 Apr 2018]

[2-s 61] Requirement to disclose evidence 61 (1) The prosecutor must, after the commencement of committal proceedings and on or before any day specified by order by the Magistrate for that purpose, serve or cause to be served on the accused person a brief of evidence relating to each offence the subject of the proceedings. (2) This Division is subject to, and does not affect the operation of, section 15A of the Director of Public Prosecutions Act 1986 or any other law or obligation relating to the provision of material to an accused person by a prosecutor. Note. Examples of such a law are laws about privilege and immunity in relation to evidence.

[2-s 62] Matters to be disclosed in brief of evidence 62 (1) The brief of evidence must contain the following: (a) copies of all material obtained by the prosecution that forms the basis of the prosecution’s case, (b) copies of any other material obtained by the prosecution that is reasonably capable of being relevant to the case for the accused person, (c) copies of any other material obtained by the prosecution that would affect the strength of the prosecution’s case. (2) The material contained in the brief of evidence may be, but is not required to be, in the form required under Part 3A of Chapter 6 or in any particular form otherwise required for the material to be admissible as evidence. (3) The regulations may specify requirements for material included in a brief of evidence. (4) The Minister is to consult with the Minister for Police before a regulation is made under subsection (3). COMMENTARY ON SECTION 62 Matters to be disclosed in brief of evidence . . . . . . . . . . . . . . . . . . . . .

[2-s 62.1]

[2-s 62.1] Matters to be disclosed in brief of evidence In the second reading speech (Legislative Assembly, 11 October 2017), the Attorney General explained that the definition in s 62 includes “evidence relevant to the defence case and evidence relevant to the strength of the prosecution case, consistent with the current duty of disclosure expressed in the guidelines” of the DPP with the intent of this definition of a brief of evidence being to “ensure sufficient disclosure for the prosecution to properly assess a case and to certify the charges, and for the defence to make informed decisions about the case and to determine whether to enter a guilty plea”. With respect to s 62(2) which provides that material does not have to be in admissible form, the Attorney General said that “there will not be a less robust investigation, nor will there be changes to best practice for the collection of evidence” with the reforms being “about ensuring that the

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CRIMINAL PROCEDURE ACT 1986

[2-s 65]

brief can be served earlier by reducing some of the formal requirements around how evidence is to be presented that currently contribute to delay in criminal cases.” The Attorney General said, “Given a magistrate will no longer be considering the evidence before committal, it is no longer necessary that the entire contents of the brief of evidence comply with these requirements to be admissible as evidence. However, the senior prosecutor in the ODPP or the CDPP may require evidence in an admissible form to properly assess the case and to certify the charges. A protocol between the NSW Police Force and the DPP will provide guidance on a case-by-case basis as to when the alternative, simpler form will be sufficient”. The DPP (NSW) and the Commissioner of the NSW Police Force have entered into a written agreement dated 27 April 2018 concerning the content and service of an early appropriate guilty plea brief and charge certification. The Agreement may be found at [28-37,005].

[2-s 63] Additional material to be disclosed 63 (1) The prosecutor must serve or cause to be served on the accused person copies of material obtained by the prosecutor and not included in the brief of evidence, if the material is of a kind required to be included in the brief of evidence. (2) The prosecutor must serve or cause the material to be served as soon as practicable after it is obtained by the prosecutor. COMMENTARY ON SECTION 63 Additional material . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 63.1]

[2-s 63.1] Additional material In the second reading speech (Legislative Assembly, 11 October 2017), the Attorney General said that s 63 “creates a statutory requirement for ongoing disclosure of any material that is received after the brief of evidence has been served”.

[2-s 64] Exceptions to requirement to provide copies of material 64 (1) The prosecutor is not required to include a copy of a thing required to be provided under this Division, or to serve or cause it to be served, if: (a) it is impossible or impractical to copy the thing, or (b) the accused person agrees to inspect the thing in accordance with this section. (2) However, in that case the prosecutor is: (a) to serve or caused to be served on the accused person a notice specifying a reasonable time and place at which the thing may be inspected or other reasonable means by which the thing is to be provided for inspection, and (b) to allow the accused person a reasonable opportunity to inspect each thing referred to in the notice. DIVISION 4 — CHARGE CERTIFICATES [Div 4 subst Act 55 of 2017 Sch 1[3], opn 30 Apr 2018]

[2-s 65] Prosecutors who may exercise charge certificate and case conference functions 65 The functions of a prosecutor under this Division and Division 5 (which relates to case conferences) may be exercised only by the following persons: (a) the Director of Public Prosecutions or the Attorney General,

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Criminal Procedure

s 65

[2-s 65]

s 65

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

(b) in the case of committal proceedings to which this Division applies because of section 79 of the Judiciary Act 1903 of the Commonwealth, any of the following: (i) a person holding an equivalent office under the Commonwealth, (ii) a special prosecutor appointed under an Act of the Commonwealth, (iii) a person authorised under Commonwealth legislation to exercise the functions of a person referred to in subparagraph (i) or (ii), (iv) a person authorised by an arrangement made with a person referred to in subparagraph (i) or (ii) to exercise the functions of that person, (c) a legal representative of a person referred to in paragraph (a) or (b), (d) any other person prescribed by the regulations for the purposes of this section. Note. The effect of this provision is to prevent any other person from being able to complete the steps required to be taken by a prosecutor for the committal proceedings that are set out in Divisions 4 and 5 of this Part. COMMENTARY ON SECTION 65 Persons to exercise functions of prosecutor . . . . . . . . . . . . . . . . . . . . .

[2-s 65.1]

[2-s 65.1] Persons to exercise functions of prosecutor See cl 9C of the Criminal Procedure Regulation 2017 at [2-5073] with respect to prosecutors who may exercise charge certificate and case conference functions.

[2-s 66] Charge certificates 66 (1) A charge certificate is a document in the form prescribed by the regulations and signed by the prosecutor that: (a) relates to the offences specified in a court attendance notice for the committal proceedings, and (b) specifies the offences that are to be the subject of the proceedings against the accused person, and (c) sets out the details of each of those offences in a way that is sufficient under this Act for the purposes of an indictment or an averment in an indictment, and (d) specifies any back up or related offences (within the meaning of section 165) that are proposed to be the subject of a certificate under section 166(1) relating to charges against the accused person, and (e) if applicable, confirms that proceedings against the accused person for other specified offences are no longer being proceeded with, and (f) contains any other matters prescribed by the regulations for the purposes of this section. (2) The prosecutor must certify in the certificate that: (a) the evidence available to the prosecutor is capable of establishing each element of the offences that are to be the subject of the proceedings against the accused person, and (b) in the case of an offence other than an offence under the law of the Commonwealth or an offence prosecuted by a Commonwealth prosecutor, the prosecutor has received and considered a certificate under section 15A of the Director of Public Prosecutions Act 1986 relating to that offence. [subs (2) am Act 10 of 2019 Sch 1 item 1.9[1], opn 26 Sep 2019]

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CRIMINAL PROCEDURE ACT 1986

[2-s 67.1]

(2A) In subsection (2), Commonwealth prosecutor means a person referred to in section 65(b) or a legal representative of a person referred to in that paragraph. [subs (2A) insrt Act 10 of 2019 Sch 1 item 1.9[2], opn 26 Sep 2019]

(3) Subsections (1) and (2) do not limit the matters that may be included by the regulations in the prescribed form of charge certificate. COMMENTARY ON SECTION 66 Charge certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 66.1]

[2-s 66.1] Charge certificates Clause 9D of the Criminal Procedure Regulation 2017 at [2-5075] provides that, for the purpose of s 66(1) of the Act, a charge certificate must be in Form 1A to the Regulation at [2-5967].

[2-s 67] Charge certificate must be filed 67 (1) A charge certificate must be filed by the prosecutor in the registry of the Local Court, and served or caused to be served on the accused person, not later than the day set by order by the Magistrate. (2) The day must: (a) be set after the service of the brief of evidence in the committal proceedings, and (b) be not later than 6 months after the first return date for a court attendance notice in the committal proceedings. (3) However, the Magistrate may set a day for the filing of a charge certificate that is later than 6 months after the first return date for a court attendance notice in the committal proceedings: (a) with the consent of the accused person, or (b) if it is in the interests of justice to do so. (4) In determining whether or not it is in the interests of justice to set a later day, the Magistrate is to consider the complexity of the matters the subject of the proceedings. This subsection does not limit the matters that may be considered by the Magistrate. (5) If the prosecutor determines that an offence other than an offence specified in the charge certificate filed by the prosecutor is to be the subject of the proceedings against the accused person, the prosecutor must file in the registry of the Local Court, and serve or cause to be served on the accused person, an amended charge certificate before the accused person is committed for trial or sentence. COMMENTARY ON SECTION 67 Filing of charge certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 67.1]

[2-s 67.1] Filing of charge certificate Local Court Practice Note Comm 2 (issued 14 March 2018) at [28-15,203] provides for the filing of a charge certificate. In the second reading speech (Legislative Assembly, 11 October 2017), the Attorney General observed that the six month time limit on filing the charge certificate (which can be extended by a magistrate by consent or if it is in the interests of justice to do so) “should only be exceeded in exceptional and complex cases where there are legitimate operational reasons for the brief of evidence taking a longer time to prepare.”

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Criminal Procedure

s 67

[2-s 68]

s 68

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

[2-s 68] Failure to file charge certificate 68 (1) This section applies if the prosecutor fails to file and serve, or cause to be served, a charge certificate before: (a) the day that is 6 months after the first return date for a court attendance notice in the committal proceedings, or (b) any later day set by the Magistrate for doing those things. (2) The Magistrate must: (a) discharge the accused person as to any offence the subject of the committal proceedings, or (b) if the Magistrate thinks it appropriate in the circumstances of the case, adjourn the committal proceedings to a specified time and place. (3) In determining what action to take, the Magistrate is to consider the interests of justice. (4) If a warrant has been issued for the arrest of the accused person as a result of a failure to appear at the committal proceedings: (a) a Magistrate is not required to take any action under this section until the accused person is brought before the Magistrate, and (b) the period of 6 months specified in subsection (1)(a) is taken to be extended by the number of days between the issue of the warrant and the day the accused person is so brought before the Magistrate. Note. The Magistrate may extend the time for filing a charge certificate at any time under section 67. COMMENTARY ON SECTION 68 Failure to file charge certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 68.1]

[2-s 68.1] Failure to file charge certificate In the second reading speech (Legislative Assembly, 11 October 2017), the Attorney General noted that the combination of ss 67 and 68 “ensure that the prosecutor moves swiftly to certify the charges and they provide certainty so that case conferencing can commence”.

DIVISION 5 — CASE CONFERENCES [Div 5 subst Act 55 of 2017 Sch 1[3], opn 30 Apr 2018]

[2-s 69] Exceptions to requirements for case conference procedures 69 This Division does not apply to an accused person in committal proceedings if the accused person: (a) is not, or ceases to be, represented by an Australian legal practitioner, or (b) pleads guilty to each offence that is being proceeded with and the pleas are accepted by the Magistrate before a case conference is held, or (c) is committed for trial under Division 7.

[2-s 70] Case conferences to be held 70 (1) A case conference is to be held in accordance with this Division. (2) The principal objective of the case conference is to determine whether there are any offences to which the accused person is willing to plead guilty. (3) A case conference may also be used to achieve the following objectives:

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CRIMINAL PROCEDURE ACT 1986

[2-s 72]

(a) to facilitate the provision of additional material or other information which may be reasonably necessary to enable the accused person to determine whether or not to plead guilty to 1 or more offences, (b) to facilitate the resolution of other issues relating to the proceedings against the accused person, including identifying key issues for the trial of the accused person and any agreed or disputed facts. (4) The case conference is to be held after the filing of the charge certificate by the prosecutor. (5) More than one case conference may be held. (6) A further case conference may be, but is not required to be, held after the filing of an amended charge certificate by the prosecutor.

[2-s 71] Case conference procedures 71 (1) A case conference is to be held between the prosecutor and the accused person’s legal representative in the committal proceedings. (2) The initial case conference for the purposes of this Division must be held in person or by audio visual link. Any subsequent case conference may also be held by telephone. (3) The Magistrate may order that an initial case conference be held by telephone if the Magistrate is satisfied that there are exceptional circumstances that make it impracticable to hold the conference in person or by audio visual link. (4) The regulations may make provision for or with respect to case conferences, including the attendance of the accused person at a case conference. (5) In this section: audio visual link means facilities (including closed-circuit television or other electronic means of communication) that enable audio and visual communication between persons at different places. COMMENTARY ON SECTION 71 Case conferences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Availability and attendance of accused person at case conference .

[2-s 71.1] [2-s 71.5]

[2-s 71.1] Case conferences In the second reading speech (Legislative Assembly, 11 October 2017), the Attorney General observed that the case conference must have a level of formality “because experience from previous case conferencing trials tells us that unless the case conference is a formal, structured, face-to-face event, it is less effective . . . The accused is expected to be available to give contemporaneous instructions and to participate in the case conference as required to ensure that the accused person understands the seriousness of the event”. [2-s 71.5] Availability and attendance of accused person at case conference See cl 9E of the Criminal Procedure Regulation 2017 at [2-5078] with respect to the availability of accused persons to give instructions for the purposes of a case conference and clause 9F at [2-5080] concerning the attendance of accused persons at case conferences.

[2-s 72] Obligations of legal representative of accused 72 (1) The accused person’s legal representative is to seek to obtain the accused person’s instructions concerning the matters to be dealt with in the case conference before participating in the case conference.

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Criminal Procedure

s 72

[2-s 72]

s 72

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

(2) The accused person’s legal representative must explain the following matters to the accused person before the case conference certificate is completed: (a) the effect of the scheme for the sentencing discount applied under Part 3 of the Crimes (Sentencing Procedure) Act 1999 for a plea of guilty to an offence, (b) the penalties applicable to the offences certified in the charge certificate and to any other offences the subject of offers made by the accused or the prosecutor in the committal proceedings, (c) the effect on the applicable penalty if the accused person were to plead guilty to any offence at different stages of proceedings for the offence. (3) Subsection (2) applies only in respect of an offence to which Division 1A of Part 3 of the Crimes (Sentencing Procedure) Act 1999 applies. [subs (3) insrt Act 10 of 2019 Sch 1 item 1.9[3], opn 26 Sep 2019]

COMMENTARY ON SECTION 72 Obligations of defence legal representatives . . . . . . . . . . . . . . . . . . . . .

[2-s 72.1]

[2-s 72.1] Obligations of defence legal representatives In the second reading speech (Legislative Assembly, 11 October 2017), the Attorney General explained the purpose of s 72 as being to ensure that the position of the accused person at the case conference was taken “fully informed of the consequences” with this helping “to mitigate the risk of late changes of plea after committal”.

[2-s 73] Joint accused 73 (1) If the accused person has been charged jointly with any other person with the offence concerned, a separate case conference is to be held for each of the co-accused. However, a joint case conference may be held for 2 or more co-accused with the consent of the prosecutor and each of the co-accused. (2) A joint case conference may be held only if a charge certificate has been filed for each of the co-accused.

[2-s 74] Case conference certificate must be completed and filed 74 (1) The Magistrate is to make an order setting the day on or before which the case conference certificate is to be filed. (2) If more than 1 case conference is held, the case conference certificate is to be filed after all the case conferences are completed. (3) The prosecutor and the legal representative of the accused person must ensure that a case conference certificate that complies with this Division is completed and signed on or before the day set by the Magistrate for filing the certificate. [subs (3) am Act 25 of 2018 Sch 1 item 1.7, opn 30 Apr 2018]

(4) The prosecutor must ensure that the case conference certificate is filed on or before the day set by the Magistrate. (5) A prosecutor or legal representative of an accused person is not required to comply with this section if all the offences to which the proceedings relate— (a) are to be dealt with summarily, or

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CRIMINAL PROCEDURE ACT 1986

[2-s 75]

(b) are, for any other reason, not proceeding for committal by the Magistrate of the accused person for trial or sentence. [subs (5) insrt Act 10 of 2019 Sch 1 item 1.9[4], opn 26 Sep 2019]

[2-s 75] Contents of case conference certificate 75 (1) The case conference certificate is to be in the form prescribed by the regulations and is to certify as to the following matters: (a) the offence or offences with which the accused person had been charged before the case conference and which the prosecution had specified in the charge certificate as offences that will be proceeding or are the subject of a certificate under section 166, (b) any offers by the accused person to plead guilty to an offence specified in the charge certificate or to different offences, (c) any offers by the prosecution to the accused person to accept guilty pleas to an offence specified in the charge certificate or to different offences, (d) whether the accused person or prosecution has accepted or rejected any such offers, (e) the offence or offences for which the prosecution will seek committal for trial or sentence, (f) any back up or related offence or offences (within the meaning of section 165) that are proposed to be the subject of a certificate under section 166(1) relating to charges against the accused person, (g) if an offer made to or by the accused person to plead guilty to an offence has been accepted — details of the agreed facts on the basis of which the accused person is pleading guilty and details of the facts (if any) in dispute, (h) any offences with which the accused person has been charged to which the accused person has offered to plead guilty and agreed to ask the court to take into account under section 33 of the Crimes (Sentencing Procedure) Act 1999, (i) whether or not the prosecutor has notified the accused person of an intention to make a submission to the sentencing court that the discount for a guilty plea should not apply or should be reduced in relation to a particular offence with which the accused person is charged, (j) any other matters prescribed by the regulations for the purposes of this section. (2) A case conference certificate must also contain: (a) a declaration by the legal representative of the accused person that the legal representative has explained to the accused person the matters specified in section 72(2), and (b) if the accused person does not intend to plead guilty to an offence, a declaration by the accused person that the legal representative has explained to the accused person the matters specified in section 72(2). (3) A failure by an accused person to make a declaration under this section does not affect the validity of anything done or omitted to be done by any other person in or for the purposes of the committal proceedings. (4) A case conference certificate must certify as to all the matters of the kind referred to in subsection (1) that occur before the certificate is filed, including any written offers of a kind referred to in subsection (1) that were made by the accused person or the prosecutor, and served on the prosecutor or accused person, before or after any case conference was held.

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Criminal Procedure

s 75

[2-s 75.1]

s 75

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

COMMENTARY ON SECTION 75 Case conference certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 75.1]

[2-s 75.1] Case conference certificates Clause 9G of the Criminal Procedure Regulation 2017 at [2-5082] provides for the form of a case conference certificate which must be in Form 1B of the Regulation at [2-5969].

[2-s 76] Failure to complete case conference obligations 76 (1) This section applies where the Magistrate is satisfied that a case conference certificate has not been filed by the day set by the Magistrate. (2) If a Magistrate is satisfied that the case conference certificate has not been filed because of an unreasonable failure by the prosecutor to participate in a case conference or to complete or file a case conference certificate, the Magistrate may: (a) discharge the accused person as to any offence the subject of the committal proceedings, or (b) adjourn the committal proceedings to a specified time and place. (3) If a Magistrate is satisfied that the case conference certificate has not been filed because of an unreasonable failure by the legal representative of the accused person to participate in a case conference or complete a case conference certificate, the Magistrate may: (a) commit the accused person for trial or sentence as if a case conference were not required to be held, or (b) adjourn the committal proceedings to a specified time and place. (4) In determining whether to take action under this section, the Magistrate is to consider the interests of justice. (5) This section does not apply if the case conference certificate has not been filed in the circumstances set out in section 74(5). [subs (5) insrt Act 10 of 2019 Sch 1 item 1.9[5], opn 26 Sep 2019]

[2-s 76A] Recordings complainants 76A

of

interviews

with

domestic

violence

[s 76A insrt Act 83 of 2014 Sch 1[4], opn 1 June 2015; rep Act 55 of 2017 Sch 1[3], opn 30 Apr

2018]

[2-s 77] Further offers 77 (1) This section applies to an offer (a plea offer) if: (a) the offer is made by the accused person or the prosecutor after the filing of the case conference certificate in committal proceedings, and before the accused person is committed for trial or sentence, and (b) the offer is an offer of a kind that would have been required to be included in a case conference certificate if it had been made before the filing of the certificate, and (c) the offer is made in writing and served on the other party, and (d) the offer is filed in the registry of the Local Court. (2) A plea offer is, for all purposes, to be treated as if it formed part of the case conference certificate.

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CRIMINAL PROCEDURE ACT 1986

[2-s 79A]

(3) A plea offer is to be annexed to the case conference certificate in the committal proceedings.

[2-s 78] Case conference certificate and other evidence not admissible in other proceedings 78 (1) Case conference material is not admissible in any proceedings before a court, tribunal or body. (2) However, a case conference certificate is not inadmissible in the following proceedings: (a) in relevant sentencing proceedings in accordance with Part 3 of the Crimes (Sentencing Procedure) Act 1999, (b) in relevant sentencing proceedings for an offence under Commonwealth law, (c) in proceedings for an appeal against a sentence under the Criminal Appeal Act 1912, (d) in proceedings for an appeal under the Crimes (Appeal and Review) Act 2001 on a question of law arising from an order made by a Magistrate in committal proceedings or an appeal under section 5 or Division 2 or 3 of Part 7 of that Act, (e) in proceedings after committal for sentence relating to an application by the accused person to reverse the person’s plea to not guilty, (f) in proceedings brought by a designated local regulatory authority against a lawyer under section 300 of the Legal Profession Uniform Law (NSW). (3) Any part of a case conference certificate cannot be required to be produced under a subpoena or request issued in any proceedings before any court, tribunal or body (other than in proceedings referred to in subsection (2)). (4) A sentencing court or a court determining an appeal against a sentence must refuse to admit evidence of any case conference certificate if any provisions of this Part with respect to the holding of the conference or the preparation of the certificate have not been complied with, unless it is satisfied that it is in the interests of justice to admit the evidence. (5) In this section: case conference material means: (a) a case conference certificate, or (b) evidence of anything said between the parties, or of any admission made, during a case conference, or (c) evidence of anything said between the parties, or of any admission made, during negotiations after a case conference concerning a plea to be made by, or offers made to or by, an accused person.

[2-s 79] Confidentiality of case conference certificate matters 79 The matters that are specified in a case conference certificate are to be treated as confidential. Note. Matters in a plea offer are taken to be part of a case conference certificate (see section 77).

[2-s 79A] Form and requirements for recorded statements 79A

[s 79A insrt Act 83 of 2014 Sch 1[5], opn 1 June 2015; rep Act 55 of 2017 Sch 1[3], opn 30 Apr

2018]

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Criminal Procedure

s 79A

[2-s 80]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 80

[2-s 80] Prohibition on publication of case conference material 80 (1) A person must not publish, or permit a person to publish, any case conference material. Maximum penalty: (a) in the case of an individual — 20 penalty units, or (b) in the case of a body corporate — 100 penalty units. (2) In this section: publish means disseminate or provide public access to one or more persons by means of the internet, radio, television or other media.

[2-s 81] Certain matters not taken to be pre-trial disclosures 81 The disclosure of any information during or in relation to a case conference held for the purposes of this Division or a plea offer is not, for the purposes of section 22A of the Crimes (Sentencing Procedure) Act 1999, a pre-trial disclosure. Note. Section 22A of the Crimes (Sentencing Procedure) Act 1999 enables a court to impose a lesser penalty than it would otherwise impose on an offender who was tried on indictment, having regard to the degree to which the defence made pre-trial disclosures. DIVISION 6 — EXAMINATION OF PROSECUTION WITNESSES [Div 6 insrt Act 55 of 2017 Sch 1[3], opn 30 Apr 2018]

[2-s 82] Magistrate may direct witness to attend 82 (1) The Magistrate may, on the application of the prosecutor or the accused person, direct the attendance at the committal proceedings of a person whose evidence is referred to in the brief of evidence provided under Division 3 or who has been referred to in other material provided by the prosecution to the accused person. (2) The Magistrate may hold a hearing to determine an application under this section and may require the prosecutor or the accused person to make submissions in relation to the application. (3) An application may be made only after the charge certificate has been filed in the committal proceedings. (4) The Magistrate must give the direction if an application is made by the accused person or the prosecutor and the other party consents to the direction being given. (5) In the case of any other application, the Magistrate may give a direction only if satisfied that there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence. The regulations may make provision for or with respect to the determination of substantial reasons under this subsection. (6) For the purposes of determining whether to give a direction, the Magistrate may consider any material (whether or not it is in a form required for the material to be admissible as evidence). (7) A direction may be withdrawn only: (a) on the application, or with the consent, of the accused person, or (b) on the application of the prosecutor, if the accused person fails to appear on a day at which a person has been directed to appear to give evidence.

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CRIMINAL PROCEDURE ACT 1986

COMMENTARY ON SECTION 82 Examination of prosecution witnesses . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 83]

[2-s 82.1]

[2-s 82.1] Examination of prosecution witnesses In the second reading speech (Legislative Assembly, 11 October 2017), the Attorney General observed that ss 82–92 restructured previous provisions about calling a prosecution witness to give evidence in committal proceedings and that “these hearings may assist the parties to assess better the case against the accused and to facilitate further negotiations about the charges and possible offers to plead guilty”.

[2-s 83] Witnesses who cannot be directed to attend 83 (1) A direction may not be given so as to require the attendance of the complainant in committal proceedings for a prescribed sexual offence if the complainant is a cognitively impaired person (within the meaning of Part 6 of Chapter 6). (2) A direction may not be given so as to require the attendance of the complainant in committal proceedings for a child sexual assault offence if the complainant: (a) was under the age of 16 years: (i) on the earliest date on which, or (ii) at the beginning of the earliest period during which, any child sexual assault offence to which the proceedings relate was allegedly committed, and (b) is currently under the age of 18 years. (3) For the purposes of subsection (2): child sexual assault offence means: (a) a prescribed sexual offence, or (b) an offence that, at the time it was committed, was a child sexual assault offence for the purposes of subsection (2), or (c) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in paragraph (a) or (b), or (d) an offence under any law of the Commonwealth that corresponds to an offence referred to in paragraph (a), (b) or (c) and that is prescribed by the regulations. complainant, in relation to any proceedings, means the person, or any of the persons, against whom a prescribed sexual offence with which the accused person stands charged in those proceedings is alleged to have been committed, and includes: (a) in relation to an offence under section 80E of the Crimes Act 1900, the person who is alleged to have been the subject of sexual servitude, and (b) in relation to an offence under section 91D, 91E or 91F of the Crimes Act 1900, the person under the age of 18 years who is alleged to have participated in an act of child prostitution, and (c) in relation to an offence under section 91G of the Crimes Act 1900, the person under the age of 18 years who is alleged to have been used for the production of child abuse material, and (d) in relation to an offence under any law of the Commonwealth that corresponds to an offence referred to in paragraph (a), (b) or (c) and that is prescribed by the regulations — the person referred to in the relevant paragraph. [subs (3) am Act 88 of 2018 Sch 5[2], [3], opn 1 Dec 2018]

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Criminal Procedure

s 83

[2-s 84]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 84

[2-s 84] Victim witnesses, sexual offence witnesses and vulnerable witnesses generally not to be directed to attend 84 (1) A direction may not be given so as to direct the attendance of an alleged victim of an offence involving violence that is the subject of the committal proceedings (even if the parties to the proceedings consent to the attendance) unless the Magistrate is satisfied that there are special reasons why the alleged victim should, in the interests of justice, attend to give oral evidence. (1A) In committal proceedings for an offence involving violence, a direction may not be given so as to direct a vulnerable person whose evidence is referred to in the brief of evidence to give evidence orally unless: (a) the Magistrate is satisfied that there are special reasons why the vulnerable person should, in the interests of justice, attend to give evidence, or (b) the prosecutor consents. [subs (1A) insrt Act 88 of 2018 Sch 5[4], opn 1 Dec 2018]

(1B) In committal proceedings for a prescribed sexual offence, a direction may not be given so as to direct the attendance of a sexual offence witness (even if the parties to the proceedings consent to the attendance) unless the Magistrate is satisfied that there are special reasons why the sexual offence witness should, in the interests of justice, attend to give evidence. [subs (1B) insrt Act 88 of 2018 Sch 5[4], opn 1 Dec 2018]

(2) The regulations may make provision for or with respect to the determination of special reasons under this section. (3) The following offences are offences involving violence for the purposes of this section: (a) a prescribed sexual offence, (b) an offence under sections 27–30 of the Crimes Act 1900 (attempts to murder), (c) an offence under section 33 of the Crimes Act 1900 (wounding etc with intent to do grievous bodily harm or resist arrest), (d) an offence under section 35(1) or (2) of the Crimes Act 1900 (infliction of grievous bodily harm), (e) an offence under sections 86–91 of the Crimes Act 1900 (abduction or kidnapping), (f) an offence under sections 94–98 of the Crimes Act 1900 (robbery), (g) an offence the elements of which include the commission of, or an intention to commit, an offence referred to in any of the above paragraphs, (h) an offence that, at the time it was committed, was an offence involving violence for the purposes of this section, (h1) an offence under any law of the Commonwealth that corresponds to an offence referred to in paragraph (a)–(h) and that is prescribed by the regulations, (i) any other offence that involves an act of actual or threatened violence and that is prescribed by the regulations for the purposes of this section. [subs (3) am Act 88 of 2018 Sch 5[5], opn 1 Dec 2018]

(4) An offence that may be dealt with summarily under Chapter 5 is not an offence involving violence for the purposes of this section. (5) Despite section 85(4), the Magistrate must not allow a person who is an alleged victim of an offence involving violence to be cross-examined in respect of matters that were not the basis of the reasons for giving the direction, unless the Magistrate is

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CRIMINAL PROCEDURE ACT 1986

[2-s 86]

satisfied that there are special reasons why, in the interests of justice, the person should be cross-examined in respect of those matters. [subs (5) insrt Act 88 of 2018 Sch 5[6], opn 1 Dec 2018]

COMMENTARY ON SECTION 84 “Special reasons ... in the interests of justice” . . . . . . . . . . . . . . . . . . .

[2-s 84.1]

[2-s 84.1] “Special reasons . . . in the interests of justice” In the context of repealed s 93 (the predecessor to s 84), it was said that the term “special reasons” is a more stringent test than that of “substantial reasons”: Lawler v Johnson (2002) 56 NSWLR 1; 134 A Crim R 199; [2002] NSWSC 864; BC200205442; Tez v Longley (2004) 142 A Crim R 122; [2004] NSWSC 74; BC200400556; Director of Public Prosecutions (DPP) (NSW) v O’Conner (2006) 181 A Crim R 294; [2006] NSWSC 458; BC200603474.

[2-s 85] Evidence of prosecution witness 85 (1) The evidence of a person who is directed to attend committal proceedings under this Division is to be given orally. (2) The person may be examined by the prosecutor. (3) The person may be cross-examined by the accused person and by the prosecutor. (4) The Magistrate must not allow the person to be cross-examined in respect of matters that were not the basis of the reasons for giving the direction, unless the Magistrate is satisfied that there are substantial reasons why, in the interests of justice, the person should be examined in respect of those matters. COMMENTARY ON SECTION 85 “Substantial reasons ... in the interests of justice” . . . . . . . . . . . . . . .

[2-s 85.1]

[2-s 85.1] “Substantial reasons . . . in the interests of justice” The meaning of “substantial reasons” in repealed s 91 (the predecessor to s 85) was considered in Losurdo v R (1998) 101 A Crim R 162; BC9800566; on appeal — Director of Public Prosecutions (DPP) v Losurdo (1998) 44 NSWLR 618; 103 A Crim R 189; BC9804896.

[2-s 86] Exceptions to oral evidence 86 (1) The evidence of a person who is directed to attend committal proceedings under this Division may be given by a written statement, or another kind of statement permitted to be tendered under Part 3A of Chapter 6, if: (a) the accused person and the prosecutor consent to the statement being admitted, or (b) the Magistrate is satisfied that there are substantial reasons why, in the interests of justice, the evidence should be given by a statement. Note. Sections 283C and 283D enable the use of recordings instead of written statements in the cases of witnesses who are vulnerable persons or in the case of domestic violence offences. Section 283G enables certain transcripts of evidence in other proceedings to be used instead of written statements.

(2) The evidence of a person who is directed to attend committal proceedings under this Division may be given by a recorded statement in the circumstances permitted under Part 4B of Chapter 6.

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Criminal Procedure

s 86

[2-s 86]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 86

(3) This section has effect despite section 85.

[2-s 87] Evidence to be taken in presence of accused person 87 (1) The accused person must be present when evidence is taken under this Division, unless this Act or any other law permits the evidence to be taken in the accused person’s absence. (2) The Magistrate may excuse the accused person from attending during the taking of evidence if satisfied that the accused person will be represented by an Australian legal practitioner while the evidence is taken or if satisfied that the evidence is not applicable to the accused person. (3) A period during which the accused person is so excused is taken to be an adjournment for the purposes of dealing with the accused person. (4) Evidence may commence or continue to be taken in the absence of an accused person who has not been excused from attending if: (a) no good and proper reason is shown for the absence of the accused person, and (b) a copy of all relevant written statements, and copies of any proposed exhibits identified in the statements (or a notice relating to inspection of them), have been served on the accused person in accordance with this Part and the accused person has been informed of the time set by the Magistrate for taking of the evidence.

[2-s 88] Evidentiary effect of statements 88 (1) A written statement, or any other kind of statement permitted to be tendered under Part 3A of Chapter 6, is, if tendered by the prosecutor in accordance with this Division, admissible as evidence for the purposes of this Division to the same extent as if it were oral evidence to the like effect given under this Division by the same person. (2) Any document or other thing identified in any statement admitted as evidence under this Division is, if the document or other thing is produced as an exhibit in the committal proceedings, to be treated as if it had been identified before the Magistrate by the person who made the statement. (3) This section does not operate to make a statement admissible if it is not admissible because of another provision made by or under this Division.

[2-s 89] Statements must comply with requirements 89 (1) A written statement, or another kind of statement permitted to be tendered under Part 3A of Chapter 6, is not admissible as evidence for the purposes of this Division unless this Division, and any applicable requirements specified by or under that Part, are complied with in relation to the statement and any associated exhibits or documents. (2) A statement that is not admissible as evidence under this section may nevertheless be admitted as evidence if otherwise admissible in accordance with any rule or law of evidence. (3) A statement sought to be admitted for the purposes of this Division must be served on the accused person on or before the day set by the Magistrate for that purpose.

[2-s 90] Evidence not to be admitted 90 (1) The Magistrate must refuse to admit evidence sought to be adduced by the

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CRIMINAL PROCEDURE ACT 1986

[2-s 93]

prosecutor under this Division if, in relation to that evidence, this Division or any applicable requirements specified by or under Part 3A of Chapter 6, have not been complied with by the prosecutor. (2) Despite subsection (1), the Magistrate may admit the evidence sought to be adduced if the Magistrate is satisfied that: (a) the non-compliance is trivial in nature, or (b) there are other good reasons to excuse the non-compliance, and admit the evidence, in the circumstances of the case.

[2-s 91] Magistrate may set aside requirements for statements 91 (1) In any committal proceedings, the Magistrate may dispense with all or any of the following requirements relating to statements or exhibits: (a) service of documents on the accused person, (b) provision to the accused person of a reasonable opportunity to inspect proposed exhibits, (c) specification of the age of the person who made a statement, (d) any requirement specified by the regulations under this Division or Part 3A of Chapter 6, if the regulations do not prohibit the Magistrate from dispensing with the requirement. (2) A requirement may be dispensed with under this section only on an application by the accused person or with the consent of the accused person. Note. Some of these requirements are made by or under Part 3A of Chapter 6.

[2-s 92] False statements or representations 92 (1) A person who made a written statement tendered in committal proceedings under this Division is guilty of an offence if the statement contains any matter: (a) that, at the time the statement was made, the person knew to be false, or did not believe to be true, in any material respect, and (b) that was inserted or caused to be inserted by the person in the statement. Maximum penalty: 100 penalty units or imprisonment for 5 years, or both. (2) A person who made a representation given in evidence under this Division in the form of a recorded statement is guilty of an offence if the representation contains any matter that, at the time the representation was made, the person knew to be false, or did not believe to be true, in any material respect. Maximum penalty: 100 penalty units or imprisonment for 5 years, or both. DIVISION 7 — COMMITTAL FOR TRIAL WHERE UNFITNESS TO BE TRIED RAISED [Div 7 insrt Act 55 of 2017 Sch 1[3], opn 30 Apr 2018]

[2-s 93] Committal for trial where unfitness to be tried raised 93 (1) The Magistrate may commit an accused person for trial for an offence if: (a) the question of the person’s unfitness to be tried for the offence is raised by the accused person, the prosecutor or the Magistrate, and (b) if the question is raised by the accused person or the prosecutor, the Magistrate is satisfied that it has been raised in good faith. (2) The question of the person’s unfitness to be tried for an offence may be raised at any time in the committal proceedings.

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Criminal Procedure

s 93

[2-s 93]

s 93

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

(3) The Magistrate may require a psychiatric or other report relating to the accused person to be supplied to the Magistrate by the accused person or the prosecutor before committing a person for trial under this section. COMMENTARY ON SECTION 93 Committal for trial where unfitness to be tried raised . . . . . . . . . . . .

[2-s 93.1]

[2-s 93.1] Committal for trial where unfitness to be tried raised In the second reading speech (Legislative Assembly, 11 October 2017), the Attorney General noted that the Local Court does not presently have jurisdiction if there are questions about an accused person’s fitness to be tried and “it is not intended that magistrates should have to bring their minds to substantively consider whether the accused is in fact unfit, as it would duplicate the process of fitness inquiries in the higher courts”. Sections 93 and 94 permit a question as to fitness to be raised in good faith before a magistrate and permit a magistrate under s 93(3) to require a psychiatric or other report to be obtained. In the second reading speech, the Attorney General said that it is “expected that this power may be used where obtaining a report earlier would assist in reducing the delay caused by waiting for reports to be prepared for the fitness inquiry in the higher court”. As to the question of fitness being raised in good faith, see s 10(2) Mental Health (Forensic Provisions) Act 1990 at [17-2130]. If an accused person is committed for trial under ss 93 and 94, and the person is found fit to be tried or the court is satisfied that the question of fitness is no longer raised, s 13A Mental Health (Forensic Provisions) Act 1990 at [17-2153] provides that the higher court can either retain the case for trial or sentence or remit it for case conferencing in the Local Court. The sentencing discount scheme is modified in these cases so that if an accused is found fit and pleads guilty at the earliest opportunity, he or she may be eligible for a 25 per cent discount for the utilitarian value of the plea: s 25D(5) Crimes (Sentencing Procedure) Act 1999 at [5-s 25D].

[2-s 94] Committal may take place after charge certification 94 The Magistrate may commit an accused person for trial under this Division only: (a) if the charge certificate has been filed under Division 4 and a case conference is not required to be held in the committal proceedings, or (b) if the charge certificate has been filed under Division 4 and a case conference has not yet been held in the committal proceedings, or (c) if the case conference certificate for the proceedings has been filed in the committal proceedings. DIVISION 8 — COMMITTAL FOR TRIAL OR SENTENCE [Div 8 insrt Act 55 of 2017 Sch 1[3], opn 30 Apr 2018]

[2-s 95] Committal timing generally 95 (1) The Magistrate in committal proceedings is to commit the accused person for trial or sentence: (a) after the case conference certificate is filed under Division 5, or (b) if a case conference is not required to be held in the proceedings, after the charge certificate is filed under Division 4. Note. The Magistrate may, at any time, adjourn the proceedings where it appears to the Magistrate to be necessary or advisable to do so (see sections 40 and 58(a)).

(2) Despite subsection (1), a Magistrate may commit an accused person for sentence:

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CRIMINAL PROCEDURE ACT 1986

[2-s 99]

(a) before a charge certificate is filed, if the prosecutor required to file the charge certificate advises the Magistrate that the prosecutor consents to the accused person being committed for sentence for that offence, or (b) if a charge certificate has been filed but no case conference has yet been held. (3) This section does not prevent the Magistrate from committing an accused person for trial under Division 7. (4) Before committing an accused person under this section, the Magistrate must ascertain whether or not the accused person pleads guilty to the offences that are being proceeded with.

[2-s 96] Committal for trial 96 (1) The Magistrate must commit an accused person for trial for an offence unless the Magistrate accepts a plea of guilty to the offence by the accused person. (2) In the case of an accused person that is a corporation that is to be committed for trial, the Magistrate is to make an order authorising an indictment to be filed for the offence named in the order or for such other offence as the Attorney General or the Director of Public Prosecutions considers proper.

[2-s 97] Guilty pleas and committal for sentence 97 (1) An accused person may at any time in committal proceedings plead guilty to an offence. (2) The Magistrate may accept or reject a guilty plea. (3) The Magistrate must not accept a guilty plea before the time at which an accused person may be committed for sentence under section 95. (4) Rejection of a guilty plea does not prevent an accused person from pleading guilty at a later stage in the committal proceedings. (5) If the guilty plea is rejected by the Magistrate, the committal proceedings continue as if the accused person had not pleaded guilty. (6) If the guilty plea is accepted, the Magistrate must commit the accused person to the District Court or the Supreme Court for sentence.

[2-s 98] Committal of unrepresented persons 98 If an accused person is not represented by an Australian legal practitioner, the Magistrate must not commit the accused person for trial or sentence unless the Magistrate is satisfied that the accused person has had a reasonable opportunity to obtain legal representation for, or legal advice about, the committal proceedings. COMMENTARY ON SECTION 98 Unrepresented persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 98.1]

[2-s 98.1] Unrepresented persons In the second reading speech (Legislative Assembly, 11 October 2017), the Attorney General noted that the requirement in s 98 was a safeguard for an unrepresented accused person because of the strict application of the sentence discount scheme.

[2-s 99] Attorney General or Director of Public Prosecutions may direct that no further proceedings be taken 99 (1) If a guilty plea is accepted under this Part, the Attorney General or the

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Criminal Procedure

s 99

[2-s 99]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 99

Director of Public Prosecutions may, at their discretion, direct in writing that no further proceedings be taken against the accused person under this Part for the offence concerned. (2) No further proceedings may be taken against the accused person under this Part for the offence if a direction is given. Note. Section 44 requires the release of the accused person once a certificate is delivered to the Supreme Court after a direction is given. DIVISION 9 — PROCEDURE ON COMMITTAL [Div 9 insrt Act 55 of 2017 Sch 1[3], opn 30 Apr 2018]

[2-s 100] Procedure applicable after committal for sentence 100 (1) All proceedings (whether under this or any other Act) relating to a committal for trial apply, so far as practicable, to a committal of an accused person after a guilty plea is accepted. (2) For the purposes of the venue or change of venue of consequent proceedings, a committal is taken to be a committal for trial.

[2-s 101] Higher court may refer accused person back to Magistrate 101 (1) A Judge of the District Court or the Supreme Court before whom an accused person is brought under section 97(6) may order that the committal proceedings be continued before a Magistrate if: (a) it appears to the Judge from the information or evidence given to or before the Judge that the facts in respect of which a court attendance notice was issued do not support the offence to which the accused person pleaded guilty, or (b) the prosecutor requests the order be made, or (c) for any other reason, the Judge thinks fit to do so. (2) On the resumption of the committal proceedings, the proceedings continue as if the person had not pleaded guilty.

[2-s 102] Disposal of proceedings by higher court 102 (1) The District Court or the Supreme Court may proceed to sentence or otherwise deal with an accused person brought before the Court under section 97 as if the accused person had on arraignment at any sittings of the Court pleaded guilty to the offence on an indictment filed or presented by the Attorney General or the Director of Public Prosecutions. (2) An accused person who is sentenced or otherwise dealt with under this section is for the purposes of any Act or law (whether enacted before or after the commencement of this section) taken to be convicted on indictment of the offence concerned.

[2-s 103] Change to not guilty plea in higher court 103 (1) If an accused person brought before the District Court or the Supreme Court under section 97 or this Division changes to not guilty the plea to the offence on which the accused person was committed to the Court, the Judge must direct that the accused person be put on trial for the offence.

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CRIMINAL PROCEDURE ACT 1986

[2-s 109]

(2) On the direction being given, the accused person is taken to have been committed for trial for the offence. The Judge may make the same orders and do the same things (including dealing with the accused person) as a Magistrate can on committing an accused person for trial. (3) The Judge may give directions as to matters preliminary to the trial as the Judge thinks just. (4) A direction may not be given under subsection (1) if the offence is punishable by imprisonment for life, but the Judge may make an order under section 101. (5) Despite subsection (1), the Judge may make an order under section 101 instead of giving a direction under subsection (1), if of the opinion that such an order should be made.

[2-s 104] Meaning of “accused person” 104 In this Division: accused person includes a person who has been committed for sentence to the District Court or Supreme Court.

[2-s 105] Disposal of proceedings by higher court 105

[s 105 rep Act 55 of 2017 Sch 1[3], opn 30 Apr 2018]

[2-s 106] Change to not guilty plea in higher court 106

[s 106 rep Act 55 of 2017 Sch 1[3], opn 30 Apr 2018]

[2-s 107] Attorney General or Director of Public Prosecutions may direct that no further proceedings be taken 107

[s 107 rep Act 55 of 2017 Sch 1[3], opn 30 Apr 2018]

[2-s 108] Meaning of “accused person” 108

[s 108 rep Act 55 of 2017 Sch 1[3], opn 30 Apr 2018]

DIVISION 10 — GENERAL PROCEDURES AFTER COMMITTAL [Div 6 heading subst and renum as Div 10 Act 55 of 2017 Sch 1[4], opn 30 Apr 2018]

[2-s 109] Accused person to be committed to correctional centre 109 (1) An accused person who is committed for trial or sentence in any committal proceedings must be committed to a correctional centre by the Magistrate until the sittings of the court at which the person is to be tried or dealt with or until the accused person is otherwise released by operation of law. (2) A Magistrate may order the issue of a warrant under this section. (3) An authorised officer may, for the purposes of this section, issue a warrant to arrest the accused person. (4) An authorised officer before whom an accused person is brought on arrest on a warrant issued under this section may issue a warrant: (a) committing the accused person to a correctional centre or other place of security, and

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Criminal Procedure

s 109

[2-s 109]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 109

(b) ordering the accused person to be brought before a court at the time and place specified in the order. Note. Part 4 of Chapter 4 sets out procedures for arrest warrants and warrants of commitment generally. The Bail Act 2013 provides for the circumstances when such a person must or may be granted bail rather than be held in prison. [s 109 am Act 5 of 2014 Sch 2 item 2.15[1], opn 20 May 2014]

COMMENTARY ON SECTION 109 Law Part Codes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 109.0]

[2-s 109.0] Law Part Codes The Law Part Code for s 109(2) is 51527. The Law Part Code for s 109(3) is 51528. The Law Part Code for s 109(4)(a) is 51529.

[2-s 110] Bail acknowledgment to be notified 110 If an accused person committed to a correctional centre on committal for trial or sentence is released on bail, the person who accepts the bail acknowledgment must transmit to the registrar of the relevant court: (a) the bail acknowledgment, and (b) any cash or other thing deposited in compliance with a bail condition. [s 110 subst Act 5 of 2014 Sch 2 item 2.15[3], opn 20 May 2014]

[2-s 111] Papers to be sent to officer of higher court 111 (1) The registrar must, as soon as possible after the end of committal proceedings, give to the appropriate officer of the court to which an accused person is committed for trial or sentence the documents required by the rules. (2) The appropriate officer if an accused person is committed to the Supreme Court is the registrar of the Criminal Division of the Supreme Court. (3) The appropriate officer if an accused person is committed to the District Court is a registrar of the District Court. (4) The appropriate officer must deliver the documents to the proper officer of the Court at which the trial is to be held or the accused person dealt with, if the Judge presiding so directs. COMMENTARY ON SECTION 111 Documents to be sent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 111.1]

[2-s 111.1] Documents to be sent See r 3.10 of the Local Court Rules 2009 at [2-9410] for the documents required to be sent under s 111(1).

[2-s 112] Responsibilities of appropriate officer 112 After the documents are transmitted and before the day of trial or the day on which the accused person is to be dealt with, the appropriate officer has, in relation to the documents, the same duties and is subject to the same liabilities as the Magistrate would

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CRIMINAL PROCEDURE ACT 1986

[2-s 116]

have or be subject to before the transmission in relation to an order in the nature of certiorari or a rule or order instead of certiorari directed to the Magistrate.

[2-s 113] Copies of trial papers to be given to Director of Public Prosecutions 113 (1) The appropriate officer must, as soon as practicable after receiving a document transmitted by the registrar after an accused person is committed for trial or sentence, transmit a copy of the document to the Director of Public Prosecutions. (2) The copy must be transmitted by the most convenient method, having regard to the necessity to maintain the security of the document.

[2-s 114] Copies of transcripts of evidence 114 (1) An accused person who is committed for trial or sentence is entitled to obtain 1 copy of the transcript of any evidence taken at the committal proceedings, and any written statements tendered at the proceedings. [subs (1) subst Act 55 of 2017 Sch 1[5], opn 30 Apr 2018]

(2) The rules may make provision for or with respect to the provision of a copy to the person and the regulations may make provision for or with respect to the fees for the provision of a copy. [subs (2) am Act 28 of 2005 s 6(2) and Sch 5.11[2], opn 15 Aug 2005]

(3) The accused person is also entitled, in accordance with Division 3 of Part 4B of Chapter 6, to a copy of any recorded statement played at the proceedings. [subs (3) insrt Act 83 of 2014 Sch 1[7], opn 1 June 2015]

[2-s 115] Meaning of “accused person” 115

In this Division:

accused person includes a person who has been committed for trial or sentence to the District Court or Supreme Court. DIVISION 11 — COSTS [Div 7 heading subst and renum as Div 11 Act 55 of 2017 Sch 1[6], opn 30 Apr 2018]

[2-s 116] When costs may be awarded to accused persons 116 (1) A Magistrate may at the end of committal proceedings order that the prosecutor pay professional costs to the registrar, for payment to the accused person, if: (a) the accused person is discharged as to the subject-matter of the offence or the matter is withdrawn, or (b) the accused person is committed for trial or sentence for an indictable offence which is not the same as the indictable offence the subject of the court attendance notice. (2) The amount of professional costs is to be the amount that the Magistrate considers to be just and reasonable. (3) The order must specify the amount of professional costs payable. (4) If the accused person is discharged, the order for costs may form part of the order discharging the accused person.

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Criminal Procedure

s 116

[2-s 116]

s 116

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

(5) In this section: professional costs means costs (other than court costs) relating to professional expenses and disbursements (including witnesses’ expenses) in respect of proceedings before a Magistrate. COMMENTARY ON SECTION 116 Order for professional costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The timing of the application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Costs against public prosecutors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Just and reasonable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appeals against orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 116.1] [2-s 116.5] [2-s 116.10] [2-s 116.15] [2-s 116.20]

[2-s 116.1] Order for professional costs Section 116(1) empowers a magistrate, at the end of committal proceedings, to order the prosecutor to pay professional costs to the accused person where: (a) the accused person is discharged as to the subject matter of the offence: s 116(1)(a); (b) the matter is withdrawn: s 116(1)(a); (c) the accused person is committed for trial or sentence for an indictable offence which is not the same as the indictable offence the subject of the court attendance notice: s 116(1)(b). “Professional costs” are defined in s 116(5). Under s 41A(1) of the repealed Justices Act 1902, there was no power to order costs against the prosecutor unless there was an order discharging the defendant or committal for trial took place for an offence other than that ordinarily charged. Section 116(1)(a) now empowers a magistrate to order costs where a matter is withdrawn. Where the defendant died following her discharge under repealed s 41(6) Justices Act but before an order for costs was made, it was held that the magistrate still had power to make an order for costs: Healey v Williams (1985) 10 FCR 254; 64 ALR 140. [2-s 116.5] The timing of the application Section 116(1) provides that an order may be made “at the end of committal proceedings”. If the accused person is discharged, the order for costs may form part of the order discharging the accused person: s 116(4). Under repealed s 41A Justices Act 1902, it had been held that an application for costs must be made in such a way that an order for costs would form part of the process discharging the defendant. If no application had been made at the time of discharge and no date had been sought on which to make an application, there was nothing on foot and the process of discharge was complete. There was no jurisdiction to order costs where the application for costs was initiated on a day subsequent to discharge of the defendant: Fosse v DPP (1989) 16 NSWLR 540; 42 A Crim R 289; R v Manley (2000) 49 NSWLR 203; 112 A Crim R 570; [2000] NSWCCA 196; BC200002821 at [3] and [60]. Given the opening words of s 116(1) and (4), the prudent course would be to make application for costs before the formal order of discharge is made. [2-s 116.10] Costs against public prosecutors Section 117 constitutes a statutory fetter upon the discretion to order costs against a public prosecutor. See [2-s 117.1]. [2-s 116.15] Just and reasonable The amount of professional costs is to be the amount that the Magistrate considers to be “just and reasonable”. The term “just and reasonable” in s 52 Land and Environment Court Act 1979 (a costs provision) was considered in Caltex Refining Co Pty Ltd v Maritime Services Board (NSW) (1995) 36 NSWLR 552 at 560–4; 78 A Crim R 368; BC9504766 where it was held that the requirement that an order must be both just and reasonable entails both a fair hearing on the merits of the application and that the terms of the order finally made will be in themselves reasonable. See Ly v Jenkins (2001) 114 FCR 237; 187 ALR 178; BC200107236; [2001] FCA 1640 for consideration of whether costs were “just and reasonable” under repealed s 81 Justices Act 1902 (see now

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CRIMINAL PROCEDURE ACT 1986

[2-s 117.1]

[2-s 211] ff) where they were not directly incurred by the prosecutor ([13], [129], [134]), where they involved expenses of witnesses ([27], [159], [160]), where they related to the investigation of an offence ([41], [132], [133]), where they were incurred “in-house” by a corporation ([160]) and where the costs order was sought in a foreign currency ([129], [155]). The onus lies upon the party seeking costs to establish such an entitlement and to establish that the costs claimed are just and reasonable: Director General NSW Dept of Agriculture v Temmingh [2003] NSWSC 598; BC200303816 at [11]. [2-s 116.20] Appeals against orders The prosecutor may appeal to the District Court against any order for costs made by a Magistrate against the prosecutor in respect of committal proceedings taken by the prosecutor: s 23(2)(a) Crimes (Appeal and Review) Act 2001 at [4-s 23]. The prosecutor may appeal to the Supreme Court, on a question of law alone, against an order for costs made by a Magistrate against the prosecutor in any committal proceedings: s 56(1)(d) Crimes (Appeal and Review) Act 2001 at [4-s 56].

[2-s 117] Limit on circumstances when costs may be awarded against a public officer 117 (1) Professional costs are not to be awarded in favour of an accused person in any committal proceedings unless the Magistrate is satisfied as to any one or more of the following: (a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner, (b) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner, (c) that the prosecution unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought, (d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award costs. (2) This section does not apply to the awarding of costs against a prosecutor acting in a private capacity. (3) In this section: professional costs means costs (other than court costs) relating to professional expenses and disbursements (including witnesses’ expenses) in respect of proceedings before a Magistrate. COMMENTARY ON SECTION 117 Costs against public officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Connection between reasons for discharge and s 117(1) factors . . . Costs against private prosecutors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 117.1] [2-s 117.5] [2-s 117.10]

[2-s 117.1] Costs against public officers The onus rests upon the accused person to bring the case within the exceptions to the general rule laid down by s 117(1) that costs are not to be awarded in favour of an accused person: Fosse v DPP [1999] NSWSC 367; BC9901959 at [16]. To fall within s 117(1)(d), the accused person has to establish something about the conduct of the proceedings being an “exceptional circumstance” other than some matter mentioned in subss (a), (b) or (c). In that regard, the mere fact that the proceedings were resolved in the accused

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Criminal Procedure

s 117

[2-s 117.1]

s 117

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

person’s favour was not enough. There has to be something in relation to the manner in which the proceedings were conducted that had led to it being just and reasonable for a costs order to be made: Fosse v DPP, above at [30]; Australian Securities and Investment Commission v Farley (2001) 51 NSWLR 494; [2001] NSWSC 326; BC200101937 at [16]. One way of testing whether a proceeding is instituted “without reasonable cause” is to ask whether, upon the facts apparent to the prosecutor at the time of instituting the proceedings, there was no substantial prospect of success, and if success depends upon the resolution in the prosecutor’s favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being “without reasonable cause”, but where on the prosecutor’s own version of the facts it is clear that the proceedings must fail, it may properly be said that the proceeding lacks reasonable cause: Canceri v Taylor (1994) 123 ALR 667 at 676; 55 IR 316 at 324–5; BC9405762. [2-s 117.5] Connection between reasons for discharge and s 117(1) factors The order for the payment of costs is a different step from the order discharging an accused person, or committal for a different offence, and there is no requirement that there be any connection between the basis on which the accused person was discharged and the facts and circumstances about which the court must be satisfied under s 117(1) before ordering costs: R v Hunt [1999] NSWCCA 375; BC9907764; (1999) 6 Crim LN 98 [1092]. Where committal proceedings were aborted and reheard by a second magistrate, that magistrate had power to order costs in respect of the aborted proceedings: Hanna v Horler (1999) 154 FLR 166; [1999] NSWSC 1159; BC9907868; (1999) 6 Crim LN 98 [1091]. [2-s 117.10] Costs against private prosecutors With respect to proceedings commenced by a private prosecutor, the award of costs in committal cases to an accused person, proceedings against whom have been dismissed, is entirely within the magistrate’s (judicial) discretion. There is no rule that costs must follow the event or that a successful accused person is entitled to costs even if a successful private prosecutor is not. The magistrate must not consider irrelevant matters unconnected with the instant case: Barton v Berman [1980] 1 NSWLR 63; followed in Acuthan v Coates (1986) 6 NSWLR 472; 24 A Crim R 304; BC8600588. The general principles as to costs in criminal proceedings in Latoudis v Casey (1990) 170 CLR 534; 97 ALR 45; BC9002896 ought be considered, although keeping in mind that Latoudis deals with a summary prosecution and not committal proceedings.

[2-s 118] Costs on adjournment 118 (1) A Magistrate may in any committal proceedings, at his or her discretion or on the application of the prosecutor or an accused person, order that one party pay costs if the matter is adjourned. (2) An order may be made only if the Magistrate is satisfied that the other party has incurred additional costs because of the unreasonable conduct or delay of the party against whom the order is made. (3) An order may be made whatever the result of the proceedings. COMMENTARY ON SECTION 118 Law Part Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Costs on adjournment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appeal from order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2 s 118.0] Law Part Code

[2 s 118.0] [2-s 118.1] [2-s 118.5]

The Law Part Code for s 118(1) is 51530.

[2-s 118.1] Costs on adjournment Section 118 empowers a magistrate in committal proceedings, at his or her discretion: (a) on the application of the prosecutor or an accused person: s 118(1);

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CRIMINAL PROCEDURE ACT 1986

[2-s 121]

(b) to order that one party pay costs if the matter is adjourned: s 118(2); (c) but only if the magistrate is satisfied that the other party has incurred additional costs: s 118(2); (d) by reason of the unreasonable conduct or delay of the party against whom the order is made: s 118(2); and (e) that such an order may be made whatever the result of the proceedings: s 118(3). There was no equivalent power under repealed s 41A Justices Act 1902. The power to order costs under repealed s 65(3) Justices Act (R v Le Boursicot (1994) 79 A Crim R 548) did not extend to committal proceedings given the different wording in repealed s 30. In Commissioner of Police v Fandakis [2001] NSWSC 586; BC200103907, it was held that there was no power, express or implied, to order costs for hearing time lost in committal proceedings resulting from an unsuccessful public interest immunity claim. Whether such an application could now be entertained would depend upon whether s 118 was satisfied — had a “party” to the proceedings caused additional costs to be incurred by unreasonable conduct or delay? [2-s 118.5] Appeal from order The prosecutor may appeal to the District Court against any order for costs made by a Magistrate against the prosecutor in respect of committal proceedings taken by the prosecutor: s 23(2)(a) Crimes (Appeal and Review) Act 2001 at [4-s 23]. The prosecutor may appeal to the Supreme Court, on a question of law alone, against an order for costs made by a Magistrate against the prosecutor in any committal proceedings: s 56(1)(d) Crimes (Appeal and Review) Act 2001 at [4-s 56]. An accused person may appeal to the District Court against “sentence” which includes any order for costs made by a Magistrate against a person in connection with committal proceedings taken against the person: ss 3, 11 Crimes (Appeal and Review) Act 2001 at [4-s 3] and [4-s 11]. An accused person may appeal to the Supreme Court against “sentence” which includes such an order for costs: ss 3, 52, 53 Crimes (Appeal and Review) Act 2001 at [4-s 3], [4-s 52], [4-s 53].

[2-s 119] Content of costs orders 119 The order must specify the amount of costs payable or may provide for the determination of the amount at the end of the proceedings.

[2-s 120] Enforcement of costs orders 120 An order made by a Magistrate under this Division for the payment of costs is taken to be a fine within the meaning of the Fines Act 1996. PART 3 — TRIAL PROCEDURES [Heading insrt Act 119 of 2001 s 3 and Sch 1[44], opn 7 July 2003]

DIVISION 1 — LISTING [Heading insrt Act 119 of 2001 s 3 and Sch 1[44], opn 7 July 2003]

[2-s 121] Definitions 121

In this Part:

Criminal Listing Director means: (a) in relation to the Supreme Court — the public servant employed in the Supreme Court to make arrangements for the listing of criminal proceedings that are to be heard and determined before the Supreme Court, and

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Criminal Procedure

s 121

[2-s 121]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 121

(b) in relation to the District Court — the public servant employed in the District Court to make arrangements for the listing of criminal proceedings that are to be heard and determined before the District Court, and (c) any public servant authorised by a person referred to in paragraph (a) or (b), or in accordance with the regulations, to exercise any functions of the Criminal Listing Director. [def subst Act 94 of 2007 s 3 and Sch 1.28, opn 6 July 2009]

criminal proceedings means: (a) proceedings relating to the trial of a person before the Supreme Court or the District Court, (b) proceedings relating to the sentencing of a person by the Supreme Court or the District Court, or (c) proceedings relating to an appeal under the Crimes (Appeal and Review) Act 2001 to the District Court in its criminal jurisdiction. [def am Act 15 of 2015 Sch 2.14[2], opn 8 July 2015] [s 121 renum Act 94 of 1999 s 4 and Sch 2[23], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[45], opn 7 July 2003; am Act 119 of 2001 s 3 and Sch 1[46], opn 7 July 2003]

[2-s 122] Listing 122 (1) The Criminal Listing Director is, subject to the regulations, to make arrangements for the listing of criminal proceedings that are to be heard and determined before the Supreme Court or the District Court. [subs (1) am Act 17 of 1991 s 3 and Sch 1]

(1A) In making such listing arrangements, the Criminal Listing Director is responsible to: (a) the Chief Justice of the Supreme Court, in the case of criminal proceedings that are to be heard and determined before that Court, or (b) the Chief Judge of the District Court, in the case of criminal proceedings that are to be heard and determined before that Court. [subs (1A) insrt Act 132 of 1989 s 3 and Sch 1; am Act 17 of 1991 s 3 and Sch 1]

(2) The regulations may make provision for or with respect to the practice and procedure to be adopted for the listing of criminal proceedings that are to be heard and determined before the Supreme Court or the District Court. (3) Regulations made under this section prevail over rules of court, or any direction or order of a court, to the extent of any inconsistency. [s 122 renum Act 94 of 1999 s 4 and Sch 2[23], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[45], opn 7 July 2003]

COMMENTARY ON SECTION 122 Listing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 122.1] [2-s 122.1] Listing See Pt 2 of the Criminal Procedure Regulation 2017 at [2-5040] and following for procedural matters with respect to listing.

[2-s 123] Authority of Criminal Listing Director 123 It is the duty of all persons involved in criminal proceedings to abide, as far as practicable, by the arrangements made by the Criminal Listing Director in exercising functions under this Act. [s 123 renum Act 94 of 1999 s 4 and Sch 2[23], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[45], opn 7 July 2003]

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CRIMINAL PROCEDURE ACT 1986

[2-s 126]

[2-s 124] Liaison 124 For the purpose of exercising the functions conferred on the Criminal Listing Director, the Criminal Listing Director may liaise with the Judges and officers of the Supreme Court and the District Court, prosecutors, accused persons and their Australian legal practitioners, and other persons involved in criminal proceedings. [s 124 renum Act 94 of 1999 s 4 and Sch 2[23], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[45], opn 7 July 2003; am Act 119 of 2001 s 3 and Sch 1[47], opn 7 July 2003; Act 120 of 2006 s 3 and Sch 3[6], opn 4 Dec 2006]

[2-s 125] Certain matters not affected 125 (1) This Division does not authorise the Criminal Listing Director: (a) to fix or change the venue of proceedings, except with the consent of the accused person and the prosecutor, or (b) to determine when or where a court is to exercise its jurisdiction. [subs (1) am Act 119 of 2001 s 3 and Sch 1[49], opn 7 July 2003]

(2) Nothing in this Division relating to the Criminal Listing Director affects: (a) the power of the Attorney General to fix or change the venue of any matter, (b) the power of a court to regulate proceedings before it, (c) the power of a court to adjourn any matter, (d) proceedings in the Court of Criminal Appeal, (e) proceedings in the Supreme Court in its summary jurisdiction, or (f) proceedings under the Bail Act 2013. [subs (2) am Act 5 of 2014 Sch 2 item 2.15[1], opn 20 May 2014] [s 125 renum Act 94 of 1999 s 4 and Sch 2[23], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[45], opn 7 July 2003; am Act 119 of 2001 s 3 and Sch 1[48], opn 7 July 2003]

DIVISION 2 — COMMENCEMENT AND NATURE OF PROCEEDINGS [Heading insrt Act 119 of 2001 s 3 and Sch 1[50], opn 7 July 2003]

[2-s 126] Signing of indictments 126 (1) An indictment shall be signed: (a) by the Attorney General, the Solicitor General or the Director of Public Prosecutions, or (b) for and on behalf of the Attorney General or the Director of Public Prosecutions by: (i) a Crown Prosecutor, (ii) a Deputy Director of Public Prosecutions, or (iii) a person authorised under subsection (2) to sign indictments. [subs (1) am Act 209 of 1987 s 3 and Sch 7]

(2) The Director of Public Prosecutions may, by order in writing, authorise a person to sign indictments for and on behalf of the Director. (3) It shall be presumed, in the absence of evidence to the contrary, that an indictment signed by a person for and on behalf of the Attorney General or the Director of Public Prosecutions was signed by a person authorised to do so. (4) A certificate signed by the Director of Public Prosecutions to the effect that a

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Criminal Procedure

s 126

[2-s 126]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 126

specified person was authorised during a specified period to sign indictments for and on behalf of the Director is admissible in evidence in any legal proceedings and is evidence of the matters certified. [s 126 renum Act 94 of 1999 s 4 and Sch 2[28], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[51], opn 7 July 2003]

COMMENTARY ON SECTION 126 Authorised person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 126.1]

[2-s 126.1] Authorised person Where an indictment was not signed by a person authorised to sign an indictment it was a fundamental defect in the proceedings and the conviction was quashed as the trial was a nullity: R v Halmi (2005) 62 NSWLR 263; 156 A Crim R 150; [2005] NSWCCA 2; BC200500703; (2005) 12 Crim LN 32 [1847]; R v Janceski (2005) 64 NSWLR 10; 223 ALR 580; [2005] NSWCCA 281; BC200506067; (2005) 12 Crim LN 62 [1913] where it was held that the purpose of the section is to limit the persons who can authorise the commencement of a prosecution on indictment and thereby warrant to the court that the proceedings are taken in the name of the Director of Public Prosecutions and are regularly brought. It was also held in Janceski that the court and the accused are entitled to assume where the indictment is signed by an authorised person that the proper procedures leading up to the presentation of the indictment have been followed, such as the finding of a bill or the determination to present an ex officio indictment. Following the decisions in Halmi and Janceski, s 16(1)(i) at [2-s 16] was enacted to save indictments which breached the Halmi and Janceski principle. Indictments which would have been invalid under that principle are taken to be valid as are the proceedings undertaken pursuant to those indictments: cl 47, Schedule 2, Criminal Procedure Act 1986 at [2-Sch 2].

[2-s 127] Manner of presenting indictments 127 The regulations and (subject to the regulations) the rules of court may make provision for or with respect to the manner of presenting indictments (including by the filing of the indictment in a court registry). [s 127 insrt Act 7 of 2001 s 3 and Sch 1[5], opn 19 Nov 2001; renum Act 119 of 2001 s 3 and Sch 1[52], opn 7 July 2003]

COMMENTARY ON SECTION 127 Manner of presenting indictments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 127.1]

[2-s 127.1] Manner of presenting indictments Clause 10D of Pt 53 District Court Rules at [2-12,072] provides for the manner of presenting indictments in the District Court and provides that an indictment may be presented by the filing of a copy with the registrar and a copy must be served on the accused within 14 days after filing.

[2-s 128] Directions as to indictments to be presented in District Court 128 (1) The Chief Justice of the Supreme Court may issue a practice note on behalf of the Supreme Court giving directions to prosecutors with respect to the classes of indictments that are to be presented to the District Court rather than the Supreme Court. [subs (1) am Act 119 of 2001 s 3 and Sch 1[54], opn 7 July 2003]

(2) The Chief Justice may exempt a particular indictment from any such direction. (3) The Supreme Court may reject an indictment:

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[2-s 129.1]

CRIMINAL PROCEDURE ACT 1986

(a) that is of a class to which any such direction applies, and (b) that was presented after the direction was given, and (c) that has not been exempted from the direction by the Chief Justice. (4) The rejection of an indictment does not preclude the presentation of a further indictment in accordance with any such direction. [s 128 insrt Act 86 of 1997 s 4 and Sch 2[1], opn 4 Jan 1997; renum Act 94 of 1999 s 4 and Sch 2[28], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[53], opn 7 July 2003]

COMMENTARY ON SECTION 128 Directions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 128.1]

[2-s 128.1] Directions The Chief Justice has issued Practice Note SC CL 2 at [28-5005] giving directions for the purpose of s 128. In Hayward v R [2018] NSWCCA 104; BC201804516 an exemption was granted to an indictment filed in the District Court in relation to child sexual offences on condition that a hearing would be held in the Supreme Court to determine whether certain reports were admissible in the Supreme Court although not admissible in the District Court. Ultimately it was held that the reports were not admissible in the Supreme Court so that the matter was remitted to the District Court.

[2-s 129] Time within which indictment to be presented 129 (1) In this section, relevant court, in relation to a matter, means the Supreme Court or the District Court before which the matter has been listed for trial or mention. (2) An indictment is to be presented within 4 weeks after the committal of the accused person for trial, except as provided by this section. (3) The time within which the indictment is to be presented may be extended: (a) by the regulations or (subject to the regulations) the rules of the relevant court, or (b) by order of the relevant court. (4) If an indictment is not presented within the time required by this section, the relevant court may: (a) proceed with the trial if an indictment has been presented, or (b) adjourn the proceedings, or (c) take such other action as it thinks appropriate in the circumstances of the case. (5) The prosecutor has no right to an adjournment merely because an indictment has not been presented. (6) The relevant court must, in exercising any power under this section, have regard to the fact that the Crown does not have a right of appeal if the accused person is acquitted. (7) This section does not affect the powers of the relevant court under section 21. [subs (7) am Act 119 of 2001 s 3 and Sch 1[56], opn 7 July 2003] [s 129 subst Act 7 of 2001 s 3 and Sch 1[6], opn 19 Nov 2001; renum Act 119 of 2001 s 3 and Sch 1[55], opn 7 July 2003]

COMMENTARY ON SECTION 129 Operation of section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Time for presenting indictments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[2-s 129.1] [2-s 129.5]

Criminal Procedure

s 129

[2-s 129.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 129

[2-s 129.1] Operation of section This section replaces s 54 which was inserted by the Criminal Procedure Amendment (Pre-trial Disclosure) Act 2001. That section did not apply to proceedings in which the accused person was committed for trial before 19 November 2001: cl 23, Sch 2, Criminal Procedure Act. The court has a discretion to allow the presentation of an indictment outside the time prescribed pursuant to s 129(4): JSM v R [2010] NSWCCA 255; BC2011010646; 18(7) Crim LN [2925]. The discretion will take into account both the public interest in the trial proceeding and the interests of the accused including any prejudice arising from the failure to present the indictment within the time limit. [2-s 129.5] Time for presenting indictments Clause 10E(1) of Pt 53 District Court Rules at [2-12,073] provides, for the purpose of s 54(3)(a) of the Act, that the time for presenting an indictment at a relevant proclaimed place is extended to eight weeks after the committal of the accused person for trial. Clause 10E(2) provides that a “relevant proclaimed place” is a proclaimed place other than Sydney, Sydney West, Newcastle, Wollongong, Gosford, Lismore, Wagga Wagga, Dubbo or Bathurst. An application for an order under s 129(3)(b) to extend the time for filing an indictment must be made before the time for filing the indictment has expired and may be made in court or by written application to the court: cl 10F, Pt 53 District Court Rules at [2-12,074]. See cl 8 of the Criminal Procedure Regulation 2017 at [2-5060] with respect to the timing of an application to the Supreme Court or District Court for an order staying or quashing an indictment and any demurrer to an indictment.

[2-s 130] Trial proceedings after presentation of indictment and before empanelment of jury 130 (1) In this section, court means the Supreme Court or District Court. (2) The court has jurisdiction with respect to the conduct of proceedings on indictment as soon as the indictment is presented and the accused person is arraigned, and any orders that may be made by the court for the purposes of the trial in the absence of a jury may be made before a jury is empanelled for the trial. (3) If proceedings are held for the purpose of making any such orders after the indictment is presented to commence the trial and before the jury is empanelled: (a) the proceedings are part of the trial of the accused person, and (b) the accused person is to be arraigned again on the indictment when the jury is empanelled for the continuation of the trial. (4) Nothing in this section requires a jury to be empanelled if the accused person pleads guilty to an offence during proceedings to which this section applies. (5) This section applies to proceedings in respect of indictments presented after the commencement of this section. [s 130 insrt Act 86 of 1997 s 4 and Sch 2[2], opn 4 Jan 1998; renum Act 94 of 1999 s 4 and Sch 2[28], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[57], opn 7 July 2003; am Act 119 of 2001 s 3 and Sch 1[58], opn 7 July 2003]

COMMENTARY ON SECTION 130 Arraignment before the jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 130.1]

[2-s 130.1] Arraignment before the jury The section provides that where there have been pre-trial determinations made after arraignment but before the jury is empanelled, the accused must be re-arraigned before the jury panel. It was held in R v Janceski (2005) 64 NSWLR 10; 223 ALR 580; [2005] NSWCCA 281; BC200506067; (2005) 12(8) Crim LN [1914] that, subject to this section, there is no necessity to re-arraign an accused before the jury panel if the accused has

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CRIMINAL PROCEDURE ACT 1986

[2-s 130A.10]

already been arraigned. However, where the accused is re-arraigned on an indictment and pleads not guilty then the accused is put to trial on that indictment and, if it is invalid, the trial will be a nullity notwithstanding that there is a valid indictment otherwise on the court file. There is no need for the accused to be arraigned for a second time after the jury has been empanelled as the section imposes no such requirement: DS v R [2012] NSWCCA 159; BC201205518; 19(8) Crim LN [3100]. See s 16 at [2-s 16] for defects which do not affect the validity of an indictment.

[2-s 130A] Pre-trial orders and orders made during trial bind trial Judge 130A (1) A pre-trial order made by a Judge in proceedings on indictment is binding on the trial Judge in those proceedings unless, in the opinion of the trial Judge, it would not be in the interests of justice for the order to be binding. (2) If, on an appeal against a conviction for an offence in proceedings on indictment, a new trial is ordered, a pre-trial order made by a Judge, or an order made by the trial Judge, in relation to the proceedings from which the conviction arose is binding on the trial Judge hearing the fresh trial proceedings unless: (a) in the opinion of the trial Judge hearing the fresh trial proceedings, it would not be in the interests of justice for that order to be binding, or (b) that order is inconsistent with an order made on appeal. (3) If proceedings on indictment before a trial Judge are discontinued for any reason, a pre-trial order made by a Judge, or an order made by the trial Judge, in relation to those proceedings is binding on a trial Judge hearing any subsequent trial proceedings relating to the same offence as the discontinued proceedings unless, in the opinion of the trial Judge hearing the subsequent trial proceedings, it would not be in the interests of justice for the order to be binding. (4) In this section, pre-trial order means any order made or given after the indictment is first presented but before the empanelment of a jury for a trial. [subs (4) am Act 88 of 2014 Sch 1 item 1.5[1], opn 8 Jan 2015]

(5) To avoid doubt, this section extends to a ruling given on the admissibility of evidence. [subs (5) insrt Act 88 of 2014 Sch 1 item 1.5[2], opn 8 Jan 2015] [s 130A subst Act 112 of 2009 Sch 1, opn 1 Feb 2010]

COMMENTARY ON SECTION 130A Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 130A.5] Scope of the section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 130A.10] [2-s 130A.5] Commencement Section 130A was substituted by the Criminal Procedure Amendment (Case Management) Act 2009. The substituted section applies only in respect of proceedings in which the indictment was presented or filed on or after 1 February 2010: see cl 62 Sch 2, Criminal Procedure Act at [2-Sch 2]. [2-s 130A.10] Scope of the section In the second reading speech for the Criminal Procedure Amendment (Case Management) Bill 2009, the Parliamentary Secretary, on behalf of the Attorney General, said (Legislative Council, Hansard, 1 December 2009): Schedule 1 [3] substitutes section 130A of the Principal Act to extend its application to all proceedings on indictment, not just sex offences. Further, all orders made during the course of

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Criminal Procedure

s 130A

[2-s 130A.10]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 130A

a trial, not just pre-trial orders, will be binding on a subsequent trial judge.

[2-s 131] Trial by jury in criminal proceedings 131 Criminal proceedings in the Supreme Court or the District Court are to be tried by a jury, except as otherwise provided by this Part. [s 131 renum Act 94 of 1999 s 4 and Sch 2[12], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[59], opn 7 July 2003]

COMMENTARY ON SECTION 131 Trial by jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 131.1]

[2-s 131.1] Trial by jury As to the procedures to be followed by a court in a trial by jury, see Trial Procedure at [7-450] and following and the Jury Act at [29-50,400] and following. In respect of trial for Commonwealth offences, the provisions of the Jury Act are to be read subject to s 80 of the Constitution which requires all offences be dealt with by jury, that is according to the essential features of a jury as understood by the common law at the time of federation: see Brownlee v R (2001) 207 CLR 278; 108 ALR 301; [2001] HCA 36; BC200103185 and Ng v R (2003) 217 CLR 521; 197 ALR 10; [2003] HCA 20; BC200301555; (2003) 10 Crim LN [1542].

[2-s 132] Orders for trial by Judge alone 132 (1) An accused person or the prosecutor in criminal proceedings in the Supreme Court or District Court may apply to the court for an order that the accused person be tried by a Judge alone (a trial by judge order). (2) The court must make a trial by judge order if both the accused person and the prosecutor agree to the accused person being tried by a Judge alone. (3) If the accused person does not agree to being tried by a Judge alone, the court must not make a trial by judge order. (4) If the prosecutor does not agree to the accused person being tried by a Judge alone, the court may make a trial by judge order if it considers it is in the interests of justice to do so. (5) Without limiting subsection (4), the court may refuse to make an order if it considers that the trial will involve a factual issue that requires the application of objective community standards, including (but not limited to) an issue of reasonableness, negligence, indecency, obscenity or dangerousness. (6) The court must not make a trial by judge order unless it is satisfied that the accused person has sought and received advice in relation to the effect of such an order from an Australian legal practitioner. (7) The court may make a trial by judge order despite any other provision of this section or section 132A if the court is of the opinion that: (a) there is a substantial risk that acts that may constitute an offence under Division 3 of Part 7 of the Crimes Act 1900 are likely to be committed in respect of any jury or juror, and (b) the risk of those acts occurring may not reasonably be mitigated by other means. [s 132 subst Act 135 of 2010 Sch 12.2, opn 14 Jan 2011]

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CRIMINAL PROCEDURE ACT 1986

COMMENTARY ON SECTION 132 Trial by judge alone . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Election by the accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 132.1]

[2-s 132.1] [2-s 132.10]

[2-s 132.1] Trial by judge alone As to the procedure to be followed, see District Court Rules Pt 53 r 10B [2-12,070] and Supreme Court Rules Pt 75 r 3G at [20-26,850]. Either party may make an application for trial by judge alone and, if both parties consent, then the court must allow the application. If the prosecutor applies and the accused does not consent the court cannot make an order for a judge alone trial. If the accused applies and the Crown objects then the court may make an order if it considers it to be in the interests of justice. As to the time for the application of such an order see [2-s 132A]. The application for a trial by judge must be considered against the background that the convention method for trial is by a jury and the public interest in a trial by jury is as a protection of an accused from the executive and judicial power of the state and a means of applying objective community standards in the determination of facts: Director of Public Prosecutions (DPP) (NSW) v Farrugia [2017] NSWCCA 197; BC201712343; 25(6) Crim LN [3977]. It is not a sufficient reason to order a trial by judge alone, that trial without a jury might result in more transparency in a reasoned judgment rather than a simple jury verdict, or the trial is more likely to be shorter and less expensive, or more likely to lead to the “correct” result. See generally the discussion on the significance of trial by jury in R v Belghar, below. The approach to be taken to an application for trial by judge alone, and the relevant factors, was considered in R v Belghar [2012] NSWCCA 86; BC201202863; 19(6) Crim LN [3074] where it was held that a judge erred in granting an application on the basis that, because of the accused’s religious faith, he might not receive a fair trial. There was no evidence before the judge to justify that finding. McClellan CJ at CL, in obiter findings, considered a number of matters that his Honour found were either relevant or irrelevant to determining an application. Issues relevant to the determination of an application for trial by judge alone were considered in R v King [2013] NSWSC 448; BC201302092 and R v Dean [2013] NSWSC 661; BC201302789, including the importance of participation of the community in the administration of the criminal justice system. A judge determining an application ought not take into account that a jury is better able to determine issues of credibility than a judge: Redman v R [2015] NSWCCA 110; BC201504333; 22(6) Crim LN [3539], a case in which in order to forward his defence the accused would have had to disclose his criminal record and an alibi that he was in custody at the time. A trial by judge alone was granted on the peculiar facts of the case. The fact that cross-examination of the complainant might indicate that the accused was refused bail for the offence, the subject of the charge did not give rise to sufficient prejudice to warrant a trial by judge alone: Director of Public Prosecutions (DPP) (NSW) v Farrugia, above. The Court noted that no reason had been given as to why the accused had been refused bail and none relied on by the judge. If the reason had been given, the possible prejudice could have been explored and what could be done to overcome any such prejudice by way of directions examined. Nor was any explanation given for how anything said by the complainant could give rise to an issue as the accused’s custodial status as a result of being charged with the offence. The relevance of substantial past adverse media publicity concerning the accused person on an application for a judge alone trial was considered in R v McNeil (2015) 250 A Crim R 12; [2015] NSWSC 357; BC201505018 and R v Qaumi [2016] NSWSC 1473; BC201610277. The discretion to reject evidence where the probative value is outweighed by its prejudicial effect has little, if any, role in a trial by judge alone: Abrahamson v R (1994) 63 SASR 139; BC9405598. In a trial by judge alone, the judge is not required to consider a defence which has not been raised or relied upon by the defence: R v Ion (1996) 89 A Crim R 81; BC9604105; (1996) 3 Crim LN 61 [611]. The extent to which a judge can ask questions of witnesses during a trial by judge alone was considered in FB v R [2011] NSWCCA 217; BC201107721; 18(11) Crim LN [2987] where it was

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Criminal Procedure

s 132

[2-s 132.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 132

held that the trial judge was entitled, within reasonable and legitimate boundaries, to ask questions of witnesses, applying Galea v Galea (1990) 19 NSWLR 263. [2-s 132.10] Election by the accused The election must be made personally by the accused and an election cannot be made by another person on the accused’s behalf: Public Guardian v Guardianship Board (1997) 42 NSWLR 201; BC9702919; (1997) 4 Crim LN 52 [728] where it was held that the Guardianship Board could not appoint a person to make the election on behalf of the accused.

[2-s 132A] Applications for trial by judge alone in criminal proceedings 132A (1) An application for an order under section 132 that an accused person be tried by a Judge alone must be made not less than 28 days before the date fixed for the trial in the Supreme Court or District Court, except with the leave of the court. (2) An application must not be made in a joint trial unless: (a) all other accused person apply to be tried by a Judge alone, and (b) each application is made in respect of all offences with which the accused persons in the trial are charged that are being proceeded with in the trial. (3) An accused person or a prosecutor who applies for an order under section 132 may, at any time before the date fixed for the accused person’s trial, subsequently apply for a trial by a jury. (4) Rules of court may be made with respect to applications under section 132 or this section. [s 132A insrt Act 135 of 2010 Sch 12.2, opn 14 Jan 2011]

COMMENTARY ON SECTION 132A Applications made out of time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 132A.1]

[2-s 132A.1] Applications made out of time A question has arisen as to the appropriateness of a prosecutor conceding the grant of leave where the application for a trial by judge alone is made on the day of the trial especially where no explanation is proffered as to why the matter could not have been raised earlier: Director of Public Prosecutions (DPP) (NSW) v Farrugia [2017] NSWCCA 197; BC201712343; 25(6) Crim LN [3977].

[2-s 133] Verdict of single Judge 133 (1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury. (2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied. (3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter. [s 133 renum Act 94 of 1999 s 4 and Sch 2[12], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[59], opn 7 July 2003]

COMMENTARY ON SECTION 133 Judgment after trial by judge alone . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[2-s 133.1]

CRIMINAL PROCEDURE ACT 1986

[2-s 134.5]

[2-s 133.1] Judgment after trial by judge alone The equivalent of s 133(2) and (3) were considered by the High Court in Fleming v R (1998) 197 CLR 250; 158 ALR 379; [1999] HCA 68; BC9805921; 5(10) Crim LN [918] where it was held that the subsections created legal imperatives so that a failure to observe either or both of them is to make a wrong decision on a question of law within s 6(1) Criminal Appeal Act 1912 or that justice has miscarried. The court held that s 133(2) required that the judge expose the reasoning process linking the principles of law with the facts found and justifying the latter and, ultimately, the verdict reached. Section 133(3) obliges a trial judge to take a warning into account and this requires the judge to include in the principles of law applied by the judge the particular requirement for a warning. The trial judge is to indicate why, notwithstanding the warning or as a consequence of it, a particular verdict is reached. A bare statement of the warning is insufficient. In that case a conviction was set aside because the trial judge had failed to include in his judgment reference to the warning which was required to be given in accordance with Longman v R (1989) 168 CLR 79; 89 ALR 161; BC8902688. The section does not require the judge to publish a judgment in the form a summing up would have taken had the trial been before a jury: R v Winningham (NSWCCA, 10 May 1995, unreported); 2(5) Crim LN [438]. A judge is not required to record all the considerations which have been taken into account in reaching the determination on the question of guilt nor expressly refer to all the matters which necessarily have to be stated to a jury: R v Winner (1995) 79 A Crim R 528; BC9505056; 2(7) Crim LN [434]. A judgment was held to be defective where the judge did not refer to evidence of good character of the accused: R v MPW (NSWCCA, 14 December 1995, unreported, BC9507332); 3(1) Crim LN [526]. The principles that are to be applied in giving reasons in a trial by judge alone (including a special hearing) based upon the decision in Fleming (above) were considered in W v R [2014] NSWCCA 110; BC201405596; 21(8) Crim LN [3416]. As to the warnings to be given to a jury, see [2-s 161.1] and following. The necessity for the reasons to disclose an analysis of a particular witness was considered in DW v R (2004) 150 A Crim R 139; [2004] ACTCA 22; BC200407885 where it was held that it was not necessary in all cases for the judge to disclose reasons for rejecting the credibility of a particular witness, for example where it depends upon the impression of the witness. However, the judge must give proper reasons for expressing a preference for one psychiatrist over another on the issue of mental illness where the psychiatrists had different opinions: CJ v R [2012] NSWCCA 258; BC201209878; 20(2) Crim LN [3172].

DIVISION 3 — CASE MANAGEMENT PROVISIONS AND OTHER PROVISIONS TO REDUCE DELAYS IN PROCEEDINGS [Div 3 subst Act 112 of 2009 Sch 1, opn 1 Feb 2010]

[2-s 134] Purpose 134 (1) The purpose of this Division is to reduce delays in proceedings on indictment by: (a) requiring certain pre-trial disclosure by the prosecution and the defence, and (b) enabling the court to undertake case management where suitable in those proceedings, whether on its own motion or on application by a party to the proceedings. (2) Case management measures that are available to the court under this Division include the ordering of pre-trial hearings, pre-trial conferences and further pre-trial disclosure. The court has a discretion in determining which (if any) of those measures are suitable in the proceedings concerned. COMMENTARY ON SECTION 134 Application of Division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[2-s 134.5]

Criminal Procedure

s 134

[2-s 134.5]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Scope of Division after 2013 amendments . . . . . . . . . . . . . . . . . . . . . . Case management provisions for summary matters in higher courts . Case management of Local Court summary criminal proceedings .

s 134 [2-s 134.10] [2-s 134.15] [2-s 134.20]

[2-s 134.5] Application of Division This Division was substituted by the Criminal Procedure Amendment (Case Management) Act 2009 No 112 (which commenced on 1 February 2010) and has been amended substantially by the Criminal Procedure Amendment (Mandatory Pre-Trial Defence Disclosure) Act 2013 No 10 (which commenced on 1 September 2013). The 2013 amendments require the prosecution and defence to undertake mandatory pre-trial disclosure of specified matters in proceedings for indictable offences. The 2013 amendments apply only in respect of proceedings in which the indictment was presented or filed on or after the commencement date, 1 September 2013: see cl 79(1) Sch 2 at [2-Sch 2]. This Division, as in force before the 2013 amendments, continues to apply in respect of proceedings in which the indictment was presented or filed before 1 September 2013: see cl 79(2) Sch 2 at [2-Sch 2]. [2-s 134.10] Scope of Division after 2013 amendments In the second reading speech for the Evidence Amendment (Evidence of Silence) Bill 2013 and the Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Bill (introduced as cognate bills) the Attorney General said (Legislative Assembly, Hansard, 13 March 2013): The purpose of the Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Bill is to reform the case management provisions in part 3, division 3 of the Criminal Procedure Act 1986. It expands the scope of mandatory disclosure requirements in criminal trials and allows an unfavourable inference to be drawn by a jury against a defendant who fails to comply with a pre-trial disclosure requirement under the division. The new provisions will apply to all trials in the District and the Supreme Court. The Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Bill is intended to complete the reforms in the Evidence Amendment (Evidence of Silence) Bill. The bills provide opportunities for an accused to provide information and thereby facilitate the course of justice, first, when an accused is spoken to by the police and, secondly, at a time when the prosecution will have outlined its case before trial. The bills also allow an unfavourable inference to be drawn against an accused at trial. ... I now turn to the changes proposed to the Criminal Procedure Act in the Pre-trial Defence Disclosure Bill. This bill provides consequences for choosing to remain silent once criminal proceedings have been committed for trial. Its provisions operate independently of the amendments to the Evidence Act. However, they will complement those changes as they represent a second opportunity for an accused to provide information and thereby facilitate the course of justice. The primary purpose of the new case management regime is to narrow the contested issues at trial. This will lead to shorter trials and will prevent inconvenience to those witnesses whose evidence can be agreed beforehand. Importantly, however, the provisions will also provide a consequence for accused persons who frustrate the criminal justice process by not engaging with the court and the prosecution in identifying the issues in dispute before their trial. ... The changes to the Evidence Act and the Criminal Procedure Act will assist in breaking down the wall of silence put up by accused persons seeking to frustrate the criminal justice process and cause delay. Such people wait until their trial to inform the court and the prosecution of the defences they seek to rely on, evidence that is in dispute and the witnesses that the prosecution is required to call in order to prove its case.

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CRIMINAL PROCEDURE ACT 1986

[2-s 136]

The changes to the case management provisions in the Criminal Procedure Act will also help to ensure the smooth running of criminal cases in the higher courts through effective and efficient case management, as well as complementing the Evidence Act changes by offering a second opportunity for the accused to provide information to the prosecution by way of disclosure obligations, or run the risk of an unfavourable inference. It is a long-held truism that justice delayed is justice denied. All accused persons are entitled to a fair trial. Equally, the prosecution is entitled to an opportunity to present its case against the accused properly and fairly. These reforms will help to reduce delays in the criminal justice process and therefore promote fairness to both prosecution and the accused. For too long, criminals have sought to hide behind a wall of silence in criminal proceedings. [2-s 134.15] Case management provisions for summary matters in higher courts Division 2A of Pt 5 (ss 247A–247Y) at [2-s 247A]ff provides the Supreme Court (in its summary jurisdiction) and the Land and Environment Court with pretrial management powers and procedures similar to (but not identical with) those contained in ss 134–149F. A significant point of difference between the two sets of provisions is the express provision for case management of sentencing hearings in the summary jurisdiction of the Supreme Court and the Land and Environment Court, whereas ss 134–149F relate entirely to pretrial case management. Following the enactment of Div 2A of Pt 5, the Chief Judge of the Land and Environment Court issued a Practice Note applicable to Class 5 proceedings in that court — see [28-22,005]. [2-s 134.20] Case management of Local Court summary criminal proceedings The case management provisions in ss 134–149F of the Criminal Procedure Act apply to proceedings on indictment only and do not apply to Local Court proceedings: s 134; Andrews v Ardler (2012) 266 FLR 177; [2012] NSWSC 845; BC201205424 at [58]. In Director of Public Prosecutions (NSW) v Wililo [2012] NSWSC 713; BC201204764 at [49]–[50] it was observed that there is no equivalent statutory regime (to ss 134–149F and ss 247A–247Y) in the Criminal Procedure Act applicable to summary trials in the Local Court. However, for some years, there have been procedures for service of prosecution witness statements to the defence in advance of the hearing, with the intention of assisting the efficient, speedy and fair determination of a summary hearing: Director of Public Prosecutions v West (2000) 48 NSWLR 647; [2000] NSWCA 103; BC200002228 at [22]–[23]. Provision is made by way of a Practice Note issued by the Chief Magistrate under ss 26(2)(a) and 27 of the Local Court Act 2007 for case management of criminal proceedings in the Local Court — see Local Court Practice Note Crim 1 (issued 24 April 2012) at [28-15,205].

[2-s 135] Definitions 135 (1) In this Division: court means the Supreme Court or District Court. pre-trial conference means a conference held under section 140. pre-trial hearing means a hearing held under section 139. (2) In this Division, a reference to the accused person is to be read as including a reference to the Australian legal practitioner representing the accused person.

[2-s 136] Directions for conduct of proceedings 136 At the first mention of proceedings in the court before which the trial is proposed to be heard, the presiding Judge is to give directions with respect to the future conduct of the trial. [s 136 am Act 10 of 2013 Sch 1[1], opn 1 Sep 2013]

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Criminal Procedure

s 136

[2-s 136.5]

s 136

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

COMMENTARY ON SECTION 136 Operation of section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Supreme Court Practice Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . District Court Practice Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 136.5] [2-s 136.10] [2-s 136.15]

[2-s 136.5] Operation of section In the second reading speech for the Evidence Amendment (Evidence of Silence) Bill 2013 and the Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Bill (introduced as cognate bills) the Attorney General explained the 2013 amendment to s 136 in the following way (Legislative Assembly, Hansard, 13 March 2013): Item [1] of schedule 1 amends section 136 of the Criminal Procedure Act to remove the requirement for the presiding judge, at the first mention of proceedings before the trial court, to make a direction as to the time by which the prosecution and defence must comply with their mandatory disclosure requirements. In practice, the courts have not applied this part of section 136, as standard directions in practice notes issued in the District Court and the Supreme Court dictate the time frames for service. [2-s 136.10] Supreme Court Practice Note Practice Note SC CL 2 was reissued on 20 September 2013 (to commence on 1 October 2013) to give effect to the 2013 case management amendments: see at [28-5005]. [2-s 136.15] District Court Practice Note District Court Criminal Practice Note 9 issued on 19 August 2013 relating to the 2013 case management amendments: see at [28-10,140].

[2-s 137] Notice of prosecution case to be given to accused person 137

[s 137 rep Act 10 of 2013 Sch 1[2], opn 1 Sep 2013]

[2-s 138] Notice of defence response to be given to prosecutor 138

[s 138 rep Act 10 of 2013 Sch 1[3], opn 1 Sep 2013]

[2-s 139] Pre-trial hearings 139 (1) At the first mention of proceedings in the court before which the trial is proposed to be heard or at any other time, the court may order the prosecutor and the accused person to attend one or more pre-trial hearings before the court so long as the time appointed for any such hearing occurs after the indictment has been presented or filed. (2) During a pre-trial hearing, the court may make such orders, determinations or findings, or give such directions or rulings, as it thinks appropriate for the efficient management and conduct of the trial. (3) Without limiting subsection (2), the court may take any or all of the following action under that subsection: (a) hear and determine an objection to the indictment, (b) order the holding of a pre-trial conference under section 140, (c) determine the timetable for pre-trial disclosure under section 141, (d) give a direction under section 145(3), (e) give a ruling or make a finding under section 192A of the Evidence Act 1995 as if the trial had commenced, (f) hear and determine a submission that the case should not proceed to trial,

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[2-s 140]

CRIMINAL PROCEDURE ACT 1986

(g) give a ruling on any question of law that might arise at the trial. [subs (3) am Act 10 of 2013 Sch 1[4], opn 1 Sep 2013]

(4) Despite any other provision of this Act, the court may make any order, determination or finding, or give any ruling, under this section on application by a party to the proceedings or on the court’s own initiative. (5) Any order, determination or finding made, or ruling given, by the court under this section is binding on the trial Judge in the proceedings unless, in the opinion of the trial Judge, it would not be in the interests of justice for the order, determination, finding or ruling to be binding. (6) Except with the leave of the court, a party to proceedings may not raise a matter referred to in subsection (3)(a) or (e) at trial if a pre-trial hearing was held in the proceedings and the matter was not raised at the pre-trial hearing. (7) Leave is not to be granted under subsection (6) unless the court is of the opinion that it would be contrary to the interests of justice to refuse leave to raise the matter concerned. COMMENTARY ON REPEALED SECTION 139 Section 192A of Evidence Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 139.10]

[2-s 139.10] Section 192A of Evidence Act Section 139(3)(e) of this Act refers to s 192A of the Evidence Act 1995. Under s 192A the court may, if it considers it to be appropriate to do so, give advanced rulings or make advanced findings in relation to certain questions.

[2-s 140] Pre-trial conferences 140 (1) At the first mention of proceedings in the court before which the trial is proposed to be heard or at any other time, the court may order that a pre-trial conference is to be held so long as the time appointed for any such conference occurs after the indictment has been presented or filed. (2) The court may order the holding of a pre-trial conference under this section on application of any party or on the court’s own initiative. (3) The court may make such an order only if the accused person will be represented by an Australian legal practitioner at the pre-trial conference. (4) The purpose of the pre-trial conference is to determine whether the accused person and the prosecutor are able to reach agreement regarding the evidence to be admitted at the trial. (5) The following persons must be present during the pre-trial conference: (a) the prosecutor, (b) the Australian legal practitioner representing the accused person. (6) If the accused person has been charged jointly with any other person with the offence concerned, a joint pre-trial conference may be held in respect of two or more co-accused, but only with the consent of the prosecution and each of the co-accused concerned. (7) A requirement under this section that a person be present for the purposes of a pre-trial conference is taken to be satisfied if the person is present or available by way of an audio visual link or telephone. (8) Within 7 days after the holding of a pre-trial conference:

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Criminal Procedure

s 140

[2-s 140]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 140

(a) the prosecutor and the Australian legal practitioner who represented the accused person at the pre-trial conference must complete a pre-trial conference form, and (b) the prosecutor must file the pre-trial conference form with the court. (9) The pre-trial conference form: (a) is to indicate the areas of agreement and disagreement between the accused person and the prosecutor regarding the evidence to be admitted at the trial, and (b) is to be signed by the prosecutor and the Australian legal practitioner representing the accused person. (10) Except with the leave of the court, a party to proceedings may not object to the admission of any evidence at trial if the pre-trial conference form indicates that the parties have agreed that the evidence is not in dispute. (11) Leave is not to be granted under subsection (10) unless the court is of the opinion that it would be contrary to the interests of justice to refuse leave.

[2-s 141] Mandatory pre-trial disclosure 141 (1) After the indictment is presented or filed in proceedings, the following pre-trial disclosure is required: (a) the prosecutor is to give notice of the prosecution case to the accused person in accordance with section 142, (b) the accused person is to give notice of the defence response to the prosecution’s notice in accordance with section 143, (c) the prosecution is to give notice of the prosecution response to the defence response in accordance with section 144. (2) Pre-trial disclosure required by this section is to take place before the date set for the trial in the proceedings and in accordance with a timetable determined by the court. Note. Practice notes issued by the court will guide determinations of the timetable for pre-trial disclosures and related matters.

(3) The court may vary any such timetable if it considers that it would be in the interests of the administration of justice to do so. (4) The regulations may make provision for or with respect to the timetable for pre-trial disclosure. [s 141 subst Act 10 of 2013 Sch 1[5], opn 1 Sep 2013]

COMMENTARY ON SECTION 141 Mandatory pre-trial disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 141.5]

[2-s 141.5] Mandatory pre-trial disclosure In the second reading speech for the Evidence Amendment (Evidence of Silence) Bill 2013 and the Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Bill (introduced as cognate bills) the Attorney General said with respect to new ss 141, 142 and 143 (Legislative Assembly, Hansard, 13 March 2013): Item [5] of schedule 1 replaces sections 141, 142 and 143 with new provisions containing the mandatory disclosure requirements and the new procedures for both the prosecution and the defence. Subsection (1) of the amended section 141 sets out the sequence of disclosure. The prosecution is first required to provide a notice of the prosecution case to the accused person, and in response the accused must provide a notice of defence response to the prosecution. The prosecution must then provide its notice of response to the defence response. Section 149 of the current Act remains unchanged. It makes it clear that all notices given under the division

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CRIMINAL PROCEDURE ACT 1986

[2-s 141.5]

on behalf of the accused person are taken to be with their authority, and all notices must be filed with the court. This is an important requirement that remains in the division, as the intent of the provisions is to put the parties and the court in the best position to understand the issues to be debated at trial. Subsection (2) of the amended section 141 confirms that disclosure must take place before the date set for trial and in accordance with a timetable determined by the court. In practice, the relevant timetable is set out in court practice notes. It is intended that this practice continue, with a period out from trial being nominated. These time frames have been set because it is anticipated that trial counsel for the prosecution and the defence will have been briefed by that stage, and will be able to undertake the tasks of drafting and settling the notices, as well as identifying and hopefully resolving issues in dispute between the parties. Subsection (3) of the amended section 141 allows the court to vary the timetable where it is in the interests of justice to do so. Subsection (4) of the amended section 141 allows regulations to be made providing for the timetable for service. Subsection (1) of the amended section 142 sets out what is required in the prosecution’s notice. It includes the material that is currently required to be served under both the mandatory and court-ordered discretionary provisions. It has been expanded to reflect the extended coverage of mandatory defence disclosure, for example, in now requiring the prosecution to include a copy of any information that is adverse to the credit or the credibility of the accused. Subsection (2) of the amended section 142 allows for regulations to provide for the form and content of the statement of facts required to be included in the prosecution’s notice. The statement of facts is a summary of the prosecution allegations and evidence. Subsection (3) provides a definition of the term “law enforcement officer” used in subsection 1(i). This amendment is required as the duty of disclosure found in section 15A of the Director of Public Prosecutions Act was recently amended to apply to officers of the Police Integrity Commission, New South Wales Crime Commission and the Independent Commission Against Corruption, as well as police officers, all described in that Act as law enforcement officers. The definition in subsection 3 matches the definition of “law enforcement officer” now found in the Director of Public Prosecutions Act. The amended section 143 sets out the mandatory and discretionary disclosure requirements for the defence. Subsection 1 requires the notice of the defence response to include the current mandatory material, such as the name of the accused’s legal representative and a notice in relation to any evidence that can be agreed. However, it also requires disclosure of the nature of the accused’s defence, including particular defences to be relied on, the facts, matters or circumstances on which the prosecution intends to rely to prove guilt — as indicated in the prosecution’s notice — and with which the accused intends to take issue, and points of law that the accused intends to raise. These additional mandatory requirements draw on what the court can currently require the defence to disclose on a discretionary basis in the existing version of section 143. Drawing on the language of the existing provisions may assist practitioners in understanding and complying with the new defence requirements. As I have already set out, this information is not required to be disclosed until after the prosecution notice has been served, and a number of weeks out from trial. This will likely be some months after committal from the Local Court, by which time it is expected that the prosecution will have served all of the evidence it seeks to rely on at trial and disclosed all material that would reasonably be regarded as relevant to the defence case. In such circumstances, it is reasonable to expect the defence to disclose the matters set out in the amended section 143. It will enable the parties to focus on the real issues that will be in dispute at trial, with the result that trials are likely to be shorter in length and witnesses will not be called unnecessarily to give evidence from the witness box that can be reduced to writing or tendered in a statement.

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Criminal Procedure

s 141

[2-s 141.5]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 141

Subsection (2) of the amended section 143 sets out what material the court can order the defence to disclose in the same notice, in addition to the mandatory requirements. It includes the same material provided for in the current discretionary defence disclosure provisions, excluding that material captured by the three additional mandatory requirements in paragraphs (b), (c) and (d) of proposed section 143(1). Keeping certain elements of defence disclosure discretionary is suited to the practicalities of the conduct of trials in New South Wales’s higher courts, which can range from simple single-issue cases with one accused, to highly complex cases involving many months of evidence and with multiple accused. Any mandatory model must reflect this reality and be capable of adapting to the circumstances of each case. The new discretionary defence provisions in the bill will allow the courts to tailor requirements on a case-by-case basis to avoid unnecessarily causing delays in the management of trials. Proposed subsection (2)(b), for example, requires the defence to confirm whether the prosecution is required to call witnesses to corroborate any surveillance on which it is intended to rely. Surveillance evidence within the meaning of the subsection is intended to have a broad meaning. It can include traditional surveillance evidence, such as physical observations of suspects recorded in logs by the police, as well as that obtained under warrant, such as evidence resulting from the placing of a listening device in a particular location. This evidence may not be relevant in some cases, and allowing the court to make an order means that the judge can tailor its terms to fit the type of evidence in question.

[2-s 142] Prosecution’s notice 142 (1) For the purposes of section 141(1)(a), the prosecution’s notice is to contain the following: (a) a copy of the indictment, (b) a statement of facts, (c) a copy of a statement of each witness whose evidence the prosecutor proposes to adduce at the trial, (c1) in accordance with Division 3 of Part 4B of Chapter 6, a copy of any recorded statement that the prosecutor intends to adduce at the trial, (c2) if the prosecutor proposes to adduce at the trial the transcript of an audio or a visual recording, a copy of that transcript, Note. This paragraph does not require the prosecution’s notice to contain copies of transcripts of recorded statements (within the meaning of section 289D) unless the prosecutor proposes to adduce such transcripts at the trial.

(d) a copy of each document, evidence of the contents of which the prosecutor proposes to adduce at the trial, (e) if the prosecutor proposes to adduce evidence at the trial in the form of a summary, a copy of the summary or, where the summary has not yet been prepared, an outline of the summary, (f) a copy of any exhibit that the prosecutor proposes to adduce at the trial, (g) a copy of any chart or explanatory material that the prosecutor proposes to adduce at the trial, (h) if any expert witness is proposed to be called at the trial by the prosecutor, a copy of each report by the witness that is relevant to the case, (i) a copy of any information, document or other thing provided by law enforcement officers to the prosecutor, or otherwise in the possession of the

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(j)

(k) (l) (m)

CRIMINAL PROCEDURE ACT 1986

[2-s 142.5]

prosecutor, that would reasonably be regarded as relevant to the prosecution case or the defence case, and that has not otherwise been disclosed to the accused person, a list identifying: (i) any information, document or other thing of which the prosecutor is aware and that would reasonably be regarded as being of relevance to the case but that is not in the prosecutor’s possession and is not in the accused person’s possession, and (ii) the place at which the prosecutor believes the information, document or other thing is situated, a copy of any information in the possession of the prosecutor that is relevant to the reliability or credibility of a prosecution witness, a copy of any information, document or other thing in the possession of the prosecutor that would reasonably be regarded as adverse to the credit or credibility of the accused person, a list identifying the statements of those witnesses who are proposed to be called at the trial by the prosecutor.

[subs (1) am Act 83 of 2014 Sch 1[8], opn 1 June 2015; Act 47 of 2018 Sch 1[1], opn 2 Nov 2018]

(2) The regulations may make provision for or with respect to the form and content of a statement of facts for the purposes of this section. (3) In this section, law enforcement officer means a police officer, or an officer of one of the following agencies: (a) the Law Enforcement Conduct Commission, (b) the New South Wales Crime Commission, (c) the Independent Commission Against Corruption. [subs (3) am Act 61 of 2016 Sch 6.11[3], opn 1 July 2017] [s 142 subst Act 10 of 2013 Sch 1[5], opn 1 Sep 2013]

COMMENTARY ON SECTION 142 Prosecution general law duty of disclosure . . . . . . . . . . . . . . . . . . . . . .

[2-s 142.5]

[2-s 142.5] Prosecution general law duty of disclosure Quite apart from the provisions in this Division, the prosecution is under a continuing obligation to make full disclosure to the accused, in a timely manner, of all material known to the prosecutor which can be seen, on a sensible appraisal by the prosecution: (a) to be relevant or possibly relevant to an issue in the case; (b) to raise or possibly raise a new issue, whose existence is not apparent from the evidence, the prosecution proposes to use; and/or (c) to hold out a real as opposed to fanciful prospect of providing a lead to evidence which goes to either of the previous two situations: para 18 of the Prosecution Guidelines of the Office of the Director of Public Prosecutions, at [28-25,090]; cf Grey v R (2001) 184 ALR 593; 75 ALJR 1708; [2001] HCA 65; BC200107041; Bailey v Dept of Land and Water Conservation (2009) 74 NSWLR 333; [2009] NSWCA 100; BC200903503. It was held in Grey at [23] that there was no reason why the defence should have to fossick for documents to which they were entitled. In a joint judgment in Mallard v R (2005) 224 CLR 125 at 133; 222 ALR 236; [2005] HCA 68; BC200509688, Gummow, Hayne, Callinan and Heydon JJ confirmed that Grey stands as authority for the proposition that the prosecution must at common law disclose all relevant evidence to an accused, and that a failure to do so may, in some circumstances, require the quashing of a verdict of guilty.

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Criminal Procedure

s 142

[2-s 142.5]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 142

The extent of the Crown’s duty of disclosure, and the consequences of a breach of that duty, were considered in R v Reardon (No 2) (2004) 60 NSWLR 454; 146 A Crim R 475; [2004] NSWCCA 197; BC200403886 at [95], where Simpson J suggested there might be a distinction between the duty to provide copies of documents as part of the prosecution brief and a duty to disclose the existence of documents and to make them available for inspection. In R v Spiteri (2004) 61 NSWLR 369; [2004] NSWCCA 321; BC200406903; 11(11) Crim LN [1792] the views expressed in R v Reardon, above, were further examined and it was held that the prosecution was not required to disclose evidence as to the physical capacity of the accused. Judge Simpson stated at [25] that: The Crown cannot be expected to disclose material in its possession which might assist a defence of which it has no notice, and cannot be expected to foresee. In that case it was relevant that the accused declined to be interviewed by police and did not expressly reveal what his defence might be. In R v Livingstone (2004) 150 A Crim R 117; [2004] NSWCCA 407; BC200408071 the duty of the prosecution to disclose documents was again considered and Simpson J stated that a ground in respect of the failure of the prosecution to disclose documents raised four questions: (i) (ii) (iii) (iv)

ought the documents to have been disclosed; what is involved in disclosure; whether documents were adequately disclosed and; whether non-disclosure resulted in a miscarriage of justice.

In that case, although the interview between police and another person should have been disclosed, the failure did not result in a miscarriage of justice.

[2-s 143] Defence response 143 (1) For the purposes of section 141(1)(b), the notice of the defence response is to contain the following: (a) the name of any Australian legal practitioner proposed to appear on behalf of the accused person at the trial, (b) the nature of the accused person’s defence, including particular defences to be relied on, (c) the facts, matters or circumstances on which the prosecution intends to rely to prove guilt (as indicated in the prosecution’s notice under section 142) and with which the accused person intends to take issue, (d) points of law which the accused person intends to raise, (e) notice of any consent that the accused person proposes to give at the trial under section 190 of the Evidence Act 1995 in relation to each of the following: (i) a statement of a witness that the prosecutor proposes to adduce at the trial, (ii) a summary of evidence that the prosecutor proposes to adduce at the trial, (f) a statement as to whether or not the accused person intends to give any notice under section 150 (Notice of alibi) or, if the accused person has already given such a notice, a statement that the notice has been given, (g) a statement as to whether or not the accused person intends to give any notice under section 151 (Notice of intention to adduce evidence of substantial mental impairment).

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CRIMINAL PROCEDURE ACT 1986

[2-s 144]

(h) if any expert witness is proposed to be called at the trial by the accused person, a copy of each report by that witness that is relevant to the case and on which the accused person intends to rely, (i) notice as to whether the accused person proposes to raise any issue with respect to the continuity of custody of any proposed exhibit disclosed by the prosecutor, (j) notice of any significant issue that the accused person proposes to raise regarding the form of the indictment, severability of the charges or separate trials for the charges, (k) if the prosecutor disclosed an intention to adduce at the trial any audio or visual recording or the transcript of any audio or visual recording: (i) any request that the accused person has that the recording or transcript be edited (other than in circumstances to which subsection (2)(d) relates), and (ii) particulars sufficient to clearly identify the edits that the accused person requests. [subs (1) am Act 47 of 2018 Sch 1[2], opn 2 Nov 2018]

(2) The notice of the defence response is also to contain such of the following matters (if any) as the court orders: (a) [repealed] (b) if the prosecutor disclosed an intention to adduce evidence at the trial that has been obtained by means of surveillance, notice as to whether the accused person proposes to require the prosecutor to call any witnesses to corroborate that evidence and, if so, which witnesses will be required, (c) [repealed] (d) if the prosecutor disclosed an intention to tender at the trial any transcript, notice as to whether the accused person accepts the transcript as accurate and, if not, in what respect the transcript is disputed, (e) notice as to whether the accused person proposes to dispute the authenticity or accuracy of any proposed documentary evidence or other exhibit disclosed by the prosecutor, (f) [repealed] (g) notice of any consent the accused person proposes to give under section 184 of the Evidence Act 1995. [subs (2) am Act 47 of 2018 Sch 1[3], opn 2 Nov 2018] [s 143 subst Act 10 of 2013 Sch 1[5], opn 1 Sep 2013]

[2-s 144] Prosecution response to defence response 144 For the purposes of section 141(1)(c), the notice of the prosecution response to the defence response is to contain the following: (a) if the accused person has disclosed an intention to adduce expert evidence at the trial, notice as to whether the prosecutor disputes any of the expert evidence and, if so, in what respect, (b) if the accused person has disclosed an intention to tender any exhibit at the trial, notice as to whether the prosecutor proposes to raise any issue with respect to the continuity of custody of the exhibit,

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Criminal Procedure

s 144

[2-s 144]

s 144

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

(c) if the accused person has disclosed an intention to tender any documentary evidence or other exhibit at the trial, notice as to whether the prosecutor proposes to dispute the accuracy or admissibility of the documentary evidence or other exhibit, (d) notice as to whether the prosecutor proposes to dispute the admissibility of any other proposed evidence disclosed by the accused person, and the basis for the objection, (d1) if the accused person has requested any editing of any audio or visual recording, or the transcript of any audio or visual recording, that the prosecutor intends to adduce at the trial, notice as to: (i) whether the prosecutor disputes any of the requested editing, and (ii) which requested edits are disputed, if any, (e) a copy of any information, document or other thing in the possession of the prosecutor, not already disclosed to the accused person, that might reasonably be expected to assist the case for the defence, (f) a copy of any information, document or other thing that has not already been disclosed to the accused person and that is required to be contained in the notice of the case for the prosecution. [s 144 am Act 10 of 2013 Sch 1[6], opn 1 Sep 2013; Act 47 of 2018 Sch 1[4], opn 2 Nov 2018]

COMMENTARY ON SECTION 144 Prosecution response . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 144.5]

[2-s 144.5] Prosecution response In the second reading speech for the Evidence Amendment (Evidence of Silence) Bill 2013 and the Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Bill (introduced as cognate bills) the Attorney General said (Legislative Assembly, Hansard, 13 March 2013): Item [6] of schedule 1 amends section 144 to remove a reference to “court-ordered pre-trial disclosure”. Currently a prosecution response is required only to a court-ordered defence response, and not to a mandatory defence response. A prosecution response will now be required in all cases where the accused person has given a defence response under the amended section 143, irrespective of whether that response includes mandatory or discretionary material.

[2-s 145] Dispensing with formal proof 145 (1) If a fact, matter or circumstance was alleged in a notice required to be given to the accused person by the prosecutor in accordance with this Division and the accused person was required to give a defence response under section 143 but did not disclose in the response an intention to dispute or require proof of the fact, matter or circumstance, the court may order that: (a) a document asserting the alleged fact, matter or circumstance may be admitted at the trial as evidence of the fact, matter or circumstance, and (b) evidence may not, without the leave of the court, be adduced to contradict or qualify the alleged fact, matter or circumstance. (2) If evidence was disclosed by the prosecution to the accused person in accordance with this Division and the accused person was required to give a defence response under section 143 but did not include notice in that response under section 143(1)(c) in relation

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CRIMINAL PROCEDURE ACT 1986

[2-s 145.10]

to that evidence, the court may, by order, dispense with the application of any one or more of the following provisions of the Evidence Act 1995 in relation to the adducing of the evidence at trial: (a) Division 3, 4 or 5 of Part 2.1, (b) Part 2.2 or 2.3, (c) Parts 3.2–3.8. [subs (2) am Act 10 of 2013 Sch 1[7], opn 1 Sep 2013]

(3) The court may, on the application of a party, direct that the party may adduce evidence of 2 or more witnesses in the form of a summary if the court is satisfied that: (a) the summary is not misleading or confusing, and (b) admission of the summary instead of evidence from the witnesses will not result in unfair prejudice to any party to the proceedings. (4) The court may, in a direction under subsection (3), require that one or more of the witnesses whose evidence is to be adduced in the form of a summary are to be available for cross-examination. (5) The opinion rule (within the meaning of the Evidence Act 1995) does not apply to evidence adduced in accordance with a direction under subsection (3). (6) The provisions of this section are in addition to the provisions of the Evidence Act 1995, in particular, section 190. COMMENTARY ON SECTION 145 Scope of amended section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Evidence Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 145.5] [2-s 145.10]

[2-s 145.5] Scope of amended section In the second reading speech for the Evidence Amendment (Evidence of Silence) Bill 2013 and the Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Bill (introduced as cognate bills) the Attorney General referred to amendments to s 145 (Legislative Assembly, Hansard, 13 March 2013): Item [7] of schedule 1 amends subsection (2) of section 145 so that it now refers to the new mandatory defence requirement to set out the prosecution facts, matters or circumstances with which the accused takes issue. This is instead of the current discretionary requirement to give notice as to whether the accused proposes to dispute the admissibility of any evidence, as that requirement will now be captured by the requirement in the bill to set out the prosecution facts, matters or circumstances with which the accused takes issue. If the accused fails to identify any issue with prosecution evidence of a fact, matter or circumstance, then the prosecution may be permitted by the court to dispense with formal proof in accordance with subsections (1) and (2) of section 145. For example, the prosecution may be allowed to ask leading questions of a prosecution witness where the accused has failed to take issue with that evidence in the defence response, or the prosecution may be allowed to adduce evidence impugning the credibility of a defence witness, which would otherwise be excluded by the Evidence Act, where the accused has failed to take issue with that evidence. [2-s 145.10] Evidence Act Section 145(5) of this Act refers to “the opinion rule (within the meaning of the Evidence Act 1995)”. The opinion rule is that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed, see at [3-s 76]. Section 145(6) of this Act refers to s 190 of the Evidence Act, see at [3-s 190]. Section 190 permits the court, but only if the parties consent, to dispense with the application of any one or more of the provisions of the Evidence Act contained in: (a) Divisions 3, 4 or 5 or Part 2.1, or

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Criminal Procedure

s 145

[2-s 145.10]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 145

(b) Part 2.2 or 2.3, or (c) Parts 3.2–3.8.

[2-s 146] Sanctions for non-compliance with pre-trial disclosure requirements 146 (1) Exclusion of evidence not disclosed The court may refuse to admit evidence in proceedings that is sought to be adduced by a party who failed to disclose the evidence to the other party in accordance with requirements for pre-trial disclosure imposed by or under this Division. (2) Exclusion of expert evidence where report not provided The court may refuse to admit evidence from an expert witness in proceedings that is sought to be adduced by a party if the party failed to give the other party a copy of a report by the expert witness in accordance with requirements for pre-trial disclosure imposed by or under this Division. (3) Adjournment The court may grant an adjournment to a party if the other party seeks to adduce evidence in the proceedings that the other party failed to disclose in accordance with requirements for pre-trial disclosure imposed by or under this Division and that would prejudice the case of the party seeking the adjournment. (4) Application of sanctions Without limiting the regulations that may be made under subsection (5), the powers of the court may not be exercised under this section to prevent an accused person adducing evidence unless the prosecutor has complied with the requirements for pre-trial disclosure imposed on the prosecution by or under this Division. (5) Regulations The regulations may make provision for or with respect to the exercise of the powers of a court under this section (including the circumstances in which the powers may not be exercised). COMMENTARY ON SECTION 146 Non-compliance with pre-trial disclosure requirements . . . . . . . . . . .

[2-s 146.5]

[2-s 146.5] Non-compliance with pre-trial disclosure requirements In the second reading speech for the Criminal Procedure Amendment (Case Management) Bill 2009 the Parliamentary Secretary, on behalf of the Attorney General, said (Legislative Council, Hansard, 1 December 2009): Clause 146 enables the court to refuse to admit evidence that was not disclosed in accordance with the pre-trial disclosure requirements of the proposed Division and to exclude expert evidence where a copy of the report of the evidence was not provided to the other party in accordance with those requirements. The court may also grant an adjournment if a party to proceedings seeks to adduce evidence not previously disclosed that would prejudice the case of the other party to the proceedings. The court cannot use its powers under the proposed section to prevent the accused person adducing evidence unless the prosecutor has complied with the pre-trial disclosure requirements. Section 146 was not affected by the Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Act 2013 No 10.

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CRIMINAL PROCEDURE ACT 1986

[2-s 146A.5]

[2-s 146A] Drawing of inferences in certain circumstances 146A (1) This section applies if: (a) the accused person fails to comply with the requirements for pre-trial disclosure imposed by or under this Division on the accused person, or (b) the accused person is required to give a notice under section 150 (Notice of alibi) and fails to do so. (2) If this section applies: (a) the court, or any other party with the leave of the court, may make such comment at the trial as appears proper, and (b) the court or jury may then draw such unfavourable inferences as appear proper. (3) A person must not be found guilty of an offence solely on an inference drawn under this section. (4) Subsection (2) does not apply unless the prosecutor has complied with the requirements for pre-trial disclosure imposed by or under this Division on the prosecution. (5) This section does not limit the operation of section 146. [s 146A insrt Act 10 of 2013 Sch 1[8], opn 1 Sep 2013]

COMMENTARY ON SECTION 146A Operation of section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 146A.5]

[2-s 146A.5] Operation of section In the second reading speech for the Evidence Amendment (Evidence of Silence) Bill 2013 and the Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Bill (introduced as cognate bills) the Attorney General said (Legislative Assembly, Hansard, 13 March 2013): Item [8] of schedule 1 introduces a new section 146A into the Criminal Procedure Act that sets out the circumstances in which comment can be made and an unfavourable inference drawn against an accused at trial. Proposed subsection (1)(a) confirms that the section will only apply when the accused person has failed to comply with a disclosure requirement imposed on them by the division. This may happen where the accused simply fails to serve a response to the prosecution case. Alternatively, the accused may serve a response, but then seek to rely at trial on a defence that was not mentioned in that response, or take issue with a prosecution fact, matter or circumstance that was not addressed in the response. Proposed subsection (1)(b) specifically states that the new section 146A also applies if the accused fails to serve a notice of alibi, as required by section 150 of the Criminal Procedure Act. Section 150 requires a notice to be served in the period after committal and 42 days before the trial is listed for hearing. This means it should have been served before the defence response is due. The response itself requires the accused to state whether they intend to serve an alibi notice, or to state that a notice has already been given under section 150. These provisions do not alter the existing time frame in section 150, or the limitations that can be placed on the adducing of alibi evidence if the notice is not served in time. If the new section 146A applies, then two steps are set out under proposed subsection (2). First, the court, or any other party with the leave of the court, may make such comment at the trial as appears proper. “Any other party” is likely to mean prosecution counsel, who may wish to bring the accused’s failure to raise relevant matters in their response to the prosecution case to the attention of the jury during his or her closing. It could also refer to counsel for a co-accused. The party seeking to make comment will not be allowed to invite the jury to draw an unfavourable inference. They are only permitted to highlight the failures of the accused, and will need to seek the judge’s permission in the absence of the jury before doing so. Only the trial judge will be permitted to comment to the jury about the availability of the unfavourable

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Criminal Procedure

s 146A

[2-s 146A.5]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 146A

inference. It is intended that the Judicial Commission’s Bench Book Committee will prepare material for judges giving guidance on how to make such comment to the jury. Secondly, once comment has been made, the court — if it is sitting as a judge-alone trial without a jury — or the jury may then draw such unfavourable inferences as appear proper. In considering what inferences appear proper, the court or the jury will take into account the circumstances of the particular case in which they are being asked to give a verdict. New subsection (3) of the new section 146A states that an accused cannot be found guilty solely on an inference drawn under the section. This is an important safeguard for accused persons, as it ensures that there must be other evidence of the accused’s guilt, besides the unfavourable inference, before the jury can be satisfied beyond a reasonable doubt and return a guilty verdict. ... A further safeguard for defendants is found in new subsection (4), which confirms that comment cannot be made, or an unfavourable inference drawn, if the prosecution has not complied with its disclosure requirements under the Act. This is only fair. If the prosecution has not outlined its case properly to the accused in the notice of its case then it would not be fair to allow an inference to be drawn. An example of such a failure would be if the notice of the prosecution case did not include information that is relevant to the reliability or credibility of a prosecution witness. However, it should be pointed out that the prosecution can only include in its notice the information and material that it has in its possession at the time the notice is served. If, for example, any information that is relevant to the reliability or credibility of a prosecution witness came into the possession of the prosecution after it had given its notice to the accused, then the prosecution will not have failed to comply with its disclosure requirements under the division if it gives the information to the accused as soon as practicable after receiving it. In this circumstance, the prosecution would be complying with its ongoing duty of disclosure under section 147 of the Act. Also, existing provisions make it clear that the prosecution or the defence are not required to include in a notice material that has been previously served. It is sufficient, for example, to provide a list of statements held. Neither is either party required to include in a notice a copy of material that is impracticable to copy, as long as details are provided of where and when it can be inspected. These amendments, read in conjunction with the existing division, take a practical approach to the exchange of notices. They have been drafted with reference to the existing practices of prosecution and defence agencies in mind, and reflect the operational demands of the trials seen day in, day out in our courts. It is not the intention of the bill to clutter the courts with technical disputes. It is not expected that these notices will be lacking if, say, a line of a statement is lost. These notices are about setting out the respective parties’ cases and what is in dispute. It does not remove the professional responsibility placed on a lawyer to make sensible inquiries for a full or clearer copy of a statement. New subsection (5) of section 146A confirms that new section 146A does not affect the operation of section 146, which sets out existing sanctions for failures to comply with disclosure requirements. By way of example, section 146 may operate to prevent a party from adducing evidence at trial that the party failed to disclose to the other party in accordance with the Act’s disclosure requirements. It also allows the other party to apply for an adjournment of the trial listing date in order to consider that evidence. Those sanctions will remain in the current form of section 146 and will continue to apply equally to the defence and the prosecution.

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CRIMINAL PROCEDURE ACT 1986

[2-s 147.5]

[2-s 147] Disclosure requirements are ongoing 147 (1) The obligation to comply with the requirements for pre-trial disclosure imposed by or under this Division continues until any of the following happens: (a) the accused person is convicted or acquitted of the charges in the indictment, (b) the prosecution is terminated. (2) Accordingly, if any information, document or other thing is obtained or anything else occurs after pre-trial disclosure is made by a party to the proceedings, that would have affected that pre-trial disclosure had the information, document or thing been obtained or the thing occurred before pre-trial disclosure was made, the information, document, thing or occurrence is to be disclosed to the other party to the proceedings as soon as practicable. (3) An accused person may, with the leave of the court, amend the notice of the defence response given under section 143 if any information, document or other thing is obtained from the prosecution after the notice of the defence response was given that would affect the contents of that notice. [subs (3) insrt Act 10 of 2013 Sch 1[9], opn 1 Sep 2013]

(4) The accused person must give the amended notice of the defence response to the prosecutor. [subs (4) insrt Act 10 of 2013 Sch 1[9], opn 1 Sep 2013]

COMMENTARY ON SECTION 147 Ongoing disclosure obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 147.5]

[2-s 147.5] Ongoing disclosure obligations In the second reading speech for the Evidence Amendment (Evidence of Silence) Bill 2013 and the Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Bill (introduced as cognate bills) the Attorney General said (Legislative Assembly, Hansard, 13 March 2013): Item [9] of schedule 1 amends section 147 of the Act to include a new subsection (3), which allows the accused, with the court’s leave, to amend the defence response given under the new section 143 if new material is later obtained from the prosecution that would affect the content of the defence response. As I have said already, if as a result of its ongoing duty of disclosure the prosecution serves new material after it has given its notice to the accused, then that will not be a failure under subsection (4) of new section 146A. However, it is only fair in such circumstances to allow the defence an opportunity to seek leave to amend its notice of response where the material affects its contents. Section 147 is also amended with new subsection (4), which confirms that any amended response must be given to the prosecution. This reinforces subsection (5) of section 149, which states that a copy of all notices required to be given by a party under the Act’s disclosure requirements must also be filed with the court. Such a requirement is necessary to the effective management of cases, as it allows the court to be kept informed of the parties’ compliance — or lack of — with the Act’s provisions, and for any remedial action to be taken by the court. Item [12] of schedule 1 amends section 149 to include a reference to amended notices under the provisions. In keeping with the theme of the giving and filing of notices, the Trial Efficiency Working Group considered during its discussions the issue of the cross service of defence responses between co-accused in multi-defendant cases. The group’s report concluded that court practice notes would be the more effective way of regulating such conduct, and that practice notes should be developed in both the District Court and Supreme Court. The practice notes should give guidance as to how cross service will take place and allow for directions to be made to

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Criminal Procedure

s 147

[2-s 147.5]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 147

reflect the particular circumstances of each case.

[2-s 148] Court may waive requirements 148 (1) A court may, by order, waive any of the pre-trial disclosure requirements that apply under this Division, but only if the court is of the opinion that it would be in the interests of the administration of justice to do so. [subs (1) am Act 10 of 2013 Sch 1[10], opn 1 Sep 2013]

(2) The court may make such an order on its own initiative or on the application of the prosecutor or the accused person. (3) An order may be made subject to such conditions (if any) as the court thinks fit. (4) The court is to take into account whether the accused person is represented by an Australian legal practitioner when considering whether to make an order under this section. [subs (4) insrt Act 10 of 2013 Sch 1[11], opn 1 Sep 2013]

(5) The court is to give reasons for the making of an order under this section. [subs (5) insrt Act 10 of 2013 Sch 1[11], opn 1 Sep 2013]

COMMENTARY ON SECTION 148 Waiver of requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 148.5]

[2-s 148.5] Waiver of requirements In the second reading speech for the Evidence Amendment (Evidence of Silence) Bill 2013 and the Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Bill (introduced as cognate bills) the Attorney General said (Legislative Assembly, Hansard, 13 March 2013): Item [10] of schedule 1 amends section 148 of the Act, which allows the court to waive any of the pre-trial disclosure requirements. The court can make an order on its own initiative, or it can be sought by the prosecution or defence. As I have discussed previously, there are mandatory as well as discretionary elements to defence disclosure requirements, which necessarily allow for flexibility in applying the provisions to the circumstances of each case. However, in order to reflect that compliance with the mandatory disclosure requirements should always be the starting point, the bill amends the existing section 148(1) by introducing an “interests of the administration of justice” test. This test must be applied to any possibility of waiver. Furthermore, the court will also be required to give its reasons when it makes such an order, pursuant to section 148(5). New subsection (4) requires the court to take into account whether the accused is legally represented when considering a waiver order. Currently, the court can only order further defence disclosure where the accused is represented. That requirement is now removed from the provisions. This will ensure that the Act’s provisions are not automatically avoided by an unrepresented defendant, as instead it will be a factor to be taken into account when the court considers waiving the provisions. It will also ensure that there is no impediment to the accused engaging and instructing counsel at the earliest opportunity.

[2-s 149] Requirements as to notices 149 (1) A notice under this Division is to be in writing. (2) Any notice purporting to be given under this Division on behalf of the accused person by his or her Australian legal practitioner is, unless the contrary is proved, taken to have been given with the authority of the accused person.

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CRIMINAL PROCEDURE ACT 1986

[2-s 149B]

(3) A notice under this Division that is required to be given to a prosecutor may be given to the prosecutor in the following manner, or as otherwise directed by the court: (a) by delivering it to the prosecutor, (b) by leaving it at the office of the prosecutor, (c) by sending it by post or facsimile to the prosecutor at the office of the prosecutor, (d) by sending it by electronic mail to the prosecutor, but only if the prosecutor has agreed to notice being given in that manner. (4) A notice under this Division that is required to be given to an accused person may be given to the accused person in the following manner, or as otherwise directed by the court: (a) by delivering it to the accused person, (b) by leaving it at the office of the Australian legal practitioner representing the accused person, (c) by sending it by post or facsimile to the Australian legal practitioner representing the accused person at the office of the Australian legal practitioner, (d) by sending it by electronic mail to the Australian legal practitioner, but only if the Australian legal practitioner has agreed to notice being given in that manner. (5) A party required to give a notice under this Division must file a copy of the notice with the court as soon as practicable after giving it, or as otherwise required by the court. (6) A reference in this section to a notice includes a reference to an amended notice. [subs (6) insrt Act 10 of 2013 Sch 1[12], opn 1 Sep 2013]

[2-s 149A] Copies of exhibits and other things not to be provided if impracticable 149A (1) A copy of a proposed exhibit, document or thing is not required to be included in a notice under this Division if it is impossible or impractical to provide a copy. (2) However, the party required to give the notice: (a) is to specify in the notice a reasonable time and place at which the proposed exhibit, document or thing may be inspected, and (b) is to allow the other party to the proceedings a reasonable opportunity to inspect the proposed exhibit, document or thing referred to in the notice.

[2-s 149B] Personal details not to be provided 149B (1) The prosecutor is not to disclose in any notice under this Division the address or telephone number of any witness proposed to be called by the prosecutor, or of any other living person, unless: (a) the address or telephone number is a materially relevant part of the evidence, or (b) the court makes an order permitting the disclosure. (2) An application for such an order may be made by the accused person or the prosecutor. (3) The court must not make such an order unless satisfied that the disclosure is not likely to present a reasonably ascertainable risk to the welfare or protection of any person or that the interests of justice (including the accused person’s right to prepare properly for the hearing of the evidence for the prosecution) outweigh any such risk.

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Criminal Procedure

s 149B

[2-s 149B]

s 149B

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

(4) This section does not prevent the disclosure of an address if the disclosure does not identify it as a particular person’s address, or it could not reasonably be inferred from the matters disclosed that it is a particular person’s address. (5) An address or telephone number that must not be disclosed may, without reference to the person who made the statement being disclosed, be deleted from that statement, or rendered illegible, before the statement is given to the accused person.

[2-s 149C] Requirements as to statements of witnesses 149C (1) A statement of a witness that is included in a notice under this Division may be in the form of questions and answers. (2) If a notice includes a statement that is, wholly or in part, in a language other than English, there must be annexed to it a document purporting to contain a translation of the statement, or so much of it as is not in the English language, into the English language.

[2-s 149D] Exemption for matters previously disclosed 149D (1) The prosecutor is not required to include in a notice under this Division anything that has already been included in a brief of evidence in relation to the matter served on the accused person in accordance with this or any other Act or that has otherwise been provided or disclosed to the accused person. (2) The accused person is not required to include in a notice under this Division anything that has already been provided or disclosed to the prosecutor. COMMENTARY ON SECTION 149D Matters previously disclosed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 149D.5]

[2-s 149D.5] Matters previously disclosed In the second reading speech for the Criminal Procedure Amendment (Case Management) Bill 2009 the Parliamentary Secretary, on behalf of the Attorney General, said (Legislative Council, Hansard, 1 December 2009): Clause 149D provides that, with specified exceptions, the prosecutor is not required to disclose anything in a notice under the proposed Division if it has already been included in the brief of evidence or otherwise provided or disclosed to the accused person. Similarly, the accused person is not required to include in a notice anything that has already been provided to the prosecutor. Section 149D was not affected by the Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Act 2013 No 10.

[2-s 149E] Court powers to ensure efficient management and conduct of trial 149E (1) On or after the commencement of the trial in proceedings, the court may make such orders, determinations or findings, or give such directions or rulings, as it thinks appropriate for the efficient management and conduct of the trial. (2) Without limiting subsection (1), the court may order that any of the parties to the proceedings disclose any matter that was, or could have been, required to be disclosed under this Division before the commencement of the trial.

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CRIMINAL PROCEDURE ACT 1986

COMMENTARY ON SECTION 149E Court powers after commencement of trial . . . . . . . . . . . . . . . . . . . . . .

[2-s 149F]

[2-s 149E.5]

[2-s 149E.5] Court powers after commencement of trial In the second reading speech for the Criminal Procedure Amendment (Case Management) Bill 2009 the Parliamentary Secretary, on behalf of the Attorney General, said (Legislative Council, Hansard, 1 December 2009): Clause 149E makes it clear that, on or after the commencement of the trial in proceedings, the court may make orders, determinations or findings, or give directions or rulings, for the efficient management and conduct of the trial, including ordering any of the parties to the proceedings to make disclosures that could have been required under the proposed Division before the commencement of the trial. Section 149E was not affected by the Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Act 2013 No 10.

[2-s 149F] Miscellaneous provisions 149F (1) A statement about any matter that is made by or on behalf of the accused person for the purposes of complying with requirements for pre-trial disclosure imposed by or under this Division does not constitute an admission of that matter by the accused person. (2) The court may make orders to resolve any dispute between the parties to criminal proceedings about: (a) the requirements for pre-trial disclosure imposed by or under this Division, or (b) the use of anything disclosed under this Division (including restrictions on publication or further disclosure). (3) This Division does not affect the obligations or powers under Division 4 (Pre-trial disclosure — general). (4) Nothing in this Division prevents any voluntary pre-trial disclosure by the accused person to the prosecutor of any information, document or other thing that the accused person proposes to adduce in evidence in the proceedings. (5) This Division does not limit any obligation (arising otherwise than under this Division) for pre-trial disclosure that is capable of being complied with concurrently with requirements imposed by or under this Division, but this Division prevails to the extent of any inconsistency with any such obligation. Any such obligation extends to obligations imposed by the common law, the rules of court, the Uniform Rules made under Part 9.2 of the Legal Profession Uniform Law (NSW) and prosecution guidelines issued by the Director of Public Prosecutions. [subs (5) am Act 7 of 2015 Sch 2.11[1], opn 1 July 2015]

(6) However, this Division does not affect any immunity that applies by law to the disclosure of any information, document or other thing, including, for example, legal professional or client legal privilege, public interest immunity and sexual assault communications privilege under Division 2 of Part 5 of Chapter 6. (7) Nothing in this Division limits any powers that a court has apart from this Division in relation to proceedings. (8) The provisions of this Division prevail over the provisions of the Evidence Act 1995 to the extent of any inconsistency with those provisions.

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Criminal Procedure

s 149F

[2-s 149F.5]

s 149F

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

COMMENTARY ON SECTION 149F Other disclosure requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 149F.5]

[2-s 149F.5] Other disclosure requirements In the second reading speech the Parliamentary Secretary, on behalf of the Attorney General, said (Legislative Council, Hansard, 1 December 2009): Clause 149F creates a number of miscellaneous provisions, including clarification that the Act is not intended to limit any disclosure requirements currently imposed on the parties in a criminal trial by sources such as the common law, other legislation and rules of court, and the Office of the DPP’s Prosecution Guidelines. Even where the court orders disclosure under clause 141, the common law or other sources may require a higher level of disclosure than that prescribed in this legislation. It is not the intention of the Act to limit the operation of such requirements. The Act will only prevail over such requirements where it is impossible, or impracticable, to comply with both. Section 149F was not affected by the Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Act 2013 No 10.

DIVISION 4 — PRE-TRIAL DISCLOSURE — GENERAL [Heading insrt Act 119 of 2001 s 3 and Sch 1[64], opn 7 July 2003]

[2-s 150] Notice of alibi 150 (1) This section applies only to trials on indictment. (2) An accused person may not, without the leave of the court, adduce evidence in support of an alibi unless, before the end of the prescribed period, he or she gives notice of particulars of the alibi to the Director of Public Prosecutions and files a copy of the notice with the court. [subs (2) am Act 57 of 2007 s 3 and Sch 1[6], opn 7 Dec 2007]

(3) Without limiting subsection (2), the accused person may not, without the leave of the court, call any other person to give evidence in support of an alibi unless: (a) the notice under that subsection includes the other person’s name and address or, if the other person’s name or address is not known to the accused person at the time he or she gives notice, any information in his or her possession that might be of material assistance in finding the other person, and (b) if the other person’s name or address is not included in the notice, the court is satisfied that the accused person before giving notice took, and thereafter continued to take, all reasonable steps to ensure that the other person’s name or address would be ascertained, and (c) if the other person’s name or address is not included in the notice, but the accused person subsequently discovers the other person’s name or address or receives other information that might be of material assistance in finding the other person, he or she immediately gives notice of the name, address or other information, and (d) if the accused person is notified by or on behalf of the Crown that the other person has not been traced by the name or address given by the accused person, he or she immediately gives notice of any information that might be of material assistance in finding the other person and that is then in his or her possession or, on subsequently receiving any such information, immediately gives notice of it.

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CRIMINAL PROCEDURE ACT 1986

[2-s 150.1]

(4) The court may not refuse leave under this section if it appears to the court that, on the committal for trial of the accused person, he or she was not informed by the committing Magistrate of the requirements of subsections (2), (3) and (7) and, for that purpose, a statement in writing by the committing Magistrate that the accused person was informed of those requirements is evidence that the accused person was so informed. [subs (4) am Act 119 of 2001 s 3 and Sch 1[66], opn 7 July 2003]

(5) Any evidence tendered to disprove an alibi may, subject to any direction by the court, be given before or after evidence is given in support of the alibi. (6) Any notice purporting to be given under this section on behalf of the accused person by his or her Australian legal practitioner is, unless the contrary is proved, to be taken to have been given with the authority of the accused person. [subs (1) am Act 120 of 2006 s 3 and Sch 3[7], opn 4 Dec 2006]

(7) A notice under this section must be given in writing to the Director of Public Prosecutions, and may be given by delivering it to the Director, by leaving it at the Director’s office or by sending it in a letter addressed to the Director at the Director’s office. (8) In this section: evidence in support of an alibi means evidence tending to show that, by reason of the presence of the accused person at a particular place or in a particular area at a particular time, the accused person was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission. prescribed period means the period commencing at the time of the accused person’s committal for trial and ending 42 days before the trial is listed for hearing. [subs (8) am Act 7 of 2001 s 3 and Sch 1[4], opn 19 Nov 2001; Act 57 of 2007 s 3 and Sch 1[7], opn 7 Dec 2007] [s 150 insrt Act 94 of 1999 s 4 and Sch 2[26], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[65], opn 7 July 2003]

COMMENTARY ON SECTION 150 Alibi notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Crown evidence in reply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Prescribed period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 150.1] [2-s 150.5] [2-s 150.10]

[2-s 150.1] Alibi notice Where the accused has failed to give notice of an alibi within time, the proper course is to allow service of the notice out of time and permit the Crown an adjournment to investigate: R v Cooper (1979) 69 Cr App Rep 229. A court should be slow to refuse leave to rely upon alibi evidence unless prejudice arises such as is incapable of being addressed without significant disruption to the trial: Skondin v R [2005] NSWCCA 417; BC200510614; (2006) 13 Crim LN 136 [1980]. In that case the judge was held to be in error by presuming prejudice to the Crown without making any inquiry. The provision only applies to evidence as to the whereabouts of the accused when the crime is alleged to have been committed and not some other event in dispute: R v Lewis [1969] 2 QB 1. It only relates to an offence alleged to have been committed at a particular place: R v Hassan [1971] 1 QB 423. The accused can be cross-examined as to his failure to notify an alibi within the time prescribed and the failure can be the subject of comment: R v Lattouf (1980) 2 A Crim R 65. It is neither unusual nor irregular for the Crown to tender a notice of alibi in its case in chief: R v Heuston (1996) 90 A Crim R 213; BC9606382 at 217.

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Criminal Procedure

s 150

[2-s 150.5]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 150

[2-s 150.5] Crown evidence in reply In the light of s 150(5), it is not necessary that the Crown adduce evidence rebutting alibi in the Crown case but in some cases to call the evidence in reply may lead to such unfairness as to amount to a miscarriage of justice: Blewitt v R (1988) 80 ALR 353; 62 ALJR 503; BC8802618. There is a need for flexibility in the approach under the section and it is undesirable to determine the matter by inflexible rules of evidence including rules about splitting cases rather than by considerations of fairness and judicial discretion: R v Heuston (1996) 90 A Crim R 213; BC9606382 at 224 where it was held that directions under the section may be given at any time, for example before the close of the Crown case. It was also held in that case that where the Crown intends to adduce evidence to rebut the alibi it should disclose that evidence to the defence before the close of the Crown case. A failure by the Crown prosecutor to cross-examine the accused on a notice of alibi was held to be a breach of the rule in Browne v Dunn (1893) 6 R 67 so that comment by the Crown prosecutor in his or her address on the failure of the accused to rely upon the alibi and the tendering of the notice in reply in such a situation was held to be unfair and brought about a miscarriage of justice: R v Marshall (NSWCCA, 15 October 1990, unreported). [2-s 150.10] Prescribed period The definition of “prescribed period” in s 150(8) was amended by the Criminal Procedure Amendment (Pre-trial Disclosure) Act 2001 to read “the period commencing at the time of the accused person’s committal for trial and ending 21 days before the trial is listed for hearing”. This amendment applies to proceedings in which the accused person is committed for trial after the commencement of the amendment on 19 November 2001: Sch 2 cl 22 Criminal Procedure Act at [2-Sch 2]. With respect to proceedings where committal for trial occurred on or before that date, the definition of “prescribed period” as omitted by the 2001 Act remains pertinent, namely, “the period of 10 days commencing at the time of the accused person’s committal for trial”.

[2-s 151] Notice of intention to adduce evidence of substantial mental impairment 151 (1) On a trial for murder, the accused person must not, without the leave of the court, adduce evidence tending to prove a contention of substantial mental impairment unless the accused person gives notice, as prescribed by the regulations, of his or her intention to raise that contention to the Director of Public Prosecutions and files a copy of the notice with the court. [subs (1) am Act 57 of 2007 s 3 and Sch 1[8], opn 7 Dec 2007]

(2) Without limiting subsection (1), the accused person must not, without the leave of the court, call any other person to give evidence tending to prove a contention of substantial mental impairment unless the notice under this section includes: (a) the name and address of the other person, and (b) particulars of the evidence to be given by the other person. (3) Any evidence tendered to disprove a contention of substantial mental impairment may, subject to any direction of the court, be given before or after evidence is given to prove that contention. (4) Any notice purporting to be given under this section on behalf of the accused person by his or her Australian legal practitioner is taken, unless the contrary is proved, to have been given with the authority of the accused person. [subs (1) am Act 120 of 2006 s 3 and Sch 3[7], opn 4 Dec 2006]

(5) A notice under this section is to be given in writing to the Director of Public Prosecutions, and may be given by delivering it to the Director, by leaving it at the Director’s office or by sending it in a letter addressed to the Director at the Director’s office.

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[2-s 152.1]

CRIMINAL PROCEDURE ACT 1986

(6) In this section, contention of substantial mental impairment means a contention by the accused person that the accused person is not liable to be convicted of murder by virtue of section 23A of the Crimes Act 1900. [s 151 insrt Act 94 of 1999 s 4 and Sch 2[26], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[65], opn 7 July 2003]

COMMENTARY ON SECTION 151 Form of notice of intention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Evidence in rebuttal by the Crown . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 151.1] [2-s 151.5]

[2-s 151.1] Form of notice of intention See cl 23 of the Criminal Procedure Regulation 2017 at [2-5195] and Form 1 at [2-5940] for the prescribed form of notice of intention to adduce evidence of substantial impairment, which must be given to the DPP at least 35 days before the date on which the trial is listed to commence. [2-s 151.5] Evidence in rebuttal by the Crown The Crown may determine whether rebuttal evidence should be called in its own case or in reply unless the court orders otherwise; R v Fraser [2003] NSWSC 965; BC200306355; (2003) 10 Crim LN 83 [1614] where it was held that the section is permissive, but that the Crown should call its evidence in its case because it had already led evidence on the issue.

DIVISION 5 — PLEADINGS ON TRIAL [Heading insrt Act 119 of 2001 s 3 and Sch 1[67], opn 7 July 2003]

[2-s 152] Arraignment on charge of previous conviction 152 (1) An accused person is not to be arraigned for any previous conviction charged in an indictment unless he or she is convicted of a subsequent offence charged in the indictment. (2) On the accused person’s conviction of the subsequent offence: (a) the accused person is to be arraigned, and (b) the jury is to be charged, and (c) the trial is to proceed, in relation to the previous conviction. (3) In the trial for the subsequent offence, evidence of the previous conviction may not be admitted, except in reply to evidence of character, unless the accused person is convicted of the subsequent offence. [s 152 insrt Act 94 of 1999 s 4 and Sch 2[30], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[68], opn 7 July 2003]

COMMENTARY ON SECTION 152 Scope of the section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 152.1]

[2-s 152.1] Scope of the section The section sets down the procedure to be adopted when dealing with offences such as that in s 115 Crimes Act, where an increased penalty is applicable to an offence committed by an accused after he or she has been convicted of a similar offence. The procedure is adopted to overcome any prejudice which might be suffered by an accused if the jury were to be aware of the previous conviction. It does not apply to summary proceedings: R v Vanecek (1954) 72 WN (NSW) 72. See [3-s 178]–[3-s 180] for proof of previous convictions.

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Criminal Procedure

s 152

[2-s 153]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 153

[2-s 153] Guilty plea to offence not charged 153 (1) If an accused person: (a) is arraigned on an indictment for an offence, and (b) can lawfully be convicted on the indictment of some other offence not charged in the indictment, he or she may plead “not guilty” of the offence charged in the indictment, but “guilty” of the other offence. (2) The Crown may elect to accept the plea of “guilty” or may require the trial to proceed on the charge on which the accused person is arraigned. [s 153 insrt Act 94 of 1999 s 4 and Sch 2[30], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[68], opn 7 July 2003]

COMMENTARY ON SECTION 153 Scope of the section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 153.1]

[2-s 153.1] Scope of the section The provisions of the section were formerly found in s 394A of the Crimes Act and cases concerning that section would apply to this section. Where there is a single count on the indictment the accused may plead “not guilty” to that charge but “guilty” to a lesser offence included in the charge or to a statutory alternative to that charge. However, the Crown is not bound to accept the plea: R v Broadbent [1964] VR 733. If the lesser plea is not accepted by the Crown it is treated as having been withdrawn and the trial continues on the count in the indictment: R v Hazeltine [1967] 2 QB 857; [1967] 2 All ER 671; [1967] 3 WLR 209; (1967) 51 Cr App Rep 351. Evidence as to the plea of guilty can be led by the Crown: R v Broadbent, above, at VR 736. If the Crown accepts the plea to the lesser offence in full discharge of the indictment, the accused is taken to have been acquitted of the count in the indictment: see Gilham v R (2007) 73 NSWLR 308; 178 A Crim R 72; [2007] NSWCCA 323; BC200710223, where the plea to manslaughter was accepted by the Crown in discharge of an indictment charging murder. Where on the indictment there are two counts, the second being an alternative to the first count, the accused can plead not guilty to the first count but guilty to the alternative count. If the Crown does not accept the plea to the alternative count, in discharge of the indictment, the plea to the alternative count stands and the accused is put in charge of the jury on the count to which the accused pleaded not guilty: R v Cole [1965] 2 QB 388; [1965] 2 All ER 29; [1965] 3 WLR 263; (1965) 49 Cr App Rep 199; Murphy v R (1988) 52 SASR 186 at 189; 37 A Crim R 405. If the accused expressly withdraws the guilty plea to the alternative count after the Crown refuses to accept the plea in discharge of the indictment then the accused is put to trial on both counts: see R v Thompson (NSWCCA, 24 June 1976, unreported), where the court commented that it would be unusual for the proffered plea not to be withdrawn to the alternative count when it was rejected by the Crown. In that case, because the guilty plea was not withdrawn, the court held that it was correct for the judge to leave only the first count to the jury. There may be cases in which it would be an abuse of process for the prosecution to charge an offender with a less serious offence than that which he in fact committed but the prosecution has a wide discretion to accept a plea of guilty to a less serious offence: R v Brown (1989) 17 NSWLR 472; 44 A Crim R 385; BC8901555. The power of the trial judge to reject a plea to a lesser offence accepted by the Crown was considered in Maxwell v R (1996) 184 CLR 501; 135 ALR 1; [1995] HCA 62; BC9600609; (1996) 3 Crim LN 9 [533] where it was held that the judge could not do so as a review of the prosecutor’s decision but only if there was an abuse of process. It was also held that the prosecutor could, with leave of the court, withdraw the acceptance of the plea where to do so would occasion no injustice to the accused. The exercise of the power to permit the Crown to withdraw the acceptance of a plea was further considered in R v BWM (1997) 91 A Crim R 260; BC9700630; (1997) 4 Crim LN

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CRIMINAL PROCEDURE ACT 1986

[2-s 154.5]

12 [664], where it was held that the court should permit the withdraw where it was in the interests of justice to do so and this included the legitimate interests of the Crown and as well as the accused. The trial judge has power to permit the Crown to withdraw the indictment after a plea of guilty has been entered by the accused and to present a fresh indictment for a different, more serious offence: R v Beeby (1999) 104 A Crim R 142; [1999] NSWCCA 30; BC9900748. In R v Filimoehala (2003) 138 A Crim R 299; [2003] NSWCCA 37; BC200300828; (2003) 0 Crim LN 19 [1531], the Crown was given leave to withdraw acceptance of a plea of guilty to an offence of maliciously inflict grievous bodily harm where to allow the accused to be sentenced for that offence would endanger the reputation of the system of justice. The sentence passed for the lesser offence cannot be passed on the basis that the more serious offence has been committed: R v O’Neill [1979] 2 NSWLR 582; (1979) 1 A Crim R 59. The court must be careful not to be prejudiced by material in the depositions relating to the more serious offence originally charged. Circumstances of aggravation may be considered by the court but not if they would give rise to a more serious offence than the one before the court: R v De Simoni (1981) 147 CLR 383; 35 ALR 265; BC8100082.

[2-s 154] Plea of “not guilty” 154 If an accused person arraigned on an indictment pleads “not guilty”, the accused person is taken to have put himself or herself on the country for trial, and the court is to order a jury for trial accordingly. [s 154 insrt Act 94 of 1999 s 4 and Sch 2[30], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[68], opn 7 July 2003]

COMMENTARY ON SECTION 154 Plea of not guilty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Plea of guilty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 154.1] [2-s 154.5]

[2-s 154.1] Plea of not guilty Once the accused is placed in the charge of the jury there must be a verdict by the jury unless for some reason the jury is discharged without verdict. If there is no prima facie case the judge may direct a verdict of not guilty to be given by the jury. There is no power generally for a judge to direct an acquittal on the basis that a conviction would be unsafe or unsatisfactory: R v R (1989) 18 NSWLR 74; Doney v R (1990) 171 CLR 207; 96 ALR 539; BC9002908. As to whether there is a case to go to a jury see R v Towers (1984) 14 A Crim R 12. If the accused pleads guilty during the course of the trial, the jury is to be discharged and the court finds the accused guilty: see at [2-s 157]. Where the accused refuses to plead see at [2-s 155]. A trial of an accused only commences once the accused has pleaded not guilty to an indictment so that there is no trial where an accused pleads guilty on arraignment: R v MacDonald (2000) 110 A Crim R 238; [2000] NSWCCA 1; BC200000178; (2000) 7 Crim LN 14 [1121]. [2-s 154.5] Plea of guilty The court is entitled to act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in the exercise of a free choice in the interests of the person entering the plea and no further proof of guilt is required: Meissner v R (1995) 184 CLR 132; 130 ALR 547; [1995] HCA 41; BC9506447, where it was pointed out the court has a discretion to reject the plea in cases which are so serious as to require a conviction by a jury before punishment should be inflicted. As to the plea of guilty to an alternative count accepted by the Crown in discharge of the indictment, see s 87 and annotations.

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Criminal Procedure

s 154

[2-s 154.5]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 154

As to the discretion of the trial judge to allow the accused to withdraw a plea of guilty see R v Lars aka Larsson (1994) 73 A Crim R 91; BC9402668 and [5-020]. As to fact finding for the purposes of sentencing after a plea of guilty, see [5-045].

[2-s 155] Refusal to plead 155 If an accused person who is arraigned stands mute, or will not answer directly to the indictment, the court may order a plea of “not guilty” to be entered on behalf of the accused person, and the plea so entered has the same effect as if the accused person had actually pleaded “not guilty”. [s 155 insrt Act 94 of 1999 s 4 and Sch 2[30], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[68], opn 7 July 2003]

[2-s 156] Plea of autrefois convict 156 (1) In any plea of autrefois convict, or of autrefois acquit, it is sufficient for the accused person to allege that he or she has been lawfully convicted or acquitted, as the case may be, of the offence charged in the indictment, without specifying the time or place of the previous conviction or acquittal. (2) The issue of autrefois convict or autrefois acquit is to be determined by the court without the presence of a jury. [s 156 insrt Act 94 of 1999 s 4 and Sch 2[30], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[68], opn 7 July 2003]

COMMENTARY ON SECTION 156 Plea in bar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 156.1]

[2-s 156.1] Plea in bar A plea in bar may be made where a plea of autrefois would not be available to the accused. The plea will be available where the elements of the offence charged are identical to, or included in, the elements of the offence for which an accused has been tried to conviction or acquittal: Pearce v R (1998) 194 CLR 610; 156 ALR 684; [1998] HCA 57; BC9804554; (1998) 5 Crim LN 70 [902] where the nature of the plea is considered and it was held that the plea is not available simply because the facts upon which the charges are based are the same. In Pearce it was held that the plea was not available to an accused who was charged with both an offence of maliciously inflicting grievous bodily harm and an offence of breaking and entering a dwelling house and inflicting grievous bodily harm arising from the same facts. The plea is available where the second offence charged is an aggravated form of the offence for which the accused had been convicted: Dodd v R (1991) 56 A Crim R 451; BC9101494 where the offender was charged with supplying a prohibited drug after he had been convicted of possessing the same drug. The plea is available in summary proceedings: State Pollution Control Commission v Tallow Products Pty Ltd (1992) 29 NSWLR 517 at 530–2; 65 A Crim R 509; R v McGarritty (NSWCCA, Grove J, Studdert J, Blanch J, 60556/93, 10 June 1994, unreported, BC9405228) at 13-15. The plea was not available where the defendant was acquitted of culpable driving by a jury and later prosecuted for negligent driving in the Local Court: Director of Public Prosecutions v Vella [1999] NSWSC 49; BC9900681; (1999) 6 Crim LN 25 [979]. Where a defendant pleaded guilty in the Local Court and was sentenced for certain offences and was later charged with further offences in relation to the same series of incidents, it was held that the circumstances did not give rise to a plea of autrefois convict nor did the later prosecutions constitute an abuse of process: Director of Public Prosecutions v Heagney [1999] NSWSC 303; BC9901442.

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[2-s 159]

CRIMINAL PROCEDURE ACT 1986

[2-s 157] Change to guilty plea during trial 157 (1) If an accused person pleads “guilty” to an offence at any time after having been given into the charge of a jury, and the court accepts the plea, the court is to discharge the jury from giving a verdict in the matter and to find the accused person guilty of the offence. (2) The finding has effect as if it were the verdict of the jury, and the accused person is liable to punishment accordingly. [s 157 insrt Act 94 of 1999 s 4 and Sch 2[30], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[68], opn 7 July 2003]

COMMENTARY ON SECTION 157 Power to withdraw plea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Trial of multiple accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 157.1] [2-s 157.5]

[2-s 157.1] Power to withdraw plea Where a trial judge has accepted a plea of guilty and discharged the jury, he or she has no power to permit the plea to be withdrawn even though the judge had not actually found the accused guilty. Once the plea has been accepted the court must discharge the jury and find the accused guilty, which finding can be made expressly or by implication: R v Hura (2001) 121 A Crim R 472; [2001] NSWCCA 61; BC200101004; (2001) 8 Crim LN 28 [1278]. [2-s 157.5] Trial of multiple accused Where one of several accused being tried jointly changes his or her plea to guilty during the trial, the preferable course is to have the plea of guilty entered in the absence of the jury and to then discharge the jury with respect to all counts against that accused in accordance with s 157, and to direct the jury not to speculate as to the reasons why that accused would play no further role in the trial: Humphries v R [2015] NSWCCA 319; BC201512560; (2016) 23 Crim LN 10 [3628].

DIVISION 6 — OTHER PROVISIONS RELATING TO TRIALS [Heading insrt Act 119 of 2001 s 3 and Sch 1[70], opn 7 July 2003]

[2-s 158] Transcript of statement in committal proceedings 158 A transcript of a record of a statement made by an accused person may, unless the court otherwise orders, be given in evidence at the trial of the accused person if it is proved on oath that the record is a true record of the statement made by the accused person and that the transcript is a correct transcript of the record. [s 158 insrt Act 119 of 2001 s 3 and Sch 1[70], opn 7 July 2003; subst Act 99 of 2002 s 3 and Sch 1.2[4], opn 7 July 2003]

[2-s 159] Opening address to jury by accused person 159 (1) An accused person or his or her Australian legal practitioner may address the jury immediately after the opening address of the prosecutor. [subs (1) am Act 119 of 2001 s 3 and Sch 1[72], opn 7 July 2003; am Act 120 of 2006 s 3 and Sch 3[9], opn 4 Dec 2006]

(2) Any such opening address is to be limited generally to an address on: (a) the matters disclosed in the prosecutor’s opening address, including those that are in dispute and those that are not in dispute, and (b) the matters to be raised by the accused person. [subs (2) am Act 119 of 2001 s 3 and Sch 1[73], opn 7 July 2003]

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Criminal Procedure

s 159

[2-s 159]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 159

(3) If the accused person intends to give evidence or to call any witness in support of the defence, the accused person or his or her Australian legal practitioner is entitled to open the case for the defence before calling evidence, whether or not an address has been made to the jury. [s 159 insrt Act 94 of 1999 s 4 and Sch 2[31], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[71], opn 7 July 2003; Act 120 of 2006 s 3 and Sch 3[9], opn 4 Dec 2006] Editor’s Note. Section 159 (previously s 97) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 405 of the Crimes Act 1900.

COMMENTARY ON SECTION 159 Defence opening address . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 159.1]

[2-s 159.1] Defence opening address The limits on a defence opening after the Crown address were considered in R v MM (2004) 145 A Crim R 148; [2004] NSWCCA 81; BC200401712 where it was held that the purpose of the opening was only to inform the jury of the issues to be raised in the trial and was not meant to be argumentative, nor should it be a forecast of the defence closing address by referring to matters such as the onus and standard of proof or directions and warnings to be given by the trial judge in respect of the evidence in the Crown case.

[2-s 160] Closing address to jury by accused person 160 (1) An accused person or his or her Australian legal practitioner may address the jury after the close of the evidence for the defence and any evidence in reply by the Crown and after the prosecutor has made a closing address to the jury or declined to make a closing address to the jury. [subs (1) am Act 119 of 2001 s 3 and Sch 1[72], opn 7 July 2003; am Act 120 of 2006 s 3 and Sch 3[9], opn 4 Dec 2006]

(2) If, in the accused person’s closing address, relevant facts are asserted that are not supported by any evidence that is before the jury, the court may grant leave for the Crown to make a supplementary address to the jury replying to any such assertion. [s 160 insrt Act 94 of 1999 s 4 and Sch 2[31], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[71], opn 7 July 2003] Editor’s Note. Section 160 (previously s 98) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 405 of the Crimes Act 1900.

COMMENTARY ON SECTION 160 Addresses by counsel or the accused . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 160.1]

[2-s 160.1] Addresses by counsel or the accused The applicability of the section to proceedings before a magistrate was considered in Mason v Lyon [2005] NSWSC 804; BC200505736; (2005) 12 Crim LN 64 [1915] where it was held that the section did not necessarily determine how submissions and addresses should be made in the Local Court. There is no practice against the Crown addressing where the accused is unrepresented and it is a matter for the discretion of the trial judge whether the Crown should be permitted to address: R v Smith (EJ) [1982] 2 NSWLR 608; R v Zorad (1990) 19 NSWLR 91 at 94; 47 A Crim R 211. It has been held that it is preferable that the Crown address where the trial is long or complex: Bellino v Clair [1993] 2 Qd R 236; (1992) 63 A Crim R 346; BC9202301. Where the accused dismissed his counsel before addresses, it was held that the Crown was right to address: R v Varley [1973] 2 NSWLR 427 at 433; Varley v R (1976) 12 ALR 347; 51 ALJR 243.

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CRIMINAL PROCEDURE ACT 1986

[2-s 161]

The Crown Prosecutor should avoid intemperate language or appealing to the jury’s emotions when addressing: McCullough v R [1982] Tas R 43; (1982) 6 A Crim R 274; Whitehorn v R (1983) 152 CLR 657 at 663–4; 49 ALR 448 per Deane J; Vella v R (1990) 2 WAR 537; 47 A Crim R 119; R v Pernich and Maxwell (1991) 55 A Crim R 464; BC9102516. It is not appropriate for Crown counsel to express personal opinions or enter into the fray as a contestant: R v Callaghan [1994] 2 Qd R 300; (1993) 70 A Crim R 350; BC9303333 at 356. It was improper for a Crown Prosecutor to ask the jury to make inferences about matters which were not in evidence or to criticise the manner in which defence counsel cross-examined the complainant: R v Rugari (2001) 122 A Crim R 1; [2001] NSWCCA 64; BC200101379; (2001) 8 Crim LN 18 [1260]. It is not open to the Crown to address the jury on the basis that witnesses in the Crown case were in a “conspiracy of silence” where no such allegation had been put to the witnesses during the course of the trial: R v Teasdale (2004) 145 A Crim R 345; [2004] NSWCCA 91; BC200402027; (2004) 11 Crim LN 36 [1686]. Although the Crown must be fair, it does not mean that the prosecutor cannot criticise witnesses in the prosecution case: Cornelius and Briggs v R (1988) 34 A Crim R 49. The crown prosecutor should not during the address criticise a witness called in its case where no application was made under s 38 of the Evidence Act to have the witness treated as unfavourable or otherwise breached the rule in Browne v Dunn by challenging the witness: Kanaan v R [2006] NSWCCA 109; BC200602243; (2006) 13 Crim LN 53 [2071]. The crown prosecutor should not attempt to confine the warnings to be given by a trial judge during the course of addressing the jury: R v MM (2004) 145 A Crim R 148; [2004] NSWCCA 81; BC200401712 where it was stated that it was no business of the prosecutor to address on warnings as to delay in a sexual assault case. See also KNP v R (2006) 67 NSWLR 227; [2006] NSWCCA 213; BC200605532; (2006) 13 Crim LN 63 [2081] as to the limits of a Crown address. Where there is more than one accused, defence counsel can agree to the order of addresses, otherwise generally addresses are in the order that the names of the accused appear on the indictment: R v Antill and Brown (1863) 2 SCR (NSW) 50; R v Orton [1922] VLR 469; R v Webb and Hay (1992) 64 A Crim R 38; BC9200248 at 67–8. The power given to grant leave to the Crown to make a supplementary address is limited to those cases where counsel for the accused has asserted relevant facts which are not supported by the evidence and not merely because defence counsel has put arguments that are fallacious, illogical, extravagant or dishonest: R v O’Donoghue (1988) 34 A Crim R 397; BC8801710. There should be no reference to the penalty for the offence: R v Costi (1987) 48 SASR 269 at 272; Attorney -General (SA) v Brown [1960] AC 432; [1960] ALR 395, or to the right of a jury to add a recommendation for mercy: R v Black [1963] WLR 1311. Counsel should not read extracts from text books: R v Giffın [1971] Qd R 12; R v Hay [1968] Qd R 459; R v McMahon (NSWCCA, 26 June 1996, unreported, BC9602908); (1996) 3 Crim LN 43 [589]. As to putting allegations that were not put to witnesses, see R v Bircham [1972] Crim LR 430.

[2-s 161] Summary by Judge 161 (1) At the end of a criminal trial before a jury, a Judge need not summarise the evidence given in the trial if of the opinion that, in all the circumstances of the trial, a summary is not necessary. (2) This section applies despite any rule of law or practice to the contrary. (3) Nothing in this section affects any aspect of a Judge’s summing up function other than the summary of evidence in a trial. [s 161 insrt Act 94 of 1999 s 4 and Sch 2[31], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[71], opn 7 July 2003] Editor’s Note. Section 161 (previously s 99) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 405AA of the Crimes Act 1900.

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Criminal Procedure

s 161

[2-s 161.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

COMMENTARY ON SECTION 161 Summing up generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Manner of summing up . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Directions on unanimity in fact finding for a guilty verdict . . . . . . . Summing up on onus and standard of proof . . . . . . . . . . . . . . . . . . . . Summing up on unanimous verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . Summing up in a circumstantial case . . . . . . . . . . . . . . . . . . . . . . . . . . . Directions as to the offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Directions as to the facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Summing up on the defence case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Directions as to the evidence of the accused . . . . . . . . . . . . . . . . . . . . Warnings and directions as to witnesses . . . . . . . . . . . . . . . . . . . . . . . . Directions in relation to sexual assault cases . . . . . . . . . . . . . . . . . . . . Longman warning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Multiple counts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Uncharged acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Directions on identification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Directions as to confessions and admissions . . . . . . . . . . . . . . . . . . . . Directions on consciousness of guilt . . . . . . . . . . . . . . . . . . . . . . . . . . . (a) Lies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b) Post-offence conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Directions on intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Further directions after retirement of jury . . . . . . . . . . . . . . . . . . . . . . .

s 161

[2-s 161.1] [2-s 161.5] [2-s 161.7] [2-s 161.10] [2-s 161.12] [2-s 161.15] [2-s 161.20] [2-s 161.25] [2-s 161.30] [2-s 161.35] [2-s 161.40] [2-s 161.45]

[2-s 161.55] [2-s 161.60] [2-s 161.62] [2-s 161.63] [2-s 161.65]

[2-s 161.1] Summing up generally A summing up should, in every case, not only include directions as to the ingredients of the offence which the Crown has to establish and an explanation of how the relevant law must be applied to the facts of the particular case, but it should also include a collected resume of the evidence which relates to each of the ingredients and a brief outline of the arguments which have been put in relation to that evidence [R v Zorad (1990) 19 NSWLR 91; 47 A Crim R 211]. The summing up should not be a “disquisition on jurisprudence or philosophy or a universally applicable circular tour round the area of law affected by the case”: R v Lawrence [1981] 1 All ER 974; (1981) 73 Cr App R 1 at 5 referred to in Holland v R (1993) 117 ALR 193 at 200. It is not the function of a trial judge to expound to the jury principles of law going beyond those which the jurors need to understand to resolve the issues that arise for decision in the case and the law should be explained to the jury in a manner which relates it to the facts of the particular case and the issues to be decided: R v Chai (2002) 187 ALR 436; 76 ALJR 628; [2002] HCA 12; BC200200787 at [18]; 9(3) Crim LN [1412]. A summing up should be as succinct as possible in order not to confuse the jury: R v Flesch and McKenzie (1986) 7 NSWLR 554 at 558. It has been held that judges should generally seek to simplify and shorten summings up and should avoid lectures on the law and unnecessary explanations of legal principles: R v Williams (1990) 50 A Crim R 213. It is not necessary for the trial judge to instruct a jury on an element of liability for the offence charged where there is no issue about that element: Huynh v R (2013) 295 ALR 624; 87 ALJR 434; [2013] HCA 6; BC201301036; 20(6) Crim LN [3232], where the judge omitted to direct the jury on joint criminal enterprise. The court emphasised that the duty in the summing up was to direct the jury on the real issues in the trial and to inform the jury of the law that was necessary to decide those issues. The summing up should be a fair and balanced summary of the law, the issues and the respective cases for the prosecution and the defence but should not be a vehicle for strengthening the Crown case: R v Meher [2004] NSWCCA 355; BC200406985; 11(11) Crim LN [1797]. The judgment of Wood CJ at CL contains a review of cases concerning the content of a summing up and the limitations upon a judge raising matters not relied upon by the prosecution. For a summing

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CRIMINAL PROCEDURE ACT 1986

[2-s 161.7]

up to be fair and balanced there must be a proper explanation of the defence case so that the jury, from the summing up alone, can comprehend the defence case: CC v R [2010] NSWCCA 337; BC201010020; 18(3) Crim LN [2877]. It is not necessary for the judge to sum up to the jury in accordance with suggested directions in the Criminal Trial Bench Book and a failure to do so is not indicative of error: Ith v R [2012] NSWCCA 70; BC201206758; 19(10) Crim LN [3125]. The summing up should address the real issues as the case is fought: Alford v Magee (1952) 85 CLR 437 at 466; 59 ALR 101 at 116, and on the factual issues that arise: R v Sandford (1994) 33 NSWLR 172; R v Greatorex (1994) 74 A Crim R 496. The provisions of the section do not relieve the trial judge from explaining the respective cases to the jury and the application of the law to those cases: R v Condon (1995) 83 A Crim R 335 where it was stated that the task of the trial judge was to explain the application of the elements of the offence to the respective cases. The judge is not relieved from this duty by reference to addresses of counsel. The need for any exploration of the evidence and issues in a summing up is to be assessed having regard to the length of the trial, the way it has run, its complexity and the complexity of the factual matrix relevant to the issues. It is not necessary in every case that the trial judge is required to identify and repeat the points made by defence counsel and the relevant evidence: R v Davis [1999] NSWCCA 15; BC9900945; 6(2) Crim LN [970]; R v Williams (1999) 104 A Crim R 260; [1999] NSWCCA 9; BC9900944; 6(2) Crim LN [966]; Mencarious v R (2008) 189 A Crim R 219; [2008] NSWCCA 237; BC200809484. A judge cannot tell the jury that they cannot acquit the accused: Pemble v R (1971) 124 CLR 107 at 117, 132, 141; [1971] ALR 762; BC7100090; R v Williamson (No 1) (1996) 67 SASR 428; BC9606422. A judge should not in a case involving multiple counts direct the jury to adopt a sequential approach in determining the various counts: Norris v R (2007) 176 A Crim R 42; [2007] NSWCCA 235; BC200706197; 14(8) Crim LN [2278]. [2-s 161.5] Manner of summing up The trial judge can, in an appropriate case, sum up to the jury on each accused separately, or on each count, and take a verdict after each part of the summing up: Smith v R (1970) 121 CLR 572 at 581–583; [1971] ALR 183; Annakin v R (1988) 17 NSWLR 202; 37 A Crim R 131; BC8801294. This should be done in respect of a single accused only where really necessary: R v Houssein (1980) 70 Cr App R 267. The jury may be given written material as to the directions on the applicable law and the available verdicts, but they should be told that the written directions are only an aid to understanding the oral directions given: R v Petroff (1980) 2 A Crim R 101 at 113–6. The jury can be given written material as to the evidence in the case in exceptional cases: R v Tripodina (1988) 35 A Crim R 183 at 195–8. The judge does not need to sum up in terms of suggested directions in the bench book and the issue is whether the directions are appropriate: R v Forbes (2005) 160 A Crim R 1; [2005] NSWCCA 377; BC200509320. Where the judge is required to sum up upon an element of the offence it is not sufficient simply to read the section of the Crimes Act defining the element: Pengilley v R [2006] NSWCCA 163; BC200603582; (2006) 13 Crim LN 55 [2073], where it was held that it was insufficient in directing the jury on recklessness merely to read to them s 5 of the Crimes Act. A jury may be given a chronology in a complex factual case: R (Cth) v Petroulias (No 34) [2007] NSWSC 1462; BC200711474; 15 Crim LN 27 [2353]; R v Dirani (No 19) [2018] NSWSC 1135; BC201813265. [2-s 161.7] Directions on unanimity in fact finding for a guilty verdict In some cases, a direction may be required that the jury must be unanimous in finding which one of particular facts occurred in order to establish criminal liability of the accused for the offence charged; see R v Walsh (2002) 131 A Crim R 299; [2002] VSCA 98; BC200203493 at [57]. A distinction is to be

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Criminal Procedure

s 161

[2-s 161.7]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 161

made between alternative factual bases of liability and alternative legal formulations of liability based on the same or substantially the same facts: Cramp v R (1999) 30 MVR 9; 110 A Crim R 198; [1999] NSWCCA 324; BC9908058. In Lane v R [2017] NSWCCA 46; BC201701823; 24(5) Crim LN [3834] the Crown relied upon two distinct acts of the accused as the basis for a charge of murder or manslaughter in the alternative. It was held that the trial judge should have directed the jury as to unanimity in determining which act caused the death of the deceased because different considerations surrounded each act as to whether the act was voluntary and the accused’s state of mind. However, in the circumstances no miscarriage of justice occurred and the appeal was dismissed by the application of the proviso. [2-s 161.10] Summing up on onus and standard of proof The trial judge should make it clear to the jury that the charge has to be proved by the prosecution beyond reasonable doubt: Thomas v R (1960) 102 CLR 584 at 605; [1960] ALR 233; R v Jorgic (1963) 80 WN (NSW) 761; La Fontaine v R (1976) 136 CLR 62 at 84; 11 ALR 307; Van Leeuwen v R (1981) 55 ALJR 726 at 728; 36 ALR 591. However, the jury should not be directed that it is necessary to find every fact or every stage in the process of reasoning leading to the finding of guilt beyond reasonable doubt: Shepherd v R (1990) 170 CLR 573 at 583–5; 97 ALR 161; Chamberlain v R (No 2) (1984) 153 CLR 521 at 537, 599, 626; 51 ALR 225; Dominguez v R (1985) 63 ALR 181 at 191–2; Edwards v R (1993) 178 CLR 193; 117 ALR 600; BC9303562. The judge should not attempt to explain what is meant by the words “beyond reasonable doubt” unless counsel misdirects the jury in respect of this matter: Dawson v R (1961) 106 CLR 1 at 18; [1962] ALR 365; Green v R (1971) 126 CLR 28 at 32–3; [1972] ALR 524; R v Flesch and McKenzie (1986) 7 NSWLR 554; R v Reeves (1992) 29 NSWLR 109. It may be a misdirection to indicate to the jury that the question is whether the accused is guilty or innocent as it may lead the jury to think that an acquittal is based on a belief that the accused was guiltless: Bartho v R (1978) 52 ALJR 520 at 522; 19 ALR 418. It is necessary to view the directions concerning the onus and standard of proof in the context of the summing up as a whole: R v Ho (2002) 130 A Crim R 545; [2002] NSWCCA 147; BC200203698, where the decisions as to directions on onus and standard of proof are considered. In RWB v R [2010] NSWCCA 147; BC201004918; 17(8) Crim LN 124 [2782] the judge’s endeavours to explain a reasonable doubt were held to be erroneous but did not result in a miscarriage of justice. The issue of what a judge may say to a jury on the issue of standard of proof was considered by the High Court in R v Dookheea (2017) 347 ALR 529; 91 ALJR 960; [2017] HCA 36; BC201707191; 24 Crim LN [3906] where it was held that a judge did not bring about a miscarriage of justice by explaining to the jury the difference between a “reasonable doubt” and “any doubt” on the basis that a “reasonable doubt” was not any doubt that a reasonable jury might entertain. The accused was not entitled to the benefit of any doubt, but rather to “the benefit of what the jury as a whole considered to be a reasonable doubt”. The court indicated that the practice of contrasting the criminal standard of proof (ie proof beyond reasonable doubt) with that of the civil standard (ie proof on the balance of probabilities) is to be encouraged as it emphasises that the criminal standard is the highest known to law. It has been held not to have been an error for a trial judge to provide a jury with a dictionary when they asked for one in order to understand the words “beyond reasonable doubt”: R v Chatzidimitriou (2000) 1 VR 493; 112 A Crim R 95; [2000] VSCA 91; BC200002770; (2000) 7 Crim LN 48 [1167] where the cases on directions as to onus and standard of proof are reviewed extensively. There is no error in a judge describing beyond reasonable doubt as “ordinary everyday words” in order to indicate that they were words that needed no further explanation; R v Anderson (2001) 127 A Crim R 116; [2001] NSWCCA 488; BC200107630, particularly where the jury asked for a further explanation of the term: R v Southammavong [2003] NSWCCA 312; BC200306669; (2003) 10 Crim LN 86 [1620]. It is preferable that the trial judge tells the jury in such a situation that they set the standard of what is reasonable in terms of a doubt. There have been cases in which a summing up has been considered where, an exculpatory fact has arisen, such as self-defence or provocation, and the judge has directed the jury that the Crown

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CRIMINAL PROCEDURE ACT 1986

[2-s 161.12]

case will fail if there is a reasonable possibility that the accused acted in self-defence or under provocation. The question is whether the jury might have understood from these directions that the onus was on the accused to prove these issues, even if only to the extent of a reasonable possibility, whereas the proper onus of proof remains on the Crown to exclude such a possibility. The issue is comprehensively dealt with in Towney v R [2018] NSWCCA 65; BC201802701; 25(5) Crim LN [3984] where the decisions in Hadchiti v R (2016) 93 NSWLR 671; [2016] NSWCCA 663; BC201610822 and Moore v R [2016] NSWCCA 185; BC201607068 are considered and contrasted. Provided that the direction on a reasonable possibility of the existence of an exculpatory fact is linked to a direction which the Crown must disprove that such a possibility exists, there is no error in the judge directing in terms of the existence of a reasonable possibility. To do so is not to seek to explain “beyond reasonable doubt” but simply to restate the onus in relation to the particular facts of the case, see Moore at [109] and Towney at [73]. The jury should not be told that it is a question of whether they believe one account or the other, or that their function is to determine where the truth lies: Liberato v R (1985) 159 CLR 507 at 515, 519; 61 ALR 623; R v El Mir (1957) 75 WN (NSW) 191; R v McDonald [1984] 1 NSWLR 428. This is especially so in relation to confessional evidence: R v Towner (1991) 56 A Crim R 221. It will usually be sufficient to inform the jury that it should acquit the accused if they believe that the accused’s version might possibly be true: R v Niass [2005] NSWCCA 120; BC200501841; (2005) 12 Crim LN 50 [1873]. The jury should not be told in a sexual assault case that the crucial theme is “why would the complainant lie?”: R v F (1995) 83 A Crim R 502; (1995) 2 Crim LN 82 [494]; R v E (1996) 39 NSWLR 450; (1996) 3 Crim LN 38 [581], where it was held that such a question should never be raised in directions to the jury as its effect is to reverse the onus of proof. However these cases should not be interpreted as excluding arguments being put to the jury relating to the validity of the motive to lie which has been asserted in relation to a witness in a particular case, although the judge might tell the jury that even if they rejected that motive it does not mean that the witness is telling the truth: R v Uhrig (NSWCCA, Hunt CJ, Newman and Ireland JJ, 60200/1996, 24 October 1996, unreported, BC9605087); (1996) 3 Crim LN 75. These decisions were further considered in R v Jovanovic (1997) 98 A Crim R 1; 4 Crim LN 71 [769] where the correctness of R v E as interpreted in R v Uhrig was accepted and where it was confirmed that in the situation where no motive to lie has been raised by evidence or argument the question of “why would the complainant lie?” should not be raised before the jury. R v Uhrig and R v Jovanovic were further considered in R v Smith [2000] NSWCCA 468; BC200007410; (2000) 7 Crim LN 90 [1218], where it was held that it was a matter for the trial judge to frame a direction suitable to the manner in which the issue was raised with the jury. In Palmer v R (1998) 193 CLR 1; 151 ALR 16; (1998) 5 Crim LN 3, it was held that the approach in these cases was correct, and further that the accused should not be cross-examined as to whether he or she knows of any motive for the complainant to lie. It will usually be sufficient to inform the jury that it should acquit the accused if they believe that the accused’s version might possibly be true: R v Niass [2005] NSWCCA 120; BC200501841; (2005) 12 Crim LN 50 [1873]. It is not necessary that the jury be told of the presumption of innocence: Palmer v R (1998) 193 CLR 1; 151 ALR 16; (1998) 5 Crim LN 3. [2-s 161.12] Summing up on unanimous verdict There is no requirement that the trial judge tell the jury that their verdict must be unanimous and it is a matter for the discretion of the trial judge whether to give such a direction: Milgate v R (1964) 38 ALJR 162; R v Bacon [1973] 1 NSWLR 87. Where a jury has indicated that it cannot reach a unanimous verdict, a judge may give a direction in accordance with the model proposed in Black v R (1993) 179 CLR 44; 118 ALR 209; [1993] HCA 71; BC9303549 as, in effect, an exhortation to the jury to try to come to a unanimous decision. Such a direction should not be undermined by reference to the fact that a jury may at a specified time be able to give a majority verdict: see RJS v R 173 A Crim R 100; [2007] NSWCCA 241; BC200706355; 14(8) Crim LN 110 [2271], where it was held that the trial judge should have given the Black direction and then raised with counsel, in the absence of the jury, the issue as to

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Criminal Procedure

s 161

[2-s 161.12]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 161

whether a majority verdict could be taken. See also Hanna v R (2008) 73 NSWLR 390; 191 A Crim R 302; [2008] NSWCCA 173; BC200806793, where the judge told the jury at the time of giving the Black direction that a majority verdict could immediately be given. In Doklu v R [2010] NSWCCA 309; BC201009853; 18(1) Crim LN 12 [2842] it was held that there was no error in the trial judge referring at the time of giving the Black direction that at some point in time a majority verdict might become available. Macfarlan JA indicated his view that it might be preferable to say nothing about the possibility of a majority verdict. [2-s 161.15] Summing up in a circumstantial case Where the Crown case in whole or part relies upon inferences drawn from basic facts proved on the evidence, consideration has to be given as to whether or not the jury should be directed that proof of guilt, or an essential ingredient of an offence, can only be inferred where there is no other reasonable conclusion arising from the evidence that is inconsistent with that inference: Peacock v R (1911) 13 CLR 619 at 634; 17 ALR 566; BC1100014; Plomp v R (1963) 110 CLR 234 at 243, 252; [1964] Qd R 170; [1964] ALR 267; BC6300520; Barca v R (1975) 133 CLR 82 at 104; 7 ALR 78; 50 ALJR 108; BC7500049; Chamberlain v R (No 2) (1984) 153 CLR 521 at 536, 570, 599; 51 ALR 225; 58 ALJR 133; BC8400536; Shepherd v R (1990) 170 CLR 573 at 578; 97 ALR 161; 65 ALJR 132; 51 A Crim R 181. However such a direction is not always necessary and it is no more than an amplification of the onus of proof on the Crown: Knight v R (1992) 175 CLR 495 at 502; 109 ALR 225; 66 ALJR 860; BC9202674; Shepherd v R, above at CLR 578; Grant v R (1975) 11 ALR 503 at 504; BC7500085; R v Keenan (2009) 236 CLR 397; 252 ALR 198; [2009] HCA 1; BC200900207 at [126]. It is not necessary to give such a direction where the facts are plain and so closely related as not to require a differentiation between the facts and the inferences to be drawn: Shepherd (No 2) v R (1988) 16 NSWLR 1; 37 A Crim R 466 at 471; BC8802300, or where the question is one of the intention of the accused: R v Tillott (1991) 53 A Crim R 46 at 50; BC9102139; Rogerson v R (1992) 65 A Crim R 530; BC9201414, but cf Knight v R, above at 863. The jury may be directed that they should not reject one circumstance simply because it standing alone does not lead to an inference of guilt: Medina v R (1990) 3 WAR 21 at 36–7; 46 A Crim R 132; R v McEndoo 5 A Crim R 52. All of the circumstances relied upon are to be considered and weighed in deciding whether there is an inference consistent with innocence: R v Hillier (2007) 228 CLR 618; 233 ALR 634; [2007] HCA 13; BC200701732 at [46]. A circumstantial case is not to be considered in a piecemeal fashion; Hillier at [48]. A direction by a trial judge in a circumstantial case that the jury should not speculate may result in the jury discounting reasonable scenarios arising on the evidence: R v McIntyre (2000) 111 A Crim R 211; [2000] NSWCCA 6; BC200000438; 7(2) Crim LN [1123]. There may be a case where, even though the Crown case is a circumstantial one, a particular fact is of such significance that it is an intermediate fact and “an indispensible step in the reasoning process toward an inference of guilt” so that it should be proved beyond reasonable doubt: Shepherd, above per Dawson J at [14]. This has come to be known as a “Shepherd direction” or a “links in a chain” case rather than a “strands in a cable” case. The necessity for such a direction was considered in Davidson v R (2009) 75 NSWLR 150; 195 A Crim R 406; [2009] NSWCCA 150; BC200904559 in which it was held that such a direction may be confusing to a jury in a case where there are numerous facts of different weight so that whether it is necessary depends upon the particular type of, and the number of, circumstances being relied upon by the Crown, cf R v Merrit [1999] NSWCCA 29; BC9900749 where there were only two circumstances relied upon. See also R v Fowler (2003) 151 A Crim R 166; [2003] NSWCCA 321; BC200307077. The relevant cases and principles are discussed in Burrell v R (2009) 196 A Crim R 199; [2009] NSWCCA 163; BC200905101 where it was held that such a direction should not be given if it deprived the jury of a consideration of possibilities clearly open on the Crown case. Where the circumstances raise the reasonable possibility that someone other than the accused committed the crime, a circumstantial evidence direction should be given: R v Clarke (1995) 78 A Crim R 226; BC9504366; 2(4) Crim LN 28 [373].

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CRIMINAL PROCEDURE ACT 1986

[2-s 161.20]

A trial judge is not bound to direct a jury as to an alternative hypothesis arising on the evidence which was not relied upon by the accused’s counsel during the trial: R v Park [2003] NSWCCA 203; BC200304065; 10(7) Crim LN [1574]. But see Nguyen v R [2015] NSWCCA 78; BC201503259; 22(5) Crim LN [3529] where it was held that the failure of a judge to place an alternative hypothesis before the jury, even though not relied upon by defence counsel, resulted in a miscarriage of justice. It has been held that it is not necessary nor the practice to give a circumstantial evidence direction in respect of an accused’s state of mind: R v Rogerson (1992) 65 A Crim R 530 at 545; BC9201414. [2-s 161.20] Directions as to the offences The trial judge should explain to the jury the elements of the offence but the failure to refer to an element of the offence is not necessarily a miscarriage of justice: Holland v R (1993) 117 ALR 193. The trial judge should not present a version of the prosecution case or give a basis for conviction which was not relied upon by the Crown: King v R (1986) 161 CLR 423 at 432; 67 ALR 379. In R v Solomon [1980] 1 NSWLR 321 there was a miscarriage where murder by reckless indifference was left to the jury although not relied upon by the Crown. In R v Wong (1988) 37 A Crim R 385 the trial judge put a broader conspiracy than that which the Crown originally formulated. The trial judge should not put alternative verdicts unless they have been relied upon by the Crown during addresses: R v Cameron [1983] 2 NSWLR 66 at 71; R v Pureau (1990) 19 NSWLR 372; R v Crisologo (1997) 99 A Crim R 178; BC9706994; R v Quinn (1991) 55 A Crim R 435. However, it is permissible where the parties have had an opportunity to deal with the count and there is no unfairness caused to the accused: R v Gulliford (2004) 148 A Crim R 558; [2004] NSWCCA 338; BC200406445; (2005) Crim LN 19. However, it is permissible where the parties have had an opportunity to deal with the count and there is no unfairness caused to the accused: R v Gulliford (2004) 148 A Crim R 558; [2004] NSWCCA 338; BC200406445; (2005) 11 Crim LN 19. The jury should be instructed as to the factual basis for any alternative verdict left to them: R v Pureau, above at 374, but the failure to do so does not mean there is necessarily a miscarriage of justice: Holland v R, above at 199, where the trial judge failed to direct the jury as to the basis of the finding of attempt. The trial judge is not generally required to leave alternative counts to the jury that are not included in the indictment unless requested to do so by the parties: James v R (2014) 306 ALR 1; 88 ALJR 427; [2014] HCA 6; BC201401091; 21(3) Crim LN [3342], where it was held that decisions of the court on the necessity of leaving manslaughter as alternative on a count of murder (see Gilbert v R (2000) 201 CLR 414; 170 ALR 88; [2000] HCA 15; BC200001108 and Gillard v R (2003) 219 CLR 1; 202 ALR 202; [2003] HCA 64; BC200306728) did not apply generally. The issue is whether the trial was rendered unfair by the failure to leave an alternative verdict and depends upon all the circumstances, including the real issues at the trial and forensic choices made by counsel. Fairness may require that alternative be left not withstanding the objection of defence counsel. If there is more than one offence charged the jury should be directed to consider each independently: R v Towle (1954) 72 WN (NSW) 338. Where there are a number of counts based upon the evidence of a single witness the jury should be directed as to the importance of the evidence of the witness and the consequence upon the verdicts of any doubt which might arise as to the reliability of the witness in whole or in part: R v RAT (2000) 111 A Crim R 360; [2000] NSWCCA 77; BC200001229; (2000) 7 Crim LN 20 [1133]; R v Robinson (2000) 111 A Crim R 388; [2000] NSWCCA 59; BC200001594; (2000) 7 Crim LN 21 [1134]. It may be appropriate to indicate to the jury that they should only find different verdicts on the various counts if there is a rational and logical reason to do so based upon the evidence. The trial judge should not indicate that a “merciful” verdict of manslaughter is open to the jury unless the jury asks about it, but the jury are not to be told that they cannot bring in a verdict of a manslaughter even if there is no factual basis for such a verdict: Beavan v R (1954) 92 CLR 660 at 662; [1954] ALR 775; BC5400820; Gammage v R (1969) 122 CLR 444 at 451; [1970] ALR 385; BC6900630; Frost v R [1969] Tas SR 172 at 182; R v Markby (1978) 140 CLR 108 at 113;

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Criminal Procedure

s 161

[2-s 161.20]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 161

21 ALR 448; BC7800067; R v Schneidas (No 2) [1981] 2 NSWLR 713; Arrowsmith v R (1994) 55 FCR 130; BC9405675 at 143 (permissible to tell the jury that there is no evidentiary basis for the verdict and that they would be untrue to their oaths if they were to convict of manslaughter). The jury should not normally be told the consequences of the verdict: Frost v R, above at 177–8; R v Lucas (1970) 120 CLR 171 at 174–5; [1970] ALR 835; BC7000200. If the issue of mental illness is raised, the judge is to explain to the jury the legal and practical consequences of that finding: Pt 2, Mental Health (Forensic Provisions) Act 1990. [2-s 161.25] Directions as to the facts The summing up should relate the facts to the issues at the trial and the relevant law and not be simply a summary of the evidence: Alford v Magee (1952) 85 CLR 437 at 466; 59 ALR 101 at 116; R v Zorad (1990) 19 NSWLR 91 at 105; 47 A Crim R 211 at 225. The provisions of s 99 do not relieve the trial judge of this obligation: R v Condon (1995) 83 A Crim R 335. The judge should collect the evidence on the matters in issue and summarise it to the jury: R v Tillott (1991) 53 A Crim R 46; BC9102139. It is not necessary for the trial judge to discuss all the evidence and analyse all the conflicts in it: Domican v R (1992) 173 CLR 555 at 560–1; 106 ALR 203 at 206; 66 ALJR 285; R v Smart [1963] NSWR 706 at 713; R v Ali (1981) 6 A Crim R 161 at 165. The role of the judge in commenting on disputed facts in the course of a summing up was considered in McKell v R [2019] HCA 5; BC201900676. In that case it was held that comments by the trial judge in favour of the prosecution on particular disputed facts resulted in an unfair summing up and a miscarriage of justice. The court stated: What has sometimes been described as the “right” of the trial judge to comment on the facts of a case is not some form of entitlement standing free of constraints imposed by the judge’s duty to give the jury accurate and fair instruction to enable them to arrive at a just determination of the matters of which they are the sole arbiters. Where a trial judge’s summing-up so favours the prosecution as to deny the accused a fair trial, the miscarriage of justice that results cannot be justified or excused by invoking the judge’s “right” to comment on the facts. . . The plurality considered the judge’s “right” to comment on facts in general and at [48] held that: . . . there is a risk that comments that are unnecessary for the performance of the duty to give fair and accurate instructions to the jury may occasion a miscarriage of justice, and so a trial judge should be astute to avoid that risk by refraining from comment that is not so required. These points are most compelling in relation to expressions of opinion by a trial judge as to the determination of disputed issues of fact. The plurality went on to give reasons why it should now be considered that the trial judge should not generally comment on matters of fact unless it is necessary to make a comment (but not to express an opinion) in order to maintain the balance of fairness between the parties. As an example of a permissible comment, the plurality referred to Green v R (1971) 126 CLR 28; 46 ALJR 545; [1972] ALR 524; BC7100550 where it was held that it would be proper and necessary for a trial judge to “restore but do no more than restore, the balance” in a case where: . . . during the course of a trial, particularly in his address to the jury, counsel for the accused has laboured the emphasis on the onus of proof to such a degree as to suggest to the minds of the jury that possibilities which are in truth fantastic or completely unreal ought by them to be regarded as affording a reason for doubt. . . The plurality in McKell, in answer to the Crown’s argument that a prohibition on a judge commenting on disputed facts would blur “the bright line” of a trial judge’s right to comment on facts, stated at [55]: . . . there should be little difficulty in a trial judge refraining from expressions of opinion on the determination of disputed issues of fact. Once it is accepted that the trial judge’s “right” to

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CRIMINAL PROCEDURE ACT 1986

[2-s 161.30]

comment is best understood as a judicial power or discretion to be exercised judicially for the purpose of ensuring that the jury have a fair and accurate understanding of what they need to know to do justice in deciding the issues of fact that arise for their determination, any concern about the blurring of what is said to have been previously a “bright line” can be seen to be illusory. Generally speaking, the trial judge should not put an argument upon the facts which has not been put by counsel to the jury, and particularly where the trial turns entirely on the credibility of a single witness, the judge should not constrain or direct the jury’s thought processes unless required to do so and should refrain from giving the jury directions which suggest that they should think like lawyers: R v RTB [2002] NSWCCA 104; BC200201374. In that case the trial judge indicated to the jury that there might be an explanation for the evidence of the complainant which otherwise undermined her credibility where no such explanation was put forward by the Crown. The limitations upon a trial judge referring to matters not relied upon by counsel was considered in R v Meher [2004] NSWCCA 355; BC200406985; (2004) 11 Crim LN 115 [1797] where a number of decisions are considered. In that case the summing up was so heavily weighed in favour of the Crown with so little attention given to the defence case that it resulted in a miscarriage of justice. The evidence admissible in respect of each accused and the case made against each should be identified with particularity, and the jury should be directed to consider the cases separately: R v Towle (1954) 72 WN (NSW) 338 at 340; R v Checconi (1988) 34 A Crim R 160; BC8801781; R v Cosgrove (1988) 34 A Crim R 299; BC8801612. Where there is common evidence or a common case against each accused it is unnecessary for the trial judge to repeat the same detail: R v Zorad, above, at NSWLR 105; A Crim R 225. The trial judge can direct a jury to find a particular conclusion on undisputed facts, including a finding of not guilty even where the accused has the onus of proof: R v Morgan; Ex parte A-G (Qld) [1987] 2 Qd R 627; (1986) 24 A Crim R 342, but not where the inference to be drawn from undisputed facts is in dispute: R v Hill [1988] 1 Qd R 654 at 656, 659; R v Stewart; Ex parte A-G (Qld) [1989] 1 Qd R 590 at 592. Generally the jury should not be told that they should convict the accused even where the facts are admitted: Jackson v R (1976) 134 CLR 42; 9 ALR 65; BC7600039, but they may be told to do so if all the facts which are admitted prove the elements of the offence: Yager v R (1977) 139 CLR 28; 13 ALR 247; BC7700026. Motive and absence of motive are relevant considerations to the question of whether the accused committed the offence charged, but generally the prosecution does not have to prove motive and it is not necessary for a trial judge to direct the jury on the issue of motive or absence of motive where it is not an essential element of the crime charged: De Gruchy v R (2002) 211 CLR 85; 190 ALR 441; [2002] HCA 33; BC200204360; (2002) 9 Crim LN 66 [1469]. See the discussion in R v Fowler (2003) 151 A Crim R 166; [2003] NSWCCA 321; BC200307077 at [73] and following, where it was held that motive was merely one circumstance to be proved and did not have to be proved beyond reasonable doubt. [2-s 161.30] Summing up on the defence case There is an obligation on a trial judge to put the defence case to the jury and explain the relevant law as it relates to that case, especially where the accused has a positive case upon which reliance is placed by defence counsel: Wong v R [2009] NSWCCA 101; BC200912274; 17(9) Crim LN 142 [2795]. But even where the accused’s case is not compelling there is an entitlement to have the judge direct the jury how the defence was advanced in the context of the evidence on which it is based: Maraache v R [2013] NSWCCA 199; 21(9) Crim LN [3438] where it was held that the trial judge should have indicated to the jury the defence explanations for incriminating phone calls. The summing up should be balanced and fairly present the prosecution and defence case. [The] accused’s entitlement [is] to have his case presented as an entirety with a comparable degree of segregation to that followed in summing up the Crown case to the jury [R v Veverka [1978] 1 NSWLR 478].

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Criminal Procedure

s 161

[2-s 161.30]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 161

But it is not invariable that the defence case be presented as a separate entity: Dominguez v R (1985) 63 ALR 181 at 187; Cleland v R (1982) 151 CLR 1 at 10; 43 ALR 619; Domican v R (1992) 173 CLR 555 at 561; 106 ALR 203; [1992] HCA 13; BC9202665. A balanced summing up will not be achieved by under-weighing a strong case and over-weighing a weak one, and the balanced summing up will reflect the strength of the various cases: R v Ali (1981) 6 A Crim R 161. The judge can also take into account the nature of the addresses and attempt to redress any imbalance: Jones v Dunkel (1959) 101 CLR 298 at 314; [1959] ALR 367; BC5900240 per Windeyer J; R v Smart [1963] NSWR 706 at 715; (1962) 80 WN (NSW) 1125. The trial judge can take into account that the jury have been addressed by defence counsel: Raspor v R (1958) 99 CLR 346 at 352; Cleland v R, above at 10, and it is unnecessary for the trial judge to put all arguments put forward on behalf of the accused: Basto v R (1954) 91 CLR 628 at 627; R v Smart, above at 713; R v Lawrence [1980] 1 NSWLR 122; (1980) 32 ALR 72 at 125; Domican v R, above at CLR 561. The need to refer to any particular matter will depend upon the manner in which the case was conducted: R v Melville (1956) 73 WN (NSW) 579 at 581. A complaint that the judge failed adequately in the summing up to address on the defence case is to be determined having regard to the manner in which defence counsel addressed the jury and the issues in the trial: Roos v R [2019] NSWCCA 67; BC201902300; 26(5) Crim LN [4138]. The trial judge should leave for the consideration of the jury any matter that it could find for the accused which reasonably arises on the evidence, even though it has not been relied upon or has been abandoned by the defence at the trial: Pemble v R (1971) 124 CLR 107 at 117–8, 130; [1971] ALR 762; BC7100090; Varley v R (1976) 12 ALR 347; 51 ALJR 243 at 245; BC7600106; Viro v R (1978) 141 CLR 88 at 118; 18 ALR 257; BC7800022 (self-defence). As to the necessity to give directions on intoxication with respect to offences alleged to have been committed before 16 August 1996, see R v Galambos (1980) 2 A Crim R 388; R v Stokes and Difford (1990) 51 A Crim R 25; BC9001745. As to intoxication with respect to offences alleged to have been committed after 16 August 1996, see Pt 11A Crimes Act 1900 at [8-s 428A] ff. As to provocation see Parker v R (1964) 111 CLR 665; [1964] AC 1369; BC6400540; R v Guerin [1967] 1 NSWR 255; Van den Hoek v R (1986) 161 CLR 158 at 161–2; 69 ALR 1; (1987) 61 ALJR 19; Stingel v R (1990) 171 CLR 312 at 336; 97 ALR 1. This obligation must be met even if it gives an air of unreality to the case raised by the accused: R v Stokes and Difford, above at 32. The defence must reasonably arise and the trial judge should not put unreal or fanciful possibilities: R v Holden [1974] 2 NSWLR 548 at 551, or where it is only a speculative hypothesis: R v Brown (1987) 78 ALR 368; 32 A Crim R 162. The obligation to leave manslaughter to the jury on a trial for murder was considered in R v Kanaan (2005) 64 NSWLR 527; 157 A Crim R 238; [2005] NSWCCA 385; BC200509810 where it was held that if there is evidence to support an alternative verdict of manslaughter, the judge must leave that issue to the jury notwithstanding that it has not been raised by any party, and even if a party objects (or all parties object) to the issue being left to the jury. As to directions in relation to the accused’s character, see at [3-s 110]. A trial judge should not, unless it is an exceptional and unusual case, direct a jury in a criminal trial that, where there is no explanation for the failure of the defence to call a witness, they can infer that the evidence of that witness would not have assisted the accused’s case: Dyers v R (2002) 210 CLR 285; 192 ALR 181; BC200205956; see article at (2002) 9 Crim LN 58 [1491]. Nor should a judge allow the jury to raise questions about the accused’s failure to raise certain allegations with the complainant, where there was no breach of the rule in Browne v Dunn and no suggestion by the Crown that there had been: Llewellyn v R [2011] NSWCCA 66; BC201102125; 18(5) Crim LN 73 [2902]. [2-s 161.35] Directions as to the evidence of the accused The trial judge is entitled to direct the jury in relation to the failure of the accused to give evidence: see at [3- s 20]. In RPS v R (2000) 199 CLR 620; 168 ALR 729; [2000] HCA 3; BC200000084 it was held that the judge must in no way lead the jury to the view that that the accused’s failure to give evidence was because the accused was guilty of the offence. As to the appropriate directions to be given see at [3-s 20.1].

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CRIMINAL PROCEDURE ACT 1986

[2-s 161.40]

It has been held that the failure of a judge to give a direction about the fact that the accused did not give evidence may result in a miscarriage of justice: Johnston v R [2007] NSWCCA 133; BC200703591; 14 Crim LN 75 [2228]. It is proper for a judge to direct the jury that a verdict of acquittal would follow if the jury accepted the accused’s evidence but also that they could have a reasonable doubt about the accused’s guilt even if the jury did not accept the accused’s evidence as being reliable: BM v R [2017] NSWCCA 133; BC201704587; 24(7) Crim LN [3878]. In relation to the drawing of inferences in a circumstantial case where the accused failed to give evidence, see Weissensteiner v R (1993) 178 CLR 217; 117 ALR 545; BC9303617. The application of that decision was also considered in RPS v R, above, where the application of that decision appears to have been limited. In R v Fowler (2003) 151 A Crim R 166; [2003] NSWCCA 321; BC200307077; (2000) 7 Crim LN 40 [1151] it was held that such a direction should only be given in an exceptional case, perhaps only where the line of reasoning is compelling, such as a circumstantial case where the innocent explanation for proved facts might only reasonably lie in the mouth of the accused. In R v Hannes (2000) 36 ACSR 72; 158 FLR 359; [2000] NSWCCA 503; BC200007407; (2001) 8 Crim LN 2 [1235] the appropriateness of directions were further considered and it was held that directions in that case were inadequate because they dealt with the failure of the accused to give evidence generally rather than with respect to specific identified matters in respect of which it could be said that evidence could come only from the accused. The application of Weissensteiner was considered in R v Baden-Clay [2016] HCA 35; BC201607352 in a case where the accused gave evidence denying that he had killed his wife and the relevance of that evidence to a finding that he unintentionally killed his wife, where the accused of course gave no evidence as to the circumstances in which his wife died. The court quoted from Weissensteiner: “In a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.” In light of the evidence of the accused, it was not open to find that, contrary to the Crown case, the accused killed his wife but without the intent for murder. If the evidence was disbelieved, then it should not be simply put aside as irrelevant, because the jury could take that evidence into account when deciding that it was not a reasonable hypothesis consistent with the evidence that it was an unintended killing, “when the only witness who could have given evidence to support the hypothesis gave evidence which necessarily excluded it as a possibility”. As to directions in relation to the unsworn statement of the accused, see at [2-s 31.1]. The accused’s evidence should not be singled out for closer scrutiny than any other witness simply because he or she is the accused and has an interest in the outcome of the trial: Robinson v R (No 2) (1991) 180 CLR 531; 102 ALR 493; 65 ALJR 644; Stafford v R (1993) 67 ALJR 510; Brotherton v R (1992) 29 NSWLR 95; 65 A Crim R 301; R v Reeves (CCA(NSW), 13 September 1993, unreported); R v Asquith (1994) 72 A Crim R 250; Ramey v R (1994) 68 ALJR 917; R v McCallum (NSWCCA, Priestley JA, Smart and Ireland JJ, 60715/93, 13 April 1995, unreported); (1995) 2 Crim LN 30 [385]. In Hargraves v R (2011) 282 ALR 214; [2011] HCA 44; BC201108207; 18(11) Crim LN [2994] the decision in Robinson was further considered and held to be merely the application of a general principle which states that the jury should not be deflected from a proper evaluation of the onus and standard of proof. It did not stand for a new principle of general application as to what a judge could say about the evidence of an accused. But the court stressed that a judge should not instruct a jury to evaluate the evidence of an accused on the basis of his or her interest in the outcome of the trial. Where the defence counsel opening and the evidence given by the accused were inconsistent, the trial judge should draw to the jury’s attention any other reasons for the inconsistency other than that the accused had changed his or her instructions: R v Abdullah (2001) 127 A Crim R 46; [2001] NSWCCA 506; BC200107875. [2-s 161.40] Warnings and directions as to witnesses As to the requirement to give warnings as to unreliable evidence, see now Evidence Act 1995 s 165 at [3-s 165]. The section

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Criminal Procedure

s 161

[2-s 161.40]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 161

requires that a warning be given in respect of evidence “of a kind that may be unreliable” and where a warning is sought by a party; see generally R v Stewart (2001) 52 NSWLR 301; 124 A Crim R 371; [2001] NSWCCA 260; BC200105232; (2001) 8 Crim LN 69 [1326]. There is a difference between a warning and a comment, see Crampton v R (2000) 206 CLR 161; 176 ALR 369; [2000] HCA 60; BC200007092; (2000) 7 Crim LN 89 [1217]. Generally, a comment is a reminder of evidence or what was said in address by counsel, whereas a warning carries with it judicial authority. In respect of a witness, whose potential unreliability would not be readily apparent to the jury, the trial judge is required to direct the jury that they should scrutinise the evidence of the witness with care: Longman v R (1989) 168 CLR 79 at 91; 89 ALR 161 at 170; BC8902688; Bromley v R (1986) 161 CLR 315 at 323–4; 67 ALR 12 at 18; Carr v R (1988) 165 CLR 314 at 325; 81 ALR 236 at 243; Pollitt v R (1992) 174 CLR 558; 108 ALR 1; 62 A Crim R 190; BC9202688. See generally as to warnings at common law: R v Stewart, above. A warning will be required wherever judicial experience indicates that special attention or care is required when assessing the evidence: R v Kirby [2000] NSWCCA 330; BC200006176. No set formula is required and the content of the caution is a matter for the discretion of the trial judge: Longman v R, above at CLR 85; ALR 166; see s 165(3) of the Evidence Act. Although a trial judge should inform the jury that the warning is not due to any personal view and that the warning is given as a matter of law in every case, the repetition of such a statement should be avoided as it may lead the jury to minimise the effect of the warning in the particular case: R v Roddom [2001] NSWCCA 168; BC200102187; (2001) 8 Crim LN 31 [1284]; R v Stewart, above. The content of the warning is found in s 165(2), but the judge is not required to comply with that section if there are good reasons for not doing so: R v Stewart, above at [122]. A direction may be required in any case where the only evidence against the accused is the uncorroborated evidence of a single witness: Murray v R (1987) 11 NSWLR 12; 30 A Crim R 315; BC8701238. However, such a direction is not required in every case: R v Glencourse (1995) 78 A Crim R 256; (1995) 2 Crim LN 30 [384]. See also Laughton v R [2019] NSWCCA 74; BC201902639; 26(5) Crim LN [4139] as to when such a direction is required. Directions can be given where the witness hopes to be paid for giving evidence: R v Oliver (1984) 57 ALR 543. A warning may be required where there is any unfairness to the accused from the nature of the evidence or the manner of the investigation of the offence: R v King [2000] NSWCCA 507; BC200007789. A warning, similar to a Longman warning, may be required where evidence has been lost or destroyed: R v Slattery [2002] NSWCCA 367; BC200205109; (2002) 9 Crim LN 74 [1480], where the weapon was destroyed after being tested by police experts and defence experts had not had the opportunity of testing the weapon. As to a witness within s 165(1)(d) of the Evidence Act, see R v Stewart, above, where it was held that the trial judge should not use the term “accomplice”. A direction should be given where the accomplice has been given an immunity: R v Checconi (1988) 34 A Crim R 160; BC8801781 at 171; R v Chai (1992) 27 NSWLR 153; 60 A Crim R 305. Where the witness has been given a sentencing discount by reason of an undertaking to give evidence against the accused the jury should be warned both as to the fact of the discount and the right of the Crown to appeal if the undertaking is not fulfilled: R v Stewart, above. A direction should be given in relation to prisoner informants because the evidence is easily concocted, the informer will be of bad character, and has a motive to fabricate: Pollitt v R (1992) 174 CLR 558; 108 ALR 1; 62 A Crim R 190; BC9202688; R v Clough (1992) 28 NSWLR 396; 64 A Crim R 451 and s 165(1)(e) of the Evidence Act. However, evidence by a police informer who is not in gaol does not require a special warning: R v Dellapatrona (1993) 31 NSWLR 123 at 148. An informer direction is not required merely because the witness is giving evidence of matters that occurred in a prison: R v Hudd (NSWCCA, Carruthers, Newman and Dowd JJ, 60800/1993, 9 December 1994, unreported, BC9403564); (1995) 2 Crim LN 14 [340]. Jones v Dunkel does not apply in criminal trials so a trial judge should not generally comment on the failure of the parties to call a witness except that, where the Crown is the party, the judge can raise with the jury whether the failure to call the witness gives rise to a reasonable doubt about

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CRIMINAL PROCEDURE ACT 1986

[2-s 161.45]

the Crown’s case: Louizos v R [2009] NSWCCA 71; BC200901713; (2009) 16(4) Crim LN 55 [2537] applying Mahmood v Western Australia (2008) 232 CLR 397; 241 ALR 606; [2008] HCA 1; BC200800188. The rule in Browne v Dunn in reference to a criminal trial was considered in MWJ v R (2005) 222 ALR 436; 80 ALJR 329; [2005] HCA 74; BC200510463; (2006) 13 Crim LN 137 [1982] where the majority of the court warned that reliance on the rule can be misplaced and overstated and that generally any failure to put a matter to a witness can be cured by recall of that witness. It was also held that judges should in general abstain from making adverse findings against a party because of a breach of the rule. It will only be where the accused has refused to take up the offer of the witness being recalled for further cross-examination that criticism might be made. In applying the rule it is essential to have regard to the accusatory character of a criminal trial. If the rule is to be applied the trial judge should draw to the attention of the jury any other possible cause for failure of counsel to cross-examine the witness on the particular matter other than that the accused has changed his version, for example, that counsel may have overlooked the matter or misunderstood the instructions, or a looseness in framing questions: R v GED (2003) 141 A Crim R 135; [2003] NSWCCA 296; BC200306070; (2003) 10 Crim LN 79 [1611]. Although the judge inappropriately made comments to the jury about the failure of defence counsel to raise matters with prosecution witnesses — indicating that the jury could draw the conclusion that the accused had not given those instructions to counsel — it was held that there was no miscarriage of justice in RWB v R [2010] NSWCCA 147; BC201004918; 17(8) Crim LN 125 [2783]. A judge ought not to comment on the fact that a witness’s evidence was not challenged or contradicted on a certain point where there was no real opportunity for the defence to challenge the witness, for example, on evidence of complaint: Jiang v R [2010] NSWCCA 277; BC201008919; 18(1) Crim LN 13 [2843]. There is no requirement to give a jury a warning about the reliability or otherwise of unsworn evidence given by a child under the provisions of the Evidence Act: R v GW (2016) 328 ALR 583; 90 ALJR 407; [2016] HCA 6; BC201601128; 23(3) Crim LN [3662]. [2-s 161.45] Directions in relation to sexual assault cases Decisions in this area should be considered now in light of ss 294 and 294AA of this Act in relation to directions as to lack of complaint and the uncorroborated evidence of any complainant and ss 165A and 165B of the Evidence Act 1995 in relation to warnings about the evidence of children and the delay in the prosecution of an offence. The operative law on warnings will depend upon the date the relevant provision commenced. In relation to ss 294 and s 294AA, they apply to trials where the accused was charged after 1 January 2007: see TJ v R (2009) 197 A Crim R 508; [2009] NSWCCA 508; BC200909613; 16(11) Crim LN 160 [2646]. The two Evidence Act provisions apply to trials commencing after 1 January 2009, see GG v R [2010] NSWCCA 230; BC201007553; 17(11) Crim LN 173 [2826]. The operation of these provisions will determine what is said by the trial judge about cautions and warnings. Note that the checklist of directions given in R v BWT (2002) 54 NSWLR 241; 129 A Crim R 153; [2002] NSWCCA 60; BC200201654; 9(4) Crim LN 32 [1424] in the judgment of Wood CJ at CL at [32] is of little assistance in light of statutory and other changes that have occurred since it was given. Longman warning The following applies only where a Longman direction on the effect of delay is required because the relevant legislative provision, s 165B, does not apply. The nature of the warnings required were extensively considered in TJ v R, above, in the judgment of McClellan CJ at CL, see at 16(11) Crim LN 165 [2651]. Where there is substantial delay in the complaint of alleged sexual offences, a warning must be given that, because of forensic difficulties caused by that delay, including the inability to test the complainant fully, the defence has been prejudiced and the jury must scrutinise the evidence with great care before convicting upon it. No particular words are required and it is not necessary

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Criminal Procedure

s 161

[2-s 161.45]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 161

to use the words “dangerous to convict”: TJ v R, above at [59]. But the warning must meet the particular circumstances of the trial and in some cases it may be necessary to indicate the specific disadvantages identified by the defence. What is said should amount to a warning whether the word “warn” is used or not, and a comment is insufficient: see TJ v R, above, at [78] and [126], where it was held by the majority that there was no error where the judge cautioned the jury that it may be wrong to convict. Where it is necessary to give a Longman direction the judge should not refer to the difficulties in the Crown case caused by delay, however, although a judge should be cautious about referring to evidence that might have been available to the Crown had there been no delay in investigation, some comment could be made about the effect of delay on the Crown case in an appropriate case: Erohin v R [2006] NSWCCA; BC200601979; 13(5) Crim LN 41 [2059]. Multiple counts In trials where there are multiple counts it will often be appropriate to direct jurors that where they entertain a reasonable doubt concerning the truthfulness or reliability of a complainant’s evidence in relation to one or more counts that must be taken into account in assessing the truthfulness and reliability of the complainant’s evidence generally: R v Markuleski (2001) 52 NSWLR 82; 125 A Crim R 186; [2001] NSWCCA 290; BC200104359. But such a direction will depend upon the particular case and is not required simply because the complainant’s evidence supports more than one count, and it is not appropriate where there may be reasons for the jury to convict on one count but acquit on another: R v GAR [2003] NSWCCA 224; BC200304769; 10(8) Crim LN 62 [1583]. In R v ARD [2000] NSWCCA 443; BC200006761; 7(10) Crim LN 86 [1213], the court held that there was no obligation upon a trial judge to give the directions referred to in R v RAT (2000) 111 A Crim R 360; [2000] NSWCCA 77; BC200001229; 7(3) Crim LN 20 [1133] and R v Robinson [2000] NSWSC 972; BC200006239; 7(10) Crim LN 85 [1212]. In particular, the jury ought not to be told that if they brought in different verdicts where there was no apparent reason to do so the guilty verdicts may be set aside as being a compromise; the jury should not generally be directed as to the consequences of its verdict or verdicts. It has been stated that a trial judge should not tell a jury that it can use a finding of guilt on one charge as assisting in the determination of other charges unless careful directions are given to explain how the jury might reason in that way, for example by finding guilty passion: R v AN (2000) 117 A Crim R 176; [2000]NSWCCA 372; BC200006805; 7(10) Crim LN 87 [1214]. As to the need to give the jury warnings about reasoning from a finding of guilt of the accused of one charge: see KRM v R (2001) 206 CLR 221; 178 ALR 385; [2001] HCA 11; BC200100684; 8(2) Crim LN 15 [1258], where it was held that such a warning is not generally required provided that the jury are directed to consider each count in the indictment separately. Where there are offences before the jury involving more than one complainant the trial judge should warn the jury against using the evidence of one complainant as proof of the offences involving the other complainant: R v Mitchell (NSWCCA, Gleeson CJ, Cole, Sperling JJ, 60321/94, 5 April 1995, unreported, BC9504682); 2(7) Crim LN 51; R v Mayberry [2000] NSWCCA 531; BC200007665; 8(1) Crim LN 7 [1243]; KRM v R, above. However, an anti-tendency direction is not required, even though two complainants were giving evidence about separate incidents, where there was no real possibility that the jury would use the evidence of one complainant in deciding the case involving the other complainant: Lyndon v R [2014] NSWCCA 112; BC201404949; 21(7) Crim LN [3394]. Uncharged acts Where evidence of other uncharged acts is admitted the trial judge should direct the jury as to the purpose for which the evidence was admitted and the basis upon which they may use that evidence and warn them against its misuse: see R v ATM [2000] NSWCCA 475; BC200007412; 7(11) Crim LN 93 [1224], where the evidence was admitted to prove context and to explain the behaviour of the complainant; and R v MM (2000) 112 A Crim R 519; [2000] NSWCCA 78; BC200002702; 7(5) Crim LN 42 [1157] where the evidence was admitted for the purpose of proving guilty passion.

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CRIMINAL PROCEDURE ACT 1986

[2-s 161.55]

Generally the trial judge should warn the jury that they cannot substitute the uncharged acts for the offences appearing in the indictment and that the accused cannot be convicted merely because the jury is satisfied that the accused committed other acts of impropriety against the complainant. See also R v Greenham [1999] NSWCCA 8; BC9900796; 6(3) Crim LN 28 [987]; R v RNS [1999] NSWCCA 122; BC9908888 and generally BRS v R (1997) 191 CLR 275; 148 ALR 101; [1997] HCA 47; BC9704586, where the evidence admitted was acts committed against a person other than the complainant. The duty of the Crown to ensure proper directions in respect of this type of evidence was stressed in R v ATM, above. A direction or warning concerning tendency reasoning in cases where evidence of other acts is introduced for context purposes is not required where there is no realistic possibility that the jury would use the evidence for tendency reasoning: see Toalepai v R [2009] NSWCCA 270; BC200909849; 17(1) Crim LN 12 [2666], where the child indicated that the conduct occurred whenever her mother went out to Bingo or shopping. In that case, reference was made to Rodden v R (2008) 182 A Crim R 227; [2008] NSWCCA 53; BC200801750 and it was held that the case should not be taken to require a direction to be given merely because the complainant said it happened “millions of times”. Similarly, where there are uncharged acts occurring as part of the events giving rise to the offences charged, it is unnecessary to give a warning against tendency reasoning where the uncharged acts were not relied upon as evidence of tendency or relationship: Wen Sheng Jiang v R [2010] NSWCCA 277; BC201008919. Where the evidence is before the jury because the Crown relies upon it as evidence of tendency, the jury is to be directed that before it can be used for that purpose the jury must be satisfied beyond reasonable doubt both that the other acts alleged, or any of them, occurred and that if they are so satisfied that the tendency asserted arises from any or all of those acts, otherwise they should disregard the alleged tendency: DJS v R [2010] NSWCCA; BC201007150; 17(10) Crim LN 159 [2813]. As to directions on the motive of the complainant to lie, see [2-s 161.10]. As to relationship evidence, see annotations to s 97 of the Evidence Act at [3-s 97.10]. As to the directions in relation to complaint evidence, see [8-s 611.10] and [2-s 294.1]. It has been held that in a sexual assault case a “Murray direction”, a warning that the jury should scrutinise the evidence of an uncorroborated complainant with care, should not be given as it would infringe s 294AA(2) of the Act: Ewen v R [2015] NSWCCA 117; BC201504420; 22(6) Crim LN [3534]. [2-s 161.55] Directions on identification As to the requirement to give directions on identification, see at [3-s 116] and at [3-s 165]. Directions under s 116 are not required where the identification of the accused is not in issue: Dhanhoa v R (2003) 217 CLR 1; 199 ALR 547; [2003] HCA 40; BC200304262; (2003) 10 Crim LN 63 [1584]. The requirements for direction on identification evidence under these sections was considered in R v Clarke (1997) 97 A Crim R 414; BC9705745; (1997) 4 Crim LN 67 [760], where it was held that it is not necessary that the judge use any particular form of words and in particular that it is not necessary that the jury be directed of the “danger” or “dangers” of such evidence provided that the special need for caution be made clear to the jury and the need for such caution be explained. The mandatory nature of the need to direct in accordance with s 116 was emphasised in R v Demiroz [2003] NSWCCA 146; BC200303668; (2003) 10 Crim LN 54 [1573]. The warning under s 165 does not need to take any particular form and there is no checklist to be followed: R v Allen (1984) 16 A Crim R 441; R v De Cressac (1985) 1 NSWLR 381 at 384; R v Finn (1988) 34 A Crim R 425; BC8801739. The directions must be appropriate to the circumstances of the case: R v Aziz [1982] 2 NSWLR 322 at 328; R v Allen, above at 445. The warning should carry the weight of judicial experience: Davies and Cody v R (1937) 57 CLR 170; 43 ALR 321; [1937] VLR 205 at CLR 182-3. As to the matters that should be addressed in the general directions, see R v Clout (1995) 41 NSWLR 312; BC9501897; (1995) 2 Crim LN 91 [514].

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Criminal Procedure

s 161

[2-s 161.55]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 161

The trial judge should isolate and identify matters which may reasonably be regarded as undermining the reliability of the identification evidence: Domican v R (1992) 173 CLR 555 at 562; 106 ALR 203; 66 ALJR 285, however, it is unnecessary that the trial judge point out all the weakness in the evidence that may later be found to exist: Domican v R (1992) 173 CLR 555 at 560–1; 106 ALR 203 at 206; 66 ALJR 285 per Brennan J at 568; R v Clarke (1993) 71 A Crim R 58. It is not necessary for the judge to refer to every argument by defence counsel on the question of identification: R v Richards (CCA(NSW), 27 November 1995, unreported, BC9501889). Although the trial judge is bound to direct the jury to take into account matters which may affect the reliability of the identification, it is not necessary that the judge tell the jury that the evidence is in fact weakened by such matters, nor is it necessary for the trial judge always to refer to matters affecting the credit of the identifying witness: R v Heuston (1995) 81 A Crim R 387; BC9504804; (1995) 2 Crim LN 44 [411]–[412]. Adequate directions must be given notwithstanding that there may be other evidence upon which the accused could be convicted: Domican v R, above at 565. Directions on identification should be given in cases where the identification relates to an object where the identification of the object is crucial to the Crown case: R v Clout (1995) 41 NSWLR 312; BC9501897; (1995) 2 Crim LN 91[514] where the Crown case rested on the correctness of the identification of a vehicle as that driven by the accused. As to warnings in identification from photographs, see Alexander v R (1981) 145 CLR 395; 34 ALR 289. As to the directions to be given to the jury in respect of the accused’s refusal to take part in a line up, see McCarthy v R (1993) 71 A Crim R 395. The jury should be told that it is the fundamental right of the accused to refuse to take part and no conclusion as to the guilt of the accused can be taken from the exercise of that right. In relation to identification of voice the jury should consider whether there are distinctive characteristics which make the voice recognisable: R v Brownlowe (1986) 7 NSWLR 461 at 464; 24 A Crim R 377. However, where the witness was familiar with the voice it is not necessary that there be distinguishing features: Brotherton v R (1992) 29 NSWLR 95; 65 A Crim R 301; R v Hayden (CCA(NSW), 14 July 1993, unreported). [2-s 161.60] Directions as to confessions and admissions A warning may be required under s 165 of the Evidence Act in respect of an admission under Part 3.4 of the Act, s 165(1)(a), or official questioning which has been recorded in writing and has not been signed or acknowledged by the accused, s 165(1)(f) at [3-s 165]. See generally R v Fowler (2003) 151 A Crim R 166; [2003] NSWCCA 321; BC200307077 at [180] and following. [2-s 161.62] Directions on consciousness of guilt The Crown can rely upon post-offence conduct by the accused as evidence of consciousness of guilt. Such conduct will usually be a lie told by the accused in reference to the commission of the offence or flight from arrest or trial. However, the conduct is not limited to these two categories and could include, for example, destruction of evidence. (a) Lies As to lies generally see at [3-s 164.1]. It has been held that very great care is required in relation to lies: R v Sutton (1986) 5 NSWLR 697; BC8601171; R v Heyde (1990) 20 NSWLR 234; R v Fowler (2003) 151 A Crim R 166; [2003] NSWCCA 321; BC200307077; (2000) 7 Crim LN 40 [1151]. Evidence of lies told by the accused can be used in three ways, (a) as evidence going to the credibility of the accused; (b) as evidence of a “consciousness” of guilt which may support other evidence in the Crown case; (c) in an exceptional case as evidence amounting to an admission. The trial judge should require the prosecutor to indicate the way lies are being relied upon if there is any doubt on the matter: Zoneff v R (2000) 200 CLR 234; 172 ALR 1; [2000] HCA 28; BC200002718 (2000) 7 Crim LN 43 [1158]; R v Ray (2003) 57 NSWLR 616; [2003] NSWCCA 227; BC200304977; (2003) 10 Crim LN 70 [1597]. In the case of (a) above, the judge should not raise the question of a consciousness of guilt

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CRIMINAL PROCEDURE ACT 1986

[2-s 161.62]

unless it is necessary to do so in order to dispel any confusion which may have arisen by addresses: Zoneff v R, above, where a model direction is given which might be applicable in an appropriate case in this category. In such a case, unless the judge believes that there is a real danger that the jury might use them as evidence of guilt, it is unnecessary and inappropriate to give an Edwards direction as is required in (b) below: Dhanhoa v R (2003) 217 CLR 1; 199 ALR 547; [2003] HCA 40; BC200304262; (2003) 10 Crim LN 63 [1585]; R v Ray, above. Such a direction was necessary where, despite the Crown indicating to the trial judge it was not relying upon a consciousness of guilt, the contents of the Crown address raised the issue: R v Campbell [2005] NSWCCA 132; BC200502032; (2005) 12 Crim LN 49 [1872]. In (b) above the jury should be directed that they can take a lie into account only if they are satisfied that it reveals a knowledge of the offence or some aspect of it and that it was a deliberate lie told because the accused knew the truth of the matter would implicate him in the offence: Edwards v R (1993) 178 CLR 193; 117 ALR 600; BC9303562. There is an extensive consideration of the use of lies as consciousness of guilt in R v Lane [2011] NSWCCA 157; BC201105360. In R v Dellapatrona (1993) 31 NSWLR 123 at 123 it was held that an appropriate direction would be “before a lie by the accused can [support] particular evidence in the Crown case, the jury must be satisfied that it was a deliberate lie, that it related to an issue in that evidence which is material to the offence charged and that it was told by the accused because he feared that he would be found guilty if he told the truth or because he was unable to give an innocent explanation or account of his conduct as identified in that evidence”. The Crown should indicate precisely what lies the Crown relies upon under this category and the trial judge should identify the lies to the jury with precision: R v Ray, above; and see generally R v Fowler (2003) 151 A Crim R 166; [2003] NSWCCA 321; BC200307077 at [42] where it was held that the directions on lies should go no further than are necessary to direct the jury as to the way they can be used in order to prove guilt or otherwise. Such a direction was necessary where, despite the Crown indicating to the trial judge it was not relying upon a consciousness of guilt, the contents of the Crown address raised the issue: R v Campbell [2005] NSWCCA 132; BC200502032; (2005) 12 Crim LN 49 [1872]. The trial judge should indicate to the jury that there may be reasons why an accused might lie other than because it discloses a consciousness of guilt of the offence charged. In the case of (c) if the jury intend to rely upon the lie as an admission of guilt to prove the offence they must be satisfied beyond reasonable doubt that it does amount to an admission of the offence charged. Where the prosecution is relying upon a lie as part of the circumstantial case, it is not necessary that it prove the lie beyond reasonable doubt: R v Adam (1999) 106 A Crim R 510; [1999] NSWCCA 189; BC9904090 at [55]; R v Fowler, [2003], above, at [55]. (b) Post-offence conduct A consciousness of guilt can arise from the conduct of the accused following the alleged commission of the offence. This can include flight, disposal of the body or other conduct which points to the accused’s guilt in a circumstantial case. As to evidence of flight see [3-s 164.1]. Evidence of flight can be admitted as evidence of consciousness of guilt where it is open to the jury to conclude that the accused sought to avoid arrest or trial for the charge upon which he or she is before the jury. The jury must be directed as to the way it can use such evidence, in a similar way to the directions in relation to the use of lies as a consciousness of guilt: R v Cook [2004] NSWCCA 52; BC200401046. The directions to be given were considered in Quinlan v R (2006) 164 A Crim R 106; [2006] NSWCCA 284; BC200607184. Evidence of flight may be so connected with the offence that it may be unnecessary to give a direction on consciousness of guilt: Ristevski v R [2007] NSWCCA 87; BC200702579 where the accused fled from the scene after being stopped by the police who found drugs in the vehicle in which the accused had been driving.

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Criminal Procedure

s 161

[2-s 161.62]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 161

There are difficulties in using the evidence where there is the possibility of an included offence such as murder and manslaughter and the jury must be directed that the evidence cannot be used in relation to a specific offence, but it may be relevant to a particular fact, such as that the accused was involved in unlawful conduct: R v Ciantar (2006) 16 VR 26; 46 MVR 461; [2006] VSCA 263; BC200609818, or that the accused did not act in self-defence: Steer v R (2008) 191 A Crim R 435; [2008] NSWCCA 295; BC200810923, or provocation: Gall v R [2015] NSWCCA 69; BC201502779. The evidence can be used to prove the accused’s mental state to distinguish between murder and manslaughter: SW v R [2013] NSWCCA 103; BC201310229 at [63]. The situation was considered in R v Baden-Clay [2016] HCA 35; BC201607352 where the court approved the decision in Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317; BC201315787 which held that lies themselves could prove that the accused was guilty of murder rather than manslaughter in the circumstances of that case. The High Court held that post offence conduct was not always intractably neutral on the issue of murder or manslaughter but could be of such a nature to permit a jury to conclude that it was inconsistent with a killing that was unintentional. The evidence had to be considered as a whole with the other evidence in the case and not in a piecemeal fashion. It was held that the conduct of the accused after the killing was intractably neutral and could not give rise to a consciousness of guilt of murder as opposed to any other alternative offence available to the jury: Decision restricted [2018] NSWCCA 288; 26(2) Crim LN [4088]. [2-s 161.63] Directions on intoxication In directing a jury on the relevance of intoxication the trial judge should avoid referring to the effect of intoxication on the capacity to form the relevant intent as the reference to capacity is unnecessary and confusing and it might divert the jury from the real issue of whether the Crown has proved that the accused formed the necessary intention: R v Makisi (2004) 151 A Crim R 245; [2004] NSWCCA 333; BC200406846; (2004) 11 Crim LN 103 [1781] applying R v Coleman (1990) 19 NSWLR 467; 47 A Crim R 306. The obligation on a judge to direct a jury on intoxication was considered in Sullivan v R [2011] NSWCCA 270; BC201109699; 19(2) Crim LN [3025] in which there is a consideration of numerous cases concerned with when to give a direction on the issue of intoxication. It was held that the evidence as to the accused’s use of drugs and their effect on him was minimal and imprecise and thus did not warrant a direction on the effect of intoxication being given to the jury. [2-s 161.65] Further directions after retirement of jury The judge may recall the jury after it has retired for correction of directions and should direct the jury to further consider the matter in the light of the further directions: R v Plimmer (1975) 61 Cr App R 264. As to counsel’s responsibilities in respect of correcting errors in the summing up, see at [7-640].

[2-s 162] Alternative verdict of attempt on trial for any indictable offence 162 If, on the trial of a person for any indictable offence, the jury is not satisfied that the person is guilty of the offence, but is satisfied that he or she is guilty of: (a) an attempt to commit the offence, or (b) an assault with intent to commit the offence, it may acquit the person of the offence charged and find the person guilty of the attempt or assault, and the person is liable to punishment accordingly. [s 162 insrt Act 94 of 1999 s 4 and Sch 2[31], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[74], opn 7 July 2003] Editor’s Note. Section 162 (previously s 124) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 427 of the Crimes Act 1900.

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CRIMINAL PROCEDURE ACT 1986

[2-s 164]

COMMENTARY ON SECTION 162 Verdict of attempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 162.1] [2-s 162.1] Verdict of attempt The common law permitted an alternative verdict to be returned for a lesser included offence not charged in the indictment: R v Cameron [1983] 2 NSWLR 66 at 67–70; (1983) 8 A Crim R 466; Winner v R (1989) 39 A Crim R 180 at 181; BC8902493. If an alternative verdict is open on the evidence, a trial judge should leave it for the jury’s deliberation regardless of the attitude of the accused: R v King (2004) 59 NSWLR 515; 144 A Crim R 405; [2004] NSWCCA 20; BC200400589; Sheen v R [2011] NSWCCA 259; BC201109701 at [75]–[79] 19(2) Crim LN [3016]. Where an alternative verdict of attempt is to be relied upon it should be raised by the prosecution when opening the case: R v Cameron. If it is not raised at that time, but becomes an issue in the trial, it should be raised by the court prior to closing addresses to afford counsel an opportunity to make submissions: Pureau v R (1990) 19 NSWLR 372 at 376; 47 A Crim R 230. It is unwise, and as a matter of proper trial practice is undesirable, for a judge to raise the issue with the jury, without notice to the parties, during the summing-up: R v Cameron at 71; Pureau v R at 376; Sheen v R at [82], [90]. A trial judge should explain the basis of the alternative verdict to the jury: Pureau v R; R v Crisologo (1997) 99 A Crim R 178; BC9706994. The failure of a trial judge to raise with the parties the prospect of an alternative verdict before the topic is raised with the jury will not necessarily result in a miscarriage of justice. The question for an appellate court is whether there was practical injustice, by way of procedural or substantive unfairness, so as to demonstrate that a miscarriage of justice has occurred: Sheen v R at [83]–[94]. As to attempt, see [6-300].

[2-s 163] No further prosecution after trial for serious indictable offence where alternative verdict possible 163 If under any Act a person who is tried for a serious indictable offence may be acquitted of that offence but found guilty of some other offence, the person is not liable to further prosecution on the same facts for that other offence. [s 163 insrt Act 94 of 1999 s 4 and Sch 2[31], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[74], opn 7 July 2003] Editor’s Note. Section 163 (previously s 125) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 426 of the Crimes Act 1900.

[2-s 164] Joint trial in case of perjury 164 If: (a) a number of persons are severally indicted for perjury or false swearing, and (b) the statements alleged to be false: (i) are alleged to have been made on the same occasion, before the same court or tribunal and in respect of the same subject-matter, and (ii) are in each case to the same effect, whether in identical terms or not, all of those persons may be tried together, at the same time and before the same jury, provided that each person is to have his or her full right of challenge. [s 164 insrt Act 94 of 1999 s 4 and Sch 2[31], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[75], opn 7 July 2003] Editor’s Note. Section 164 (previously s 123) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 423A of the Crimes Act 1900.

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Criminal Procedure

s 164

[2-s 164A]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 164A

[2-s 164A] Judge unable to continue in trial by jury 164A (1) If the presiding judge of criminal proceedings being tried by a jury in the District Court or the Supreme Court dies, becomes ill or is otherwise unable to continue the proceedings (the former presiding judge), the senior judicial officer of the relevant court may, after hearing submissions from the parties to the proceedings: (a) nominate another judge of the court (the new presiding judge) to take over the conduct of the proceedings, or (b) discharge the jury and order a new trial. (2) Before making a decision to nominate a new presiding judge, the senior judicial officer must consider whether it would be in the interests of justice to do so, including (but not limited to) the following matters: (a) whether the new presiding judge will be available to take over the conduct of the proceedings within a reasonable time, (b) whether a transcript, audio or video recording of all of the proceedings is available, (c) the time that will be required for the new presiding judge to familiarise himself or herself with any available transcript or audio or video recording of the proceedings, and with any evidence that has been given in the proceedings, (d) the submissions from the parties, (e) the progress of the trial, including whether any key witnesses for the prosecution or the defence have given evidence, (f) the history, estimated length and complexity of the trial, (g) the availability of witnesses, (h) whether the decision to nominate a new presiding judge would be unfair to any of the parties to the trial. (3) If the senior judicial officer of the relevant court is unable to make a decision, the senior judicial officer may nominate another judge of the relevant court to make a decision in accordance with this section. (4) If a new presiding judge takes over the conduct of the proceedings, an order or ruling made by the former presiding judge is binding on the new presiding judge unless, in the opinion of the new presiding judge, it would not be in the interests of justice for that order or ruling to be binding. Note. Section 5F (Appeal against interlocutory judgment or order) of the Criminal Appeal Act 1912 does not extend to a decision made under this section. [s 164A insrt Act 54 of 2016 Sch 1.7[1], opn 25 Oct 2016]

DIVISION 7 — CERTAIN SUMMARY OFFENCES MAY BE DEALT WITH [Heading insrt Act 119 of 2001 s 3 and Sch 1[76], opn 7 July 2003]

[2-s 165] Definitions and application 165 (1) In this Part: back up offence, in relation to an indictable offence, means an offence: (a) that is: (i) a summary offence, or (ii) an indictable offence that is capable of being dealt with summarily by the Local Court in accordance with the provisions of Chapter 5, and

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CRIMINAL PROCEDURE ACT 1986

[2-s 166]

(b) all the elements of which are elements that are necessary to constitute the first indictable offence, and (c) that is to be prosecuted on the same facts as the first indictable offence. [def insrt Act 53 of 1998 s 7 and Sch 5[4], opn 31 July 1998; am Act 53 of 2000 Sch 3 item 1, opn 29 June 2000; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009]

back up summary offence [def rep Act 53 of 1998 s 7 and Sch 5[4], opn 31 July 1998]

court means the Supreme Court or District Court. related offence, in relation to an indictable offence, means an offence: (a) that is: (i) a summary offence, or (ii) an indictable offence that is capable of being dealt with summarily by the Local Court in accordance with the provisions of Chapter 5, and (b) that arises from substantially the same circumstances as those from which the first indictable offence has arisen, but does not include a back up offence. [def insrt Act 53 of 1998 s 7 and Sch 5[4], opn 31 July 1998; am Act 53 of 2000 Sch 3 item 2, opn 29 June 2000; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009]

related summary offence [def rep Act 53 of 1998 s 7 and Sch 5[4], opn 31 July 1998]

(2) This Part extends to proceedings commenced, but not concluded, before the commencement of this Part. [s 165 renum Act 94 of 1999 s 4 and Sch 2[21], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[77], opn 7 July 2003; am Act 119 of 2001 s 3 and Sch 1[78], opn 7 July 2003]

[2-s 166] Certification and transfer of back up and related offences 166 (1) On committal for trial or sentence of a person charged with an indictable offence: (a) the prosecutor must inform the Magistrate as to whether or not the person has been charged with any back up offence or related offence, and (b) if the person has been charged with any back up offence or related offence: (i) the prosecutor is to produce to the court a certificate specifying each back up offence and related offence with which the person has been charged, and (ii) the proceedings on each back up offence and related offence with which the person has been charged are to be transferred to the court in which the person has been committed to trial or sentence (along with the certificate). [subs (1) am Act 53 of 1998 s 7 and Sch 5[5], opn 31 July 1998; Act 117 of 2001 s 3 and Sch 7[2], opn 1 July 2002; Act 119 of 2001 s 3 and Sch 1[79], [80], opn 7 July 2003; Act 27 of 2003 s 3 and Sch 7[3], opn 18 Aug 2003]

(2) This section does not prevent the person referred to in subsection (1) being charged with any offence after committal. [subs (2) am Act 53 of 1998 s 7 and Sch 5[5], opn 31 July 1998]

(3) Proceedings on a back up offence or related offence that are laid after committal for trial or sentence of a person charged with an indictable offence are to be transferred to the court in which the person has been committed to trial or sentence. [subs (3) insrt Act 117 of 2001 s 3 and Sch 7[3], opn 1 July 2002; am Act 27 of 2003 s 3 and Sch 7[3], opn 18 Aug 2003] [s 166 insrt Act 85 of 1997 s 3 and Sch 1.4[6], opn 30 Mar 1998; am Act 53 of 1998 s 7 and Sch 5[5], opn

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Criminal Procedure

s 166

[2-s 166]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 166

31 July 1998; renum Act 94 of 1999 s 4 and Sch 2[21], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[77], opn 7 July 2003]

[2-s 167] Manner of dealing with back up and related offences 167 (1) If, following a plea of guilty by an accused person to an indictable offence or at the conclusion of the trial of an accused person for an indictable offence, a court finds the accused person guilty of the offence, the court: (a) is (unless it considers it inappropriate in the circumstances to do so) to order that the charge in relation to each back up offence be dismissed, and (b) is to deal with any back up offence the charge for which is not dismissed under paragraph (a) and any related offence with which the accused person has been charged in accordance with this Part, unless to do so would not be in the interests of justice. [subs (1) subst Act 85 of 1997 s 3 and Sch 1.4[7], opn 30 Mar 1998; am Act 53 of 1998 s 7 and Sch 5[6], opn 31 July 1998; Act 117 of 2001 s 3 and Sch 7[4], [5], opn 1 July 2002; Act 27 of 2003 s 3 and Sch 7[4], opn 18 Aug 2003]

(1A) If at the conclusion of the trial of an accused person for an indictable offence, a court finds the accused person not guilty of the offence, the court is to deal with any back up offence or related offence with which the person has been charged in accordance with this Part, unless to do so would not be in the interests of justice. [subs (1A) insrt Act 85 of 1997 s 3 and Sch 1.4[7], opn 30 Mar 1998; am Act 53 of 1998 s 7 and Sch 5[6], opn 31 July 1998; Act 117 of 2001 s 3 and Sch 7[6], [7], opn 1 July 2002]

(2) If a court is dealing with an accused person for an indictable offence following the person’s committal for sentence, the court: (a) is (unless it considers it inappropriate in the circumstances to do so) to order that the charge in relation to each back up offence be dismissed, and (b) may deal with any back up offence the charge for which is not dismissed under paragraph (a) and any related offence with which the accused person has been charged in accordance with this Part, unless to do so would not be in the interests of justice. [subs (2) insrt Act 27 of 2003 s 3 and Sch 7[5], opn 18 Aug 2003]

(3) [subs (3) rep Act 117 of 2001 s 3 and Sch 7[8], opn 1 July 2002] (4) A court may deal with a back up offence or related offence with which an accused person has been charged even though it is not doing so in relation to a back up offence or related offence with which another accused person in the same proceedings is charged. [subs (4) am Act 85 of 1997 s 3 and Sch 1.4[10], [11], opn 30 Mar 1998; Act 53 of 1998 s 7 and Sch 5[6], opn 31 July 1998] [s 167 heading subst Act 53 of 1998 s 7 and Sch 5[6], opn 31 July 1998; renum Act 94 of 1999 s 4 and Sch 2[21], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[77], opn 7 July 2003]

COMMENTARY ON SECTION 167 Scope of the section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 167.1]

[2-s 167.1] Scope of the section The section applies where the accused has been committed for trial or sentence, and after the accused has pleaded guilty or after trial in the District or Supreme Court. The section was amended as a consequence of the decision in R v MacDonald (2000) 110 A Crim R 238; BC200000178; [2000] NSWCCA 1. The court can deal with matters under the section notwithstanding that no certificate under s 166 has been handed up to the magistrate at committal proceedings and the prosecution is not bound by decisions made prior to

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CRIMINAL PROCEDURE ACT 1986

[2-s 168.1]

committal regarding related or back-up summary offences: Director of Public Prosecutions v Sinton (2001) 51 NSWLR 659; 33 MVR 549; [2001] NSWCA 179; BC200103103; (2001) 8 Crim LN 42 [1294], where it was held that it was not an abuse of process for the prosecution to proceed on a back-up charge in the Local Court where no application had been made to the trial court to deal with the matter. The provisions apply in respect of “related offences” charged against a person under the age of 18 so that, where requested to do so, the court can deal with the offender according to law in respect of these offences and is not confined to the powers of the Children’s Court: DJ v R [2017] NSWCCA 319; BC201711037; 25(2) Crim LN [3947].

[2-s 168] Procedures for dealing with certain offences related to indictable offences 168 (1) The court is to deal with a back up offence or related offence under this Part without a jury and on the basis only of evidence given during the trial of the accused person for the relevant indictable offence in the same proceedings and additional evidence given under this section. [subs (1) am Act 85 of 1997 s 3 and Sch 1.4[12], opn 30 Mar 1998; Act 53 of 1998 s 7 and Sch 5[7], [8], opn 31 July 1998]

(2) The prosecutor or accused person may, with the leave of the court, call additional evidence in relation to the back up offence or related offence. [subs (2) am Act 85 of 1997 s 3 and Sch 1.4[12], opn 30 Mar 1998; Act 53 of 1998 s 7 and Sch 5[7], opn 31 July 1998]

(3) In sentencing or otherwise dealing with a person for a back up offence or related offence, the court has the same functions, and is subject to the same restrictions and procedures, as the Local Court. [subs (3) am Act 85 of 1997 s 3 and Sch 1.4[12], opn 30 Mar 1998; Act 53 of 1998 s 7 and Sch 5[7], opn 31 July 1998; Act 119 of 2001 s 3 and Sch 1[81], opn 7 July 2003; Act 94 of 2007 ss 3, 4 and Schs 1.28, 2, opn 6 July 2009]

(4) Rules of court may be made with respect to back up offences or related offences dealt with under this Part. [subs (4) am Act 85 of 1997 s 3 and Sch 1.4[13], opn 30 Mar 1998; Act 53 of 1998 s 7 and Sch 5[7], opn 31 July 1998] [s 168 heading subst Act 53 of 1998 s 7 and Sch 5[7], opn 31 July 1998; renum Act 94 of 1999 s 4 and Sch 2[21], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[77], opn 7 July 2003]

COMMENTARY ON SECTION 168 Sentencing for back up offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 168.1]

[2-s 168.1] Sentencing for back up offence Section 168(3) requires the court to proceed to sentence as if the offender was being dealt with in the Local Court and the court is subject to the restrictions on sentence imposed in that court. The court therefore is restricted to the maximum sentence available for the offence or, if the offence is an indictable one capable of being dealt with summarily, the applicable penalty for such an offence: see at [2-s 267] and [2-s 268]. There is also a restriction upon the ability of the Local Court to impose cumulative sentences: see at [5-s 58]. There is a restriction upon the type of orders that the Local Court can impose on an offender who is not before the court: see at [5-s 25]. The sentence for a back up offence under this provision can be included in an aggregate sentence imposed in the District or Supreme Court under s 53A of the Crimes (Sentencing Procedure) Act at [5-s 53A]: R v Price (2016) 75 MVR 89; [2016] NSWCCA 50; BC201602330; 23(4) Crim LN [3667].

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Criminal Procedure

s 168

[2-s 168.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 168

Where an aggregate sentence is imposed for an indictable offence as well as the s 166 offence there is no limitation on the court under s 58 of the Crimes (Sentencing Procedure) Act in respect of the accumulation of the indicative sentence for the s 166 offence with the indictable offence: Alesbhi v R; Esbhi v R [2018] NSWCCA 30; BC201801504; 25(4) Crim LN [3967].

[2-s 169] Remission of certain offences related to indictable offences to Local Court 169 (1) A court that is dealing with a back up offence or related offence under this Part may, if it is in the interests of justice to do so, remit the matter to the Local Court. [subs (1) am Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009]

(2) Any back up offence or related offence that is not dealt with by a court in accordance with this Part is to be remitted back to the Local Court. [subs (2) am Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009] [s 169 subst Act 117 of 2001 s 3 and Sch 7[9], opn 1 July 2002; renum Act 119 of 2001 s 3 and Sch 1[77], opn 7 July 2003]

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Criminal Procedure

CHAPTER 4 — SUMMARY PROCEDURE [Ch 4 insrt Act 119 of 2001 s 3 and Sch 1[82], opn 7 July 2003]

PART 1 — PRELIMINARY

[2-s 170] Application 170 (1) This Chapter applies to or in respect of proceedings for summary offences, including proceedings for indictable offences that are being dealt with summarily. (2) Parts 2 and 3 apply to the following proceedings: (a) proceedings before the Local Court, (b) [repealed] (c) proceedings before an Industrial Magistrate, (d) [repealed] (e) any other proceedings prescribed by the regulations. [subs (2) am Act 92 of 2007 s 6 and Sch 4.5[3], opn 1 July 2008; Act 107 of 2008 s 3 and Sch 7, opn 8 Dec 2008; Act 107 of 2008 s 3 and Sch 29 opn 7 Apr 2009; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009]

(2A) (a) (b) (c) (d) (e) (f)

Part 4 applies to the following proceedings: proceedings before the Local Court, proceedings before the District Court, proceedings before the Supreme Court, proceedings before an Industrial Magistrate, [repealed] any other proceedings prescribed by the regulations.

[subs (2A) insrt Act 107 of 2008 s 3 and Sch 7, opn 8 Dec 2008; am Act 107 of 2008 s 3 and Sch 29 opn 7 Apr 2009; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009]

(3) Part 5 (except Division 2A) applies to the following proceedings: (a) proceedings before the Supreme Court, (b) [repealed] (c) proceedings before the Land and Environment Court, (c1) proceedings before the District Court, (d) proceedings before the Court of Coal Mines Regulation, (e) any other proceedings prescribed by the regulations. [subs (3) am Act 67 of 2011 Sch 4.6[1], opn 1 Jan 2012; Act 10 of 2012 Sch 1[1], opn 30 Apr 2012; Act 48 of 2016 Sch 2.13[4], opn 8 Dec 2016]

(4) Division 2A of Part 5 applies to the following proceedings: (a) proceedings before the Supreme Court, (b) proceedings before the Land and Environment Court. [subs (4) insrt Act 10 of 2012 Sch 1[2], opn 30 Apr 2012]

COMMENTARY ON SECTION 170 Scope of Chapter 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 170.1]

[2-s 170.1] Scope of Chapter 4 Parts 2–4 of Ch 4 (ss 172–244) apply to proceedings for summary offences, including proceedings for indictable offences that are being dealt with summarily, primarily before the Local Court: s 170(2)(a). Where such proceedings were commenced before 7 July 2003, the proceedings were governed by the repealed Justices Act 1902 and certain provisions in the Criminal Procedure Act 1986, before that Act was amended by the

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[2-s 170.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 170

Criminal Procedure Amendment (Justices and Local Courts) Act 2001. See [2-s 2.5] and [2-s 2.10] for a discussion of savings and transitional provisions. The case management provisions in Div 2A in Pt 5 of Ch 4 (ss 247A–247Y) apply to criminal proceedings before the Supreme Court and the Land and Environment Court in the summary jurisdictions of those courts. Divs 1 and 2 of Pt 5 (ss 245–247) and Div 3 in Pt 5 (ss 248–257) of Ch 4 apply to proceedings for summary offences which are determined by the courts specified in s 170(3). The District Court was inserted (s 170(3)(c1)) when that court was invested with summary jurisdiction to hear and determine certain summary offences under ss 31 and 32 of the Work Health and Safety Act 2011. See [21A-s 31], [21A-s 32] and [21A-s 229B].

[2-s 171] Definitions 171 In this Chapter: court means a court to which the relevant provision of this Chapter applies and includes (where applicable) an Industrial Magistrate. Judge includes a judge of the Supreme Court, the Land and Environment Court and the Court of Coal Mines Regulation and any other person of a class prescribed by the regulations for the purposes of this definition. [def am Act 48 of 2016 Sch 2.13[5], opn 8 Dec 2016]

Magistrate includes an Industrial Magistrate and any other person of a class prescribed by the regulations for the purposes of this definition. [def am Act 92 of 2007 s 6 and Sch 4.5[4], opn 1 July 2008; Act 107 of 2008 s 3 and Sch 29 opn 7 Apr 2009]

registrar means: (a) in the case of proceedings before the Local Court, the relevant registrar of the Local Court, (b) [repealed] (c) in the case of proceedings before an Industrial Magistrate, the relevant registrar of the Local Court, (d) [repealed] (e) in the case of proceedings before any other court to which Parts 2–4 apply, the person prescribed by the regulations for the purposes of this definition. [def am Act 92 of 2007 s 6 and Sch 4.5[5], opn 1 July 2008; Act 107 of 2008 s 3 and Sch 29 opn 7 Apr 2009; Act 94 of 2007 s 3 and Sch 1.28, opn 6 July 2009]

PART 2 — TRIAL PROCEDURES IN LOWER COURTS DIVISION 1 — COMMENCEMENT OF PROCEEDINGS

[2-s 172] Commencement of proceedings by court attendance notice 172 (1) Proceedings for an offence are to be commenced in a court by the issue and filing of a court attendance notice in accordance with this Division. (2) A court attendance notice may be issued in respect of a person if the person has committed or is suspected of having committed an offence. (3) A court attendance notice may be issued in respect of any offence for which proceedings may be taken in this State, including an offence committed elsewhere than in this State.

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CRIMINAL PROCEDURE ACT 1986

COMMENTARY ON SECTION 172 Commencing summary proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . Filing of documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Case Management of Local Court Summary Criminal Proceedings .

[2-s 174] Criminal Procedure

s 174

[2-s 172.1] [2-s 172.5] [2-s 172.10]

[2-s 172.1] Commencing summary proceedings Summary proceedings commence on the date on which a court attendance notice is filed at a Local Court, s 178(1). As to the requirements of a court attendance notice see at [2-s 175.1]. As to the jurisdiction of a court in the State to deal with offences committed outside the State see at Crimes Act Part 1A at [8-s 10A] and following. As to the commencement of a private prosecution, see s 174. Proceedings for a summary offence must be commenced not later than six months from when the offence was alleged to have been committed unless another limitation period is specified with respect to the offence, see [2-s 179]. The sixth-month limitation period does not apply to an indictable offence that is being dealt with summarily: s 179(2)(b). See [2-s 6] and [2-s 7] concerning summary offences and summary disposal of indictable offences. [2-s 172.5] Filing of documents See r 8.7 of the Local Court Rules 2009 at [2-9845] concerning filing of documents. Failure to comply with r 8.7(4) does not lead to invalidation of the commencement of proceedings: Fell v Chenhall [2018] NSWSC 1574; BC201809763. [2-s 172.10] Case Management of Local Court Summary Criminal Proceedings [2-s 134.20] and Local Court Practice Note Crim 1 at [28-15,205].

See

[2-s 173] Commencement of proceedings by police officer or public officer 173 If a police officer or public officer is authorised under section 14 of this Act or under any other law to commence proceedings for an offence against a person, the officer may commence the proceedings by issuing a court attendance notice and filing the notice in accordance with this Division. [s 173 am Act 107 of 2006 s 3 and Sch 1, opn 29 Nov 2006]

COMMENTARY ON SECTION 173 Proceedings by police officer or public officer . . . . . . . . . . . . . . . . . . .

[2-s 173.1]

[2-s 173.1] Proceedings by police officer or public officer A police officer or public officer, as defined at [2-s 3], may commence proceedings by issuing a court attendance notice and filing the notice. Unlike a private prosecution under s 174, the registrar has no power to refuse to sign a court attendance notice issued by a police officer or public officer. The scope of the section and its relationship with s 14 were considered in Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185; BC200705318; (2007) 14 Crim LN 96 [2251] where it was held that an information for an offence under s 178BB of the Crimes Act was validly commenced by an officer of the Ministry of Transport.

[2-s 174] Commencement of private prosecutions 174 (1) If a person other than a police officer or public officer is authorised under section 14 of this Act or under any other law to commence proceedings for an offence

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[2-s 174]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 174

against a person, the person may commence the proceedings by issuing a court attendance notice, signed by a registrar, and filing the notice in accordance with this Division. [subs (1) am Act 107 of 2006 s 3 and Sch 1, opn 29 Nov 2006]

(2) A registrar must not sign a court attendance notice if: (a) the registrar is of the opinion that the notice does not disclose grounds for the proceedings, or (b) the registrar is of the opinion that the notice is not in the form required by or under this Act, or (c) the registrar is of the opinion that a ground for refusal set out in the rules applies to the notice. (3) If a registrar refuses to sign a court attendance notice proposed to be issued by any such person, the question of whether the court attendance notice is to be signed and issued is to be determined by a Magistrate on application by the person. [subs (3) am Act 4 of 2018 Sch 1.5[1], opn 21 Mar 2018]

COMMENTARY ON SECTION 174 Law Part Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Private prosecutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2 s 174.0] Law Part Code

[2 s 174.0] [2-s 174.1]

The Law Part Code for s 17491) is 51531.

[2-s 174.1] Private prosecutions As to the requirements of a court attendance notice see at [2-s 175.1]. The registrar must refuse to sign a court attendance notice from a private prosecutor in circumstances set out in s 174(2). Where the registrar refuses to sign a notice under s 174(2), the question of whether the notice is to be signed and issued is to be determined by the court on application of the private prosecutor: s 174(3). See r 8.4 of the Local Court Rules 2009 at [2-9830] for grounds for a registrar to refuse to sign a court attendance notice. The operation of s 49 of the Criminal Procedure Act 1986 (the equivalent of s 174 for indictable offences) and the now repealed r 57 of the Local Courts (Criminal and Applications Procedure) Rule 2003 (the predecessor to r 8.4 of the Local Court Rules 2009) was considered in Potier v Huber (2004) 148 A Crim R 399; [2004] NSWSC 720; BC200405049 where a challenge to a magistrate’s refusal to issue a court attendance notice was rejected. The relationship between this section, ss 173 and 14 was considered in Sasterawan v Morris [2007] NSWCA 185; BC200705318 (2007) 14 Crim LN 96 [2251].

[2-s 175] Form of court attendance notice 175 (1) A court attendance notice must be in writing and be in the form prescribed by the rules. (2) The rules may prescribe one or more forms of court attendance notice. (3) A court attendance notice must do the following: (a) describe the offence, (b) briefly state the particulars of the alleged offence, (c) contain the name of the prosecutor, (d) require the accused person to appear before the court at a specified date, time and place, unless a warrant is issued for the arrest of the person or the person is refused bail,

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CRIMINAL PROCEDURE ACT 1986

[2-s 175.5]

(e) state, unless a warrant is issued for the arrest of the person or the person is refused bail, that failure to appear may result in the arrest of the person or in the matter being dealt with in the absence of the person. [subs (3) am Act 99 of 2002 s 3 and Sch 1.2[5], opn 7 July 2003]

(4) The rules may prescribe additional matters to be included in court attendance notices. (5) A court attendance notice may describe an offence, act or other thing in a way that is sufficient under this Act for the purposes of an indictment or an averment in an indictment. COMMENTARY ON SECTION 175 Requirements of a court attendance notice . . . . . . . . . . . . . . . . . . . . . . [2-s 175.1] Duplicity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 175.5] [2-s 175.1] Requirements of a court attendance notice As to the description of an offence in a court attendance notice see at [2-s 11.1]. The offence may be described in the prescribed short form for the offence, see at [2-s 12]. See [2-s 16.5] concerning particulars in the charge and [2-s 16.15] concerning allegation of the time of the offence. The failure of a court attendance notice to fulfil the requirements of the section will not necessarily result in the notice being invalid see at [2-s 16.30]. See [8-s 417A] concerning proof of exceptions etc and the contents of a court attendance notice alleging such an offence. The form of court attendance notices to be used by police officers and public officers appears at [2-5600], [2-5610] and [2-5620]. See r 3.11 Local Court Rules 2009 at [2-9415] concerning the approved form and contents of a court attendance notice commencing proceedings for a summary offence. For the approved form of court attendance notice see [2-11,5660]. In the course of the second reading speech for the Courts Legislation Miscellaneous Amendments Act 2002, which amended s 175(3)(b) and omitted s 176, Mr Moss, Parliamentary Secretary on behalf of the Attorney-General, said (NSW Hansard, Legislative Assembly, 23 October 2002): It was not intended that the Justices Act reform package change the law in relation to the contents of the initiating process. Therefore ss 50 and 175 will be amended to more closely reflect the language of the current law. Schedule 1.2[2] will amend ss 51 and 176 of the Criminal Procedure Act which provide that a court attendance notice may not relate to more than one offence. This restriction will cause significant problems for the police when they issue field court attendance notices. The benefits of being able to issue court attendance notices out in the field, without having to come to court to file the documents, would be lost if police had to issue multiple notices where a person was being charged with a number of offences. The bill will repeal those sections. The nature and extent of the requirement in s 175(3)(b) that a court attendance notice briefly state the particulars of the alleged offence were considered in Knaggs v DPP (2007) 170 A Crim R 366; [2007] NSWCA 83; BC200702392; (2007) 14 Crim LN 51 [2204]. The filing of a court attendance notice which includes the statement required by s 175(3)(e) is not an essential preliminary to the commencement of summary criminal proceedings, and the absence of such a statement does not render the proceedings invalid: Blight v Barber (2007) 164 IR 136; [2007] NSWSC 448; BC200703370. [2-s 175.5] Duplicity A court attendance notice is not necessarily invalid because it is duplicitous either on its face or having regard to the evidence led in support of it, see at [2-s 16.30]. As to duplicity generally see at [2-s 16.20].

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Criminal Procedure

s 175

[2-s 175.5]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 176

Court attendance notice to be for one offence only 176

[s 176 rep Act 99 of 2002 s 3 and Sch 1.2[2], opn 7 July 2003]

[2-s 177] Service of court attendance notices 177 (1) A court attendance notice issued by a police officer must be served by a police officer or prosecutor in accordance with the rules. [subs (1) am Act 107 of 2006 s 3 and Sch 1, opn 29 Nov 2006]

(2) A court attendance notice issued by a public officer must be served by a police officer, public officer or other person of a class prescribed by the rules, in accordance with the rules. (3) A copy of a court attendance notice issued by a person other than a police officer or a public officer must be served by a person of a class prescribed by the rules in accordance with the rules. (4) A copy of a court attendance notice must be filed in the registry of a court in accordance with the rules. [subs (4) subst Act 107 of 2006 s 3 and Sch 1, opn 29 Nov 2006]

(5) [subs (5) rep Act 107 of 2006 s 3 and Sch 1, opn 29 Nov 2006] COMMENTARY ON SECTION 177 Law Part Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Service of court attendance notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2- s 177.0] Law Part Code

[2- s 177.0] [2-s 177.5]

The Law Part Code for s 177(4) is 51532.

[2-s 177.5] Service of court attendance notices See Pt 5 of the Local Court Rules 2009 at [2-9540] and following concerning service of notices. Providing the court attendance notice came into the possession of the defendant or to his or her notice, personal service has occurred, however it was undertaken: Young v Sprague [2015] NSWSC 1874; BC201512127 at [13].

[2-s 178] When proceedings commence 178 (1) All proceedings are taken to have commenced on the date on which a court attendance notice is filed in the registry of a relevant court in accordance with this Division. (2) [subs (2) rep Act 107 of 2006 s 3 and Sch 1, opn 29 Nov 2006] (3) Nothing in this section affects any other Act or law under which proceedings are taken to have been commenced on another date. COMMENTARY ON SECTION 178 When proceedings commence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 178.1]

[2-s 178.1] When proceedings commence The repeal of ss 177(5) and 178(2) by the Crimes and Courts Legislation Amendment Act 2006 has the effect that service of a court attendance notice is no longer a condition of the valid commencement of proceedings; thus the decision in Sharman v DPP (2006) 161 A Crim R 1; [2006] NSWSC 135; BC200601072 no longer has application.

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CRIMINAL PROCEDURE ACT 1986

[2-s 179.1]

[2-s 179] Time limit for commencement of summary proceedings 179 (1) Proceedings for a summary offence must be commenced not later than 6 months from when the offence was alleged to have been committed. (2) Subsection (1) does not apply: (a) to an offence for which an Act or law specifies another period within which proceedings must be commenced, or (b) to an indictable offence that is being dealt with summarily, or (c) to an offence involving the death of a person that is or has been the subject of a coronial inquest, or (d) to a back up summary offence if the District Court determines an appeal against a conviction or finding of guilt by the Children’s Court or Local Court for the related indictable offence by setting aside the conviction or finding of guilt. [subs (2) am Act 107 of 2006; s 3 and Sch 1, opn 29 Nov 2006; Act 87 of 2018 Sch 1 item 1.15[1], opn 28 Nov 2018]

(3) Proceedings for a summary offence that relate to the death of a person that is or has been the subject of a coronial inquest must be commenced: (a) not later than 6 months after the conclusion of the inquest, or (b) not later than 2 years from when the offence is alleged to have been committed, whichever occurs first. [subs (3) insrt Act 107 of 2006; s 3 and Sch 1, opn 29 Nov 2006]

(4) Proceedings for a back up summary offence must be commenced not later than 6 months after the District Court determines an appeal against the conviction or finding of guilt by the Children’s Court or Local Court for the related indictable offence by setting aside the conviction or finding of guilt. [subs (4) insrt Act 87 of 2018 Sch 1 item 1.15[2], opn 28 Nov 2018]

(5) In this section, a summary offence is a back up summary offence if a charge for the summary offence was laid against a person but was withdrawn or dismissed after the person was convicted or found guilty of an indictable offence (the related indictable offence) by the Children’s Court or Local Court on the basis of the same facts. [subs (5) insrt Act 87 of 2018 Sch 1 item 1.15[2], opn 28 Nov 2018]

COMMENTARY ON SECTION 179 Time limitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Continuing offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Burden of proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 179.1] [2-s 179.5] [2-s 179.10]

[2-s 179.1] Time limitation Proceedings for a summary offence must be commenced not later than six months from when the offence was alleged to have been committed unless another limitation period is specified with respect to the particular offence: s 179(1) and (2)(a). The six-month limitation period does not apply to an indictable offence that is being dealt with summarily: s 179(2)(b). As to the appropriate characterisation of limitation provisions in criminal proceedings, see WorkCover Authority of NSW (Inspector Keenan) v Lucon (Aust) Pty Ltd (2002) 112 IR 332; NSWIRComm 68 at [90]ff. It has been held that the effect of a section such as repealed s 56 Justices Act 1902 was not to deprive the court of jurisdiction: Parissienne Basket Shoes v Whyte (1938) 59 CLR 369 at 392; [1938] ALR 119; BC3800054; Adams v Chas S Watson Pty Ltd (1938) 60 CLR 545 at 553; [1938] ALR 365; BC3800025.

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Criminal Procedure

s 179

[2-s 179.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 179

Section 201 of the Road Transport Act 2013 at [13-s 201] provides that proceedings for an operator onus offence (as defined in that section) may be commenced within 1 year after the date of the alleged commission of the offence. [2-s 179.5] Continuing offences The question whether an offence is a continuing offence or one which is committed once and for all at a specified time depends upon consideration of the language of the Act in question. The test whether an offence is to be treated in law as continuous is whether its gravamen is to be found in something which the offender can, at will, discontinue: Sloggett v Adams (1953) 70 WN (NSW) 206 at 208; Environment Protection Authority v Alkem Drums Pty Ltd (2000) LGERA 130; 121 A Crim R 152; [2000] NSWCCA 416; BC200008462. Where a notice sets a time for the doing of the Act which is required to be done, the offence is committed once and for all if that Act is not done within the time set. Where the notice does not expressly specify a time, a reasonable time would be implied and in such case the offence would be committed once and for all if, at the expiration of a reasonable time, the work had not been done: Sloggett, above, at 208; Alkem Drums, above, at [8]–[11]. See, generally, Alkem Drums, above, for an examination of authorities concerning continuing offences, including Sloggett, above; Ex parte Schaefer; Re Field (1943) 60 WN (NSW) 99; Leydon v Forrest (1980) 23 SASR 364; J Robins and Sons Ltd v Maloney (No 2) [1935] AR (NSW) 155; (1935) IR 155; Ganke v Corporate Affairs Commission (1990) 19 NSWLR 449; 1 ACSR 764. [2-s 179.10] Burden of proof The general burden of proving that the information is in time lies on the prosecutor. However, where a further bar may be set up within the original period limited if new and additional facts appear the burden of proving the latter facts lies on the defendant: Morgan v Babcock and Wilcox Ltd (1929) 43 CLR 163 at 174–5, 179–80; [1929] ALR 313; BC2900014.

[2-s 180] Relationship to other law or practice 180 (1) Nothing in this Part affects any law or practice relating to indictments presented or filed in the Supreme Court or the District Court by the Attorney General or the Director of Public Prosecutions. (2) If an Act or a statutory rule provides for proceedings for an offence which may be taken in a court to be commenced otherwise than by issuing a court attendance notice, the proceedings may be commenced in accordance with this Act. (3) Nothing in this Part affects the operation of the provisions of the Crimes (Domestic and Personal Violence) Act 2007 relating to the commencement of proceedings under that Act. [subs (3) am Act 114 of 2008 s 3 and Sch 2.8[1]–[2], opn 10 Dec 2008]

[2-s 181] Attendance of accused person at proceedings 181 (1) A person who issues a court attendance notice may, at any time after the notice is issued and before the date on which the accused person is required to first attend at the court for the hearing of proceedings, apply for a warrant to arrest the accused person. (2) An authorised officer may, when a court attendance notice is issued by the registrar, or filed in the court, or at any time after then and before the matter is first before a court, issue a warrant to arrest the accused person if the authorised officer is satisfied there are substantial reasons to do so and that it is in the interests of justice to do so.

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CRIMINAL PROCEDURE ACT 1986

[2-s 182]

(3) The rules may make provision for or with respect to matters that may be taken into account by an authorised officer in determining whether to issue a warrant under this section. (3A) If an accused person is not present at the day, time and place set down for the hearing of proceedings (including any day to which proceedings are adjourned), or absconds from the proceedings, the Magistrate may issue a warrant to arrest the accused person if the Magistrate is satisfied there are substantial reasons to do so and that it is in the interests of justice to do so. [subs (3A) insrt Act 130 of 2002 s 3 and Sch 6[2], opn 7 July 2003]

(4) A Magistrate or an authorised officer before whom an accused person is brought on arrest on a warrant issued under this section may, if bail is not dispensed with or granted, order the issue of a warrant: (a) committing the accused person to a correctional centre or other place of security, and (b) ordering the accused person to be brought before a court at the date, time and place specified in the order. (5) The Magistrate or authorised officer must give notice of the date, time and place set to the prosecutor. Part 4 of this Chapter sets out procedures for arrest warrants and warrants of commitment generally. COMMENTARY ON SECTION 181 Law Part Codes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 181.0] The Law The Law The Law

[2-s 181.0]

Law Part Codes The Law Part Code for s 181(1) is 51535. Part Code for s 181(2) is 51536. Part Code for s 181(3A) is 59958. Part Code for s 181(4)(a) is 51537.

DIVISION 2 — PRE-TRIAL PROCEDURES

[2-s 182] Written pleas 182 (1) An accused person served with a court attendance notice may lodge with the registrar a notice in writing that the accused person will plead guilty or not guilty to the offence or offences the subject of the court attendance notice concerned. (2) The notice is to be in the form prescribed by the rules and, in the case of a guilty plea, may be accompanied by additional written material containing matters in mitigation of the offence. (2A) Despite subsection (2), a notice in writing under this section is not required to be in the form prescribed by the rules if the written notice is accepted by the Local Court. [subs (2A) insrt Act 44 of 2017 Sch 1.9[3], opn 25 Sep 2017]

(3) An accused person who lodges a notice under this section with the registrar not later than 7 days before the date on which the person is required to first attend before the Local Court: (a) is not required to attend the Court on that date, and (b) is taken to have attended the Court on that date. [subs (3) subst Act 4 of 2009 Sch 2.2, opn 30 Mar 2009; am Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009]

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Criminal Procedure

s 182

[2-s 182]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 182

(4) This section does not apply to an accused person who has been granted or refused bail or in relation to whom bail has been dispensed with. [subs (4) insrt Act 40 of 2003 s 3 and Sch 1.10[4], opn 7 July 2003]

COMMENTARY ON SECTION 182 Written pleas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 182.1]

[2-s 182.1] Written pleas See Written notice of pleading at [2-5710] for the form prescribed for the purpose of s 182(2). The obligation to give reasons on sentence extends to the imposition of penalty at an ex parte sentencing hearing where the defendant has entered a written plea of guilt under s 182: Roylance v Director of Public Prosecutions (DPP) (NSW) [2018] NSWSC 933; BC201805860. This decision was referred to and followed in Hayes v DPP (NSW) [2019] NSWSC 378; BC201902606; 26(5) Crim LN [4130] where it was emphasised that a magistrate must consider whether to record a conviction or not, even where the matter is being dealt with ex parte, and must give reasons for that decision.

[2-s 183] Brief of evidence to be served on accused person where not guilty plea 183 (1) If an accused person pleads not guilty to an offence, the prosecutor must, subject to section 187, serve or cause to be served on the accused person a copy of the brief of evidence relating to the offence. [subs (1) am Act 99 of 2002 s 3 and Sch 1.2[6], opn 7 July 2003]

(2) The brief of evidence is, unless the regulations otherwise provide, to consist of documents regarding the evidence that the prosecutor intends to adduce in order to prove the commission of the offence and is to include: (a) written statements taken from the persons the prosecutor intends to call to give evidence in proceedings for the offence, and (b) copies of any document or any other thing, identified in such a written statement as a proposed exhibit. [subs (2) am Act 34 of 2007 s 3 and Sch 1[1], opn 14 Nov 2007]

(3) The copy of the brief of evidence is to be served at least 14 days before the hearing of the evidence for the prosecution. (4) The Magistrate may set a later date for service with the consent of the accused person or if of the opinion that the circumstances of the case require it. [s 183 am Act 99 of 2002 s 3 and Sch 1.2[6], opn 7 July 2003]

COMMENTARY ON SECTION 183 Brief of evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope of the section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 183.1] [2-s 183.5]

[2-s 183.1] Brief of evidence Sections 183(2) and 186 provide for the contents of the brief of evidence. The brief of evidence does not include a copy of a search warrant which was not part of the proof of the offence or which was not to be tendered as evidence in the prosecution’s case: Director of Public Prosecutions v Sounthorn [1999] NSWSC 786; BC9904395; (1999) 6 Crim LN 66 [1042]. Where the prosecution seeks to rely upon conversations recorded pursuant to warrants under the Listening Devices Act 1984 or the Telecommunications (Interception and Access) Act 1979

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CRIMINAL PROCEDURE ACT 1986

[2-s 185]

(Cth) to prove the commission of an offence, copies of the warrants should be included in the brief of evidence: Director of Public Prosecutions v Webb (2001) 52 NSWLR 341; 164 FLR 394; [2001] NSWCA 307; BC200105723. [2-s 183.5] Scope of the section The operation of repealed s 66B Justices Act 1902, which was in broadly similar terms to s 183, was considered by the Court of Appeal in Director of Public Prosecutions v West (2000) 48 NSWLR 647; [2000] NSWCA 103; BC200002228; (2000) 7 Crim LN 25 [1136]. Mason P considered the interaction of repealed ss 66B, 66E, 66F and 66G and that part of his judgment is extensively set out at (2000) 7 Crim LN 25–7 and see the annotations for the following sections in this Part. Modifying the words of Mason P at [24] to take into account the words of the new sections, the following principles may be stated: (a) Unless there is an order to the contrary in accordance with s 187, s 183 imposes a duty on the prosecutor that is triggered by a plea of not guilty to an offence. That duty is to serve or cause to be served on the accused person a copy of the “brief of evidence” relating to that offence. (b) The time for performance of the duty is “at least 14 days before the hearing of the evidence for the prosecution” (s 183(3)) unless the accused person consents to a later date for service or the magistrate is of the opinion that the circumstances of the case require it: s 183(4). It was also held in West that the words “14 days before the hearing of the evidence for the prosecution” is not a reference to the first time the prosecution evidence is called but to the hearing date fixed by the court and, if on the day the hearing is ready to commence, there has been a breach of the section then the prosecution must seek dispensation under s 188(2) or seek an adjournment under s 187(4). The magistrate is then to take into account whether there is any prejudice actually faced by the accused person as a result of the failure to serve the brief in time. The failure of the prosecutor to serve the brief in time does not itself justify the magistrate dismissing the charge without considering all of the circumstances and where the only reasonable course was to grant the adjournment sought by the prosecutor: Director of Public Prosecutions (NSW) v Fungavaka [2010] NSWSC 917; BC201006159; 17(9) Crim LN 136 [2790].

[2-s 184] Exhibits 184 (1) Despite section 183, the prosecutor is not required to include a copy of a proposed exhibit identified in the brief of evidence if it is impossible or impractical to copy the exhibit. (2) However, in that case the prosecutor is: (a) to serve on the accused person a notice specifying a reasonable time and place at which the proposed exhibit may be inspected, and (b) to allow the accused person a reasonable opportunity to inspect each proposed exhibit referred to in the notice.

[2-s 185] Recording of interviews with vulnerable persons 185 (1) If the prosecutor intends to call a vulnerable person to give evidence in proceedings, the brief of evidence may include a transcript of a recording made by an investigating official of an interview with the vulnerable person, during which the vulnerable person was questioned by the investigating official in connection with the investigation of the commission or possible commission of the offence (as referred to in section 306R). (2) A copy of the transcript of the recording must be certified by an investigating official as an accurate transcript of the recording and served on the accused person in accordance with section 183.

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Criminal Procedure

s 185

[2-s 185]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 185

(3) A brief of evidence that includes a transcript of a recording of an interview with a vulnerable person is not required also to include a written statement from the vulnerable person concerned. (4) The transcript of the recording is taken, for the purposes of this Division, to be a written statement taken from the vulnerable person. Accordingly, any document or other thing identified in the transcript as a proposed exhibit forms part of the brief of evidence. (5) Nothing in this Division requires the prosecutor to serve on the accused person a copy of the actual recording made by an investigating official of an interview with the vulnerable person. (6) This section does not affect section 306V(2). (7) In this section: investigating official has the same meaning as it has in Part 6 of Chapter 6. vulnerable person [def rep Act 83 of 2014 Sch 1[9], opn 1 June 2015]

Note. Part 6 of Chapter 6 allows vulnerable persons (children and cognitively impaired persons) to give evidence of a previous representation in the form of a recording made by an investigating official of an interview with the vulnerable person. Section 306V(2) (which is contained in that Part) provides that such evidence is not to be admitted unless the accused person and his or her Australian legal practitioner have been given a reasonable opportunity to listen to or view the recording. [s 185 subst Act 6 of 2007 s 3 and Sch 1[3], opn 12 Oct 2007; am Act 74 of 2008 s 4 and Sch 2, opn 1 Dec 2008; Act 56 of 2009 Sch 3.3, opn 17 July 2009]

COMMENTARY ON SECTION 185 Operation of section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 185.1]

[2-s 185.1] Operation of section Section 185 applies to proceedings commenced on or after 12 October 2007: cl 55 at [2-Sch 2].

[2-s 185A] Recordings of interviews with domestic violence complainants 185A (1) If the prosecutor intends to call a domestic violence complainant to give evidence in proceedings for a domestic violence offence, the brief of evidence may include a recorded statement relating to the offence. (2) For the purpose of the service of a recorded statement included in a brief of evidence, the requirements of Division 3 of Part 4B of Chapter 6 in relation to service of, and access to, a recorded statement must be complied with. (3) This Division (other than section 185(1)) applies to a recorded statement included in a brief of evidence and the person whose representation is recorded in the recorded statement in the same way as it applies to a written statement included under this Division and the person who made the written statement. (4) A brief of evidence that includes a recorded statement is not required also to include a written statement from the domestic violence complainant. (5) This section does not affect section 289I(2). [s 185A insrt Act 83 of 2014 Sch 1[10], opn 1 June 2015]

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CRIMINAL PROCEDURE ACT 1986

COMMENTARY ON SECTION 185A Recorded statements of domestic violence complainants . . . . . . . . .

[2-s 187.1]

[2-s 185A.1]

[2-s 185A.1] Recorded statements of domestic violence complainants Section 185A provides for the service of a recorded statement of a domestic violence complainant for the purpose of a summary hearing. “Domestic violence complainant” is defined in s 3(1) at [2-s 3]. “Domestic violence offence” is defined in s 3(1) at [2-s 3] and s 11 Crimes (Domestic and Personal Violence) Act 2007 at [8-5240]. “Recorded statement” is defined in s 3(1) and s 289D at [2-s 3] and [2-s 289D] respectively.

[2-s 186] Form of copy of brief of evidence 186 (1) The copy of the brief of evidence is to comply with any requirement applicable to it prescribed by the rules. (2) A written statement contained in the brief of evidence is to comply with this Act and any requirement applicable to it prescribed by the rules. COMMENTARY ON SECTION 186 Form of brief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 186.1]

[2-s 186.1] Form of brief See rr 3.12–3.13 of the Local Court Rules 2009 at [2-9420]–[2-9425] concerning the form and content of statements in the brief.

[2-s 187] When brief of evidence need not be served 187 (1) The court may order that all or part of the copy of the brief of evidence need not be served if it is satisfied: (a) that there are compelling reasons for not requiring service, or (b) that it could not reasonably be served on the accused person. (2) The court may make an order under this section on its own initiative or on the application of any party. (3) An order may be made subject to any conditions that the court thinks fit. (4) Without limiting any other power to adjourn proceedings, the court may grant one or more adjournments, if it appears to it to be just and reasonable to do so, if the copy of the brief of evidence is not served in accordance with this Division. For that purpose, the court may extend the time for service of the brief of evidence. (5) A prosecutor is not required to serve a brief of evidence in proceedings for an offence of a kind, or proceedings of a kind, prescribed by the regulations. [subs (5) insrt Act 99 of 2002 s 3 and Sch 1.2[7], opn 7 July 2003]

COMMENTARY ON SECTION 187 Scope of the section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 187(4) adjournment and extension . . . . . . . . . . . . . . . . . . . . . . Offences where brief of evidence not required . . . . . . . . . . . . . . . . . .

[2-s 187.1] [2-s 187.5] [2-s 187.10]

[2-s 187.1] Scope of the section Section 187 combines repealed ss 66E and 66G Justices Act 1902 but provides in s 187(4) that the court “may grant” one or more adjournments, a change from s 66G which said that Justices “are to grant” adjournments as appear just and reasonable. The operation of repealed s 66E was considered by the Court of Appeal in Director of Public

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Criminal Procedure

s 187

[2-s 187.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 187

Prosecutions v West (2000) 48 NSWLR 647; [2000] NSWCA 103; BC200002228; (2000) 7 Crim LN 25 [1136]. Modifying the words of Mason P at [24] to take into account the words of the new sections, the following principles may be stated: ... (d) Section 187 gives the magistrate a discretion to order that all or part of the copy

of the brief of evidence need not be served if the magistrate is satisfied that there are compelling reasons for not requiring service or that the brief could not reasonably be served on the accused person. Such order may be made subject to any conditions that the court thinks fit: s 187(3). (e) Section 187 is designed to operate prospectively, ie before the date on which the brief is otherwise required to be served. However, it is not confined to that situation. For example, it may only emerge that the brief cannot reasonably be served on the accused person after attempts are made to do so. There is nothing in the language or context that would deprive the court of the power to make this type of dispensing order after the time for service had elapsed. [2-s 187.5] Section 187(4) adjournment and extension The operation of repealed s 66G (the predecessor to s 187(4)) was considered by the Court of Appeal in Director of Public Prosecutions v West (2000) 48 NSWLR 647; [2000] NSWCA 103; BC200002228 (2000) 7 Crim LN 25 [1136]. Modifying the words of Mason P at [24] to take into account the words of the new sections, the following principles may be stated: ... (k) Section 187(4) empowers magistrates to grant such adjournments as appear to

be just and reasonable if the copy of the brief of evidence is not served in accordance with the Division, with a related discretion to extend the time for service of the brief of evidence. No case for the exercise of that discretion would arise if non-compliance had already been dispensed with in relation to that evidence, in accordance with s 188(2). But, absent dispensation in relation to non-complying evidence, s 187(4) discloses a legislative intention that the refusal to admit that evidence will not necessarily be fatal to the prosecution. Rather, the magistrate is required to grant such adjournments as appear to be just and reasonable with a view to getting the prosecution on the rails. (m) It is possible to conceive of situations where it would not be just or reasonable to grant to a non-complying prosecutor an adjournment and extension of time pursuant to s 187(4). However, the general thrust of s 187(4) is to ensure that the case is able to proceed, after a suitable adjournment to overcome the prejudice flowing from non-compliance . . . There is a legitimate public interest in the conviction of those guilty of crime so long as the fairness of the trial is not compromised . . . (n) Section 187(4) deals with a special class of adjournments, as its opening words recognise. Not every adjournment will be triggered by problems arising out of late service of the brief of evidence. Accordingly, not every adjournment will trigger an order extending the time for hearing the matter. (o) If an order is made pursuant to s 187(4) extending time for service of the brief of evidence, the effect will be that the defaulting prosecutor goes back to taws. The scheme of the Division will be set in motion again, with reference to the new hearing time that is fixed, with all of the sanctions and safeguards thereby stemming from ss 183, 187 and 188. There would be little reason to grant any further indulgence to a prosecutor should further default occur.

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CRIMINAL PROCEDURE ACT 1986

[2-s 188.1]

(p) The accused person has a significant measure of control over the situation

through the right conferred by s 188(2). If an accused person requires dispensation from s 188(1) (perhaps on terms) this would prevent the prosecutor from seeking to take advantage of his or her own default. It has been held that a magistrate erred in refusing an adjournment sought by the prosecutor to serve a statement where the adjournment was not opposed by the defence and the result of the refusal meant that the charge was dismissed: Director of Public Prosecutions (DPP) (NSW) v Chaouk [2010] NSWSC 1418; BC201009315; 18(2) Crim LN [2852]. [2-s 187.10] Offences where brief of evidence not required With the exception of the offences set out in Sch 3 of the Criminal Procedure Regulation 2010 at [2-6000], proceedings for offences for which a penalty notice may be issued are prescribed for the purposes of s 187(5) as proceedings of a kind in which a prosecutor is not required to serve a brief of evidence: cl 24 Criminal Procedure Regulation 2017 at [2-5200]. See s 336 Criminal Procedure Act 1986 at [2-s 336] for penalty notice offences.

[2-s 188] Evidence not to be admitted 188 (1) The court must refuse to admit evidence sought to be adduced by the prosecutor in respect of an offence if, in relation to that evidence, this Division or any rules made under this Division have not been complied with by the prosecutor. (2) The court may, and on the application of or with the consent of the accused person must, dispense with the requirements of subsection (1) on such terms and conditions as appear just and reasonable. COMMENTARY ON SECTION 188 Law Part Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope of the section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 188.0] Law Part Code

[2-s 188.0] [2-s 188.1]

The Law Part Code for s 188(2) is 51538.

[2-s 188.1] Scope of the section The operation of repealed s 66F Justices Act 1902 (the predecessor of s 188) was considered by the Court of Appeal in Director of Public Prosecutions v West (2000) 48 NSWLR 647; [2000] NSWCA 103; BC200002228; (2000) 7 Crim LN 25 [1136]. Modifying the words of Mason P at [24] to take into account the words of the new sections, the following principles may be stated: ... (g) Section 188(1) imposes a duty upon magistrates (“must refuse”). They must

refuse to admit evidence sought to be adduced by the prosecutor in respect of an offence if, in relation to that evidence, the Division has not been complied with by the prosecutor. The prohibition will apply to the whole of the evidence if the brief of evidence was not served in due time. Equally, it will apply to an item of evidence not contained in a brief otherwise duly served. In either case, unless the requirements of s 188(1) are dispensed with qua that evidence, the magistrate is required to refuse to admit that evidence. (h) However, the magistrate may, and on the application of or with the consent of, the accused person must, dispense with the requirements of s 188(1) on such terms and conditions as appear just and reasonable: s 188(2). The judicial discretion is a broad one, but it is to be exercised having regard to the public interest in enabling a prosecution to be heard and determined so long as unfairness or injustice does not occur . . .

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Criminal Procedure

s 188

[2-s 188.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 188

(i) The barrier created by s 188(1) need not remain permanently lowered. For

example, it would be lifted if and when dispensation ensued in accordance with s 188(2) or an order were made in accordance with s 187(4). (j) Nor does refusal to admit evidence necessarily spell the dismissal of the prosecution. There may be sufficient evidence contained within a complying brief of evidence and/or in a brief of evidence in respect of which dispensation has been granted under s 188(2). Or compliance with the Division may occur following a s 187(4) adjournment and order extending the time for service. The proper construction and operation of s 188 were considered in Director of Public Prosecutions (DPP) v Lazzam [2016] NSWSC 145; BC201601079.

[2-s 189] False statements or representations 189 (1) A person who made a written statement tendered in evidence in proceedings is guilty of an offence if the statement contains any matter that, at the time the statement was made, the person knew to be false, or did not believe to be true, in any material respect. Maximum penalty: (a) If the offence is dealt with summarily, 20 penalty units or imprisonment for 12 months, or both. (b) If the offence is dealt with on indictment, 50 penalty units or imprisonment for 5 years, or both. (1A) A person who made a representation given in evidence in proceedings in the form of a recorded statement is guilty of an offence if the representation contains any matter that, at the time the representation was made, the person knew to be false, or did not believe to be true, in any material respect. Maximum penalty: (a) If the offence is dealt with summarily, 20 penalty units or imprisonment for 12 months, or both. (b) If the offence is dealt with on indictment, 50 penalty units or imprisonment for 5 years, or both. [subs (1A) insrt Act 83 of 2014 Sch 1[11], opn 1 June 2015]

(2) Chapter 5 (which relates to the summary disposal of certain indictable offences unless an election is made to proceed on indictment) applies to and in respect of an offence under this section. COMMENTARY ON SECTION 189 Law Part Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 189.0] Law Part Code

[2-s 189.0]

The Law Part Code for s 189(1) is 51539.

DIVISION 3 — HEARINGS

[2-s 190] Time for hearing 190 (1) On the first return date for a court attendance notice in any summary proceedings, or at such later time as the court determines, the court must set the date, time and place for hearing and determining the matter.

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CRIMINAL PROCEDURE ACT 1986

[2-s 190.5]

(2) The court must notify the accused person of the date, time and place, if the accused person is not present. (3) However, if the accused person is not present at the first return date or at any subsequent mention of the proceedings and has not lodged a written plea of not guilty in accordance with section 182, the court may proceed to hear and determine the matter on the first or a subsequent day on which the matter is listed for mention at its discretion. [subs (3) am Act 59 of 2014 Sch 1 item 1.6[1], [2], opn 23 Oct 2014]

(4) The court may not proceed to hear and determine the matter unless it is satisfied that the accused person had reasonable notice of the first return date or the mention date. [subs (4) insrt Act 59 of 2014 Sch 1 item 1.6[3], opn 23 Oct 2014]

Note. The powers of a court to adjourn proceedings generally are set out in section 40. COMMENTARY ON SECTION 190 Adjournments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Accused person not present on first return date . . . . . . . . . . . . . . . . . . Practice Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 190.1] [2-s 190.5] [2-s 190.10]

[2-s 190.1] Adjournments Section 190(1) requires the court, on the first return date, to set the date, time and place for hearing and determining the matter. Given this, the types of considerations which arose in Macrae v Redmond (1987) 8 Petty SR 3534, where the prosecutor was refused an adjournment of a summons matter on the first return date, ought not arise. Where a magistrate determines under s 193(2) not to accept the accused person’s guilty plea on the first return date, a plea of not guilty ought be entered and the court must set the date, time and place for hearing and determination of the matter: Director of Public Prosecutions (NSW) v Yeo (2008) 51 MVR 157; [2008] NSWSC 953; BC200808086 at [46], [55]; (2008) 15 Crim LN 115 [2445]. See s 40 at [2-s 40] for the general power to adjourn criminal proceedings. While the power to further adjourn a matter is discretionary, it must not be exercised so as to work a manifest injustice on one party, eg to deprive a party of a hearing, unless there is no other way to do substantial justice between the parties: Maxwell v Keun [1928] 1 KB 645; Walker v Walker [1967] 1 All ER 412; [1967] 1 WLR 327; Watson v Watson (1970) 70 SR 203. An appellate court can control the exercise of the power in such cases: Walker v Walker, above; Re M (an infant) [1968] 1 WLR 1897; Bennett v Marr (1978) 4 Petty SR 1824. The relevant duty of the court is to ensure that a party (whether prosecutor or accused person) is given a reasonable opportunity to present his or her case: Director of Public Prosecutions (NSW) v Yeo (2008) 51 MVR 157; [2008] NSWSC 953; BC200808086 at [52]–[57]; (2008) 15 Crim LN 115 [2445]. An accused person should be given a reasonable chance to present his case which necessarily includes a reasonable opportunity to prepare that case before being called upon to present it: R v Alexandroaia (1995) 81 A Crim R 286; BC9505041. In the exercise of discretion to grant a contested application for an adjournment, it is not proper for the court to take into account as a controlling factor the prospect of a substantive legislative amendment which would accrue to the benefit of one party: Meggitt Overseas Ltd v Grdovic (1998) 43 NSWLR 527; BC9802307. [2-s 190.5] Accused person not present on first return date Where the accused person is not present at the first return date and has not lodged a written plea of not guilty under s 182, the court may proceed to hear the matter on that day at its discretion: s 190(3). See [2-s 199] and [2-s 200] for the material which the court may consider when a matter is determined in the absence of the accused person. The court must not proceed to hear and determine the matter unless it is satisfied that the accused person had reasonable notice of the first return date: s 196(3).

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Criminal Procedure

s 190

[2-s 190.5]

s 190

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

In the case of a matter heard in the absence of the accused person, the court may adjourn the proceedings to enable the accused person to appear or be brought before the court for sentencing: s 202(3) at [2-s 202]. [2-s 190.10] Practice Note See Local Court Practice Note Crim 1 at [28-15,205] for procedures for case management of criminal proceedings in the Local Court.

[2-s 191] Proceedings to be open to public 191 (1) Summary proceedings before a court are to be heard in open court. (2) This section is subject to the provisions of any other Act or law. COMMENTARY ON SECTION 191 Open court, suppression orders and non-publication orders . . . . . . . Closed court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Media access to court documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 191.1] [2-s 191.5] [2-s 191.10]

[2-s 191.1] Open court, suppression orders and non-publication orders See Court Suppression and Non-publication Orders Act 2010 at [29-9001] and following, and commentary at [2-s 56.1]. [2-s 191.5] Closed court

See [2-s 56.5].

[2-s 191.10] Media access to court documents See [2-s 314] for procedures concerning media access to certain court documents relating to criminal proceedings.

[2-s 192] Procedures where both parties present 192 (1) If both the accused person and the prosecutor are present at the day, time and place set for the hearing and determination of proceedings for an offence (including a day to which the hearing has been adjourned) the court must proceed to hear and determine the matter. (2) The court must state the substance of the offence to the accused person and ask the accused person if the accused person pleads guilty or not guilty. (3) Instead of hearing and determining the matter, the court may, if it thinks that the matter should not proceed on the specified day, adjourn the hearing to another day for mention or hearing. COMMENTARY ON SECTION 192 Procedure where both parties present . . . . . . . . . . . . . . . . . . . . . . . . . . . Abuse of process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Practice Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 192.1] [2-s 192.5] [2-s 192.10]

[2-s 192.1] Procedure where both parties present Where both parties are present at the day, time and place set for the hearing and determination of proceedings, the following procedures apply: (a) the court must proceed to hear and determine the matter (s 192(1)) unless the court thinks that the matter should not proceed on the specified day and ought be adjourned for mention or hearing (s 192(3)) — as to adjournments, see [2-s 40] and [2-s 190.1]; (b) a court may hear and determine together proceedings related to two or more offences or two or more accused persons in certain circumstances: s 29 at [2-s 29];

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CRIMINAL PROCEDURE ACT 1986

[2-s 192.1]

(c) if the hearing proceeds, the court must state the substance of the offence to the accused person and ask the person if he or she pleads guilty or not guilty: s 192(2); (d) if the accused person pleads guilty, and the court accepts the plea, and the person does not show sufficient cause why he or she should not be convicted or not have an order made against him or her, the court must convict the accused person or make the order accordingly: s 193(1); (e) if the court does not accept the accused person’s guilty plea, the court must proceed to hear and determine the matter as if the person had pleaded not guilty: ss 193(2), 194(1); (f) the court must hear the prosecutor and the prosecution witnesses and other evidence and must hear the accused person and the defence witness and other evidence: s 194(2); (g) the prosecution case, defence case and prosecution case in reply (if any) then proceeds: s 195; (h) the court must determine summary proceedings after hearing the accused person, prosecutor, witnesses and evidence in accordance with the Act: s 202(1); (i) the court may determine the matter by convicting the accused person or by making an order as to the accused person, or by dismissing the matter: s 202(2); (j) a court may adjourn summary proceedings before or at any stage of proceedings to enable the matter to be the subject of a mediation session under the Community Justices Centres Act 1983: s 203; (k) before a finding of guilt of an accused person in respect of certain summary offences and indictable offences that may be dealt with summarily, the court may adjourn proceedings to permit assessment for participation in an intervention program: s 350 at [2-s 350]; (l) a court must make a record of any conviction or order made against any accused person in summary proceedings: s 204(1); (m) a court is to make an order of dismissal and provide a copy of a certificate of dismissal in certain circumstances: s 205; (n) an accused person may, at any time after conviction or an order has been made against the person and before the summary proceedings are finally disposed of, apply to the court to change the person’s plea from guilty to not guilty and to have the conviction or order set aside: s 207(1); (o) where application under s 207(1) is made, the court may set aside the conviction or order and proceed to determine the matter on the basis of a plea of not guilty: s 207(2); (p) if the matter is withdrawn by the prosecutor, the matter is taken to be dismissed and the accused person is taken to be discharged in relation to the offences concerned: s 208; (q) a court may, in any summary proceedings, on the application of a party, order the other party to pay costs, in certain circumstances, if the matter is adjourned: s 216; (r) at the end of summary proceedings, a court may order costs against the prosecutor, in certain circumstances, if the matter is dismissed or withdrawn: ss 213–14; (s) at the end of summary proceedings, a court may order costs against the accused person if he or she is convicted or an order is made against the person: s 215. A valid plea can be entered by an accused person’s legal representative in the absence of the accused and it is unnecessary in such a case that the charge be read out in the court under s 192(2) in light of the definition of “accused person” in s 3 of the Act: Collier v DPP (NSW) [2011] NSWCA 202; BC20110544; 18(8) Crim LN [2945]. It was held that the stating of the charge was not a necessary pre-condition to a valid plea although in the case of an unrepresented accused the section should be followed in order to ensure that the plea of guilty is an unequivocal acceptance of guilt of the offence charged. Where the accused person does not attend but is legally represented on the hearing day, the effect of ss 3 and 36 of the Criminal Procedure Act 1986 is that the accused person is before the court so that s 196 of the Act does not apply, and the court should proceed to hear and determine the matter under s 192: McKellar v DPP (2014) 240 A Crim R 285; [2014] NSWSC 459; BC201402842 at [34].

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Criminal Procedure

s 192

[2-s 192.5]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 192

[2-s 192.5] Abuse of process See [2-s 19.5] and the principles set out below for circumstances in which a trial court, including the Local Court, might stay criminal proceedings as an abuse of process. A magistrate has implied power to stay proceedings for a summary offence on the basis that the proceedings are an abuse of process: Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129; 102 A Crim R 180; BC9802628; 5 Crim LN 39 [854]. The principles to be applied in an application to stay a prosecution were considered in Jago v District Court of NSW (1989) 168 CLR 23; 87 ALR 577; 41 A Crim R 307; BC8902707. The power of stay only arises in the event of a fundamental defect which goes to the root of the trial of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences: Jago, above, at CLR 34; ALR 584. It is of fundamental importance to the processes of justice that courts should exercise their jurisdiction: Williams v Spautz (1992) 174 CLR 509 at 519; 107 ALR 635 at 640; BC9202694; Jago, above, at CLR 47; ALR 593. The mere absence of evidence that has become unavailable otherwise than by the fault of the defendant is not itself generally sufficient to justify a stay of proceedings: x (NSWCCA, Gleeson CJ, 11 June 1992, unreported); R v Goldburg (NSWCCA, 23 February 1993, unreported, BC9302038); R v Tolmie (NSWCCA, Hunt CJ, McInerney and Bruce JJ, 60503/94, 7 December 1994, unreported). Where a stay is sought because of loss or destruction of evidence, the ultimate issue is whether the proceedings can no longer serve the purpose for which the statute, the Justices Act (now the Criminal Procedure Act), was provided, that is, whether the magistrate will be able to hear and determine the proceedings by a fair trial. If not, it will be one of those exceptional cases in which a stay should be granted. The absence of documentation needs to be considered in the context of the available powers under the Evidence Act 1995: Stanley v Farlow (2001) 161 FLR 250; [2001] NSWSC 376; BC200102209 at [47]–[53]. The Supreme Court has inherent power to stay the prosecution of a summary offence where the proceedings are an abuse of process by reason of delay or otherwise: Whitten v Hall (1993) 29 NSWLR 680. [2-s 192.10] Practice Note See Local Court Practice Note Crim 1 at [28-15,205] for procedures for case management of criminal proceedings in the Local Court.

[2-s 193] Procedure if offence admitted 193 (1) If the accused person pleads guilty, and does not show sufficient cause why he or she should not be convicted or not have an order made against him or her, the court must convict the accused person or make the order accordingly. (2) This section does not apply if the court does not accept the accused person’s guilty plea. COMMENTARY ON SECTION 193 Plea of guilty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Pleas of autrefois acquit and autrefois convict . . . . . . . . . . . . . . . . . . . Withdrawal of plea of guilty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 193.1] [2-s 193.5] [2-s 193.10]

[2-s 193.1] Plea of guilty The effect of the section was considered in Collier v DPP (NSW) [2011] NSWCA 202; BC201105441; 18(8) Crim LN [2945] where it was held that a plea of guilty was valid if made by the accused’s legal representative in the absence of the accused and without the need for the court to state the charge before the plea is taken. A plea of guilty constitutes an admission of all the essential elements of the offence. If the magistrate forms the view that the evidence does not support the charge or that for any other reason the charge is not supportable, he or she should advise the accused person to withdraw his or her plea and plead not guilty: s 193(2). But he or she cannot compel an accused person to do so and, if the person refuses, the plea must

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CRIMINAL PROCEDURE ACT 1986

[2-s 193.5]

be considered final, subject only to the discretion to grant leave to change the plea to one of not guilty under s 207 at any time before the matter is disposed of by sentence or otherwise: see Maxwell v R (1996) 184 CLR 501 at 510–11, 522; 135 ALR 1 at 7, 16; [1995] HCA 62; BC9600609; (1996) 3 Crim LN 9 [533]; El Hassan v DPP [2000] NSWCA 330; BC200007117 at [15]–[16]. Per Dawson and McHugh JJ in Maxwell v R, above, at CLR 511; ALR 7: The plea of guilty must, however, be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage. The plea may be accompanied by a qualification indicating that the accused is unaware of its significance. If it appears to the trial judge, for whatever reason, that a plea of guilty is not genuine, he or she must (and it is not a matter of discretion) obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered. But otherwise an accused may insist upon pleading guilty. Where the accused person’s version of the facts is inconsistent with the plea, the court should give the defence the opportunity to withdraw the plea and if that does not occur and the accused person insists upon pleading guilty, the court should ignore the accused person’s version: R v Martin (1904) 4 SR (NSW) 720; 21 WN (NSW) 233; Marlow v R [1990] 1 Tas SR 1 followed in Blazevski v Judges of the District Court (1992) 29 ALD 197 at 208–9, 212–13; BC9201492. The common law principles concerning the rejection of a guilty plea apply in the Local Court if a plea is rejected under s 193(2): Director of Public Prosecutions (NSW) v Yeo (2008) 51 MVR 157; [2008] NSWSC 953; BC200808086 at [39]–[45]; (2008) 15 Crim LN 115 [2445]. [2-s 193.5] Pleas of autrefois acquit and autrefois convict Technically, it may be that the plea in bar of autrefois acquit may only be entered in proceedings on indictment. However, a Local Court may apply the common law rule against double jeopardy permitting, in effect, a plea in bar: State Pollution Control Commission v Tallow Products Pty Ltd (1992) 29 NSWLR 517 at 530–2; 65 A Crim R 509. The pleas of autrefois and issue estoppel have been the subject of much judicial discussion. They have been defined in many differing forms and in such fashion that the dividing line between some of the decisions is hard to follow. The following propositions seem clear: (a) Generally the doctrine of issue estoppel is not applicable to the criminal law,

however res judicata will apply so as to preclude the Crown from seeking to raise the conviction of the accused for an offence in proceedings for another offence where the accused has been acquitted of the earlier offence: R v Storey (1978) 140 CLR 364; 22 ALR 47; BC7800075; Rogers v R (1994) 181 CLR 251; 123 ALR 417; BC9404645; (1994) 1 Crim LN 82 [283]. The accused, therefore, could not be convicted of an offence of rape where he had earlier been acquitted of murder based upon felony-murder alleging that the accused caused the death of the rape victim: Mraz v R (No 2) (1956) 96 CLR 62; [1956] 63 ALR 999; BC5600560 where the court went behind the record of the acquittal to look at the issues at the earlier trial. Nor can the Crown lead evidence which would call in question an earlier acquittal: Garrett v R (1977) 139 CLR 437; 18 ALR 237; BC7700109. It is an abuse of process where the Crown seeks to challenge an earlier decision as to the voluntariness of confessional material which resulted in an acquittal of the accused: Rogers v R, above. However, where there was no verdict consequent upon the ruling as to voluntariness, the Crown was not bound by the earlier ruling: R v Blair (1985) 1 NSWLR 584. (b) To a charge framed in exactly the same terms so as to allege the same offence and the same occasion and subject-matter as in a previous charge followed by verdict a plea in bar could be raised.

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Criminal Procedure

s 193

[2-s 193.5]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 193

(c) Any other verdict open to a jury on the previous occasion could be pleaded in

bar to a subsequent charge, eg on a charge of murder an acquittal or conviction bars a subsequent trial for manslaughter. (d) Where the offence subsequently charged was an element in the charge for which a conviction was previously recorded. For example, a conviction for robbery must necessarily bar the larceny involved. The converse is not necessarily true. This might in fact be an issue estoppel: cf R v Kendrick (1931) 144 LT 748; 23 Cr App Rep 1. (e) Where the previous offence and subsequent offence have the same essential ingredients so that the facts which constitute the one must be sufficient to justify a conviction for the other: Kupferberg v R (1918) 13 Cr App Rep 166. The cases (including Australian) were collected by Lord Morris of Borth-y-Gest in Connelly v DPP (UK) [1964] AC 1254; [1964] 2 All ER 401, where both autrefois and issue estoppel were dealt with. From his examination certain negative limits appear to emerge, namely: (i) it is not sufficient that the same facts were given in evidence. To be effective an acquittal on the former charge must necessarily involve an acquittal on the latter: R v Barron [1914] 2 KB 570, where it did not. Contrast, however, Mraz v R (No 2) (1956) 96 CLR 62; [1956] 63 ALR 999; BC5600560, which was a case of issue estoppel; (ii) it is not sufficient that the two charges arose out of the same incident. The plea in bar of autrefois acquit, available by analogy in the Local Court with respect to a summary prosecution, applies if the crime in respect of which a person is being charged is in effect the same as, or substantially the same as, either the principal or a different crime in respect of which the person has been acquitted or could have been acquitted: Connelly v DPP (UK), above at 1305–6, applied in R v McGarritty (NSWCCA, Grove J, Studdert J, Blanch J, 10 June 1994, unreported, BC9405228) at 13–15. For the purpose of determining whether the matter falls within the established scope of the rule against double jeopardy, the court should look to the substance of the two relevant offences in terms of the particulars of the charges in the light of the facts of the case. In determining whether the second offence is substantially the same offence in terms of double jeopardy, it is appropriate to examine the nature of the two offences in the light of the particulars of the charges: State Pollution Control Commission v Tallow Products Pty Ltd (1992) 29 NSWLR 517 at 535; 65 A Crim R 509 applying Dodd v R (1991) 56 A Crim R 451; BC9101494 and Environment Protection Authority v Australian Iron and Steel Pty Ltd (1992) 28 NSWLR 502 at 509–10; 64 A Crim R 124. Where an accused was acquitted by a jury on a charge of culpable driving, he could raise the defence of autrefois acquit to a charge of negligent driving in circumstances where the only issue before the jury was whether the accused was inattentive and no issue was raised as to the quality of that driving: Johnson v DPP (1996) 2 NSWCR 83; (NSWSC, Hidden J, 26 June 1996, unreported); 3 Crim LN 44 [587]. (f) Where supervening further facts give rise to a further offence the bar cannot be

raised: R v Morris (1867) 10 Cox CC 480, which was a case of a charge of murder where death supervened on convictions for assaults. To the same effect is R v Friel (1890) 17 Cox CC 325 and would appear to follow in any case from Director of Public Prosecutions v Humphrys [1977] AC 1; [1976] 2 All ER 497. (g) The accused person is not limited to comparing the records of the previous conviction or the two indictments but he may prove by evidence all other matters necessary to enable him to show the identity of the parties and of the prior and subsequent offence: Connelly v DPP (UK), above (HL); Mraz v R

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(h) (i)

(j)

(k)

CRIMINAL PROCEDURE ACT 1986

[2-s 194.1]

(No 2), above, where Australian cases are collected; Brown v Robinson (1959) 60 SR (NSW) 297; 76 WN (NSW) 758. The onus of establishing the plea is on the accused person: R v Marsham; Ex parte Pethick Lawrence [1912] 2 KB 362; [1911–13] All ER Rep 639. A person charged as an aider and abettor might plead autrefois if, although an aider and abettor, he were charged under s 351B Crimes Act at [8-s 351B], as a principal and convicted or acquitted, because he could have been convicted as a principal on the first occasion even though the evidence had shown him to be the aider and abettor: Ex parte Homer; Re McElligott (1933) 50 WN (NSW) 158. The accused person must have been in peril on the first occasion. Hence a mistrial or want of jurisdiction will not be a bar: R v Marsham; Ex parte Pethick Lawrence [1912] 2 KB 362; [1911–13] All ER Rep 639. Autrefois convict or acquit outside New South Wales is not pleadable: R v Hildebrandt (1963) 81 WN (NSW) 143. However, in United States Government v Atkinson [1969] 2 All ER 1151, both courts appear to assume that in extradition proceedings a magistrate was entitled to accept a plea of autrefois based on an extra territorial conviction if it had in force been available.

[2-s 193.10] Withdrawal of plea of guilty

See [2-s 207].

[2-s 194] Procedure if offence not admitted 194 (1) If the accused person pleads not guilty or fails or refuses to make a plea or the court does not accept the accused person’s guilty plea, the court must proceed to hear and determine the matter. [subs (1) am Act 40 of 2003 s 3 and Sch 1.10[5], opn 7 July 2003]

(2) The court must hear the prosecutor, any witnesses and other evidence of the prosecutor and must hear the accused person and any witnesses and other evidence of the accused person. COMMENTARY ON SECTION 194 Summary trial procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Procedural fairness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Practice Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 194.1] [2-s 194.5] [2-s 194.10]

[2-s 194.1] Summary trial procedure See [2-s 29] concerning the hearing together of proceedings related to two or more offences alleged to have been committed by the same accused or by two or more accused persons. See [2-s 36] concerning representation and appearance. See [2-s 37] concerning the persons who may conduct the prosecution and defence cases. The procedures and practice for examination and cross-examination of witnesses and the right to address the court on the case in reply or otherwise are, as far as practicable, to be conducted in accordance with Supreme Court procedure for the trial of an indictable offence: s 38 at [2-s 38]. The evidence of each witness must be recorded: s 39(1) at [2-s 39]. See [2-s 40] and [2-s 190.1] as to the manner of dealing with the accused person during adjournments. As to trial procedure generally, see [7-475] and following.

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Criminal Procedure

s 194

[2-s 194.5]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 194

[2-s 194.5] Procedural fairness There was a lack of procedural fairness where a magistrate refused to allow the prosecution to call all of its witnesses because the magistrate did not believe they could advance the prosecution case: Director of Public Prosecutions (DPP) v Wunderwald [2004] NSWSC 182; BC200401191 and Director of Public Prosecutions (NSW) v Elskaf [2012] NSWSC 21; BC201200277; 19(3) Crim LN [3030]; Director of Public Prosecutions (DPP) (NSW) v Wililo [2012] NSWSC 713; BC201204764; 19(7) Crim LN [3088]. [2-s 194.10] Practice Note See Local Court Practice Note Crim 1 at [28-15,205] for procedures for case management of criminal proceedings in the Local Court.

[2-s 195] How evidence is taken 195 (1) A prosecutor may give evidence and may examine and cross-examine the witnesses giving evidence for the prosecution or the accused person, respectively. (2) An accused person may make full answer and defence. An accused person may give evidence and may examine and cross-examine the witnesses giving evidence for the accused person or the prosecution, respectively. (3) If the accused person gives any evidence or examines any witness as to any matter other than as to the witness’s general character, the prosecutor may call and examine witnesses in reply. COMMENTARY ON SECTION 195 Taking of evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . No case to answer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Addresses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 195.1] [2-s 195.5] [2-s 195.10]

[2-s 195.1] Taking of evidence The procedures and practice for the examination and cross-examination of witnesses and the right to address the court on the case in reply or otherwise are, as far as practicable, to be conducted in accordance with Supreme Court procedure for the trial of an indictable offence: s 38 at [2-s 38]. [2-s 195.5] No case to answer criminal proceedings.

See [2-s 202.1] as to a submission of no case to answer in

[2-s 195.10] Addresses See [2-s 159] as to an opening address by the accused person. The accused person has the right to address last in a summary hearing, irrespective of whether the defence has called evidence: [2-s 160].

[2-s 196] Procedure if accused person not present 196 (1) If the accused person is not present at the day, time and place set for the hearing and determination of the matter (including a day to which the hearing has been adjourned), the court may proceed to hear and determine the matter in the absence of the accused person in accordance with this Division. (2) If: (a) a penalty notice enforcement order is annulled under Division 5 of Part 3 of the Fines Act 1996 and the order (together with any annexure) is taken to be a court attendance notice in relation to the offence, and (b) the accused person has been given notice of the hearing of the matter of the court attendance notice, and

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[2-s 199]

CRIMINAL PROCEDURE ACT 1986

(c) the accused person does not appear on the day and at the time and place specified by the court attendance notice, the court may proceed to hear and determine the matter in the absence of the accused person in accordance with this Division. (3) The court may not proceed to hear and determine the matter unless it is satisfied that the accused person had reasonable notice of the first return date or the date, time and place of the hearing. (4) If an offence is an indictable offence that may be dealt with summarily only if the accused person consents, the absence of the accused person is taken to be consent to the offence being dealt with summarily and the offence may be dealt with in accordance with this Division. COMMENTARY ON SECTION 196 Accused person not present . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 196.1]

[2-s 196.1] Accused person not present Where the accused person does not attend but is legally represented on the hearing day, the effect of ss 3 and 36 of the Criminal Procedure Act 1986 is that the accused person is before the court so that s 196 of the Act does not apply, and the court should proceed to hear and determine the matter under s 192: McKellar v DPP (2014) 240 A Crim R 285; [2014] NSWSC 459; BC201402842 at [34].

[2-s 197] Adjournment when accused person not present 197 (1) Instead of hearing and determining a matter in the absence of the accused person, the court may, if it thinks that the matter should not proceed on the specified day or without the accused person, adjourn the hearing to another day for mention or for hearing. (2) If a warrant is issued for the arrest of the accused person, the Magistrate or authorised officer before whom the accused person is brought after arrest may specify the date, time and place to which the proceedings are adjourned. Note. The court may at any time issue a warrant for the arrest of an absent accused person (see Division 2 of Part 4 which sets out procedures for warrants).

[2-s 198] Absent accused person taken to have pleaded not guilty 198 An accused person in proceedings who is absent from the proceedings and who has not lodged a written plea of guilty in accordance with section 182 is taken to have pleaded not guilty.

[2-s 199] Material to be considered when matter determined in absence of accused person 199 (1) The court may determine proceedings heard in the absence of the accused person on the basis of the court attendance notice without hearing the prosecutor’s witnesses or any other additional evidence of the prosecutor, if it is of the opinion that the matters set out in the court attendance notice are sufficient to establish the offence. (2) Before determining the matter, the court must consider any written material or recorded statement given to the court by the prosecutor, or lodged by the accused person under section 182. [subs (2) am Act 83 of 2014 Sch 1[12], opn 1 June 2015]

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Criminal Procedure

s 199

[2-s 200]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 200

[2-s 200] When court may require prosecution to provide additional evidence 200 (1) The court may, in proceedings heard in the absence of the accused person, require the prosecution to provide additional evidence if it is of the opinion that the matters set out in the court attendance notice are not sufficient to establish the offence. (2) The additional evidence is not admissible unless: (a) it is in the form of written statements that comply with Division 3 of Part 2 of Chapter 3, including in the form of any recorded statement that may be given instead of a written statement under that Division, and (b) in the case of a written statement, a copy of any such statement has been given to the accused person a reasonable time before consideration of the additional evidence by the court, and (c) in the case of a recorded statement, the requirements of Division 3 of Part 4B of Chapter 6 in relation to service of, or access to, a recorded statement are complied with in relation to the recorded statement. [subs (2) am Act 83 of 2014 Sch 1[13]–[15], opn 1 June 2015]

(3) However, the court may require evidence to be given orally if it is not practicable to comply with subsection (2) or if the court thinks it necessary in the particular case. (4) The court must reject a written statement or recorded statement, or any part of a written statement or recorded statement, tendered in summary proceedings if the statement or part is inadmissible because of this section. [subs (4) am Act 83 of 2014 Sch 1[16], opn 1 June 2015]

[2-s 201] Procedure if prosecutor or both parties not present 201 (1) If the prosecutor is not present, or both the prosecutor and the accused person are not present, at the day, time and place set for the hearing and determination of the matter (including a day to which the hearing has been adjourned) the court must dismiss the information. (2) Despite subsection (1), the court may, if it thinks fit, instead of dismissing the information, adjourn the hearing to a specified day, time and place for mention or hearing.

[2-s 202] Determination by court 202 (1) The court must determine summary proceedings after hearing the accused person, prosecutor, witnesses and evidence in accordance with this Act. (2) The court may determine the matter by convicting the accused person or making an order as to the accused person, or by dismissing the matter. (3) In the case of a matter heard in the absence of the accused person, the court may adjourn the proceedings to enable the accused person to appear or be brought before the court for sentencing. Note. Section 25 of the Crimes (Sentencing Procedure) Act 1999 provides for the issue of warrants of arrest for absent defendants so that they may be brought before the Court for sentencing. Section 62 of that Act also provides for the issue of warrants of commitment after sentencing.

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CRIMINAL PROCEDURE ACT 1986

COMMENTARY ON SECTION 202 No case to answer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Power to set aside conviction or order before sentence . . . . . . . . . . . Determination without jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Reasons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Findings of no jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Effect of decision of Supreme or District Court . . . . . . . . . . . . . . . . . Sentencing options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 202.5]

[2-s 202.1] [2-s 202.5] [2-s 202.10] [2-s 202.15] [2-s 202.20] [2-s 202.25] [2-s 202.30]

[2-s 202.1] No case to answer In Amalgamated Television Services Pty Ltd v Marsden (2001) 122 A Crim R 166; [2001] NSWCA 32; BC200101914 at [31]–[50], the Court of Appeal applied the following principles from Cox v Salt (1994) 12 WAR 12 at 14–15 as referable to a no case to answer submission in criminal proceedings (including those before a magistrate): [T]he determination of a no case to answer submission at the close of a prosecution’s case is a question of law, whereas the determination of the ultimate question of guilt beyond reasonable doubt is a question of fact. Although in the exercise of her functions the magistrate is required to determine both questions of law and fact, this cannot destroy the essential separability of these questions. Subject to certain exceptions, when adjudicating upon the evidence whether a defendant could lawfully be convicted, the magistrate is required to proceed on the assumption that all the evidence of primary facts, considered at its strongest from the point of view of the case for the prosecution, is accurate: See R v Bilick (1984) 36 SASR 321 at 337; 11 A Crim R 452 at 467; Myers v Claudianos (1990) 100 FLR 362 at 369. The exceptions are evidence that is inherently incredible (Haw Tua Tau v Public Prosecutor [1982] AC 136 at 151; [1981] 3 WLR 395 at 403) or manifestly self-contradictory or the product of a disorderly mind: see R v Bilick at SASR 337. Where the prosecution case is based on circumstantial evidence, the magistrate is required to take into account all inferences most favourable to the prosecution which could reasonably be drawn from the primary facts: (See Haw Tua Tau v Public Prosecutor (at AC 150 [WLR 404]); Myers v Claudianos (at 369). Where, in a prosecution based upon circumstantial evidence, inferences consistent both with guilt and innocence may be drawn, there is a case to answer: Torrance v Cornish (1985) 79 FLR 87; BC8500668; R v Serratore (1999) 48 NSWLR 101 at 130; [1999] NSWCCA 377; BC9907829; (1999) 6 Crim LN 96 [1088]. The principles applicable to the magistrate’s determination at the conclusion of the prosecution case are summarised in Director of Public Prosecutions (NSW) v Elskaf [2012] NSWSC 21; BC201200277; 19(3) Crim LN [3029] where it was emphasised that the question of whether or not there was a prima facie case was a question of law when the evidence of the prosecution was taken at its highest and did not involve an assessment of the reliability of the evidence. The distinction between the finding of a prima facie case and the determination of whether the prosecution has proved the charge has been stressed and the two issues should be dealt with separately: Director of Public Prosecutions (DPP) v Lee [2006] NSWSC 270; BC200602273. [2-s 202.5] Power to set aside conviction or order before sentence See [2-s 207] for the power of the court to entertain an application by the accused person to change his or her plea to not guilty and to set aside a conviction or order, at any time before the summary proceedings are finally disposed of, and to thereafter proceed to determine the matter on the basis of a plea of not guilty.

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Criminal Procedure

s 202

[2-s 202.10]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 202

[2-s 202.10] Determination without jurisdiction Where a magistrate deals with a matter summarily which can only be dealt with on indictment, the conviction or dismissal is a nullity and the magistrate can rehear the matter by way of committal proceedings: R v West [1962] 2 All ER 624; [1962] 3 WLR 218. There is no plea of autrefois acquit or convict, or res judicata available where there was no lawful determination of the charge: R v Marsham; Ex parte Pethick Lawrence [1912] 2 KB 362; [1911–13] All ER Rep 639. In that case a justice convicted the accused person after a witness gave evidence without being sworn. The court held that the justice had power to rehear the charge as the first conviction was a nullity. Where a justice committed the accused person for trial on a summary charge, the justice was entitled to rehear the information and deal with the person summarily: Bannister v Clarke [1920] 3 KB 598. The original committal was held to be null and void and the proceedings were in the same position as if the justice had never committed the defendant: Emery v Magistrate of the Local Court at Tamworth (NSWSC, Sully J, 19 September 1990, unreported, BC9003273). However unless the conviction or acquittal can be treated as a nullity for want of jurisdiction, a conviction or dismissal announced in open court will result in the magistrate being functus officio: R v Essex Justices, Ex parte Final [1963] 2 QB 816; [1962] 3 All ER 924, applied in Ex parte Kelly; Re Teece [1966] 2 NSWR 674; (1966) 85 WN (Pt 1) (NSW) 151. This is so even though the court may have made a mistake in the exercise of its jurisdiction. Where a magistrate determined incorrectly that an information for a summary offence was statute-barred and dismissed the information, he was functus officio and could not rehear the information: Thomas v Bell (1989) 42 A Crim R 318; BC8902072, see also Manning v Thompson [1977] 2 NSWLR 249. An order mistakenly dismissing an information was held to be a nullity and relief in the nature of mandamus was granted in Director-General of Fair Trading v O’Shane (NSWSC, Graham AJ, 22 August 1997, unreported, BC9703791). Where the error concerns the sentence imposed, the magistrate may reopen the hearing and correct the error: s 43 Crimes (Sentencing Procedure) Act 1999 at [5-s 43]. [2-s 202.15] Reasons It is the duty of the magistrate to give reasons for decision: Ex parte Reid; Re Lynch (1943) 43 SR (NSW) 207; 60 WN (NSW) 148; Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1; 63 WN (NSW) 34. It is essential that a magistrate should state the facts found and the legal principles applied to those facts. It will not be sufficient for a magistrate to state that he or she has considered the relevant cases. The magistrate should state in the judgment concisely what he or she understands those authorities to decide: Donges v Ratcliffe [1975] 1 NSWLR 501 at 507. See also Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 277–81. A magistrate may reserve his or her decision but should not deliver an oral judgment and later submit a written one: Ludwigs Canberra Bond Cellar Pty Ltd v Sheen (1982) 46 ACTR 13; 65 FLR 347. One of the conventional functions of the requirement to give reasons relates to the appellate process. It is not satisfactory that an appeal court is left to undertake an analysis of exchanges between the bench and counsel during submissions to ascertain a magistrate’s reasons for determination. The provision of concise reasons as required by law will avoid this circumstance occurring: Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd (2006) 67 NSWLR 402; [2006] NSWSC 343; BC200602646 at [19]. The duty of a magistrate to give reasons for his or her decision was considered in Director of Public Prosecutions (DPP) (NSW) v Elias [2013] NSWSC 28; BC201300526; 20(3) Crim LN [3186], where error was demonstrated in the failure to give reasons as required by law for dismissal of a charge. [2-s 202.20] Findings of no jurisdiction A magistrate who finds there is no jurisdiction to determine criminal proceedings should not dismiss the matter but should mark the papers “no jurisdiction”: Director of Public Prosecutions v Cakici [2006] NSWSC 454; BC200603471 at [34]–[39].

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CRIMINAL PROCEDURE ACT 1986

[2-s 205]

[2-s 202.25] Effect of decision of Supreme or District Court A magistrate is bound to follow a decision of the Supreme Court or a court above that in the judicial hierarchy: Fleming v White [1981] 2 NSWLR 719 at 725–6; (1981) 7 A Crim R 448. A magistrate is not bound to follow a decision of the District Court although such a decision would be, except on rare occasions, “compellingly persuasive”: Valentine v Eid (1992) 27 NSWLR 615; 15 MVR 541. [2-s 202.30] Sentencing options Sentencing options available to the Local Court include the following orders under the Crimes (Sentencing Procedure) Act 1999: (a) without proceeding to conviction, dismissal of a charge or conditional discharge of the offender on a good behaviour bond: s 10 at [5-s 10]; (b) deferral of sentencing by way of adjournment for rehabilitation and other purposes: s 11 at [5-s 11]; (c) a good behaviour bond following conviction: s 94 and following at [5-s 94]; (d) a suspended sentence of imprisonment: s 12 at [5-s 12]; (e) a fine: ss 14–17 at [5-s 14] and following; (f) community service: s 84 and following at [5-s 84]; (g) home detention: s 74 and following at [5-s 74]; (h) intensive correction order: s 7 at [5-s 7]; (i) full time imprisonment: s 44 and following at [5-s 44]. Failure to hear counsel on sentence is a denial of procedural fairness: Ex parte Kelly; Re Teece [1966] 2 NSWR 674; cf Ex parte Corbishley; Re Locke [1967] 2 NSWR 547; (1967) 67 SR (NSW) 396; 86 WN (Pt 2) (NSW) 215. See [2-s 42] as to the calling of witnesses in mitigation of penalty after conviction and before sentence is passed. As to the practices and procedures for sentencing offenders, see Sentencing Procedure at [5-001] and following.

[2-s 203] Additional powers to adjourn summary proceedings 203 A court may adjourn summary proceedings before or at any stage of proceedings to enable the matter to be the subject of a mediation session under the Community Justice Centres Act 1983.

[2-s 204] Record of conviction or order to be made 204 (1) A court must make a record of any conviction or order made against the accused person in summary proceedings when the accused person is convicted or the order is made. (2) The court must give the accused person a copy of the record on request by the accused person.

[2-s 205] Order dismissing matter to be made 205 (1) A court may make an order of dismissal and give the accused person a certificate certifying that a matter has been dismissed if it decides to dismiss the matter. (2) A court must make an order of dismissal and give the accused person a certificate certifying that a matter has been dismissed if requested to do so by an accused person against whom a matter has been dismissed or by the prosecutor. (3) This section does not apply to a matter that is taken to be dismissed because of section 208. [subs (3) insrt Act 57 of 2007 s 3 and Sch 1[9], opn 7 Dec 2007]

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Criminal Procedure

s 205

[2-s 206]

s 206

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

[2-s 206] Effect of certificate that matter has been dismissed 206 A certificate certifying that a matter has been dismissed, if produced and without any further proofs being required, prevents any later proceedings in any court for the same matter against the same person.

[2-s 207] Power to set aside conviction or order before sentence 207 (1) An accused person may, at any time after conviction or an order has been made against the accused person and before the summary proceedings are finally disposed of, apply to the court to change the accused person’s plea from guilty to not guilty and to have the conviction or order set aside. (2) The court may set aside the conviction or order made against the accused person and proceed to determine the matter on the basis of the plea of not guilty. COMMENTARY ON SECTION 207 Law Part Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Change of plea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2 s 207.0] Law Part Code

[2 s 207.0] [2-s 207.1]

The Law Part Code for s 207(1) is 51540.

[2-s 207.1] Change of plea See s 193(2) and authorities cited at [2-s 193.1] concerning rejection of a plea of guilty. An accused person can apply to have the plea of guilty withdrawn at any time up until sentence is passed: Frodsham v O’Gorman [1979] 1 NSWLR 683. The court will permit the plea of guilty to be withdrawn where not to do so would amount to a miscarriage of justice: Boag v R (1994) 73 A Crim R 35; BC9402633 at 36; R v Wilkes (2001) 122 A Crim R 310; [2001] NSWCCA 97; BC200101581. The accused has the onus of proving that the circumstances are such that the plea should be withdrawn and the courts should approach such an application with “caution bordering on circumspection”: R v Liberti (1991) 55 A Crim R 120; BC9101783 at 122. The circumstances in which a court will permit an accused to withdraw a plea of guilty were considered in R v Hura (2001) 121 A Crim R 472; [2001] NSWCCA 61; BC200101004 where they were summarised as follows: • Where the appellant “did not appreciate the nature of the charge to which the plea was entered”: R v Ferrer-Esis (1991) 55 A Crim R 231; BC9101742 at 233; • Where the plea was not “a free and voluntary confession”: R v Chiron [1980] 1 NSWLR 218 at 220 D-E. • The “plea was not really attributable to a genuine consciousness of guilt”: R v Murphy [1965] VR 187 at 191. • Where there was “mistake or other circumstances affecting the integrity of the plea as an admission of guilt”: R v Sagiv (1986) 22 A Crim R 73; BC8600975 at 80. • Where the “plea was induced by threats or other impropriety when the applicant would not otherwise have pleaded guilty. . . some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt”: R v Cincotta NSWCCA, Hunt CJ, Grove and Allen JJ, 60472/1995, 1 November 1995, unreported, BC9501631). • The “plea of guilty must either be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt”: Maxwell v R (1996) 184 CLR 501 at 510–11, 522; 135 ALR 1 at CLR 511. • If “the person who entered the plea was not in possession of all of the facts and did not entertain a genuine consciousness of guilt”: R v Davies (1993) 19 MVR 481; BC9302390. See also: R v Ganderton NSWCCA, 17 September 1998, unreported and R v Favero [1999] NSWCCA 320; BC9906690.

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CRIMINAL PROCEDURE ACT 1986

[2-s 208.1]

In Meissner v R (1995) 184 CLR 132; 130 ALR 547 Dawson J stated at CLR 157: It is true that a person may plead guilty upon grounds which extend beyond that person’s belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. In Wong v DPP (2005) 155 A Crim R 37; [2005] NSWSC 129; BC200501043 consideration was given to the manner in which a magistrate should approach such an application and it was held that it was generally inappropriate to determine the issue without evidence from the defendant as to the circumstances in which the plea of guilty was made. It was also held that it was erroneous for a second magistrate to refuse to consider a further application without determining whether there was any fresh material to be relied upon. It is not sufficient reason to justify the withdrawal of the plea that the accused’s legal representative had instructions inconsistent with the plea provided that the plea of guilty was intended to admit all the elements of the offence and was freely and voluntarily made: Wong v DPP, above at [40] where it was stated that a solicitor is entitled to allow the accused to plead guilty in such a situation for reasons such as obtaining the benefit of a plea of guilty. See generally R v Allison (2003) 138 A Crim R 378; [2003] QCA 125; BC200301081 at 384. Where the accused’s lawyers had indicated that they would have to withdraw during the course of the trial and leave the accused unrepresented unless he changed his plea to “guilty”, it was held that the accused should be permitted to withdraw the plea because the unjustified threat made by his lawyers possibly induced the plea: R v Nerbas [2012] 1 Qd R 362; (2011) 210 A Crim R 494; [2011] QCA 199; BC201106299.

[2-s 208] Dismissal of matter if matter withdrawn 208 (1) If a matter is withdrawn by the prosecutor, the matter is taken to be dismissed and the accused person is taken to be discharged in relation to the offences concerned. (2) The dismissal of a matter because of its withdrawal by the prosecutor does not prevent any later proceedings in any court for the same matter against the same person. [s 208 am Act 57 of 2007 s 3 and Sch 1[10], opn 7 Dec 2007]

COMMENTARY ON SECTION 208 Withdrawal of matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Effect of withdrawal of matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 208.1] [2-s 208.5]

[2-s 208.1] Withdrawal of matter The term “matter” is not defined in s 3 Criminal Procedure Act 1986. However, the word is used frequently in Pt 2 of Ch 4 of the Act in the sense of a court hearing and determining the matters (see ss 190, 192, 194, 196, 197, 199, 201, 207). The court may determine the matter by convicting the accused person or by dismissing the matter: s 202(2). See also ss 205, 206, 213 concerning the dismissal of the matter. The term “matter” in s 208 appears to mean the criminal proceeding initiated by the issuing and filing of a court attendance notice against the accused person alleging the commission of an offence by that person. Under s 208 if a matter is withdrawn by a prosecutor, the matter is taken to have been dismissed and the accused person is taken to have been discharged in relation to the offences concerned. Under the repealed Justices Act 1902, it had been held that a magistrate had a discretionary power to allow the prosecutor to withdraw an information and should take into account whether the accused person objected or not to withdrawal: Lay v Cleary (NSWSC, James J, 23 February

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Criminal Procedure

s 208

[2-s 208.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 208

1993, unreported, BC9303691). It was also held that a magistrate had power to grant leave to the prosecutor to withdraw an information even after the hearing had commenced, although a magistrate may be less likely to exercise the discretionary power to grant leave in favour of the prosecutor where the hearing had commenced: Evans v DPP [2000] NSWSC 1005; BC200006674 at [43]–[45]. There may be less scope for controversy in this area given s 208 and the fact that the power to order costs against a prosecutor extends to dismissal of a matter because it is withdrawn: s 213(4) at [2-s 213]. [2-s 208.5] Effect of withdrawal of matter Under the repealed Justices Act 1902, the withdrawal of an information did not involve an order of dismissal of the information and a fresh charge for the same offence may have been open: Lawson v Wallace (1968) 88 WN (Pt 1) 505 at 511; Lay v Cleary (NSWSC, James J, 23 February 1993, unreported, BC9303691 at 23–30); Director-General of Fair Trading v O’Shane (NSWSC, Graham AJ, 22 August 1997, unreported, BC9703791 at 9); see also New South Wales Meat Industry Authority v Randall (NSWCA, 20 April 1994, unreported, BC9402484 at 10); Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160; BC9504801 at 170–171, 173–174; Chief Executive Offıcer of Customs v Au (2005) 153 A Crim R 21; [2005] NSWCA 119; BC200502317 at [32] and following. Under s 208 Criminal Procedure Act, if a matter is withdrawn by the prosecutor, the matter is taken to be dismissed and the accused person is taken to be discharged in relation to the offences concerned. There was no equivalent provision in the repealed Justices Act 1902. It does not appear that s 208 requires or permits an order of dismissal of the matter by the court. The withdrawal of the matter deems that to have occurred upon withdrawal — the matter is “taken to be dismissed” and the accused person is “taken to be discharged”: Silbert v DPP (WA) (2004) 205 ALR 43; 78 ALJR 464; [2004] HCA 9; BC200400674 at [13]; D C Pearce and R S Geddes, Statutory Interpretation in Australia, 5th ed, Butterworths Sydney, 2001, [4–34]–[4–35]. Given that s 208 does not involve an order of dismissal of the matter by the court, a question arises as to whether the withdrawal of a matter under s 208 gives rise to an entitlement to a certificate of dismissal under s 205 which would have the consequence under s 206 of the Act of preventing any later proceedings in any court for the same matter against the same person. Section 205 of this Act, which permits a magistrate to give a certificate upon the dismissal of a matter to a defendant, does not apply to the dismissal of proceedings under this section: see s 205(3). Therefore, a dismissal under this section does not of itself prevent further proceedings being instituted.

[2-s 209] Application of section 10 of the Crimes (Sentencing Procedure) Act 1999 209 The provisions of section 10 of the Crimes (Sentencing Procedure) Act 1999 apply to any proceedings heard in the absence of the accused person under this Part as if the accused person had been charged before the court with the offence to which the proceedings relate.

[2-s 210] Penalties applying to traffic offences committed by children 210 (1) The Local Court may deal with a child found guilty of a traffic offence in accordance with Division 4 of Part 3 of the Children (Criminal Proceedings) Act 1987. [subs (1) am Act 94 of 2007 s 4 and Sch 3, opn 6 July 2009]

(2) In so dealing with a child, the Local Court has and may exercise the functions of the Children’s Court under that Division as if the Local Court were the Children’s Court and the offence were an offence to which the Division applies.

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CRIMINAL PROCEDURE ACT 1986

[2-s 211A]

(3) The Local Court must not impose a sentence of imprisonment on a child found guilty of a traffic offence. [subs (3) am Act 94 of 2007 s 4 and Sch 3, opn 6 July 2009]

(4) In this section: child means a person who was under 18 years when the traffic offence was committed and under 21 years when summary proceedings for the offence were commenced, traffic offence means an offence arising under a provision of: (a) the road transport legislation (within the meaning of the Road Transport Act 2013) or the former road transport legislation (within the meaning of Part 2 of Schedule 4 to that Act), or (b) the Roads Act 1993, or (c) the Motor Vehicles (Third Party Insurance) Act 1942, or (d) the Recreation Vehicles Act 1983, or (e) the Motor Accidents Compensation Act 1999, (f) the Motor Accident Injuries Act 2017, in respect of the use, standing or parking of a motor vehicle within the meaning of that provision. [def am Act 54 of 2008 s 4 and Sch 2.2, opn 3 Nov 2008; Act 19 of 2013 Sch 4 item 4.13[1], opn 1 July 2013; Act 10 of 2017 Sch 5.3, opn 1 Dec 2017]

Note. Division 4 of Part 3 of the Children (Criminal Proceedings) Act 1987 sets out the penalties which the Children’s Court may impose on a child who has been found guilty of a summary offence. [def am Act 11 of 2005 s 247 and Sch 3.7, opn 30 Sep 2005]

DIVISION 4 — COSTS

[2-s 211] Definition 211 In this Part: professional costs means costs (other than court costs) relating to professional expenses and disbursements (including witnesses’ expenses) in respect of proceedings before a court.

[2-s 211A] Imposition of court costs levy 211A (1) An accused person who is convicted of an offence in summary proceedings before a court is, by virtue of the conviction, liable to pay a court costs levy that is of the amount prescribed by the regulations. (2) However, a court costs levy is not payable in relation to any of the following: (a) a conviction resulting in the imposition of a sentence of imprisonment (unless the execution of the sentence is suspended by the court), (b) an order under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 in relation to an offence that is not punishable by imprisonment, (c) a finding of guilt in relation to a traffic offence (within the meaning of section 210 of this Act) by the Local Court when dealing with the accused person under Division 4 of Part 3 of the Children (Criminal Proceedings) Act 1987,

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Criminal Procedure

s 211A

[2-s 211A]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 211A

(d) a conviction in proceedings before the Drug Court, (e) a conviction that the regulations exempt from liability to pay the levy. (3) A convicted person who is under the age of 18 years is not liable to pay the court costs levy if the court directs that the person is exempt from liability to pay the levy in respect of the conviction. Such a direction may be made when the court convicts the person, or at any time afterwards. (4) The court costs levy is in addition to, and does not form part of, any pecuniary penalty imposed in respect of the offence. (5) The court costs levy is to be paid to the registrar of the court. The registrar is to pay the levy to the prosecutor if court costs have been paid by the prosecutor in respect of the proceedings. (6) The commencement of any proceedings by way of appeal against, or review of, a conviction in respect of which the court costs levy has been imposed on a person stays the liability of the person to pay the levy. In such a case: (a) the setting aside of any such conviction annuls that liability, and (b) the dismissal of any such proceedings removes the stay of liability. (7) To avoid doubt, this section extends to: (a) proceedings conducted in the absence of the accused person, and (b) proceedings in which a person who was under the age of 18 years when an offence was allegedly committed pleads guilty to, or is found guilty of, an offence in proceedings before a court, but not if the person is dealt with under Division 4 of Part 3 of the Children (Criminal Proceedings) Act 1987. (8) In this section, a reference to a person being convicted includes a reference to an order being made in relation to the person under section 10 of the Crimes (Sentencing Procedure) Act 1999. Note 1. This section does not apply in respect of criminal proceedings before the Children’s Court (see section 27(2A) of the Children (Criminal Proceedings) Act 1987). Section 42A of that Act provides for the Children’s Court to make orders regarding court costs at its discretion. Note 2. Section 4 of the Fines Act 1996 provides that a court costs levy payable under this section is, for the purposes of that Act, taken to be a fine imposed by the court that convicted the person or found the person guilty. [s 211A insrt Act 8 of 2013 Sch 1[1], opn 13 May 2013]

[2-s 212] When costs may be awarded 212 (1) A court may award costs in criminal proceedings only in accordance with this Act. (2) This Act does not affect the payment of costs under the Costs in Criminal Cases Act 1967. Note. The Costs in Criminal Cases Act 1967 contains procedures by which an accused person may obtain payment of costs from Government funds after acquittal or discharge or the quashing of a conviction. COMMENTARY ON SECTION 212 Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Costs in Criminal Cases Act 1967 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 212.1] [2-s 212.5]

[2-s 212.1] Costs See ss 213–14 as to a costs order to the accused person and s 215 as to a costs order to the prosecutor.

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[2-s 213.1]

CRIMINAL PROCEDURE ACT 1986

See s 216 for the power to order costs against a party where an adjournment flows from that party’s unreasonable conduct or delay. Under the repealed Justices Act 1902, it was held that a magistrate had no express or implied power to order costs where an information for a summary offence was stayed as an abuse of process: Director of Public Prosecutions (NSW) v Boykin (NSWSC, Wood J, 21 June 1994, unreported, BC9405141). The present Act does not empower a magistrate to award costs where a matter is stayed as an abuse of process and s 212(1) states that a court may award costs in criminal proceedings only in accordance with the Act. In these circumstances, it appears that the Boykin principle remains and that a Local Court has no power to order costs where a summary prosecution is stayed as an abuse of process. Any argument that an implied power to control an abuse of process carries with it an implied power to order costs would depend upon Markisic v Vizza [2002] NSWCCA 53; BC200200834 at [32], and the authorities there referred to. However, Markisic did not involve the power of the Local Court to order costs in criminal proceedings and s 212(1) appears to make such an argument more difficult to sustain. [2-s 212.5] Costs in Criminal Cases Act 1967 The Costs in Criminal Cases Act 1967 appears at [19-5001] and following. The difference between the tests contained in ss 2 and 3 Costs in Criminal Cases Act 1967 and repealed s 81(4) Justices Act (now s 214) has been emphasised and jurisdictional error was established where a magistrate purported to apply the s 81(4) test in refusing an application under the Costs in Criminal Cases Act: Cumberland v DPP (NSWSC, Hulme J, 7 June 1996, unreported, BC9606848); (1996) 3 Crim LN 35 [568].

[2-s 213] When professional costs may be awarded to accused persons 213 (1) A court may at the end of summary proceedings order that the prosecutor pay professional costs to the registrar of the court, for payment to the accused person, if the matter is dismissed or withdrawn. [subs (1) am Act 23 of 2006 s 3 and Sch 1, opn 13 July 2006]

(2) The amount of professional costs is to be the amount that the Magistrate considers to be just and reasonable. (3) Without limiting the operation of subsection (1), a court may order that the prosecutor in summary proceedings pay professional costs if the matter is dismissed because: (a) the prosecutor fails to appear or both the prosecutor and the accused person fail to appear, or (b) the matter is withdrawn or the proceedings are for any reason invalid. [subs (3) subst Act 23 of 2006 s 3 and Sch 1, opn 13 July 2006]

(4) [subs (4) rep Act 23 of 2006 s 3 and Sch 1, opn 13 July 2006] (5) The order must specify the amount of professional costs payable. COMMENTARY ON SECTION 213 Order for professional costs to accused person . . . . . . . . . . . . . . . . . . Costs against public prosecutor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Just and reasonable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appeals against orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Indemnity against costs order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 213.1] [2-s 213.10] [2-s 213.15] [2-s 213.20] [2-s 213.25]

[2-s 213.1] Order for professional costs to accused person Section 213 empowers a magistrate, at the end of summary proceedings, to order the prosecutor to pay professional costs to the accused person where:

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Criminal Procedure

s 213

[2-s 213.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 213

(a) the matter is dismissed: s 213(1); (b) the matter is withdrawn: s 213(1), (4); (c) the matter is dismissed because the proceedings are for any reason invalid: s 213(4). “Professional costs” are defined at [2-s 211]. The terms of s 213(4) overcome the construction of the repealed Justices Act 1902, where it was held that, if an information was invalid, there was no power to dismiss it and to make a costs order under repealed s 81: Director of Public Prosecutions v Goben [1999] NSWSC 696; BC9903990; (1999) 6 Crim LN 54 [1024]. For the purposes of s 213(1), the registrar is merely acting as a necessary part or the machinery under which the sum by way of costs enures for the benefit of the accused person: Klewer v Walton [2004] FCA 410; BC200401696. [2-s 213.10] Costs against public prosecutor Section 214 constitutes a statutory fetter upon the discretion to order costs against a public prosecutor. See [2-s 214.1]. [2-s 213.15] Just and reasonable The amount of professional costs is to be the amount that the magistrate considers to be “just and reasonable”. The term “just and reasonable” in s 52 Land and Environment Court Act 1979 (a costs provision) was considered in Caltex Refining Co Pty Ltd v Maritime Services Board (NSW) (1995) 36 NSWLR 552 at 560–4; 78 A Crim R 368; BC9504766 where it was held that the requirement that an order must be both just and reasonable entails both a fair hearing on the merits of the application and that the terms of the order finally made will be in themselves reasonable. See Ly v Jenkins (2001) 114 FCR 237; 187 ALR 178; [2001] FCA 1640; BC200107236 for consideration of whether costs were “just and reasonable” under repealed s 81 Justices Act 1902 (see now [2-s 211] ff) where they were not directly incurred by the prosecutor ([13], [129], [134]), where they involved expenses of witnesses ([27], [159], [160]), where they related to the investigation of an offence ([41], [132], [133]), where they were incurred “in-house” by a corporation ([160]) and where the costs order was sought in a foreign currency ([129], [155]). The onus lies upon the party seeking costs to establish such an entitlement and to establish that the costs claimed are just and reasonable: Director General NSW Dept of Agriculture v Temmingh [2003] NSWSC 598; BC200303816 at [11]. The purpose of an order for costs is to indemnify or compensate the person in whose favour it is made, not to punish the person against whom it is made: Latoudis v Casey (1990) 170 CLR 534 at 543, 562–3, 567; 97 ALR 45; BC9002896; Ohn v Walton (1995) 36 NSWLR 77 at 79, 84; BC9504241; Temmingh, above, at [15]. [2-s 213.20] Appeals against orders The prosecutor may appeal to the District Court against any order for costs made by a magistrate against the prosecutor in respect of summary proceedings taken by the prosecutor: s 23(2)(b) Crimes (Appeal and Review) Act 2001 at [4-s 23]. The prosecutor may appeal to the Supreme Court, on a question of law alone, against an order for costs made by a magistrate against the prosecutor in any summary proceedings: s 56(1)(e) Crimes (Appeal and Review) Act 2001 at [4-s 56]. [2-s 213.25] Indemnity against costs order Section 218(1) provides that a public officer, (see [2-s 3] and s 218(2)), is entitled to be indemnified by the State for any costs awarded against the officer personally as the prosecutor in any criminal proceedings in a court in which the officer is acting in his or her capacity as a public officer.

[2-s 214] Limit on award of professional costs to accused person against prosecutor acting in public capacity 214 (1) Professional costs are not to be awarded in favour of an accused person in summary proceedings unless the court is satisfied as to any one or more of the following:

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[2-s 214.1]

CRIMINAL PROCEDURE ACT 1986

(a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner, (b) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner, (c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought, (d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award professional costs. [subs (1) am Act 23 of 2006 s 3 and Sch 1, opn 13 July 2006]

(2) This section does not apply to the awarding of costs against a prosecutor acting in a private capacity. (3) An officer of an approved charitable organisation under the Prevention of Cruelty to Animals Act 1979 is taken not to be acting in a private capacity if the officer acts as the prosecutor in any proceedings under that Act or section 9(1) of the Veterinary Practice Act 2003. [subs (3) am Act 87 of 2003 s 105 and Sch 3.7, opn 1 Sep 2006]

COMMENTARY ON SECTION 214 Law Part Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Costs against public officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Connection between reasons for dismissal and s 214(1) factors . . . Costs against private prosecutors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 214.0] Law Part Code

[2-s 214.0] [2-s 214.1] [2-s 214.5] [2-s 214.10]

The Law Part Code for this section is 55640.

[2-s 214.1] Costs against public officers The onus rests upon the accused person to bring the case within the exceptions to the general rule laid down by s 214(1) that costs are not to be awarded in favour of an accused person: Fosse v DPP [1999] NSWSC 367; BC9901959 at [16]. To fall within s 214(1)(d), the accused person has to establish something about the conduct of the proceedings being an “exceptional circumstance” other than some matter mentioned in subsections (a), (b) or (c). In that regard, the mere fact that the proceedings were resolved in the accused person’s favour was not enough. There has to be something in relation to the manner in which the proceedings were conducted that had led to it being just and reasonable for a costs order to be made: Fosse v DPP, above, at [30]; Australian Securities and Investment Commission v Farley (2001) 51 NSWLR 494; [2001] NSWSC 326; BC200101937 at [16]. As to s 214(1)(b), one way of testing whether a proceeding is instituted “without reasonable cause” is to ask whether, upon the facts apparent to the prosecutor at the time of instituting the proceedings, there was no substantial prospect of success, and if success depends upon the resolution in the prosecutor’s favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being “without reasonable cause”, but where on the prosecutor’s own version of the facts it is clear that the proceedings must fail, it may properly be said that the proceeding lacks reasonable cause: Director of Public Prosecutions (Cth) v Ngo [2012] NSWSC 1521; BC201209750 at [44]–[48]. In relation to s 214(1)(a), that provision can be satisfied without proof of what an uncalled witness would have said. It is enough that, if the prosecution interviews and calls fewer than the available eye-witnesses, s 214(1)(a) may apply. A fortiori, if the witness who was not interviewed and called would have thrown a different perspective on the matter s 214(1)(a) may apply: De Varda v Constable Stengord [2011] NSWSC 868; BC201110512 at [27]–[32].

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Criminal Procedure

s 214

[2-s 214.5]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 214

[2-s 214.5] Connection between reasons for dismissal and s 214(1) factors The order for the payment of costs is a different step from the order dismissing the matter and there is no requirement that there be any connection between the basis on which the accused person was acquitted and the facts and circumstances about which the court must be satisfied under s 214(1) before ordering costs: cf R v Hunt [1999] NSWCCA 375; BC9907764. [2-s 214.10] Costs against private prosecutors With respect to proceedings commenced by a private prosecutor, the award of costs in summary proceedings to an accused person, proceedings against whom have been dismissed, is entirely within the magistrate’s (judicial) discretion. The general principles as to costs in criminal proceedings in Latoudis v Casey (1990) 170 CLR 534; 97 ALR 45; BC9002896 ought be applied.

[2-s 215] When professional costs may be awarded to prosecutor 215 (1) A court may at the end of summary proceedings order that the accused person pay the following costs to the registrar of the court, for payment to the prosecutor, if the accused person is convicted or an order is made against the accused person: (a) such professional costs as the court considers just and reasonable, (b) [repealed] [subs (1) am Act 8 of 2013 Sch 1[2], opn 13 May 2013]

(1A) The court may not order the accused person to pay professional costs referred to in subsection (1)(a) if the conviction or order concerned relates to an offence: (a) for which a penalty notice, within the meaning of section 20 of the Fines Act 1996, has been issued, and (b) in respect of which the person has elected to have the matter dealt with by a court, and (c) in respect of which the person has lodged a written plea of guilty, in accordance with section 182, not later than 7 days before the date on which the person is required to first attend before the court. [subs (1A) insrt Act 23 of 2006 s 3 and Sch 1, opn 13 July 2006]

(1B) Subsection (1A) does not apply in relation to proceedings for an offence against the Work Health and Safety Act 2011 or the regulations under that Act. [subs (1B) subst Act 67 of 2011 Sch 4.6[2], opn 1 Jan 2012]

(2) [subs (2) rep Act 8 of 2013 Sch 1[2], opn 13 May 2013] (3) The order must specify the amount of costs payable. (4) For the purposes of this section, an accused person is taken to have been convicted if an order is made under Division 4 of Part 3 of the Children (Criminal Proceedings) Act 1987 or under section 10 of the Crimes (Sentencing Procedure) Act 1999. The order for costs may be in the order under the relevant section. [subs (4) am Act 8 of 2013 Sch 1[3], [4], opn 13 May 2013]

(5) This section applies to all summary proceedings, including orders made in proceedings conducted in the absence of the accused person. COMMENTARY ON SECTION 215 Order for costs to prosecutor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appeal from order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 215.1] [2-s 215.5]

[2-s 215.1] Order for costs to prosecutor Section 215(1) empowers the Court, at the end of summary proceedings, to order that the accused person pay “professional costs” ([2-s 211]) and

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CRIMINAL PROCEDURE ACT 1986

[2-s 216.1]

“court costs” (s 215(2)) to the prosecutor if the person is convicted or an order is made against him or her. Such costs must be “just and reasonable”: s 215(1)(a), s 215(2)(b), as to which see [2-s 213.15]. The purpose of an order for costs is to indemnify or compensate the person in whose favour it is made, not to punish the person against whom it is made: Latoudis v Casey (1990) 170 CLR 534 at 543, 562–3, 567; 97 ALR 45; BC9002896; Ohn v Walton (1995) 36 NSWLR 77 at 79, 84; BC9504241; Temmingh, above, at [15]. The quantification of costs to be ordered is not, and cannot be, mitigated by reference to matters of the kind relevant to the mitigation of the penalty imposed: Temmingh, above, at [15]. [2-s 215.5] Appeal from order An accused person may appeal to the District Court against “sentence” which includes any order for costs made by a magistrate against a person in connection with summary proceedings taken against the person: ss 3, 11 Crimes (Appeal and Review) Act 2001 at [2-s 3] and [2-s 11]. An accused person may appeal to the Supreme Court against “sentence” which includes such an order for costs: ss 3, 52, 53 Crimes (Appeal and Review) Act 2001 at [2-s 3], [2-s 52], [2-s 53].

[2-s 216] Costs on adjournment 216 (1) A court may in any summary proceedings, at its discretion or on the application of a party, order that one party pay costs if the matter is adjourned. (2) An order may be made only if the court is satisfied that the other party has incurred additional costs because of the unreasonable conduct or delays of the party against whom the order is made. (3) The order must specify the amount of costs payable or may provide for the determination of the amount at the end of the proceedings. (4) An order may be made whatever the result of the proceedings. COMMENTARY ON SECTION 216 Law Part Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Costs on adjournment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appeal from order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2 s 216.0] Law Part Code

[2 s 216.0] [2-s 216.1] [2-s 216.5]

The Law Part Code for s 216(1) is 51541.

[2-s 216.1] Costs on adjournment Section 216 empowers a court in summary proceedings: (a) at its discretion or on the application of the prosecutor or an accused person: s 216(1); (b) to order that one party pay costs if the matter is adjourned: s 216(1); (c) but only if the court is satisfied that the other party has incurred additional costs: s 216(2); (d) by reason of the unreasonable conduct or delay of the party against whom the order is made: s 216(2); (e) and that such an order may be made whatever the result of the proceedings: s 216(4). Under the repealed Justices Act 1902, the power to order costs of the day was limited to circumstances governed by repealed s 65(3) Justices Act: R v Le Boursicot (1994) 79 A Crim R 548. In Commissioner of Police v Fandakis [2001] NSWSC 586; BC200103907, it was held that there was no power, express or implied, to order costs for hearing time lost in committal proceedings resulting from an unsuccessful public interest immunity claim. Whether such an application could now be entertained in summary proceedings would depend upon whether s 216 was satisfied — had a “party” to the proceedings caused additional costs to be incurred by unreasonable conduct or delay?

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Criminal Procedure

s 216

[2-s 216.5]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 216

[2-s 216.5] Appeal from order The prosecutor may appeal to the District Court against any order for costs made by a magistrate against the prosecutor in respect of summary proceedings taken by the prosecutor: s 23(2)(b) Crimes (Appeal and Review) Act 2001 at [4-s 23]. The prosecutor may appeal to the Supreme Court, on a question of law alone, against an order for costs made by a magistrate against the prosecutor in any summary proceedings: s 56(1)(e) Crimes (Appeal and Review) Act 2001 at [4-s 56]. An accused person may appeal to the District Court against “sentence” which includes any order for costs made by a magistrate against a person in connection with summary proceedings taken against the person: ss 3, 11 Crimes (Appeal and Review) Act 2001 at [2-s 3] and [2-s 11]. An accused person may appeal to the Supreme Court against “sentence” which includes an order for costs: ss 3, 52, 53 Crimes (Appeal and Review) Act 2001 at [2-s 3], [2-s 52], [2-s 53].

[2-s 217] Enforcement of costs orders 217 An order made by a court under this Division for the payment of costs is taken to be a fine within the meaning of the Fines Act 1996.

[2-s 218] Public officers and police officers not personally liable for costs 218 (1) A public officer or a police officer is entitled to be indemnified by the State for any costs awarded against the officer personally as the prosecutor in any criminal proceedings in a court in which the officer is acting in his or her capacity as a public officer or a police officer. [subs (1) am Act 68 of 2004 s 3 and Sch 6[5], opn 6 July 2004]

(2) In this section: public officer does not include a councillor or an employee of a council or any other person prescribed by the regulations for the purposes of this section. COMMENTARY ON SECTION 218 Public officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 218.1]

[2-s 218.1] Public officer See cl 101(2) of the Criminal Procedure Regulation 2010 at [2-5870] for officers or employees of bodies prescribed as persons who are not a “public officer” for the purpose of s 218(2).

DIVISION 5 — RULES

[2-s 219] Rules 219 (1) The Rule Committee may make rules for or with respect to the following matters: (a) service of court attendance notices, briefs of evidence and other documents, (b) endorsement of service of court attendance notices and other documents, (c) procedures for adjourning, relisting and notifying accused persons about alternative offences, (d) additional requirements for the form of warrants, (e) the circumstances in which a person may obtain copies of documents relating to criminal proceedings,

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CRIMINAL PROCEDURE ACT 1986

[2-s 221]

(f) assessment of costs on adjournment, (g) the form of submissions to a court about disputed costs, (h) forms to be used under this Act. (2) A court may in proceedings for a summary offence, if of the opinion that it is in the interests of justice to do so, dispense with or vary a requirement of the rules. (3) For the purposes of subsection (2), the Local Court may make directions as to the conduct of proceedings. [subs (3) am Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009]

(4) The power conferred by subsection (2) does not extend to any rule declared by the rules to be mandatory. COMMENTARY ON SECTION 219 Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 219.1] Rules

[2-s 219.1]

See Local Court Rules 2009 at [2-9200] and following.

PART 3 — ATTENDANCE OF WITNESSES AND PRODUCTION OF EVIDENCE IN LOWER COURTS

[2-s 220] Application 220 In addition to any other proceedings to which this Part applies, this Part applies to any proceedings prescribed by the regulations for the purposes of this section. COMMENTARY ON SECTION 220 Prescribed proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 220.1]

[2-s 220.1] Prescribed proceedings Part 3 of Ch 4 applies to proceedings for or relating to an apprehended violence order commenced under the Crimes (Domestic and Personal Violence) Act 2007: cl 116, Criminal Procedure Regulation 2017 at [2-5885].

[2-s 221] Definitions 221

In this Part:

party means a prosecutor or an accused person in, or any other party to, proceedings to which this Part applies. person named in a subpoena means the person to whom the subpoena is addressed. subpoena includes any of the following: (a) a subpoena to give evidence, (b) a subpoena for production, (c) a subpoena both to give evidence and for production. subpoena both to give evidence and for production means a written order requiring the person named to attend as directed by the order as a witness to give evidence and to produce a document or thing. subpoena for production means a written order requiring the person named to attend as directed by the order and produce a document or thing.

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Criminal Procedure

s 221

[2-s 221]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 221

subpoena to give evidence means a written order requiring the person named to attend as directed by the order as a witness to give evidence.

[2-s 222] Issue of subpoenas 222 (1) A registrar, if requested to do so by a party to proceedings, is, subject to and in accordance with the rules, to issue to the person named any of the following subpoenas: (a) a subpoena to give evidence, (b) a subpoena for production, (c) a subpoena both to give evidence and for production. (2) If the prosecutor in proceedings is a public officer or a police officer, the officer may, subject to and in accordance with the rules, issue any such subpoena. The subpoena is to be filed and served in accordance with the rules. [subs (2) am Act 68 of 2004 s 3 and Sch 6[6], opn 6 July 2004; Act 107 of 2008 s 3 and Sch 7, opn 8 Dec 2008]

(2A) A police officer may issue a subpoena under subsection (2) on behalf of a public officer. [subs (2A) insrt Act 87 of 2018 Sch 1 item 1.15[3], opn 28 Nov 2018]

(3) A subpoena to give evidence and a subpoena for production may be issued to the same person in the same proceedings. (4) A party may require a subpoena for production to be returnable: (a) on any day on which the proceedings are listed before a court, or any day not more than 21 days before any such day, or (b) with the leave of the court or a registrar, on any other day. COMMENTARY ON SECTION 222 Issue of subpoenas by public officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 222.1] Issue of subpoenas at the request of other parties . . . . . . . . . . . . . . . . [2-s 222.5] Specificity and sufficient description in subpoena . . . . . . . . . . . . . . . . [2-s 222.10] Application to set aside subpoena . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 222.15] Client legal privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 222.20] Common law principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 222.20.5] Evidence Act 1995 provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 222.20.10] Public interest immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 222.25] Legitimate forensic purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 222.30] Complaints against police . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 222.35] Sexual assault communications privilege . . . . . . . . . . . . . . . . . . . . . . . [2-s 222.40] [2-s 222.1] Issue of subpoenas by public officer “Public officer” is defined at [2-s 3]. Where a public officer commences criminal proceedings (see [2-s 173]), that officer is entitled to issue a subpoena which is to be filed in accordance with the rules: s 222(2). The subpoena need not be issued by the registrar under s 222(1). A subpoena issued to “South Australia Police” was not issued in compliance with the section as the addressee must be a legal entity and it should have been addressed to the proper officer, for example the Commissioner of Police for the State: Peters v Asplund [2008] NSWSC 1061; BC200808827; 15 Crim LN 131 [2457]. See Pt 6 of the Local Court Rules 2009 at [2-9200] and following concerning subpoenas in the Local Court. See forms at [2-5660], [2-5670] and [2-5680] for the approved forms of Subpoena for production, Subpoena to give evidence and Subpoena for production and to give evidence.

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CRIMINAL PROCEDURE ACT 1986

[2-s 222.20.5]

[2-s 222.5] Issue of subpoenas at the request of other parties Where the accused person or a private prosecutor wishes a subpoena to be issued, the request is to be made to a registrar who is empowered to issue subpoenas under s 222(1). A subpoena issued to “South Australia Police” was not issued in compliance with the section as the addressee must be a legal entity and it should have been addressed to the proper officer, for example the Commissioner of Police for the State: Peters v Asplund [2008] NSWSC 1061; BC200808827; 15 Crim LN 131 [2457]. See Pt 6 of the Local Court Rules 2009 at [2-9200] and following concerning subpoenas in the Local Court. See forms at [2-5660], [2-5670] and [2-5680] for the approved forms of subpoena for production, subpoena to give evidence and subpoena for production and to give evidence. [2-s 222.10] Specificity and sufficient description in subpoena A subpoena, whether addressed to a party or a stranger to proceedings, must state with reasonable particularity the documents or things which are required to be produced: Commissioner for Railways v Small (1938) 38 SR (NSW) 564; 55 WN (NSW) 215 at 573–4; National Employers Mutual General Insurance Association Ltd v Waind [1978] 1 NSWLR 372 at 382. The most elementary requirement is that a subpoena be couched in such a form that the person to whom it is addressed may readily understand the task which besets him and with which he must comply in obedience to an order of the court: Anderson v R (NSWCCA, Gleeson CJ, 12 October 1989, unreported, BC8901598) at 2 per Gleeson CJ. It is no answer to a criticism of lack of specificity and reasonable particularity that, as a matter of common sense, the person who issued the subpoena would not require strict compliance with its terms; a consideration of that kind is of no comfort to a person, a stranger to litigation who receives a subpoena and then is confronted with the alternative of applying to set it aside on the one hand, or to comply with its terms on the other: R v Anderson, above, at 4. In the ordinary course of events, a subpoena is a peremptory order of a court, to be obeyed unless the court makes an order to the contrary. It should be framed in terms of sufficient precision and certainty to enable the recipient to know what he or she must produce, and to enable the court to give a just ruling, if there is to be a suggestion that the recipient should be punished for failing to produce all of the documents called for: New South Wales Commissioner of Police v Tuxford [2002] NSWCA 139; BC200202538 at [12]. [2-s 222.15] Application to set aside subpoena

See [2-s 227].

[2-s 222.20] Client legal privilege The client legal privilege provisions at [3-s 117]ff in Pt 3.10 Evidence Act 1995, with the exception of s 123, apply to an objection to produce or provide information at any stage of proceedings, including interlocutory processes: s 131A Evidence Act 1995 at [3-s 131A]. For the position before the enactment of s 131A, see Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 at 59–64; 168 ALR 123; [1999] HCA 67; BC9908417; Mann v Carnell (1999) 201 CLR 1 at 9–13; 168 ALR 86; [1999] HCA 66; BC9908416; R (Cth) v Petroulias (No 22) (2007) 213 FLR 293; 176 A Crim R 309; [2007] NSWSC 692; BC200711116 at [39]–[53]. [2-s 222.20.5] Common law principles Where a claim of legal professional privilege concerning subpoenaed documents fell to be determined by application of common law principles (before the enactment of s 131A Evidence Act 1995), the starting point was that the documents should be produced to the court and evidence provided to demonstrate that privilege attached to the documents. Legal professional privilege is a rule of substantive law. It is an important common law right or immunity. Statutory provisions are not to be construed as abrogating such important common law rights and immunities in the absence of clear words or a necessary implication to that effect: Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543; 192 ALR 561; [2002] HCA 49; BC200206568 at [9]–[11].

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Criminal Procedure

s 222

[2-s 222.20.5]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 222

The onus of establishing the claim falls on the party asserting or claiming the privilege and is met by establishing the facts giving rise to it: Australia Competition and Consumer Commission v Lux Pty Ltd [2003] FCA 89; BC200300344 at [42]. Legal professional privilege attaches to documents which are brought into existence for the dominant purpose of submissions to legal advisers for advice or for use in legal proceedings: Esso Australia Resources Ltd v FCT (1999) 201 CLR 49; 168 ALR 123; [1999] HCA 67; BC9908417, overruling Grant v Downs (1976) 135 CLR 674 at 688; 11 ALR 577; 51 ALJR 198; BC7600095. There is no privilege for physical objects other than documents and there is no privilege for documents which are the means of carrying out, or are evidence of, transactions which are not themselves the giving or receiving of advice or part of the conduct of actual or anticipated litigation: Baker v Campbell (1983) 153 CLR 52; 49 ALR 385 per Dawson J at CLR 122 (Wilson J agreeing at CLR 92). The privilege does not attach to documents which constitute or evidence transactions (such as contracts, conveyances, declaration of trust, offers or receipts) even if they are delivered to a solicitor or counsel for advice or for use in litigation: Baker v Campbell, above, per Murphy J at CLR 86. Communications by a client for the purpose of being guided or helped in the commission of a crime or fraud are not privileged from discovery nor are communications made to further a deliberate abuse of statutory power and by that abuse to prevent others from exercising their rights under the law: Attorney-General (NT) v Kearney (1985) 158 CLR 500; 61 ALR 55; BC8501109 at CLR 511, 515. The privilege is not displayed by making a mere charge of crime or fraud or a charge that powers have been exercised for an ulterior purpose. There must be something to give colour to the charge. The statement must be made in clear and definite terms and there must further be some prima facie evidence that it has some foundation in fact: Attorney-General (NT) v Kearney, above at CLR 516; Baker v Evans (1987) 77 ALR 565. As to whether hearsay material may be relied on to displace legal professional privilege where that privilege is claimed for a communication in the form of a document alleged to have been made in furtherance of an illegal or improper purpose, see Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; 141 ALR 545; 4 Crim LN 10 [657]. The court has power to examine the documents for itself to determine whether they fall within legal professional privilege. In many instances the character of the documents which are the subject of the claim will illuminate the purpose for which they were brought into existence: Grant v Downs, above. The common law does not recognise an exception to legal professional privilege in favour of an accused person in criminal proceedings which would compel production and allow access to documents, which may establish the accused’s innocence or materially assist in his or her defence: Carter v Managing Partner, Northmore Hale Davy and Leake (1995) 183 CLR 121; 129 ALR 593; [1995] HCA 33; BC9506452. Legal professional privilege attaches to a copy document which is provided to a lawyer if the copy was made solely for the purpose of obtaining legal advice or solely for use in legal proceedings: Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; 141 ALR 545; 4 Crim LN 10 [657]. See Mann v Carnell (1999) 201 CLR 1; 168 ALR 86; [1999] HCA 66; BC9908416 for common law principles with respect to waiver of legal professional privilege. [2-s 222.20.10] Evidence Act 1995 provisions See ss 117–26 Evidence Act 1995 at [3-s 117]–[3-s 126] as to client legal privilege. See ss 132–4 at [3-s 132]–[3-s 134] for procedures where a claim of privilege is made under the Act. [2-s 222.25] Public interest immunity Section 130 Evidence Act 1995 at [3-s 130] applies to an objection to produce or provide information at any stage of proceedings, including interlocutory processes: s 131A Evidence Act 1995 at [3-s 131A]. For the position before the enactment of s 131A, see Woodroffe v NCA (1999) 168 ALR 585 at 588; [1999] FCA 1689; BC9908508; New South Wales v Ryan (1998) 101 LGERA 246;

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CRIMINAL PROCEDURE ACT 1986

[2-s 222.30]

BC9804400; Eastman v R (1997) 158 ALR 107; 76 FCR 9 at 63; BC9702666 and R v Francis (2004) 145 A CrimR 233 at 236–7; [2004] NSWCCA 85; BC200401825 at [16]. Where a claim of public interest immunity is made, use may be made of open and confidential affidavits, with the open affidavit ordinarily being served on the subpoenaing party. In accordance with usual practice, confidential material will not be made available to the subpoenaing party: R v Meissner (1994) 76 A Crim R 81 at 84–5; BC9403502. Generally speaking, if it is possible to consider a claim of public interest immunity without closing the court, then that is a preferable course. The open justice principle should be restricted only as far as necessary. However, it is necessary that oral argument made in open court in support of a claim of public interest immunity not itself disclose confidential material. A corollary of a court’s ability to receive confidential evidence is that the court can also receive confidential submissions orally or in writing in accordance with its ability to inform itself in any way it thinks fit for the purpose of s 130(3) Evidence Act 1995. If the court considers it necessary to do so, the court may be closed for the purpose of hearing submissions on a claim for public interest immunity: Franklin v Commissioner of Police [2018] NSWSC 310; BC201801667 at [71]–[73]. Where the claim for public interest immunity is upheld, reasons delivered in open court should be expressed in general terms in a manner which maintains confidentiality of the material which was the subject of the claim: Franklin at [67]. [2-s 222.30] Legitimate forensic purpose In Saleam v R (1989) 16 NSWLR 14; 39 A Crim R 406 at NSWLR 19, the Court of Criminal Appeal observed that the longstanding principle that there is no discovery in criminal cases had not been overruled by anything said by the High Court in Alister v R (1984) 154 CLR 404; 51 ALR 480; BC8300122. In Saleam v R, above, the court said that where an accused issues a subpoena requiring in effect the production of all documents in the possession of the police, the trial judge should require counsel for the accused to identify expressly and with precision the legitimate forensic purpose for which he seeks access to the documents, and the judge should refuse access to the documents until such identification has been made. In such a case, the judge should be satisfied that it is “on the cards” that the documents would materially assist the accused in his defence before granting access to such documents where objection has been taken that no legitimate forensic purpose exists for their production. He should usually inspect the documents (or those which the Crown may suggest are sufficiently representative) for himself before granting access. Trial judges should be vigilant to set aside such subpoenas which are oppressive, and in refusing access to the documents produced unless and until some legitimate forensic purpose is identified expressly. As to legitimate forensic purpose, see also Carroll v A-G (NSW) (1993) 70 A Crim R 162; BC9302190 at A Crim R 181–2; Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667 at 676A, 681F; 75 A Crim R 8; BC9405113; Principal Registrar of the Supreme Court of NSW v Tastan (1994) 75 A Crim R 498 at 504–6; BC9403542; (1994) 2 Crim LN 5 [328]; Ran v R (1996) 16 WAR 447; BC9600966. An accused person who issues a subpoena will need to make submissions concerning legitimate forensic purpose and, if a claim of public interest immunity is made, to demonstrate to the court the factors which the accused submits should be placed in the balance on his or her side and the weight to be given to those factors. The authorities indicate that this involves a real and substantial task for the accused: Saleam, above, at 17G–18C; Carroll, above, at 181–2, 186; Stuart, above, at 676A, 681E–G, 690E; Tastan, above, at 504–6; R v Meissner (1994) 76 A Crim R 81 at 87–8; BC9403502. It has been said, with respect to the “on the cards” test of legitimate forensic purpose, that the essential notion is that there is a reasonable chance that the material sought will assist the defence; if it is reasonable to infer that the material sought exists and that it is relevant to an issue, though its content is unknown, it will almost invariably be logically the case that such a chance exists, even though it might be thought to be unlikely; seeking that material seems to be a legitimate forensic purpose, providing that the factual issues and the character of the material sought are

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Criminal Procedure

s 222

[2-s 222.30]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 222

precisely identified: Roads and Traffıc Authority of NSW v Conolly (2003) 57 NSWLR 310; 38 MVR 444; [2003] NSWSC 327; BC200301853 at [12]; Frugtniet v Garbutt [2003] NSWSC 770; BC200304815 at [39]–[40]. The production of documents intended to be used solely to impeach the credit of a witness may be a legitimate forensic purpose: Franklin v Commissioner of Police [2018] NSWSC 310; BC201801667 at [60]. A legitimate forensic purpose may arise with respect to a document even if the document itself would be inadmissible in evidence in proceedings: Franklin at [63]. [2-s 222.35] Complaints against police Section 170 of the Police Act 1990 provides that, subject to certain exceptions, any document brought into existence for the purposes of Part 8A of that Act (dealing with complaints about conduct of police officers) is not admissible in evidence in any proceedings. That section does not make the information which those documents contain privileged from disclosure and, provided a legitimate forensic purpose is demonstrated, access to such documents may be granted where produced in answer to a subpoena: Saleam v R, above, at NSWLR 21–2 (a decision concerning s 59 Police Regulation (Allegations of Misconduct) Act 1978, the predecessor to s 170 Police Act). [2-s 222.40] Sexual assault communications privilege Sections 295–306 at [2-s 295] and following of the Criminal Procedure Act provide for sexual assault communications privilege which extends to pre-trial procedures including subpoenas. Those provisions were enacted (initially as Part 13 of the Criminal Procedure Act) to overcome the decision in R v Young (1999) 46 NSWLR 681; 107 A Crim R 1; [1999] NSWCCA 166; BC9903755; (1999) 6 Crim LN 55 [1028].

[2-s 223] Time for service of subpoenas 223 (1) A subpoena must be served within a reasonable time and at least 5 days before the last day on which it must be complied with. (2) A registrar may, on application by the party concerned, permit a subpoena to be served later than the time permitted by subsection (1). The later time must be endorsed on the subpoena by the registrar. (3) A subpoena may be served by delivering a copy of the subpoena to the person named or in any other manner prescribed by the rules. COMMENTARY ON SECTION 223 Law Part Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Service of subpoenas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 223.0] Law Part Code

[2-s 223.0] [2-s 223.1]

The Law Part Code for s 223(2) is 51542.

[2-s 223.1] Service of subpoenas concerning service of subpoenas.

See r 6.4 of the Local Court Rules 2009 at [2-9665]

[2-s 224] Conduct money 224 Unless a court otherwise orders, a subpoena issued at the request of a party other than a prosecutor who is a public officer or a police officer is not to require the person named to attend or produce any document or thing on any day on which his or her attendance is required unless an amount prescribed by the rules for the expenses of

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[2-s 226.5]

CRIMINAL PROCEDURE ACT 1986

complying with the subpoena in relation to that day is paid or tendered to the person at the time of service of the subpoena or not later than a reasonable time before that day. [s 224 am Act 68 of 2004 s 3 and Sch 6[7], opn 6 July 2004]

COMMENTARY ON SECTION 224 Conduct money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 224.1] Conduct money conduct money.

[2-s 224.1]

See r 6.5 of the Local Court Rules 2009 at [2-9670] concerning

[2-s 225] Limits on obligations under subpoenas 225 The person named is not required to produce any document or thing if: (a) it is not specified or sufficiently described in the subpoena, or (b) the person named would not be required to produce the document or thing on a subpoena for production in the Supreme Court. COMMENTARY ON SECTION 225 Specificity and sufficient description in subpoena . . . . . . . . . . . . . . . . [2-s 225.1] Specificity and sufficient description in subpoena

[2-s 225.1]

See [2-s 222.10].

[2-s 226] Production by non-party 226 (1) If the person named in a subpoena for production is not a party to the proceedings, the subpoena is, unless a court otherwise orders, to permit the person to produce the document or thing to the court specified in the subpoena not later than the day before the first day on which the person’s attendance is required, instead of attending and producing the document or thing as required by the subpoena. (2) The rules may make provision for or with respect to the production of documents or things produced to a court under subsection (1), and the return of the document or thing, and any related matters. (3) Nothing in this Part affects the operation of Division 1 of Part 4.6 of the Evidence Act 1995 (Requests to produce documents or call witnesses). COMMENTARY ON SECTION 226 Evidence Act 1995 provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 226.1] [2-s 226.5]

[2-s 226.1] Evidence Act 1995 provisions Nothing in this part affects the operation of ss 166–169 Evidence Act 1995 at [3-s 166]–[3-s 169] which provide for requests to produce documents or call witnesses: s 226(3). [2-s 226.5] Rules See r 6.6 of the Local Court Rules 2009 at [2-9675] for rules made for the purpose of s 226(2).

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Criminal Procedure

s 226

[2-s 227]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 227

[2-s 227] Subpoena may be set aside 227 (1) A court may, on application by the person named in a subpoena, set aside the subpoena wholly or in part. (2) Notice of an application under this section is to be filed and served as prescribed by the rules on the party on whose request, or by whom, the subpoena was issued. COMMENTARY ON SECTION 227 Law Part Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application to set aside a subpoena . . . . . . . . . . . . . . . . . . . . . . . . . . . . Setting aside wholly or in part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 227.0] Law Part Code

[2-s 227.0] [2-s 227.1] [2-s 227.5] [2-s 227.10]

The Law Part Code for s 227(1) is 51543.

[2-s 227.1] Application to set aside a subpoena A person subpoenaed may move to set the subpoena aside, in whole or part, upon the ground that it was improperly issued and an abuse of the power to compel production of documents. Such a case is where the subpoena is used for discovery and the person to whom the subpoena is addressed will have to make a judgment as to which of his documents relate to issues between the parties. It is oppressive to place upon a stranger the obligation to form a judgment as to what is relevant to the issue joined in proceedings to which he is not a party. It is an abuse to use a subpoena, even to a party, to obtain discovery: Commissioner for Railways v Small (1938) 38 SR (NSW) 564; 55 WN (NSW) 215 at 574–5; Environment Protection Authority v Waight (No 2) (1999) 109 A Crim R 288; New South Wales Commisioner of Police v Tuxford [2002] NSWCA 139; BC200202538 at [19]. The terms of a subpoena may be so wide as to be oppressive, not because it is being used for discovery, but because it imposes an onerous task on a stranger to collect and produce documents many of which can have no relevance to the litigation: National Employers Mutual General Association Ltd v Waind [1978] 1 NSWLR 372 at 382. The issue of a subpoena may involve an abuse of power in other ways — if it were not sought for the purpose of the litigation but for some spurious purpose. A witness might argue that documents must be sought for some undefined spurious reason, as they have no conceivable relation to the proceedings: National Employers Mutual General Association Ltd v Waind, above at 382. See also Botany Bay Instrumentation and Control Pty Ltd v Stewart [1984] 3 NSWLR 98. See r 6.7 of the Local Court Rules 2009 at [2-9680] for rules made for the purpose of s 227(2). [2-s 227.5] Setting aside wholly or in part Section 227(1) enables a Local Court to set aside a subpoena wholly or in part. Previously, the general rule was that the subpoena was to be considered as a whole: Anderson v R (NSWCCA, Gleeson CJ, 12 October 1989, unreported, BC8901598) at 3 per Gleeson CJ applying Commissioner for Railways v Small (1938) 38 SR (NSW) 564; 55 WN (NSW) 215 at 573 and Finnie v Dalglish (1982) 1 NSWLR 400 at 407–8. [2-s 227.10] Costs Section 227 does not empower the Local Court to order costs of an application to set aside a subpoena. It is probable that the Local Court has no implied power to order costs on such an application in criminal proceedings. Darcey v Pre-Term Foundation Clinic [1983] 2 NSWLR 497 must now be read subject to Grassby v R (1989) 168 CLR 1; 87 ALR 618; BC8902704; R v Mosely (1992) 28 NSWLR 735; 65 A Crim R 542; BC9203074 at NSWLR 739; Director of Public Prosecutions v Deeks (1994) 34 NSWLR 523; 74 A Crim R 85; BC9404935 at NSWLR 531–3 and Director of Public Prosecutions v Boykin (NSWSC, Wood J, 21 June 1994, unreported, BC9405141). This conclusion is reinforced by s 212(1) at [2-s 212] which provides that a court may award costs in criminal proceedings only in accordance with the Criminal Procedure Act 1986.

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CRIMINAL PROCEDURE ACT 1986

[2-s 228.10]

[2-s 228] Inspection of subpoenaed documents and things 228 (1) A party may, if a court so orders: (a) inspect documents or things produced in compliance with a subpoena, and (b) take copies of any documents so inspected. (2) Any such order may be made on such terms and conditions as the court thinks fit. (3) A registrar may exercise the function of a court to make an order under this section unless: (a) the court otherwise orders, or (b) a party, the person named in the subpoena or a person claiming privilege in respect of the document has notified the court in the manner prescribed by the rules that the party or person objects to the making of an order under this section. COMMENTARY ON SECTION 228 Law Part Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Objection to production or access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inspection of document on terms and conditions . . . . . . . . . . . . . . . . Implied undertaking to court upon grant of access . . . . . . . . . . . . . . . Return of documents and things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 228.0] Law Part Code

[2-s 228.0] [2-s 228.1] [2-s 228.5] [2-s 228.10] [2-s 228.15]

The Law Part Code for s 228(1) is 56502.

[2-s 228.1] Objection to production or access See [2-s 222.30] concerning legitimate forensic purpose. See [2-s 222.20] concerning legal professional privilege/client legal privilege. See [2-s 222.25] concerning public interest immunity. If documents are produced on subpoena, and objection is taken to their being inspected, inspection should not be permitted unless and until the party who procured the issue of the subpoena identifies a legitimate forensic purpose. In that context it is said that a party is not entitled to go on a fishing expedition, nor should the court do so: New South Wales Commissioner of Police v Tuxford [2002] NSWCA 139; BC200202538 at [20]. A person is not entitled to procure the issue of a subpoena for the purpose of fishing, that is, endeavouring not to obtain evidence to support his case, but to discover whether he has a case at all or to discover the nature of the case of the defendant. There must be something beyond speculation, some common ground for belief that takes the case beyond a mere fishing expedition: Tuxford, above, at [27]. Rule 6.8 of the Local Court Rules 2009 at [2-9685] provides for notification for the purposes of s 228(3). [2-s 228.5] Inspection of document on terms and conditions Where a claim of public interest immunity is made, inspection by the legal representatives of the parties should not be allowed unless and until the claim for immunity has been decided and rejected by the court: Commonwealth v Northern Land Council (1993) 176 CLR 604 at 620, 638; 112 ALR 409; BC9303584; Jackson v Wells (1985) 5 FCR 296 at 307; 59 ALR 281; Seymour v Price (FCA, French, O’Connor and North JJ, 8 September 1998, unreported, BC9805031) at 8–10. [2-s 228.10] Implied undertaking to court upon grant of access Where access is granted to documents produced under subpoena, access is subject to an implied undertaking to the court not to disclose them for any purpose other than in relation to the litigation — the undertaking extends not merely to the documents themselves, but also to copies of the documents and information derived from the documents: McCabe v BAT Aust Services Ltd [2002] VSC 150; BC200202143 at [15]–[16], applying Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10; 128 ALR 391; BC9506416 and Ainsworth v Hanrahan (1991) 25 NSWLR 155; see also Moage Ltd v Jagelman

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Criminal Procedure

s 228

[2-s 228.10]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 228

(2002) 43 ACSR 173; [2002] NSWSC 953; BC200206072 at [11]; Groves, “The Implied Undertaking Restricting the Use of Material Obtained During Legal Proceedings” (2003) 23 Australian Bar Review 314. The implied undertaking is an endeavour to balance the intrusion into privacy by the compulsory production of documents necessary to do justice with maintenance of privacy otherwise: Blanch v Deputy Commissioner of Taxation (2004) 58 ATR 113; [2004] NSWCA 461; BC200408610 at [14]. The content of the implied undertaking is that the party granted access will not make the contents of the documents public, communicate the contents of the documents to any stranger to the proceedings or use the documents or copies of them for any collateral purpose, that is, a purpose collateral to the purpose which production of the documents is intended to serve: Hammersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 at 334; BC9802072. Once a document has been read in open court, it loses its confidentiality and loses the protection of the undertaking: Moage Ltd v Jagelman, above, at [12]. The principle that is applied when a court decides whether or not to release or to permit documents, which have been produced to the court on subpoena and have not been read out in open court, is that the release of the documents will not be allowed save in special circumstances and when such use will not occasion any injustice to the person who produced the documents under subpoena. Deciding whether special circumstances have been made out, involves a balancing exercise that takes into account the particular nature of the material produced, the policy underlying the implied undertaking as to using the documents for the purpose of the proceedings in which they were produced, and any other relevant factors. The exercise should also asks whether the needs of justice are better served by relieving from or maintaining the undertaking: Premier Travel Pty Ltd v Satellite Centres of Australia Pty Ltd [2004] NSWSC 864; BC200406096 at [2]. [2-s 228.15] Return of documents and things See r 6.9 of the Local Court Rules 2009 at [2-9690] for procedures concerning return of documents and things produced on subpoena.

[2-s 229] Action that may be taken if person does not comply with subpoena 229 (1) A party who requested, or issued, a subpoena may apply to the court for the issue of a warrant under Part 4 for the arrest of the person named if the person named has not complied with the subpoena. (2) The court may issue the warrant if satisfied that: (a) the person named has not complied with the subpoena, and (b) the requirements of this Part for subpoenas were complied with and no just or reasonable excuse has been offered for the failure to comply. (3) A Magistrate or an authorised officer before whom a person is brought on arrest on a warrant issued under this section may, if bail is not dispensed with or granted, issue a warrant: (a) committing the person to a correctional centre or other place of security, and (b) ordering the person to be brought before a court at the date, time and place specified in the order. (4) The Magistrate or authorised officer must give notice of the date, time and place set to the party who issued or requested the subpoena. Note. Division 2 of Part 4 sets out procedures for arrest warrants generally. COMMENTARY ON SECTION 229 Law Part Codes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[2-s 229.0]

CRIMINAL PROCEDURE ACT 1986

Issue of warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 231] [2-s 229.5]

[2-s 229.0] Law Part Codes The Law Part Code for s 229(1) is 51544. The Law Part Code for s 229(2) is 51545. The Law Part Code for s 229(3)(a) is 51546. [2-s 229.5] Issue of warrant Where a magistrate issued a warrant for the arrest of a police officer for an alleged failure to comply with a subpoena, without an application being made by the party issuing the subpoena — it was held that the warrant was not issued according to law and was a nullity: Peters v Asplund [2008] NSWSC 1061; BC200808827; 15 Crim LN 131 [2457]. The warrant was also bad because the person named in the warrant was not the person named in the subpoena. The court stressed that before a warrant could be issued there had to be a strict compliance with the provisions of the Act both in the issuing of the subpoena and in the issuing of the warrant.

[2-s 230] Application of Bail Act 2013 230 (1) A court may make a bail decision under the Bail Act 2013 in respect of a person brought before the court after having been arrested under a warrant referred to in section 229. (2) The Bail Act 2013 applies to the person as if: (a) the person were accused of an offence, and (b) the proceedings in which the person is required to be examined or produce a document or thing were proceedings for that offence. (3) Bail may be granted for the period between: (a) the person’s being brought before a court under a warrant for the purpose of being examined as a witness or producing a document or thing, and (b) the person’s being examined as a witness or producing the document or thing. [s 230 subst Act 5 of 2014 Sch 2 item 2.15[4], opn 20 May 2014]

[2-s 231] Action that may be taken if witness refuses to give evidence 231 (1) This section applies to a person who: (a) appears before a court on a subpoena, or (b) appears before a court on bail after being arrested under a warrant after failing to comply with a subpoena, or (c) is brought before a court under a warrant of commitment after being so arrested, to give evidence, or produce any document or thing, or both. (2) The court may order that a warrant be issued for the committal of a person to whom this section applies to a correctional centre for a period not exceeding 7 days if the person refuses, without offering any just cause or reasonable excuse: (a) to be examined on oath, or (b) to take an oath, or (c) to answer, after having taken an oath, any questions that are put to the person concerning the subject-matter of the proceedings, or (d) to produce the document or thing. Note. Division 3 of Part 4 sets out procedures for warrants of commitment generally.

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Criminal Procedure

s 231

[2-s 231]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 231

(3) However, the person is to be released before the expiration of those 7 days if the person: (a) consents to be examined on oath and to answer questions concerning the subject-matter of the proceedings, or (b) produces the document or thing. (4) This Part applies in relation to a subpoena to the exclusion of section 194 (Witnesses failing to attend proceedings) of the Evidence Act 1995. (5) In this section, a reference to a person who appears before a court on bail after being arrested under a warrant after failing to comply with a subpoena includes a reference to a person in respect of whom bail has been dispensed with after being so apprehended. [subs (5) am Act 5 of 2014 Sch 2 item 2.15[5], opn 20 May 2014]

COMMENTARY ON SECTION 231 Law Part Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 231.0] Law Part Code

[2-s 231.0]

The Law Part Code for s 231(2) is 51547.

[2-s 232] Rules relating to subpoenas 232 The Rule Committee may make rules for or with respect to the following matters: (a) the form of subpoenas, (b) the production of documents or things to the registrar and the inspection of the documents or things, (c) the return of subpoenas to parties, (d) conduct money, (e) hearing of objections to subpoenas. COMMENTARY ON SECTION 232 Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 232.1]

[2-s 232.1] Rules Part 6 of the Local Court Rules 2009 at [2-9650] and following makes provision concerning subpoenas.

PART 4 — WARRANTS DIVISION 1 — PRELIMINARY

[2-s 233] Application 233 In addition to warrants issued in, or in connection with, proceedings to which this Part applies because of section 170, this Part applies to warrants that may be issued under Part 3.

[2-s 234] Definition 234 In this Part: named person means the person named in a warrant.

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[2-s 237]

CRIMINAL PROCEDURE ACT 1986

DIVISION 2 — ARREST WARRANTS

[2-s 235] When arrest warrants may be issued for accused persons 235

A warrant to arrest a person may be issued on any day of the week.

COMMENTARY ON SECTION 235 Law Part Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 235.0] Law Part Code

[2-s 235.0]

The Law Part Code for this section is 51548.

[2-s 236] Form of arrest warrant 236 (1) A warrant to arrest a person must be in the form prescribed by the rules. (2) Without limiting subsection (1), the warrant must be directed to a person permitted by this Division to execute the warrant and must do the following things: (a) name or describe the person to be arrested, (b) briefly state the subject-matter of the court attendance notice or reason for the arrest, (c) order that the person be arrested and brought before the Judge, Magistrate or authorised officer to be dealt with according to law or to give evidence or produce documents or things, as appropriate. [subs (2) am Act 107 of 2008 s 3 and Sch 7, opn 8 Dec 2008]

(3) A warrant to arrest a person must be signed by the person issuing it and sealed with the seal of the court to which the person issuing it is attached. [subs (3) am Act 40 of 2003 s 3 and Sch 1.10[6], opn 7 July 2003]

(4) However, an authorised officer may sign a warrant issued under this Act if a Judge or Magistrate has directed in writing that the warrant be issued. [subs (4) am Act 107 of 2008 s 3 and Sch 7, opn 8 Dec 2008]

COMMENTARY ON SECTION 236 Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 236.5]

[2-s 236.5] Warrants See Pt 7 of the Local Court Rules 2009 at [2-9740] and following concerning warrants for the arrest or commitment of a person.

[2-s 237] Duration of arrest warrants 237 (1) A warrant to arrest an accused person need not be returnable at any particular time. If it is not, the warrant continues in force until it expires. [subs (1) am Act 107 of 2006 s 3 and Sch 1, opn 18 Dec 2009]

(1A) A warrant to arrest an accused person in respect of an offence specified in the Table below expires at the end of the period specified in the Table in relation to the offence. Offence Indictable offences (punishable by imprisonment for life or 25 years or more)

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Period 50 years

Criminal Procedure

s 237

[2-s 237]

s 237

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Offence Indictable offences (punishable by imprisonment for less than 25 years and not less than 5 years) Indictable offences not punishable by imprisonment for 5 years or more (where the accused person is not a child) Summary offences (where the accused person is not a child) Indictable offences not punishable by imprisonment for 5 years or more (where the accused person is a child) Summary offences (where the accused person is a child)

Period 30 years 15 years 10 years 10 years 5 years

[subs (1A) insrt Act 107 of 2006 s 3 and Sch 1, opn 18 Dec 2009]

(1B) A warrant issued for the arrest of a convicted person to bring that person before a court for sentencing expires at the end of 30 years after it is issued. [subs (1B) insrt Act 107 of 2006 s 3 and Sch 1, opn 18 Dec 2009]

(1C) Nothing in subsection (1A) or (1B) prevents a new warrant for arrest from being issued in respect of the same offence or offences as a previous arrest warrant. [subs (1C) insrt Act 107 of 2006 s 3 and Sch 1, opn 18 Dec 2009]

(2) A warrant to arrest a witness must be returnable at a stated date, time and place. (3) The warrant to arrest a witness may be returned and cancelled, and a further warrant may be obtained, if the witness is not arrested before the warrant must be returned.

[2-s 238] Persons who may execute arrest warrant 238 (1) A warrant to arrest a person must be directed to: (a) a named police officer, or (b) a person authorised by law to execute a warrant to arrest, or (c) the senior police officer of the area where the court is located, or (d) the senior police officer and all other police officers, or (e) generally all police officers. (2) A warrant to arrest a person may be carried out by arresting the accused or witness at any place in New South Wales.

[2-s 239] Procedure after arrest 239 A person who is arrested under a warrant must be brought before a Judge, a Magistrate or an authorised officer as soon as practicable. [s 239 am Act 107 of 2008 s 3 and Sch 7, opn 8 Dec 2008]

COMMENTARY ON SECTION 239 Procedure after arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 239.1] Procedure after arrest concerning procedure after arrest.

[2-s 239.1]

See r 7.5 of the Local Court Rules 2009 at [2-9760]

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CRIMINAL PROCEDURE ACT 1986

[2-s 242]

[2-s 240] Revocation of warrants 240 (1) Any warrant to arrest a person may be revoked by a Judge, Magistrate or authorised officer if: (a) the party who requested the warrant applies to the Judge, Magistrate or authorised officer to revoke the warrant, or (b) the Judge, Magistrate or authorised officer is of the opinion that it is appropriate to do so. [subs (1) am Act 99 of 2002 s 3 and Sch 1.2[8] and [9], opn 7 July 2003; Act 107 of 2008 s 3 and Sch 7, opn 8 Dec 2008]

(2) A Judge, Magistrate or authorised officer may revoke a warrant even though it was issued by another Judge, Magistrate or authorised officer. A Magistrate may not revoke a warrant issued by a Judge. An authorised officer may not revoke a warrant issued by a Judge or Magistrate. [subs (2) subst Act 107 of 2008 s 3 and Sch 7, opn 8 Dec 2008] [s 240 am Act 99 of 2002 s 3 and Sch 1.2[8], opn 7 July 2003]

COMMENTARY ON SECTION 240 Law Part Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 240.0] Law Part Code

[2-s 240.0]

The Law Part Code for s 240(1)(a) is 51549.

DIVISION 3 — WARRANTS OF COMMITMENT

[2-s 241] Power to commit person to correctional centre subject to Bail Act 2013 241 A power to issue a warrant to commit a person to a correctional centre or other place under this Act is subject to the provisions of the Bail Act 2013. Note. The Bail Act 2013 sets out the circumstances when bail must or may be granted or may be dispensed with by a court. [s 241 am Act 5 of 2014 Sch 2 item 2.15[6], [7], opn 20 May 2014]

COMMENTARY ON SECTION 241 Law Part Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 241.0] Law Part Code

[2-s 241.0]

The Law Part Code for this section is 51550.

[2-s 242] Form of warrants of commitment 242 (1) A warrant to commit a person must be in the form prescribed by the rules. (2) Without limiting subsection (1), the warrant must be directed to a person permitted by the rules to execute the warrant and must do the following things: (a) name or describe the person to be committed, (b) direct and authorise the person to take and safely convey the named person to the correctional centre or other place, (c) direct the person to deliver the named person to the officer in charge of the place, (d) direct and authorise the officer in charge of the place to receive the named person in custody and to keep the named person in custody for the period

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Criminal Procedure

s 242

[2-s 242]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 242

specified, or in the circumstances specified, or until the named person is otherwise lawfully released from custody. (3) A warrant to commit a witness to a correctional centre, lock-up or a place of security must not require the witness to be kept in custody for more than 7 days. (4) An authorised officer may sign a warrant to commit a person if a Judge or Magistrate has directed in writing that the warrant be issued. [subs (4) am Act 107 of 2008 s 3 and Sch 7, opn 8 Dec 2008]

COMMENTARY ON SECTION 242 Warrants of commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 242.5] Warrants of commitment [2-9755] and [2-9765].

[2-s 242.5]

See rr 7.4 and 7.6 of the Local Court Rules 2009 at

[2-s 243] Procedure for taking person to correctional centre or other place 243 (1) The person to whom a warrant issued under this Division to commit a person to a correctional centre or other place is directed must take the named person to the correctional centre or other place specified in the warrant and deliver the named person to the person in charge of the place. (2) The person executing the warrant must obtain a receipt for the delivery of the named person setting out the condition of the named person when delivered into the custody of the person in charge.

[2-s 244] Defects in warrants of commitment 244 A warrant to commit an accused person to a correctional centre or other place may not be held void because of any defect in the warrant if the warrant states that: (a) the accused person has been convicted or ordered to do or abstain from doing any act or thing required to be done or not done, and (b) there is a good and valid conviction or order to sustain the warrant. PART 5 — SUMMARY JURISDICTION OF SUPREME COURT AND OTHER HIGHER COURTS DIVISION 1 — JURISDICTION

[2-s 245] Summary jurisdiction of Supreme Court 245 (1) If, under any Act, proceedings may be taken before the Supreme Court in its summary jurisdiction, the Court has jurisdiction to hear and determine those proceedings in a summary manner. (2) The summary jurisdiction conferred on the Supreme Court by subsection (1), or under any other Act on any other court to which this Part applies, is to be exercised by a Judge sitting alone, and not otherwise. Note. Section 170 sets out the courts to which this Part applies.

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[2-s 247]

CRIMINAL PROCEDURE ACT 1986

COMMENTARY ON SECTION 245 Summary jurisdiction of Supreme Court . . . . . . . . . . . . . . . . . . . . . . . . Other courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 245.1] [2-s 245.5]

[2-s 245.1] Summary jurisdiction of Supreme Court The Supreme Court (Summary Jurisdiction) Act 1967 has been repealed. The provisions in Ch 4 Pt 5 of the present Act now govern proceedings before the Supreme Court in its summary jurisdiction. [2-s 245.5] Other courts See s 170(3) at [2-s 170] for the list of courts to which the provisions in Ch 4 Pt 5 apply.

DIVISION 2 — APPEARANCE OF ACCUSED PERSONS

[2-s 246] Orders for appearance or apprehension of accused persons 246 (1) A prosecutor may apply for an order: (a) that a person alleged in the application to have committed an offence that may be dealt with summarily by the court must appear at a time and place specified in the order to answer to the offence charged in the order, or (b) for the apprehension of any such person for the purpose of being brought before a Judge to answer to the offence charged in the order. (2) The application must be in accordance with the rules. (3) The order may be made in the absence of one or both parties. (4) An order for the apprehension of a person may be made whether or not an order has been made under subsection (1)(a). (5) An order for the apprehension of a person: (a) must be addressed to all police officers, and (b) may be addressed to any other person specified in the order, and (c) may be executed by any police officer or by any person to whom it is addressed at any place at which, had the offence specified in the order been committed at that place, that offence would be triable in the court. (6) A Judge before whom a person apprehended under an order made under this section is brought may, if bail is not dispensed with or granted, issue a warrant: (a) committing the person to a correctional centre or other place of security, and (b) ordering the person to be brought before a court at the date, time and place specified in the order. COMMENTARY ON SECTION 246 Law Part Codes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 246.0]

[2-s 246.0] Law Part Codes The Law Part Code for s 246(1)(a) is 51551. The Law Part Code for 246(1)(b) is 51552. The Law Part Code for s 246(6) is 51553.

[2-s 247] Notices to be given to prosecutor 247 (1) The registrar must, as soon as practicable after the making of any order under section 246, cause notice of the order to be given to the prosecutor.

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Criminal Procedure

s 247

[2-s 247]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 247

(2) The registrar must, as soon as practicable after a notice of a requirement to appear is given or sent (as referred to in section 33 of the Bail Act 2013) to a person referred to in section 246, cause a copy of the notice to be given to the prosecutor. [subs (2) am Act 5 of 2014 Sch 2 item 2.15[8], opn 20 May 2014]

DIVISION 2A — CASE MANAGEMENT PROVISIONS AND OTHER PROVISIONS TO REDUCE DELAYS IN PROCEEDINGS [Div 2A insrt Act 10 of 2012 Sch 1[3], opn 30 Apr 2012]

[2-s 247A] Application 247A This Division applies to proceedings before the Supreme Court, or the Land and Environment Court, in its summary jurisdiction. COMMENTARY ON SECTION 247A Scope of Div 2A of Pt 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 247A.5] Land and Environment Court Practice Note . . . . . . . . . . . . . . . . . . . . . [2-s 247A.10] [2-s 247A.5] Scope of Div 2A of Pt 5 Division 2A of Pt 5 (ss 247A–247Y) operates to provide the Supreme Court (in its summary jurisdiction) and the Land and Environment Court with pretrial management powers and procedures similar to (but not identical with) those contained in ss 134–149F, at [2-s 134]ff, applicable to criminal proceedings on indictment in the Supreme and District Courts. A significant point of distinction between the two sets of provisions is the express provision for case management of sentencing hearings in the summary jurisdiction of the Supreme Court and the Land and Environment Court: s 247G(3)(e), (g); s 247H(6)(b); s 247H(9)(a); s 247K(k); s 247V and s 247W(2) and (4). Sections 134–149F relate entirely to pretrial case management. In the Agreement in Principle speech for the Criminal Procedure Amendment (Summary Proceedings Case Management) Bill 2011 (Legislative Assembly, 24 November 2011) the Attorney General, Mr Smith, observed that the Bill: aims to reduce unnecessary delay and costs in the preparation for, and conduct of, hearing and sentencing proceedings in summary matters in the higher courts. The case management provisions were considered in Sutherland Shire Council v Benedict Industries Pty Ltd [2013] NSWLEC 121; BC201311573. [2-s 247A.10] Land and Environment Court Practice Note Following the commencement of Div 2A of Pt 5, the Chief Judge of the Land and Environment Court issued a Practice Note (commencing on 12 November 2012) applicable to Class 5 proceedings — see [28-22,005].

[2-s 247B] Purpose 247B (1) The purpose of this Division is to reduce delays in proceedings before the court in its summary jurisdiction by: (a) requiring certain preliminary disclosures to be made by the prosecution and the defence before the proceedings are heard, and (b) enabling the court to undertake case management where suitable in those proceedings, whether on its own motion or on application by a party to the proceedings. (2) Case management measures that are available to the court under this Division include the ordering of preliminary hearings, preliminary conferences and further

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CRIMINAL PROCEDURE ACT 1986

[2-s 247E]

preliminary disclosure. The court has a discretion in determining which (if any) of those measures are suitable in the proceedings concerned.

[2-s 247C] Definitions 247C (1) In this Division: appearance order means an order for the appearance or apprehension of a person made under section 246. court means the Supreme Court or the Land and Environment Court. preliminary conference means a conference held under section 247H. preliminary hearing means a hearing held under section 247G. presiding Judge means the judge presiding at the hearing of the proceedings. (2) In this Division, a reference to the defendant is to be read as including a reference to the Australian legal practitioner representing the defendant.

[2-s 247D] Directions for conduct of proceedings 247D At the first mention of proceedings, the court is to give directions with respect to the future conduct of the proceedings, including a direction as to the time by which notice of the prosecution case is to be given under section 247E and notice of the defence response is to be given under section 247F.

[2-s 247E] Notice of prosecution case to be given to defendant 247E (1) The prosecutor is to give to the defendant notice of the prosecution case that includes the following: (a) a copy of the application for any appearance order relating to the defendant, (b) a statement of facts, (c) a copy of the affidavit or statement (whichever is applicable) of each witness whose evidence the prosecutor proposes to adduce at the hearing of the proceedings, (c1) in accordance with Division 3 of Part 4B of Chapter 6, a copy of any recorded statement of a witness that the prosecutor proposes to adduce at the hearing of the proceedings, (d) a copy of each document, evidence of the contents of which the prosecutor proposes to adduce at the hearing of the proceedings, (e) if the prosecutor proposes to adduce evidence at the hearing of the proceedings in the form of a summary, a copy of the summary or, where the summary has not yet been prepared, an outline of the summary, (f) a copy of any exhibit that the prosecutor proposes to adduce at the hearing of the proceedings, (g) a copy of any chart or explanatory material that the prosecutor proposes to adduce at the hearing of the proceedings, (h) if any expert witness is proposed to be called at the hearing by the prosecutor, a copy of each report by the witness that is relevant to the case, (i) a copy of any information, document or other thing provided by authorised officers to the prosecutor, or otherwise in the possession of the prosecutor, that may reasonably be regarded as relevant to the prosecution case or the defence case, and that has not otherwise been disclosed to the defendant,

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Criminal Procedure

s 247E

[2-s 247E]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 247E

(j) a list identifying: (i) any information, document or other thing of which the prosecutor is aware and that would reasonably be regarded as relevant to the case but that is not in the prosecutor’s possession and is not in the defendant’s possession, and (ii) the place at which the prosecutor believes the information, document or other thing is situated, (k) a copy of any information in the possession of the prosecutor that is relevant to the reliability or credibility of a prosecution witness. [subs (1) am Act 83 of 2014 Sch 1[17], opn 1 June 2015]

(2) The regulations may make provision for or with respect to the form and content of a statement of facts for the purposes of subsection (1)(b). (3) In this section, an authorised officer includes the following: (a) a police officer, (b) any person authorised by an Act in respect of which proceedings may be brought before the Supreme Court or the Land and Environment Court in its summary jurisdiction to investigate any contravention, or suspected contravention, of that Act. COMMENTARY ON SECTION 247E Operation of section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 247E.5]

[2-s 247E.5] Operation of section The operation of s 247E (and other provisions in the Division) were considered in Sutherland Shire Council v Benedict Industries Pty Ltd [2013] NSWLEC 121; BC201311573.

[2-s 247F] Notice of defence response to be given to prosecutor 247F The defendant is to give the prosecutor notice of the defence response that includes the following: (a) the name of any Australian legal practitioner proposed to appear on behalf of the defendant at the hearing of the proceedings, (b) notice of any consent that the defendant proposes to give at the hearing of the proceedings under section 190 of the Evidence Act 1995 in relation to each of the following: (i) a statement of a witness that the prosecutor proposes to adduce at the hearing of the proceedings, (ii) a summary of evidence that the prosecutor proposes to adduce at the hearing of the proceedings.

[2-s 247G] Preliminary hearings 247G (1) At the first mention of proceedings or at any other time, the court may order the prosecutor and the defendant to attend one or more preliminary hearings before the court. (2) During a preliminary hearing, the court may make such orders, determinations or findings, or give such directions or rulings, as it thinks appropriate for the efficient management and conduct of the proceedings.

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CRIMINAL PROCEDURE ACT 1986

[2-s 247H]

(3) Without limiting subsection (2), the court may take any or all of the following action under that subsection: (a) hear and determine an objection to any application for an appearance order prior to the commencement of a trial, (b) order the holding of a preliminary conference under section 247H, (c) order preliminary disclosure by the prosecutor or the defendant under section 247I, (d) give a direction under section 247M(3), (e) give a ruling or make a finding under section 192A of the Evidence Act 1995 as if the trial or sentencing hearing had commenced, (f) hear and determine a submission that the case should not proceed to trial prior to the commencement of the trial, (g) give a ruling on any question of law that might arise at the trial or sentencing hearing. (4) Despite any other provision of this Act, the court may make any order, determination or finding, or give any ruling, under this section on application by a party to the proceedings or on the court’s own initiative. (5) Any order, determination or finding made, or ruling given, by the court under this section is binding on the presiding Judge in the proceedings unless, in the opinion of the presiding Judge, it would not be in the interests of justice for the order, determination, finding or ruling to be binding. (6) Except with the leave of the court, a party to proceedings may not raise a relevant preliminary hearing matter if a preliminary hearing was held in the proceedings and: (a) the matter was not raised at the preliminary hearing, or (b) the matter was dealt with at the preliminary hearing. (7) A relevant preliminary hearing matter means: (a) an objection to an application for an appearance order, or (b) a question that was the subject of a ruling or finding under subsection (3)(e). (8) Except with the leave of the court, a party to proceedings may not raise a question of law that was the subject of a ruling under subsection (3)(g) if a preliminary hearing was held in the proceedings and the matter was dealt with at the preliminary hearing. (9) Leave is not to be granted under subsection (6) or (8) unless the court is of the opinion that it would be contrary to the interests of justice to refuse leave to raise the matter concerned.

[2-s 247H] Preliminary conferences 247H (1) At the first mention of proceedings or at any other time, the court may order that a preliminary conference is to be held so long as the time appointed for any such conference occurs after the proceedings have commenced. (2) The court may order the holding of a preliminary conference under this section on application of any party or on the court’s own initiative. (3) The court may make such an order only if the defendant will be represented by an Australian legal practitioner at the preliminary conference. (4) The purpose of the preliminary conference is to determine whether the defendant and the prosecutor are able to reach agreement regarding the evidence to be admitted at the trial or sentencing hearing. (5) The following persons must be present during the preliminary conference:

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Criminal Procedure

s 247H

[2-s 247H]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 247H

(a) the prosecutor, (b) the Australian legal practitioner representing the defendant. (6) A joint preliminary conference may be held in respect of 2 or more co-defendants, but only if: (a) in the case of a preliminary conference held before trial — the prosecution and each of the co-defendants concerned consent to the joint preliminary conference, or (b) in the case of a preliminary conference held before sentencing: (i) the defendant and each co-defendant have pleaded guilty to the offence or have been found guilty of the offence by the court, and (ii) the prosecution and each of the co-defendants concerned consent to the joint preliminary conference. (7) A requirement under this section that a person be present for the purposes of a preliminary conference is taken to be satisfied if the person is present or available by way of an audio visual link or audio link. (8) Within 7 days after the holding of a preliminary conference: (a) the prosecutor and the Australian legal practitioner who represented the defendant at the preliminary conference must complete a preliminary conference form, and (b) the prosecutor must file the preliminary conference form with the court. (9) The preliminary conference form: (a) is to indicate the areas of agreement and disagreement between the defendant and the prosecutor regarding the evidence to be admitted at the trial or sentencing hearing, and (b) is to be signed by the prosecutor and the Australian legal practitioner representing the defendant. (10) Except with the leave of the court, a party to proceedings may not object to the admission of any evidence at the hearing of the proceedings if the preliminary conference form indicates that the parties have agreed that the evidence is not in dispute. (11) Leave is not to be granted under subsection (10) unless the court is of the opinion that it would be contrary to the interests of justice to refuse leave.

[2-s 247I] Court may order preliminary disclosure in particular case 247I (1) After proceedings have been commenced, the court may make any or all of the following orders, but only if the court is of the opinion that it would be in the interests of justice to do so: (a) order that the prosecutor is to give to the defendant notice in accordance with section 247J, (b) order that the defendant is to give to the prosecutor notice of the defence response to the prosecution’s notice in accordance with section 247K, (c) order that the prosecution is to give to the defendant notice of the prosecution response to the defence response in accordance with section 247L. (2) The court may order preliminary disclosure under this section on the application of any party or on the court’s own initiative. (3) The court may order preliminary disclosure by the defendant only if the court is satisfied that the defendant will be represented by an Australian legal practitioner.

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CRIMINAL PROCEDURE ACT 1986

[2-s 247K]

(4) The court may limit preliminary disclosure to any specified aspect of the proceedings. (5) Preliminary disclosure required by an order under this section is to be made in accordance with a timetable determined by the court.

[2-s 247J] Prosecution disclosure

notice

—

court-ordered

preliminary

247J For the purposes of section 247I(1)(a), the prosecution’s notice is to contain the following: (a) the matters required to be included in the notice of the prosecution case under section 247E, (b) a copy of any information, document or other thing in the possession of the prosecutor that would reasonably be regarded as adverse to the credit or credibility of the defendant, (c) a list identifying the affidavits or statements of those witnesses who are proposed to be called at the hearing of the proceedings by the prosecutor. Note. The prosecutor is not required to include in a notice anything that has already been included in a brief of evidence in relation to the matter served on the defendant or that has otherwise been provided or disclosed to the defendant (see section 247U(1)).

[2-s 247K] Defence disclosure

response

—

court-ordered

preliminary

247K For the purposes of section 247I(1)(b), the notice of the defence response is to contain the following: (a) the matters required to be included in a notice under section 247F, (b) a statement, in relation to each fact set out in the statement of facts provided by the prosecutor, as to whether the defendant considers the fact is an agreed fact (within the meaning of section 191 of the Evidence Act 1995) or the defendant disputes the fact, (c) a statement, in relation to each matter and circumstance set out in the statement of facts provided by the prosecutor, as to whether the defendant takes issue with the matter or circumstance as set out, (d) notice as to whether the defendant proposes to dispute the admissibility of any proposed evidence disclosed by the prosecutor and the basis for the objection, (e) if the prosecutor disclosed an intention to adduce expert evidence at the hearing of the proceedings, notice as to whether the defendant disputes any of the expert evidence and which evidence is disputed, (f) a copy of any report, relevant to the proceedings, that has been prepared by a person whom the defendant intends to call as an expert witness at the hearing of the proceedings, (g) if the prosecutor disclosed an intention to adduce evidence at the hearing of the proceedings that has been obtained by means of surveillance, notice as to whether the defendant proposes to require the prosecutor to call any witnesses to corroborate that evidence and, if so, which witnesses will be required, (h) notice as to whether the defendant proposes to raise any issue with respect to the continuity of custody of any proposed exhibit disclosed by the prosecutor, (i) if the prosecutor disclosed an intention to tender at the hearing of the

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Criminal Procedure

s 247K

[2-s 247K]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 247K

proceedings any transcript, notice as to whether the defendant accepts the transcript as accurate and, if not, in what respect the transcript is disputed, (j) notice as to whether the defendant proposes to dispute the authenticity or accuracy of any proposed documentary evidence or other exhibit disclosed by the prosecutor, (k) notice of any significant issue the defendant proposes to raise regarding an application for an appearance order, severability of the charges or separate trials or sentencing proceedings for the charges, (l) notice of any consent the defendant proposes to give under section 184 of the Evidence Act 1995. Note. The defendant is not required to include in a notice anything that has already been provided or disclosed to the prosecutor (see section 247U(2)).

[2-s 247L] Prosecution response to court-ordered preliminary disclosure

defence

response

—

247L For the purposes of section 247I(1)(c), the notice of the prosecution response to the defence response is to contain the following: (a) if the defendant has disclosed an intention to adduce expert evidence at the hearing of the proceedings, notice as to whether the prosecutor disputes any of the expert evidence and, if so, in what respect, (b) if the defendant has disclosed an intention to tender any exhibit at the hearing of the proceedings, notice as to whether the prosecutor proposes to raise any issue with respect to the continuity of custody of the exhibit, (c) if the defendant has disclosed an intention to tender any documentary evidence or other exhibit at the hearing of the proceedings, notice as to whether the prosecutor proposes to dispute the accuracy or admissibility of the documentary evidence or other exhibit, (d) notice as to whether the prosecutor proposes to dispute the admissibility of any other proposed evidence disclosed by the defendant, and the basis for the objection, (e) a copy of any information, document or other thing in the possession of the prosecutor, not already disclosed to the defendant, that might reasonably be expected to assist the case for the defence, (f) a copy of any information, document or other thing that has not already been disclosed to the defendant and that is required to be contained in the notice of the case for the prosecution.

[2-s 247M] Dispensing with formal proof 247M (1) If a fact, matter or circumstance was alleged in a notice required to be given to the defendant by the prosecutor in accordance with this Division and the defendant was required to give a defence response under section 247K but did not disclose in the response an intention to dispute or require proof of the fact, matter or circumstance, the court may order that: (a) a document asserting the alleged fact, matter or circumstance may be admitted at the hearing of the proceedings as evidence of the fact, matter or circumstance, and (b) evidence may not, without the leave of the court, be adduced to contradict or qualify the alleged fact, matter or circumstance.

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[2-s 247N]

CRIMINAL PROCEDURE ACT 1986

(2) If evidence was disclosed by the prosecution to the defendant in accordance with this Division and the defendant was required to give a defence response under section 247K but did not disclose in the response an intention to dispute the admissibility of the evidence and the basis for the objection, the court may, by order, dispense with the application of any one or more of the following provisions of the Evidence Act 1995 in relation to the adducing of the evidence at the hearing of the proceedings: (a) Division 3, 4 or 5 of Part 2.1, (b) Part 2.2 or 2.3, (c) Parts 3.2–3.8. (3) The court may, on the application of a party, direct that the party may adduce evidence of 2 or more witnesses in the form of a summary if the court is satisfied that: (a) the summary is not misleading or confusing, and (b) admission of the summary instead of evidence from the witnesses will not result in unfair prejudice to any party to the proceedings. (4) The court may, in a direction under subsection (3), require that one or more of the witnesses whose evidence is to be adduced in the form of a summary are to be available for cross-examination. (5) The opinion rule (within the meaning of the Evidence Act 1995) does not apply to evidence adduced in accordance with a direction under subsection (3). (6) The provisions of this section are in addition to the provisions of the Evidence Act 1995, in particular, section 190. (7) This section does not affect section 4(2) of the Evidence Act 1995. Note. Section 4(2) of the Evidence Act 1995 provides that the Act applies in proceedings relating to sentencing only if the court directs that the law of evidence apply in the proceedings.

[2-s 247N] Sanctions for disclosure requirements

non-compliance

with

preliminary

247N (1) Exclusion of evidence not disclosed The court may refuse to admit evidence in proceedings that is sought to be adduced by a party who failed to disclose the evidence to the other party in accordance with requirements for preliminary disclosure imposed by or under this Division. Note. The only evidence required from a defendant in the context of a preliminary disclosure is expert evidence (see section 247K(f)). Accordingly, such evidence may also be dealt with by the court under subsection (2).

(2) Exclusion of expert evidence where report not provided The court may refuse to admit evidence from an expert witness in proceedings that is sought to be adduced by a party if the party failed to give the other party a copy of a report by the expert witness in accordance with requirements for preliminary disclosure imposed by or under this Division. (3) Adjournment The court may grant an adjournment to a party if the other party seeks to adduce evidence in the proceedings that the other party failed to disclose in accordance with requirements for preliminary disclosure imposed by or under this Division and that would prejudice the case of the party seeking the adjournment. (4) Application of sanctions Without limiting the regulations that may be made under subsection (5), the powers of the court may not be exercised under this section to

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Criminal Procedure

s 247N

[2-s 247N]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 247N

prevent a defendant adducing evidence unless the prosecutor has complied with the requirements for preliminary disclosure imposed on the prosecution by or under this Division. (5) Regulations The regulations may make provision for or with respect to the exercise of the powers of a court under this section (including the circumstances in which the powers may not be exercised).

[2-s 247O] Disclosure requirements are ongoing 247O (1) The obligation to comply with the requirements for preliminary disclosure imposed by or under this Division continues until any of the following happens: (a) the defendant is acquitted of the charges to which the proceedings relate, (b) the prosecution is terminated, (c) the defendant is sentenced for the offence to which the proceedings relate. (2) Accordingly, if any information, document or other thing is obtained or anything else occurs after preliminary disclosure is made by a party to the proceedings that would have affected that preliminary disclosure had the information, document or thing been obtained or the thing occurred before preliminary disclosure was made, the information, document, thing or occurrence is to be disclosed to the other party to the proceedings as soon as practicable.

[2-s 247P] Court may waive requirements 247P (1) A court may, by order, waive any of the requirements that apply under this Division. (2) The court may make such an order on its own initiative or on the application of the prosecutor or the defendant. (3) An order may be made subject to such conditions (if any) as the court thinks fit.

[2-s 247Q] Requirements as to notices 247Q (1) A notice under this Division is to be in writing. (2) Any notice purporting to be given under this Division on behalf of the defendant by his or her Australian legal practitioner is, unless the contrary is proved, taken to have been given with the authority of the defendant. (3) A notice under this Division that is required to be given to a prosecutor may be given to the prosecutor in the following manner, or as otherwise directed by the court: (a) by delivering it to the prosecutor, (b) by leaving it at the office of the prosecutor, (c) by sending it by post or facsimile to the prosecutor at the office of the prosecutor, (d) by sending it by electronic mail to the prosecutor, but only if the prosecutor has agreed to notice being given in that manner. (4) A notice under this Division that is required to be given to a defendant may be given to the defendant in the following manner, or as otherwise directed by the court: (a) by delivering it to the defendant, (b) by leaving it at the office of the Australian legal practitioner representing the defendant,

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CRIMINAL PROCEDURE ACT 1986

[2-s 247T]

(c) by sending it by post or facsimile to the Australian legal practitioner representing the defendant at the office of the Australian legal practitioner, (d) by sending it by electronic mail to the Australian legal practitioner, but only if the Australian legal practitioner has agreed to notice being given in that manner. (5) A party required to give a notice under this Division must file a copy of the notice with the court as soon as practicable after giving it, or as otherwise required by the court. (6) Nothing in this section requires a recorded statement to be given to a defendant other than in accordance with Division 3 of Part 4B of Chapter 6. [subs (6) insrt Act 83 of 2014 Sch 1[18], opn 1 June 2015]

[2-s 247R] Copies of exhibits and other things not to be provided if impracticable 247R (1) A copy of a proposed exhibit, document or thing is not required to be included in a notice under this Division if it is impossible or impractical to provide a copy. (2) However, the party required to give the notice: (a) is to specify in the notice a reasonable time and place at which the proposed exhibit, document or thing may be inspected, and (b) is to allow the other party to the proceedings a reasonable opportunity to inspect the proposed exhibit, document or thing referred to in the notice.

[2-s 247S] Personal details not to be provided 247S (1) The prosecutor is not to disclose in any notice under this Division the address or telephone number of any witness proposed to be called by the prosecutor, or of any other living person, unless: (a) the address or telephone number is a materially relevant part of the evidence, or (b) the court makes an order permitting the disclosure. (2) An application for such an order may be made by the defendant or the prosecutor. (3) The court must not make such an order unless satisfied that the disclosure is not likely to present a reasonably ascertainable risk to the welfare or protection of any person or that the interests of justice (including the defendant’s right to prepare properly for the hearing of the evidence for the prosecution) outweigh any such risk. (4) This section does not prevent the disclosure of an address if the disclosure does not identify it as a particular person’s address, or it could not reasonably be inferred from the matters disclosed that it is a particular person’s address. (5) An address or telephone number that must not be disclosed may, without reference to the person who made the affidavit or statement being disclosed, be deleted from that affidavit or statement, or rendered illegible, before the affidavit or statement is given to the defendant.

[2-s 247T] Requirements as to statements of witnesses 247T (1) A statement of a witness that is included in a notice under this Division may be in the form of questions and answers. (2) If a notice includes a statement that is, wholly or in part, in a language other than

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Criminal Procedure

s 247T

[2-s 247T]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 247T

English, there must be annexed to it a document purporting to contain a translation of the statement, or so much of it as is not in the English language, into the English language.

[2-s 247U] Exemption for matters previously disclosed 247U (1) The prosecutor is not required to include in a notice under this Division anything that has already been included in a brief of evidence in relation to the matter served on the defendant in accordance with this or any other Act or that has otherwise been provided or disclosed to the defendant. (2) The defendant is not required to include in a notice under this Division anything that has already been provided or disclosed to the prosecutor.

[2-s 247V] Court powers to ensure efficient management and conduct of trial or sentencing hearing 247V (1) On or after the commencement of the trial or sentencing hearing, the court may make such orders, determinations or findings, or give such directions or rulings, as it thinks appropriate for the efficient management and conduct of the trial or sentencing hearing. (2) Without limiting subsection (1), the court may order that any of the parties to the proceedings disclose any matter that was, or could have been, required to be disclosed under this Division before the commencement of the trial or sentencing hearing.

[2-s 247W] Preliminary orders and other orders bind presiding Judge 247W (1) A preliminary order made in proceedings is binding on the presiding Judge in those proceedings unless, in the opinion of the presiding Judge, it would not be in the interests of justice for the order to be binding. (2) If, on an appeal against conviction or sentence, a new trial or sentencing hearing is ordered, a preliminary order, or an order made by the presiding Judge, in relation to the proceedings from which the conviction or sentence arose, is binding on the presiding Judge who is presiding at the fresh hearing unless: (a) in the opinion of the presiding Judge who is presiding at the fresh hearing, it would not be in the interests of justice for that order to be binding, or (b) that order is inconsistent with an order made on appeal. (3) If proceedings before a presiding Judge are discontinued for any reason, a preliminary order, or an order made by the presiding Judge, in relation to those proceedings is binding on a presiding Judge presiding at any subsequent hearing relating to the same offence as the discontinued proceedings unless, in the opinion of the presiding Judge presiding at the subsequent hearing, it would not be in the interests of justice for the order to be binding. (4) In this section: preliminary order means any order made by a Judge, before the commencement of a trial or sentencing hearing, in proceedings to which this Division applies.

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CRIMINAL PROCEDURE ACT 1986

[2-s 248]

[2-s 247X] Miscellaneous provisions 247X (1) A statement about any matter that is made by or on behalf of the defendant for the purposes of complying with requirements for preliminary disclosure imposed by or under this Division does not constitute an admission of that matter by the defendant. (2) The court may make orders to resolve any dispute between the parties to criminal proceedings about: (a) the requirements for preliminary disclosure imposed by or under this Division, or (b) the use of anything disclosed under this Division (including restrictions on publication or further disclosure). (3) Nothing in this Division prevents any voluntary preliminary disclosure by the defendant to the prosecutor of any information, document or other thing that the defendant proposes to adduce in evidence in the proceedings. (4) This Division does not limit any obligation (arising otherwise than under this Division) for preliminary or pre-trial disclosure that is capable of being complied with concurrently with requirements imposed by or under this Division, but this Division prevails to the extent of any inconsistency with any such obligation. Any such obligation extends to obligations imposed by the common law, the rules of court, the Uniform Rules made under Part 9.2 of the Legal Profession Uniform Law (NSW) and prosecution guidelines issued by the Director of Public Prosecutions or any other prosecuting authority. [subs (4) am Act 7 of 2015 Sch 2.11[1], opn 1 July 2015]

(5) However, this Division does not affect any immunity that applies by law to the disclosure of any information, document or other thing, including, for example, legal professional or client legal privilege, public interest immunity and sexual assault communications privilege under Division 2 of Part 5 of Chapter 6. (6) Nothing in this Division limits any powers that a court has apart from this Division in relation to proceedings. (7) The provisions of this Division prevail over the provisions of the Evidence Act 1995 to the extent of any inconsistency with those provisions.

[2-s 247Y] Review of Division 247Y (1) The Minister is to review this Division to determine whether the policy objectives of the Division remain valid and whether the terms of the Division remain appropriate for securing those objectives. (2) The review is to be undertaken as soon as possible after the period of 2 years from the commencement of section 247A. (3) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 2 years. DIVISION 3 — TRIAL PROCEDURE

[2-s 248] Pre-trial procedure 248 A Judge is not required to proceed to hear and determine a case if any pre-trial procedures required by Division 2A or by the rules to be completed before the trial of the case commences have not been completed. [s 248 am Act 10 of 2012 Sch 1[4], opn 30 Apr 2012]

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Criminal Procedure

s 248

[2-s 249]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 249

[2-s 249] Procedure where prosecutor does not, but accused person does, appear 249 (1) If the prosecutor does not appear on the day and at the time and place set by an order under Division 2 (or on a day to which a hearing has been adjourned), but the accused person attends, the court, if satisfied that the prosecutor was notified of the day, time and place: (a) must discharge the accused person as to the offence the subject of the proceedings, with or without costs, or (b) if the court thinks it appropriate, adjourn the hearing to a specified time and place. (2) Subsection (1) does not empower the court to order costs to be paid in proceedings for an offence referred to in section 475A of the Crimes Act 1900. (3) Division 4 applies to any award of costs arising from proceedings being dealt with under subsection (1). [subs (3) insrt Act 23 of 2006 s 3 and Sch 1, opn 13 July 2006]

[2-s 250] Procedure where accused person does not obey order to appear 250 If the accused person does not appear on the day and at the time and place set by an order under Division 2 (or on a day to which a hearing has been adjourned), the court may, if satisfied that the order was served on the accused person: (a) proceed to hear and determine the matter in the absence of the accused person, or (b) if the court thinks the matter should not proceed on that day or without the accused person, adjourn the hearing to a specified time and place and make an order for the apprehension of the accused person under Division 2.

[2-s 251] Procedure where both parties do not appear 251 If both the prosecutor and the accused person are not present, on a day and at the time and place to which a hearing has been adjourned, the court may proceed to hear and determine the matter in the absence of the parties.

[2-s 252] Procedure where both parties appear 252 If both the prosecutor and the accused person are present on a day and at the time and place set for the hearing and determination of proceedings for a summary offence (including a day, time and place to which a hearing has been adjourned) the court must proceed to hear and determine the matter. COMMENTARY ON SECTION 252 Procedure for hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 252.1] [2-s 252.5]

[2-s 252.1] Procedure for hearing See [2-s 29] concerning the hearing together of proceedings related to two or more offences alleged to have been committed by the same accused or by two or more accused persons. See [2-s 36] concerning representation and appearance. See [2-s 37] concerning the persons who may conduct the prosecution and defence cases.

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CRIMINAL PROCEDURE ACT 1986

[2-s 257]

The procedures and practice for examination and cross-examination of witnesses and the right to address the court on the case in reply or otherwise are, as far as practicable, to be conducted in accordance with Supreme Court procedure for the trial of an indictable offence: s 38 at [2-s 38]. The evidence of each witness must be recorded: s 39(1) at [2-s 39]. See [2-s 40] as to the manner of dealing with the accused person during adjournments. See [2-s 202.1] as to a submission of no case to answer in criminal proceedings. The accused person has the right to address last, irrespective of whether the defence has called evidence: [2-s 160]. [2-s 252.5] Sentencing As to the practice and procedure for sentencing offenders, see Sentencing Procedures at [5-001] ff.

Court may order payment of costs 253

[s 253 rep Act 23 of 2006 s 3 and Sch 1, opn 13 July 2006]

[2-s 254] Enforcement of fines and orders 254 The payment of any money ordered by a court exercising summary jurisdiction under this Part to be paid as a penalty or for costs under Division 4 is taken to be a fine within the meaning of the Fines Act 1996. [s 254 am Act 23 of 2006 s 3 and Sch 1, opn 13 July 2006]

[2-s 255] Termination of lower court commencement of proceedings under this Part

proceedings

on

255 Any proceedings in a court to which Parts 2–4 apply for an offence for which proceedings may be taken under this Part or before that court are to be terminated on the court being notified, in accordance with the rules, of the commencement of proceedings under this Part for the offence.

[2-s 256] Effect of conviction under this Part 256 A conviction under this Part for an offence that is of a kind that may be tried either on indictment or under this Part is taken for all purposes, except the Crimes (Appeal and Review) Act 2001, to be a conviction on indictment. [s 256 am Act 15 of 2015 Sch 2.14[2], opn 8 July 2015]

[2-s 257] Rules for summary criminal procedure 257 (1) The Rule Committee may make rules for or with respect to the practice and procedure of a court in the exercise of summary jurisdiction under this Part. (2) Without limiting the generality of subsection (1), the rules may make provision for or with respect to: (a) the service of orders under Division 2, (b) pre-trial procedures and related practices, (c) the attendance or apprehension of witnesses, (d) the examination of witnesses on oath, affirmation or declaration, (e) the production by witnesses of books, documents and writings, (f) the execution of warrants for the apprehension of any person,

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Criminal Procedure

s 257

[2-s 257]

s 257

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

(g) any matter that by this Part is required to be prescribed by rules or that is necessary or convenient for the carrying out of or giving effect to the provisions of this Act relating to the summary jurisdiction of a court. (3) Nothing in this section limits the rule-making powers conferred on the Supreme Court by the Supreme Court Act 1970. DIVISION 4 — COSTS [Div 4 insrt Act 23 of 2006 s 3 and Sch 1, opn 13 July 2006]

[2-s 257A] Definition 257A In this Division: professional costs means costs (other than court costs) relating to professional expenses and disbursements (including witnesses’ expenses) in respect of proceedings before a court.

[2-s 257B] When costs may be awarded to prosecutor 257B A court may, in and by a conviction or order, order an accused person to pay to the registrar of the court, for payment to the prosecutor, such costs as the court specifies or, if the conviction or order directs, as may be determined under section 257G, if: (a) the court convicts the accused person of an offence, or (b) the court makes an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 in respect of an offence. COMMENTARY ON SECTION 257B Costs order in favour of prosecutor . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 257B.1]

[2-s 257B.1] Costs order in favour of prosecutor The power to order costs to the prosecutor under s 257B was considered in Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General (NSW) v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96; BC201703462 at [63]–[77] where the distinction between a costs order and a penalty or a moiety order under s 122(2) of the Fines Act 1996 (at [29-36,790]) was emphasised.

[2-s 257C] When professional costs may be awarded to accused person 257C (1) A court may at the end of proceedings under this Part order that the prosecutor pay professional costs to the registrar of the court, for payment to the accused person, if the matter is dismissed or withdrawn. (2) The amount of professional costs is to be such professional costs as the court specifies or, if the order directs, as may be determined under section 257G. (3) Without limiting the operation of subsection (1), a court may order that the prosecutor in proceedings under this Part pay professional costs if: (a) the accused person is discharged as to the offence the subject of the proceedings, or (b) the matter is dismissed because the prosecutor fails to appear, or (c) the matter is withdrawn or the proceedings are for any reason invalid.

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CRIMINAL PROCEDURE ACT 1986

COMMENTARY ON SECTION 257C Discretion to order costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 257E]

[2-s 257C.5]

[2-s 257C.5] Discretion to order costs Section 257C(1) and (3) provide for a discretion to order costs against the prosecutor, with costs not to be awarded unless s 257D(1) circumstances are established. In Southon v Plath obh Dept of Environment and Climate Change [2010] NSWCCA 292; BC201009506, it was said at [85] that where an accused person held back from the prosecution an expert report until after the prosecution had closed its case, this would operate strongly against the accused person in any subsequent application for costs by that accused person.

[2-s 257D] Limit on award of professional costs against a prosecutor acting in a public capacity 257D (1) Professional costs are not to be awarded in favour of an accused person in proceedings under this Part unless the court is satisfied as to one or more of the following: (a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner, (b) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner, (c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought, (d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award professional costs. (2) This section: (a) does not apply to the awarding of costs against a prosecutor acting in a private capacity, and (b) does not apply in relation to proceedings for an offence against the Work Health and Safety Act 2011 or the regulations under that Act. [subs (2) am Act 67 of 2011 Sch 4.6[3], opn 1 Jan 2012]

(3) An officer of an approved charitable organisation under the Prevention of Cruelty to Animals Act 1979 is taken not to be acting in a private capacity if the officer acts as the prosecutor in any proceedings under that Act or section 9(1) of the Veterinary Practice Act 2003. COMMENTARY ON SECTION 257D Unreasonable failure to investigate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 257D.5] [2-s 257D.5] Unreasonable failure to investigate The operation of s 257D(1)(c) was considered in Southon v Plath obh Dept of Environment and Climate Change [2010] NSWCCA 292; BC201009506.

[2-s 257E] Public officers and police officers not personally liable for costs 257E (1) A public officer or a police officer is entitled to be indemnified by the State

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Criminal Procedure

s 257E

[2-s 257E]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 257E

for any costs awarded against the officer personally as the prosecutor in any criminal proceedings in a court in which the officer is acting in his or her capacity as a public officer or a police officer. (2) In this section: public officer does not include a councillor or an employee of a council or any other person prescribed by the regulations for the purposes of this section. COMMENTARY ON SECTION 257E Public officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 257E.1]

[2-s 257E.1] Public officer See cl 113(2) of the Criminal Procedure Regulation 2017 at [2-5870] for officers or employees of bodies prescribed as persons who are not a “public officer” for the purposes of s 257E(2).

[2-s 257F] Costs on adjournment 257F (1) A court may in any proceedings under this Part, at its discretion or on the application of a party, order that one party pay costs if the matter is adjourned. (2) An order may be made only if the court is satisfied that the other party has incurred additional costs because of the unreasonable conduct or delays of the party against whom the order is made. (3) The order must specify the amount of costs payable or may provide for the determination of the amount at the end of the proceedings. (4) An order may be made whatever the result of the proceedings.

[2-s 257G] Calculation of costs 257G The professional or other costs payable by a prosecutor or accused person in accordance with an order directing that the amount of costs is to be determined under this section are to be determined: (a) by agreement between the prosecutor and accused person, or (b) if no such agreement can be reached, in accordance with the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) (with or without modifications prescribed by the regulations). [s 257G am Act 7 of 2015 Sch 2.11[2], opn 1 July 2015]

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[Heading insrt Act 119 of 2001 s 3 and Sch 1[83], opn 7 July 2003; am Act 94 of 2007 s 3 and Sch 1.28, opn 6 July 2009]

[2-s 258] Objects of this Chapter 258 The objects of this Chapter are: (a) to require the indictable offences listed in Table 1 to Schedule 1 to be dealt with summarily unless the prosecutor or the person charged with the offence concerned elects to have the offence dealt with on indictment, and (b) to require the indictable offences listed in Table 2 to Schedule 1 to be dealt with summarily unless the prosecutor elects to have the offence concerned dealt with on indictment. [s 258 renum Act 94 of 1999 s 4 and Sch 2[14]–[16], opn 1 Jan 2000; am Act 94 of 1999 s 4 and Sch 2[15], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[84], opn 7 July 2003; am Act 119 of 2001 s 3 and Sch 1[85], [86], opn 7 July 2003]

COMMENTARY ON SECTION 258 Scope of the Chapter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 258.1]

[2-s 258.1] Scope of the Chapter Chapter 5 does not affect the power of the Crown to commence proceedings by way of ex officio indictment but is concerned with the exercise of the jurisdiction of the local court: R v Bartalesi (1997) 41 NSWLR 641; 93 A Crim R 274; BC9702655; (1997) 4 Crim LN 44 [709].

[2-s 259] Offences to which this Chapter applies 259 (1) This Chapter applies to the offences listed in Tables 1 and 2 to Schedule 1. (2) All the offences listed in Tables 1 and 2 to Schedule 1 are indictable offences, subject to the provisions of this Chapter. [s 259 subst Act 57 of 2007 s 3 and Sch 1[11], opn 15 Nov 2007]

COMMENTARY ON SECTION 259 Tables 1 and 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 259.1] Tables 1 and 2

[2-s 259.1]

See Tables 1 and 2 at [2-Sch 1].

[2-s 260] Offences to be dealt with summarily unless election made to proceed on indictment 260 (1) An indictable offence listed in Table 1 to Schedule 1 is to be dealt with summarily by the Local Court unless the prosecutor or the person charged with the offence elects in accordance with this Chapter to have the offence dealt with on indictment. [subs (1) am Act 94 of 1999 s 4 and Sch 2[15]–[16], opn 1 Jan 2000; Act 40 of 2003 s 3 and Sch 1.10[9], opn 7 July 2003; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009]

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Criminal Procedure

CHAPTER 5 — SUMMARY DISPOSAL OF INDICTABLE OFFENCES BY LOCAL COURT

[2-s 260]

s 260

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

(2) An indictable offence listed in Table 2 to Schedule 1 is to be dealt with summarily by the Local Court unless the prosecutor elects in accordance with this Chapter to have the offence dealt with on indictment. [subs (2) am Act 94 of 1999 s 4 and Sch 2[15]–[16], opn 1 Jan 2000; Act 40 of 2003 s 3 and Sch 1.10[9], opn 7 July 2003; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009] [s 260 renum Act 94 of 1999 s 4 and Sch 2[14], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[84], opn 7 July 2003; am Act 119 of 2001 s 3 and Sch 1[85], opn 7 July 2003]

COMMENTARY ON SECTION 260 Scope of section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 260.1]

[2-s 260.1] Scope of section Section 260 applies to all indictable offences listed in Tables 1 and 2 at [2-Sch 1]. Maximum penalties for Table 1 and 2 offences disposed of summarily appear at [2-s 267] and [2-s 268]. There is no time limit for offences dealt with summarily under this Part: s 270 at [2-s 270]. The limitation period in s 179(1) does not apply to an indictable offence that is being dealt with summarily: s 179(2)(b) at [2-s 179]. See paragraph 8 of the Prosecution Guidelines of the NSW DPP at [28-25,040] concerning election for offences to be dealt with on indictment.

[2-s 261] Procedure for dealing with offences summarily if no election made 261 An indictable offence listed in Table 1 or 2 to Schedule 1 is, if no election is made in accordance with this Chapter, to be dealt with summarily in accordance with the relevant provisions of this Act and any other relevant law as if it were a summary offence. [s 261 renum Act 94 of 1999 s 4 and Sch 2[14], opn 1 Jan 2000; am Act 94 of 1999 s 4 and Sch 2[15]-[16], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[84], opn 7 July 2003; am Act 119 of 2001 s 3 and Sch 1[85], [87], opn 7 July 2003]

[2-s 262] Procedure for dealing with offences if election made 262 (1) An indictable offence listed in Table 1 or 2 to Schedule 1 is, if an election is made in accordance with this Chapter, to be dealt with on indictment in accordance with the relevant provisions of this Act and any other relevant law. [subs (1) am Act 94 of 1999 s 4 and Sch 2[15]–[16], opn 1 Jan 2000; Act 119 of 2001 s 3 and Sch 1[87], opn 7 July 2003]

(2) If an election is made in accordance with this Chapter and the person charged with the offence pleads guilty to the offence before the Local Court and the Court accepts the plea, the offence is to be dealt with in accordance with Part 2 of Chapter 3 as if the person charged had pleaded guilty under that Part to the offence. [subs (2) am Act 94 of 1999 s 4 and Sch 2[16], opn 1 Jan 2000; Act 119 of 2001 s 3 and Sch 1[88], opn 7 July 2003; Act 82 of 2003 s 3 and Sch 2.9[6], opn 27 Nov 2003; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009; Act 55 of 2017 Sch 1[7], opn 30 Apr 2018] [s 262 renum Act 94 of 1999 s 4 and Sch 2[14], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[84], opn 7 July 2003; am Act 119 of 2001 s 3 and Sch 1[85], opn 7 July 2003]

[2-s 263] Time for making election 263 (1) An election to have an offence dealt with on indictment must be made within the time fixed by the Local Court.

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CRIMINAL PROCEDURE ACT 1986

[2-s 264]

(2) An election may, with the leave of the Local Court, be made after the time so fixed if the Court is satisfied that special circumstances exist. (3) However, an election may not be made after the following events: (a) in the case of a plea of not guilty — the commencement of the taking of evidence for the prosecution in the summary trial, (b) in the case of a plea of guilty — the presentation of the facts relied on by the prosecution to prove the offence. (4) An election may be made on behalf of a corporation by a person appearing as a representative of the corporation. [subs (4) insrt Act 119 of 2001 s 3 and Sch 1[89], opn 7 July 2003]

(5) The jurisdiction of the Local Court under this section may be exercised by a registrar. [subs (5) insrt Act 119 of 2001 s 3 and Sch 1[89], opn 7 July 2003; am Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009] [s 263 renum Act 94 of 1999 s 4 and Sch 2[14], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[84], opn 7 July 2003]

COMMENTARY ON SECTION 263 Time for making election . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 263.5]

[2-s 263.5] Time for making election The proper construction and application of s 263(2) were considered in Hall v R [2015] NSWCCA 298; BC201511627, where it was said at [55]–[57] that: (a) the focus of the requirement of “special circumstances” is not directed to the appropriateness of an election in the particular case, but to the reasons why the decision was not made within the time allowed by the Local Court under s 263(1); (b) to this end, something is required which distinguishes the case from others and sets it apart from the usual or ordinary case; (c) the length of time since the expiration of the s 263(1) time limit will be significant; and (d) the overall administration of justice is also important, such as when refusal of leave would mean the Local Court has inadequate sentencing powers to deal with the offences at hand or a co-accused would be dealt with separately in the District Court.

[2-s 264] Election may be withdrawn 264 (1) An election for an offence to be dealt with on indictment may be withdrawn by the party who made the election. (2) However, an election may not be withdrawn after the following events: (a) in the case of a plea of not guilty — the committal of the person charged for trial, (b) in the case of a plea of guilty — the committal of the person charged for sentence. [subs (2) am Act 55 of 2017 Sch 1[8], opn 30 Apr 2018]

(3) An offence is to be dealt with summarily in accordance with this Chapter if an election is withdrawn in accordance with this section. [subs (3) am Act 94 of 1999 s 4 and Sch 2[16], opn 1 Jan 2000; am Act 119 of 2001 s 3 and Sch 1[85], opn 7 July 2003] [s 264 renum Act 94 of 1999 s 4 and Sch 2[14], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[84], opn 7 July 2003]

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Criminal Procedure

s 264

[2-s 265]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 265

[2-s 265] Criminal record to be given to person charged (Table 1 offences) 265 (1) When a person charged with an indictable offence listed in Table 1 to Schedule 1 first appears before the Local Court in respect of the offence, the Court: (a) is to address the person about the person’s right to make an election and the consequences of not making an election, and (b) is to give to the person a statement about the person’s right to make an election and the consequences of not making an election that is in the form of words prescribed by the regulations. [subs (1) am Act 94 of 1999 s 4 and Sch 2[15], opn 1 Jan 2000; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009]

(1A) Subsection (1) does not apply if the person charged with an indictable offence is represented by an Australian legal practitioner. [subs (1A) Act 27 of 2003 s 3 and Sch 8[6], opn 18 Aug 2003; am Act 120 of 2006 s 3 and Sch 3[2], opn 4 Dec 2006]

(2) The prosecutor is to serve, or cause to be served, on a person charged with an indictable offence listed in Table 1 to Schedule 1 a copy of the person’s criminal record (if any) known to the prosecutor, within the time fixed by the Local Court. The time so fixed must be before the time fixed by the Court for the making of an election in respect of the offence. [subs (2) subst Act 34 of 2007 s 3 and Sch 1[2], opn 14 Nov 2007]

(2A) [subs (2A) rep Act 34 of 2007 s 3 and Sch 1[2], opn 14 Nov 2007] (3) Without limiting the powers of the Local Court to adjourn proceedings, the Local Court is to grant such adjournments as appear to be just and reasonable if a criminal record is not served in accordance with this section, and the Court is to extend accordingly the time fixed for the making of an election in respect of the offence. [subs (3) subst Act 34 of 2007 s 3 and Sch 1[2], opn 14 Nov 2007; am Act 94 of 2007 ss 3, 4 and Schs 1.28, 2, opn 6 July 2009]

(4) [subs (4) rep Act 34 of 2007 s 3 and Sch 1[2], opn 14 Nov 2007] (5) The jurisdiction of the Local Court under this section may also be exercised by a registrar. [subs (5) insrt Act 119 of 2001 s 3 and Sch 1[93], opn 7 July 2003] [s 265 renum Act 94 of 1999 s 4 and Sch 2[14], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[84], opn 7 July 2003; am Act 34 of 2007 s 3 and Sch 1[2], opn 14 Nov 2007]

COMMENTARY ON SECTION 265 Prescribed form of words . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 265.1]

[2-s 265.1] Prescribed form of words Clause 117(1) of the Criminal Procedure Regulation 2017 at [2-5890] provides that, for the purposes of s 265(1)(b), the prescribed form of words in which a statement about a person’s right to make an election and the consequences of not making an election must be in the form of words contained in Form 5 to the Regulation at [2-5960].

[2-s 266] Regulations 266 (1) Regulations may be made for or with respect to elections under this Chapter. [subs (1) am Act 94 of 1999 s 4 and Sch 2[16], opn 1 Jan 2000; am Act 119 of 2001 s 3 and Sch 1[85], opn 7 July 2003]

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CRIMINAL PROCEDURE ACT 1986

[2-s 267]

(2) In particular, regulations may be made for or with respect to the following: (a) the form and manner in which an election is to be made, (b) the form and manner in which the withdrawal of an election is to be made, (c) the notification of the making or withdrawal of an election, (d) the form and contents, and the service, of briefs of evidence and criminal records. [s 266 renum Act 94 of 1999 s 4 and Sch 2[14], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[84], opn 7 July 2003]

COMMENTARY ON SECTION 266 Form and manner of election and withdrawal of election . . . . . . . . .

[2-s 266.1]

[2-s 266.1] Form and manner of election and withdrawal of election Clause 117(2) and (3) of the Criminal Procedure Regulation 2017 at [2-5890] provides that, for the purpose of s 266(2), an election or withdrawal of an election may be made orally to a Local Court or by filing a written notice with the court.

[2-s 267] Maximum penalties for Table 1 offences 267 (1) This section prescribes the maximum penalty that may be imposed for an indictable offence listed in Table 1 to Schedule 1 dealt with summarily under this Chapter in any case where the maximum penalty (when the offence is dealt with summarily) is not provided by law. [subs (1) am Act 94 of 1999 s 4 and Sch 2[15]–[16], opn 1 Jan 2000; am Act 119 of 2001 s 3 and Sch 1[85], opn 7 July 2003]

(2) The maximum term of imprisonment that the Local Court may impose for an offence is, subject to this section, 2 years or the maximum term of imprisonment provided by law for the offence, whichever is the shorter term. [subs (2) am Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009]

(3) The maximum fine that the Local Court may impose for an offence is, subject to this section, 100 penalty units or the maximum fine provided by law for the offence, whichever is the smaller fine. [subs (3) am Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009; Act 11 of 2012 Sch 1.1[1], opn 21 Mar 2012]

(4) [subs (4) rep Act 11 of 2012 Sch 1.1[2], opn 21 Mar 2012] (4A) The maximum penalty that the Local Court may impose for an offence under section 25 of the Oaths Act 1900 is imprisonment for 2 years, or a fine of 50 penalty units, or both. [subs (4A) insrt Act 83 of 1996 s 4 and Sch 2[1], opn 1 Jan 1997; am Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009; Act 11 of 2012 Sch 1.1[3], opn 21 Mar 2012]

(4AA) [subs (4AA) rep Act 117 of 2001 s 3 and Sch 7[1], opn 21 Dec 2001] (4B) The maximum penalty that the Local Court may impose for the offence of: (a) attempting to commit an offence, or (b) being an accessory before or after the fact in relation to an offence that is a felony, or (c) aiding, abetting, counselling or procuring the commission of an offence that is a misdemeanour, or (d) conspiring to commit an offence, or (e) inciting the commission of an offence,

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Criminal Procedure

s 267

[2-s 267]

s 267

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

is the same as the maximum penalty that the Local Court may impose for the offence concerned. [subs (4B) insrt Act 149 of 1998 s 4 and Sch 2.5[2], opn 8 Feb 1999; am Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009]

(5) The Local Court may, instead of imposing a term of imprisonment, impose a fine not exceeding 100 penalty units for an offence listed in Table 1 to Schedule 1 in any case where a fine is not otherwise provided by law for the offence. [subs (5) am Act 94 of 1999 s 4 and Sch 2[15], opn 1 Jan 2000; Act 94 of 2007 s 4 and Sch 3, opn 6 July 2009]

(6) Nothing in this section affects an option provided by law to impose either a term of imprisonment, or a fine, or both. (7) Nothing in this section affects Division 2 of Part 4 of the Crimes (Sentencing Procedure) Act 1999. [subs (7) am Act 94 of 1999 s 6 and Sch 4.13[1], opn 3 Apr 2000]

(7A) Nothing in this section prevents the Local Court from imposing the maximum term of imprisonment that may be imposed under section 33AA(2)(a) of the Drug Misuse and Trafficking Act 1985. [subs (7A) insrt Act 23 of 1995 s 3 and Sch 1.4[2], opn 1 July 1995; am Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009]

(8) [subs (8) rep Act 94 of 1999 s 6 and Sch 4.98[3], opn 1 Jan 2000] [s 267 renum Act 94 of 1999 s 4 and Sch 2[14], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[84], opn 7 July 2003] COMMENTARY ON SECTION 267 Law Part Codes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 267.0] The Law The Law The Law The Law The Law The Law

[2-s 267.0]

Law Part Codes The Law Part Codes for s 267 are 51554, 51555. Part Code for s 267(2) is 51556. Part Code for s 267(3) is 51557. Part Code for s 267(4)(a) is 51558. Part Code for s 267(4)(b) is 51559. Part Code for s 267(4A) is 51560. Part Code for s 267(5) is 51561.

[2-s 268] Maximum penalties for Table 2 offences 268 (1) This section prescribes the maximum penalty that may be imposed for an indictable offence listed in Table 2 to Schedule 1 dealt with summarily under this Chapter in any case where the maximum penalty (when the offence is dealt with summarily) is not provided by law. [subs (1) am Act 94 of 1999 s 4 and Sch 2[15]–[16], opn 1 Jan 2000; am Act 119 of 2001 s 3 and Sch 1[85], opn 7 July 2003]

(1A) The maximum term of imprisonment that the Local Court may impose for an offence is, subject to this section, 2 years or the maximum term of imprisonment provided by law for the offence, whichever is the shorter term. [subs (1A) insrt Act 94 of 2005 s 4 and Sch 2.1[1], opn 16 Dec 2005; am Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009]

(2) The maximum fine that the Local Court may impose for the following offences is: (a) for an offence under section 35A(2), 49A, 56, 58, 59, 59A, 60(1), 60A(1), 60B,

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(b)

(c) (d) (e)

(f) (g)

(h) (i)

(j) (k)

(k1) (l) (m) (n)

CRIMINAL PROCEDURE ACT 1986

[2-s 268]

60C, 60E(1) and (4), 61, 61KC, 61KE, 61KF, 61L, 61N, 61O(1) or (1A), 66DD, 66DE, 66EC, 73A, 91P, 91Q or 91R(1) or (2) of the Crimes Act 1900 — 50 penalty units, for an offence listed in Part 2 or 3 of Table 2 to Schedule 1 (other than an offence under section 154A of the Crimes Act 1900): (i) 50 penalty units, or (ii) if the value of any property, amount of money or reward concerned does not exceed $2,000 — 20 penalty units, for an offence under section 154A of the Crimes Act 1900 — 50 penalty units, for an offence under section 93G, 93H or 93I of the Crimes Act 1900 — 50 penalty units, for an offence under section 7, 7A, 36, 43, 44A, 50, 50AA, 50A(1), 50B, 51(1) or (2), 51A, 51BA, 51D(1), 51E, 51F, 51H, 51I, 58(2), 62, 63, 64, 66, 70, 71A, 72(1) or 74(1)–(5) of the Firearms Act 1996 — 50 penalty units, for an offence under section 7, 20, 23(1), 23A(1), 25A(1), 25B(1), 25D, 31 or 34 of the Weapons Prohibition Act 1998 — 100 penalty units, for an offence under section 13 of the Crimes (Domestic and Personal Violence) Act 2007 or section 545AB or 562AB of the Crimes Act 1900 — 50 penalty units, for an offence under section 100(1) or (1B) of the Rural Fires Act 1997 — 100 penalty units, for an offence under section 578C(2A) of the Crimes Act 1900 — in the case of an individual, 100 penalty units or, in the case of a corporation, 200 penalty units, for an offence under section 10 or 20 of the Liens on Crops and Wool and Stock Mortgages Act 1898 — 50 penalty units, for an offence under Part 2 or 5 (other than section 40(2)) of the Surveillance Devices Act 2007 — in the case of an individual, 100 penalty units or, in the case of a corporation, 200 penalty units, for an offence under section 8(2A) or 9(3) of the Restricted Premises Act 1943 — 50 penalty units, for an offence under section 17 or 18 of the Child Protection (Offenders Registration) Act 2000 — 100 penalty units, for an offence under section 65 of the Electricity Supply Act 1995 — 100 penalty units, for an offence under section 66 of the Gas Supply Act 1996 — 100 penalty units.

[subs (2) subst Act 11 of 2012 Sch 1.1[4], opn 21 Mar 2012; am Act 74 of 2013 Sch 4[1]–[3], opn 1 Nov 2013; Act 66 of 2014 Sch 2 item 2.2[1], opn 28 Oct 2014; Act 63 of 2015 Sch 3[1], [2], opn 24 Nov 2015; Act 29 of 2017 Sch 2.3[1], opn 25 Aug 2017; Act 26 of 2017 Sch 5[1], [2], opn 1 Nov 2017; Act 33 of 2018 Sch 4[7], [8], opn 1 Dec 2018]

(2AA) A fine may be imposed as referred to in subsection (2) for an offence in addition to or instead of any term of imprisonment that may be imposed by law for the offence. [subs (2AA) insrt Act 11 of 2012 Sch 1.1[4], opn 21 Mar 2012]

(2A) The maximum penalty that the Local Court may impose for the offence of: (a) attempting to commit an offence, or

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Criminal Procedure

s 268

[2-s 268]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 268

(b) being an accessory before or after the fact in relation to an offence that is a felony, or (c) aiding, abetting, counselling or procuring the commission of an offence that is a misdemeanour, or (d) conspiring to commit an offence, or (e) inciting the commission of an offence, is the same as the maximum penalty that the Local Court may impose for the offence concerned. [subs (2A) insrt Act 149 of 1998 s 4 and Sch 2.5[5], opn 8 Feb 1999; am Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009]

(3) Nothing in this section affects Division 2 of Part 4 of the Crimes (Sentencing Procedure) Act 1999. [subs (3) am Act 94 of 1999 s 6 and Sch 4.13[2], opn 3 Apr 2000] [s 268 renum Act 94 of 1999 s 4 and Sch 2[14], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[84], opn 7 July 2003]

COMMENTARY ON SECTION 268 Law Part Codes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 268.0] The Law The Law The Law The Law The Law The Law The Law The Law The Law The Law The Law

[2-s 268.0]

Law Part Codes The Law Part Code for s 268(1A) is 58644. Part Code for s 268(2)(a) is 51562. Part Code for s 268(2)(b) is 51563. Part Code for s 268(2)(c) is 51564. Part Code for s 268(2)(d) is 51565. Part Code for s 268(2)(e) is 51566. Part Code for s 268(2)(e1) is 51567. Part Code for s 268(2)(f), for the period 7 July 2003 to 11 March 2007, is 51568. Part Code for s 268(2)(f) from 12 March 2007 is 61553. Part Code for s 268(2)(i) is 51569. Part Code for s 268(2)(j) is 51570. Part Code for s 268(2)(k) is 51571.

[2-s 269] Offences by children 269 Nothing in this Chapter confers jurisdiction on the Local Court to deal with an offence if the Children’s Court has exclusive jurisdiction to hear and determine the matter. [s 269 renum Act 94 of 1999 s 4 and Sch 2[14], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[95], opn 7 July 2003; am Act 119 of 2001 s 3 and Sch 1[96], opn 7 July 2003; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009]

[2-s 270] No time limit for offences dealt with summarily under this Chapter 270 Section 179, and the provisions of any other Act limiting the time within which proceedings for summary offences may be instituted, do not apply to offences dealt with summarily under this Chapter. [s 270 renum Act 94 of 1999 s 4 and Sch 2[14], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[95], opn 7 July 2003; am Act 119 of 2001 s 3 and Sch 1[96], [97], opn 7 July 2003; Act 40 of 2003 s 3 and Sch 1.10[12], opn 7 July 2003]

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CRIMINAL PROCEDURE ACT 1986

[2-s 273]

[2-s 271] Effect of conviction 271 The conviction of a person of an offence dealt with summarily under this Chapter has the same effect as a conviction on indictment for the offence. [s 271 renum Act 94 of 1999 s 4 and Sch 2[14], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[95], opn 7 July 2003; am Act 119 of 2001 s 3 and Sch 1[96], opn 7 July 2003]

[2-s 272] Application of Chapter 272 (1) This Chapter applies to proceedings for an offence with which a person is charged after (but not before) the commencement of this section irrespective of when the offence was committed. (2)–(3) [subs (2)–(3) rep Act 38 of 2007 s 4 and Sch 3.1[1], opn 27 Sep 2007]

[2-s 273] Jurisdiction of Magistrates in respect of offences arising under Part 4AD of Crimes Act 1900 273 If, by virtue of this Chapter, the Local Court has jurisdiction to deal with a charge arising under Part 4AD of the Crimes Act 1900, the Local Court may hear the charge irrespective of whether, in order to determine the charge, it is necessary to determine title to any property. [s 273 insrt Act 94 of 1999 s 4 and Sch 2[19], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[95], opn 7 July 2003; am Act 119 of 2001 s 3 and Sch 1[96], opn 7 July 2003; Act 40 of 2003 Sch 1, opn 7 July 2003] Editor’s Note. Section 273 (previously s 34) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 552 of the Crimes Act 1900. [s 273 am Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009; Act 99 of 2009 Sch 3, opn 22 Feb 2010]

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Criminal Procedure

s 273

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PART 1 — PRELIMINARY [Heading insrt Act 119 of 2001 s 3 and Sch 1[98], opn 7 July 2003]

[2-s 274] Application 274 Except as provided by this Chapter, this Chapter applies, to the extent that it is capable of being applied, to all offences, however arising (whether under an Act or at common law), whenever committed and in whatever court dealt with. Note. Certain provisions of Part 6 (Giving of evidence by vulnerable persons) of this Chapter extend to evidence given in proceedings of a civil nature arising from certain offences (for example, see section 306ZA(c)). [s 274 insrt Act 119 of 2001 s 3 and Sch 1[98], opn 7 July 2003; am Act 25 of 2005 s 3 and Sch 1, opn 12 Aug 2005; Act 6 of 2007 s 3 and Sch 1[4], opn 12 Oct 2007; Act 55 of 2017 Sch 1[9], opn 30 Apr 2018]

[2-s 275] Definition 275 In this Chapter: Judge includes a Magistrate, a Children’s Court Magistrate and an Industrial Magistrate and any other person of a class prescribed for the purposes of this definition. [def am Act 48 of 2016 Sch 2.13[6], opn 8 Dec 2016] [s 275 insrt Act 119 of 2001 s 3 and Sch 1[98], opn 7 July 2003; am Act 82 of 2003 s 3 and Sch 2.9[7], opn 27 Nov 2003; Act 92 of 2007 s 6 and Sch 4.5[2], opn 1 July 2008; Act 107 of 2008 s 3 and Sch 29 opn 7 Apr 2009]

PART 2 — GENERAL [Heading insrt Act 119 of 2001 s 3 and Sch 1[98], opn 7 July 2003]

[2-s 275A] NSW Police Force exhibits management system 275A In any criminal proceedings, the production of one or more exhibit detail sheets certified by a member of the NSW Police Force to have been issued under the authority of the NSW Police Force exhibits management system, and relating to the whole or part of an exhibit identified in the sheets, is prima facie evidence of the dealings with that exhibit that are listed in the sheets, without proof of the signature or appointment of the person purporting to sign the sheets. [s 275A rep Act 46 of 2007 s 4 and Sch 2, opn 1 Jan 2009; insrt Act 29 of 2018 Sch 1 item 1.10[1], opn 21 June 2018]

[2-s 275B] Witness with communication difficulty entitled to assistance from person or communication aid 275B (1) In any criminal proceedings, a witness who has difficulty communicating is entitled to use a person or persons who may assist the witness with giving evidence, but only if the witness ordinarily receives assistance to communicate from such a person or persons on a daily basis.

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Criminal Procedure

CHAPTER 6 — EVIDENTIARY MATTERS [Heading insrt Act 119 of 2001 s 3 and Sch 1[98], opn 7 July 2003]

[2-s 275B]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 275B

(2) In any criminal proceedings, a witness who has difficulty communicating is entitled to use a communication aid to assist the witness with giving evidence, but only if the witness ordinarily uses such an aid to assist him or her to communicate on a daily basis. (3) To the extent that the court considers it reasonable to do so, the court must make whatever direction is appropriate to give effect to a witness’ right to use a person or persons, or to use a communication aid, under this section when the witness is giving evidence. (4) The provisions of the Evidence Act 1995 apply to and in respect of a person who gives a witness assistance under this section in the same way as they apply to and in respect of an interpreter under that Act. (5) In this section: communication aid includes any thing, whether electronic or otherwise, that can be used to assist in communication. [s 275B insrt Act 88 of 2006 s 3 and Sch 1[4], opn 1 Jan 2007]

[2-s 275C] Court may direct expert evidence be given concurrently or consecutively 275C (1) The court may, at any time, give directions as it considers appropriate to enable the giving of expert evidence concurrently or consecutively in criminal proceedings. (2) Directions under this section may include the following: (a) a direction that an expert witness give evidence at any stage of the proceedings, (b) a direction that more than one expert witness give evidence at the same time in the proceedings, (c) a direction that an expert witness give an oral exposition of the witness’s opinion on a particular matter, (d) a direction that an expert witness be examined, cross-examined or re-examined in a particular manner or sequence, including by putting to each expert witness, in turn, each question relevant to one matter or issue at a time, (e) a direction that an expert witness be permitted to ask questions of another expert witness who is giving evidence at the same time during the proceedings. (3) A direction may be given under this section only with the consent of the prosecutor and the accused person. (4) This section does not limit any other powers of a court to give directions in relation to evidence, witnesses or the management and conduct of proceedings. [s 275C insrt Act 87 of 2018 Sch 1 item 1.15[4], opn 28 Nov 2018]

[2-s 276] Proof of service of notice to produce 276 (a) (b) (c) (d) (e)

An affidavit by: the Director of Public Prosecutions or the Solicitor for Public Prosecutions, or a member of the staff of the Director of Public Prosecutions, or an Australian legal practitioner or Australian legal practitioner’s clerk, or the accused person, or a police officer,

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CRIMINAL PROCEDURE ACT 1986

[2-s 277]

as to the service of any notice to produce and of the time when it was served, with a copy of the notice annexed to the affidavit, is sufficient evidence of the service of the original of the notice and of the time when it was served. [s 276 insrt Act 94 of 1999 s 4 and Sch 2[31], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[99], opn 7 July 2003; am Act 120 of 2006 s 3 and Sch 3[2], [10], opn 4 Dec 2006] Editor’s Note. Section 276 (previously s 101) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999, No 94 of 1999. The provision was previously contained in s 414B of the Crimes Act 1900.

[2-s 277] Stealing goods from vessel or wharf 277 (1) This section applies to the following offences: (a) any offence involving the stealing of property: (i) from any vessel, barge, boat or train, or (ii) from any dock, wharf, quay, railway yard or other railway premises, or (iii) from any store or shed used in connection with and adjoining any such dock, wharf, quay, railway yard or other railway premises, or (iv) in the course of transit from any vessel, barge, boat or train, or from any store or shed used in connection with and adjoining such wharf, dock, quay, railway yard or other railway premises, or (b) any offence involving the receiving of property so stolen knowing it to have been stolen. (2) On the prosecution of any person for an offence to which this section applies: (a) evidence may be given of any writing, printing, or marks on any property alleged to have been stolen or received, or on any package containing such property, without producing or giving notice to produce the original writing, printing or marks, and (b) any document purporting to be a document of title to any property alleged to have been stolen or received: (i) is admissible in evidence on production and without further proof, and (ii) is evidence of the particulars contained in the document, and that the ownership of the property is in the consignee referred to in the document or his or her assignee. (3) In this section: document of title to property includes: (a) any bill of lading, India warrant, dock warrant, warehouse keeper’s certificate, warrant, or order for the delivery or transfer of any goods or valuable thing, and (b) any bought and sold note or other document: (i) used in the ordinary course of business as proof of the possession or control of goods, or (ii) purporting to authorise, by endorsement or delivery, the possessor of such document to transfer or receive any goods thereby represented or therein mentioned or referred to. train includes any railway carriage, railway truck or other railway vehicle that is on any railway. [s 277 insrt Act 94 of 1999 s 4 and Sch 2[31], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[99], opn 7 July 2003]

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Criminal Procedure

s 277

[2-s 277]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 277

Editor’s Note. Section 277 (previously s 102) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999, No 94 of 1999. The provision was previously contained in s 419A of the Crimes Act 1900.

[2-s 278] Incriminating statements admissible though on oath 278 An incriminating statement made voluntarily by an accused person before any charge has been preferred against the accused person in respect of an indictable offence is not to be rejected merely because the statement was made on oath. [s 278 insrt Act 94 of 1999 s 4 and Sch 2[31], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[99], opn 7 July 2003] Editor’s Note. Section 278 (previously s 103) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999, No 94 of 1999. The provision was previously contained in s 411 of the Crimes Act 1900.

[2-s 279] Compellability of family members to give evidence in certain proceedings 279 (1) In this section: (a) a reference to a member of the accused person’s family means the spouse or de facto partner of the accused person or a parent (within the meaning of the Evidence Act 1995) or child (within the meaning of that Act) of the accused person, and Note.

“De facto partner” is defined in section 21C of the Interpretation Act 1987.

(b) a reference to a domestic violence offence is a reference to a domestic violence offence within the meaning of the Crimes (Domestic and Personal Violence) Act 2007, and (c) a reference to a domestic violence offence committed on a member of an accused person’s family includes a reference to an offence of contravening a prohibition or restriction specified in an apprehended violence order that was made against the accused person and in respect of which a member of the accused person’s family was the protected person, and (d) a reference to a child assault offence is a reference to: (i) a prescribed sexual offence committed on a child under the age of 18 years, or (ii) an offence under, or mentioned in, section 24, 27, 28, 29, 30, 33, 33A, 35, 39, 41, 42, 43, 44, 46, 47, 48, 49, 58, 59 or 61 of the Crimes Act 1900 committed on a child under the age of 18 years, or (iii) an offence that, at the time it was committed, was a child assault offence for the purposes of this section or section 407AA of the Crimes Act 1900, or (iv) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in subparagraph (i), (ii) or (iii), and (e) a reference to a child assault offence committed on a child includes a reference to an offence of contravening a prohibition or restriction specified in an apprehended violence order that was made against the accused person and in respect of which that child was the protected person. [subs (1) am Act 73 of 2002 s 3 and Sch 1.6[1] and [2], opn 1 Nov 2002; Act 73 of 2006 s 4 and Sch 3.8[2], opn 12 Mar 2007; Act 80 of 2007 s 103 and Sch 2.9, opn 10 Mar 2008; Act 19 of 2010 Sch 3.33, opn 19 May 2010; Act 29 of 2018 Sch 1 item 1.10[2]–[4], opn 21 June 2018]

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CRIMINAL PROCEDURE ACT 1986

[2-s 279]

(2) A member of an accused person’s family in proceedings in any court: (a) for a domestic violence offence (other than an offence arising from a negligent act or omission) committed on a member of the accused person’s family, or (b) for a child assault offence (other than an offence arising from a negligent act or omission) committed on: (i) a child living in the household of the accused person, or (ii) a child who, although not living in the household of the accused person, is a child (within the meaning of the Evidence Act 1995) of the accused person, is compellable to give evidence in the proceedings, either for the prosecution or for the defence, without the consent of the accused person. [subs (2) am Act 73 of 2002 s 3 and Sch 1.6[2], opn 1 Nov 2002; Act 29 of 2018 Sch 1 item 1.10[5]–[7], opn 21 June 2018]

(2A) This section does not make a member of an accused person’s family (other than the accused person’s spouse) compellable to give evidence in proceedings for a domestic violence offence committed on a member of the accused person’s family if the accused person is under the age of 18 years. [subs (2A) insrt Act 29 of 2018 Sch 1 item 1.10[8], opn 21 June 2018]

(3) A member of an accused person’s family is not compellable to give evidence for the prosecution as referred to in subsection (2) if the family member has applied to, and been excused by, the court. [subs (3) am Act 73 of 2002 s 3 and Sch 1.6[2], opn 1 Nov 2002; Act 29 of 2018 Sch 1 item 1.10[5], [9], opn 21 June 2018]

(4) A court may excuse a member of an accused person’s family from giving evidence for the prosecution as referred to in subsection (2) if satisfied: (a) that the application to be excused is made by that family member freely and independently of threat or any other improper influence by any person, and (b) that it is relatively unimportant to the case to establish the facts in relation to which it appears that the family member is to be asked to give evidence, or there is other evidence available to establish those facts, and (c) that the offence with which the accused person is charged is of a minor nature. [subs (4) am Act 73 of 2002 s 3 and Sch 1.6[2], opn 1 Nov 2002; Act 29 of 2018 Sch 1 item 1.10[10]–[12], opn 21 June 2018]

(5) When excusing a member of an accused person’s family from giving evidence under subsection (4), the court: (a) must state the reasons for doing so, and (b) must cause those reasons to be recorded in writing in a form prescribed by the regulations. [subs (5) am Act 73 of 2002 s 3 and Sch 1.6[2], opn 1 Nov 2002; Act 29 of 2018 Sch 1 item 1.10[13], opn 21 June 2018]

(6) An application under this section by a member of an accused person’s family to be excused from giving evidence is to be made and determined in the absence of the jury (if any) and the accused person, but in the presence of the accused person’s Australian legal practitioner. [subs (6) am Act 73 of 2002 s 3 and Sch 1.6[2], opn 1 Nov 2002; Act 120 of 2006 s 3 and Sch 3[11], opn 4 Dec 2006; Act 29 of 2018 Sch 1 item 1.10[13], opn 21 June 2018]

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Criminal Procedure

s 279

[2-s 279]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 279

(7) A court may conduct the hearing of an application under this section in any manner it thinks fit, and is not bound to observe rules of law governing the admission of evidence but may obtain information on any matter in any manner it thinks fit. (8) The fact that a member of an accused person’s family in proceedings for an offence has applied to be excused, or has been excused, from giving evidence in the proceedings is not to be made the subject of any comment by the court or by any party in the proceedings. [subs (8) am Act 73 of 2002 s 3 and Sch 1.6[2], opn 1 Nov 2002; Act 29 of 2018 Sch 1 item 1.10[13], opn 21 June 2018] [s 279 insrt Act 94 of 1999 s 4 and Sch 2[31], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[99], opn 7 July 2003] Editor’s Note. Section 279 (previously s 104) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999, No 94 of 1999. The provision was previously contained in s 407AA of the Crimes Act 1900.

COMMENTARY ON SECTION 279 Form of reasons for excusing spouse from giving evidence . . . . . . Other criminal proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 279.1] [2-s 279.5]

[2-s 279.1] Form of reasons for excusing spouse from giving evidence See cl 28 of the Criminal Procedure Regulation 2017 at [2-5225] for the prescribed form of reasons for excusing a spouse from giving evidence for the prosecution in a domestic violence or child assault case. [2-s 279.5] Other criminal proceedings For compellability of spouses, de facto partners, parents or children of a defendant in criminal proceedings not covered by s 279, see ss 18 and 19 Evidence Act at [3-s 18] and [3-s 19].

[2-s 279A] Admission of evidence of complainant from related proceedings 279A (1) This section applies if a complainant in proceedings for a prescribed sexual offence (the earlier proceedings) is the complainant in later criminal proceedings (the current proceedings) and the offence in both proceedings is alleged to have been committed by the same accused person against the complainant in related circumstances. (2) A prosecutor may tender as evidence in current proceedings a record of the evidence of a complainant given in the earlier proceedings (the original evidence). (3) The original evidence of the complainant means all evidence given by the complainant in the earlier proceedings, including the evidence given by the complainant on examination in chief in the earlier proceedings and any further evidence given on cross-examination or re-examination in those proceedings. (4) Despite anything to the contrary in the Evidence Act 1995, or any other Act or law, a record of the original evidence of the complainant is admissible in the current proceedings if: (a) the prosecutor gives written notice to the accused person, in accordance with the regulations, of the prosecutor’s intention to tender the record under this section, and (b) the prosecutor gives written notice to the court of the prosecutor’s intention to tender the record under this section, and

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CRIMINAL PROCEDURE ACT 1986

[2-s 280]

(c) the notices referred to in paragraphs (a) and (b) are given no less than 21 days before the court commences hearing the current proceedings or within such other period as the court may allow. (5) If a record of original evidence is admitted in current proceedings under this section, the complainant is not compellable to give further evidence about the same matters in the current proceedings unless the court is satisfied that it is necessary for the complainant to give further evidence: (a) to clarify any matters relating to the original evidence of the complainant, or (b) to canvass information or material that has become available since the original evidence was given, or (c) in the interests of justice. (6) The court is to ensure that the complainant is questioned by any party to the current proceedings only in relation to matters that are relevant to the matters mentioned in subsection (5). (7) Subject to subsection (6), if a complainant gives any further evidence under this section, the complainant is compellable (for the prosecution or the accused person) to give evidence. (8) The court hearing the current proceedings may decline to admit a record of original evidence of the complainant if, in the court’s opinion, the accused person would be unfairly disadvantaged by the admission of the evidence, having regard to the following: (a) the completeness of the original evidence, including whether the complainant has been cross-examined on the evidence, (b) the effect of editing any inadmissible evidence from the original evidence, (c) the availability or willingness of the complainant to attend to give further evidence and to clarify any matters relating to the original evidence, (d) the interests of justice, (e) any other matter the court thinks relevant. (9) If the court allows a record of the original evidence of the complainant to be admitted, the court may give directions requiring the record to be altered or edited for the purpose of removing any statements that would not be admissible if the original evidence of the complainant had been given orally before the court hearing the current proceedings in accordance with the usual rules and practice of the court. (10) The hearsay rule (within the meaning of the Evidence Act 1995) does not prevent the admission of a record of the original evidence of the complainant under this section or the use of that record to prove the existence of a fact that the complainant intended to assert by a representation made in the original evidence. (11) Sections 306E–306G (including any regulations made for the purposes of those sections) apply for the purposes of this section with such modifications as are necessary. (12) In this section: prescribed sexual offence includes a female genital mutilation offence. [s 279A insrt Act 88 of 2018 Sch 5[7], opn 1 Dec 2018]

[2-s 280] Disclosure of address or telephone number of witness 280 (1) A witness in proceedings for an offence, or a person who makes a written statement that is likely to be produced in proceedings for an offence, is not required to disclose his or her address or telephone number, unless:

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Criminal Procedure

s 280

[2-s 280]

s 280

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

(a) the address or telephone number is a materially relevant part of the evidence, or (b) the court makes an order requiring the disclosure. (2) An application for such an order may be made by the prosecution or the defence. (3) The court may make such an order only if it is satisfied that disclosure is not likely to present a reasonably ascertainable risk to the welfare or protection of any person or that the interests of justice outweigh any such risk. (4) An address or telephone number that is not required to be disclosed and that is contained in a written statement may, without reference to the person who made the written statement, be deleted from the statement, or rendered illegible, before the statement is produced in court or given to the accused person. (5) A written statement is not inadmissible as evidence on the ground that it either does or does not disclose any such address or telephone number as referred to in this section. (6) This section does not prevent the disclosure of an address in a written statement if the statement does not identify it as a particular person’s address. (7) [subs (7) rep Act 119 of 2001 s 3 and Sch 1[101], opn 7 July 2003] (8) In this section: address includes a private, business or official address. telephone number includes a private, business or official telephone number. [s 280 insrt Act 94 of 1999 s 4 and Sch 2[31], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[100], opn 7 July 2003] Editor’s Note. Section 280 (previously s 106) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 577A of the Crimes Act 1900.

COMMENTARY ON SECTION 280 Law Part Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 280.0] Law Part Code

[2-s 280.0]

The Law Part Code for s 280(2) is 57857.

[2-s 280A] Disclosure of personal information in subpoenaed documents and things 280A (1) A person to whom a subpoena is addressed is not required to disclose in any document or thing produced in compliance with the subpoena any personal information, unless: (a) the personal information is a materially relevant part of the evidence, or (b) the court makes an order requiring the disclosure. (2) An application for such an order may be made by the prosecution or the defence. (3) The court may make such an order only if it is satisfied that disclosure is not likely to present a reasonably ascertainable risk to the welfare or protection of any person or that the interests of justice outweigh any such risk. (4) Personal information that is not required to be disclosed may, without reference to the person to whom the personal information relates, be deleted from the document or thing, or rendered illegible, before the document or thing is produced to the court or given to the accused person in compliance with the subpoena.

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CRIMINAL PROCEDURE ACT 1986

[2-s 281]

(5) This section does not prevent the disclosure of an address if the disclosure does not identify it as a particular person’s address, or it could not reasonably be inferred from the matters disclosed that it is a particular person’s address. (6) In this section: address includes a private, business or official address. personal information means the address or telephone number of the person to whom the subpoena is addressed or of any other living person. telephone number includes a private, business or official telephone number. [s 280A insrt Act 87 of 2018 Sch 1 item 1.15[5], opn 28 Nov 2018]

[2-s 281] Admissions by suspects 281 (1) This section applies to an admission: (a) that was made by an accused person who, at the time when the admission was made, was or could reasonably have been suspected by an investigating official of having committed an offence, and (b) that was made in the course of official questioning, and (c) that relates to an indictable offence, other than an indictable offence that can be dealt with summarily without the consent of the accused person. (2) Evidence of an admission to which this section applies is not admissible unless: (a) there is available to the court: (i) a tape recording made by an investigating official of the interview in the course of which the admission was made, or (ii) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in subparagraph (i) could not be made, a tape recording of an interview with the person who made the admission, being an interview about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms, or (b) the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made. (3) The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995) do not prevent a tape recording from being admitted and used in proceedings before the court as mentioned in subsection (2). (4) In this section: investigating official means: (a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior), or (b) a person appointed by or under an Act (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences prescribed by the regulations. official questioning means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence. reasonable excuse includes: (a) a mechanical failure, or

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Criminal Procedure

s 281

[2-s 281]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 281

(b) the refusal of a person being questioned to have the questioning electronically recorded, or (c) the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned. tape recording includes: (a) audio recording, or (b) video recording, or (c) a video recording accompanied by a separately but contemporaneously recorded audio recording. [s 281 insrt Act 94 of 1999 s 4 and Sch 2[31], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[102], opn 7 July 2003] Editor’s Note. Section 281 (previously s 108) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 424A of the Crimes Act 1900.

COMMENTARY ON SECTION 281 Scope of the section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 281.1]

[2-s 281.1] Scope of the section The provisions of the section were formerly found in s 424A of the Crimes Act and then s 108 of the Criminal Procedure Act, and decisions concerning those sections would apply to this section. The section does not apply during a siege situation because the statements made by the offender were not “official questioning” within the meaning of the term in the section: R v Naa [2009] NSWSC 851; BC200908038; (2009) 16 Crim LN 124 [2612]. As to the application of the section to indictable offences dealt with in the Children’s Court see CL v DPP (NSW) [2011] NSWSC 943; BC201106872; 18(10) Crim LN [2971] where it was held that the application of the section depends upon the offence charged and not the nature of the proceedings. The section was held not to apply where after the recorded interview had been completed in which the accused had admitted to one offence but refused to comment about other alleged offences, the custody manager said to the accused, “[d]o you understand that you are going to be charged with several armed robbery offences?” and the accused allegedly replied, “[y]es I do not know about the others but I admitted to three. The two here and one in Canberra”: Bryant v R [2011] NSWCCA 26; BC201101121; 18(4) Crim LN 50 [2880]. It was held that, even if the conversation amounted to questioning, which the court doubted, it did not occur in the course of official questioning, as the investigation had ceased. An “admission” for the purposes of the section should be given the same meaning as that contained in the Evidence Act 1995 and includes any form of representation whether by conduct, oral or in writing, and includes inculpatory or exculpatory statements which may turn out to be harmful to the defence: R v Horton (1998) 45 NSWLR 426; 104 A Crim R 306; BC9805771; (1998) 5 Crim LN 89 [932], where a statement which was on its face exculpatory was being used by the Crown as an answer to a reliance by the accused upon intoxication. Any statement which is adverse to its maker in the outcome of the proceedings is to be considered as an “admission” under the section: R v Esposito (1998) 45 NSWLR 442; 105 A Crim R 27; BC9806173. Where an accused was asked whether he wished to participate in a line up and answered “no”, the answer was not an “admission” for the purposes of the section and, therefore, notwithstanding a failure to comply with the section, the answer was admissible on the issue of whether identification evidence should be admitted under s 115 of the Evidence Act 1995: Ah-See v Heilpern (2000) 115 A Crim R 1; [2000] NSWSC 627; BC200003809; (2000) 7 Crim LN 46 [1161]. The words “that relates to an indictable offence” in s 108(1)(c) (now s 281(1)(c)) were considered in R v Rowe (2001) 50 NSWLR 510; 118 A Crim R 421; [2001] NSWCCA 1;

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CRIMINAL PROCEDURE ACT 1986

[2-s 281A]

BC200100059; (2001) 8 Crim LN 4 [1237] where it was held that admissions made by the accused when interviewed for an offence of harbouring an escapee were not admissible on the hearing of a summary offence of goods in custody. It was held that the words should be construed liberally and that answers given to questions asked in relation to an offence by a person who is officially questioned “relate to” that offence. Further, there was no reasonable excuse for the failure to record the admissions even though the police officer had no suspicion that the accused had committed the less serious offence at the time of the interview. The operation of a similarly worded provision was considered in Kelly v R (2004) 218 CLR 216; 205 ALR 274; [2004] HCA 12; BC200400836; (2004) 11 Crim LN [1650], where it was held that a statement made by a suspect about 20 minutes after the conclusion of a formal interview where no question had been asked by the police officer to elicit the statement was not within the scope of the section because it was not within the scope of “the course of official questioning. It was held that the section would apply to a statement made even though not responsive to the questioning and there does not have to be any causal connection between the admission and the questioning. See also R v Sharp (2003) 143 A Crim R 344; [2003] NSWSC 1117; BC200307689. The reasonable excuse provisions of similar legislation were considered in Nicholls v R; Coates v R (2005) 213 ALR 1; (2005) 79 ALJR 468; [2005] HCA 1; BC200500123; (2005) 12 Crim LN 30 [1844] where it was held that it was not a reasonable excuse to fail to record an interview with a suspect where the suspect requested that the interview be conducted off-camera and no attempt was made to have the admissions made in that interview repeated in a recorded interview. Where an admission has been rendered inadmissible by operation of the section, the admission cannot be admitted under s 86 of the Evidence Act 1995: Schiavini v R (1999) 108 A Crim R 161; [1999] NSWCCA 165; BC9903618; (1999) 6 Crim LN 53 [1020]. The section does not render an admission in breach of the section inadmissible where no objection is taken by the accused: R v Reid [1999] NSWCCA 258; BC9905412; (1999) 6 Crim LN 70 [1047] where the procedure to be adopted in respect of the evidence of admissions was considered.

PART 2A — SENSITIVE EVIDENCE [Pt 2A insrt Act 25 of 2005 s 3 and Sch 1[5], opn 25 Nov 2005]

DIVISION 1 — PRELIMINARY [Div 1 heading insrt Act 87 of 2018 Sch 1 item 1.15[6], opn 28 Nov 2018]

[2-s 281A] Definitions 281A (1) In this Part: access supervisor — see section 281FB. [def insrt Act 87 of 2018 Sch 1 item 1.15[7], opn 28 Nov 2018]

accused person means a person who stands, or any of the persons who stand, charged with an offence (whether summary or indictable), and includes the following: (a) in relation to proceedings for a summary offence, a defendant, (b) in relation to sentencing proceedings, a person who has been committed for sentence to the District Court or Supreme Court, (c) in relation to proceedings on an appeal against a conviction or sentence, the person convicted or sentenced. criminal investigation means the investigation of an offence or alleged offence. criminal proceedings means proceedings against a person for an offence (whether summary or indictable), and includes the following:

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Criminal Procedure

s 281A

[2-s 281A] (a) (b) (c) (d)

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 281A

committal proceedings, proceedings relating to bail, proceedings relating to sentencing, proceedings on an appeal against conviction or sentence.

health authority means any of the following: (a) a public health organisation (within the meaning of the Health Services Act 1997), (b) a public hospital (within the meaning of the Health Services Act 1997), (c) a private health facility (within the meaning of the Private Health Facilities Act 2007) that is licensed under that Act and that provides health services to the public on behalf of the Ministry of Health, the Health Administration Corporation constituted by the Health Administration Act 1982 or a local health district (within the meaning of the Health Services Act 1997), (d) a person or body that provides health services and is prescribed by the regulations. [def insrt Act 87 of 2018 Sch 1 item 1.15[7], opn 28 Nov 2018]

prosecuting authority means: (a) in relation to criminal proceedings, the Director of Public Prosecutions, a delegate of the Director of Public Prosecutions, a police officer, or any other person acting in a public official capacity, who is responsible for the institution or conduct of a prosecution, and (b) in relation to a criminal investigation, a police officer or any other person acting in a public official capacity who is responsible for the conduct of a criminal investigation. sensitive evidence has the meaning given by section 281B. supervised access arrangements — see section 281FD. [def insrt Act 87 of 2018 Sch 1 item 1.15[7], opn 28 Nov 2018]

(2) In this Part, a reference to an accused person or a prosecuting authority includes a reference to an Australian legal practitioner representing the accused person or the prosecuting authority. [subs (2) am Act 120 of 2006 s 3 and Sch 3[2], opn 4 Dec 2006]

[2-s 281B] Sensitive evidence — meaning 281B (1) For the purposes of this Part, anything that contains or displays an image of a person (the protected person) is sensitive evidence if: (a) the image is obscene or indecent, or (b) providing a copy of the image to another person without the protected person’s consent would interfere with the protected person’s privacy, or (c) the image was taken after the death of the protected person. (1A) For the purposes of this Part, an audio recording of a person committing an offence against another person (the protected person) is sensitive evidence if: (a) the contents of the audio recording are obscene or indecent, or (b) providing a copy of the audio recording to another person without the protected person’s consent would interfere with the protected person’s privacy. [subs (1A) insrt Act 67 of 2012 Sch 2[1], opn 24 Sep 2012]

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CRIMINAL PROCEDURE ACT 1986

[2-s 281D]

(1B) The contents of an audio recording are not obscene or indecent merely because they include obscene or indecent language. [subs (1B) insrt Act 67 of 2012 Sch 2[1], opn 24 Sep 2012]

(2) Without limiting subsection (1) or (1A), the following are examples of sensitive evidence: (a) a photograph of an alleged sexual assault victim, taken in connection with a criminal investigation or criminal proceedings, that shows the person’s genitalia or otherwise shows the person in a state of undress, (b) a video or audio recording, held or seized by a prosecuting authority, of a person committing a sexual offence, (c) a computer hard drive, held or seized by a prosecuting authority, containing images of child pornography or child abuse material (within the meaning of Division 15A of Part 3 of the Crimes Act 1900), (d) a photograph of a deceased person taken in connection with a post mortem examination, (e) a photograph of a deceased person taken at a crime scene. [subs (2) am Act 9 of 2010 Sch 2, opn 17 Sep 2010; Act 67 of 2012 Sch 2[2], [3], opn 24 Sep 2012]

(3) In determining whether a thing is obscene or indecent, the fact that the thing was brought into existence, or is in the possession of a prosecuting authority, for the purpose of providing evidence of an offence is to be disregarded. DIVISION 2 — EVIDENCE HELD BY PROSECUTING AUTHORITY [Div 2 heading insrt Act 87 of 2018 Sch 1 item 1.15[8], opn 28 Nov 2018]

[2-s 281C] Accused person not entitled to copy of sensitive evidence 281C (1) A prosecuting authority is not required and cannot be required (whether by subpoena or any other procedure), in or in connection with any criminal investigation or criminal proceedings, to give an accused person a copy of anything the prosecuting authority reasonably considers to be sensitive evidence. (2) This section applies despite anything to the contrary in this or any other Act, or any other law.

[2-s 281D] Procedures for giving access to sensitive evidence to accused person 281D (1) If, but for this Part, a prosecuting authority would be required, in or in connection with any criminal investigation or criminal proceedings, to provide a copy of a thing to an accused person, and the prosecuting authority does not give a copy of the thing to the accused person as a result of this Part, the prosecuting authority must give the accused person a written notice (a sensitive evidence notice) that complies with this section. (2) The sensitive evidence notice must: (a) describe the thing that the prosecuting authority considers to be sensitive evidence, and (b) indicate that, as the prosecuting authority considers the thing to be sensitive evidence, the prosecuting authority is not required to give the accused person a copy of the thing, and (c) indicate that the accused person will not be given a copy of the thing, and

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Criminal Procedure

s 281D

[2-s 281D]

s 281D

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

(d) contain information to the effect that the accused person is entitled to view or listen to the thing at a place nominated by the prosecuting authority and under the supervision of the prosecuting authority, and (e) set out the name and contact details of the person who is responsible for arranging the viewing of, or listening to, the thing on behalf of the prosecuting authority. [subs (2) am Act 67 of 2012 Sch 2[4], [5], opn 24 Sep 2012]

(3) After receiving a sensitive evidence notice, the accused person may give the prosecuting authority a written notice (an access request notice) that indicates that the accused person requires access to the thing. (4) The prosecuting authority must, as soon as practicable after receiving an access request notice, give the accused person, and any other person who has been engaged to assist with the accused person’s case, reasonable access to the thing so as to enable them to view or listen to (but not copy) the thing. This may require access to be given on more than one occasion. [subs (4) am Act 67 of 2012 Sch 2[6], opn 24 Sep 2012]

(5) The prosecuting authority may require any such access to take place subject to such conditions as the prosecuting authority considers appropriate to ensure that there is no unauthorised reproduction or circulation of the thing and that the integrity of the thing is protected. (6) Without limiting subsection (5), the prosecuting authority may require any such access to take place under the supervision of the prosecuting authority or a person assisting the prosecuting authority. (7) A person who is given access to a thing by a prosecuting authority under this section must not, without the authority of the prosecuting authority: (a) copy, or permit a person to copy, the thing, or (b) give the thing to another person, or (c) remove the thing from the custody of the prosecuting authority. Maximum penalty: 100 penalty units, or 2 years imprisonment, or both. (8) The Attorney General may approve the form of any notice to be used for the purposes of this section. COMMENTARY ON SECTION 281D Law Part Codes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sensitive evidence notices and undertakings . . . . . . . . . . . . . . . . . . . .

[2 s 281D.0] [2-s 281D.1]

[2 s 281D.0] Law Part Codes The Law Part Code for s 281D(7)(a) is 57004. The Law Part Code for s 281D(7)(b) is 57005. The Law Part Code for s 281D(7)(c) is 57006. [2-s 281D.1] Sensitive evidence notices and undertakings See [2-5730] and following for forms of notices and undertakings concerning sensitive evidence under Pt 2A of the Criminal Procedure Act 1986.

[2-s 281E] Prosecuting authority entitled to retain possession of sensitive evidence 281E (1) If during any criminal proceedings an accused person is given sensitive evidence, or a copy of sensitive evidence, by the prosecuting authority in the

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CRIMINAL PROCEDURE ACT 1986

[2-s 281FA]

proceedings, the court must, on application by the prosecuting authority, direct the accused person to return the sensitive evidence or copy to the custody of the prosecuting authority at or before the end of each day during which the proceedings are heard. (2) At the completion of any criminal proceedings in which sensitive evidence is tendered by the prosecuting authority, or sensitive evidence given to the accused person by the prosecuting authority is tendered by the accused person, the court must, on application by the prosecuting authority, direct that the sensitive evidence, and any copies of the sensitive evidence made for the purposes of the proceedings, be returned to the custody of the prosecuting authority.

[2-s 281F] Improper copying or circulation of sensitive evidence 281F (1) A person who has possession of sensitive evidence that is prosecution evidence must not copy, or permit a person to copy, the sensitive evidence, or give possession of the sensitive evidence to another person, except: (a) for the legitimate purposes of a criminal investigation or criminal proceedings, or (b) if the person is a public official, in the proper exercise of the person’s public official functions (including any functions relating to education or training). Maximum penalty: 100 penalty units, or 2 years imprisonment, or both. (2) For the purposes of this section, any sensitive evidence in the possession of a person is prosecution evidence if: (a) the person was given possession of the sensitive evidence by a prosecuting authority in or in connection with a criminal investigation or criminal proceedings, or (b) the person is a public official who created, or obtained possession of, the sensitive evidence in the exercise of, or as a result of an opportunity that arose in the exercise of, public official functions in or in connection with a criminal investigation or criminal proceedings. (3) In this section: public official has the same meaning as in the Independent Commission Against Corruption Act 1988. COMMENTARY ON SECTION 281F Law Part Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 281.0] Law Part Code

[2-s 281.0]

The Law Part Code for s 281F(1) is 57007.

DIVISION 3 — EVIDENCE HELD BY HEALTH AUTHORITY [Div 3 insrt Act 87 of 2018 Sch 1 item 1.15[9], opn 28 Nov 2018]

[2-s 281FA] Accused person not entitled to obtain sensitive evidence from health authority 281FA (1) In any criminal proceedings, a health authority is not required to produce, in response to a subpoena given by the accused person, anything the health authority reasonably considers to be sensitive evidence. (2) This section applies despite anything to the contrary in this or any other Act, or any other law.

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Criminal Procedure

s 281FA

[2-s 281FB]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 281FB

[2-s 281FB] Health authority to give sensitive evidence notice 281FB (1) If a health authority wishes to rely on this Division to refuse production of a thing that it would otherwise be required to produce under a subpoena, the health authority must give the court and the accused person a written notice (a sensitive evidence notice) that complies with this section. (2) The sensitive evidence notice must: (a) describe the thing that the health authority considers to be sensitive evidence, and (b) indicate that, as the health authority considers the thing to be sensitive evidence, the health authority is not required to produce the thing, and (c) indicate that the thing will not be produced, and (d) contain information to the effect that the accused person is entitled to view or listen to the thing in accordance with supervised access arrangements, and (e) set out the name and contact details of the person (the access supervisor) who is responsible for arranging access to the thing under the supervised access arrangements. (3) The court must, on receipt of the sensitive evidence notice, set aside the subpoena (wholly or to the extent that it relates to the sensitive evidence) and order that the accused person be given access to the sensitive evidence in accordance with the sensitive evidence notice. (4) The Attorney General may approve the form of a notice to be used for the purposes of this section.

[2-s 281FC] Access to be given to accused person 281FC (1) The access supervisor under a sensitive evidence notice must, as soon as practicable after receiving a written request from the accused person, give the accused person, and any other person who has been engaged to assist with the accused person’s case, access to the sensitive evidence under supervised access arrangements. (2) The access supervisor must ensure that reasonable access is given. This may require access to be given on more than one occasion. (3) A person who is given access to a thing under supervised access arrangements must not, without the permission of the access supervisor: (a) copy, or permit a person to copy, the thing, or (b) give the thing to another person, or (c) remove the thing from the custody of the access supervisor. Maximum penalty: 100 penalty units, or 2 years imprisonment, or both.

[2-s 281FD] Supervised access arrangements 281FD (1) A health authority may approve arrangements that enable an accused person, and any other person who has been engaged to assist with the accused person’s case, to view or listen to (but not copy) sensitive evidence held by the health authority. Those arrangements are supervised access arrangements. (2) The supervised access arrangements may require access to take place subject to such conditions as the health authority considers appropriate to ensure that there is no unauthorised reproduction or circulation of the thing and that the integrity of the thing is protected.

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CRIMINAL PROCEDURE ACT 1986

[2-s 281FF]

(3) Without limiting subsection (2), the conditions may require access to take place under the immediate or general supervision of the health authority. (4) A function of a health authority under a supervised access arrangement may, with the agreement of a prosecuting authority, be exercised by the prosecuting authority on behalf of the health authority.

[2-s 281FE] Health authority entitled to retain possession of sensitive evidence 281FE (1) If during any criminal proceedings an accused person is given sensitive evidence, or a copy of sensitive evidence, by a health authority, the court must, on application by the health authority, direct the accused person to return the sensitive evidence or copy to the custody of the health authority at or before the end of each day during which the proceedings are heard. (2) At the completion of any criminal proceedings in which sensitive evidence is produced by a health authority, or sensitive evidence given to the accused person by a health authority is tendered by the accused person, the court must, on application by the health authority, direct that the sensitive evidence, and any copies of the sensitive evidence made for the purposes of the proceedings, be returned to the custody of the health authority. (3) A function of a health authority under this section may, with the agreement of a prosecuting authority, be exercised by the prosecuting authority on behalf of the health authority. In that case, sensitive evidence is to be returned to the prosecuting authority instead of the health authority.

[2-s 281FF] Improper copying or circulation of sensitive evidence 281FF (1) A person who has possession of sensitive evidence that is health evidence must not copy, or permit a person to copy, the sensitive evidence, or give possession of the sensitive evidence to another person, except: (a) for the legitimate purposes of a criminal investigation or criminal proceedings, or (b) if the person is a public official, in the proper exercise of the person’s public official functions (including any functions relating to education or training). Maximum penalty: 100 penalty units, or 2 years imprisonment, or both. (2) For the purposes of this section, any sensitive evidence in the possession of a person is health evidence if: (a) the person was given possession of the sensitive evidence by a health authority, or by a prosecuting authority exercising functions on behalf of a health authority, in or in connection with a criminal investigation or criminal proceedings, or (b) the person is a public official who created, or obtained possession of, the sensitive evidence in the exercise of, or as a result of an opportunity that arose in the exercise of, public official functions in or in connection with a criminal investigation or criminal proceedings. (3) A person cannot be found guilty of an offence against this section and an offence against section 281F in respect of the same act or omission.

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Criminal Procedure

s 281FF

[2-s 281FF]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 281FF

(4) In this section: public official has the same meaning as in the Independent Commission Against Corruption Act 1988.

[2-s 281FG] Evidence may be provided to prosecuting authority 281FG This Part does not prevent a health authority from giving a police officer or prosecuting authority access to sensitive evidence held by the health authority in connection with any criminal investigation or criminal proceedings. PART 2B — TERRORISM EVIDENCE [Pt 2B insrt Act 29 of 2018 Sch 1 item 1.10[14], opn 1 Jan 2019]

[2-s 281G] Definitions 281G (1) In this Part: accused person, criminal investigation, criminal proceedings and prosecuting authority have the same meanings as in Part 2A of this Chapter. Commonwealth Criminal Code means the Criminal Code set out in the Schedule to the Criminal Code Act 1995 of the Commonwealth. designated terrorism evidence means any thing that is designated as terrorism evidence by a prosecuting authority, as identified in a terrorism evidence notice. publish means disseminate or provide access to one or more persons by means of the internet, radio, television or other media. terrorism evidence means any thing that contains or displays material that: (a) advocates support for engaging in any terrorist acts or violent extremism, or (b) relates to planning or preparing for, or engaging in, any terrorist acts or violent extremism, or (c) advocates joining or associating with a terrorist organisation. terrorism evidence notice means a notice under this Part that identifies a thing as terrorism evidence. terrorist act has the same meaning as in Part 5.3 of the Commonwealth Criminal Code. terrorist organisation has the same meaning as in Division 102 of Part 5.3 of the Commonwealth Criminal Code. unrepresented accused person means an accused person who is not represented by an Australian legal practitioner. (2) In this Part: (a) a reference to an accused person does not include a reference to an Australian legal practitioner representing the accused person, and (b) a reference to a prosecuting authority does include a reference to an Australian legal practitioner representing the prosecuting authority.

[2-s 281H] Accused person not entitled to copy of terrorism evidence 281H (1) A prosecuting authority is not required and cannot be required (whether by subpoena or any other procedure), in or in connection with any criminal investigation

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CRIMINAL PROCEDURE ACT 1986

[2-s 281J]

or criminal proceedings, to give an accused person a copy of any thing designated by the prosecuting authority as terrorism evidence. (2) A prosecuting authority may designate a thing as terrorism evidence only if the prosecuting authority reasonably considers the thing to be terrorism evidence. (3) This section applies despite anything to the contrary in this or any other Act, or any other law.

[2-s 281I] Procedure for dealing with terrorism evidence 281I (1) If, but for this Part, a prosecuting authority would be required, in or in connection with any criminal investigation or criminal proceedings, to give to an accused person any thing designated by the prosecuting authority as terrorism evidence, the prosecuting authority must: (a) identify the thing that has been designated as terrorism evidence in a written notice (a terrorism evidence notice), and (b) serve the notice on: (i) in the case of an unrepresented accused person — the accused person, or (ii) in the case of an accused person represented by an Australian legal practitioner — the Australian legal practitioner. (2) A terrorism evidence notice must also contain the following information: (a) that the prosecuting authority is not required to, and will not, give the accused person a copy of designated terrorism evidence, (b) that an unrepresented accused person may view or listen to the designated terrorism evidence at a place nominated by the prosecuting authority and under the supervision of the prosecuting authority, (c) the name and contact details of the person responsible for arranging for the unrepresented accused person to view or listen to the designated terrorism evidence on behalf of the prosecuting authority, (d) that the prosecuting authority will give an Australian legal practitioner representing the accused person a copy of the designated terrorism evidence but the Australian legal practitioner is not to allow the accused person to view or listen to the evidence except under the supervision of the Australian legal practitioner, (e) that it is an offence for an accused person to be in possession of designated terrorism evidence and for an Australian legal practitioner to give possession of designated terrorism evidence to the accused person.

[2-s 281J] Return of designated terrorism evidence 281J (1) A prosecuting authority may also serve a terrorism evidence notice in respect of evidence that it has provided to the accused person (including by subpoena or any other procedure) in or in connection with a criminal investigation or criminal proceedings that it later designates as terrorism evidence. (2) The notice is to identify the thing that has been designated as terrorism evidence, and is to be served on the accused person or the Australian legal practitioner who represents the accused person, in the same way as a notice under section 281I.

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Criminal Procedure

s 281J

[2-s 281J]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 281J

(3) A terrorism evidence notice that is served under this section must also contain the following information: (a) that the accused person must return the designated terrorism evidence, if it is in the person’s possession, to the prosecuting authority within the period of time specified in the notice (not being less than 7 days after the notice is served on the accused person), (b) that an unrepresented accused person may, after having returned the designated terrorism evidence, view or listen to the evidence at a place nominated by the prosecuting authority and under the supervision of the prosecuting authority, (c) the name and contact details of the person responsible for arranging for the unrepresented accused person to view or listen to the designated terrorism evidence on behalf of the prosecuting authority, (d) that an Australian legal practitioner representing an accused person may retain the designated terrorism evidence but is not to allow the accused person to view or listen to the designated terrorism evidence except under the supervision of the Australian legal practitioner, (e) that it is an offence for an accused person to be in possession of designated terrorism evidence and for an Australian legal practitioner to give possession of designated terrorism evidence to the accused person.

[2-s 281K] Procedures for giving access to designated terrorism evidence to unrepresented accused person 281K (1) After receiving a terrorism evidence notice, an unrepresented accused person may give the prosecuting authority a written notice (an access request notice) that indicates that the unrepresented accused person requires access to the designated terrorism evidence. (2) The prosecuting authority must, as soon as practicable after receiving an access request notice, give the unrepresented accused person reasonable access to the designated terrorism evidence so as to enable them to view or listen to (but not copy) the evidence. This may require access to be given on more than one occasion. (3) The prosecuting authority may require any such access to take place subject to such conditions as the prosecuting authority considers appropriate to ensure that there is no unauthorised reproduction or circulation of the designated terrorism evidence and that its integrity is protected. (4) Without limiting subsection (3), the prosecuting authority may require any such access to take place under the supervision of the prosecuting authority or a person assisting the prosecuting authority. (5) A person who is given access to designated terrorism evidence by a prosecuting authority under this section must not, without the authority of the prosecuting authority: (a) copy, or permit a person to copy, the designated terrorism evidence, or (b) give the designated terrorism evidence to another person, or (c) remove the designated terrorism evidence from the custody of the prosecuting authority, or (d) publish the designated terrorism evidence. Maximum penalty: 100 penalty units or imprisonment for 2 years, or both.

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CRIMINAL PROCEDURE ACT 1986

[2-s 281M]

[2-s 281L] Improper copying or circulation of designated terrorism evidence 281L (1) A person who has possession of designated terrorism evidence and who knows, or ought reasonably to know, that it is designated terrorism evidence, must not copy, or permit a person to copy, the evidence, give possession of the evidence to another person or publish the evidence except: (a) for the legitimate purposes of a criminal investigation or criminal proceedings, or (b) if the person is a public official, in the proper exercise of the person’s public official functions (including any functions relating to education or training). Maximum penalty: 100 penalty units or imprisonment for 2 years, or both. (2) The exceptions provided for by subsection (1)(a) and (b) do not authorise: (a) an Australian legal practitioner representing an accused person to give possession of designated terrorism evidence to the accused person, except while the accused person is under the supervision of the Australian legal practitioner, or (b) an accused person to copy, or to permit a person to copy, or to publish any designated terrorism evidence or to give possession of any designated terrorism evidence to any other person other than an Australian legal practitioner representing the person or the prosecuting authority. (3) In this section: public official means a public official (within the meaning of the Independent Commission Against Corruption Act 1988) who has possession of designated terrorism evidence as a result of the exercise of, or an opportunity that arose in the exercise of, public official functions in or in connection with a criminal investigation or criminal proceedings.

[2-s 281M] Accused person not to possess designated terrorism evidence 281M (1) An accused person who knows, or ought reasonably to know, that evidence is designated terrorism evidence must not be in possession of that evidence, except while under the supervision of: (a) in the case of an unrepresented accused person — the prosecuting authority or a person assisting the prosecuting authority, or (b) in the case of an accused person represented by an Australian legal practitioner — the Australian legal practitioner. Maximum penalty: 100 penalty units or imprisonment for 2 years, or both. (2) This section does not apply to designated terrorism evidence that is in the possession of an accused person if: (a) a terrorism evidence notice has been served on the accused person requiring the person to return the designated terrorism evidence to the prosecuting authority, and (b) the period within which the designated terrorism evidence must be returned has not ended.

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Criminal Procedure

s 281M

[2-s 281N]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 281N

[2-s 281N] Prosecuting authority entitled to retain possession of terrorism evidence during criminal proceedings 281N (1) If, during any criminal proceedings, an unrepresented accused person is given terrorism evidence, or a copy of terrorism evidence, by the prosecuting authority in the proceedings, the court must, on application by the prosecuting authority, direct the unrepresented accused person to return the terrorism evidence or copy to the custody of the prosecuting authority at or before the end of each day during which the proceedings are heard. (2) At the completion of any criminal proceedings in which terrorism evidence is tendered by the prosecuting authority, or terrorism evidence given to the unrepresented accused person by the prosecuting authority is tendered by the unrepresented accused person, the court must, on application by the prosecuting authority, direct that the terrorism evidence, and any copies of the terrorism evidence made for the purposes of the proceedings, be returned to the custody of the prosecuting authority. PART 3 — SCIENTIFIC EXAMINATIONS AND LAW ENFORCEMENT DEVICES [Heading insrt Act 119 of 2001 s 3 and Sch 1[103], opn 7 July 2003; am Act 88 of 2014 Sch 2 item 2.16, opn 8 Jan 2015]

[2-s 282] Scientific examinations 282 (1) Unless otherwise directed by the court, it is not necessary for a person who has made a scientific examination of any article or living person or dead body to give evidence of the result of the examination. (2) A certificate under the hand of any such person stating: (a) that he or she has made the examination, and (b) the nature of his or her scientific qualifications, and (c) the facts and conclusions he or she has arrived at, is admissible as evidence of the matters stated in the certificate. (3) [subs (3) rep Act 59 of 2014 Sch 1 item 1.6[4], opn 23 Oct 2014] [s 282 insrt Act 94 of 1999 s 4 and Sch 2[31], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[104], opn 7 July 2003; am Act 119 of 2001 s 3 and Sch 1[105], opn 7 July 2003] Editor’s Note. Section 282 (previously s 109) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 414(1) and (1B) of the Crimes Act 1900.

[2-s 283] Law enforcement devices 283 (1) A certificate: (a) that would, by virtue of a provision of Division 5 of Part 5.3 of, or Division 2 of Part 5 of Schedule 3 to, the Road Transport Act 2013, be admissible in proceedings for an offence under that Act as evidence of the particulars certified in and by the certificate, or (b) that would, by virtue of section 33, 33D, 35, 46, 47, 47B, 57 or 57B of the former Road Transport (Safety and Traffic Management) Act 1999 (as continued in effect under Schedule 4 to the Road Transport Act 2013), be admissible in proceedings for an offence under the former Act as evidence of the particulars certified in and by the certificate, or

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CRIMINAL PROCEDURE ACT 1986

[2-s 283A]

(c) that would, by virtue of clause 27 or 29 of Schedule 1 to the Marine Safety Act 1998, be admissible in proceedings for an offence under that Act as evidence of the particulars certified in and by the certificate, is admissible in all criminal proceedings as evidence of those particulars. (2) Despite subsection (1), such a certificate is not admissible in proceedings under the Drug Misuse and Trafficking Act 1985 as evidence of the use or administration, by the person to whom the certificate relates, of any prohibited drug within the meaning of that Act. (3) Evidence is not required in any criminal proceedings: (a) as to the accuracy or reliability of any approved traffic enforcement device or breath analysing instrument to which such a certificate relates, or (b) as to the manner in which any approved traffic enforcement device or breath analysing instrument to which such a certificate relates was operated, unless evidence is adduced that the device or instrument was not accurate, was not reliable or was not properly operated. (4) A photograph: (a) that would, by virtue of a provision of Division 5 of Part 5.3 of the Road Transport Act 2013, be admissible in proceedings under that Act as evidence of the matters shown or recorded on the photograph, or (b) that would, by virtue of section 47, 47B, 57 or 57B of the former Road Transport (Safety and Traffic Management) Act 1999 (as continued in effect under Schedule 4 to the Road Transport Act 2013), be admissible in proceedings under the former Act as evidence of the matters shown or recorded on the photograph, is admissible in all criminal proceedings as evidence of those matters. (5) In this section: approved traffic enforcement device means any of the following: (a) an approved traffic enforcement device (within the meaning of the Road Transport Act 2013), (b) an approved average speed detection device, approved camera detection device, approved camera recording device, approved speed measuring device or approved traffic lane camera device (within the meaning of the former Road Transport (Safety and Traffic Management) Act 1999). breath analysing instrument means any of the following: (a) a breath analysing instrument (within the meaning of the Road Transport Act 2013), (b) a breath analysing instrument (within the meaning of the former Road Transport (Safety and Traffic Management) Act 1999). [s 283 subst Act 19 of 2013 Sch 4 item 4.13[2], opn 1 July 2013]

PART 3A — STATEMENTS [Pt 3A insrt Act 55 of 2017 Sch 1[10], opn 30 Apr 2018]

[2-s 283A] Application of Part 283A (1) This Part applies to statements: (a) for the purposes of giving evidence under Division 6 of Part 2 of Chapter 3, and

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Criminal Procedure

s 283A

[2-s 283A]

s 283A

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

(b) for any other purposes prescribed by the regulations. Note. Material that is included in a brief of evidence for committal proceedings under Division 3 of Part 2 of Chapter 3 may be, but is not required to be, in the form required under this Part (see section 62(2)). This Part also applies to statements provided in committal proceedings under Division 3A of Part 3 of the Children (Criminal Proceedings) Act 1987 (see section 31D of that Act) and to statements provided under Division 3AA of Part 3 of that Act. [subs (1) am Act 88 of 2018 Sch 5[8], opn 1 Dec 2018]

(2) This Part does not apply to a recorded statement provided under Part 4B of this Chapter.

[2-s 283B] Form and requirements for written statements 283B (1) A written statement may be in the form of questions and answers. (2) A written statement must specify the age of the person who made the statement. (3) A written statement must be endorsed in accordance with the regulations by the maker of the statement as to the truth of the statement and any other matter required by the regulations. (4) A written statement or such an endorsement on a statement must be written in a language of which the person who made the statement has a reasonable understanding. (5) If the written statement, or part of it, is in a language other than English, a document purporting to contain an English translation of the statement or part must be annexed to the statement. COMMENTARY ON SECTION 283B Witness statements in committal proceedings . . . . . . . . . . . . . . . . . . .

[2-s 283B.1]

[2-s 283B.1] Witness statements in committal proceedings Clauses 9H–9M of the Criminal Procedure Regulation 2017 at [2-5084]–[2-5094] and following provide for the form and contents of witness statements in committal proceedings.

[2-s 283C] Recordings of interviews with vulnerable persons 283C (1) A written statement may be in the form of a transcript of a recording made by an investigating official of an interview with a vulnerable person, during which the vulnerable person was questioned by the investigating official in connection with the investigation of the commission or possible commission of the offence (as referred to in section 306R), but only if this section is complied with. (2) The copy of the transcript of the recording must be certified by an investigating official as an accurate transcript of the recording. (3) The accused person must be given, in accordance with the regulations under section 306V(2), a reasonable opportunity to listen to and, in the case of a video recording, to view, the recording. (4) However, if the requirements of the regulations under section 306V(2) have not been complied with, the recording may be admitted if the Magistrate is satisfied that: (a) the parties consent to the recording being so used, or (b) the accused person and his or her Australian legal practitioner (if any) have been given a reasonable opportunity otherwise than in accordance with those regulations to listen to or view the recording and it would be in the interests of justice to so use the recording.

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CRIMINAL PROCEDURE ACT 1986

[2-s 283F]

(5) Nothing in this Part requires the prosecutor to serve or cause to be served on the accused person a copy of the actual recording made by an investigating official of an interview with the vulnerable person (other than a transcript of the recording). (6) This section does not affect section 306V(2). (7) In this section: investigating official has the same meaning as it has in Part 6 of this Chapter. Note. Part 6 of this Chapter allows vulnerable persons (children and cognitively impaired persons) to give evidence of a previous representation in the form of a recording made by an investigating official of an interview with the vulnerable person. Section 306V(2) (which is contained in that Part) provides that such evidence is not to be admitted unless the accused person and his or her Australian legal practitioner have been given a reasonable opportunity to listen to or view the recording.

[2-s 283D] Recordings of interviews with domestic violence complainants 283D (1) Evidence may be given in the form of a recorded statement instead of a written statement, if the offence is a domestic violence offence. (2) The requirements of Division 3 of Part 4B in relation to service of, and access to, a recorded statement must be complied with in relation to any recorded statement used instead of a written statement. (3) However, if the requirements of Division 3 of Part 4B have not been complied with, the recorded statement may be admitted if the court is satisfied that: (a) the parties consent to the recorded statement being admitted, or (b) the accused person or his or her Australian legal practitioner (if any) have been given a reasonable opportunity otherwise than in accordance with that Division to listen to or view and listen to, the recorded statement and it would be in the interests of justice to admit the recorded statement. (4) This section does not affect section 289I(2).

[2-s 283E] Form and requirements for recorded statements 283E (1) A representation contained in a recorded statement where the offence is a domestic violence offence may be in the form of questions and answers. (2) A recorded statement must contain the following statements by the domestic violence complainant: (a) a statement as to the complainant’s age, (b) a statement as to the truth of the representation, (c) any other matter required by the regulations. (3) If the representation contained in a recorded statement, or part of it, is in a language other than English: (a) the recorded statement must contain an English translation of the representation or part, or (b) a separate written English translation of the representation or part must accompany the recorded statement.

[2-s 283F] Death of person who made statement 283F (1) A written or recorded statement, or a transcript of a recording of an

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Criminal Procedure

s 283F

[2-s 283F]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 283F

interview with a vulnerable person, is not admissible if, on evidence produced during proceedings, the Magistrate is satisfied that the person who made the statement is dead. (2) If it is found after a statement is admitted in evidence in proceedings that the person who made the statement died before the statement was admitted, the statement is taken not to have been admitted in evidence. (3) This section does not apply to a deposition that is admissible under section 284.

[2-s 283G] Use of previous statements in cases involving prescribed sexual offences 283G (1) In proceedings in relation to a prescribed sexual offence, if: (a) the offence is alleged to have been committed in the course of a connected set of circumstances in which another prescribed sexual offence is alleged to have been committed, and (b) the accused person has been committed for trial in respect of, or has been convicted of, the other offence, and (c) each of the offences is alleged to have been committed against the same person, transcripts of evidence of the person against whom the offence is alleged to have been committed at the proceedings in which the accused person was committed or tried in respect of the other offence may, in so far as they are relevant to the offence the subject of the committal proceedings, be given as evidence instead of a written statement. (2) A copy of the transcript must be certified by a registrar in accordance with the rules.

[2-s 283H] Regulations relating to requirements for statements 283H (1) The regulations may make provision for or with respect to the use of statements to which this Part applies. (2) Without limiting subsection (1), regulations may be made for or with respect to the following: (a) the form of statements, (b) the signing of and endorsements on written statements by statement makers or other persons, (c) the rejection of statements, or parts of statements, that do not comply with provisions made by or under this Part, (d) other requirements for written or other statements, (e) the giving of notice of the use of written or other statements, (f) evidentiary presumptions about the stated age and signature of a person making a statement and other matters relating to any such statement, (g) service of a written or other statement and copies of proposed exhibits identified in the statement (or a notice relating to inspection of them) on the accused person by the prosecutor. PART 4 — DEPOSITIONS AND WRITTEN STATEMENTS [Heading insrt Act 119 of 2001 s 3 and Sch 1[106], opn 7 July 2003]

[2-s 284] Depositions by persons dangerously ill 284 (1) If it appears to an authorised person that:

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CRIMINAL PROCEDURE ACT 1986

[2-s 284.1]

(a) a person who is able to give material information about an indictable offence is dangerously ill, and (b) the person’s evidence will probably be lost if not immediately taken, the authorised person may take the deposition of the person in connection with the offence in the same way as if a prosecution for the offence were then pending before a court. [subs (1) am Act 71 of 2003 s 3 and Sch 2[1]–[3], opn 1 Jan 2004]

(2) The deposition must be in the form prescribed by the regulations and must be signed by the authorised person. [subs (2) am Act 71 of 2003 s 3 and Sch 2[3], opn 1 Jan 2004]

(3) As soon as practicable after the deposition is taken, a copy of the deposition must be delivered to the Attorney General, to the Director of Public Prosecutions and to each person whom the deposition tends to incriminate. (4) If practicable, each person whom the deposition tends to incriminate is entitled, before being committed or placed on trial, to be given full opportunity to cross-examine the deponent. (5) If in proceedings against an accused person: (a) for the offence to which the deposition relates, or (b) for the murder or manslaughter of the deponent, in the case of his or her death or alleged death by reason of the offence, it is proved to the satisfaction of the court that the deponent is dead, or so ill as not to be able to travel or to give evidence without a risk of endangering the deponent’s life, the deposition may be admitted as evidence for or against the accused person, whether or not it was taken in the presence or hearing of the prosecutor or the accused person. [subs (5) am Act 119 of 2001 s 3 and Sch 1[109], opn 7 July 2003]

(6) In this section: authorised person means any of the following: (a) a Judge, (b) a justice of the peace who is a registrar of the Local Court or the Drug Court, (c) a justice of the peace who is an employee of the Attorney General’s Department authorised in writing by the Attorney General to be an authorised person for the purposes of this section. [subs (6) insrt Act 71 of 2003 s 3 and Sch 2[4], opn 1 Jan 2004; am Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009] [s 284 insrt Act 94 of 1999 s 4 and Sch 2[31], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[107], opn 7 July 2003; am Act 119 of 2001 s 3 and Sch 1[108], opn 7 July 2003] Editor’s Note. Section 284 (previously s 111) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 406 of the Crimes Act 1900.

COMMENTARY ON SECTION 284 Form of deposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 284.1]

[2-s 284.1] Form of deposition See cl 29 of the Criminal Procedure Regulation 2010 at [2-5230] and Form 3 at [2-5950] for the prescribed form of deposition for the purposes of s 284(2).

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Criminal Procedure

s 284

[2-s 285]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 285

[2-s 285] Depositions tendered by prosecution 285 (1) A deposition may be admitted as evidence for the prosecution at the trial of an accused person on proof on oath of each of the following matters: (a) that the deponent: (i) is dead, or so ill as not to be able to travel or to give evidence without a risk of endangering the deponent’s life, or (ii) is absent from Australia, (b) that the deposition was recorded: (i) by or in the presence of the Judge before whom it was taken, and (ii) in the presence of the accused person or during any period when the accused person (having been excused under section 72) was absent, (c) that the accused person, or his or her Australian legal practitioner, had full opportunity to cross-examine the witness, or that the accused person (having been excused under section 72) was absent when the deposition was taken and was not represented by an Australian legal practitioner. [subs (1) am Act 120 of 2006 s 3 and Sch 3[9], [12], opn 4 Dec 2006]

(2) The deposition: (a) must be in writing, signed by the Judge by or before whom the deposition was taken, or (b) must be in the form of a written transcript of matter recorded by means, other than writing, authorised by law for the recording of depositions. (3) If the deposition is in the form of a written transcript referred to in subsection (2)(b), it must be proved on oath: (a) that the record so made is a true record of the matter so deposed, and (b) that the transcript of the record is a correct transcript of that record. (4) If it appears from the deposition: (a) that it was made in the presence of the accused person, and (b) that the accused person, or his or her Australian legal practitioner, had full opportunity to cross-examine the witness, the deposition is taken to have been so made and the accused person, or his or her Australian legal practitioner, is taken to have had such an opportunity, unless proved to the contrary. [subs (4) am Act 120 of 2006 s 3 and Sch 3[9], opn 4 Dec 2006]

(5) If it appears from the deposition: (a) that it was made while the accused person (having been excused under section 72) was absent, and (b) that the accused person was not represented by an Australian legal practitioner at that time, the deposition is taken to have been so made and the accused person is taken to have not been represented by an Australian legal practitioner, unless proved to the contrary. [subs (5) am Act 120 of 2006 s 3 and Sch 3[12], opn 4 Dec 2006]

(6) In this section: Judge includes a coroner holding office under the Coroners Act 2009. [def am Act 41 of 2009 Sch 4, opn 1 Jan 2010] [subs (6) subst Act 119 of 2001 s 3 and Sch 1[111], opn 7 July 2003] [s 285 insrt Act 94 of 1999 s 4 and Sch 2[31], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[107],

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CRIMINAL PROCEDURE ACT 1986

[2-s 286]

opn 7 July 2003; am Act 119 of 2001 s 3 and Sch 1[108], [110], opn 7 July 2003] Editor’s Note. Section 285 (previously s 112) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 409 of the Crimes Act 1900.

COMMENTARY ON SECTION 285 Depositions as evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 285.1]

[2-s 285.1] Depositions as evidence The provisions of the section were formerly found in s 409 of the Crimes Act and then s 112 of this Act. The decisions concerning those sections would apply to this section. A “deposition” for the purpose of the section is a reference to the transcript of evidence given by a witness at committal proceedings and not evidence given by the witness at an earlier trial; R v Li (2003) 140 A Crim R 288; [2003] NSWCCA 386; BC200308070; (2004) 11 Crim LN 12 [1651]. The trial judge is to determine all the facts necessary to be found as a precondition to the admission of the depositions and his or her determination is normally conclusive: Attorney-General (NSW) v Jackson (1906) 3 CLR 730; 12 ALR 375; BC0600053. Once the preconditions have been found to exist there is no discretion in the trial judge to refuse to admit them: R v Lynch [1979] 2 NSWLR 775; (1979) 1 A Crim R 117, unless the prejudicial effect of the evidence outweighs its probative value: Gorman v Fitzpatrick (1987) 32 A Crim R 330; BC8700801; Nalberski v R (1989) 44 A Crim R 434; BC8900889. The trial judge can reject the evidence on any discretion open to reject otherwise admissible evidence but the evidence cannot be rejected simply because the witness is not available for cross-examination although this is a relevant matter to consider in assessing the probative value of the evidence: R v Stackelroth (1996) 86 A Crim R 438; BC9600095; (1996) 3 Crim LN 5 [522] where it was held that the court could not reject the evidence merely because its probative value was prejudicial to the accused. The depositions do not become inadmissible because of some omission of a statement made by the witness during examination although if the omitted matter is relevant it may go to the reliability to be afforded to the deposition: Attorney-General (NSW) v Jackson, above. Where a deposition is admitted into evidence, a warning should be given to the jury that they have not heard the witness: Mendham v R (1993) 71 A Crim R 382; BC9303895.

[2-s 286] Depositions tendered by accused person 286 (1) The deposition of any witness called and examined before a judge by and on behalf of the accused person may, if the accused person so requires, be admitted as evidence in his or her defence at the trial: (a) if the witness: (i) is dead, or so ill as not to be able to travel or to give evidence without a risk of endangering the witness’s life, or (ii) is absent from Australia, or (b) if the committing Magistrate has certified, before committing the accused person for trial, that in the opinion of the Magistrate: (i) the evidence of the witness is material, and (ii) the witness is willing to attend the trial, but is unable to bear the expense of attendance. [subs (1) am Act 119 of 2001 s 3 and Sch 1[112], [113], opn 7 July 2003]

(2) A deposition may not be admitted as evidence on the ground referred to in subsection (1)(b) if the witness has, in due time before the trial, been subpoenaed by the Crown.

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Criminal Procedure

s 286

[2-s 286]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 286

(3) In this section: Judge includes a coroner holding office under the Coroners Act 2009. [def am Act 41 of 2009 Sch 4, opn 1 Jan 2010] [subs (3) subst Act 119 of 2001 s 3 and Sch 1[114], opn 7 July 2003] [s 286 insrt Act 94 of 1999 s 4 and Sch 2[31], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[107], opn 7 July 2003] Editor’s Note. Section 286 (previously s 113) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 409 of the Crimes Act 1900.

[2-s 287] Evidentiary effect of certain transcripts 287 (1) If a deposition referred to in section 285 or 286 is in the form of a written transcript of matter recorded by means, other than writing, authorised by law for the recording of depositions: (a) the record so made is taken to be a true record of the matter so deposed, and (b) the transcript of the record is taken to be a correct transcript of that record, unless proved to the contrary. [subs (1) am Act 55 of 2016 Sch 3.7, opn 6 Jan 2017]

(2) Subsection (1) applies only to: (a) a transcript made in the form of shorthand notes, being a transcript identified by, and signed in the handwriting of, the person purporting to have made those notes, or (b) a transcript made by other means (other than writing) authorised by law for the recording of depositions, being a transcript certified in the manner prescribed by the rules. [subs (2) am Act 119 of 2001 s 3 and Sch 1[115], opn 7 July 2003] [s 287 insrt Act 94 of 1999 s 4 and Sch 2[31], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[107], opn 7 July 2003] Editor’s Note. Section 287 (previously s 114) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 409 of the Crimes Act 1900.

[2-s 288] Depositions taken during pre-trial investigations 288 A deposition taken on the preliminary or other investigation of an indictable offence: (a) may be admitted as evidence on the trial of the accused person for any other offence, whether of the same or of a different kind, if it would be admissible on his or her trial for the offence in respect of which it was taken, and (b) may be proved in the same manner as if the accused person were on trial for that offence. [s 288 insrt Act 94 of 1999 s 4 and Sch 2[31], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[107], opn 7 July 2003] Editor’s Note. Section 288 (previously s 115) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 409 of the Crimes Act 1900.

[2-s 289] Written statements admitted in committal proceedings 289 (1) This section applies to a written statement (a prescribed written statement) the whole or any part of which has been admitted as evidence under Division 6 of Part

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CRIMINAL PROCEDURE ACT 1986

[2-s 289.1]

2 of Chapter 3 or under Division 3A of Part 3 of the Children (Criminal Proceedings) Act 1987, including any part of the statement that has been rejected for the purposes of that Division. [subs (1) am Act 119 of 2001 s 3 and Sch 1[116]–[118], opn 7 July 2003; subst Act 55 of 2017 Sch 1[11], opn 30 Apr 2018]

(2) Except in so far as the court otherwise orders, a prescribed written statement may be admitted as evidence for the prosecution at the trial of the accused person on proof on oath that the person who made the statement: (a) is dead, or so ill as not to be able to travel or to give evidence without a risk of endangering the person’s life, or (b) is absent from Australia. (3) If the accused person so requires, a prescribed written statement may be admitted as evidence in the accused person’s defence at the trial of the accused person whenever: (a) the person who made the statement: (i) is dead, or so ill as not to be able to travel or to give evidence without a risk of endangering the person’s life, or (ii) is absent from Australia, or (b) the committing Magistrate has certified, before committing the person for trial, that in the opinion of the Magistrate: (i) the evidence of the person who made the statement is material, and (ii) the person is willing to attend the trial, but is unable to bear the expense of attendance. [subs (3) am Act 119 of 2001 s 3 and Sch 1[119], opn 7 July 2003]

(4) A statement may not be admitted as evidence on the ground referred to in subsection (3)(b) if the person who made the statement has, in due time before the trial, been subpoenaed by the Crown. (5) A prescribed written statement made in respect of an indictable offence may be admitted as evidence on the trial of the accused person for any other offence, whether of the same or of a different kind, if it would be admissible on his or her trial for the offence in respect of which it was made. (6) If at a trial it appears to the court that the whole or any part of a prescribed written statement is inadmissible, the court may reject the statement or that part, as the case may be, as evidence. [s 289 insrt Act 94 of 1999 s 4 and Sch 2[31], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[107], opn 7 July 2003] Editor’s Note. Section 289 (previously s 116) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 409 of the Crimes Act 1900.

COMMENTARY ON SECTION 289 Statements at committal proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 289.1]

[2-s 289.1] Statements at committal proceedings Where a written statement admitted at committal proceedings under s 48A of the repealed Justices Act (now s 74 of this Act) did not comply with that section, it was held to be inadmissible under the equivalent of this provision: Adamiczka v R (1993) 33 NSWLR 68; 71 A Crim R 291; BC9303906. However Mahoney JA was of the view that immaterial breaches should not render the statement inadmissible and the trial judge has power under such a provision to refuse to accept the tender of evidence which has been wrongly admitted.

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Criminal Procedure

s 289

[2-s 289.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 289

It was also held that where at the trial an issue arises as to the admissibility of a statement at committal, the judge has to satisfy himself or herself that the statement did qualify for admission by the magistrate. The conditions of admissibility of a statement under s 48C of the Justices Act 1902 (now s 79 of this Act) may be waived by a party so that the statement is admissible under the equivalent of s 48A and, therefore, admissible at the trial under this provision: R v Sullivan (NSWCCA, Gleeson, Powell, Hulme JJ, 22 August 1995, unreported, BC9505248); (1995) 2 Crim LN 61 [448]. A statement was held to be admissible under the Justices Act where notice was given by the accused for the witness to attend at committal proceedings but the accused failed to appear at the hearing himself: R v Gover (2000) 118 A Crim R 8; [2000] NSWCCA 303; BC200004876; (2000) 7 Crim LN 69 [1191], in which an argument that the section had been impliedly repealed by the Evidence Act 1995 was rejected. The trial judge has a residual discretion to reject the admission of a statement tendered in committal proceedings but the judge must take into account in its exercise the legislative policy in the use of statements at committal: R v Stackelroth (1996) 86 A Crim R 438; BC9600095; (1996) 3 Crim LN 5 [522] where Hunt CJ at CL considered some of the matters relevant to the exercise of the discretion.

PART 4A — USE OF RANDOM SAMPLE EVIDENCE [Pt 4A insrt Act 9 of 2010 Sch 2, opn 17 Sep 2010]

[2-s 289A] Definitions 289A In this Part: authorised analyst [def rep Act 11 of 2012 Sch 1.1[5], opn 21 Mar 2012]

authorised classifier means any person, or person of a class, prescribed by the regulations for the purposes of this definition. [def insrt Act 11 of 2012 Sch 1.1[6], opn 21 Mar 2012]

child abuse material and material have the same meanings as they have in Division 15A of Part 3 of the Crimes Act 1900. child abuse material offence means an offence under Division 15A of Part 3 of the Crimes Act 1900. seized material, in relation to proceedings for a child abuse material offence, means material: (a) that came into the possession of a police officer in the course of the exercise of functions as a police officer, and (b) some of which is alleged child abuse material that is the subject of the proceedings. [def insrt Act 11 of 2012 Sch 1.1[6], opn 21 Mar 2012]

[2-s 289B] Use of random sample evidence in child abuse material cases 289B (1) An authorised classifier may, in connection with any proceedings for a child abuse material offence, conduct an examination of a random sample of seized material. [subs (1) subst Act 11 of 2012 Sch 1.1[7], opn 21 Mar 2012]

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CRIMINAL PROCEDURE ACT 1986

[2-s 289C]

(2) In proceedings for the child abuse material offence concerned, evidence adduced by the prosecutor of any findings of the authorised classifier as to the nature and content of the random sample is admissible as evidence of the nature and content of the whole of the material from which the random sample was taken. [subs (2) am Act 11 of 2012 Sch 1.1[8], opn 21 Mar 2012]

(3) Accordingly, it is open to a court to find that any type of child abuse material found by an authorised classifier to be present in a particular proportion in the random sample is present in the same proportion in the material from which the random sample was taken. [subs (3) am Act 11 of 2012 Sch 1.1[8], opn 21 Mar 2012]

(4) A certificate of an authorised classifier, that certifies any of the following matters, is admissible in proceedings for a child abuse material offence as evidence of the matters certified: (a) that the authorised classifier conducted an examination of a random sample of seized material, (b) the findings of the authorised classifier as to the nature and content of the random sample. [subs (4) subst Act 11 of 2012 Sch 1.1[9], opn 21 Mar 2012]

(5) A certificate signed by a person purporting to be an authorised classifier is taken to be a certificate of an authorised classifier, in the absence of evidence to the contrary. [subs (5) am Act 11 of 2012 Sch 1.1[8], opn 21 Mar 2012]

(6) Evidence is admissible under this section only if the court is satisfied that the accused person, or an Australian legal practitioner representing the accused person, has been given a reasonable opportunity to view all of the seized material. [subs (6) am Act 11 of 2012 Sch 1.1[10], opn 21 Mar 2012]

(7) This section does not affect the provisions of Part 2A, which restrict the access of an accused person to sensitive evidence. (8) The regulations may make further provision for or with respect to the taking and admissibility of random sample evidence under this section, including by providing for: (a) the circumstances or types of cases in which the prosecutor may adduce evidence of the findings of an authorised classifier under this section, and (b) the procedure for taking and examining random samples of material, and (c) any further requirements as to the content and service of a certificate of an authorised classifier. [subs (8) am Act 11 of 2012 Sch 1.1[8], opn 21 Mar 2012]

PART 4B — GIVING OF EVIDENCE BY DOMESTIC VIOLENCE COMPLAINANTS [Pt 4B insrt Act 83 of 2014 Sch 1[19], opn 1 June 2015]

DIVISION 1 — PRELIMINARY

[2-s 289C] Interpretation 289C (1) In this Part: complainant means a domestic violence complainant. recording means: (a) an audio recording, or

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Criminal Procedure

s 289C

[2-s 289C]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 289C

(b) a video and audio recording. view a video recording means view and listen to. (2) Words and expressions that are defined in the Evidence Act 1995 and that are used in this Part have the same meanings in this Part as they have in the Evidence Act 1995. COMMENTARY ON SECTION 289C Giving of evidence by domestic violence complainants . . . . . . . . . .

[2-s 289C.1]

[2-s 289C.1] Giving of evidence by domestic violence complainants Part 4B (ss 289C–289S) was inserted by the Criminal Procedure Amendment (Domestic Violence Complainants) Act 2014, which commenced on 1 June 2015. The provisions apply to proceedings commenced on or after 1 June 2015. In the second reading speech for the Bill, the Attorney General explained the rationale for the new Pt 4B as follows (Hansard, Legislative Assembly, 21 October 2014): The power dynamic that typifies domestic violence does not stop at the courtroom door. There is a risk of re-traumatisation of victims. They must attend court and give oral evidence from memory, and usually in front of the perpetrator, about a traumatic incident. They may face pressure from a perpetrator to stop cooperating with the prosecution. This can result in victims being reluctant to come to court or changing their evidence once in the witness box. Some may choose to not report an incident to police. The Bureau of Crime Statistics and Research estimates that only half of domestic assaults are reported to police. New measures for giving evidence using available technology are needed to reduce the trauma faced by victims when in court. These reforms provide such measures by introducing a new part into the Criminal Procedure Act 1986 to apply to the evidence of domestic violence complainants. The key element of the new part is removing the hearsay rule of evidence as it applies to domestic violence complainants in criminal proceedings. Recorded interviews of complainants taken by police at or shortly after a domestic violence incident will be able to be played in court as all, or part of, their evidence in chief. In committal proceedings, the recording will stand as the complainant’s evidence instead of a written statement. The bill contains a number of necessary safeguards of complainants’ privacy in light of the intensely personal or graphic nature of recorded material. These include a prohibition on a defendant possessing a copy of the recording, and a prohibition on copying or publishing the recording. Importantly, the rights of defendants to procedural fairness in a criminal proceeding are also protected. A complainant will still be required to attend court and give evidence on oath, and be available for cross-examination and re-examination. Defendants will be provided with notice of the evidence given against them prior to any hearing. Recorded evidence will not be able to be admitted into evidence unless the defendant has been given a reasonable opportunity to listen to and view the recording. The reforms strike an appropriate balance between supporting the domestic violence complainant’s participation in the criminal justice process, while ensuring the defendant maintains the right to a fair trial.

[2-s 289D] Meaning of “recorded statement” 289D In this Act, a recorded statement means a recording made by a police officer of a representation made by a complainant when the complainant is questioned by a police officer in connection with the investigation of the commission of a domestic violence offence if: (a) the recording is made with the informed consent of the complainant, and (b) the questioning occurs as soon as practicable after the commission of the offence.

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CRIMINAL PROCEDURE ACT 1986

COMMENTARY ON SECTION 289D Recorded statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 289F]

[2-s 289D.1]

[2-s 289D.1] Recorded statement In the second reading speech, the Attorney General said (Hansard, Legislative Assembly, 21 October 2014): New section 289D defines a recorded statement as a recording made by a police officer of the statement of the complainant, taken with the complainant’s informed consent, as soon as practicable after the commission of the offence. The complainant must understand why the statement is being recorded and that it will be used in court at a later date. This consent must be obtained at the time of the recording. Requiring the recording to be made as soon as practicable after the commission of the offence reflects the broad range of circumstances in which these offences are committed. Complainants may not always be able to give their statement immediately at the scene. They may need to attend a hospital as a result of the incident. In some cases, police may consider it is more practicable to take the statement at the station, away from the defendant and any children.

[2-s 289E] Relationship to Evidence Act 1995 289E The provisions of this Part are in addition to the provisions of the Evidence Act 1995 and do not, unless a contrary intention is shown, affect the operation of that Act. Note. For example, provisions of that Act such as section 21 (relating to oaths and affirmations) and section 65 (an exception to the hearsay rule where a person is not available to give evidence) are not affected by this Part. COMMENTARY ON SECTION 289E Relationships to Evidence Act 1995 . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 289E.1]

[2-s 289E.1] Relationships to Evidence Act 1995 In the second reading speech, the Attorney General said (Hansard, Legislative Assembly, 21 October 2014): New part [4B] will also operate in conjunction with the Evidence Act 1995, except where specific exception is made. For example, a complainant will still need to attend court and give evidence on oath, and evidence that the court considers to be irrelevant or unfairly prejudicial to the accused may not be admissible. A complainant who gives evidence in the form of a recorded statement must be available to be cross-examined and re-examined. The key exception in this bill to the Evidence Act 1995 is that domestic violence complainants will now be entitled to adopt, as their evidence-in-chief, their recorded statement.

DIVISION 2 — GIVING OF EVIDENCE OF OUT OF COURT REPRESENTATIONS

[2-s 289F] Complainant may give evidence in chief in form of recording 289F (1) In proceedings for a domestic violence offence, a complainant may give evidence in chief of a representation made by the complainant wholly or partly in the form of a recorded statement that is viewed or heard by the court. (2) A representation contained in a recorded statement may be in the form of questions and answers. (3) A recorded statement must contain the following statements by the complainant:

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Criminal Procedure

s 289F

[2-s 289F]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 289F

(a) a statement as to the complainant’s age, (b) a statement as to the truth of the representation, (c) any other matter required by the rules. (4) If the representation contained in a recorded statement, or part of it, is in a language other than English: (a) the recorded statement must contain an English translation of the representation or part, or (b) a separate written English translation of the representation or part must accompany the recorded statement. (5) A complainant who gives evidence wholly or partly in the form of a recorded statement must subsequently be available for cross-examination and re-examination: (a) orally in the courtroom, or (b) in accordance with any other alternative arrangements permitted for the complainant under this or any other Act. (6) This section does not prevent a complainant from giving evidence in any other manner permitted for the complainant under this Act or any other law. COMMENTARY ON SECTION 289F Effect of the section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 289F.5]

[2-s 289F.5] Effect of the section Where a witness had made a statement under the section and it is played to the court as the evidence in chief of the witness, it is not necessary to tender the statement as an exhibit but the playing of the statement in the court was sufficient to make it evidence in the proceedings: Director of Public Prosecutions (DPP) (NSW) v Al-Zuhairi [2018] NSWCCA 151; BC201807259; 25(8) Crim LN [4020] where a judge had wrongly refused to hear the evidence on a District Court appeal because the statement was not an exhibit in the Local Court proceedings. The interrelationship between s 289F and s 65 Evidence Act 1995 (at [3-s 65]) was considered in Director of Public Prosecutions (DPP) (NSW) v Banks [2019] NSWSC 363; BC201902564.

[2-s 289G] Determination as to whether evidence will be given by recording 289G In determining whether or not to have a complainant give evidence wholly or partly in the form of a recorded statement, the prosecutor must take into account the following matters: (a) the wishes of the complainant, (b) any evidence of intimidation of the complainant by the accused person, (c) the objects of the Crimes (Domestic and Personal Violence) Act 2007. COMMENTARY ON SECTION 289G Manner of giving evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 289G.1]

[2-s 289G.1] Manner of giving evidence The Attorney General referred to s 289G in the second reading speech (Hansard, Legislative Assembly, 21 October 2014): New section 289G details how a decision will be made as to whether evidence will be given by playing the recording or orally. Where a complainant indicates a preference to give evidence orally, their wishes must be taken into account but will not determine whether the video is played in court. This decision will rest with the prosecutor. The prosecutor must, however, take into account any evidence of intimidation of the complainant by the accused and the objects of

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CRIMINAL PROCEDURE ACT 1986

[2-s 289I]

the Crimes (Domestic and Personal Violence) Act 2007. As such, the bill recognises that the complainant’s wishes may not always be freely given, but may be influenced by a controlling defendant. Where a complainant disavows a statement made in the recording, the usual provisions of the Evidence Act 1995 concerning unfavourable witnesses will continue to apply.

[2-s 289H] Use of evidence in concurrent or related domestic violence proceedings 289H (1) This section applies if an application for an order under the Crimes (Domestic and Personal Violence) Act 2007 is made concurrently with proceedings for a domestic violence offence or arises from the circumstances of the alleged domestic violence offence. (2) If evidence is given wholly or partly in the form of a recorded statement in the proceedings for the domestic violence offence, that evidence may also be given in that form in the proceedings relating to the application for the order. Any such evidence is to be given in accordance with any rules made under the Crimes (Domestic and Personal Violence) Act 2007. COMMENTARY ON SECTION 289H Concurrent or related domestic violence proceedings . . . . . . . . . . . .

[2-s 289H.1]

[2-s 289H.1] Concurrent or related domestic violence proceedings In the second reading speech, the Attorney General said concerning s 289H (Hansard, Legislative Assembly, 21 October 2014): New section 289H allows the recorded statement given in evidence in proceedings for an offence to be given in the same form in concurrent proceedings or those arising from the same conduct for an apprehended violence order under the Crimes (Domestic and Personal Violence) Act 2007. This ensures that where the application for the apprehended violence order arises from the same set of circumstances or offending, and even where the criminal offence is dismissed, the complainant can still rely on the recorded statement in the civil proceedings. This is a common-sense way of ensuring the efficient disposal of apprehended domestic violence order [ADVO] proceedings and avoids requiring a complainant who has given recorded evidence in one set of proceedings from giving oral evidence in another related proceeding.

[2-s 289I] Admissibility of recorded evidence 289I (1) The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995) do not prevent the admission or use of evidence of a representation in the form of a recorded statement. (2) Evidence of a representation of a complainant that is given in the form of a recorded statement is not to be admitted unless the accused person was given, in accordance with Division 3, a reasonable opportunity to listen to, and, in the case of a video recording, view the recorded statement. (3) However, the recorded statement may be admitted even if the requirements of Division 3 have not been complied with if the court is satisfied that: (a) the parties consent to the recorded statement being admitted, or

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Criminal Procedure

s 289I

[2-s 289I]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 289I

(b) the accused person or his or her Australian legal practitioner (if any) have been given a reasonable opportunity otherwise than in accordance with Division 3 to listen to or view the recorded statement and it would be in the interests of justice to admit the recorded statement. COMMENTARY ON SECTION 289I Admissibility of recorded evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 289I.1]

[2-s 289I.1] Admissibility of recorded evidence The Attorney General referred to s 289I in the second reading speech (Hansard, Legislative Assembly, 21 October 2014): New section 289I makes clear that in allowing the recorded statement to be admitted as the complainant’s evidence-in-chief, the hearsay rule and the opinion rule contained in the Evidence Act 1995 will no longer apply. Admissibility is, however, subject to compliance with the specific requirements for access and service set out in new division 3 of part [4B]. The recording will not be tendered as part of the prosecution’s case; rather, it will be treated just as a witness’s oral evidence. The existing common law principles concerning the discretion of the court and the procedure to be followed where evidence is given in chief by way of a recording, as set out in R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278; BC200506064 and other relevant authorities, are not affected by the new provisions. That is, the court will maintain discretion as to how the court and/or jury, if there is one, may be reminded of the evidence contained in the recording and the procedures and safeguards around playing the recording multiple times in court or in jury deliberations.

[2-s 289J] Warning to jury 289J If a complainant gives evidence wholly or partly in the form of a recorded statement in accordance with this Division in proceedings in which there is a jury, the judge must warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the evidence being given in that way.

[2-s 289K] Transcripts of recordings 289K The court may order that a transcript of all or part of the evidence given in the form of a recorded statement be supplied to the jury if it appears to the court that a transcript would be likely to aid the jury’s comprehension of the evidence. DIVISION 3 — SERVICE OF AND ACCESS TO RECORDED STATEMENTS

[2-s 289L] Service of recorded statement 289L (1) This section applies if an accused person is represented by an Australian legal practitioner in proceedings for a domestic violence offence in which it is proposed to give the evidence of a complainant wholly or partly in the form of a recorded statement. (2) The prosecutor must cause a copy of the recorded statement to be served on the Australian legal practitioner representing the accused person as soon as practicable after the proceedings are commenced or the prosecutor determines that evidence is to be given in the form of the recorded statement, whichever occurs later.

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CRIMINAL PROCEDURE ACT 1986

COMMENTARY ON SECTION 289L Service of recorded statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 289M]

[2-s 289L.1]

[2-s 289L.1] Service of recorded statement In the second reading speech, the Attorney General referred to the provisions in Div 3, including s 289L (Hansard, Legislative Assembly, 21 October 2014): Division 3 of new part [4B] sets out the special service and access requirements for recorded statements. These are important measures balancing procedural fairness for defendants and the need to protect complainants’ safety and privacy. This is of particular concern where defendants are unrepresented. There is an increased risk of dissemination of recorded statements as a tactic to embarrass or intimidate the complainant, a risk heightened by the ease of uploading recorded material to the internet. Developments in technology require an appropriate response to ensure domestic violence complainants are not re-traumatised because of a process that is intended to support them in the criminal justice process. New section 289L provides that where a defendant is represented, a copy of the video recording must be served on their legal representative. Where a defendant is unrepresented, service of the audio copy only is required. To balance this limitation, the prosecution must, as far as is reasonably practicable, provide the defendant with an opportunity to view the video statement before the court hearing. This may occur at a police station immediately following charge, either during an interview or alone, or on nominated days after being charged. As a last resort, recordings will be shown to an unrepresented accused on a day on which their matter is listed in court — new section 289M(4).

[2-s 289M] Access to recorded statement 289M (1) This section applies if an accused person is not represented by an Australian legal practitioner in proceedings for a domestic violence offence in which it is proposed to give the evidence of a complainant wholly or partly in the form of a recorded statement. (2) The prosecutor must cause an audio copy of the recorded statement to be served on the accused person as soon as practicable after the proceedings are commenced or the prosecutor determines that evidence is to be given in the form of the recorded statement, whichever occurs later. (3) The prosecutor must also, so far as is reasonably practicable, provide the accused person with an opportunity to view a recorded statement that is in the form of a video recording at a police station on at least one of the following occasions: (a) when the accused person is being questioned in relation to the alleged domestic violence offence, (b) at the request of the accused person, on a day arranged with the accused person, (c) on another day specified by notice in writing given to the accused person by the prosecutor before committal proceedings or the trial commences. (4) If it is not reasonably practicable for the prosecutor to comply with subsection (3), the prosecutor must provide the accused person with an opportunity to view a recorded statement that is in the form of a video recording on a day on which proceedings relating to the offence are being held. (5) Evidence may not be adduced in any proceedings of the behaviour or response of an accused person when viewing a recorded statement at a place specified for that purpose under this section, unless:

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Criminal Procedure

s 289M

[2-s 289M]

s 289M

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

(a) the viewing took place while the person was being questioned in relation to an alleged domestic violence offence, or (b) the proceedings relate to the behaviour. (6) Any period during which an accused person views a video recording under subsection (3)(a) is to be included in the time to be taken into account for the purposes of determining the maximum investigation period under section 115 of the Law Enforcement (Powers and Responsibilities) Act 2002. DIVISION 4 — MISCELLANEOUS

[2-s 289N] Validity of proceedings not affected 289N (1) The failure of a complainant to give evidence in accordance with a provision of this Part does not affect the validity of any proceeding or any decision made in connection with that proceeding. (2) The failure of a police officer to record a representation of a complainant in accordance with the requirements of any rules or regulations made under this Part does not affect the validity of any proceeding in which evidence of the representation is given.

[2-s 289O] Prosecutor entitled to retain possession of recorded statement 289O (1) At the completion of any criminal proceedings in which a recorded statement is played, the court must, on application by the prosecutor, direct that the recorded statement be returned to the custody of the prosecutor. (2) In this section, a reference to a recorded statement includes a reference to any copy of a recorded statement made for the purposes of the proceedings.

[2-s 289P] Improper statement

copying

or

dissemination

of

recorded

289P (1) A person who has possession of a recorded statement must not copy, or permit a person to copy, the recorded statement, give possession of the recorded statement to another person or publish the recorded statement, except: (a) for the legitimate purposes of a criminal investigation or criminal proceedings, or (b) if the person is a public official, in the proper exercise of the person’s public official functions (including any functions relating to education or training). Maximum penalty: 100 penalty units, or 2 years imprisonment, or both. (2) This section does not permit any person, including an Australian legal practitioner who represents an accused person, to give possession of a video copy of a recorded statement to the accused person or to permit the accused person to copy or obtain a copy of a recorded statement. (3) In this section, a reference to a recorded statement includes a reference to any copy of a recorded statement made for the purposes of the proceedings. (4) An offence under this section is to be dealt with summarily. (5) In this section: public official has the same meaning as in the Independent Commission Against Corruption Act 1988.

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CRIMINAL PROCEDURE ACT 1986

[2-s 290A]

publish means disseminate or provide access to one or more persons by means of the internet, radio, television or other media.

[2-s 289Q] Court powers 289Q (1) The court may make, vary or revoke an order under a provision of this Part either on its own motion or on application by a party to the proceeding or by the complainant giving evidence. (2) Unless a contrary intention is shown, nothing in this Part limits any discretion that a court has with respect to the conduct of a proceeding. (3) Without limiting any other power of a court to adjourn proceedings, a court may adjourn any proceedings relating to a domestic violence offence for not more than 14 days to enable an accused person to view or listen to a recorded statement on the ground that the accused person has not had a reasonable opportunity to view or listen to the recording.

[2-s 289R] Rules of court 289R Rules of court may (subject to any regulations made under this Act) be made in respect of the giving of evidence in the form of a recorded statement in proceedings for a domestic violence offence.

[2-s 289S] Regulations 289S Without limiting any other provision of this Part, regulations may be made for or with respect to the following matters: (a) the giving of informed consent to the recording of a representation for the purposes of a recorded statement, (b) service of, or access to, a recorded statement, (c) the form in which a copy of a recorded statement is served on an accused person. PART 5 — EVIDENCE IN SEXUAL OFFENCE PROCEEDINGS [Heading insrt Act 119 of 2001 s 3 and Sch 1[120], opn 7 July 2003]

DIVISION 1 — EVIDENCE IN CERTAIN SEXUAL OFFENCE PROCEEDINGS [Heading insrt Act 119 of 2001 s 3 and Sch 1[120], opn 7 July 2003]

[2-s 290] Application 290 (1) This Division applies to proceedings in respect of a prescribed sexual offence, including committal proceedings. (2) This Division applies to proceedings in which a person stands charged with a prescribed sexual offence, whether the person stands charged with that offence alone or together with any other offence (as an alternative or additional count) and whether or not the person is liable, on the charge, to be found guilty of any other offence. [s 290 subst Act 25 of 2005 s 3 and Sch 1, opn 12 Aug 2005]

[2-s 290A] Definitions 290A (1) In this Division:

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Criminal Procedure

s 290A

[2-s 290A]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 290A

accused person, in relation to any proceedings, means the person who stands, or any of the persons who stand, charged in those proceedings with a prescribed sexual offence. complainant, in relation to any proceedings, means the person, or any of the persons, against whom a prescribed sexual offence with which the accused person stands charged is alleged to have been committed. [def subst Act 9 of 2010 Sch 2, opn 28 Apr 2010]

prescribed sexual offence includes a female genital mutilation offence. [def insrt Act 88 of 2018 Sch 5[9], opn 1 Dec 2018] [subs (1) am Act 9 of 2010 Sch 2, opn 28 Apr 2010]

(2) In this Division, a reference to a person against whom a prescribed sexual offence is alleged to have been committed includes: (a) in relation to an offence under section 80E of the Crimes Act 1900, a reference to the person who is alleged to have been the subject of sexual servitude, and (b) in relation to an offence under section 91D, 91E or 91F of the Crimes Act 1900, a reference to the person under the age of 18 years who is alleged to have participated in an act of child prostitution, and (c) in relation to an offence under section 91G of the Crimes Act 1900, a reference to the person under the age of 18 years who is alleged to have been used for the production of child abuse material. [subs (2) insrt Act 9 of 2010 Sch 2, opn 28 Apr 2010] [s 290A insrt Act 25 of 2005 s 3 and Sch 1, opn 12 Aug 2005]

[2-s 291] Proceedings must be held in camera when complainant gives evidence 291 (1) Any part of any proceedings in respect of a prescribed sexual offence in which evidence is given by a complainant, or an audio visual or audio recording of evidence of the complainant is heard by the court, is to be held in camera, unless the court otherwise directs. [subs (1) am Act 54 of 2016 Sch 1.7[2], opn 25 Oct 2016]

(2) This section applies even if the complainant gives evidence by means of closed-circuit television or other technology or under any alternative arrangements available to the complainant under section 294B or under Part 6. [subs (2) am Act 6 of 2007 s 3 and Sch 1[5], opn 12 Oct 2007]

(3) The court may direct that the part of proceedings in which evidence is given by the complainant be held in open court only at the request of a party to the proceedings and only if the court is satisfied that: (a) special reasons in the interests of justice require the part of the proceedings to be held in open court, or (b) the complainant consents to giving his or her evidence in open court. (4) The principle that proceedings for an offence should generally be open or public in nature, or that justice should be seen to be done, does not of itself constitute special reasons in the interests of justice requiring the part of the proceedings to be held in open court.

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CRIMINAL PROCEDURE ACT 1986

[2-s 291B]

(5) If the court directs that the part of the proceedings in which evidence is given by the complainant be held in open court, that does not affect the entitlement of the complainant to give evidence in the manner provided for by section 294B or by Part 6. [subs (5) am Act 6 of 2007 s 3 and Sch 1[5], opn 12 Oct 2007]

(6) If the proceedings are proceedings in which a record of the original evidence of the complainant is tendered by the prosecutor under Division 3, this section does not require the record to be tendered in camera. [subs (6) am Act 54 of 2016 Sch 1.7[3], opn 25 Oct 2016]

(7) This section does not affect the entitlement of a complainant to have a person or persons present when giving evidence under section 294C. [s 291 subst Act 25 of 2005 s 3 and Sch 1[7], opn 25 Nov 2005]

[2-s 291A] Other parts of proceedings may be heard in camera 291A (1) The court may direct that any other part of any proceedings in respect of a prescribed sexual offence, or the entire proceedings, be held in camera. (2) The court may make a direction under this section on its own motion or at the request of any party to the proceedings. (3) In determining whether to make a direction under this section, the court is to consider the following matters: (a) the need of the complainant to have any person excluded from those proceedings, (b) the need of the complainant to have any person present in those proceedings, (c) the interests of justice, (d) any other matter that the court thinks relevant. (4) The requirement under section 291 that any part of the proceedings in which evidence is given by a complainant be held in camera unless the court otherwise directs still applies whether or not a direction is made under this section. (5) If the court makes a direction under this section, it may (either absolutely or subject to conditions) exempt any person from that direction to the extent necessary to allow that person to be present as a support for a person giving evidence or for any other purpose that the court thinks fit. (6) This section does not affect: (a) the entitlement of a complainant to have a person or persons present when giving evidence under section 294C, or (b) the entitlement of a vulnerable person to have a person present when giving evidence under section 306ZK. [subs (6) am Act 6 of 2007 s 3 and Sch 1[6], opn 12 Oct 2007; Act 83 of 2014 Sch 1[20], opn 1 June 2015] [s 291A insrt Act 25 of 2005 s 3 and Sch 1[7], opn 25 Nov 2005]

[2-s 291B] Incest offence proceedings to be held entirely in camera 291B (1) Any proceedings in respect of an offence under section 78A or 78B of the Crimes Act 1900 are to be held entirely in camera, despite any other provision of this Division. (2) The court may (either absolutely or subject to conditions) exempt any person from the requirement that the proceedings be held in camera to the extent necessary to allow that person to be present as a support for a person giving evidence or for any other purpose that the court thinks fit.

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Criminal Procedure

s 291B

[2-s 291B]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 291B

(3) This section does not affect: (a) the entitlement of a complainant to have a person or persons present when giving evidence under section 294C, or (b) the entitlement of a vulnerable person to have a person present when giving evidence under section 306ZK. [subs (3) am Act 6 of 2007 s 3 and Sch 1[7], opn 12 Oct 2007; Act 83 of 2014 Sch 1[21], opn 1 June 2015] [s 291B insrt Act 25 of 2005 s 3 and Sch 1[7], opn 25 Nov 2005]

[2-s 291C] Media access to proceedings held in camera 291C (1) If a complainant gives evidence in proceedings in respect of a prescribed sexual offence from a place other than the courtroom by means of closed-circuit television facilities or other technology that enables communication between that place and the courtroom (whether under section 294B or Part 6), and the proceedings, or the part of the proceedings concerned, are held in camera under this Division, a media representative may, unless the court otherwise directs, enter or remain in the courtroom while the evidence is given from that other place. This subsection does not apply to proceedings in respect of an offence under section 78A or 78B of the Crimes Act 1900. [subs (1) am Act 6 of 2007 s 3 and Sch 1[5], opn 12 Oct 2007]

(2) The fact that proceedings in respect of a prescribed sexual offence, or any part of such proceedings, are held in camera under this Division does not prevent the court from making such arrangements as the court considers reasonably practicable to allow media representatives to view or hear the evidence while it is given, or to view or hear a record of that evidence, as long as the media representatives are not present in the courtroom or other place where the evidence is given during the in camera proceedings. Note. For example, the court may permit media representatives to view the proceedings from a place other than the courtroom by means of closed-circuit television facilities.

(3) In this section: media representative, in relation to any proceedings, means a person engaged in preparing a report of the proceedings for dissemination through a public news medium. [s 291C insrt Act 25 of 2005 s 3 and Sch 1[7], opn 25 Nov 2005]

[2-s 292] Publication of evidence may be forbidden in certain cases 292

[s 292 rep Act 106 of 2010 Sch 2.3[1], opn 1 July 2011]

[2-s 293] Admissibility of evidence relating to sexual experience 293 (1) This section applies to proceedings in respect of a prescribed sexual offence. [subs (1) subst Act 25 of 2005 s 3 and Sch 1, opn 12 Aug 2005]

(2) Evidence relating to the sexual reputation of the complainant is inadmissible. (3) Evidence that discloses or implies: (a) that the complainant has or may have had sexual experience or a lack of sexual experience, or (b) has or may have taken part or not taken part in any sexual activity, is inadmissible. (4) Subsection (3) does not apply: (a) if the evidence:

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CRIMINAL PROCEDURE ACT 1986

[2-s 293]

(i) is of the complainant’s sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and (ii) is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed, (b) if the evidence relates to a relationship that was existing or recent at the time of the commission of the alleged prescribed sexual offence, being a relationship between the accused person and the complainant, (c) if: (i) the accused person is alleged to have had sexual intercourse (within the meaning of Division 10 of Part 3 of the Crimes Act 1900) with the complainant, and the accused person does not concede the sexual intercourse so alleged, and (ii) the evidence is relevant to whether the presence of semen, pregnancy, disease or injury is attributable to the sexual intercourse alleged to have been had by the accused person, (d) if the evidence is relevant to: (i) whether at the time of the commission of the alleged prescribed sexual offence there was present in the complainant a disease that, at any relevant time, was absent in the accused person, or (ii) whether at any relevant time there was absent in the complainant a disease that, at the time of the commission of the alleged prescribed sexual offence, was present in the accused person, (e) if the evidence is relevant to whether the allegation that the prescribed sexual offence was committed by the accused person was first made following a realisation or discovery of the presence of pregnancy or disease in the complainant (being a realisation or discovery that took place after the commission of the alleged prescribed sexual offence), (f) if the evidence has been given by the complainant in cross-examination by or on behalf of the accused person, being evidence given in answer to a question that may, pursuant to subsection (6), be asked, and if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission. [subs (4) am Act 33 of 2018 Sch 4[9], opn 1 Dec 2018]

(5) A witness must not be asked: (a) to give evidence that is inadmissible under subsection (2) or (3), or (b) by or on behalf of the accused person, to give evidence that is or may be admissible under subsection (4) unless the court has previously decided that the evidence would, if given, be admissible. (6) If the court is satisfied: (a) that it has been disclosed or implied in the case for the prosecution against the accused person that the complainant has or may have, during a specified period or without reference to any period: (i) had sexual experience, or a lack of sexual experience, of a general or specified nature, or

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Criminal Procedure

s 293

[2-s 293]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 293

(ii) had taken part in, or not taken part in, sexual activity of a general or specified nature, and (b) the accused person might be unfairly prejudiced if the complainant could not be cross-examined by or on behalf of the accused person in relation to the disclosure or implication, the complainant may be so cross-examined, but only in relation to the experience or activity of the nature (if any) so specified during the period (if any) so specified. (7) On the trial of a person, any question as to the admissibility of evidence under subsection (2) or (3) or the right to cross-examine under subsection (6) is to be decided by the court in the absence of the jury. (8) If the court decides that evidence is admissible under subsection (4), the court must, before the evidence is given, record or cause to be recorded in writing the nature and scope of the evidence that is so admissible and the reasons for that decision. (9) [subs (9) rep Act 25 of 2005 s 3 and Sch 1, opn 12 Aug 2005] Editor’s Note. Section 293 (previously s 105) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 409B of the Crimes Act 1900.

COMMENTARY ON SECTION 293 Scope of section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 293.1]

[2-s 293.1] Scope of section These provisions were formerly found in s 409B of the Crimes Act and then s 105 of this Act and decisions relevant to those sections would apply to this provision. As to “prescribed sexual offence”, see s 3. As to the scope of the section generally, see D Payne, “Section 409B Crimes Act 1900: A Review” (1995) 2 Crim LN 31 [388]. The effect of the section and the various exceptions to the general rule contained within it was considered in detail in Taleb v R [2015] NSWCCA 105; BC201504055; 22(6) Crim LN [3536]. The fulfilment of the proper procedure, as set out under the provision in relation to an application to cross-examine the complainant, was stressed in Taylor v R [2009] NSWCCA 180; BC200912275; 17(8) Crim LN 114 [2770] where it was held that a failure to comply with the section, particularly in the failure of defence counsel to provide a written statement of the evidence sought to be elicited, meant that admissible evidence was excluded. The evidence in that case involved the sexual relationship between the accused and the complainant that occurred after the events giving rise to the charge and the date of the trial. The cross-examination can only be in relation to a matter disclosed by the Crown. Therefore, there was no unfairness arising from the inability of an accused to cross-examine the complainant as to false complaints she had made about sexual assaults because the only matter disclosed by the Crown was the fact that she was working as a prostitute at the time of the alleged offence and, therefore, under the section the cross-examination could only be about that fact, and the issue of false complaints did not arise from disclosure of that fact or by implication: Allan v R [2017] NSWCCA 6; BC201700487; 24(3) Crim LN [3805]. The admissibility of cross-examination on prior sexual experience both at common law and under a similar provision was considered in White v R (1989) 18 NSWLR 332; 46 A Crim R 251, where it was held that “relationship” within s 293(4)(b) has a narrow meaning being “an emotional connection between people sometimes involving sexual relations”. The section is not restricted to consensual sexual episodes: HG v R (1999) 197 CLR 414; 160 ALR 554; [1999] HCA 2; BC9900188; (1999) 6 Crim LN 5 [946] where it was held that the section operated to prohibit a psychologist from giving evidence as to his opinion that a person other than the accused had assaulted the complainant at a time earlier than the offences alleged. The scope of the provision was considered in R v McGarvey (1987) 10 NSWLR 632; 34 A Crim R 119, where it was held that the provision will be construed fairly broadly where the evidence is relevant to the issue of the

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CRIMINAL PROCEDURE ACT 1986

[2-s 293.1]

accused’s honest belief that the complainant was consenting. Evidence of intercourse between the complainant and the accused two weeks before the alleged offence was admissible in R v McGarvey, above, but a complainant’s convictions for prostitution many months before the alleged offence were held to be inadmissible in R v Berrigan (NSWCCA, 7 October 1994, unreported). See also R v Bond (NSWCCA, Grove, James JJ and Hamilton JA, 60001/1996, 20 August 1996, unreported, BC9603728); (1996) 3 Crim LN 60 [607]. The view of the trial judge as to the credibility of evidence is not relevant to an assessment of its “probative value” for the purpose of s 293(4): R v Rahme [2004] NSWCCA 233; BC200404413; (2004) 11 Crim LN 72 [1743]. Evidence that within an hour after the alleged offence the complainant had sexual intercourse with her boyfriend but did not complain about the prior matter was held to be admissible under a provision similar to s 293(4)(a): R v Morgan (1993) 30 NSWLR 543; 67 A Crim R 526, where it was emphasised that no narrow approach should be taken to the section which permits otherwise relevant evidence to be admitted. Where the accused wished to give evidence that there had been a recent sexual relationship with the complainant but she denied it, and said she hardly knew him, the accused’s counsel was entitled to cross-examine the complainant as to the relationship between her and the accused under s 293(5): R v Henning (NSWCCA, 11 May 1990, unreported, BC9002977). The long period of regular sexual connection between the complainant and the accused was also a sufficient “relationship” under s 293(4)(b). Cross-examination and evidence to show that the complainant was a “fantasiser” in relation to sexual matters and had made false complaints of sexual assaults previously in order to indicate that her account was unreliable, was held to infringe the section and was not permissible as it did not come within any of the specified exemptions: M v R (1993) 67 A Crim R 549; R v Bernthaler (NSWCCA, Kirby P, Badgery-Parker J, Ireland J, 60394/1993, 17 December 1993, unreported, BC9302364). Evidence of a relationship between the complainant and the accused which shows the existence at the time of the charge of a guilty passion by the accused for the complainant is admissible in child sexual assault cases pursuant to s 293(4)(b) subject to the protection of the complainant under s 293(4)(c) that its probative value outweighs any distress, humiliation or embarrassment to the complainant, and the common law power of a judge to reject evidence where the prejudicial effect outweighs its probative value: R v Beserick (1993) 30 NSWLR 510; 66 A Crim R 419, where it was also held that there is no requirement that the evidence to prove the guilty passion occurred on or about the time of the offence charged although the more remote the activity the less will be its weight. As to evidence of relationship generally, see at [3-s 97.10]. The reference to “injury” in s 293(4)(c) is not limited to injury caused during sexual intercourse but can relate to matters such as the distress and dishevelment of the complainant: Dimian v R (1995) 83 A Crim R 358; BC9501854; (1995) 2 Crim LN 88 [503]. In GP v R [2016] NSWCCA 150; BC201606403; 23(9) Crim LN [3738] the trial concerned alleged sexual assaults upon the complainant by her uncle. When she disclosed the matters many years later she was distressed and her state was admitted as evidence of consistency. The appellant sought to question the complainant on the basis that the injury for the purpose of the exception was “fear” and “anxiety” evident from her distress. It was held that the cross-examination was rightly excluded as the matters did not amount to an “injury” under the exception. To read the provision broadly would promote the interest in the exceptions above the interest related to the general provision prohibiting the cross-examination. It was a clear case where the exception did not apply. The meaning of the term “connected set of circumstances” in s 293(4)(a)(ii) was considered in R v Edwards [2015] NSWCCA 24; BC201513831; 25(9) Crim LN [4030] where the evidence of the sexual experience of the complainants was admissible in order to explain the behaviour of the complainants and because the activity was occurring “at or about” the time of the charged behaviour with the accused. The purpose for which the evidence is being led by the Crown is not relevant and the conduct either is, or is not, admissible within the terms of the section. The evidence was part of the connected set of circumstances with the alleged offence committed by the

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Criminal Procedure

s 293

[2-s 293.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 293

accused as showing that the complainant was being groomed with gifts and other favourable treatment before engaging in the sexual acts that formed the charged offences. In GEH v R (2012) 228 A Crim R 32; [2012] NSWCCA 150; BC201205600 the operation of s 293(4) was comprehensively considered in relation to an alleged statement made by the complainant that she had sexual relations with a certain person and the complainant’s denial that she made that statement. It was held that the evidence was not admissible as it did not fulfil the conditions of the subsection. There is a review of various judgments of the court considering the operation of the section. The subsection was considered in Doyle v R [2014] NSWCCA 4; BC201400988 where the complainant had also made complaints of sexual assault against another person, an employer of the complainant, as was the accused. It was held that evidence of the complaints against the other person were not admissible as the alleged sexual assaults were not part of a connected series of events and the fact that the evidence may have affected the credit of the complainant was irrelevant. In Adams v R [2018] NSWCCA 303; BC201812474; 26(2) Crim LN [4089] it was held that the trial judge erred in excluding evidence of false complaints of sexual assault made by the complainant on other occasions because they were part of the background of the alleged offence and were “part of a connected set of circumstances” and, therefore, admissible. In that case, the false complaints allegedly made by the complainant stretched over a period of about 10 months in which the specific allegation against the accused occurred. They were held to be events that occurred at or about the time of the offending the subject of the trial. The evidence went beyond the mere credit of the complainant. The question of whether the Crown had “disclosed” that the complainant had a lack of sexual experience for the purposes of a provision similar to s 293(6)(a) was considered in R v Tubou [2001] NSWCCA 243; BC200103428; (2001) 8 Crim LN 6 [1307]. In that case it was held that “disclosed or implied” in the section means intentional expressed revelation and intentional suggestion, and that it could not be said that the Crown’s silence about the complainant’s sexual history before the alleged offence implied a lack of prior sexual history. The calling of evidence that tenderness in the sexual organs of the complainant was caused by the accused did not imply that there was no alternative explanation. The question of whether disclosure had been made in committal proceedings was considered in Spratt v DPP [2010] NSWSC 355; BC201002668; 17(5) Crim LN 65 [2714], where the prosecution had delivered the statement of the complainant to the defence but certain material had been edited from the statement tendered to the magistrate. It was held that the material in the statement had not been disclosed for the purpose of the section. Where the leave of the court is required in order to cross-examine the complainant under the section, defence counsel should ensure that a detailed statement of the evidence proposed to be extracted in cross-examination is handed to the trial judge in order that the admissibility of the matters can be ruled upon: R v McGarvey, above; Dimian v R, above, where it was held that the trial judge should give at least brief reasons for a decision that evidence is not admissible under the section. Where such evidence is admitted the trial judge should direct the jury on the relevance of such evidence and in particular warn the jury about taking into account adverse to the complainant the evidence of the prior sexual history: Dimian v R, above. The trial judge has no power to stay a prosecution on the basis that the effect of the section may result in a trial which is unfair: R v PJE (NSWCCA, 9 October 1995, unreported); (1995) 2 Crim LN 73 [474]. The correct application of the section to exclude evidence cannot of itself result in a trial that is unfair or a verdict that is unsafe and unsatisfactory: Berrigan v R [1995] 20 Leg Rep C2c; (1995) 2 Crim LN 86 [498]; HG v R (1999) 197 CLR 414; 160 ALR 554; [1999] HCA 2; BC9900188; (1999) 6 Crim LN 5 [946] per Hayne J; cf Morgan v R (1993) 30 NSWLR 543; 67 A Crim R 526. The court cannot decline to entertain jurisdiction because it forms the view that a relevant statute is unfair: Grills v R (1996) 70 ALJR 905; [1996] 15 Leg Rep C2a.

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CRIMINAL PROCEDURE ACT 1986

[2-s 294]

[2-s 293A] Warning may be given by Judge if differences in complainant’s account 293A (1) This section applies if, on the trial of a person for a prescribed sexual offence, the Judge, after hearing submissions from the prosecution and the accused person, considers that there is evidence that suggests a difference in the complainant’s account that may be relevant to the complainant’s truthfulness or reliability. (2) In circumstances to which this section applies, the Judge may inform the jury: (a) that experience shows: (i) people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time, and (ii) trauma may affect people differently, including affecting how they recall events, and (iii) it is common for there to be differences in accounts of a sexual offence, and (iv) both truthful and untruthful accounts of a sexual offence may contain differences, and (b) that it is up to the jury to decide whether or not any differences in the complainant’s account are important in assessing the complainant’s truthfulness and reliability. (3) In this section: difference in an account includes: (a) a gap in the account, and (b) an inconsistency in the account, and (c) a difference between the account and another account. [s 293A insrt Act 33 of 2018 Sch 4[10], opn 1 Dec 2018]

[2-s 294] Warning to be given by Judge in relation to lack of complaint in certain sexual offence proceedings 294 (1) This section applies if, on the trial of a person for a prescribed sexual offence, evidence is given or a question is asked of a witness that tends to suggest: (a) an absence of complaint in respect of the commission of the alleged offence by the person on whom the offence is alleged to have been committed, or (b) delay by that person in making any such complaint. (2) In circumstances to which this section applies, the Judge: (a) must warn the jury that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false, and (b) must inform the jury that there may be good reasons why a victim of a sexual assault may hesitate in making, or may refrain from making, a complaint about the assault, and (c) must not warn the jury that delay in complaining is relevant to the victim’s credibility unless there is sufficient evidence to justify such a warning. [subs (2) am Act 88 of 2006 s 3 and Sch 1[6], opn 1 Jan 2007] (3)–(5) [subs (3)–(5) rep Act 46 of 2007 s 4 and Sch 2, opn 1 Jan 2009] [s 294 insrt Act 94 of 1999 s 4 and Sch 2[31], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[124], opn 7 July 2003] Editor’s Note. Section 294 (previously s 107) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 405B of the Crimes Act 1900.

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Criminal Procedure

s 294

[2-s 294.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

COMMENTARY ON SECTION 294 Scope of section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Commencement of provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 294.1] Scope of section (2007) Vol 19, Issue 3.

s 294

[2-s 294.1] [2-s 294.5]

As to the effect of this section see Judicial Offıcers’ Bulletin

[2-s 294.5] Commencement of provision The section does not apply to a trial in respect of which the accused was arrested and charged before 1 January 2007: TJ v R [2009] NSWCCA 257; BC200909613; (2009) 16 Crim LN 160 [2646]. The relevance of delay in complaint was considered in a ground of appeal that the conviction was unreasonable: GD v R [2018] NSWCCA 18; BC201800851; 25(3) Crim LN [3951]. In the particular circumstances of that case, the delay and the complainant’s explanations for the delay led to a finding that the conviction was unsafe.

[2-s 294AA] Warning to be given by Judge in relation to complainants’ evidence 294AA (1) A judge in any proceedings to which this Division applies must not warn a jury, or make any suggestion to a jury, that complainants as a class are unreliable witnesses. (2) Without limiting subsection (1), that subsection prohibits a warning to a jury of the danger of convicting on the uncorroborated evidence of any complainant. (3) Sections 164 and 165 of the Evidence Act 1995 are subject to this section. [s 294AA insrt Act 88 of 2006 s 3 and Sch 1[8], opn 1 Jan 2007]

COMMENTARY ON SECTION 294AA Scope of section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 294AA.1] [2-s 294AA.1] Scope of section The effect of this section is that a “Murray direction”, that is a direction to the jury to scrutinise the evidence of an uncorroborated complainant with care, should not be given in a sexual assault case: Ewen v R [2015] NSWCCA 117; BC201504420; 22(6) Crim LN [3534].

[2-s 294A] Arrangements for complainant in prescribed sexual offence proceedings giving evidence when accused person is unrepresented 294A (1) This section applies to proceedings in respect of a prescribed sexual offence during which the accused person is not represented by an Australian legal practitioner. [subs (1) am Act 25 of 2005 s 3 and Sch 1, opn 12 Aug 2005; am Act 120 of 2006 s 3 and Sch 3[12], opn 4 Dec 2006]

(2) The complainant cannot be examined in chief, cross-examined or re-examined by the accused person, but may be so examined instead by a person appointed by the court. (3) The person appointed by the court is to ask the complainant only the questions that the accused person requests that person to put to the complainant. (4) Any such person, when acting in the course of an appointment under this section, must not independently give the accused person legal or other advice.

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CRIMINAL PROCEDURE ACT 1986

[2-s 294B]

(5) The court does not have a discretion to decline to appoint a person under this section, despite anything to the contrary in section 306ZL or any other Act or law. [subs (5) am Act 6 of 2007 s 3 and Sch 1[8], opn 12 Oct 2007]

(6) This section applies whether or not closed-circuit television facilities or other similar technology (or alternative arrangements) are used by the complainant to give evidence. (7) If such a person is appointed in proceedings before a jury, the judge must: (a) inform the jury that it is standard procedure in such cases to appoint the person to put the questions to the complainant, and (b) warn the jury not to draw any inference adverse to the accused person or to give the evidence any greater or lesser weight because of the use of that arrangement. (8) This section extends to proceedings instituted before the commencement of this section, including proceedings that have been partly heard. (9) Any thing done or omitted to be done by a person who: (a) is appointed under this section, and (b) is an Australian lawyer, when acting in the course of the appointment or otherwise in accordance with this section does not, if the thing was done or omitted to be done in good faith, subject the person personally to any action, liability, claim or demand. [subs (9) insrt Act 88 of 2006 s 3 and Sch 1[9], opn 1 Jan 2007] [s 294A insrt Act 42 of 2003 s 3 and Sch1[1], opn 3 Sep 2003]

COMMENTARY ON SECTION 294A Validity of section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Operation of section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 294A.1] [2-s 294A.5]

[2-s 294A.1] Validity of section Section 294A has been held to be constitutionally valid: R v MSK and MAK (2004) 61 NSWLR 204; 148 A Crim R 453; [2004] NSWCCA 308; BC200405863. [2-s 294A.5] Operation of section The purpose and operation of s 294A was considered in Clark v R [2008] NSWCCA 122; BC200803971; (2008) 15 Crim LN 75 [2403], where it was held that s 294A did not require the person appointed under s 294A(2) to be absent while the complainant gives evidence in chief, nor does the section require an unrepresented accused to inform the court of any question it is proposed to ask the complainant, let alone to write out every question.

[2-s 294B] Giving of evidence by complainant in prescribed sexual offence proceedings — alternative arrangements 294B (1) This section applies to evidence given in proceedings (including a new trial) in respect of a prescribed sexual offence. [subs (1) subst Act 25 of 2005 s 3 and Sch 1, opn 12 Aug 2005]

(1A) This section applies (with any necessary modifications) to the giving of evidence in apprehended violence order proceedings (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007) by a protected person in the same way as it applies to the giving of evidence in criminal proceedings by a complainant but only if: (a) the defendant in the proceedings is a person who is charged with a prescribed sexual offence, and

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Criminal Procedure

s 294B

[2-s 294B]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 294B

(b) the protected person is the alleged victim of the offence. [subs (1A) insrt Act 80 of 2007 s 103 and Sch 2.9, opn 10 Mar 2008]

(2) This section does not apply to or in respect of the giving of evidence by a vulnerable person if Division 4 of Part 6 applies to the giving of that evidence. [subs (2) am Act 6 of 2007 s 3 and Sch 1[9], opn 12 Oct 2007; Act 83 of 2014 Sch 1[22], opn 1 June 2015]

(2A) This section applies in addition to Part 4B, if the complainant is a domestic violence complainant. [subs (2A) insrt Act 83 of 2014 Sch 1[23], opn 1 June 2015]

(3) A complainant who gives evidence to which this section applies is entitled (but may choose not): (a) to give that evidence from a place other than the courtroom by means of closed-circuit television facilities or other technology that enables communication between that place and the courtroom, or (b) to give that evidence by use of alternative arrangements made to restrict contact (including visual contact) between the complainant and the accused person or any other person or persons in the courtroom, including the following: (i) use of screens, (ii) planned seating arrangements for people who have an interest in the proceedings (including the level at which they are seated and the people in the complainant’s line of vision). [subs (3) subst Act 25 of 2005 s 3 and Sch 1, opn 12 Aug 2005]

(4) If, to enable evidence to be given as referred to in subsection (3), the court considers it appropriate to do so, the court may adjourn the proceeding or any part of the proceeding from the courtroom to another court or place. (5) Despite subsection (3)(a), a complainant must not give evidence as referred to in that paragraph if a court, on its own initiative or on application by a party to the proceeding, orders that such means not be used. (6) A court may make an order under subsection (5) only if it is satisfied that there are special reasons, in the interests of justice, for the complainant’s evidence not to be given by such means. (7) In any proceedings in which evidence is given as referred to in subsection (3), the judge must: (a) inform the jury that it is standard procedure for complainants’ evidence in such cases to be given by those means or use of those arrangements, and (b) warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because it is given by those means or by use of those arrangements. [subs (7) am Act 25 of 2005 s 3 and Sch 1, opn 12 Aug 2005]

(8) Any place outside the courtroom from which a complainant gives evidence under this section is taken to be part of the courtroom in which the proceeding is being held. (9) If a complainant gives evidence as referred to in subsection (3) in a place other than a courtroom, the court may order that a court officer be present at that place. (10) This section extends to evidence given in proceedings instituted before the commencement of this section, including a new trial that was ordered to take place before that commencement and proceedings that have been partly heard. (11) [subs (11) rep Act 25 of 2005 s 3 and Sch 1, opn 12 Aug 2005] [s 294B insrt Act 50 of 2004 s 3 and Sch 1, opn 6 July 2004]

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CRIMINAL PROCEDURE ACT 1986

[2-s 294C]

COMMENTARY ON SECTION 294B Operation of section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 294B.1] [2-s 294B.1] Operation of section Section 294B creates a statutory entitlement in a complainant, in prescribed sexual offence proceedings, to choose to give evidence by various prescribed means; with that entitlement only being removed by the exercise of the trial judge of the discretion provided by s 294B(5) and (6): Sudath v R [2008] NSWCCA 207; BC200807955; (2008) 15 Crim LN 119 [2447].

[2-s 294C] Complainant entitled to have support person or persons present when giving evidence 294C (1) A complainant is entitled to have a person or persons chosen by the complainant present near the complainant, and within the complainant’s sight, when the complainant is giving evidence in proceedings in respect of a prescribed sexual offence. (2) The entitlement applies: (a) even if the complainant gives evidence by means of closed-circuit television or other technology or under any alternative arrangements available to the complainant under section 294B or Part 6, and (b) even if the proceedings, or the part of the proceedings in which the complainant gives evidence, are held in camera. [subs (2) am Act 6 of 2007 s 3 and Sch 1[10], opn 12 Oct 2007]

(3) Without limiting the entitlement of a complainant under this section, the person or persons chosen by the complainant to be with the complainant when he or she gives evidence may include a parent, guardian, relative, friend or support person of the complainant, or a person assisting the complainant in a professional capacity. (4) An accused person is not entitled to object to the suitability of the person or persons chosen by a complainant to be with the complainant when giving evidence, and the court is not to disallow the complainant’s choice of person or persons on its own motion, unless the complainant’s choice is likely to prejudice the accused person’s right to a fair trial (for example, because the person chosen by the complainant is a witness or potential witness in the proceedings). (5) During any part of the proceedings in which the complainant gives evidence, the person or persons chosen by the complainant to be present when the complainant gives evidence are taken to be exempt from any requirement or direction under this Division that requires the proceedings, or the part of the proceedings concerned, to be held in camera. (6) This section applies to a complainant giving evidence in proceedings in respect of a prescribed sexual offence regardless of the complainant’s age. [subs (6) am Act 6 of 2007 s 3 and Sch 1[11], opn 12 Oct 2007]

(7) If the complainant is a vulnerable person when the evidence is given, section 306ZK operates in addition to this section. [subs (7) insrt Act 6 of 2007 s 3 and Sch 1[12], opn 12 Oct 2007; am Act 83 of 2014 Sch 1[24], opn 1 June 2015; Act 88 of 2018 Sch 5[10], opn 1 Dec 2018]

(8) Nothing in this section affects any entitlement a complainant has under section 275B. [subs (8) insrt Act 6 of 2007 s 3 and Sch 1[12], opn 12 Oct 2007]

Note. This section applies to proceedings before the Children’s Court because of section 27 of the Children (Criminal Proceedings) Act 1987. [s 294C insrt Act 25 of 2005 s 3 and Sch 1, opn 12 Aug 2005]

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Criminal Procedure

s 294C

[2-s 294CA]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 294CA

[2-s 294CA] Admission of evidence of sexual offence witness given as complainant in earlier proceedings 294CA (1) This section applies if a person who was a complainant in proceedings for a prescribed sexual offence (the earlier proceedings) is called as a sexual offence witness in later proceedings for a prescribed sexual offence (the current proceedings). (2) A prosecutor may tender as evidence in current proceedings a record of the evidence of the person given in the earlier proceedings (the original evidence). (3) The original evidence of the person means all evidence given by the person in the earlier proceedings, including the evidence given by the person on examination in chief in the earlier proceedings and any further evidence given on cross-examination or re-examination in those proceedings. (4) Despite anything to the contrary in the Evidence Act 1995, or any other Act or law, a record of the original evidence of the person is admissible in the current proceedings if: (a) the prosecutor gives written notice to the accused person, in accordance with the regulations, of the prosecutor’s intention to tender the record under this section, and (b) the prosecutor gives written notice to the court of the prosecutor’s intention to tender the record under this section, and (c) the notices referred to in paragraphs (a) and (b) are given no less than 21 days before the court commences hearing the current proceedings or within such other period as the court may allow. (5) If a record of original evidence is admitted in current proceedings under this section, the person is not compellable to give further evidence about the same matters in the current proceedings unless the court is satisfied that it is necessary for the person to give further evidence: (a) to clarify any matters relating to the original evidence of the person, or (b) to canvass information or material that has become available since the original evidence was given, or (c) in the interests of justice. (6) The court is to ensure that the person is questioned by any party to the current proceedings only in relation to matters that are relevant to the matters mentioned in subsection (5). (7) Subject to subsection (6), if a person gives any further evidence under this section, the person is compellable (for the prosecution or the accused person) to give evidence. (8) The court hearing the current proceedings may decline to admit a record of original evidence of a person if, in the court’s opinion, the accused person would be unfairly disadvantaged by the admission of the evidence, having regard to the following: (a) the completeness of the original evidence, including whether the person has been cross-examined on the evidence, (b) the effect of editing any inadmissible evidence from the original evidence, (c) the availability or willingness of the person to attend to give further evidence and to clarify any matters relating to the original evidence, (d) the interests of justice, (e) any other matter the court thinks relevant.

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CRIMINAL PROCEDURE ACT 1986

[2-s 294D]

(9) If the court allows a record of the original evidence of the person to be admitted, the court may give directions requiring the record to be altered or edited for the purpose of removing any statements that would not be admissible if the original evidence of the person had been given orally before the court hearing the current proceedings in accordance with the usual rules and practice of the court. (10) The hearsay rule (within the meaning of the Evidence Act 1995) does not prevent the admission of a record of the original evidence of the person under this section or the use of that record to prove the existence of a fact that the person intended to assert by a representation made in the original evidence. (11) Sections 306E–306G (including any regulations made for the purposes of those sections) apply for the purposes of this section with such modifications as are necessary. [s 294CA insrt Act 88 of 2018 Sch 5[11], opn 1 Dec 2018]

[2-s 294D] Protections of Division extend to tendency witnesses 294D (1) In proceedings in respect of a prescribed sexual offence, this Division applies to a sexual offence witness in the proceedings in the same way as it applies to a complainant in the proceedings. (2) A sexual offence witness is any witness in the proceedings (other than the complainant) against whom any of the following is alleged to have been committed by the accused person: (a) a prescribed sexual offence, or (b) acts that would constitute a prescribed sexual offence were those acts to occur in this State at the time of the commencement of the proceedings. [subs (2) subst Act 135 of 2010 Sch 12.1, opn 7 Dec 2010]

(2A) [Repealed] [subs (2A) rep Act 90 of 2013 Sch 1 item 1.5, opn 20 Nov 2013]

(3) Accordingly, in this Division a reference to a complainant includes a reference to a sexual offence witness and a reference to a prescribed sexual offence, in relation to a sexual offence witness, includes a reference to an act referred to in subsection (2)(b). [subs (3) subst Act 90 of 2013 Sch 1 item 1.5, opn 20 Nov 2013]

(4) In addition, the court may make an order directing that the identity of a sexual offence witness is not to be publicly disclosed. (5) If the court makes such an order, the sexual offence witness is taken to be a complainant for the purposes of section 578A of the Crimes Act 1900 and that section applies accordingly. Note. Section 578A of the Crimes Act 1900 prohibits the publication of any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant.

(6) A witness is to be treated as a sexual offence witness, even if the witness has not yet given evidence in the proceedings, if the court is satisfied that the prosecutor has given notice to the accused person that the prosecutor intends to adduce evidence that the accused person committed an offence or act referred to in subsection (2)(a) or (b) against the witness. [subs (6) am Act 135 of 2010 Sch 12.1, opn 7 Dec 2010] [s 294D insrt Act 9 of 2010 Sch 2, opn 28 Apr 2010]

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Criminal Procedure

s 294D

[2-s 295]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 295

DIVISION 2 — SEXUAL ASSAULT COMMUNICATIONS PRIVILEGE [Heading insrt Act 119 of 2001 s 3 and Sch 1[125], opn 7 July 2003]

[2-s 295] Interpretation 295 (1) Definitions In this Division: court [def rep Act 94 of 1999 s 4 and Sch 2[45], opn 1 Jan 2000]

criminal proceedings means: (a) proceedings relating to the trial or sentencing of a person for an offence (whether or not a sexual assault offence) including pre-trial and interlocutory proceedings but not preliminary criminal proceedings, or (b) proceedings relating to an order under the Crimes (Domestic and Personal Violence) Act 2007. [def am Act 114 of 2008 s 3 and Sch 2.8[4], opn 10 Dec 2008; Act 135 of 2010 Sch 12.1, opn 7 Dec 2010]

harm includes actual physical bodily harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm (such as shame, humiliation and fear). preliminary criminal proceedings means any of the following: (a) committal proceedings, (b) proceedings relating to bail (including proceedings during the trial or sentencing of a person), whether or not in relation to a sexual assault offence. principal protected confider means the victim or alleged victim of a sexual assault offence by, to or about whom a protected confidence is made. protected confidence — see section 296. [def am Act 53 of 2000 Sch 3 item 2, opn 29 June 2000; Act 119 of 2001 s 3 and Sch 1[127], opn 7 July 2003]

protected confider, in relation to a protected confidence, means: (a) the principal protected confider, or (b) any other person who made the protected confidence. [def am Act 119 of 2001 s 3 and Sch 1[127], opn 7 July 2003]

sexual assault offence means: (a) a prescribed sexual offence, or (a1) acts that would constitute a prescribed sexual offence if those acts: (i) had occurred in this State, or (ii) had occurred at some later date, or (iii) had both occurred in this State and occurred at some later date, or (b) any other offence prescribed by the regulations for the purposes of this definition. [def am Act 94 of 1999 s 4 and Sch 2[46], opn 1 Jan 2000; Act 119 of 2001 s 3 and Sch 1[128], opn 7 July 2003; Act 25 of 2005 s 3 and Sch 1, opn 12 Aug 2005; Act 135 of 2010 Sch 12.1, opn 7 Dec 2010] [subs (1) am Act 25 of 2005 s 3 and Sch 1, opn 12 Aug 2005]

(2) Document recording a protected confidence In this Division, a reference to a document recording a protected confidence:

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CRIMINAL PROCEDURE ACT 1986

[2-s 296]

(a) is a reference to any part of the document that records a protected confidence or any report, observation, opinion, advice, recommendation or other matter that relates to the protected confidence made by a protected confider, and (b) includes a reference to any copy, reproduction or duplicate of that part of the document. [subs (2) am Act 119 of 2001 s 3 and Sch 1[129], opn 7 July 2003]

(3) Electronic documents For the purposes of this Division, if a document recording a protected confidence is stored electronically and a written document recording the protected confidence could be created by use of equipment that is usually available for retrieving or collating such stored information, the document stored electronically is to be dealt with as if it were a written document so created. [subs (3) am Act 119 of 2001 s 3 and Sch 1[129], opn 7 July 2003] [s 295 renum Act 94 of 1999 s 4 and Sch 2[44], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[126], opn 7 July 2003]

COMMENTARY ON SECTION 295 Sexual assault offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 295.1]

[2-s 295.1] Sexual assault offence See Sch 2 cl 41 Criminal Procedure Act 1986 at [2-Sch 2] concerning application of the definition of “sexual assault offence”, as amended on 12 August 2005, to proceedings which were on foot at the time of commencement of the amendments.

[2-s 296] What is a protected confidence? 296 (1) In this Division: protected confidence means a counselling communication that is made by, to or about a victim or alleged victim of a sexual assault offence. (2) A counselling communication is a protected confidence for the purposes of this Division even if it: (a) was made before the acts constituting the relevant sexual assault offence occurred or are alleged to have occurred, or (b) was not made in connection with a sexual assault offence or alleged sexual assault offence or any condition arising from a sexual assault offence or alleged sexual assault offence. (3) For the purposes of this section, a communication may be made in confidence even if it is made in the presence of a third party if the third party is present to facilitate communication or to otherwise further the counselling process. (4) In this section: counselling communication means a communication: (a) made in confidence by a person (the counselled person) to another person (the counsellor) who is counselling the person in relation to any harm the person may have suffered, or (b) made in confidence to or about the counselled person by the counsellor in the course of that counselling, or (c) made in confidence about the counselled person by a counsellor or a parent, carer or other supportive person who is present to facilitate communication between the counselled person and the counsellor or to otherwise further the counselling process, or

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Criminal Procedure

s 296

[2-s 296]

s 296

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

(d) made in confidence by or to the counsellor, by or to another counsellor or by or to a person who is counselling, or has at any time counselled, the person. [def am Act 93 of 2000 s 3 and Sch 2.12, opn 8 Dec 2000; Act 13 of 2002 s 3 and Sch 1[1]–[3], opn 22 July 2002]

(5) For the purposes of this section, a person counsels another person if: (a) the person has undertaken training or study or has experience that is relevant to the process of counselling persons who have suffered harm, and (b) the person: (i) listens to and gives verbal or other support or encouragement to the other person, or (ii) advises, gives therapy to or treats the other person, whether or not for fee or reward. [subs (5) insrt Act 13 of 2002 s 3 and Sch 1[4], opn 22 July 2002] [s 296 renum Act 94 of 1999 s 4 and Sch 2[44], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[126], opn 7 July 2003; am Act 119 of 2001 s 3 and Sch 1[129], opn 7 July 2003]

COMMENTARY ON SECTION 296 Protected confidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 296.5]

[2-s 296.5] Protected confidence The construction and operation of ss 296, 298 and 299D were considered in KS v Veitch (No 2) [2012] NSWCCA 266; BC201209735. Where the Crown introduced a protected confidence without leave of the court and, hence, contrary to the section, it did not result in a miscarriage of justice, particularly where there was no objection to the evidence, see KSC v R [2012] NSWCCA 179; BC201210760; 20(2) Crim LN [3166].

[2-s 297] Protected proceedings

confidences

—

preliminary

criminal

297 (1) A person cannot seek to compel (whether by subpoena or any other procedure) any other person to produce a document recording a protected confidence in, or in connection with, any preliminary criminal proceedings. (2) A document recording a protected confidence cannot be produced in, or in connection with, any preliminary criminal proceedings. (3) Evidence cannot be adduced in any preliminary criminal proceedings if it would disclose a protected confidence or the contents of a document recording a protected confidence. [s 297 subst Act 135 of 2010 Sch 12.1, opn 7 Dec 2010]

COMMENTARY ON SECTION 297 Preliminary criminal proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 297.1] Preliminary criminal proceedings proceedings and applications for bail.

[2-s 297.1]

These are defined in s 295 to mean committal

[2-s 298] Protected confidences — criminal proceedings 298 (1) Except with the leave of the court, a person cannot seek to compel (whether by subpoena or any other procedure) any other person to produce a document recording a protected confidence in, or in connection with, any criminal proceedings.

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CRIMINAL PROCEDURE ACT 1986

[2-s 298A]

(2) Except with the leave of the court, a document recording a protected confidence cannot be produced in, or in connection with, any criminal proceedings. (3) Except with the leave of the court, evidence cannot be adduced in any criminal proceedings if it would disclose a protected confidence or the contents of a document recording a protected confidence. [s 298 subst Act 135 of 2010 Sch 12.1, opn 7 Dec 2010]

COMMENTARY ON SECTION 298 Scope of section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 298.5]

[2-s 298.5] Scope of section The construction and operation of s 298 were considered in KS v Veitch (No 2) [2012] NSWCCA 266; BC201209735 at [21] ff, where it was said that: (a) The tripartite structure of s 298 appears to prohibit the issue of a subpoena, the production of a document and the adducing of evidence recording or revealing a protected confidence; (b) The primary purpose of the prohibition in s 298(1) is to prevent any person other than the persons who are party to the counselling communication having access to the contents of the document; (c) s 298(2) should be understood to impose a constraint on the holder of a document recording a protected confidence from producing it otherwise than pursuant to a subpoena issued with leave; (d) s 298(3) is engaged whenever a document is sought to be tendered or evidence falling within the prohibition is sought to be adduced from a witness; (e) If leave is sought in any of the circumstances covered by s 298, the applicant for leave will need to engage with the criteria to be satisfied before leave can be granted — the criteria are identified in the form of a qualified prohibition in s 299D. The section was considered in KSC v R [2012] NSWCCA 179; BC201210760; 20(2) Crim LN [3166] where a social worker in answer to a question asked gave evidence as to the contents of a protected confidence. It was held that although no leave was sought from the court to adduce the evidence, there had been no miscarriage of justice because the complainant, who was protected by the provision, had no objection to the material being revealed. The proper procedure for a determination of whether to grant access to documents under the section was considered in PPC v Williams [2013] NSWCCA 286; BC201319110; 21(7) Crim LN [3396] where it was held that the “substantive probative value” of the evidence had to be assessed in respect of each document and not considering the documents on a “totality” approach. Further, the document has to be admissible before its probative value is assessed.

[2-s 298A] Victim cannot be required to identify counsellor 298A (1) A person cannot seek to compel (whether by subpoena or any other procedure) a victim or alleged victim of a sexual assault offence to produce a document or give evidence that would disclose the identity of the victim or alleged victim’s counsellor in, or in connection with, criminal proceedings or preliminary criminal proceedings. (2) In this section: counsellor of a victim or alleged victim of a sexual assault offence means a counsellor (within the meaning of section 296(4)) to whom or by whom a counselling communication that is a protected confidence is made. [s 298A Act 29 of 2018 Sch 1 item 1.10[15], opn 21 June 2018]

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Criminal Procedure

s 298A

[2-s 299]

s 299

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

[2-s 299] Court to inform of rights under Division 299 If it appears to a court that a witness, party or protected confider may have grounds for making an application under this Division or objecting to the production of a document or the adducing of evidence, the court must satisfy itself (or if there is a jury, in the absence of the jury) that the person is aware of the relevant provisions of this Division and has been given a reasonable opportunity to seek legal advice. [s 299 subst Act 135 of 2010 Sch 12.1, opn 7 Dec 2010]

[2-s 299A] Protected confider has standing 299A A protected confider who is not a party may appear in criminal proceedings or preliminary criminal proceedings if a document is sought to be produced or evidence is sought to be adduced that may disclose a protected confidence made by, to or about the protected confider. [s 299A insrt Act 135 of 2010 Sch 12.1, opn 7 Dec 2010]

[2-s 299B] Determining if there is a protected confidence 299B (1) If a question arises under this Division relating to a document or evidence, a court may consider the document or evidence. (2) If there is a jury, the document or evidence is to be considered in the absence of the jury. (3) A court must not make available or disclose to a party (other than a protected confider) any document or evidence to which this section applies (or the contents of any such document) unless: (a) the court determines that the document does not record a protected confidence or that the evidence would not disclose a protected confidence, or (b) a party has been given leave under this Division in relation to the document or evidence and making available or disclosing the document or evidence is consistent with that leave. (4) A court may make any orders it thinks fit to facilitate its consideration of a document or evidence under this section. (5) This section has effect despite sections 297 and 298. [subs (5) insrt Act 11 of 2012 Sch 1.1[11], opn 21 Mar 2012] [s 299B insrt Act 135 of 2010 Sch 12.1, opn 7 Dec 2010]

COMMENTARY ON SECTION 298 Scope of section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 299B.5]

[2-s 299B.5] Scope of section The procedural steps in s 299B become necessary in circumstances where the court is required to consider the criteria identified in s 299D, even for the purpose of considering a grant of leave to issue a subpoena: KS v Veitch (No 2) [2012] NSWCCA 266; BC201209735 at [27]. In PPC v Stylianou [2018] NSWCCA 300; BC201812422; 26(2) Crim LN [4092] it was held that fulfilment of one of the alternative conditions in s 299B(3) is a necessary, but not a sufficient requirement, for an entitlement to an order for access to subpoenaed documents. Depending on the particular circumstances of the case, including the nature of any submissions of the PPC, the court may have to examine some or all of the subpoenaed documents to enable it to determine whether access to them should be granted to the accused in criminal proceedings. The procedure for a judge to consider whether documents were protected within the scope of the section was discussed in ER v Khan [2015] NSWCCA 230; BC201510819; 22(11) Crim LN

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CRIMINAL PROCEDURE ACT 1986

[2-s 299C]

[3614] where a judge had examined documents to determine the status of each under s 299B(4) and an appeal against order made by the judge was dismissed. It was held that the section permits the court to make orders to facilitate the task of determining whether a privilege exists including permitting evidence to be given in confidence such as to preserve the claimed privilege. A procedural purpose of s 299B is that the court have access to the document before deciding whether it should be made available to a party and that it should have the relevant powers to facilitate its consideration of the document (s 299B(4)).

[2-s 299C] Notice of application for leave 299C (1) An applicant for leave under this Division must, as soon as is reasonably practicable, give notice in writing of the application to each other party and each relevant protected confider (or the protected confider’s nominee) that: (a) specifies the document that is sought to be produced or the evidence that is sought to be adduced, and (b) in the case of a notice to a protected confider who is not a party to the proceedings — advises the protected confider that the protected confider may appear in the proceedings concerned, and (c) in the case of an application for leave to compel (whether by subpoena or any other procedure) a person to produce a document — specifies the day on which the document is to be produced, and (d) in the case of an application for leave to adduce evidence — specifies the day (if known) when the proceedings are to be heard, and (e) includes any other matter that may be prescribed by the regulations. (2) A requirement to give notice to a protected confider who is not a party to proceedings is satisfied for the purposes of this section if the notice is given to: (a) the prosecutor in the criminal proceedings, or (b) if the regulations prescribe a different person or body, that person or body. (3) A prosecutor (or person or body) who is given a copy of a notice under subsection (2) must ensure that a copy of the notice is given to the protected confider within a reasonable time after its receipt. (4) A court cannot grant an application for leave under this Division until at least 14 days (or such shorter period as may be fixed by the court) after the relevant notices have been given under subsection (1) or (2). (5) A court may waive the requirement to give notice if: (a) notice has already been given in respect of an application under this Division, being an application that relates to the same protected confidence and the same criminal proceedings, or (b) the principal protected confider has consented in writing to the notice being waived, or (c) the court is satisfied that there are exceptional circumstances that require the notice to be waived. (6) The regulations may make provision for or with respect to the giving of notices under this section. [s 299C insrt Act 135 of 2010 Sch 12.1, opn 7 Dec 2010]

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Criminal Procedure

s 299C

[2-s 299D]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 299D

[2-s 299D] Determining whether to grant leave 299D (1) The court cannot grant an application for leave under this Division unless the court is satisfied that: (a) the document or evidence will, either by itself or having regard to other documents or evidence produced or adduced or to be produced or adduced by the party seeking to produce or adduce the document or evidence, have substantial probative value, and (b) other documents or evidence concerning the matters to which the protected confidence relates are not available, and (c) the public interest in preserving the confidentiality of protected confidences and protecting the principal protected confider from harm is substantially outweighed by the public interest in admitting into evidence information or the contents of a document of substantial probative value. (2) Without limiting the matters that the court may take into account for the purposes of determining the public interest in preserving the confidentiality of protected confidences and protecting the principal protected confider from harm, the court must take into account the following: (a) the need to encourage victims of sexual offences to seek counselling, (b) that the effectiveness of counselling is likely to be dependent on the maintenance of the confidentiality of the counselling relationship, (c) the public interest in ensuring that victims of sexual offences receive effective counselling, (d) that the disclosure of the protected confidence is likely to damage or undermine the relationship between the counsellor and the counselled person, (e) whether disclosure of the protected confidence is sought on the basis of a discriminatory belief or bias, (f) that the adducing of the evidence is likely to infringe a reasonable expectation of privacy. (3) For the purposes of determining an application for leave under this Division, the court may permit a confidential statement to be made to it by or on behalf of the principal protected confider by affidavit specifying the harm the confider is likely to suffer if the application for leave is granted. (4) A court must not disclose or make available to a party (other than the principal protected confider) any confidential statement made to the court under this section by or on behalf of the principal protected confider. (5) The court must state its reasons for granting or refusing to grant an application for leave under this Division. (6) If there is a jury, the court is to hear and determine any application for leave under this Division in the absence of the jury. [s 299D insrt Act 135 of 2010 Sch 12.1, opn 7 Dec 2010]

COMMENTARY ON SECTION 299D Scope of section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appeal from determination to grant leave . . . . . . . . . . . . . . . . . . . . . . .

[2-s 299D.1] [2-s 299D.5]

[2-s 299D.1] Scope of section The construction and operation of s 299D were considered in KS v Veitch (No 2) [2012] NSWCCA 266; BC201209735 at [30]–[37].

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CRIMINAL PROCEDURE ACT 1986

[2-s 302]

[2-s 299D.5] Appeal from determination to grant leave There is provision for a non-party to appeal to the Court of Criminal Appeal against the granting of leave under the section, see s 5F(3AA) of the Criminal Appeal Act 1912 at [20-s 265].

[2-s 300] Effect of consent 300 (1) This Division does not prevent the production of any document recording a protected confidence or the adducing of evidence disclosing a protected confidence or the contents of a document recording a protected confidence, in, or in connection with, any proceedings, if the principal protected confider to whom the proceedings relate has consented to the production of the document or adducing of the evidence. (2) Consent is not effective for the purposes of this section unless: (a) the consent is given in writing, and (b) the consent expressly relates to the production of a document or adducing of evidence that is privileged under this Division or would be so privileged except for a limitation or restriction imposed by this Division. [s 300 renum Act 94 of 1999 s 4 and Sch 2[44], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[126], opn 7 July 2003; am Act 119 of 2001 s 3 and Sch 1[129], opn 7 July 2003]

[2-s 301] Loss misconduct

of

sexual

assault

communications

privilege:

301 (1) This Division does not prevent the adducing of evidence of a communication made, or the production or adducing of a document prepared, in the furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty. (2) For the purposes of this section, if the commission of the fraud, offence or act is a fact in issue and there are reasonable grounds for finding that: (a) the fraud, offence or act was committed, and (b) a communication was made or document prepared in furtherance of the commission of the fraud, offence or act, the court may find that the communication was so made or document so prepared. [s 301 renum Act 94 of 1999 s 4 and Sch 2[44], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[126], opn 7 July 2003; am Act 119 of 2001 s 3 and Sch 1[129], opn 7 July 2003]

[2-s 302] Ancillary orders 302 (1) Without limiting any action the court may take to limit the possible harm, or extent of the harm, likely to be caused by the disclosure of evidence of, or the contents of a document recording, a protected confidence, the court may: (a) order that all or part of the evidence be heard or document produced in camera, and (b) make such orders relating to the production and inspection of the document as, in the opinion of the court, are necessary to protect the safety and welfare of any protected confider. (c) [repealed] (d) [repealed] [subs (1) am Act 106 of 2010 Sch 2.3[2], [3], opn 1 July 2011]

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Criminal Procedure

s 302

[2-s 302]

s 302

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

(2) Nothing in this section limits the power of a court to make an order under section 106 or 119 of this Act or section 578A of the Crimes Act 1900. [subs (2) am Act 94 of 1999 s 4 and Sch 2[47], opn 1 Jan 2000]

(3) [subs (3) rep Act 106 of 2010 Sch 2.3[3], opn 1 July 2011] [s 302 renum Act 94 of 1999 s 4 and Sch 2[44], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[126], opn 7 July 2003]

Court to inform of rights to make applications and objections 303

[s 303 rep Act 135 of 2010 Sch 12.1, opn 7 Dec 2010]

Court may inspect documents 304

[s 304 rep Act 135 of 2010 Sch 12.1, opn 7 Dec 2010]

[2-s 305] Inadmissibility of evidence 305 Evidence that, because of this Division, cannot be adduced or given in proceedings is not admissible in the proceedings. [s 305 renum Act 94 of 1999 s 4 and Sch 2[44], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[126], opn 7 July 2003; am Act 119 of 2001 s 3 and Sch 1[129], opn 7 July 2003; Act 135 of 2010 Sch 12.1, opn 7 Dec 2010]

[2-s 305A] Subpoenas communications

for

production

of

counselling

305A The regulations may make provision for or with respect to the issue and service of subpoenas requiring the production of a document recording a counselling communication (within the meaning of section 296) in, or in connection with, any criminal proceedings or preliminary criminal proceedings, including the following: (a) the manner and time in which a subpoena must be served, (b) the form of a subpoena, (c) any documents or information that must be included with a subpoena. [s 305A insrt Act 135 of 2010 Sch 12.1, opn 7 Dec 2010; am Act 11 of 2012 Sch 1.1[12] and [13], opn 21 Mar 2012]

[2-s 306] Application of common law 306 (1) This Division does not affect the operation of a principle or rule of the common law in relation to evidence in criminal proceedings, except so far as this Division provides otherwise expressly or by necessary intendment. (2) Without limiting subsection (1), this Division does not affect the operation of such a principle or rule so far as it relates to the inspection of a document required to be produced in, or in connection with, criminal proceedings. [s 306 renum Act 94 of 1999 s 4 and Sch 2[44], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[126], opn 7 July 2003; am Act 119 of 2001 s 3 and Sch 1[129], opn 7 July 2003]

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CRIMINAL PROCEDURE ACT 1986

[2-s 306B]

DIVISION 3 — SPECIAL PROVISIONS RELATING TO RETRIALS OF SEXUAL OFFENCE PROCEEDINGS [Div 3 insrt Act 15 of 2005 Sch 1[1], opn 12 May 2005]

[2-s 306A] Definitions 306A In this Division: accused person, in relation to any proceedings, means the person who stands, or any of the persons who stand, charged in those proceedings with a prescribed sexual offence. [def am Act 25 of 2005 s 3 and Sch 1, opn 12 Aug 2005]

complainant, in relation to any proceedings, means the person, or any of the persons, against whom a prescribed sexual offence with which the accused person stands charged in those proceedings is alleged to have been committed, and includes: (a) in relation to an offence under section 80E of the Crimes Act 1900, the person who is alleged to have been the subject of sexual servitude, and (b) in relation to an offence under section 91D, 91E or 91F of the Crimes Act 1900, the person under the age of 18 years who is alleged to have participated in an act of child prostitution, and (c) in relation to an offence under section 91G of the Crimes Act 1900, the person under the age of 18 years who is alleged to have been used for the production of child abuse material. [def subst Act 25 of 2005 s 3 and Sch 1, opn 12 Aug 2005; am Act 9 of 2010 Sch 2, opn 17 Sep 2010]

original evidence of the complainant or of any special witness has the meaning given by section 306B. [def subst Act 88 of 2018 Sch 5[12], opn 1 Dec 2018]

prescribed sexual offence includes a female genital mutilation offence. [def insrt Act 88 of 2018 Sch 5[12], opn 1 Dec 2018]

sexual offence [def rep Act 25 of 2005 s 3 and Sch 1, opn 12 Aug 2005]

special witness means any of the following witnesses in relation to the offence concerned: (a) a sexual offence witness, (b) a witness who is a cognitively impaired person, (c) a witness who is under the age of 18 years. [def insrt Act 88 of 2018 Sch 5[12], opn 1 Dec 2018]

[2-s 306B] Admission of evidence of complainant or special witness in new trial proceedings 306B (1) If a person is convicted of a prescribed sexual offence and, on an appeal against the conviction, a new trial is ordered, the prosecutor may tender as evidence in the new trial proceedings a record of the original evidence of the complainant or a special witness. [subs (1) am Act 25 of 2005 s 3 and Sch 1, opn 12 Aug 2005; Act 88 of 2018 Sch 5[13], opn 1 Dec 2018]

(2) For the purposes of this Division, the original evidence of the complainant or a special witness means all evidence given by the complainant or special witness in the

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Criminal Procedure

s 306B

[2-s 306B]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 306B

proceedings from which the conviction arose (referred to in this Division as the original proceedings), including the evidence given by the complainant or special witness on examination in chief in the original proceedings and any further evidence given on cross-examination or re-examination in those proceedings. [subs (2) am Act 88 of 2018 Sch 5[13], [14], opn 1 Dec 2018]

(3) Despite anything to the contrary in the Evidence Act 1995, or any other Act or law, a record of the original evidence of the complainant or a special witness is admissible in the new trial proceedings if: (a) the prosecutor gives written notice to the accused person, in accordance with the regulations, of the prosecutor’s intention to tender the record under this section, and (b) the prosecutor gives written notice to the court of the prosecutor’s intention to tender the record under this section, and (c) the notices referred to in paragraphs (a) and (b) are given no less than 21 days before the court commences hearing the new trial proceedings or within such other period as the court may allow. [subs (3) am Act 88 of 2018 Sch 5[13], opn 1 Dec 2018]

(4) The hearsay rule (within the meaning of the Evidence Act 1995) does not prevent the admission of a record of the original evidence of the complainant or a special witness under this Division or the use of that record to prove the existence of a fact that the complainant or special witness intended to assert by a representation made in the original evidence. [subs (4) am Act 88 of 2018 Sch 5[13], [15], opn 1 Dec 2018]

(5) The court hearing the new trial proceedings does not have any discretion to decline to admit a record of the original evidence of the complainant or a special witness if it is admissible under this Division. [subs (5) am Act 88 of 2018 Sch 5[13], opn 1 Dec 2018]

(5A) If a record of original evidence of a special witness is admitted in new trial proceedings under this section, the special witness is not compellable to give further evidence about the same matters in the new trial proceeding unless the court is satisfied that it is necessary for the special witness to give further evidence: (a) to clarify any matters relating to the original evidence of the special witness, or (b) to canvass information or material that has become available since the original evidence was given, or (c) in the interests of justice. [subs (5A) insrt Act 88 of 2018 Sch 5[16], opn 1 Dec 2018]

(5B) The court is to ensure that the special witness is questioned by any party to the new trial proceedings only in relation to matters that are relevant to the matters mentioned in subsection (5A). [subs (5B) insrt Act 88 of 2018 Sch 5[16], opn 1 Dec 2018]

(5C) Subject to subsection (5B), if a special witness gives any further evidence under this section, the special witness is compellable (for the prosecution or the accused person) to give evidence. [subs (5C) insrt Act 88 of 2018 Sch 5[16], opn 1 Dec 2018]

(5D) The court hearing the new trial proceedings may decline to admit a record of the original evidence of a special witness if, in the court’s opinion, the accused person would be unfairly disadvantaged by the admission of the record, having regard to the following:

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CRIMINAL PROCEDURE ACT 1986

[2-s 306D]

(a) the completeness of the original evidence, including whether the special witness has been cross-examined on the evidence, (b) the effect of editing any inadmissible evidence from the original evidence, (c) the availability or willingness of the special witness to attend to give further evidence and to clarify any matters relating to the original evidence, (d) the interests of justice, (e) any other matter the court thinks relevant. [subs (5D) insrt Act 88 of 2018 Sch 5[16], opn 1 Dec 2018]

(6) However, the court may give directions requiring a record of the original evidence of the complainant or a special witness to be altered or edited for the purpose of removing any statements that would not be admissible if the original evidence of the complainant or a special witness had been given orally before the court hearing the new trial proceedings in accordance with the usual rules and practice of the court. [subs (6) am Act 88 of 2018 Sch 5[13], opn 1 Dec 2018]

(7) In addition, a record of the original evidence of the complainant or a special witness may be altered or edited in accordance with an agreement between the prosecutor and the accused person or his or her Australian legal practitioner (if any). [subs (7) am Act 120 of 2006 s 3 and Sch 3[9], opn 4 Dec 2006; Act 88 of 2018 Sch 5[13], opn 1 Dec 2018]

(8) This Division applies in respect of proceedings for a new trial in which a person stands charged with a prescribed sexual offence whether or not the person stands charged with that offence alone or together with any other offence (as an additional or alternative count) and whether or not the person is liable, on the charge, to be found guilty of any other offence. [subs (8) am Act 25 of 2005 s 3 and Sch 1, opn 12 Aug 2005]

(9) This Division extends to proceedings for a new trial ordered before the commencement of this Division, including new trial proceedings that have been commenced or partly heard. COMMENTARY ON SECTION 306B Written notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 306B.5]

[2-s 306B.5] Written notice See cl 26 of the Criminal Procedure Regulation 2017 at [2-5215] concerning written notice to be given for the purpose of this section.

[2-s 306C] Complainant or special witness not compellable to give further evidence 306C If a record of the original evidence of the complainant or a special witness (or any part of the record) is admitted in proceedings under this Division, the complainant or special witness is not compellable to give any further evidence in the proceedings (despite anything to the contrary in this Act or the Evidence Act 1995), including for the purpose of any examination in chief, cross-examination or re-examination by or at the request of the accused person or his or her Australian legal practitioner. [s 306C am Act 120 of 2006 s 3 and Sch 3[9], opn 4 Dec 2006; Act 88 of 2018 Sch 5[13], [17], opn 1 Dec 2018]

[2-s 306D] Complainant or special witness may elect to give further evidence 306D (1) If a record of the original evidence of the complainant or a special witness

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Criminal Procedure

s 306D

[2-s 306D]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 306D

(or any part of the record) is admitted in proceedings under this Division, the complainant or special witness may, with leave of the court hearing the proceedings, and only if the complainant or special witness so chooses, give further oral evidence in the proceedings. [subs (1) am Act 88 of 2018 Sch 5[13], [17], [18], opn 1 Dec 2018]

(2) The court is to give leave to the complainant or special witness to give such further evidence in the proceedings only if the court is satisfied, on application by one of the parties to the proceedings, that it is necessary for the complainant or special witness to give further oral evidence: (a) to clarify any matters relating to the original evidence of the complainant or special witness, or (b) to canvas information or material that has become available since the original proceedings, or (c) in the interests of justice. [subs (2) am Act 88 of 2018 Sch 5[19], opn 1 Dec 2018]

(3) The court is to ensure that the complainant or special witness is questioned by any party to the proceedings only in relation to matters that are relevant to the reasons for the grant of leave by the court. [subs (3) am Act 88 of 2018 Sch 5[19], opn 1 Dec 2018]

(4) Subject to subsection (3), if a complainant or special witness gives any further oral evidence under this section, the complainant or special witness is compellable (for the prosecution or the accused person) to give evidence. This applies despite section 306C. [subs (4) am Act 88 of 2018 Sch 5[19], opn 1 Dec 2018]

COMMENTARY ON SECTION 306D Directions to the jury as to absence of complainant . . . . . . . . . . . . . .

[2-s 306D.5]

[2-s 306D.5] Directions to the jury as to absence of complainant The appropriate directions to give a jury where the complainant has not personally given evidence in accordance with the section were considered in PGM (No 2) v R [2012] NSWCCA 261; BC201210735; 20(2) Crim LN [3180].

[2-s 306E] Form in which record of original evidence of complainant or special witness is to be tendered 306E (1) A record of the original evidence of the complainant or a special witness tendered by the prosecutor under this Division must be the best available record, or be comprised of the best available records, of the original evidence of the complainant or special witness, and the record or records concerned must be properly authenticated. [subs (1) am Act 88 of 2018 Sch 5[20], [21], opn 1 Dec 2018]

(2) For the purposes of this section, the best available record of the evidence, or any part of the evidence, given by a complainant or special witness is: (a) an audio visual recording of the evidence, or (b) if an audio visual recording of the evidence is not available, an audio recording of the evidence, or (c) if neither an audio visual recording nor an audio recording of the evidence is available, a transcript of the evidence. [subs (2) am Act 88 of 2018 Sch 5[19], opn 1 Dec 2018]

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CRIMINAL PROCEDURE ACT 1986

[2-s 306G]

(3) If the whole or part of the evidence given by the complainant or special witness in the original proceedings was given in the form of a recording made by an investigating official, as provided for by Part 6, the best available record of that evidence is the recording viewed or heard by the court in those original proceedings. [subs (3) am Act 6 of 2007 s 3 and Sch 1[5], opn 12 Oct 2007; Act 88 of 2018 Sch 5[19], opn 1 Dec 2018]

(4) A record of any evidence given by a complainant or special witness is properly authenticated for the purposes of this section if: (a) the record has been authenticated by the court before which the evidence concerned was given or by the registrar or other proper officer of that court in accordance with any directions of the court, or (b) the record has been authenticated by the person or body responsible for producing the record, or (c) the record has been authenticated in any other manner prescribed by the regulations. [subs (4) am Act 88 of 2018 Sch 5[19], opn 1 Dec 2018]

[2-s 306F] Access to audio visual or audio recording 306F (1) If a record of the original evidence of the complainant or a special witness tendered or proposed to be tendered by the prosecutor under this Division is an audio visual recording or audio recording, the accused person, and his or her Australian legal practitioner (if any), are not entitled to be given possession of the record or a copy of it (despite anything to the contrary in this Act or the Evidence Act 1995). [subs (1) am Act 120 of 2006 s 3 and Sch 3[9], opn 4 Dec 2006; Act 88 of 2018 Sch 5[13], opn 1 Dec 2018]

(2) However, the accused person and his or her Australian legal practitioner (if any) are to be given reasonable access to the recording to enable them to listen to it and, if the record is an audio visual recording, view it. [subs (2) am Act 120 of 2006 s 3 and Sch 3[9], opn 4 Dec 2006]

(3) This may require access to be given on more than one occasion. (4) The regulations may make provision for the procedures to be followed in connection with the giving of access under this section, and may provide for the giving of access to other persons assisting the accused person or his or her Australian legal practitioner. [subs (4) am Act 120 of 2006 s 3 and Sch 3[9], opn 4 Dec 2006]

COMMENTARY ON SECTION 306F Access to recording . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 306F.5]

[2-s 306F.5] Access to recording See cl 27 of the Criminal Procedure Regulation 2017 at [2-5220] concerning access to a recording.

[2-s 306G] Exhibits may also be tendered 306G (1) If a record of the original evidence of a complainant or a special witness is tendered by the prosecutor under this Division, any exhibits tendered in the original proceedings on the basis of the original evidence of the complainant or special witness and admitted in the original proceedings are also admissible in the new trial proceedings

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Criminal Procedure

s 306G

[2-s 306G]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 306G

as if the original evidence of the complainant or special witness had been given orally before the court hearing the new trial proceedings in accordance with the usual rules and practice of the court. [subs (1) am Act 88 of 2018 Sch 5[22], [23], opn 1 Dec 2018]

(2) This section does not prevent any other exhibits tendered in the original proceedings from being tendered and admitted in the new trial proceedings in accordance with the usual rules and practice of the court hearing the new trial proceedings. DIVISION 4 — SPECIAL PROVISIONS RELATING TO SUBSEQUENT TRIALS OF SEXUAL OFFENCE PROCEEDINGS [Div 4 insrt Act 88 of 2006 s 3 and Sch 1[10], opn 1 Jan 2007]

Note. Division 3 of this Part applies in relation to a retrial of proceedings that follows an appeal against a conviction for a prescribed sexual offence. This Division, on the other hand, applies when a trial for a prescribed sexual offence has been discontinued and a new trial is listed.

[2-s 306H] Definitions 306H In this Division: accused person has the same meaning as in section 306A. complainant has the same meaning as in section 306A. original evidence of the complainant or a special witness has the meaning given by section 306I. [def subst Act 88 of 2018 Sch 5[24], opn 1 Dec 2018]

prescribed sexual offence includes a female genital mutilation offence. [def insrt Act 88 of 2018 Sch 5[24], opn 1 Dec 2018]

special witness has the same meaning as in section 306A. [def insrt Act 88 of 2018 Sch 5[24], opn 1 Dec 2018]

[2-s 306I] Admission of evidence of complainant or special witness in new trial proceedings 306I (1) If the trial of an accused person is discontinued following the jury being discharged because the jurors could not reach a verdict, or discontinued for any other reason, and, as a result, a new trial is listed, the prosecutor may tender as evidence in the new trial proceedings a record of the original evidence of the complainant or a special witness. [subs (1) am Act 88 of 2018 Sch 5[13], opn 1 Dec 2018]

(2) For the purposes of this Division, the original evidence of the complainant or a special witness means all evidence given by the complainant or special witness in the discontinued trial (referred to in this Division as the original proceedings), including the evidence given by the complainant or special witness on examination in chief in the original proceedings and any further evidence given on cross-examination or re-examination in those proceedings. [subs (2) am Act 88 of 2018 Sch 5[13], [14], opn 1 Dec 2018]

(3) Despite anything to the contrary in the Evidence Act 1995, or any other Act or law, a record of the original evidence of the complainant or a special witness is admissible in the new trial proceedings if:

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CRIMINAL PROCEDURE ACT 1986

[2-s 306I]

(a) the prosecutor gives written notice to the accused person, in accordance with the regulations, of the prosecutor’s intention to tender the record under this section, and (b) the prosecutor gives written notice to the court of the prosecutor’s intention to tender the record under this section, and (c) the notices referred to in paragraphs (a) and (b) are given no less than 21 days before the court commences hearing the new trial proceedings or within such other period as the court may allow. [subs (3) am Act 88 of 2018 Sch 5[13], opn 1 Dec 2018]

(4) The hearsay rule (within the meaning of the Evidence Act 1995) does not prevent the admission of a record of the original evidence of the complainant or a special witness under this Division or the use of that record to prove the existence of a fact that the complainant or special witness intended to assert by a representation made in the original evidence. [subs (4) am Act 88 of 2018 Sch 5[13], [15], opn 1 Dec 2018]

(5) Despite subsection (3), the court hearing the new trial proceedings may decline to admit a record of the original evidence of the complainant or a special witness if, in the court’s opinion, the accused would be unfairly disadvantaged by the admission of the record, having regard to the following: (a) the completeness of the original evidence, including whether the complainant or special witness has been cross-examined on the evidence, (b) the effect of editing any inadmissible evidence from the original evidence, (c) the availability or willingness of the complainant or special witness to attend to give further evidence and to clarify any matters relating to the original evidence, (d) the interests of justice, (e) any other matter the court thinks relevant. [subs (5) am Act 88 of 2018 Sch 5[19], [20], opn 1 Dec 2018]

(6) If the court allows a record of the original evidence of the complainant or a special witness to be admitted, the court may give directions requiring the record to be altered or edited for the purpose of removing any statements that would not be admissible if the original evidence of the complainant or special witness had been given orally before the court hearing the new trial proceedings in accordance with the usual rules and practice of the court. [subs (6) am Act 88 of 2018 Sch 5[20], [21], opn 1 Dec 2018]

(7) In addition, a record of the original evidence of the complainant or a special witness may be altered or edited in accordance with an agreement between the prosecutor and the accused person or his or her counsel (if any). [subs (7) am Act 88 of 2018 Sch 5[13], opn 1 Dec 2018]

(8) This Division applies in respect of proceedings for a new trial in which a person stands charged with a prescribed sexual offence whether or not the person stands charged with that offence alone or together with any other offence (as an additional or alternative count) and whether or not the person is liable, on the charge, to be found guilty of any other offence. (9) This Division extends to proceedings for a new trial listed before the commencement of this Division, including new trial proceedings that have been commenced or partly heard.

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Criminal Procedure

s 306I

[2-s 306I.5]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

COMMENTARY ON SECTION 306I Written notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope of the section. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

s 306I

[2-s 306I.5] [2-s 306I.10]

[2-s 306I.5] Written notice See cl 27 of the Criminal Procedure Regulation 2017 at [2-5220] concerning access to a recording. [2-s 306I.10] Scope of the section. The section applies to a special hearing by reason of s 21(1) of the Mental Health (Forensic Provisions) Act 1990 which provides that a special hearing is to be conducted “as nearly as possible as if were a trial of criminal proceedings”: EK v R [2010] NSWCCA 199; BC201006600; 17(10) Crim LN 150 [2802].

[2-s 306J] Whether complainant or special witness compellable to give further evidence 306J (1) If a record of the original evidence of the complainant or a special witness (or any part of the record) is admitted in proceedings under this Division, the complainant or special witness is not compellable to give further evidence in the proceedings unless the court is satisfied that it is necessary for the complainant or special witness to give further evidence: (a) to clarify any matters relating to the original evidence of the complainant or special witness, or (b) to canvas information or material that has become available since the original proceedings, or (c) in the interests of justice. [subs (1) am Act 88 of 2018 Sch 5[17], [19], [20], [25], opn 1 Dec 2018]

(2) Subsection (1) applies despite anything to the contrary in this Act or the Evidence Act 1995. (3) The court is to ensure that the complainant or special witness is questioned by any party to the proceedings only in relation to matters that are relevant to the matters mentioned in subsection (1). [subs (3) am Act 88 of 2018 Sch 5[19], opn 1 Dec 2018]

(4) Subject to subsection (3), if a complainant or special witness gives any further oral evidence under this section, the complainant or special witness is compellable (for the prosecution or the accused person) to give evidence. [subs (4) am Act 88 of 2018 Sch 5[19], opn 1 Dec 2018]

[2-s 306K] Complainant or special witness may elect to give further evidence 306K (1) If a record of the original evidence of the complainant or a special witness (or any part of the record) is admitted in proceedings under this Division, the complainant or special witness may, with leave of the court hearing the proceedings, and only if the complainant or special witness so chooses, give further oral evidence in the proceedings. [subs (1) am Act 88 of 2018 Sch 5[13], [17], [18], opn 1 Dec 2018]

(2) The court is to give leave to the complainant or special witness to give such further evidence in the proceedings only if the court is satisfied, on application by one of the parties to the proceedings, that it is necessary for the complainant or special witness to give further oral evidence:

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CRIMINAL PROCEDURE ACT 1986

[2-s 306M]

(a) to clarify any matters relating to the original evidence of the complainant or special witness, or (b) to canvas information or material that has become available since the original proceedings, or (c) in the interests of justice. [subs (2) am Act 88 of 2018 Sch 5[19], [25], [26], opn 1 Dec 2018]

(3) The court is to ensure that the complainant or special witness is questioned by any party to the proceedings only in relation to matters that are relevant to the reasons for the grant of leave by the court. [subs (3) am Act 88 of 2018 Sch 5[19], opn 1 Dec 2018]

(4) Subject to subsection (3), if a complainant or special witness gives any further oral evidence under this section, the complainant or special witness is compellable (for the prosecution or the accused person) to give evidence. [subs (4) am Act 88 of 2018 Sch 5[19], opn 1 Dec 2018]

[2-s 306L] Application of provisions dealing with form of record of original evidence, access to recordings and exhibits 306L Sections 306E–306G (including any regulations made for the purposes of those sections) apply for the purposes of this Division with such modifications as are necessary. PART 6 — GIVING OF EVIDENCE BY VULNERABLE PERSONS [Pt 6 insrt Act 6 of 2007 s 3 and Sch 1[13], opn 12 Oct 2007]

DIVISION 1 — PRELIMINARY

[2-s 306M] Definitions 306M (1) In this Part: child protection prohibition order means a prohibition order within the meaning of the Child Protection (Offenders Prohibition Orders) Act 2004, and includes an interim child protection prohibition order made under that Act. cognitively impaired person means a person who has a cognitive impairment. [def insrt Act 74 of 2008 s 4 and Sch 2, opn 1 Dec 2008]

court, in relation to a proceeding referred to in section 306ZA(d), includes the Civil and Administrative Tribunal. [def am Act 95 of 2013 Sch 10 item 10.4[1], opn 1 Jan 2014]

courtroom, in relation to a proceeding referred to in section 306ZA(d), includes the place where the Civil and Administrative Tribunal is sitting. [def am Act 95 of 2013 Sch 10 item 10.4[1], opn 1 Jan 2014]

intellectually impaired person [def rep Act 74 of 2008 s 4 and Sch 2, opn 1 Dec 2008]

investigating official means: (a) a police officer (other than a police officer who is engaged in covert investigations), or (b) in relation to the questioning of a child — a person who is engaged, in conjunction with an investigating official described in paragraph (a), in an

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Criminal Procedure

s 306M

[2-s 306M]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 306M

investigation caused to be made by the Secretary of the Department of Family and Community Services under the Children and Young Persons (Care and Protection) Act 1998 or caused to be made under child protection legislation of another State or a Territory, or (c) any other person prescribed by the regulations for the purposes of this definition. [def am Act 87 of 2018 Sch 1 item 1.15[10], opn 28 Nov 2018]

personal assault offence means any of the following offences: (a) an offence under Part 3 of the Crimes Act 1900, (b) an offence under section 545AB or 562AB of the Crimes Act 1900, (c) an offence under section 562ZG, or section 562I as in force before its substitution, of the Crimes Act 1900, (d) an offence under section 227 of the Children and Young Persons (Care and Protection) Act 1998, (d1) an offence under section 13 or 14 of the Crimes (Domestic and Personal Violence) Act 2007, (e) an offence that includes the commission of, or an intention to commit, any of the above offences, (f) an offence of attempting, or of conspiracy or incitement, to commit any of the above offences. [def am Act 80 of 2013 Sch 5, opn 29 Oct 2013]

police officer means: (a) a member of the Australian Federal Police, or (b) a member of the police force of a State or Territory. [def insrt Act 54 of 2016 Sch 1.7[4], opn 25 Oct 2016]

recording means: (a) an audio recording, or (b) a video recording, or (c) a video recording accompanied by a separately but contemporaneously recorded audio recording. vulnerable person means a child or a cognitively impaired person. [def am Act 74 of 2008 s 4 and Sch 2, opn 1 Dec 2008]

(2) For the purposes of this Part, a cognitive impairment includes any of the following: (a) an intellectual disability, (b) a developmental disorder (including an autistic spectrum disorder), (c) a neurological disorder, (d) dementia, (e) a severe mental illness, (f) a brain injury. Note. See section 306P as to the application of this Part to the giving of evidence by cognitively impaired persons. [Subs (2) subst Act 74 of 2008 s 4 and Sch 2, opn 1 Dec 2008]

COMMENTARY ON SECTION 306M Operation of Part 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Vulnerable persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[2-s 306M.1] [2 s 306M.5]

CRIMINAL PROCEDURE ACT 1986

[2-s 306P.5]

[2-s 306M.1] Operation of Part 6 The provisions in Pt 6 were enacted by the Criminal Procedure Amendment (Vulnerable Persons) Act 2007 which commenced on 12 October 2007. Part 6 applies to proceedings commenced on or after that day: cl 55 at [2-Sch 2]. The repealed Evidence (Children) Act 1997 continues to apply to proceedings commenced before 12 October 2007: cl 56 at [2-Sch 2]. The provisions of Pt 6 are in addition to the Evidence Act 1995 and do not, unless a contrary intention is shown, affect the operation of that Act: s 306O at [2-s 306O]. [2 s 306M.5] Vulnerable persons Part 6 relates to the giving of evidence by a “vulnerable person” defined in s 306M(1) as “a child or an intellectually impaired person”. The term “intentionally impaired” is defined in s 306M(2). Unless a contrary intention is shown, Pt 6 applies to a child who is under the age of 16 years at the time the evidence is given: s 306P(1) at [2-s 306P]. Where evidence is given by an intellectually impaired person, unless a contrary intention is shown, Pt 6 applies only if the court is satisfied that the facts of the case may be better ascertained if the person’s evidence is given in the manner provided by the Part: s 306P(2) at [2-s 306P].

[2-s 306N] Words and expressions used in Evidence Act 1995 306N (1) Words and expressions that are defined in the Evidence Act 1995 and that are used in this Part have the same meanings in this Part as they have in the Evidence Act 1995. (2) This section applies except so far as the context or subject-matter otherwise indicates or requires. (3) However, this section does not apply to a word or expression defined in section 306M.

[2-s 306O] Relationship to Evidence Act 1995 306O The provisions of this Part are in addition to the provisions of the Evidence Act 1995 and do not, unless a contrary intention is shown, affect the operation of that Act.

[2-s 306P] Application of Part 306P (1) To the extent that this Part applies to children, this Part applies (unless a contrary intention is shown) in relation to evidence given by a child who is under the age of 16 years at the time the evidence is given. (2) To the extent that this Part applies to cognitively impaired persons, this Part applies (unless a contrary intention is shown) in relation to evidence given by a cognitively impaired person in the manner provided by this Part only if the court is satisfied that the facts of the case may be better ascertained if the person’s evidence is given in such a manner. [subs (2) am Act 74 of 2008 s 4 and Sch 2, opn 1 Dec 2008]

COMMENTARY ON SECTION 306P Evidence given by cognitively impaired persons . . . . . . . . . . . . . . . .

[2-s 306P.5]

[2-s 306P.5] Evidence given by cognitively impaired persons The application of the provisions to cognitively impaired persons was considered in Panchal v R; R v Panchal [2014] NSWCCA 275; BC201409995; 22(2) Crim LN [3488] where the complainant was permitted to

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Criminal Procedure

s 306P

[2-s 306P.5]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 306P

give evidence through the recorded statement to police and then cross-examined from a remote room by the use of CCTV. It was held that the judge was not required to record a specific finding in accordance with s 306P(2). There was no dispute at the trial that the witness was cognitively impaired and the defence acquiesced in the procedure adopted. In any event the proceedings were saved by s 306ZJ.

DIVISION 2 — RECORDING OF OUT OF COURT STATEMENTS

[2-s 306Q] Regulations may require interviews with vulnerable persons to be recorded 306Q (1) If the regulations so require, an investigating official who questions a vulnerable person in connection with the investigation of the commission or possible commission of an offence by the person or any other person is, in accordance with any such regulations, to record any representation made by the vulnerable person in the course of the interview during which the vulnerable person is questioned. (2) In this section, investigating official does not include: (a) a member of the Australian Federal Police, or (b) a member of the police force of another State or Territory, or (c) an investigating official of another State or a Territory acting under child protection legislation of the other State or Territory. [subs (2) insrt Act 54 of 2016 Sch 1.7[5], opn 25 Oct 2016; am Act 87 of 2018 Sch 1 item 1.15[11], opn 28 Nov 2018]

DIVISION 3 — GIVING EVIDENCE OF OUT OF COURT REPRESENTATIONS

[2-s 306R] Evidence to which this Division applies 306R (1) This Division applies to evidence of a previous representation of a vulnerable person made in the course of an interview during which the person is questioned by an investigating official in connection with the investigation of the commission or possible commission of an offence. (2) To the extent that this Division applies to cognitively impaired persons, this Division does not apply to evidence of a previous representation made before the commencement of this Division. [subs (2) am Act 74 of 2008 s 4 and Sch 2, opn 1 Dec 2008]

[2-s 306S] Ways in which evidence of vulnerable person may be given 306S (1) Subject to this Part, a vulnerable person may give evidence of a previous representation to which this Division applies made by the person in any criminal proceeding wholly or partly: (a) in the form of a recording of the previous representation made by an investigating official of the interview in the course of which the previous representation was made and that is viewed or heard, or both, by the court, or (b) orally in the courtroom, or (c) if the evidence is given in any proceeding to which Division 4 applies — in accordance with alternative arrangements made under section 306W. Note. See section 306ZA.

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CRIMINAL PROCEDURE ACT 1986

[2-s 306S.1]

(2) Evidence in the form of a recording given by a vulnerable person under subsection (1) (a) is not required to be served on a party to any proceeding (including proceedings in relation to apprehended violence commenced under the Crimes (Domestic and Personal Violence) Act 2007). [subs (2) am Act 114 of 2008 s 3 and Sch 2.8[1], opn 10 Dec 2008]

(3) Nothing in this section affects the giving of evidence by means of a written statement for the purposes of Division 3 of Part 2 of Chapter 3. Note. See also section 306ZN. COMMENTARY ON SECTION 306S Videotaped evidence in chief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 306S.1]

[2-s 306S.1] Videotaped evidence in chief The procedure to be adopted where the evidence in chief of a child witness was given by the playing of a videotape under repealed s 9 of the Evidence (Children) Act 1997 (the predecessor to s 306S) was considered in R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278; BC200506064 at 677 [210]; (2005) 12 Crim LN 58 [1910] where it was held that the following was the preferred procedure: (a) the videotape evidence of a Crown witness should not become an exhibit and, therefore, should not be sent with the exhibits to the jury on retirement; (b) any transcript given to the jury under s 15A of the Evidence (Children) Act 1997 (see now s 306Z) should be recovered from the jury after the evidence of the witness has been completed; (c) it is for the discretion of the trial judge how a jury request to be reminded of the evidence in chief of a witness should be addressed; (d) it would be inappropriate for the judge to question the jury as to the purpose for which they wish to have the tape played; (e) if the tape is to be replayed or the transcript of the tape provided to the jury, the judge should caution the jury about their approach to that evidence when the tape is being replayed to them or the transcript of the tape returned to them in terms to the effect that “because they are hearing the evidence in chief of the complainant repeated a second time and well after all the other evidence, they should guard against the risk of giving it disproportionate weight simply for that reason and should bear in mind the other evidence in the case”; (f) the judge should consider whether the jury should be reminded of any other evidence, for example the cross-examination of the witness at the time that the tape is replayed or sent to the jury room, if that step is considered to be appropriate. If the jury wishes to have the videotape replayed after retiring to consider their verdict the judge has discretion as to how to answer that request and what should be done to ensure that the trial remains fair and balanced. In Jarret v R [2014] NSWCCA 140; BC201406013; 21(8) Crim LN [3414] the procedure laid down in NZ (above) was not complied with but it was held that in the circumstances of that case there was no miscarriage of justice. In AB (A Pseudonym) v R [2019] NSWCCA 82; BC201903135; 26(5) Crim LN [4131] it was held that, where (wrongly) the video tape was made an exhibit and was sent to the jury at the outset of their deliberations, there was, however, no miscarriage because the whole of the witness’s evidence was recorded including cross-examination and the accused had not given evidence. The whole focus at the trial was the complainant’s credibility and so there was no risk of the jury giving undue attention to the evidence in the recording.

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Criminal Procedure

s 306S

[2-s 306T]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 306T

[2-s 306T] Wishes of vulnerable person to be taken into account 306T (1) A person must not call a vulnerable person to give evidence of a previous representation to which this Division applies made by the vulnerable person by means other than a recording made by an investigating official of the interview in the course of which the previous representation was made unless the person has taken into account any wishes of the vulnerable person, considered in the light of: (a) in the case of a child — the child’s age and understanding, or (b) in the case of a cognitively impaired person — the person’s cognitive impairment. [subs (1) am Act 74 of 2008 s 4 and Sch 2, opn 1 Dec 2008]

(2) However, subsection (1) does not permit a person to require a vulnerable person to express the vulnerable person’s wishes in relation to the matter.

[2 s 306U] Vulnerable person entitled to give evidence in chief in form of recording 306U (1) A vulnerable person is entitled to give, and may give, evidence in chief of a previous representation to which this Division applies made by the person wholly or partly in the form of a recording made by an investigating official of the interview in the course of which the previous representation was made and that is viewed or heard, or both, by the court. The vulnerable person must not, unless the person otherwise chooses, be present in the court, or be visible or audible to the court by closed-circuit television or by means of any similar technology, while it is viewing or hearing the recording. (2) Subject to section 306Y, a person is entitled to give, and may give (no matter what age the person is when the evidence is given), evidence as referred to in subsection (1) in the form of a recording of a previous representation to which this Division applies made by the person when the person was less than 16 years of age. Note. Under section 306Y, a court may order that a vulnerable person not give evidence in the form of a recording if it is satisfied that it is not in the interests of justice for the evidence to be given by a recording.

(3) If a vulnerable person who gives evidence as referred to in subsection (1) is not the accused person in the proceeding, the vulnerable person must subsequently be available for cross-examination and re-examination: (a) orally in the courtroom, or (b) if the evidence is given in any proceeding to which Division 4 applies — in accordance with alternative arrangements made under section 306W. (4) Subsection (3) does not apply in relation to committal proceedings. (5) Section 5BA of the Evidence (Audio and Audio Visual Links) Act 1998 does not apply to evidence given as referred to in subsection (1). [subs (5) am Act 75 of 2007 s 4 and Sch 2, opn 1 Jan 2009]

COMMENTARY ON SECTION 306U Evidence in chief by use of videotape . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 306U.1]

[2-s 306U.1] Evidence in chief by use of videotape As to the procedure to be followed where the evidence in chief of a witness is given by the playing of a videotape, see R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278; BC200506064 at [210]; (2005) 12 Crim LN 58 [1910] at [2-s 306S.1].

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CRIMINAL PROCEDURE ACT 1986

[2-s 306X.1]

[2-s 306V] Admissibility of recorded evidence 306V (1) The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995) do not prevent the admission or use of evidence of a previous representation to which this Division applies given by a vulnerable person under this Division in the form of a recording made by an investigating official. (2) Evidence of a previous representation to which this Division applies of a vulnerable person who is not the accused person in a proceeding that is given by the vulnerable person in the form of a recording made by an investigating official is not to be admitted unless it is proved that the accused person and his or her Australian legal practitioner (if any) were given, in accordance with the regulations, a reasonable opportunity to listen to and, in the case of a video recording, view the recording. [subs (2) am Act 56 of 2009 Sch 3.3, opn 17 July 2009]

(3) However, if the requirements of any regulations made under subsection (2) have not been complied with, the recording may be admitted if the court is satisfied that: (a) the parties consent to the recording being admitted, or (b) the accused person and his or her Australian legal practitioner (if any) have been given a reasonable opportunity otherwise than in accordance with such regulations to listen to or view the recording and it would be in the interests of justice to admit the recording. [subs (3) am Act 56 of 2009 Sch 3.3, opn 17 July 2009]

(4) The court may rule as inadmissible the whole or any part of the contents of a recording adduced as evidence under this Division. COMMENTARY ON SECTION 306V Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 306V.1]

[2-s 306V.1] Regulations Part 5 of the Criminal Procedure Regulation at [2-5155]–[2-5165] provide for notice for the purposes of s 306V(2) of the Act.

2017

[2-s 306W] Alternative arrangements for giving evidence 306W The court may order that alternative arrangements be made in accordance with Division 4 for the giving of evidence by the vulnerable person in any proceeding to which that Division applies.

[2-s 306X] Warning to jury 306X If a vulnerable person gives evidence of a previous representation wholly or partly in the form of a recording made by an investigating official in accordance with this Division in any proceedings in which there is a jury, the judge must warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the evidence being given in that way. COMMENTARY ON SECTION 306X Warnings to jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 306X.1]

[2-s 306X.1] Warnings to jury The appropriateness of warnings under repealed s 14 of the Evidence (Children) Act 1997 (the predecessor to s 306X) was considered in R v DBG (2002) 133 A Crim R 227; [2002] NSWCCA 328; BC200205266, where it was held that if the warning had

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Criminal Procedure

s 306X

[2-s 306X.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 306X

been given at the time of the evidence it was not necessary for it to be repeated again in the summing up.

[2-s 306X] Evidence not to be given in form of recording if contrary to interests of justice 306Y (1) A vulnerable person must not give evidence by means of a recording made by an investigating official in accordance with this Division if the court orders that such means not be used. (2) The court may only make such an order if it is satisfied that it is not in the interests of justice for the vulnerable person’s evidence to be given by a recording.

[2-s 306Z] Transcripts of recordings 306Z The court may order that a transcript be supplied to the court or, if there is a jury, to the jury, or both, of all or part of evidence of a previous representation to which this Division applies made by a vulnerable person that is given in the form of a recording if it appears to the court that a transcript would be likely to aid its or the jury’s comprehension of the evidence. COMMENTARY ON SECTION 306Z Use of transcripts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 306Z.1]

[2-s 306Z.1] Use of transcripts Where the jury was provided with a transcript under repealed s 15A of the Evidence (Children) Act 1997 (the predecessor to s 306Z) during the playing of the videotape, it was said that the transcript should be withdrawn from the jury at the end of the evidence of the witness: R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278; BC200506064 at 675-677 [203]-[207], [210]; (2005) 12 Crim LN 58 [1910]. It was held that, if the jury wish to have the transcript of the recording during the course of their deliberations, the trial judge should warn them against giving too much weight to the evidence in the transcript and remind the jury of the cross-examination of the witness and any defence evidence.

DIVISION 4 — GIVING OF EVIDENCE BY CLOSED-CIRCUIT TELEVISION

[2-s 306ZA] Application of Division 306ZA This Division applies to the following proceedings: (a) a proceeding in which it is alleged that a person has committed a personal assault offence, (b) a proceeding in relation to an application for an apprehended violence order, or a variation or revocation of such an order, (c) a civil proceeding arising from the commission of a personal assault offence, (d) a proceeding before the Civil and Administrative Tribunal in respect of the hearing of a matter arising from the commission of a personal assault offence that is the subject of an application to it under the Victims Rights and Support Act 2013, (e) a proceeding in relation to an application for a child protection prohibition order or to vary or revoke any such order or a proceeding in relation to a contravention of any such order. [s 306ZA am Act 95 of 2013 Sch 10 item 10.4[2], opn 1 Jan 2014]

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CRIMINAL PROCEDURE ACT 1986

[2-s 306ZC]

[2-s 306ZB] Vulnerable persons have a right to give evidence by closed-circuit television 306ZB (1) Subject to this Part, a vulnerable person who gives evidence in any proceeding to which this Division applies is entitled to give that evidence by means of closed-circuit television facilities or by means of any other similar technology prescribed for the purposes of this section. (2) Subject to subsections (4) and (5), a child who is 16 or more but less than 18 years of age at the time evidence is given in a proceeding to which this Division applies is entitled to give the evidence as referred to in subsection (1) if the child was under 16 years of age when the charge for the personal assault offence to which the proceedings relate was laid. (3) A vulnerable person may choose not to give evidence by the means referred to in subsection (1). (4) A vulnerable person must not give evidence by means of closed-circuit television facilities or any other prescribed technology if the court orders that such means not be used. (5) The court may only make such an order if it is satisfied that there are special reasons, in the interests of justice, for the vulnerable person’s evidence not to be given by such means. (6) This section does not apply to a vulnerable person: (a) who is the accused or defendant in any proceeding referred to in section 306ZA(a), (b) or (c), or (b) who is or was accused of committing the offence that gave rise to a proceeding referred to in section 306ZA(d). (7) Nothing in this section affects the operation of section 13 of the Evidence Act 1995.

[2-s 306ZC] Accused vulnerable persons may be allowed to give evidence by closed-circuit television 306ZC (1) This section applies to a vulnerable person who is the accused person, or person against whom a complaint is made, in any proceeding to which this Division applies. (2) The court may make an order permitting a vulnerable person’s evidence in a proceeding to which this Division applies to be given by means of closed-circuit television facilities or any other similar technology prescribed for the purposes of this section. (3) Such an order may be made in relation to a child only if the court is satisfied: (a) that the child may suffer mental or emotional harm if required to give evidence in the ordinary way, or (b) that the facts may be better ascertained if the child’s evidence is given in accordance with such an order. (4) A court may make an order under this section permitting a vulnerable person to whom this section applies who is an accused detainee within the meaning of the Evidence (Audio and Audio Visual Links) Act 1998 to give evidence in a proceeding to which this Division applies by means of closed-circuit television facilities or any other similar technology prescribed for the purposes of this section despite Part 1B of that Act.

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Criminal Procedure

s 306ZC

[2-s 306ZC]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 306ZC

(5) A vulnerable person may choose not to give evidence by means of closed-circuit television facilities or other similar technology.

[2-s 306ZD] Giving evidence by closed-circuit television 306ZD (1) If the evidence of a vulnerable person who is entitled or permitted to give evidence by means of closed-circuit television facilities or any other similar technology under this Division is given from a location outside a court, that location is taken to be part of the court in which the proceeding is being held. (2) If the evidence of a vulnerable person who is entitled or permitted to give evidence by means of closed-circuit television facilities or any other similar technology under this Division is given from a location outside a court, the court may order: (a) that a court officer be present at that other location, and (b) that any other person be present with the vulnerable person as an interpreter, for the purpose of assisting the vulnerable person with any difficulty in giving evidence associated with an impairment or a disability, or for the purpose of providing the vulnerable person with other support. (3) Any such order does not limit the entitlement that a vulnerable person has under section 306ZK to choose another person to be present with him or her when giving evidence. (4) Nothing in this section affects any entitlement a vulnerable person has under section 275B.

[2-s 306ZE] Giving identification evidence when closed-circuit television is used 306ZE (1) Subject to subsection (4), if a vulnerable person is entitled to give evidence by means of closed-circuit television facilities or any other similar technology, that person may not give identification evidence by those means. (2) However, such a person is entitled to refuse to give identification evidence until after the completion of the person’s other evidence (including examination in chief, cross-examination and re-examination). (3) In addition, the court must ensure that such a person is not in the presence of the accused for any longer than is necessary for the vulnerable person to give identification evidence. (4) Subsection (1) does not prevent the giving of identification evidence by means of closed-circuit television facilities or any other similar technology that relates to evidence that is not a fact in issue. Note. Identification evidence is defined in the Evidence Act 1995. COMMENTARY ON SECTION 306ZE Identification evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 306ZE.1] [2-s 306ZE.1] Identification evidence Sections 306ZE(1) and (4) permits a witness to give identification evidence by means of closed circuit television facilities where it relates to evidence that is not a fact in issue. The repealed s 21 Evidence (Children) Act 1997 entirely prohibited children giving identification evidence by means of closed circuit television facilities.

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[2-s 306ZH]

CRIMINAL PROCEDURE ACT 1986

[2-s 306ZF] Proceedings may closed-circuit television facilities

be

moved

to

allow

use

of

306ZF (1) This section applies if a vulnerable person is entitled or permitted to give evidence by means of closed-circuit television facilities or any other similar technology under this Division. (2) If the court is not equipped with such facilities or technology, or it otherwise considers it appropriate to do so, the court may adjourn the proceeding or any part of the proceeding to a court or place that is equipped with such facilities or technology so that the vulnerable person’s evidence may be given by such means.

[2-s 306ZG] Use of closed-circuit television or similar technology 306ZG Closed-circuit television facilities or similar technology used under this Division for the giving of evidence by a vulnerable person are to be operated in such a manner that the persons who have an interest in the proceeding are able to see the vulnerable person (and any person present with the vulnerable person) on the same or another television monitor.

[2-s 306ZH] Vulnerable persons have a right to alternative arrangements for giving evidence when closed-circuit television facilities not available 306ZH (1) This section applies to any proceeding in which a vulnerable person is entitled or permitted to give evidence by means of closed-circuit television facilities or other similar technology (by virtue of section 306ZB or an order made under section 306ZC) but does not do so because: (a) such facilities and such technology are not available (and the court does not move the proceeding under section 306ZF), or (b) the vulnerable person chooses not to give evidence by those means, or (c) the court orders that the vulnerable person may not give evidence by those means (or, in the case of a vulnerable person to whom section 306ZC applies, the court does not order that the vulnerable person may give evidence by those means). (2) In such a proceeding, the court must make alternative arrangements for the giving of evidence by the vulnerable person, in order to restrict contact (including visual contact) between the vulnerable person and any other person or persons. (3) Those alternative arrangements may include any of the following: (a) the use of screens, (b) planned seating arrangements for people who have an interest in the proceeding (including the level at which they are seated and the people in the vulnerable person’s line of vision), (c) the adjournment of the proceeding or any part of the proceeding to other premises. (4) A vulnerable person may choose not to use any such alternative arrangements. In that case, the court must direct that the vulnerable person be permitted to give evidence orally in the courtroom. (5) Any premises to which a proceeding is adjourned under this section are taken to be part of the court in which the proceeding is being heard.

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Criminal Procedure

s 306ZH

[2-s 306ZI]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 306ZI

[2-s 306ZI] Warning to jury 306ZI (1) In any criminal proceeding in which the evidence of a vulnerable person is given by means of closed-circuit television facilities or any other similar technology (by virtue of section 306ZB), the judge must: (a) inform the jury that it is standard procedure for the evidence of vulnerable persons in such cases to be given by those means, and (b) warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the use of those facilities or that technology. (2) In any criminal proceeding in which the evidence of a vulnerable person is given by means of closed-circuit television facilities or any other similar technology (by virtue of section 306ZC), the judge must warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the use of those facilities or that technology. (3) In any criminal proceeding in which arrangements are made for a person to be with a vulnerable person giving evidence (by virtue of section 306ZD or 306ZK), the judge must: (a) inform the jury that it is standard procedure in such cases for vulnerable persons to choose a person to be with them, and (b) warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the presence of that person. (4) In any criminal proceeding in which alternative arrangements for the giving of evidence by a vulnerable person are made (by virtue of section 306ZH or 306ZL), the judge must: (a) inform the jury that it is standard procedure in such cases for alternative arrangements to be used when vulnerable persons give evidence, and (b) warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the use of those alternative arrangements. COMMENTARY ON SECTION 306ZI Warnings to jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 306ZI.1]

[2-s 306ZI.1] Warnings to jury The appropriateness of warnings under repealed s 25 of the Evidence (Children) Act 1997 (the predecessor to s 306ZI) was considered in R v DBG (2002) 133 A Crim R 227; [2002] NSWCCA 328; BC200205266, where it was held that if the warning had been given at the time of the evidence it was not necessary for it to be repeated again in the summing up.

DIVISION 5 — MISCELLANEOUS

[2-s 306ZJ] Validity of proceedings not affected 306ZJ (1) The failure of a vulnerable person to give evidence in accordance with a provision of this Part does not affect the validity of any proceeding or any decision made in connection with that proceeding. (2) The failure of an investigating official to record a representation of a child in

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CRIMINAL PROCEDURE ACT 1986

[2-s 306ZK]

accordance with any regulations made under section 306Q does not affect the validity of any proceeding in which evidence of the representation is given.

[2-s 306ZK] Vulnerable persons have a right to presence of a support person while giving evidence 306ZK (1) This section applies to: (a) a criminal proceeding in any court, and (b) a civil proceeding arising from the commission of a personal assault offence, and (c) apprehended violence order proceedings within the meaning of the Crimes (Domestic and Personal Violence) Act 2007, and (d) a proceeding before the Civil and Administrative Tribunal in respect of the hearing of a matter arising from the commission of a personal assault offence that is the subject of an application to it under the Victims Rights and Support Act 2013, and (e) a proceeding in relation to an application for a child protection prohibition order or to vary or revoke any such order. [subs (1) am Act 80 of 2007 s 103 and Sch 2.9, opn 10 Mar 2008; Act 95 of 2013 Sch 10 item 10.4[3], opn 1 Jan 2014]

(2) A vulnerable person who gives evidence in a proceeding to which this section applies is entitled to choose a person whom the vulnerable person would like to have present near him or her when giving evidence. (3) Without limiting a vulnerable person’s right to choose such a person, that person: (a) may be a parent, guardian, relative, friend or support person of the vulnerable person, and (b) may be with the vulnerable person as an interpreter, for the purpose of assisting the vulnerable person with any difficulty in giving evidence associated with an impairment or a disability, or for the purpose of providing the vulnerable person with other support. (3A) An accused person is not entitled to object to the suitability of the person or persons chosen by a vulnerable person to be with the vulnerable person when giving evidence, and the court is not to disallow the vulnerable person’s choice of person or persons on its own motion, unless the vulnerable person’s choice is likely to prejudice the accused person’s right to a fair hearing (for example, because the person chosen by the vulnerable person is a witness or potential witness in the proceedings). [subs (3A) insrt Act 88 of 2018 Sch 5[27], opn 1 Dec 2018]

(4) To the extent that the court or tribunal considers it reasonable to do so, the court or tribunal must make whatever direction is appropriate to give effect to a vulnerable person’s decision to have such a person present near the vulnerable person, and within the vulnerable person’s sight, when the vulnerable person is giving evidence. (5) The court or tribunal may permit more than one support person to be present with the vulnerable person if the court or tribunal thinks that it is in the interests of justice to do so. (6) This section extends to a vulnerable person who is the accused or the defendant in the relevant proceeding. (7) In this section (and despite section 306P):

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Criminal Procedure

s 306ZK

[2-s 306ZK]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 306ZK

vulnerable person includes, in respect of proceedings referred to in subsection (1)(a) or (c), a person who is 16 years of age or over but under the age of 18 years. [subs (7) insrt Act 88 of 2018 Sch 5[28], opn 1 Dec 2018] [s 306ZK am Act 74 of 2008 s 4 and Sch 2, opn 1 Dec 2008; Act 88 of 2018 Sch 5[29], opn 1 Dec 2018]

[2-s 306ZL] Vulnerable persons have a right to alternative arrangements for giving evidence when accused is unrepresented 306ZL (1) This section applies to a criminal proceeding in any court, or a civil proceeding arising from the commission of a personal assault offence, in which the accused or defendant is not represented by an Australian legal practitioner. [subs (1) am Act 56 of 2009 Sch 3.3, opn 17 July 2009]

(2) A vulnerable person who is a witness (other than the accused or the defendant) in a proceeding to which this section applies is to be examined in chief, cross-examined or re-examined by a person appointed by the court instead of by the accused or the defendant. (3) If any such person is appointed, that person is to ask the vulnerable person only the questions that the accused or the defendant requests the person to put to the vulnerable person. (4) A person appointed under this section, when acting in the course of his or her appointment, must not independently give the accused or the defendant legal or other advice. (5) The court may choose not to appoint such a person if the court considers that it is not in the interests of justice to do so. (6) This section applies whether or not closed-circuit television facilities or other similar technology is used to give evidence, and whether or not alternative arrangements under section 306ZH are used in the proceedings. (7) Anything done or omitted to be done by a person who: (a) is appointed under this section, and (b) is an Australian legal practitioner, when acting in the course of the appointment or otherwise in accordance with this section does not, if the thing was done or omitted to be done in good faith, subject the person personally to any action, liability, claim or demand. [subs (7) am Act 56 of 2009 Sch 3.3, opn 17 July 2009]

[2-s 306ZM] Court orders 306ZM The court may make, vary or revoke an order under a provision of this Part either on its own motion or on application by a party to the proceeding or by the vulnerable person giving evidence.

[2-s 306ZN] General discretion of court not affected 306ZN Unless a contrary intention is shown, nothing in this Part limits any discretion that a court has with respect to the conduct of a proceeding. Note. See, for example, Part 3.11 (Discretions to exclude evidence) of the Evidence Act 1995.

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CRIMINAL PROCEDURE ACT 1986

[2-s 306ZQ]

[2-s 306ZO] Regulations 306ZO Without limiting any regulations made under section 4, the regulations may make provision for or with respect to the use of closed-circuit television facilities or other similar technology for the giving of evidence by vulnerable persons in accordance with this Part. COMMENTARY ON SECTION 306Z0 Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 306ZO.1] [2-s 306ZO.1] Regulations See Pt 5 of the Criminal Procedure Regulation 2017 at [2-5150] and following concerning recorded interviews with vulnerable persons.

[2-s 306ZP] Rules of court 306ZP (1) Rules of court may (subject to any regulations made under this Act) be made in respect of the giving of evidence under this Part. (2) In particular, rules of court may (subject to the regulations) also make provision for or with respect to the use of closed-circuit television facilities or other similar technology for the giving of evidence by vulnerable persons in accordance with this Part. PART 7 — MISCELLANEOUS [Pt 7 insrt Act 88 of 2018 Sch 5[30], opn 1 Dec 2018]

[2-s 306ZQ] Complainants in domestic violence offence proceedings have a right to presence of a support person while giving evidence 306ZQ (1) A complainant who gives evidence in proceedings in respect of a domestic violence offence is entitled to choose a person whom the complainant would like to have present near him or her when giving evidence. (2) Without limiting a complainant’s right to choose such a person, that person: (a) may be a parent, guardian, relative, friend or support person of the complainant, and (b) may be with the complainant as an interpreter, for the purpose of assisting the complainant with any difficulty in giving evidence associated with an impairment or a disability, or for the purpose of providing the complainant with other support. (3) An accused person is not entitled to object to the suitability of the person or persons chosen by a complainant to be with the complainant when giving evidence, and the court is not to disallow the choice of person or persons on its own motion, unless the person chosen by the complainant is likely to prejudice the accused person’s right to a fair hearing (for example, because the person chosen by the complainant is a witness or potential witness in the proceedings). Note. This section does not apply to a complainant in proceedings for a prescribed sexual offence. In that case, section 294C sets out the entitlements of the complainant to have one or more support persons present when giving evidence.

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Criminal Procedure

s 306ZQ

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PART 1 — GENERAL [Heading insrt Act 119 of 2001 s 3 and Sch 1[132], opn 7 July 2003]

[2-s 307] No court fees to be taken from accused persons 307 (1) This section applies to criminal proceedings in any court in respect of any offence. (2) Despite subsection (1), this section does not apply to: (a) proceedings for a summary offence for which a penalty notice has been issued as referred to in section 20 of the Fines Act 1996, but in respect of which the accused person has elected to have the matter dealt with by a court under section 36 of that Act, or (b) proceedings that are brought in a court for the purpose of appealing against, or obtaining a review of, some other court’s order or decision in proceedings for a summary offence. (3) No court fees are payable: (a) for the issuing of any process on behalf of the accused person, or (b) for the recording of any appearance or plea made by the accused person, in connection with criminal proceedings to which this section applies. [s 307 insrt Act 94 of 1999 s 4 and Sch 2[31], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[133], opn 7 July 2003] Editor’s Note. Section 307 (previously s 120) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 564 of the Crimes Act 1900.

[2-s 308] Bail decision may be made in respect of witness who fails to attend trial 308 (1) An authorised officer may make a bail decision in respect of a person who is bound by a bail acknowledgment under the Bail Act 2013, or is served with a subpoena, to attend as a witness in any court at a trial if the person: (a) fails to appear when called in open court, either at such trial, or on the day appointed for such trial, and (b) is arrested under a warrant issued by the court. (2) The Bail Act 2013 applies to the person (not being an accused person) as if: (a) the person were accused of an offence, and (b) the proceedings in which the person is required to be examined or produce a document or thing were proceedings for that offence. (3) For the purpose of applying the Bail Act 2013, an authorised officer has the same functions as an authorised justice under that Act. [s 308 subst Act 5 of 2014 Sch 2 item 2.15[9], opn 20 May 2014]

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Criminal Procedure

CHAPTER 7 — MISCELLANEOUS [Heading insrt Act 119 of 2001 s 3 and Sch 1[132], opn 7 July 2003]

[2-s 308.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

COMMENTARY ON SECTION 308 Witness failing to attend trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

s 308

[2-s 308.1]

[2-s 308.1] Witness failing to attend trial A witness bound by recognisance or served with a subpoena to give evidence in a trial and who fails to appear may, in certain circumstances, be ordered to show cause why execution upon the recognisance or an attachment for disobedience to the subpoena should not be issued against him: s 194(1)(a) of the Evidence Act 1995 at [3–s 194]. Alternatively, in certain circumstances, a warrant may be issued to bring him before the court to give evidence at the trial: s 194(1)(b) of the Evidence Act 1995 at [3–s 194].

[2-s 309] Certificate as to indictment 309 (1) If an indictment has been filed in the Supreme Court or the District Court against any person not in custody, the proper officer of the Court must, if the person indicted fails to appear and plead to the indictment at any time during the sittings of the Court, issue a certificate that the indictment has been filed. (2) The certificate may only be issued on the application of the prosecutor or a person applying on the prosecutor’s behalf. [s 309 insrt Act 119 of 2001 s 3 and Sch 1[135], opn 7 July 2003]

COMMENTARY ON SECTION 309 Law Part Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 309.0] Law Part Code

[2-s 309.0]

The Law Part Code for s 309(2) is 51573.

[2-s 309A] Certificate may be issued to victim of identity crime 309A (1) The Local Court may issue a certificate under this section if satisfied, on the balance of probabilities, that: (a) an identity offence has been committed, and (b) the certificate may assist with problems the offence has caused in relation to the victim’s personal or business affairs. (2) For the purposes of this section, the victim of an identity offence is any person whose identification information is the subject of the offence. (3) A certificate under this section is to: (a) identify the victim of the offence, and (b) describe the manner in which identification information relating to the victim was used to commit the offence. (4) The certificate may contain such other information as the Local Court considers appropriate. (5) The certificate is not to identify the perpetrator or any alleged perpetrator of the offence. (6) The Local Court may issue a certificate under this section whether or not: (a) the perpetrator of the offence is identifiable, or (b) any criminal proceedings have been or can be taken against a person in respect of the offence, or are pending. (7) The Local Court may issue a certificate under this section on the court’s own initiative or on application by the victim of the offence.

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CRIMINAL PROCEDURE ACT 1986

[2-s 311]

(8) The certificate is not admissible in any criminal proceedings in relation to the offence. (9) The powers conferred by this section on the Local Court may also be exercised by the Supreme Court or the District Court during any proceedings before that Court for the alleged identity offence concerned or on the disposal of any such proceedings. (10) In this section: identification information has the same meaning as it has in Part 4AB of the Crimes Act 1900. identity offence means an offence against Part 4AB of the Crimes Act 1900. [s 309A insrt Act 99 of 2009 Sch 3, opn 22 Feb 2010]

[2-s 310] Warrants that may be issued on production of certificate 310 (1) If the certificate under section 309 is produced to a Magistrate or an authorised officer, the Magistrate or authorised officer may issue a warrant under this section. (2) If the person who has been indicted is imprisoned or otherwise in custody in relation to another offence, the Magistrate or authorised officer may issue a warrant directed to the person who has custody of the person requiring the person to be detained until the person is removed from custody for trial or otherwise lawfully removed or discharged from custody. (3) The warrant must not be issued unless proof on oath is given that the person who is in custody is the person who has been indicted. (4) If the person who has been indicted is not in custody, the Magistrate or authorised officer may issue a warrant to arrest the person. (5) Part 4 of Chapter 4 applies to a warrant issued under this section. [s 310 insrt Act 119 of 2001 s 3 and Sch 1[135], opn 7 July 2003]

COMMENTARY ON SECTION 310 Law Part Codes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 310.0]

[2-s 310.0] Law Part Codes The Law Part Code for s 310(2) is 51574. The Law Part Code for s 310(4) is 51575.

[2-s 311] Procedure after arrest 311 (1) A person who is arrested under a warrant issued under section 310 must be brought before a Magistrate or an authorised officer as soon as practicable. (2) The Magistrate or authorised officer must, if bail is not dispensed with or granted: (a) by warrant commit the accused person to a correctional centre or other place of security, and (b) order the person to be brought before the Supreme Court or District Court for trial. (3) The Magistrate or authorised officer must give notice of the specified time and place to the prosecutor. (4) Part 4 of Chapter 4 applies to a warrant of commitment issued under this section. [s 311 insrt Act 119 of 2001 s 3 and Sch 1[135], opn 7 July 2003]

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Criminal Procedure

s 311

[2-s 311.0]

s 311

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

COMMENTARY ON SECTION 311 Law Part Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 311.0] Law Part Code

[2-s 311.0]

The Law Part Code for s 311(2)(a) is 51576.

[2-s 312] Persons arrested under bench warrants 312 (1) A Magistrate, an authorised officer or authorised justice before whom a person is brought after having been arrested under a bench warrant issued by a Judge in criminal proceedings must, if bail is not dispensed with or granted: (a) by warrant commit the person to a correctional centre or other place of security, and (b) order the person to be brought before the court out of which the bench warrant was issued in accordance with the terms of the warrant. [subs (1) am Act 5 of 2014 Sch 2 item 2.15[10], opn 20 May 2014]

(2) A Magistrate, authorised officer or authorised justice may make a bail decision in respect of the person under the Bail Act 2013. [subs (2) subst Act 5 of 2014 Sch 2 item 2.15[11], opn 20 May 2014]

(2A) The Bail Act 2013 applies to the person (not being an accused person) as if: (a) the person were accused of an offence, and (b) the proceedings before the court out of which the bench warrant was issued were proceedings for that offence. [subs (2A) insrt Act 5 of 2014 Sch 2 item 2.15[11], opn 20 May 2014]

(2B) Bail may be granted for the period between: (a) the person’s being brought before the Magistrate, authorised officer or authorised justice, and (b) the person’s appearance before the court out of which the bench warrant was issued. [subs (2B) insrt Act 5 of 2014 Sch 2 item 2.15[11], opn 20 May 2014]

(2C) For the purpose of applying the Bail Act 2013, an authorised officer has the same functions as an authorised justice under that Act. [subs (2C) insrt Act 5 of 2014 Sch 2 item 2.15[11], opn 20 May 2014]

(3) In this section: authorised justice has the same meaning as in the Bail Act 2013. Judge includes a Magistrate, a Children’s Court Magistrate and an Industrial Magistrate and any other person of a class prescribed for the purposes of this definition. [subs (3) subst Act 107 of 2008 s 3 and Sch 29 opn 7 Apr 2009; am Act 5 of 2014 Sch 2 item 2.15[12], opn 20 May 2014; Act 48 of 2016 Sch 2.13[7], opn 8 Dec 2016]

COMMENTARY ON SECTION 312 Law Part Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 312.0] Law Part Code

The Law Part Code for s 312(1)(a) is 51577.

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[2-s 312.0]

CRIMINAL PROCEDURE ACT 1986

[2-s 314.0]

[2-s 313] Warrants 313 (1) A printed representation of a seal or signature on a warrant issued under this Act or any other Act is sufficient to comply with a requirement under this or any other Act that a warrant be sealed or signed. [subs (1) am Act 99 of 2002 s 3 and Sch 1.2[11], [12] and [13], opn 7 July 2003]

(2) A copy of a warrant issued under this Act or any other Act (being a copy produced by means of a photographic or electronic process or facsimile transmission) is: (a) as valid and effectual as the original warrant, and (b) confers the same functions as the original warrant. [subs (2) am Act 99 of 2002 s 3 and Sch 1.2[14] and [15], opn 7 July 2003] [s 313 insrt Act 119 of 2001 s 3 and Sch 1[135], opn 7 July 2003]

[2-s 314] Media access to court documents 314 (1) On application to the registrar, a media representative is entitled to inspect any document relating to criminal proceedings, at any time from when the proceedings commence until the expiry of 2 working days after they are finally disposed of, for the purpose of compiling a fair report of the proceedings for publication. [subs (1) subst Act 85 of 2003 s 3 and Sch 4[2], opn 14 Feb 2004]

(2) The documents that a media representative is entitled to inspect under this section are copies of the indictment, court attendance notice or other document commencing the proceedings, witnesses’ statements tendered as evidence, brief of evidence, police fact sheet (in the case of a guilty plea), transcripts of evidence and any record of a conviction or an order. [subs (2) am Act 85 of 2003 s 3 and Sch 4[3], opn 14 Feb 2004]

(3) The registrar is not required to make documents available for inspection if the documents are not in the possession or control of the registrar. (4) The registrar must not make documents available for inspection if: (a) the proceedings are subject to an order prohibiting their publication or a suppression order, or (b) the documents are prohibited from being published or disclosed by or under any other Act or law. [subs (4) am Act 25 of 2005 s 3 and Sch 1, opn 12 Aug 2005]

(4A) This section does not limit the operation of any other Act or law under which a person may be permitted to inspect documents relating to criminal proceedings. [subs (4A) insrt Act 85 of 2003 s 3 and Sch 4[4], opn 14 Feb 2004]

(5) [subs (5) rep Act 85 of 2003 s 3 and Sch 4[5], opn 14 Feb 2004] [s 314 insrt Act 119 of 2001 s 3 and Sch 1[135], opn 7 July 2003] COMMENTARY ON SECTION 314 Law Part Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Open court, suppression orders and non-publication orders . . . . . . . Access to copies of court records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Applications for access to exhibits during or following a criminal trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 314.0] Law Part Code

The Law Part Code for s 314(1) is 51578.

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[2-s 314.0] [2-s 314.5] [2-s 314.10] [2-s 314.15]

Criminal Procedure

s 314

[2-s 314.5]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 314

[2-s 314.5] Open court, suppression orders and non-publication orders See Court Suppression and Non-publication Orders Act 2010 at [29-9001] and following, and commentary at [2-s 56.1] and [2-s 56.5]. [2-s 314.10] Access to copies of court records Clause 8.10(3)-(5) of the Local Court Rules 2009 at [2-9860] applies to committal proceedings, summary proceedings and application proceedings and provides for leave to be granted for non-party access to court records. Clause 8.10 was considered in Police v Bugmy [2011] NSWLC 28 in the context of a media application for access to a DVD exhibit. [2-s 314.15] Applications for access to exhibits during or following a criminal trial In R v Dirani (No 33) [2019] NSWSC 288; BC201902338, it was said at [44] that s 314 does not apply to an application by the media for access to exhibits made to the trial or sentencing judge during or after the criminal proceedings at which the judge presided, in particular where the application relates to video, audio or other electronic exhibits. The court considered (at [46]–[62]) the principles to be applied where the media application for access to exhibits was considered under Supreme Court Practice Note SC Gen 2 “Supreme Court — Access to Court Files” (at [28-5030]).

[2-s 314A] Review of pre-trial disclosure provisions enacted by Criminal Procedure Amendment (Case Management) Act 2009 314A (1) The Attorney General is to review the provisions of Division 3 of Part 3 of Chapter 3 as enacted by the Criminal Procedure Amendment (Case Management) Act 2009 to determine: (a) whether they have been effective in reducing delays in proceedings on indictment, and (b) the cost impacts of the procedures. (2) The review is to be undertaken as soon as possible after the period of 24 months after the commencement of this section. (3) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of that 24-month period. [s 314A insrt Act 112 of 2009 Sch 1, opn 1 Feb 2010]

[2-s 315] Savings, transitional and other provisions 315

Schedule 2 has effect.

[s 315 insrt Act 119 of 2001 s 3 and Sch 1[135], opn 7 July 2003]

[2-s 316] Provisions relating to offences 316

Schedule 3 has effect.

[s 316 insrt Act 119 of 2001 s 3 and Sch 1[135], opn 7 July 2003]

[2-s 317] Bail Act 2013 to prevail 317 Except where expressly provided, the Bail Act 2013 prevails to the extent of any inconsistency between that Act and this Act. [s 317 insrt Act 119 of 2001 s 3 and Sch 1[135], opn 7 July 2003; am Act 5 of 2014 Sch 2 item 2.15[1], opn 20 May 2014]

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CRIMINAL PROCEDURE ACT 1986

[2-s 334]

[2-s 317A] Courts to deal expeditiously with persons arrested for sentencing 317A A court that issues a warrant for the arrest of a person to be brought before the court for sentencing must, after the person is arrested and brought before the court, deal with the proceedings as expeditiously as possible. [s 317A insrt Act 84 of 2003 s 3 and Sch 2, opn 1 July 2004] Editor’s note: Pt 2 (ss 318–331), entitled “Police Custody of Property”, was repealed by Act 103 of 2002, effective from 1 December 2005.

PART 3 — PENALTY NOTICE OFFENCES [Pt 3 insrt Act 46 of 2002 s 3 and Sch 1[1], opn 1 Sep 2002]

[2-s 332] Definitions 332 (1) In this Part: penalty notice offence means an offence prescribed by the regulations under this Part as a penalty notice offence. senior (a) (a1) (b) (c)

police officer means: a Police Area Commander, or a Police District Commander, or a Duty Officer for a police station, or any other police officer of the rank of Inspector or above.

[def am Act 29 of 2018 Sch 2 item 2.6[1], opn 21 June 2018]

(2) [subs (2) rep Act 82 of 2003 s 3 and Sch 2.9[10], opn 27 Nov 2003] COMMENTARY ON SECTION 332 Penalty notice offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 332.1]

[2-s 332.1] Penalty notice offences See Sch 4 to the Criminal Procedure Regulation 2017 at [2-6000] for offences in respect of which penalty notices may be served under Pt 3 of Ch 7.

[2-s 333] Police may issue penalty notices for certain offences 333 A police officer may serve a penalty notice on a person if it appears to the officer that the person has committed a penalty notice offence. Note. This Part does not require a police officer to serve a penalty notice rather than taking any other action (see section 342(3)). [s 333 am Act 82 of 2003 s 3 and Sch 2.9[11], opn 27 Nov 2003]

[2-s 334] Penalty notices 334 (1) A penalty notice is a notice to the effect that, if the person served does not wish to have the matter determined by a court, the person can pay, within the time and to the person specified in the notice, the amount of the penalty prescribed by the regulations for the offence if dealt with under this Part. (2) A penalty notice may be served personally or by post. [subs (2) am Act 128 of 2006 s 6 and Sch 4.3[1], opn 12 Dec 2006]

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Criminal Procedure

s 334

[2-s 335]

s 335

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

[2-s 335] Penalty notices may not be issued to children 335 (1) A penalty notice may not be issued under this Part to a person who is under the age of 18 years. (2) If a penalty notice is issued under this Part to a person who is under the age of 18 years, the following provisions have effect: (a) The amount that was payable under the notice is not payable. (b) Any amount that is paid under the notice is repayable to the person by whom it is paid. (c) Further proceedings in respect of the alleged offence may be taken against any person (including the person on whom the notice was served) as if the notice had never been served. (3) Nothing in this section requires further proceedings to be taken in respect of an alleged offence if a penalty notice is issued to a person who is under the age of 18 years.

[2-s 336] Penalty notice offences 336 (1) The regulations may prescribe an offence under any Act or statutory rule made under an Act as a penalty notice offence for the purposes of penalty notices served by police officers under this Part. (2) Any such regulation may specify the offence or refer to the provision creating the offence. COMMENTARY ON SECTION 336 Penalty notice offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 336.1]

[2-s 336.1] Penalty notice offences See Sch 4 to the Criminal Procedure Regulation 2017 at [2-6000] for offences in respect of which penalty notices may be served under Pt 3 of Ch 7.

[2-s 337] Penalties 337 (1) The regulations may: (a) prescribe the penalty payable for a penalty notice offence dealt with under this Part, and (b) prescribe different penalties for different offences or classes of offences, and (c) prescribe different penalties for the same penalty notice offence. (2) The amount of a penalty prescribed for a penalty notice offence is not to exceed the maximum amount of penalty that could be imposed for the offence by a court. COMMENTARY ON SECTION 337 Prescribed penalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 337.1]

[2-s 337.1] Prescribed penalties For the purposes of s 337, the prescribed penalty for any such offence is the amount specified opposite the offence in column 2 of Sch 4 of the Criminal Procedure Regulation 2017 at [2-6000].

[2-s 338] Effect of payment of penalty 338 (1) If the amount of penalty prescribed for an alleged penalty notice offence is paid, no person is liable to any further proceedings for the alleged offence.

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CRIMINAL PROCEDURE ACT 1986

[2-s 341]

(2) Payment of a penalty under this Part is not to be regarded as an admission of liability for the purpose of, and does not in any way affect or prejudice, any civil claim, action or proceeding arising out of the same occurrence. (3) This section is subject to sections 335 and 340. Note. The Fines Act 1996 sets out the procedures if a person fails to pay a penalty under a penalty notice and for the annulment of resulting fine enforcement orders. [subs (3) am Act 82 of 2003 s 3 and Sch 2.9[12], opn 27 Nov 2003]

[2-s 339] Limitation on exercise of penalty notice powers 339 to: (a) (b) (c) (d)

This Part does not authorise a police officer to serve a penalty notice in relation an industrial dispute, or an apparently genuine demonstration or protest, or a procession, or an organised assembly.

[2-s 340] Withdrawal of penalty notice 340 (1) A senior police officer may at any time withdraw a penalty notice issued by a police officer under this Part. [subs (1) subst Act 128 of 2006 s 6 and Sch 4.3[2], opn 12 Dec 2006]

(2) A senior police officer must withdraw a penalty notice immediately if directed to do so by the Director of Public Prosecutions. (3) The following provisions have effect in relation to an alleged offence if a penalty notice for the alleged offence is withdrawn in accordance with this section: (a) The amount that was payable under the notice ceases to be payable. (b) Any amount that has been paid under the notice is repayable to the person by whom it was paid. (b1) Any subsequent action already taken in relation to the notice, including any enforcement action, is to be reversed. (b2) Any costs relating to that subsequent action are not payable and, if paid, are repayable. (c) Further proceedings in respect of the alleged offence may, subject to any time limit within which such proceedings are required to be commenced, be taken against any person (including the person on whom the notice was served) as if the notice had never been served. [subs (3) am Act 128 of 2006 s 6 and Sch 4.3[3]–[4], opn 12 Dec 2006]

(4) Nothing in this section requires further proceedings to be taken in respect of an alleged offence if a penalty notice is withdrawn. (5) For the purposes of section 39 of the Fines Act 1996, the appropriate officer is a senior police officer.

[2-s 341] Powers relating to identity 341 (1) A police officer who intends to issue a penalty notice, under this Part, to a person whose name or address is, or name and address are, unknown to the officer may request the person to state his or her name or address (or both). (2) A police officer may make a request under subsection (1) only if at the time of making the request the police officer:

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Criminal Procedure

s 341

[2-s 341]

s 341

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

(a) provides evidence to the person that he or she is a police officer (unless the police officer is in uniform), and (b) provides his or her name and place of duty, and (c) informs the person of the reason for the request, and (d) warns the person that failure to comply with the request may be an offence. (3) A person must not, without reasonable excuse, (proof of which lies on the person), in response to a request made by a police officer in accordance with subsections (1) and (2): (a) fail or refuse to comply with the request, or (b) state a name that is false in a material particular, or (c) state an address other than the full and correct address of his or her residence. Maximum penalty: 2 penalty units. (4) A police officer may request a person to provide proof of the person’s name and address. (5) Nothing in this section limits any functions that police officers may have apart from this section. COMMENTARY ON SECTION 341 Law Part Codes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-s 341.0]

[2-s 341.0] Law Part Codes The Law Part Code for s 341(3)(a) is 51966. The Law Part Code for s 341(3)(b) is 51967. The Law Part Code for s 341(3)(c) is 51968.

[2-s 342] Effect of Part on other procedures and powers 342 (1) This Part (except as provided by section 338) does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings that may be taken in respect of offences. [subs (1) am Act 82 of 2003 s 3 and Sch 2.9[13], opn 27 Nov 2003]

(2) Nothing in this Part limits any functions that police officers have apart from this Part (including the power to issue a penalty notice under any other Act or statutory rule). (3) Nothing in this Part requires a police officer to issue a penalty notice instead of taking any other proceeding or action a police officer may take in respect of an alleged offence.

[2-s 343] Limited implementation of penalty notice provisions 343 (1) The regulations may limit the application of the provisions of this Part to offences dealt with in a specified part or parts of New South Wales for a specified period or periods. (2) If a regulation is made under this section, the application of the Part is limited as specified by the regulation even though the specified provisions of this Part have commenced.

[2-s 344] Monitoring of Part by Ombudsman 344 (1) For the period of 12 months after the commencement of this section, the Ombudsman is to keep under scrutiny the operation of the provisions of this Part and the

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CRIMINAL PROCEDURE ACT 1986

[2-s 344A]

regulations made under this Part and sections 138A and 138C (in so far as it relates to the exercise of powers under section 138A) of the Law Enforcement (Powers and Responsibilities) Act 2002. [subs (1) am Act 128 of 2006 s 6 and Sch 4.3[5], opn 12 Dec 2006]

(2) For that purpose, the Ombudsman may require the Commissioner of Police or any public authority to provide information about police or the public authority’s participation in the operation of the provisions referred to in subsection (1). (3) The Ombudsman must, as soon as practicable after the expiration of that 12-month period, prepare a report on the Ombudsman’s work and activities under this section and furnish a copy of the report to the Minister, the Minister for Police and the Commissioner of Police. (4) The Ombudsman may identify, and include recommendations in the report to be considered by the Minister about, amendments that might appropriately be made to this Act with respect to the operation of the provisions referred to in subsection (1). (5) The Minister is to lay (or cause to be laid) a copy of the report furnished to the Minister under this section before both Houses of Parliament as soon as practicable after the Minister receives the report. (6) If a House of Parliament is not sitting when the Minister seeks to lay a report before it, the Minister may present copies of the report to the Clerk of the House concerned. (7) The report: (a) on presentation and for all purposes is taken to have been laid before the House, and (b) may be printed by authority of the Clerk of the House, and (c) if printed by authority of the Clerk, is for all purposes taken to be a document published by or under the authority of the House, and (d) is to be recorded: (i) in the case of the Legislative Council, in the Minutes of the Proceedings of the Legislative Council and (ii) in the case of the Legislative Assembly, in the Votes and Proceedings of the Legislative Assembly, on the first sitting day of the House after receipt of the report by the Clerk.

[2-s 344A] Further review by Ombudsman — Aboriginal and Torres Strait Islander communities 344A (a) (b) (c)

(1) The Ombudsman is to review the operation of the provisions of: this Part, and the regulations made under this Part, and sections 138A and 138C (in so far as it relates to the exercise of powers under section 138A) of the Law Enforcement (Powers and Responsibilities) Act 2002, in so far as those provisions impact on Aboriginal and Torres Strait Islander communities. (2) For the purposes of carrying out any such review, the Ombudsman may require the Commissioner of Police or any public authority to provide information about police or the public authority’s participation in the operations of the provisions referred to in subsection (1).

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Criminal Procedure

s 344A

[2-s 344A]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 344A

(3) A report in relation to the review is to be provided to the Minister and the Minister for Police by 31 August 2009. [subs (3) am Act 57 of 2007 s 3 and Sch 1[12], opn 15 Nov 2007; Act 27 of 2009 Sch 1, opn 19 May 2009]

(4) The Minister is to lay (or cause to be laid) a copy of the report provided to the Minister under this section before both Houses of Parliament as soon as practicable after the Minister receives the report. (5) If a House of Parliament is not sitting when the Minister seeks to lay a report before it, the Minister may present copies of the report to the Clerk of the House concerned. (6) The report: (a) on presentation and for all purposes is taken to have been laid before the House, and (b) may be printed by authority of the Clerk of the House, and (c) if printed by authority of the Clerk, is for all purposes taken to be a document published by or under the authority of the House, and (d) is to be recorded: (i) in the case of the Legislative Council, in the Minutes of the Proceedings of the Legislative Council, and (ii) in the case of the Legislative Assembly, in the Votes and Proceedings of the Legislative Assembly, on the first sitting day of the House after receipt of the report by the Clerk. [s 344A insrt Act 128 of 2006 s 6 and Sch 4.3[6], opn 12 Dec 2006]

PART 4 — INTERVENTION PROGRAMS [Pt 4 insrt Act 100 of 2002 s 3 and Sch 1[2], opn 24 Feb 2003; renum Act 100 of 2002 s 3 and Sch 1[3], opn 7 July 2003; am Act 5 of 2014 Sch 2 item 2.15[13], opn 20 May 2014; Act 53 of 2017 Sch 4 item 4.14, opn 24 Sep 2018] Note. This Part provides for the recognition and operation of certain programs for dealing with accused persons and offenders, known as intervention programs. An accused person or offender may be referred for participation in an intervention program at several points in criminal proceedings against the person, as follows: (a) a court that grants bail to a person may impose a bail condition requiring the person to be assessed for, or to participate in, an intervention program or other program, (b) a court may adjourn criminal proceedings against a person before any finding as to guilt is made and grant bail to the person for the purpose of assessing the person’s capacity and prospects for participation in an intervention program or to allow the person to participate in an intervention program (and to comply with any plan arising out of the program) under this Act, (c) a court that finds a person guilty of an offence may make an order requiring the person to participate in an intervention program (and to comply with any plan arising out of the program) under section 10 of the Crimes (Sentencing Procedure) Act 1999, (d) [Repealed] (e) sentencing of an offender may be deferred for the purpose of assessing an offender for participation in an intervention program, or for allowing an offender to participate in an intervention program (and to comply with any plan arising out of the program) under section 11 of the Crimes (Sentencing Procedure) Act 1999.

DIVISION 1 — PRELIMINARY

[2-s 345] Objects 345 (1) The objects of this Part are: (a) to provide a framework for the recognition and operation of programs of certain

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CRIMINAL PROCEDURE ACT 1986

[2-s 347]

alternative measures for dealing with persons who have committed an offence or are alleged to have committed an offence, and (b) to ensure that such programs apply fairly to all persons who are eligible to participate in them, and that such programs are properly managed and administered, and (c) to reduce the likelihood of future offending behaviour by facilitating participation in such programs. (2) In enacting this Part, Parliament recognises that: (a) the rights of victims should be protected and maintained in accordance with the Charter of Victims Rights set out in the Victims Rights Act 1996, and (b) the successful rehabilitation of offenders contributes to the maintenance of a safe, peaceful and just society.

[2-s 346] Definitions 346 (1) In this Part: intervention plan means a plan, agreement or arrangement arising out of the participation of an offender or an accused person in an intervention program. intervention program means a program of measures declared to be an intervention program under section 347. (2) Notes included in this Part are explanatory notes and do not form part of this Part. [s 346 am Act 100 of 2002 s 3 and Sch 1[3], opn 7 July 2003]

DIVISION 2 — INTERVENTION PROGRAMS

[2-s 347] Declaration and regulation of intervention programs 347 (1) The regulations may declare that a program of measures for dealing with offenders or accused persons that is described in the regulations is an intervention program for the purposes of this Part. (2) The purposes of such a program may include any of the following: (a) promoting the treatment or rehabilitation of offenders or accused persons, (b) promoting respect for the law and the maintenance of a just and safe community, (c) encouraging and facilitating the provision by offenders of appropriate forms of remedial actions to victims and the community, (d) promoting the acceptance by offenders of accountability and responsibility for their behaviour, (e) promoting the reintegration of offenders into the community. (3) The regulations may make provision for or with respect to the following matters: (a) subject to section 348, the offences in respect of which an intervention program may be conducted, (b) subject to section 349, eligibility to participate in an intervention program, (c) the nature and content of the measures constituting an intervention program, (d) the purposes and objectives of an intervention program, and the principles guiding an intervention program, (e) assessment of the suitability of a person to participate in an intervention program, or of a person’s capacity or prospects for participation in an intervention program,

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Criminal Procedure

s 347

[2-s 347]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 347

(f) the conduct of investigations and the preparation of reports as to a person’s suitability, capacity or prospects for participation in an intervention program, (g) the provision of reports as to a person’s suitability, capacity or prospects for participation in an intervention program, (h) the persons, bodies or organisations who may participate in an intervention program or intervention plan (in addition to the offender or accused person), (i) the role of particular persons, bodies or organisations in the conduct of an intervention program or intervention plan, (j) restrictions or conditions on participation in an intervention program (including legal representation of offenders or accused persons who participate in an intervention program), (k) the development and implementation of intervention plans arising out of an intervention program, including restrictions or conditions on intervention plans, (l) procedures for notification of courts or other persons, bodies or organisations of a decision of a person not to participate in, or to continue to participate in, an intervention program or intervention plan, (m) the content and keeping of records in connection with an intervention program or intervention plan, (n) the monitoring and evaluation of, or research into, the operation and effect of an intervention program or intervention plan, (o) the issuing of guidelines with respect to the conduct or operation of an intervention program or intervention plan, (p) authorising the participation of persons who are in custody in an intervention program or intervention plan, (q) any other matter relating to the conduct or operation of an intervention program or intervention plan. [subs (3) am Act 100 of 2002 s 3 and Sch 1[3], opn 7 July 2003]

(4) The operation of an intervention program may be limited by the regulations to a specified part or parts of New South Wales, or for a specified period or periods (or both). (5) Nothing in this section prevents the development, conduct or operation of programs of measures for the treatment or rehabilitation of offenders or accused persons that are not intervention programs. COMMENTARY ON SECTION 347 Intervention programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 347.1] [2-s 347.1] Intervention programs Clause 31 of the Criminal Procedure Regulation 2017 at [2-5265] declares the circle sentencing intervention program to be an intervention program for the purposes of the Act and Pt 7 of the Regulation at [2-5265] and following makes detailed provision concerning that program. Clause 59 of the Criminal Procedure Regulation 2017 at [2-5485] declares the forum sentencing intervention program to be an intervention program for the purposes of the Act and Pt 8 of the Regulation at [2-5485] and following makes detailed provision concerning that program. Clause 96 of the Criminal Procedure Regulation 2017 at [2-5735] declares the traffic offender intervention program to be an intervention program for the purposes of the Act and Pt 9 of the Regulation at [2-5735] and following makes detailed provision concerning that program.

[2-s 348] Offences in respect of which an intervention program may be conducted 348 (1) The offences in respect of which an intervention program may be conducted are, except as provided by subsection (2):

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CRIMINAL PROCEDURE ACT 1986

[2-s 350]

(a) summary offences, and (b) indictable offences that may be dealt with summarily under this Act or another law prescribed by the regulations for the purposes of this subsection. (2) An intervention program may not be conducted in respect of any of the following offences: (a) an offence under section 35 (Reckless grievous bodily harm or wounding) or 35A(1) (Cause dog to inflict grievous bodily harm) of the Crimes Act 1900, (b) an offence under Division 10 (Sexual offences against adults and children) or 15 (Child prostitution and pornography) of Part 3 of the Crimes Act 1900, (c) an offence under section 13 of the Crimes (Domestic and Personal Violence) Act 2007 or section 545AB or 562AB of the Crimes Act 1900 (Stalking or intimidation with intent to cause fear of physical or mental harm), (d) an offence under section 91H (Production, dissemination or possession of child pornography or child abuse material), 578B (Possession of child pornography) or 578C(2A) (Publishing child pornography) of the Crimes Act 1900, (e) any offence involving the use of a firearm, or an imitation firearm, within the meaning of the Firearms Act 1996, (f) an offence under section 23(1)(b) or (2)(b) (Offences with respect to prohibited plants), 25 (Supply of prohibited drugs) or 25A (Offence of supplying prohibited drugs on an ongoing basis) of the Drug Misuse and Trafficking Act 1985, (g) any other offence prescribed by the regulations for the purposes of this subsection. [subs (2) am Act 95 of 2004 s 4 and Sch 2.4[1], opn 1 Jan 2005; Act 73 of 2006 s 4 and Sch 3.8[3] opn 12 Mar 2007; Act 80 of 2007 s 103 and Sch 2.9[6], opn 10 Mar 2008; Act 40 of 2010 Sch 3, opn 9 July 2010; Act 9 of 2010 Sch 2, opn 17 Sep 2010; Act 44 of 2016 Sch 1[1], opn 11 Nov 2016; Act 33 of 2018 Sch 4[11], opn 1 Dec 2018]

COMMENTARY ON SECTION 348 Excluded offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 348.1] [2-s 348.1] Excluded offences Offence that are excluded from the forum sentencing program are set out in cl 59(2) of the Criminal Procedure Regulation 2017 at [2-5485] and include domestic violence offences, certain drug offences and specified traffic offences.

[2-s 349] Eligibility of certain persons to participate in intervention program 349 A person is not eligible to participate in an intervention program in respect of an offence while the person is being dealt with for the offence: (a) by the Children’s Court under Part 3 (Criminal proceedings in the Children’s Court) of the Children (Criminal Proceedings) Act 1987 (including after the person has been remitted to the Children’s Court under section 20 of that Act), or (b) by any other court in accordance with Division 4 of Part 3 of that Act. DIVISION 3 — ADJOURNMENT OF CRIMINAL PROCEEDINGS IN CONNECTION WITH INTERVENTION PROGRAM

[2-s 350] Court may adjourn proceedings to allow accused person to be assessed for or to participate in intervention program 350 (1) Before a finding as to the guilt of an accused person in respect of an offence

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Criminal Procedure

s 350

[2-s 350]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 350

is made, a court may make an order adjourning proceedings against the accused person to a specified date for either or both of the following purposes: (a) assessing the person’s capacity and prospects for participation in an intervention program, (b) allowing the person to participate in an intervention program. [subs (1) am Act 5 of 2014 Sch 2 item 2.15[14], [15], opn 20 May 2014]

(1A) Proceedings must not be adjourned under this section unless bail for the offence is or has been granted or dispensed with under the Bail Act 2013. [subs (1A) insrt Act 5 of 2014 Sch 2 item 2.15[16], opn 20 May 2014]

(2) The maximum period for which proceedings may be adjourned under this section is 12 months from the date of the making of the order. (3) This section does not limit any power that a court has, apart from this section, to adjourn proceedings or to grant bail in relation to any period of adjournment. (4) This section does not limit the kinds of purposes for which a court may adjourn proceedings or grant bail, so that an order adjourning proceedings may be made for the purpose of allowing an offender to participate in a program for treatment or rehabilitation that is not an intervention program. DIVISION 4 — MISCELLANEOUS

[2-s 351] Regulations with respect to the provision or disclosure of information in connection with intervention programs 351 (1) The regulations may make provision for or with respect to the provision or disclosure of information in connection with an intervention program or intervention plan to a court or other person, body or organisation. (2) Without limiting subsection (1), the regulations may make provision for or with respect to the following matters: (a) the admissibility of such information in evidence in any criminal or civil proceedings, including the admissibility in evidence of any statement, confession, admission or information made or given by an offender or accused person during participation in, or for the purposes of participation in, an intervention program or intervention plan, (b) the protection of a person, body or organisation from civil or criminal liability or disciplinary proceedings resulting from the provision of such information, (c) the compellability of a person, body or organisation to disclose such information or to produce a document containing such information before a court, tribunal or committee. (3) A provision of any Act or law that prohibits or restricts the disclosure of information does not operate to prevent the provision of information referred to in subsection (1) in accordance with the regulations. (4) The regulations made under this section may create offences punishable by a penalty not exceeding 50 penalty units. COMMENTARY ON SECTION 351 Law Part Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s 351.0] Law Part Code

The Law Part Code for s 351(4) is 51969.

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[2-s 351.0]

CRIMINAL PROCEDURE ACT 1986

[2-s 352]

[2-s 352] Relationship with other legislation 352 (1) The Bail Act 2013 prevails in the event of an inconsistency between that Act and this Part. [subs (1) am Act 5 of 2014 Sch 2 item 2.15[1], opn 20 May 2014]

(2) This Part does not affect any jurisdiction conferred on any court under any other Act or law. (3) This Part does not derogate from the functions of any person or court dealing with an offence or alleged offence to take any other action in relation to an offence or alleged offence, under any other Act or law. Editor’s note: Part 10, entitled “Correction and Adjustment of Sentences”, and Pt 11, entitled “Sentencing Guidelines”, was repealed by Act 94 of 1999, by virtue of s 6 and Sch 4.13, effective 2 April 2000.

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Criminal Procedure

s 352

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SCHEDULE 1 — INDICTABLE OFFENCES TRIABLE SUMMARILY

[Sch 1 heading insrt Act 94 of 1999 s 4 and Sch 2[62], opn 1 Jan 2000]

TABLE 1A — GENERAL PROVISIONS [Table 1A insrt Act 5 of 2003 s 3 and Sch 2, opn 15 Dec 2003]

Interpretation: value of property 1A For the purposes of this Schedule, a reference to the amount of damage to property in connection with a charge for an offence against section 195 or 197 of the Crimes Act 1900 is a reference to the total value of the property where the damage consists of removing, obliterating, defacing or altering the unique identifier of the property. TABLE 1 — INDICTABLE OFFENCES THAT ARE TO BE DEALT WITH SUMMARILY UNLESS PROSECUTOR OR PERSON CHARGED ELECTS OTHERWISE [Table 1 insrt Act 22 of 1995; renum Act 94 of 1999 s 4 and Sch 2[63], opn 1 Jan 2000; am Act 40 of 2003 s 3 and Sch 1.10[14], opn 7 July 2003; Act 74 of 2005 s 4 and Sch 2.1[2], opn 13 Feb 2006; Act 38 of 2007 s 4 and Sch 3.1[3]–[5], opn 27 Sep 2007]

PART 1 — OFFENCES AGAINST THE PERSON UNDER CRIMES ACT 1900 Offences against the person where victim 14 years of age or over 1 An offence under section 61E, 66C(1) (as in force before the commencement of Schedule 1[9] to the Crimes Amendment (Sexual Offences) Act 2003), 66C(3) (as in force after the commencement of Schedule 1[9] to the Crimes Amendment (Sexual Offences) Act 2003), 66D, 71, 72, 76, 76A or 81 of the Crimes Act 1900 where the person against whom the offence was committed was at the time of the commission of the offence of or above the age of 14 years. [cl 1 am Act 85 of 2003 s 3 and Sch 4[6], opn 14 Feb 2004]

Other offences against the person 2 An offence under section 31, 31C, 33B(1), 35, 35A(1), 37(1A), 37(1), 39, 41, 41A, 43, 43A, 43B, 44, 49, 51A, 52A (other than an offence by which death was occasioned), 52B (other than an offence by which death was occasioned), 53, 54, 55, 57, 60(2) or (2A), 60A(2), 60E(2), 61KD, 61M, 61O(2) or (2A), 66DA, 66DB, 66DC, 66DF, 66EB, 78Q, 80, 81A, 81B, 81C, 85 (where the person charged is the mother of the child and is not charged with any other person), 90, 91, 91A, 91B, 91H, 91J(3), 91K(3), 91L(3), 92, 93 or 316A of the Crimes Act 1900. [cl 2 am Act 75 of 1997 s 5 and Sch 3[2], opn 10 Oct 1997; Act 135 of 1997 s 4 and Sch 2.2, opn 16 Jan 1998; Act 45 of 2002 s 4 and Sch 2[2], opn 15 July 2002; Act 47 of 2002 s 4 and Sch 3.1[2], opn 15 July 2002; Act 135 of 2002 s 4 and Sch 2[2], opn 10 Feb 2003; Act 41 of 2004 s 4 and Sch 2, opn 22 Oct 2004; Act 95 of 2004 s 4 and Sch 2.4[2], opn 1 Jan 2005; Act 61 of 2006 s 5 and Sch 3.1[1], opn 15 Dec 2006; Act 105 of 2008 s 4 and Sch 2, opn 1 Jan 2009; Act 23 of 2014 Sch 2 item 2.1, opn 5 June 2014; Act 33 of 2018 Sch 4[12], [15], opn 31 Aug 2018, Sch 4[13], [14], opn 1 Dec 2018; Act 83 of 2018 Sch 3 item 3.2, opn 1 Dec 2018; Act 11 of 2019 Sch 2.2, opn 2 Oct 2019]

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Criminal Procedure

[2-Sch 1]

[2-Sch 1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Sch 1

PART 2 — OFFENCES RELATING TO PROPERTY UNDER CRIMES ACT 1900 OR COMMON LAW Larceny and other offences exceeding $5,000 3 Any of the following offences where the value of the property, matter or thing, or the damage, or the amount of money or reward, in respect of which the offence is charged exceeds $5,000: (a) larceny, or (b) an offence of stealing any chattel, money or valuable security from another person (eg section 94(b) of the Crimes Act 1900), or (c) an offence under section 3B, 125, 126, 131, 132, 133, 139, 140, 148, 150, 151, 152, 156, 157, 158, 159, 160, 178A, 178B, 178BA, 178BB, 178C, 179, 184, 185, 185A, 186, 188, 189, 189A, 190, 192, 193B(3), 193C or 195 of the Crimes Act 1900. [cl 3 am Act 6 of 1996 s 3 and Sch 1.4, opn 16 Aug 1996; Act 137 of 1996 s 4 and Sch 2.4, opn 8 Mar 1997; Act 16 of 2016 Sch 4[1], opn 8 Sep 2016; Act 4 of 2018 Sch 1.5[3], opn 16 Apr 2018; Act 4 of 2018 Sch 1 item 1.5[2], opn 2 July 2018]

Robbery 3A An offence under section 94(a) of the Crimes Act 1900. [cl 3A insrt Act 4 of 2018 Sch 1 item 1.5[4], opn 2 July 2018]

Offences taken to be, or punishable as, larceny or stealing 4 Any offence that under the Crimes Act 1900 is taken to be, or is made punishable as, larceny or stealing (other than an offence under section 125, 139, 140 or 154A of that Act). [cl 4 am Act 137 of 1996 s 4 and Sch 2.4, opn 8 Mar 1997]

Fraud and related offences 4A An offence under Part 4AA of the Crimes Act 1900. [cl 4A insrt Act 99 of 2009 Sch 3, opn 22 Feb 2010]

Breaking and entering place of Divine worship with intent to commit serious indictable offence 5 An offence under section 107(1) of the Crimes Act 1900. [cl 5 am Act 94 of 1999 s 6 and Sch 4.98[4], opn 1 Jan 2000]

Breaking out of dwelling-house after committing, or entering with intent to commit, indictable offence 6 An offence under section 109(1) of the Crimes Act 1900 where: (a) the serious indictable offence intended is stealing or intentionally or recklessly destroying or damaging property, or (b) the serious indictable offence alleged is stealing or intentionally or recklessly destroying or damaging property and the value of the property stolen or destroyed, or the value of the damage to the property, does not exceed $60,000. [cl 6 am Act 94 of 1999 s 6 and Sch 4.98[4], opn 1 Jan 2000; am Act 27 of 2003 Sch 8[8], [9], opn 8 July 2003; Act 135 of 2010 Sch 12.2, opn 7 Dec 2010; Act 44 of 2016 Sch 1[2], opn 11 Nov 2016]

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CRIMINAL PROCEDURE ACT 1986

[2-Sch 1]

Entering dwelling-house or breaking etc into any house etc with intent to commit serious indictable offence 7 An offence under section 111(1) or 113(1) of the Crimes Act 1900 where the serious indictable offence intended is stealing or intentionally or recklessly destroying or damaging property. [cl 7 am Act 94 of 1999 s 6 and Sch 4.98[4], opn 1 Jan 2000; am Act 27 of 2003 Sch 8[8], opn 8 July 2003; Act 44 of 2016 Sch 1[2], opn 11 Nov 2016]

Breaking etc into any house etc and committing serious indictable offence 8 An offence under section 112(1) of the Crimes Act 1900 where: (a) the serious indictable offence alleged is stealing or intentionally or recklessly destroying or damaging property, and (b) the value of the property stolen or destroyed, or the value of the damage to the property, does not exceed $60,000. [cl 8 am Act 94 of 1999 s 6 and Sch 4.98[4], opn 1 Jan 2000; am Act 27 of 2003 Sch 8[8], [9], opn 8 July 2003; Act 63 of 2010 Sch 1.8, opn 28 June 2010; Act 44 of 2016 Sch 1[2], opn 11 Nov 2016]

Breaking and entering in company 8A An offence under section 109(2), 111(2), 112(2) or 113(2) of the Crimes Act 1900 where: (a) the serious indictable offence alleged is stealing or intentionally or recklessly destroying or damaging property, and (b) the value of the property stolen or destroyed, or the value of the damage to the property, does not exceed $60,000, and (c) the only circumstance of aggravation is that the alleged offender is in the company of another person or persons. [cl 8A insrt Act 44 of 2016 Sch 1[3], opn 11 Nov 2016]

Other property offences 9 An offence under section 99, 100, 100A, 102, 114(1)(a), (c) and (d), 115, 135, 138, 153, 154AA, 154B(1), 154C, 154D, 154F, 165, 166, 168, 169, 170, 172, 173, 174, 175, 176, 176A, 181, 184A, 196, 197, 199, 200, 201, 202, 203 or 203C of the Crimes Act 1900. [cl 9 am Act 6 of 1996 s 3 and Sch 1.4, opn 16 Aug 1996; Act 137 of 1996 s 4 and Sch 2.4, opn 8 Mar 1997; am Act 43 of 2000 Sch 5 item 2, opn 31 July 2000; Act 84 of 2001 s 3 and Sch 2.3[1], opn 14 Dec 2001; Act 92 of 2003 s 5 and Sch 3.1[3], opn 15 Dec 2003; Act 26 of 2006 s 4 and Sch 2.2[1], opn 1 Sep 2006]

Bushfires 9A An offence under section 203E of the Crimes Act 1900. [cl 9A insrt Act 24 of 2002 s 3 and Sch 2, opn 19 July 2002]

PART 3 — OTHER OFFENCES UNDER CRIMES ACT 1900 OR THE COMMON LAW Offences relating to public order 10 An offence under section 93B or 93C of the Crimes Act 1900. Offences relating to contamination of goods 10A An offence under section 93IB, 93IC or 93ID (or section 93K, 93L or 93M) of the Crimes Act 1900. [cl 10A insrt Act 89 of 1997 s 4 and Sch 2, opn 21 Dec 1997; am Act 38 of 2007 s 4 and Sch 3.1[3], opn 27 Sep 2007]

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Criminal Procedure

Sch 1

[2-Sch 1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Sch 1

Offences relating to bomb and other hoaxes 10B An offence under section 93IH or 93II (or section 93Q or 93R) of the Crimes Act 1900. [cl 10B insrt Act 117 of 2001 s 3 and Sch 7[10], opn 21 Dec 2001; am Act 38 of 2007 s 4 and Sch 3.1[4], opn 27 Sep 2007]

Offences relating to participation in criminal groups 10C An offence under section 93IK (2) or (3) (or section 93T(1A), (2), (3) or (4A)) of the Crimes Act 1900. [cl 10C insrt Act 61 of 2006 s 5 and Sch 3.1[2], opn 15 Dec 2006; am Act 38 of 2007 s 4 and Sch 3.1[5], opn 27 Sep 2007; Act 3 of 2012 Sch 2.2[1], opn 9 Apr 2012]

Publicly threatening or inciting violence on grounds of race, religion, sexual orientation, gender identity or intersex or HIV/AIDS status 10CA An offence under section 93Z of the Crimes Act 1900. [cl 10CA insrt Act 32 of 2018 Sch 3, opn 13 Aug 2018]

Identity offences 10D An offence under Part 4AB of the Crimes Act 1900 (other than under section 192L). [cl 10D insrt Act 99 of 2009 Sch 3, opn 22 Feb 2010]

Offences relating to transport services 11 An offence under section 207, 208(4), 209, 210, 212 or 213 of the Crimes Act 1900. Corrupt practices 12 (1) An offence under section 249B, 249D or 249E of the Crimes Act 1900, or an offence under section 249F of that Act of aiding, abetting, counselling, procuring, soliciting or inciting such an offence, where the benefit in respect of which the offence is charged exceeds $5,000. (2) An offence under section 249C of the Crimes Act 1900 or an offence under section 249F of that Act of aiding, abetting, counselling, procuring, soliciting or inciting such an offence. Blackmail 12A An offence under section 249K of the Crimes Act 1900. [cl 12A insrt Act 38 of 2007 s 4 and Sch 3.1[2], opn 15 Feb 2008]

Forgery and related offences 12B An offence under Part 5 of the Crimes Act 1900 (other than under section 256(2) or (3)). [cl 12B insrt Act 99 of 2009 Sch 3, opn 22 Feb 2010]

False instruments 13 An offence under section 300, 301 or 302 of the Crimes Act 1900 (other than an offence listed in clause 4B of Table 2 to this Schedule) or an offence under section 302A of that Act. [cl 13 subst Act 85 of 1997 s 3 and Sch 1.4[2], opn 30 Mar 1998; am Act 82 of 2003 s 3 and Sch 2.9[14], opn 27 Nov 2003]

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CRIMINAL PROCEDURE ACT 1986

[2-Sch 1]

Offences relating to computers 14 An offence under section 308C (where the serious indictable offence to be committed is punishable by imprisonment for 10 years or less), 308D, 308E, 308F or 308G of the Crimes Act 1900. [cl 14 am Act 20 of 2001 s 4 and Sch 2, opn 3 Aug 2001]

Public justice offences 15 (1) Public justice offences not involving intent to procure conviction or acquittal An offence under section 321, 322, 323 or 333(1) of the Crimes Act 1900 unless the person charged intended to procure the conviction or acquittal of any person of any serious indictable offence. [subcl (1) am Act 120 of 2006 s 3 and Sch 1.8[1], opn 4 Dec 2006]

(2) Other public justice offences An offence under section 314, 315, 315A, 316, 317, 319, 325, 326, 327, 330, 335, 336 or 337 of the Crimes Act 1900. [subcl (2) am Act 84 of 2001 s 3 and Sch 2.3[2], opn 14 Dec 2001; Act 4 of 2018 Sch 1.5[5], opn 16 Apr 2018]

Offence relating to recruiting children 15A An offence under section 351A of the Crimes Act 1900. [cl 15A insrt Act 84 of 2001 s 3 and Sch 2.3[3], opn 14 Dec 2001]

Escape from lawful custody 16 (1) Escape from lawful custody. (2) An offence under section 358C of the Crimes Act 1900. [subcl (2) insrt Act 6 of 1996 s 3 and Sch 1.4, opn 16 Aug 1996]

(3) Any offence under Part 6A (other than an offence arising under section 310B of the Crimes Act 1900). [subcl (3) insrt Act 94 of 1999 s 4 and Sch 2[64], opn 1 Jan 2000]

Failing to stop and assist after road accident 16A An offence under section 52AB of the Crimes Act 1900. [cl 16B insrt Act 94 of 2006 s 4 and Sch 3.9, opn 1 Feb 2007]

Impersonating police officers 16B An offence under section 546D(2) of the Crimes Act 1900. [cl 16A insrt Act 74 of 2005 s 4 and Sch 2.1[2], opn 13 Feb 2006]

False imprisonment 16C The common law offence of false imprisonment. [cl 16C insrt Act 107 of 2008 s 3 and Sch 7, opn 8 Dec 2008]

Cheating at gambling 16D An offence under section 193N, 193O, 193P or 193Q(1) or (2) of the Crimes Act 1900. [cl 16D insrt Act 64 of 2012 Sch 2, opn 13 Sep 2012]

PART 4 — OFFENCES UNDER CERTAIN OTHER ACTS Bail Act 2013 17 An offence under section 86 of the Bail Act 2013. [cl 17 subst Act 5 of 2014 Sch 2 item 2.15[17], opn 20 May 2014]

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Criminal Procedure

Sch 1

[2-Sch 1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Sch 1

Children (Criminal Proceedings) Act 1987 18AAA An offence under section 31K of the Children (Criminal Proceedings) Act 1987. [cl 18AAA insrt Act 55 of 2017 Sch 1[12], opn 30 Apr 2018]

Children and Young Persons (Care and Protection) Act 1998 18 An offence under section 105(2) or 175(1) of the Children and Young Persons (Care and Protection) Act 1998. [cl 18 subst Act 158 of 1998 s 5 and Sch 2.12, opn 18 Dec 2000]

Conveyancers Licensing Act 2003 18AA An offence under section 152 of the Conveyancers Licensing Act 2003 where the amount of money in respect of which the offence is charged exceeds $5,000 or an offence under section 153 of that Act where the account in respect of which the offence is charged relates to an amount that exceeds $5,000. [cl 18AA insrt Act 11 of 2012 Sch 1.1[14], opn 21 Mar 2012]

Crimes (Criminal Organisations Control) Act 2012 18A An offence under section 26(1A) or (1B) or 26A of the Crimes (Criminal Organisations Control) Act 2012. [cl 18A subst Act 9 of 2012 Sch 1.4, opn 21 Mar 2012; am Act 95 of 2012 Sch 2 item 2.8, opn 4 Jan 2013]

Crimes (Serious Crime Prevention Orders) Act 2016 18B An offence under section 8 of the Crimes (Serious Crime Prevention Orders) Act 2016. [cl 18B insrt Act 15 of 2016 Sch 2, opn 25 Nov 2016]

Criminal Procedure Act 1986 18C An offence under section 92 of the Criminal Procedure Act 1986. [cl 18C insrt Act 55 of 2017 Sch 1[12], opn 30 Apr 2018]

Electoral Funding Act 2018 18D An offence under section 144 of the Electoral Funding Act 2018. [cl 18D insrt Act 20 of 2018 Sch 3 item 3.1 opn 1 July 2018]

Electricity Commission Act 1950 19 An offence under section 76 or 81 of the Electricity Commission Act 1950. Electricity Supply Act 1995 19A An offence under section 64 of the Electricity Supply Act 1995 committed by an individual. [cl 19A insrt Act 2 of 2008 s 4 and Sch 2, opn 19 Mar 2008]

Financial Institutions Commission Act 1992 20 An offence under section 21 of the Financial Institutions Commission Act 1992. Health Practitioner Regulation National Law (NSW) 20AA An offence under section 113, 115, 116, 117, 118, 119, 121, 122 or 123 of the Health Practitioner Regulation National Law (NSW). [cl (20AA) insrt Act 10 of 2019 Sch 1 item 1.9[6], opn 26 Sep 2019]

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CRIMINAL PROCEDURE ACT 1986

[2-Sch 1]

Jury Act 1977 20A An offence under section 68A of the Jury Act 1977. [cl 20 insrt Act 15 of 1997 s 4 and Sch 2, opn 1 July 1998]

Justices Act 1902 21 An offence under section 48H of the Justices Act 1902. Law Enforcement and National Security (Assumed Identities) Act 2010 21A An offence under section 33(1) or (2) of the Law Enforcement and National Security (Assumed Identities) Act 2010. [cl 21A subst Act 73 of 2010 Sch 2, opn 29 Sep 2010]

Law Enforcement (Powers and Responsibilities) Act 2002 21B An offence under section 87ZA of the Law Enforcement (Powers and Responsibilities) Act 2002. [cl 21B insrt Act 16 of 2016 Sch 4[2], opn 31 Mar 2017]

Legal Profession Uniform Law (NSW) 21C An offence under section 148 (Deficiency in trust account) or section 353 (Improperly destroying property etc.) of the Legal Profession Uniform Law (NSW). [cl 25 subst Act 7 of 2015 Sch 2.11[3], opn 1 July 2015; renum as 21C Act 10 of 2019 Sch 1 item 1.9[7], opn 26 Sep 2019]

Oaths Act 1900 22 An offence under section 13(2), 20, 25, 25A, 29 or 30 of the Oaths Act 1900. [cl 22 am Act 83 of 1996 s 4 and Sch 2[2], opn 1 Jan 1997]

Petroleum (Offshore) Act 1982 23 An offence under section 120 of the Petroleum (Offshore) Act 1982. [cl 23 am Act 27 of 2007 s 3 and Sch 1, opn 1 July 2008]

Point to Point Transport (Taxis and Hire Vehicles) Act 2016 23A An offence under section 16 of the Point to Point Transport (Taxis and Hire Vehicles) Act 2016. [cl 23A insrt Act 10 of 2019 Sch 1 item 1.9[8], opn 26 Sep 2019]

Police Powers (Drug Premises) Act 2001 23B A second or subsequent offence under section 12, 13 or 14 of the Police Powers (Drug Premises) Act 2001. [cl 23A insrt Act 30 of 2001 s 20 and Sch 5.1, opn 1 July 2001; renum as 23B Act 10 of 2019 Sch 1 item 1.9[9], opn 26 Sep 2019]

Property, Stock and Business Agents Act 2002 23C An offence under section 211 of the Property, Stock and Business Agents Act 2002 where the amount of money in respect of which the offence is charged exceeds $5,000 or an offence under section 212 of that Act where the account in respect of which the offence is charged relates to an amount that exceeds $5,000. [s 23AAA insrt Act 11 of 2012 Sch 1.1[15], opn 21 Mar 2012; renum as 23C Act 10 of 2019 Sch 1 item 1.9[9], opn 26 Sep 2019]

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Criminal Procedure

Sch 1

[2-Sch 1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Sch 1

Royal Commissions Act 1923 23D An offence under section 21, 22 or 23A of the Royal Commissions Act 1923. [cl 23AA insrt Act 120 of 2006 s 3 and Sch 1.8[2], opn 4 Dec 2006; renum as 23D Act 10 of 2019 Sch 1 item 1.9[9], opn 26 Sep 2019]

Special Commissions of Inquiry Act 1983 23E An offence under section 27, 28 or 30 of the Special Commissions of Inquiry Act 1983. [cl 23AB insrt Act 120 of 2006 s 3 and Sch 1.8[2], opn 4 Dec 2006; renum as 23E Act 10 of 2019 Sch 1 item 1.9[9], opn 26 Sep 2019]

Sydney Opera House Trust Act 1961 23F An offence under section 28B of the Sydney Opera House Trust Act 1961, or an offence under section 28C of that Act where the value of the damage exceeds $5,000. [cl 23B insrt Act 49 of 2004 s 4 and Sch 3[2], opn 5 Nov 2004; renum as 23F Act 10 of 2019 Sch 1 item 1.9[9], opn 26 Sep 2019]

Unlawful Gambling Act 1998 24 A second or subsequent offence under section 9, 11, 15, 19(1), 31, 32, 33, 35 or 36 of the Unlawful Gambling Act 1998. [cl 24 insrt Act 113 of 1998 s 59 and Sch 2.5, opn 1 Mar 1999]

Witness Protection Act 1995 24A An offence under section 32 of the Witness Protection Act 1995. [cl 24A insrt Act 87 of 1995 s 45]

PART 5 — ANCILLARY OFFENCES [Pt 5 heading subst Act 149 of 1998 s 4 and Sch 2.5[6], opn 8 Feb 1999]

Attempts 26 Attempting to commit any offence mentioned in a preceding Part of this Table. Accessories 27 Being an accessory before or after the fact to any offence mentioned in a preceding Part of this Table (if the offence is a serious indictable offence). [cl 27 am Act 94 of 1999 s 6 and Sch 4.98[4], opn 1 Jan 2000]

Abettors 28 Aiding, abetting, counselling or procuring the commission of any offence mentioned in a preceding Part of this Table (if the offence is a minor indictable offence). [cl 28 am Act 94 of 1999 s 6 and Sch 4.98[4], opn 1 Jan 2000]

Conspiracies 28A Conspiring to commit any offence mentioned in a preceding Part of this Table. [cl 28A insrt Act 149 of 1998 s 4 and Sch 2.5[7], opn 8 Feb 1999]

Incitement 28B Inciting the commission of any offence mentioned in a preceding Part of this Table. [cl 28B insrt Act 149 of 1998 s 4 and Sch 2.5[7], opn 8 Feb 1999]

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CRIMINAL PROCEDURE ACT 1986

[2-Sch 1]

PART 6 — OFFENCES UNDER DRUG MISUSE AND TRAFFICKING ACT 1985 Offences involving more than small quantity but not more than indictable quantity 29 An offence to which section 31(1) of the Drug Misuse and Trafficking Act 1985 applies where the number or amount of the prohibited plant or prohibited drug concerned is more than the applicable small quantity but not more than the applicable indictable quantity. Supply prohibited drug involving more than indictable quantity but less than commercial quantity 29A An offence under section 25(1) of the Drug Misuse and Trafficking Act 1985 where the amount of prohibited drug concerned is more than the applicable indictable quantity but less than the applicable commercial quantity. [cl 29A insrt Act 4 of 2018 Sch 1 item 1.5[6], opn 2 July 2018]

Offences involving more than indictable quantity but less than commercial quantity (cannabis plant and cannabis leaf) 30 An offence referred to in section 32(1)(a), (b), (c1), (d), (e) or (f) of the Drug Misuse and Trafficking Act 1985 where the offence relates to cannabis plant or cannabis leaf and the quantity of cannabis plant or cannabis leaf concerned is more than the applicable indictable quantity but less than the applicable commercial quantity. [cl 30 am Act 149 of 1998 s 4 and Sch 2.5[8], opn 8 Feb 1999; Act 31 of 1999 s 3 and Sch 2.11, opn 7 July 1999; Act 4 of 2018 Sch 1 item 1.5[7], opn 2 July 2018]

Offence involving possession of precursors for manufacture or production of prohibited drugs 30A An offence referred to in section 24A of the Drug Misuse and Trafficking Act 1985. [cl 30A insrt Act 107 of 2000 s 4 and Sch 2, opn 23 Feb 2001; renum Act 56 of 2001 s 3 and Sch 2.16, opn 17 July 2001]

Offences involving possession of prohibited drug precursors 30B An offence referred to in section 24B of the Drug Misuse and Trafficking Act 1985. [cl 30B insrt Act 57 of 2007 s 3 and Sch 1[13], opn 7 Dec 2007]

PART 7 — OFFENCES RELATING TO MINING [Pt 7 insrt Act 90 of 2000 s 4 and Sch 5, opn 22 Dec 2000]

Mining Act 1992 31 (1) An offence of mining or carrying out a mining purpose in contravention of a provision of Division 1 of Part 2 of the Mining Act 1992. [cl 31 am Act 19 of 2008 s 4 and Sch 2(2.2)[2], opn 1 Aug 2008Sch 2.2[1], opn 15 Nov 2010]

(2) An offence under Division 2 of Part 2 of the Mining Act 1992, where the value of the minerals to which the alleged offence relates is $5,000 or more. Petroleum (Onshore) Act 1991 32 An offence of mining petroleum in contravention of section 7 of the Petroleum (Onshore) Act 1991, if the value of the petroleum to which the alleged offence relates is $5,000 or more. [cl 32 insrt Act 84 of 2012 Sch 2 item 2.1, opn 1 Jan 2013]

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Criminal Procedure

Sch 1

[2-Sch 1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Sch 1

TABLE 2 — INDICTABLE OFFENCES THAT ARE TO BE DEALT WITH SUMMARILY UNLESS PROSECUTOR ELECTS OTHERWISE [Table 2 insrt Act 22 of 1995; renum Act 94 of 1999 s 4 and Sch 2[63], opn 1 Jan 2000; am Act 40 of 2003 s 3 and Sch 1.10[14], opn 7 July 2003; Act 36 of 2003 s 5 and Sch 3.1[2], opn 1 Oct 2003; Act 38 of 2007 s 4 and Sch 3.1[6], opn 27 Sep 2007]

PART 1 — OFFENCES AGAINST THE PERSON UNDER CRIMES ACT 1900 OR CRIMES (DOMESTIC AND PERSONAL VIOLENCE) ACT 2007 [heading am Act 80 of 2007 s 103 and Sch 2.9, opn 10 Mar 2008]

Offences against the person 1 An offence under section 35A(2), 49A, 51B, 56, 58, 59, 59A, 60(1) or (1A), 60A(1), 60B, 60C, 60E(1) and (4), 61, 61KC, 61KE, 61KF, 61L, 61N, 61O(1) or (1A), 66DD, 66DE, 66EC, 73A, 91P, 91Q or 91R(1) or (2) of the Crimes Act 1900. [cl 1 am Act 23 of 1995 s 3 and Sch 1.4(4); Act 135 of 1997 s 4 and Sch 2.2, opn 16 Jan 1998; Act 53 of 1998 s 7 and Sch 5[1], opn 31 July 1998; Act 45 of 2002 s 4 and Sch 2[3], opn 15 July 2002; Act 135 of 2002 s 4 and Sch 2[3], opn 10 Feb 2003; Act 119 of 2005, s 6 and Sch 4[2], opn 15 Dec 2005; Act 61 of 2006 s 5 and Sch 3.1[3], opn 15 Dec 2006; Act 74 of 2007 s 4 and Sch 2[2], opn 18 Jan 2008; Act 18 of 2008 s 4 and Sch 2[2], opn 23 May 2008; Act 105 of 2008 s 4 and Sch 2, opn 1 Jan 2009; Act 2 of 2010 Sch 2, opn 18 Mar 2010; Act 29 of 2017 Sch 2.3[2], opn 25 Aug 2017; Act 33 of 2018 Sch 4[16], [17], opn 1 Dec 2018]

Stalking and intimidation 2 An offence under section 13 of the Crimes (Domestic and Personal Violence) Act 2007 or section 545AB or 562AB of the Crimes Act 1900. [cl 2 am Act 73 of 2006 s 4 and Sch 3.8[4], opn 12 Mar 2007; Act 80 of 2007 s 103 and Sch 2.9, opn 10 Mar 2008]

PART 2 — OFFENCES RELATING TO PROPERTY UNDER CRIMES ACT 1900 OR COMMON LAW Larceny and certain other property offences 3 Any of the following offences where the value of the property or the damage, or the amount of money or reward, in respect of which the offence is charged does not exceed $5,000: (a) larceny, (b) an offence of stealing any chattel, money or valuable security from another person (eg section 94(b) of the Crimes Act 1900), (c) an offence under section 3B, 125, 126, 131, 132, 133, 139, 140, 148, 150, 151, 152, 156, 157, 158, 159, 160, 178A, 178B, 178BA, 178BB, 178C, 179, 184, 185, 185A, 186, 188, 189, 189A, 190, 192, 193B(3), 193C, 195, 249B, 249D or 249E of the Crimes Act 1900, (d) an offence under section 249F of the Crimes Act 1900 of aiding, abetting, counselling, procuring, soliciting or inciting an offence under section 249B, 249D or 249E of that Act. [cl 3 am Act 6 of 1996 s 3 and Sch 1.4, opn 16 Aug 1996; Act 137 of 1996 s 4 and Sch 2.4, opn 8 Mar 1997; Act 53 of 1998 s 7 and Sch 5[1], opn 31 July 1998; Act 16 of 2016 Sch 4[3], opn 8 Sep 2016; Act 4 of 2018 Sch 1.5[9], opn 16 Apr 2018; Act 4 of 2018 Sch 1 item 1.5[8], opn 2 July 2018]

Possession of implement of housebreaking 3A An offence under section 114(1)(b) of the Crimes Act 1900. [cl 3A insrt Act 6 of 1996 s 3 and Sch 1.4, opn 16 Aug 1996]

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CRIMINAL PROCEDURE ACT 1986

[2-Sch 1]

Other property offences 4 An offence under section 154A, 154H, 154I or 154J of the Crimes Act 1900. [cl 4 am Act 53 of 1998 s 7 and Sch 5[1], opn 31 July 1998; Act 26 of 2006 s 4 and Sch 2.2[2], opn 1 Sep 2006]

Identity offences 4A An offence under section 192L of the Crimes Act 1900. [cl 4A insrt Act 99 of 2009 Sch 3, opn 22 Feb 2010]

Offences related to forgery 4AA An offence under section 256(2) or (3) of the Crimes Act 1900. [cl 4AA insrt Act 99 of 2009 Sch 3, opn 22 Feb 2010]

False instruments 4B An offence under section 300, 301 or 302 of the Crimes Act 1900 where the value of the property, or amount of remuneration, greater remuneration or financial advantage, in respect of which the offence is charged does not exceed $5,000. [cl 4B insrt Act 85 of 1997 s 3 and Sch 1.4[3], opn 30 Mar 1998]

PART 2A — OTHER OFFENCES UNDER CRIMES ACT 1900 [Pt 2A insrt Act 94 of 2005 s 4 and Sch 2.1[2], opn 16 Dec 2005]

Animal cruelty 4C An offence under section 530 or 531 of the Crimes Act 1900. Offences relating to participation in criminal groups 4D An offence under section 93IK(1) (or section 93T(1) or 93TA) of the Crimes Act 1900. [cl 4D insrt Act 61 of 2006 s 5 and Sch 3.1[4], opn 15 Dec 2006; am Act 38 of 2007 s 4 and Sch 3.1[6], opn 27 Sep 2007; Act 3 of 2012 Sch 2.2[2], opn 9 Apr 2012]

Consorting 4E An offence under section 93X of the Crimes Act 1900. [cl 4E insrt Act 3 of 2012 Sch 2.2[3], opn 9 Apr 2012]

PART 3 — OFFENCES UNDER SYDNEY OPERA HOUSE TRUST ACT 1961 Offence of damaging Opera House 5 An offence under section 28C of the Sydney Opera House Trust Act 1961 where the value of the damage does not exceed $5,000. [Pt 3 insrt Act 49 of 2004 s 4 and Sch 3[3], opn 5 Nov 2004]

PART 4 — OFFENCES RELATING TO FIREARMS AND DANGEROUS WEAPONS Crimes Act 1900 6 An offence under section 93FA(1) or (2), 93G, 93H or 93I of the Crimes Act 1900. [cl 6 am Act 53 of 1998 s 7 and Sch 5[1], opn 31 July 1998; am Act 92 of 2003 s 5 and Sch 3.1[4], opn 15 Dec 2003; Act 48 of 2004 s 4 and Sch 2, opn 12 Nov 2004; Act 57 of 2007 s 3 and Sch 1[14], opn 7 Dec 2007]

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Criminal Procedure

Sch 1

[2-Sch 1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Sch 1

Firearms Act 1996 7 An offence under section 7, 7A, 36, 43, 44A, 50, 50AA, 50A(1), 50B, 51(1) or (2), 51A, 51BA, 51D(1), 51E, 51F, 51H, 51I, 58(2), 62, 63, 64, 66, 70, 71A, 72(1) or 74(1)–(5) of the Firearms Act 1996. [cl 7 subst Act 47 of 2002 s 4 and Sch 3.1[3], opn 15 July 2002; am Act 36 of 2003 s 5 and Sch 3.1[2], opn 1 Oct 2003; subst Act 92 of 2003, s 5 and Sch 3.1[5], opn 15 Dec 2003; am Act 85 of 2003 s 3 and Sch 4[7], opn 14 Feb 2004; Act 74 of 2013 Sch 4[4], [5], opn 1 Nov 2013; Act 63 of 2015 Sch 3[3], opn 24 Nov 2015; Act 26 of 2017 Sch 5[3], opn 1 Nov 2017]

Weapons Prohibition Act 1998 8 An offence under section 7, 20, 23(1), 23A(1), 25A(1), 25B(1), 25D, 31 or 34 of the Weapons Prohibition Act 1998. [cl 8 subst Act 40 of 2010 Sch 3, opn 9 July 2010; am Act 63 of 2015 Sch 3[4], opn 24 Nov 2015; Act 26 of 2017 Sch 5[4], opn 1 Nov 2017]

PART 5 — OFFENCES RELATING TO FIRES [Pt 5 insrt Act 65 of 1997 s 138 and Sch 4.4, opn 1 Sep 1997]

Rural Fires Act 1997 9 An offence under section 100(1) or (1B) of the Rural Fires Act 1997. [cl 9 insrt Act 65 of 1997 s 138 and Sch 4.4, opn 1 Sep 1997; am Act 66 of 2014 Sch 2 item 2.2[2], opn 28 Oct 2014]

PART 6 — MISCELLANEOUS OFFENCES [Pt 6 insrt Act 142 of 1997 s 4 and Sch 2.2, opn 25 Jan 1998]

Publishing of child pornography 10 An offence under section 578C(2A) of the Crimes Act 1900. [cl 10 insrt Act 142 of 1997 s 4 and Sch 2.2, opn 25 Jan 1998]

Frauds concerning liens on crops and wool or stock mortgages 10A An offence under section 10 or 20 of the Liens on Crops and Wool and Stock Mortgages Act 1898. [cl 10A insrt Act 149 of 1998 s 4 and Sch 2.5[11], opn 8 Feb 1999]

Unauthorised disclosure of information 10B An offence under section 20R(2) of the Law Enforcement (Controlled Operations) Act 1997. [cl 10B insrt Act 14 of 2006 s 5 and Sch 3, opn 9 Feb 2007]

Trafficking in fish 10C An offence under section 21B of the Fisheries Management Act 1994. [cl 10C insrt Act 114 of 2009 Sch 2, opn 1 Apr 2010]

Conveyancers Licensing Act 2003 10D An offence under section 152 of the Conveyancers Licensing Act 2003 where the amount of money in respect of which the offence is charged does not exceed $5,000

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[2-Sch 1]

or an offence under section 153 of that Act where the account in respect of which the offence is charged relates to an amount that does not exceed $5,000. [cl 10D insrt Act 11 of 2012 Sch 1.1[16], opn 21 Mar 2012]

Property, Stock and Business Agents Act 2002 10E An offence under section 211 of the Property, Stock and Business Agents Act 2002 where the amount of money in respect of which the offence is charged does not exceed $5,000 or an offence under section 212 of that Act where the account in respect of which the offence is charged relates to an amount that does not exceed $5,000. [cl 10E insrt Act 11 of 2012 Sch 1.1[16], opn 21 Mar 2012]

Restricted Premises Act 1943 10F An offence under section 8 (2A) or 9 (3) of the Restricted Premises Act 1943. [cl 10F insrt Act 74 of 2013 Sch 4[6], opn 1 Nov 2013]

Crimes (High Risk Offenders) Act 2006 10G An offence under section 12 of the Crimes (High Risk Offenders) Act 2006. [cl 10G insrt Act 58 of 2014 Sch 2 item 2.2, opn 7 Jan 2015]

Terrorism (High Risk Offenders) Act 2017 10H An offence under section 30 or 59F(2) or (3) of the Terrorism (High Risk Offenders) Act 2017. [cl 10H insrt Act 68 of 2017 Sch 2.11, opn 19 Jan 2018; am Act 29 of 2018 Sch 2 item 2.6[2], opn 21 June 2018; Act 94 of 2018 Sch 1 item 1.5, opn 28 Nov 2018]

PART 7 — ANCILLARY OFFENCES [Pt 7 insrt Act 53 of 1998 s 7 and Sch 5[2], opn 31 July 1998; Pt 7 heading subst Act 149 of 1998 s 4 and Sch 2.5[12], opn 8 Feb 1999]

Attempts 11 Attempting to commit any offence mentioned in a preceding Part of this Table. [cl 11 insrt Act 53 of 1998 s 7 and Sch 5[2], opn 31 July 1998]

Accessories 12 Being an accessory before or after the fact to any offence mentioned in a preceding Part of this Table (if the offence is a serious indictable offence). [cl 12 insrt Act 53 of 1998 s 7 and Sch 5[2], opn 31 July 1998; am Act 94 of 1999 s 6 and Sch 4.98[7], opn 1 Jan 2000]

Abettors 13 Aiding, abetting, counselling or procuring the commission of any offence mentioned in a preceding Part (other than Part 3) of this Table (if the offence is a minor indictable offence). [cl 13 insrt Act 53 of 1998 s 7 and Sch 5[2], opn 31 July 1998; am Act 94 of 1999 s 6 and Sch 4.98[7], opn 1 Jan 2000]

Conspiracies 14 Conspiring to commit any offence mentioned in a preceding Part of this Table. [cl 14 insrt Act 149 of 1998 s 4 and Sch 2.5[13], opn 8 Feb 1999]

399

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Sch 1

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ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Sch 1

Incitement 15 Inciting the commission of any offence mentioned in a preceding Part of this Table. [cl 15 insrt Act 149 of 1998 s 4 and Sch 2.5[13], opn 8 Feb 1999]

PART 8 — OFFENCES RELATING TO DRUGS [Pt 8 (formerly Pt 3) renum Act 149 of 1998 s 4 and Sch 2.5[9], opn 8 Feb 1999]

Drug Misuse and Trafficking Act 1985 16 An offence to which section 30(1) of the Drug Misuse and Trafficking Act 1985 applies where the number or amount of the prohibited plant or prohibited drug concerned is not more than the applicable small quantity. [cl 16 (formerly cl 5) renum Act 149 of 1998 s 4 and Sch 2.5[10], opn 8 Feb 1999]

PART 9 — OFFENCES RELATING TO MINING [Pt 9 insrt Act 90 of 2000 s 4 and Sch 5[2], opn 22 Dec 2000]

Mining Act 1992 17 (1) [subcl (1) rep Act 19 of 2008 Sch 2.2[3], opn 15 Nov 2010] (2) An offence under Division 2 of Part 2 of the Mining Act 1992, where the value of the minerals to which the alleged offence relates is less than $5,000. (3) [subcl (3) rep Act 19 of 2008 Sch 2.2[3], opn 15 Nov 2010] Petroleum (Onshore) Act 1991 18 (1) An offence of mining petroleum in contravention of section 7 of the Petroleum (Onshore) Act 1991, where the value of the petroleum to which the alleged offence relates is less than $5,000. (2) [subcl (2) rep Act 84 of 2012 Sch 2 item 2.1, opn 1 Jan 2013] PART 10 — OFFENCES RELATING TO SURVEILLANCE DEVICES Surveillance Devices Act 2007 19 [Pt 10 rep Act 52 of 2010 Sch 1, opn 30 July 2010] PART 11 — OFFENCES UNDER CHILD PROTECTION (OFFENDERS REGISTRATION) ACT 2000 Reporting obligations 20 [Pt 13 rep Act 52 of 2010 Sch 1, opn 30 July 2010] PART 12 — OFFENCES RELATING TO UNDERGROUND ELECTRICITY POWER LINES AND GAS PIPELINES [Pt 12 insrt Act 31 of 2009 Sch 3, opn 1 July 2010]

Electricity Supply Act 1995 21 An offence under section 65 of the Electricity Supply Act 1995 committed by an individual.

400

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[2-s Sch1.0]

CRIMINAL PROCEDURE ACT 1986

Gas Supply Act 1996 22 An offence under section 66 of the Gas Supply Act 1996 committed by an individual. Child Protection (Offenders Prohibition Orders) Act 2004 22A An offence under section 13 of the Child Protection (Offenders Prohibition Orders) Act 2004. [cl 22A insrt Act 77 of 2013 Sch 3, opn 29 Oct 2013]

PART 13 — OFFENCES UNDER CERTAIN OTHER ACTS [Pt 13 insrt Act 52 of 2010 Sch 1, opn 30 July 2010]

Child Protection (Offenders Registration) Act 2000 23 An offence under section 17, 18 or 19E of the Child Protection (Offenders Registration) Act 2000. [cl 23 am Act 54 of 2014 Sch 2, opn 23 Oct 2014]

Electoral Act 2017 23A An offence under section 95, 128, 160, 209, 210 or 212 of the Electoral Act 2017. [cl 23A insrt Act 66 of 2017 Sch 8 item 8.6, opn 1 July 2018]

Health Services Act 1997 24 An offence under section 67J(2) of the Health Services Act 1997. Surveillance Devices Act 2007 25 An offence under Part 2 or 5 (other than section 40(2)) of the Surveillance Devices Act 2007. Companion Animals Act 1998 26 An offence under section 16(1AB) or (1A) or 17(1A) of the Companion Animals Act 1998. [cl 26 insrt Act 86 of 2013 Sch 3, opn 18 Nov 2013]

COMMENTARY ON SCHEDULE 1 Law Part Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2-s Sch1.0] Law Part Code

[2-s Sch1.0]

The Law Part Code for the schedule is 54580.

401

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Criminal Procedure

Sch 1

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Criminal Procedure

[2-Sch 2]

SCHEDULE 2 — SAVINGS, TRANSITIONAL AND OTHER PROVISIONS (Section 315)

[Sch 2 insrt Act 85 of 1997 s 3 and Sch 1.4[14], opn 30 Mar 1998; am Act 53 of 1998 s 7 and Sch 5[10], opn 31 July 1998; renum Act 94 of 1999 s 4 and Sch 2[66], opn 1 Jan 2000; am Act 7 of 2001 s 3 and Sch 1[8], [9], opn 19 Nov 2001; Act 117 of 2001 s 3 and Sch 7[11] opn 21 Dec 2001; Act 119 of 2001 s 3 and Sch 1[142], opn 7 July 2003]

PART 1 — PRELIMINARY Regulations 1 (1) The regulations may include provisions of a savings or transitional nature consequent on the enactment of the following Acts or provisions of Acts: Schedule 1.4 to the Crimes Legislation Amendment Act 1997 Schedule 5 to the Crimes Legislation Amendment Act 1998 Crimes Legislation Amendment (Sentencing) Act 1999 Crimes (Sentencing Procedure) Act 1999 Crimes (Administration of Sentences) Act 1999 Criminal Procedure Amendment (Pre-trial Disclosure) Act 2001 Criminal Legislation Amendment Act 2001, to the extent that it amends this Act Criminal Procedure Amendment (Justices and Local Courts) Act 2001 Justices Legislation Repeal and Amendment Act 2001 Crimes Legislation Amendment (Penalty Notice Offences) Act 2002 Crimes Legislation Amendment (Criminal Justice Interventions) Act 2002 Criminal Procedure Amendment (Sexual Offence Evidence) Act 2003 Road Transport Legislation Amendment (Public Transport Lanes) Act 2004, but only in relation to the amendments made to this Act Criminal Procedure Amendment (Evidence) Act 2005 Criminal Procedure Further Amendment (Evidence) Act 2005 Criminal Procedure Amendment (Prosecutions) Act 2005 Criminal Procedure Amendment (Sexual Offence Case Management) Act 2005 Courts Legislation Amendment Act 2006, to the extent that it amends this Act Criminal Procedure Amendment (Sexual and Other Offences) Act 2006, to the extent that it amends this Act Crimes and Courts Legislation Amendment Act 2006, but only to the extent to which it amends this Act. Criminal Procedure Amendment (Vulnerable Persons) Act 2007 Criminal Procedure Amendment (Local Court Process Reforms) Act 2007 Evidence Amendment Act 2007, to the extent that it amends this Act Criminal Legislation Amendment Act 2007 Crimes Amendment (Cognitive Impairment — Sexual Offences) Act 2008, but only to the extent to which it amends this Act Crimes Amendment (Sexual Offences) Act 2008 Criminal Procedure Amendment (Case Management) Act 2009 Crimes Amendment (Child Pornography and Abuse Material) Act 2010 Courts and Crimes Legislation Further Amendment Act 2010

403

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[2-Sch 2]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Sch 2

Criminal Procedure Amendment (Summary Proceedings Case Management) Act 2012 Courts and Crimes Legislation Amendment Act 2012 Crimes Legislation Amendment Act 2012 Criminal Procedure Amendment (Court Costs Levy) Act 2013 Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Act 2013 any other Act that amends this Act. [subcl (1) am Act 53 of 1998 s 7 and Sch 5[10], opn 31 July 1998; Act 94 of 1999 s 4 and Sch 2[67], opn 1 Jan 2000; Act 7 of 2001 s 3 and Sch 1[8], opn 19 Nov 2001; Act 117 of 2001 s 3 and Sch 7[11], opn 21 Dec 2001; Act 46 of 2002 s 3 and Sch 1[3], opn 1 Sep 2002; Act 100 of 2002 s 3 and Sch 1[4], opn 24 Feb 2003; Act 119 of 2001 s 3 and Sch 1[143], opn 7 July 2003; Act 42 of 2003 s 3 and Sch1[2], opn 3 Sep 2003; Act 22 of 2004 s 3 and Sch 3[6], opn 16 Apr 2004; Act 15 of 2005 Sch 1[2], opn 12 May 2005; Act 25 of 2005 s 3 and Sch 1, opn 12 Aug 2005; Act 75 of 2005 s 3 and Sch 1[2], opn 21 Sep 2005; Act 102 of 2005 s 3 and Sch 2[2], opn 1 Dec 2005; Act 23 of 2006 s 3 and Sch 1, opn 13 July 2006; Act 107 of 2006 s 3 and Sch 1, opn 29 Nov 2006; Act 88 of 2006 s 3 and Sch 1[11], opn 1 Jan 2007; Act 6 of 2007 s 3 and Sch 1[14], opn 12 Oct 2007; Act 34 of 2007 s 3 and Sch 1[3], opn 14 Nov 2007; Act 57 of 2007 s 3 and Sch 1[15], opn 15 Nov 2007; Act 74 of 2008 s 4 and Sch 2, opn 1 Dec 2008; Act 46 of 2007 s 4 and Sch 2, opn 1 Jan 2009; Act 105 of 2008 s 4 and Sch 2, opn 1 Jan 2009; Act 112 of 2009 Sch 1, opn 1 Feb 2010; Act 9 of 2010 Sch 2, opn 17 Sep 2010; Act 135 of 2010 Sch 12.2, opn 7 Dec 2010; Act 11 of 2012 Sch 1.1[17], opn 21 Mar 2012; Act 10 of 2012 Sch 1[5], opn 30 Apr 2012; Act 67 of 2012 Sch 2[7], opn 24 Sep 2012; Act 8 of 2013 Sch 1[5], opn 13 May 2013; Act 10 of 2013 Sch 1[13], opn 1 Sep 2013; Act 83 of 2014 Sch 1[25], opn 1 June 2015]

(2) A provision referred to in subclause (1) may, if the regulations so provide, take effect from the date of assent to the Act concerned or from a later date. (3) To the extent to which a provision referred to in subclause (1) takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as: (a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or (b) to impose liabilities on any person (other than the State or an authority of the State), in respect of anything done or omitted to be done before the date of its publication. PART 2 — PROVISIONS CONSEQUENT ON SCHEDULE 1.4 TO CRIMES LEGISLATION AMENDMENT ACT 1997 Application of amendments to Part 10 2 The amendments to this Act made by Schedule 1.4[4]–[13] to the Crimes Legislation Amendment Act 1997 do not apply in respect of a summary offence if the person charged with the indictable offence to which the summary offence is related is committed for trial for the indictable offence before the commencement of the amendments. PART 3 — PROVISIONS CONSEQUENT ON SCHEDULE 5 TO CRIMES LEGISLATION AMENDMENT ACT 1998 [Pt 3 insrt Act 53 of 1998 s 7 and Sch 5[11], opn 31 July 1998]

Application of amendments to Table 2 to Part 9A 3 Table 2 to Part 9A, as amended by Schedule 5[1] and [2] to the Crimes Legislation Amendment Act 1998, applies to proceedings for an offence with which a person is

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[2-Sch 2]

charged after (but not before) the commencement of those amendments, irrespective of when the offence was alleged to have been committed. [cl 3 insrt Act 53 of 1998 s 7 and Sch 5[11], opn 31 July 1998]

Application of amendments to Part 10 4 The amendments to this Act made by Schedule 5[3]–[9] to the Crimes Legislation Amendment Act 1998 do not apply in respect of a back up offence or a related offence if the person charged with the indictable offence to which the back up offence or the related offence is related is committed for trial for the indictable offence before the commencement of the amendments. [cl 4 insrt Act 53 of 1998 s 7 and Sch 5[11], opn 31 July 1998]

PART 4 — PROVISIONS CONSEQUENT ON ENACTMENT OF CRIMES LEGISLATION AMENDMENT (SENTENCING) ACT 1999 [Pt 4 heading insrt Act 94 of 1999 s 4 and Sch 2[68], opn 1 Jan 2000]

DIVISION 1 — PRELIMINARY [Div 1 insrt Act 94 of 1999 s 4 and Sch 2[68], opn 1 Jan 2000]

Definitions 5 In this Part: 1999 amending Act means the Crimes Legislation Amendment (Sentencing) Act 1999. amended legislation means any Act or instrument amended by Schedule 2, 3, 4 or 5 to the 1999 amending Act, as so amended. appointed day means: (a) in relation to a provision of the old legislation that has been repealed or amended by the 1999 amending Act, the day on which the repeal or amendment commences, or (b) in relation to a new provision inserted into the amended legislation by the 1999 amending Act, the day on which the new provision commences. old legislation means: (a) any Act or instrument repealed by Schedule 1 to the 1999 amending Act, as in force immediately before its repeal, and (b) any Act or instrument amended by Schedule 2, 3, 4 or 5 to the 1999 amending Act, as in force immediately before its amendment. DIVISION 2 — CRIMES ACT 1900 [Div 2 insrt Act 94 of 1999 s 4 and Sch 2[68], opn 1 Jan 2000]

Definitions 6 In this Division: 1900 Act means the Crimes Act 1900, as in force immediately before the appointed day. Certificates under section 358 7 A certificate prepared in accordance with section 358 of the 1900 Act is taken to have been prepared in accordance with section 127 of this Act.

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Criminal Procedure

Sch 2

[2-Sch 2]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Sch 2

Notices under section 405A and 405AB 8 A notice served on a person for the purposes of section 405A or 405AB of the 1900 Act is taken to have been served on the person for the purposes of section 48 or 49 of this Act, as the case requires. Depositions under section 406 9 A deposition made in accordance with section 406 of the 1900 Act is taken to have been made in accordance with section 111 of this Act. Certificate evidence under section 414A 10 Any certificate prepared for the purposes of a provision of section 414A of the 1900 Act is taken to have been prepared for the purposes of section 109 or 110 of this Act, as the case requires. Operation of section 442A 11 Section 442A of the 1900 Act continues to have effect in relation to offences under section 61B, 61C and 61D of that Act, as in force before their repeal on 17 March 1991 by the Crimes (Amendment) Act 1989. Orders under section 578 12 Any order that, immediately before the appointed day, was in force under section 578 of the 1900 Act is taken to be an order in force under section 119 of this Act, and may be amended and revoked accordingly. DIVISION 4 — GENERAL [Div 4 insrt Act 94 of 1999 s 4 and Sch 2[68], opn 1 Jan 2000]

Application of section 95 15 (1) Section 95 does not apply to the trial of a person charged with an offence before 10 June 1994 (the date on which the right to make unsworn dock statements was originally abolished). (2) The re-enactment by section 95 of section 404A of the Crimes Act 1900 does not limit the operation of section 30 of the Interpretation Act 1987 in relation to the repeal of section 404A by the 1999 amending Act. Application of section 105 16 Nothing in section 105 authorises the admission of evidence of a kind that was inadmissible immediately before 14 July 1981 (the date on which section 409B of the Crimes Act 1900 commenced). Continued operation of Forfeited Recognizances and Bail Act 1954 17 The Forfeited Recognizances and Bail Act 1954 continues to apply to a recognizance entered into before the commencement of this clause as if that Act had not been repealed. Delegations 18 Any delegation that was in force immediately before the commencement of the 1999 amending Act under a provision of the old legislation for which there is a

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CRIMINAL PROCEDURE ACT 1986

[2-Sch 2]

corresponding provision in the amended legislation is taken to be a delegation in force under the corresponding provision of the amended legislation. Construction of certain references 19 Subject to the Crimes (Sentencing Procedure) Act 1999, the Crimes (Administration of Sentences) Act 1999 and the regulations under this Act, in any Act or instrument: (a) a reference to a provision of the old legislation for which there is a corresponding provision in the amended legislation extends to the corresponding provision of the amended legislation, and (b) a reference to any act, matter or thing referred to in a provision of the old legislation for which there is a corresponding provision in the amended legislation extends to the corresponding act, matter or thing referred to in the corresponding provision of the amended legislation. General saving 20 Subject to the Crimes (Sentencing Procedure) Act 1999, the Crimes (Administration of Sentences) Act 1999 and the regulations under this Act: (a) anything begun before the appointed day under a provision of the old legislation for which there is a corresponding provision in the amended legislation may be continued and completed under the old legislation as if the 1999 amending Act had not been enacted, and (b) subject to paragraph (a), anything done under a provision of the old legislation for which there is a corresponding provision in the amended legislation (including anything arising under paragraph (a)) is taken to have been done under the corresponding provision of the amended legislation. PART 5 — PROVISIONS CONSEQUENT ON ENACTMENT OF CRIMINAL PROCEDURE AMENDMENT (PRE-TRIAL DISCLOSURE) ACT 2001 [Pt 5 insrt Act 7 of 2001 s 3 and Sch 1[9], opn 19 Nov 2001]

Application of Division 2A of Part 3 (Pre-trial disclosure — case management) 21 Division 2A of Part 3 extends to proceedings for an offence that were instituted before the commencement of that Division, but does not apply to any such proceedings if the accused person was committed for trial before that commencement. Application of amendments to section 48 (Notice of alibi) 22 The amendment made to section 48 by the Criminal Procedure Amendment (Pre-trial Disclosure) Act 2001 applies to proceedings in which the accused person is committed for trial after the commencement of the amendment. Application of substituted section 54 (Time within which indictment to be presented) 23 Section 54, as substituted by the Criminal Procedure Amendment (Pre-trial Disclosure) Act 2001, does not apply to proceedings in which the accused person was committed for trial before the substitution of that section.

407

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Criminal Procedure

Sch 2

[2-Sch 2]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Sch 2

Application of section 63A (Amendment of indictment) 24 Section 63A applies to indictments presented after the commencement of that section. PART 6 — PROVISIONS CONSEQUENT ON CRIMINAL PROCEDURE AMENDMENT (SEXUAL ASSAULT COMMUNICATIONS PRIVILEGE) ACT 2002 [Pt 6 insrt Act 13 of 2002 s 3 and Sch 1[5], opn 22 July 2002]

Application of Part 7 25 (1) The amended Part does not apply in relation to criminal proceedings the hearing of which began before it was amended. The Part, as in force before it was amended, continues to apply in relation to such proceedings. (2) The amended Part applies in relation to a requirement (whether by subpoena or other procedure) to produce a document on or after its amendment even if the requirement was issued before it was amended. (3) The amended Part applies in respect of a protected confidence whether made before or after it was amended. (4) In this clause: amended Part means Part 7 as amended by the amending Act. amending Act means the Criminal Procedure Amendment (Sexual Assault Communications Privilege) Act 2002. protected confidence has the meaning it has in Part 7. PART 7 — PROVISIONS CONSEQUENT ON ENACTMENT OF CRIMINAL PROCEDURE AMENDMENT (JUSTICES AND LOCAL COURTS) ACT 2001 AND JUSTICES LEGISLATION REPEAL AND AMENDMENT ACT 2001 [Pt 7 insrt Act 119 of 2001 s 3 and Sch 1[144], opn 7 July 2003]

Definitions 26 In this Part: amended Criminal Procedure Act means this Act, as amended by the Criminal Procedure Amendment (Justices and Local Courts) Act 2001. amended Local Courts Act means the Local Courts Act 1982, as amended by the Justices Legislation Repeal and Amendment Act 2001. old Act means this Act, as in force before its amendment by the Criminal Procedure Amendment (Justices and Local Courts) Act 2001. renumbered provision means a provision of this Act that is renumbered by the Criminal Procedure Amendment (Justices and Local Courts) Act 2001. repealed provision means a provision of an Act that is repealed by one of the 2001 amending Acts. 2001 amending Acts means the Criminal Procedure Amendment (Justices and Local Courts) Act 2001 and the Justices Legislation Repeal and Amendment Act 2001.

408

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Consequences of abolition of office of Clerk of the Peace 27 (1) The registry functions of the abolished office of the Clerk of the Peace are the functions of the registrars and other officers of the Supreme Court or the District Court. (2) Subclause (1) has effect subject to this Act and any other Act and, in particular, does not affect the functions of the Criminal Listing Director. (3) A reference in any other Act, in any instrument made under any Act or in any other instrument of any other kind to the Clerk of the Peace is to be read as a reference to such person or persons as may be prescribed. General saving relating to proceedings 28 (1) If any proceedings commenced, or any other thing commenced or done, under a repealed provision still having effect or not completed immediately before the repeal could have been done or commenced under the corresponding provision of the amended Criminal Procedure Act or the amended Local Courts Act: (a) the thing done continues to have effect, or (b) the proceedings or other thing commenced may be completed. (2) A decision, order or a sentence made by a Local Court, or any other person or body, that is completed under subclause (1) may be enforced as if the provisions of the old Act and the Justices Act 1902 and any repealed instruments under those Acts were still in force. (3) Any act, matter or thing done or omitted to be done under a repealed provision or renumbered provision, and having force immediately before the commencement of a provision of an Act that replaces the repealed provision or renumbers the provision, is on that commencement taken to be done under the corresponding provision of the amended Criminal Procedure Act or Local Courts Act (as the case requires). Construction of certain references 29 (1) Except as provided by this clause, a reference in any other Act or instrument: (a) to a repealed provision for which there is a corresponding provision in the amended Criminal Procedure Act, or to a renumbered provision, extends to the corresponding provision of the amended Criminal Procedure Act, and (b) to a repealed provision for which there is a corresponding provision in the amended Local Courts Act extends to the corresponding provision of the amended Local Courts Act, and (c) to any act, matter or thing referred to in a repealed provision or a renumbered provision extends to the corresponding act, matter or thing referred to in the corresponding provision of the amended Criminal Procedure Act or amended Local Courts Act. (2) The regulations may provide that a reference in any other Act or instrument or a specified instrument to a repealed provision or a renumbered provision is to be read as a reference to another specified instrument (or a specified provision of such an instrument). Functions of justices conferred on Magistrates or Local Courts 30 In any Act or statutory rule under which a function is conferred on one or more justices (other than an authorised justice), a reference to a justice in connection with the

409

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Criminal Procedure

Sch 2

[2-Sch 2]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Sch 2

function is taken to be a reference to a Magistrate or Local Court, if the function is, because of the 2001 amending Acts, instead conferred on a Magistrate or Local Court. Previous acts done by justices 31 An act, matter or thing done or omitted to be done by a justice (other than a Magistrate or an authorised justice within the meaning of the Search Warrants Act 1985) before the commencement of this clause in accordance with a provision of an Act or a statutory rule continues to have effect after that commencement as if the Act, matter or thing were done by an authorised officer or a Magistrate (as the case requires). Offences committed before commencement of clause 32 (1) The provisions of the amended Criminal Procedure Act, and any instruments made under that Act, apply to or in relation to proceedings for an offence committed before the commencement of this clause, if proceedings for the offence were not commenced before the commencement of this clause. (2) The provisions of the old Act and the Justices Act 1902, and any instruments made under those Acts, continue to apply to or in relation to proceedings for an offence committed before the commencement of this clause, if proceedings for the offence were commenced before the commencement of this clause. (3) For the purposes of this clause, proceedings are taken to have been commenced in respect of an offence if an information was laid or a complaint made, or an attendance notice issued, in relation to the offence, before the commencement of this clause. (4) This clause applies to all proceedings for offences (including committal proceedings). (5) This clause does not apply to or in respect of Parts 4A, 5, 5A and 5B of the Justices Act 1902. Provisions about appearances and service of documents 33 Without limiting the generality of any other provision of this Part, the provisions of the old Act and any instrument made under that Act continue to apply to or in relation to: (a) requiring the appearance of accused persons, witnesses and other persons at proceedings relating to offences to which the old Act and the Justices Act 1902 continue to apply, and (b) the issue and enforcement of and requirements for warrants of apprehension and commitment relating to offences to which the old Act and the Justices Act 1902 continue to apply, and (c) the service of process and other documents relating to offences to which the old Act and the Justices Act 1902 continue to apply. Previous warrants 34 A warrant issued under the Justices Act 1902 before the commencement of this clause and in force before that commencement continues to have effect, and may be executed and enforced, as if that Act were still in force. Costs 35 Without limiting the generality of any other provision of this Part, the provisions of the Justices Act 1902 and any instrument made under that Act continue to apply to or in relation to:

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CRIMINAL PROCEDURE ACT 1986

[2-Sch 2]

(a) orders for, and the payment of, costs by accused persons or other persons in any proceedings commenced under that Act before the commencement of this clause, and (b) the enforcement of any such order. Protection and immunities of justices 36 A provision of an Act or a statutory instrument that confers on a person or body the same protection and immunities as a justice of the peace (however expressed) is taken to confer on the person or body: (a) the same protection and immunities as are conferred on a Magistrate, if the protection and immunities are conferred in respect of the exercise of judicial functions or functions required to be exercised judicially, or (b) the same protection and immunities as are conferred on a registrar of a Local Court, if the protection and immunities are conferred in respect of the exercise of any other function. Depositions 37 A provision of an Act or a statutory rule relating to the making or use (including the admissibility) of a deposition of a witness made before the commencement of this clause, and in force immediately before that commencement, continues to apply to a deposition made in accordance with any applicable law before the commencement of this clause. Translation of old references to new references 38 References in an Act (other than this Act), in any instrument made under an Act or in any other instrument, to an expression listed in Column 1 of the Table to this clause are taken to be references to the expression listed next to that expression in Column 2 of the Table. Table Old expression

New expression

justices in petty sessions

Local Court

summary proceedings before justices

summary proceedings before a Local Court

Act regulating summary proceedings before justices

Criminal Procedure Act 1986, if the reference relates to proceedings for an offence Local Courts Act 1982, if the reference relates to any other proceedings

clerk of courts of petty sessions or clerk of petty sessions

registrar of a Local Court

clerk of a Local Court

registrar of a Local Court

laying an information for an offence, if the reference is to an offence required to be dealt with by a Local Court

issuing and filing a court attendance notice

making a complaint or issuing a summons, if the reference is to an offence to be dealt with by a Local Court (other than under the Local Courts (Civil Claims) Act 1970)

issuing and filing a court attendance notice

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Old expression making a complaint or issuing a summons, if the reference is to a matter required to be dealt with by a Local Court (other than an offence under the Local Courts (Civil Claims) Act 1970) issue of an attendance notice for an offence, if the reference is to an offence required to be dealt with by a Local Court warrant of apprehension or warrant to apprehend, if the reference is to a warrant issued under the Justices Act 1902 deposition, if the reference is to evidence given by a witness before a Magistrate or Local Court

Sch 2

New expression issuing and filing an application notice

issuing and filing a court attendance notice

arrest warrant

transcript of evidence

Authorised justices under Search Warrants Act 1985 39 (1) Nothing in the 2001 amending Acts affects the appointment of any existing authorised justice and any such person is taken to have been appointed under the Search Warrants Act 1985, as amended by the Justices Legislation Repeal and Amendment Act 2001. (2) In this clause: existing authorised justice means a person who was, immediately before the commencement of the amendments made to section 3 of the Search Warrants Act 1985 by the Justices Legislation Repeal and Amendment Act 2001, an authorised justice within the meaning of the Search Warrants Act 1985. PART 8 — PROVISIONS CONSEQUENT ON ENACTMENT OF CRIMINAL PROCEDURE FURTHER AMENDMENT (EVIDENCE) ACT 2005 [Pt 8 insrt Act 25 of 2005 s 3 and Sch 1, opn 12 Aug 2005]

Definition 40 In this Part: amending Act means the Criminal Procedure Further Amendment (Evidence) Act 2005. Extension of definition of “prescribed sexual offence” 41 (1) The amendments made by the amending Act to the definitions of prescribed sexual offence in section 3(1), child sexual assault offence in section 91 and sexual assault offence in section 295 extend to proceedings in respect of an offence, and to civil proceedings (insofar as the amendments are relevant to civil proceedings), that were instituted or partly heard before the commencement of the amendments. Note. Division 1B of Part 3.10 of Chapter 3 of the Evidence Act 1995 applies the definition of sexual assault offence in section 295 to certain civil proceedings.

(2) Subclause (1) does not affect the admissibility of any evidence admitted in proceedings before the commencement of those amendments or otherwise affect the validity of anything done, or omitted to be done, before that commencement.

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CRIMINAL PROCEDURE ACT 1986

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(3) In particular, the application, as a result of an amendment referred to in subclause (1), of section 91(8) or 93 to proceedings to which it did not apply before the commencement of Schedule 1[1] to the amending Act does not affect the validity of any direction given under section 91 before that commencement. However if, as a result of an amendment referred to in subclause (1), section 91(8) or 93 applies in respect of a person directed to attend committal proceedings, and the person has not yet attended, the Magistrate must, on application by the prosecutor, revoke the direction. (4) The amendments made to Division 3 of Part 5 of Chapter 6 by the amending Act extend to proceedings for a new trial ordered before the commencement of the amendments, including new trial proceedings that have been instituted or partly heard. Improper questions 42 (1) Section 275A, as inserted by the amending Act, extends to proceedings instituted or partly heard before the commencement of that section. (2) However, that section does not affect the admissibility of any evidence admitted in any proceedings before that commencement or otherwise affect the validity of anything done, or omitted to be done, before that commencement. Sensitive evidence 43 Part 2A of Chapter 6, as inserted by the amending Act, extends to a criminal investigation instituted, or criminal proceedings instituted or partly heard, before the commencement of that Part. Evidence of complainant to be given in camera 44 (1) New section 291, and sections 291A, 291B and 291C as inserted by the amending Act, extend to proceedings instituted or partly heard before the commencement of new section 291, subject to this clause. (2) The replacement of former section 291 by the amending Act does not affect the validity of any direction made under that section before the replacement of that section that requires the proceedings to be held partly or entirely in camera. (3) However, unless the court has already directed under former section 291 that the evidence of the complainant be given in camera, new section 291 applies in respect of any evidence given by the complainant after the commencement of new section 291. That is, such evidence must be given in camera unless the court otherwise directs under new section 291. (4) In this clause: former section 291 means section 291, as in force before its replacement by the amending Act. new section 291 means section 291, as inserted by the amending Act. Other amendments relating to giving of evidence by complainant 45 The amendments made by the amending Act to section 294B and section 294C, as inserted by the amending Act, extend to proceedings instituted or partly heard before the commencement of those amendments.

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PART 9 — PROVISIONS CONSEQUENT ON ENACTMENT OF CRIMINAL PROCEDURE AMENDMENT (PROSECUTIONS) ACT 2005 [Pt 9 insrt Act 75 of 2005 s 3 and Sch 1[3], opn 21 Sep 2005]

Definitions 46 In this Part: applicable signing provision means section 126 or any corresponding provisions of this Act previously in force that applied to the signing of indictments at the time concerned. introduction day means the day on which the Bill for the Criminal Procedure Amendment (Prosecutions) Act 2005 was first introduced into Parliament. relevant period means the period commencing on 13 July 1987 and ending immediately before the introduction day. Validation of certain indictments 47 (1) This clause applies to an indictment signed by a legal practitioner during the relevant period that purports to be signed for and on behalf of the Director of Public Prosecutions in circumstances where: (a) the legal practitioner was instructed to prosecute the criminal proceedings to which the indictment related on behalf of the Director of Public Prosecutions, and (b) the legal practitioner was not authorised by or under the applicable signing provision to sign the indictment for and on behalf of the Director of Public Prosecutions. (2) Any indictment to which this clause applies that, but for this subclause, would have been invalid only because it had not been signed by a person authorised to sign it under the applicable signing provision, is taken at the time it was signed and at all relevant times after it was signed to have been a valid indictment. (3) Without limiting subclause (2), any criminal proceedings (including any conviction or acquittal of the defendant or sentence imposed on the defendant) that would otherwise have been invalid or a nullity only because the proceedings related to an indictment validated by subclause (2) are taken to be, and always to have been, valid. (4) However, nothing in this clause affects the validity of a particular indictment to which this clause applies or criminal proceedings relating to such an indictment if the indictment or proceedings (or both) were held to be invalid or a nullity before the introduction day in a judgment, order or other decision of a court. PART 10 — PROVISIONS CONSEQUENT ON ENACTMENT OF CRIMINAL PROCEDURE AMENDMENT (SEXUAL OFFENCE CASE MANAGEMENT) ACT 2005 [Pt 10 insrt Act 102 of 2005 s 3 and Sch 2[3], opn 1 Dec 2005]

Application of section 130A 48 (1) Section 130A, as inserted by the amending Act, applies only to pre-trial orders made after the commencement of that section (irrespective of when the relevant sexual offence proceedings commenced).

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CRIMINAL PROCEDURE ACT 1986

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(2) In this clause, amending Act means the Criminal Procedure Amendment (Sexual Offence Case Management) Act 2005. PART 11 — PROVISIONS CONSEQUENT ON ENACTMENT OF COURTS LEGISLATION AMENDMENT ACT 2006 [Pt 11 insrt Act 23 of 2006 s 3 and Sch 1, opn 13 July 2006]

Definition 49 In this Part: amending Act means the Courts Legislation Amendment Act 2006. Amendments 50 (1) An amendment made to this Act by the amending Act does not extend to proceedings instituted before the commencement of that amendment. (2) Such proceedings may be dealt with as if the amendment had not commenced. PART 12 — PROVISIONS CONSEQUENT ON ENACTMENT OF CRIMINAL PROCEDURE AMENDMENT (SEXUAL AND OTHER OFFENCES) ACT 2006 [Pt 12 insrt Act 88 of 2006 s 3 and Sch 1[12], opn 1 Jan 2007]

Amendments 51 (1) The amendments made by the Criminal Procedure Amendment (Sexual and Other Offences) Act 2006 do not extend to any proceedings commenced before the commencement of the amendments and any such proceedings may continue as if that Act had not been enacted. (2) This clause does not apply to the amendments inserted by Schedule 1[10] to the Criminal Procedure Amendment (Sexual and Other Offences) Act 2006. PART 13 — PROVISIONS CONSEQUENT ON ENACTMENT OF CRIMES AND COURTS LEGISLATION AMENDMENT ACT 2006 [Pt 13 insrt Act 107 of 2006 s 3 and Sch 1, opn 29 Nov 2006]

Changes to limitation period 52 Section 179(3), as inserted by the Crimes and Courts Legislation Amendment Act 2006, extends to a summary offence that relates to the death of a person before the commencement of that subsection, but only if the period for commencement of proceedings in relation to the offence under section 179(1) has not expired on the commencement of section 179(3). Existing warrants 53 Section 237(1A)–(1C), as inserted by the Crimes and Courts Legislation Amendment Act 2006, does not apply to a warrant issued before the commencement of those provisions and any such warrant expires at the end of 20 years from the date of issue. [cl 53 am Act 107 of 2008 s 3 and Sch 7, opn 18 Dec 2009]

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ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

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PART 14 — PROVISIONS CONSEQUENT ON ENACTMENT OF CRIMINAL PROCEDURE AMENDMENT (VULNERABLE PERSONS) ACT 2007 [Pt 14 insrt Act 6 of 2007 s 3 and Sch 1[15], opn 12 Oct 2007]

Definition 54 In this Part: amending Act means the Criminal Procedure Amendment (Vulnerable Persons) Act 2007. Amendments 55 The amendments made to this Act by the amending Act do not extend to any proceedings commenced before the commencement of the amendments and any such proceedings are to be dealt with as if the amending Act had not been enacted. Effect of repeal of Evidence (Children) Act 1997 56 Any proceedings to which the Evidence (Children) Act 1997 applied that were pending immediately before the repeal of that Act by the amending Act are to continue to be dealt with as if that Act had not been repealed. PART 15 — PROVISIONS CONSEQUENT ON ENACTMENT OF CRIMINAL PROCEDURE AMENDMENT (LOCAL COURT PROCESS REFORMS) ACT 2007 [Pt 15 insrt Act 34 of 2007 s 3 and Sch 1[4], opn 14 Nov 2007]

Pending proceedings 57 The amendment made to section 265 by the Criminal Procedure Amendment (Local Court Process Reforms) Act 2007 does not extend to proceedings commenced before the commencement of the amendment and such proceedings may continue as if that amendment had not been enacted. PART 16 — PROVISIONS CONSEQUENT ON ENACTMENT OF EVIDENCE AMENDMENT ACT 2007 [Pt 16 insrt Act 46 of 2007 s 4 and Sch 2, opn 1 Jan 2009]

Improper questions and certain warnings 58 (1) An amendment made to section 275A or 294 by the Evidence Amendment Act 2007 does not apply in relation to any proceeding the hearing of which began before the commencement of the amendment. (2) Sections 275A and 294, as in force immediately before the commencement of the amendment, continue to apply to proceedings the hearing of which began before that amendment. PART 17 — PROVISIONS CONSEQUENT ON ENACTMENT OF CRIMINAL LEGISLATION AMENDMENT ACT 2007 [Pt 17 am Act 57 of 2007 s 3 and Sch 1[16], opn 7 Dec 2007]

Changes to pre-trial disclosure requirements 59 (1) The amendments made to Division 3 of Part 3 of Chapter 3 by the Criminal Legislation Amendment Act 2007 do not apply in respect of any pre-trial disclosure that is carried out pursuant to an order made by the court under section 136 before the commencement of the amendments.

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CRIMINAL PROCEDURE ACT 1986

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(2) The amendments made to sections 150 and 151 by the Criminal Legislation Amendment Act 2007 do not apply in respect of a trial that was listed for hearing before the commencement of the amendments. Withdrawal of matter by prosecutor 60 The amendments made to sections 205 and 208 by the Criminal Legislation Amendment Act 2007 apply only to the dismissal of a matter on or after the commencement of the amendments. PART 18 — PROVISIONS CONSEQUENT ON ENACTMENT OF COURTS AND CRIMES LEGISLATION FURTHER AMENDMENT ACT 2008 [Pt 18 insrt Act 107 of 2008 s 3 and Sch 7, opn 8 Dec 2008]

Proceedings for offences 61 Section 170, as amended by Schedule 7 to the Courts and Crimes Legislation Further Amendment Act 2008, does not apply to proceedings commenced before the commencement of that Schedule. PART 19 — PROVISIONS CONSEQUENT ON ENACTMENT OF CRIMINAL PROCEDURE AMENDMENT (CASE MANAGEMENT) ACT 2009 [Pt 19 insrt Act 112 of 2009 Sch 1, opn 1 Feb 2010]

Section 130A 62 The substitution of section 130A by the Criminal Procedure Amendment (Case Management) Act 2009 applies only in respect of proceedings in which the indictment was presented or filed on or after that substitution. Case management provisions 63 (1) Division 3 of Part 3 of Chapter 3, as substituted by the Criminal Procedure Amendment (Case Management) Act 2009, applies only in respect of proceedings in which the indictment was presented or filed on or after that substitution. (2) Division 3 of Part 3 of Chapter 3, as in force before its substitution by the Criminal Procedure Amendment (Case Management) Act 2009, continues to apply in respect of proceedings in which the indictment was presented or filed before that substitution. PART 20 — PROVISIONS CONSEQUENT ON ENACTMENT OF CRIMES AMENDMENT (CHILD PORNOGRAPHY AND ABUSE MATERIAL) ACT 2010 [Pt 20 insrt Act 9 of 2010 Sch 2, opn 28 Apr 2010]

Use of random sample evidence 64 (1) Part 4A of Chapter 6, as inserted by the Crimes Amendment (Child Pornography and Abuse Material) Act 2010, extends to proceedings instituted or partly heard before the commencement of that Part, which were not finally disposed of before that commencement.

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(2) Accordingly, that Part extends to offences under Division 15A of Part 3 of the Crimes Act 1900 alleged to have been committed before the commencement of Part 4A of Chapter 6. References to child abuse material 65 A reference in this Act to child abuse material includes a reference to child pornography within the meaning of section 91H of the Crimes Act 1900 (as in force before that section was replaced by the Crimes Amendment (Child Pornography and Abuse Material) Act 2010). Extension of protections afforded to complainants to other witnesses 66 (1) Section 294D, as inserted by the Crimes Amendment (Child Pornography and Abuse Material) Act 2010, extends to proceedings instituted or partly heard before the commencement of that section, which were not finally disposed of before that commencement. (2) However, section 294D does not affect the admissibility of any evidence given in proceedings before the commencement of that section or otherwise affect the validity of anything done, or omitted to be done, before that commencement. PART 21 — PROVISION CONSEQUENT ON ENACTMENT OF COURTS AND CRIMES LEGISLATION AMENDMENT ACT 2010 [Pt 21 insrt Act 88 of 2010 Sch 2, opn 1 Nov 2010]

Changes to the definition of “offence involving violence” 67 The amendment made by the Courts and Crimes Legislation Amendment Act 2010 to the definition of offence involving violence in section 94 applies in respect of committal proceedings that a Magistrate first starts to hear after the commencement of the amendment. PART 22 — PROVISIONS CONSEQUENT ON ENACTMENT OF SCHEDULE 12.1 TO COURTS AND CRIMES LEGISLATION FURTHER AMENDMENT ACT 2010 [Pt 22 insrt Act 135 of 2010 Sch 12.1, opn 7 Dec 2010]

Evidence in sexual offence proceedings 68 (1) The amendments made to this Act by Schedule 12.1[1]–[3] to the amending Act extend to proceedings commenced but not completed before the commencement of those amendments. (2) However, subclause (1) does not affect the admissibility of any evidence given in proceedings before the commencement of those amendments or otherwise affect the validity of anything done, or omitted to be done, before that commencement. (3) The amendments made to this Act by Schedule 12.1[4]–[7] to the amending Act do not extend to proceedings in a court if the proceedings have commenced in that court before the commencement of those amendments. (4) In this clause: amending Act means the Courts and Crimes Legislation Further Amendment Act 2010.

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CRIMINAL PROCEDURE ACT 1986

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PART 23 — PROVISIONS CONSEQUENT ON ENACTMENT OF SCHEDULE 12.2 TO COURTS AND CRIMES LEGISLATION FURTHER AMENDMENT ACT 2010 [Pt 23 insrt Act 135 of 2010 Sch 12.2, opn 7 Dec 2010]

Conduct of committal proceedings in the absence of the public 69 The amendment made to section 56 by the Courts and Crimes Legislation Further Amendment Act 2010 applies only to committal proceedings instituted on or after the commencement of the amendment. Changes to trial by judge alone provisions 70 Section 132, as in force before its substitution by the Courts and Crimes Legislation Further Amendment Act 2010, continues to apply to criminal proceedings that were commenced in the Supreme Court or District Court before that substitution. New penalties to apply prospectively 71 An amendment made to Schedule 1 by the Courts and Crimes Legislation Further Amendment Act 2010 applies only in respect of an offence that is committed, or alleged to have been committed, on or after the commencement of the amendment. PART 24 — PROVISION CONSEQUENT ON ENACTMENT OF CRIMINAL PROCEDURE AMENDMENT (SUMMARY PROCEEDINGS CASE MANAGEMENT) ACT 2012 [Pt 24 insrt Act 10 of 2012 Sch 1[6], opn 30 Apr 2012]

Case management provisions 72 A provision of Division 2A of Part 5 of Chapter 4 applies only in respect of proceedings that commence on or after the commencement of that provision. PART 25 — PROVISIONS CONSEQUENT ON ENACTMENT OF SCHEDULE 1.1 TO COURTS AND CRIMES LEGISLATION AMENDMENT ACT 2012 [Pt 25 insrt Act 11 of 2012 Sch 1.1[18], opn 21 Mar 2012]

Changes in respect of Schedule 1 offences 73 (1) An amendment made to section 267 or 268 by the Courts and Crimes Legislation Amendment Act 2012 applies only in respect of an offence that is committed, or alleged to have been committed, on or after the commencement of the amendment. (2) An amendment made to Schedule 1 by the Courts and Crimes Legislation Amendment Act 2012 extends to an offence that was committed, or alleged to have been committed, before the commencement of the amendment unless the accused person has been committed for trial or sentence before that commencement. Use of random sample evidence 74 (1) The amendments made to Part 4A of Chapter 6 by the Courts and Crimes Legislation Amendment Act 2012 extend to proceedings instituted or partly heard before the commencement of the amendments, which were not finally disposed of before that commencement.

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(2) Accordingly, that Part as so amended extends to offences under Division 15A of Part 3 of the Crimes Act 1900 alleged to have been committed before the commencement of the amendments to Part 4A of Chapter 6. PART 26 — PROVISION CONSEQUENT ON ENACTMENT OF CRIMES LEGISLATION AMENDMENT ACT 2012 [Pt 26 insrt Act 67 of 2012 Sch 2[8], opn 24 Sep 2012]

Sensitive evidence — audio recordings 75 The amendments made to Part 2A of Chapter 6 by the Crimes Legislation Amendment Act 2012 extend to a criminal investigation instituted, or criminal proceedings instituted or partly heard, before the commencement of Schedule 2 to that Act. PART 27 — PROVISIONS CONSEQUENT ON ENACTMENT OF CRIMINAL PROCEDURE AMENDMENT (COURT COSTS LEVY) ACT 2013 [Pt 27 insrt Act 8 of 2013 Sch 1[6], opn 13 May 2013]

Court costs levy applies to convictions in commenced proceedings 76 The amendments made by the Criminal Procedure Amendment (Court Costs Levy) Act 2013 extend to proceedings commenced but not finally determined immediately before the commencement of the amendments. Review of amendments 77 (1) The Minister is to ensure that the operation of the amendments made by the Criminal Procedure Amendment (Court Costs Levy) Act 2013 are reviewed to determine whether the policy objectives of those amendments remain valid and whether the relevant terms of this Act remain appropriate for securing those objectives. (2) The review is to be undertaken as soon as possible after the period of 12 months from the date of commencement of section 211A. PART 28 — PROVISIONS CONSEQUENT ON ENACTMENT OF CRIMINAL PROCEDURE AMENDMENT (MANDATORY PRE-TRIAL DEFENCE DISCLOSURE) ACT 2013 [Pt 28 insrt Act 10 of 2013 Sch 1[14], opn 1 Sep 2013]

Definition 78 In this Part, amending Act means the Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Act 2013. Case management provisions 79 (1) An amendment of Division 3 of Part 3 of Chapter 3 by the amending Act applies only in respect of proceedings in which the indictment was presented or filed on or after the commencement of the amendment. (2) Accordingly, a provision of Division 3 of Part 3 of Chapter 3, as in force before its amendment by the amending Act, continues to apply in respect of proceedings in which the indictment was presented or filed before the commencement of the amendment.

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CRIMINAL PROCEDURE ACT 1986

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Review of policy objectives of amending Act 80 (1) The Minister is to review the amendments made by the amending Act to determine: (a) whether they have been effective in reducing delays in proceedings on indictment, and (b) whether they have been effective in promoting the efficient management and conduct of trials, and (c) whether the interests of justice have been affected in relation to parties to proceedings on indictment, and (d) the cost impacts of the procedures. (2) The review is to be undertaken as soon as possible after the period of 2 years from the commencement of this clause. (3) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 2 years. PART 29 — PROVISIONS RELATING TO CHILD SEXUAL OFFENCE EVIDENCE PILOT SCHEME [Pt 29 insrt Act 46 of 2015 Sch 1, opn 5 Nov 2015]

DIVISION 1 — PRELIMINARY

Duration of pilot scheme 81 This Part operates from 31 March 2016 until 31 March 2019 (or such later date as is prescribed by the regulations). Definitions 82 In this Part: child means a child who is under 18 years of age. children’s champion or witness intermediary — see clause 88. Court means the District Court. pre-recorded evidence hearing — see clause 84. prescribed places means the following: (a) Newcastle, (b) Downing Centre, Sydney, (c) such other places as may be prescribed by the regulations. prescribed sexual offence — see section 3(1). recording means: (a) an audio recording, or (b) a video and audio recording. witness, in relation to proceedings to which this Part applies, means a child who is a complainant or prosecution witness in the proceedings. [def am Act 54 of 2016 Sch 1.7[6], opn 25 Oct 2016]

Application of Part 83 (1) This Part applies to proceedings before the Court sitting at a prescribed place in relation to a prescribed sexual offence whenever committed (or, if the proceedings

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relate to more than one offence, at least one of those offences is a prescribed sexual offence whenever committed) commenced by a court attendance notice filed or indictment presented: (a) on or after the commencement of this Part, or (b) before the commencement of this Part but only if the matter: (i) was not listed for trial before that commencement, or (ii) was listed for trial before that commencement, but was or is re-listed for trial after that commencement. [subcl (1) am Act 54 of 2016 Sch 1.7[7]–[8], opn 25 Oct 2016]

(2) This Part applies at any stage of such a proceeding, including an appeal or rehearing. (3) The amendments to subclause (1) by the Justice Portfolio Legislation (Miscellaneous Amendments) Act 2016 are taken to have commenced on the commencement of this Part. [subcl (3) insrt Act 54 of 2016 Sch 1.7[9], opn 25 Oct 2016]

DIVISION 2 — PRE-RECORDED EVIDENCE HEARINGS

Pre-recorded evidence hearing 84 (1) Subject to any contrary order of the Court, evidence of a witness in proceedings to which this Part applies who is less than 16 years of age when the accused person was committed for trial or sentence must be given at a hearing under clause 85 (a pre-recorded evidence hearing) in accordance with that clause. [subcl (1) am Act 40 of 2017 Sch 1.9[1], opn 14 Aug 2017]

(2) The Court may, on its own motion or on the application of a party to proceedings to which this Part applies, order that evidence of a witness in the proceedings who is 16 or more years of age when the accused person was committed for trial or sentence, be given at a pre-recorded evidence hearing in accordance with clause 85. [subcl (2) am Act 40 of 2017 Sch 1.9[2], opn 14 Aug 2017]

(3) The evidence is to be subsequently dealt with in accordance with clause 85. (4) The Court may make an order under subclause (1) or (2) only if it is satisfied that it is appropriate to do so in the interests of justice. (5) The wishes and circumstances of the witness and the availability of court and other facilities necessary for a pre-recorded evidence hearing to take place are the primary factors to be considered by the Court in determining whether to make an order under subclause (1). (6) Without limiting the other factors that the Court may take into account in determining whether to make an order under subclause (1), the Court may also take into consideration the following: (a) sufficiency of preparation time for both parties, (b) continuity and availability of counsel at both the pre-recorded evidence hearing and the trial, (c) any other relevant matter. (7) A witness to whom an order under subclause (2) applies is entitled to give evidence in accordance with the order even if the person becomes an adult. [subcl (7) am Act 29 of 2018 Sch 1 item 1.10[16], opn 21 June 2018; Act 10 of 2019 Sch 1 item 1.9[10, 11], opn 26 Sep 2019]

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CRIMINAL PROCEDURE ACT 1986

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Provisions relating to timing and other aspects of pre-recorded evidence hearing 85 (1) A pre-recorded evidence hearing is to be held as soon as practicable after the date listed for the accused person’s first appearance in the Court in the proceedings, but not before the prosecution has made the pre-trial disclosure required by section 141. (2) At the pre-recorded evidence hearing, the witness is entitled to give, and may give: (a) evidence in chief — as provided by section 306U, and (b) any other evidence — by closed-circuit television facilities or by means of any other technology prescribed by the regulations for the purposes of this clause. (3) The pre-recorded evidence hearing is to be held in the absence of the jury (if any). (4) Evidence given at the pre-recorded evidence hearing is to be recorded and subsequently viewed or heard (or both) by the Court in the presence of the jury (if any). (5) A witness who gives evidence at a pre-recorded evidence hearing must not, unless the witness otherwise chooses, be present in the Court, or be visible or audible to the Court by closed-circuit television or other technology while it is viewing or hearing a recording made as provided by section 306U or made at the hearing. (6) If evidence in chief is given under subclause (2)(a), section 306U(3) is to be read as if it required the witness to be available for cross-examination or re-examination under subclause (2)(b). Access to recording and transcripts 86 (1) The accused person, and his or her Australian legal practitioner (if any), are not entitled to be given possession of a recording made under this Part or a copy of it (despite anything to the contrary in this Act or the Evidence Act 1995). (2) However, the accused person and his or her Australian legal practitioner (if any) are to be given reasonable access to the recording to enable them to listen or view the recording, or both. (3) This may require access to be given on more than one occasion. (4) The regulations may make provision for the procedures to be followed in connection with the giving of access under this clause, and may provide for the giving of access to other persons assisting the accused person or his or her Australian legal practitioner. (5) The Court may order that a transcript be supplied to the Court or jury (if any), or both, of all or part of a recording made under this Part if it appears to the Court that a transcript would be likely to aid its or the jury’s comprehension of the evidence. Witness may give further evidence only with leave 87 (1) A witness in proceedings to which this Part applies whose evidence is pre-recorded at a pre-recorded evidence hearing cannot give further evidence without the leave of the Court. (2) An application for leave may be made by any party to the proceedings. (3) The Court must not give leave under subclause (1) unless it is satisfied: (a) that the witness or other party is seeking leave because of becoming aware of a matter of which the party could not reasonably have been aware at the time of the recording, or (b) it is otherwise in the interests of justice to give leave.

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(4) The further evidence is, so far as practicable, to be given by pre-recording at a hearing in the same way as the original pre-recorded evidence unless the Court otherwise directs. (5) Subclause (1) applies despite anything to the contrary in this Act or the Evidence Act 1995. DIVISION 3 — CHILDREN’S CHAMPIONS

Role of children’s champions 88 (1) A person appointed as a children’s champion (who may also be called a witness intermediary) for a witness is to communicate: (a) to the witness, questions put to the witness, and (b) to any person asking such a question, the answers given by the witness in replying to them, and to explain such questions or answers so far as necessary to enable them to be understood by the witness or person in question. [subcl (1) am Act 54 of 2016 Sch 1.7[10], opn 25 Oct 2016]

(2) A children’s champion for a witness is an officer of the Court and has a duty to impartially facilitate the communication of, and with, the witness so the witness can provide the witness’s best evidence. Appointment of children’s champions 89 (1) Victims Services in the Department of Justice (or another agency nominated by the Attorney General) is to establish a panel of persons who are suitable persons to be appointed as children’s champions. (2) A person must not be included on a panel unless the person has a tertiary qualification in Psychology, Social Work, Speech Pathology, Teaching or Occupational Therapy or such other qualifications, training, experience or skills as may be prescribed by the regulations (or both). [subcl (2) am Act 54 of 2016 Sch 1.7[11], opn 25 Oct 2016]

(3) For the purposes of proceedings to which this Part applies, the Court: (a) must (except as provided by subclause (4)) appoint a children’s champion for a witness who is less than 16 years of age, and (b) may, on its own motion or the application of a party to the proceedings, appoint a children’s champion for a witness who is 16 or more years of age if satisfied that the witness has difficulty communicating. (4) The Court is not required to appoint a children’s champion if it considers: (a) there is no person on the panel established under this clause available to meet the needs of the witness, or (b) it is otherwise not practical to appoint a children’s champion, or (c) it is unnecessary or inappropriate to appoint a children’s champion, or (d) it is not otherwise in the interests of justice to appoint a children’s champion. (5) A person must not be appointed as a children’s champion for a witness if the person: (a) is a relative, friend or acquaintance of the witness, or (b) has assisted the witness in a professional capacity (otherwise than as a children’s champion), or

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CRIMINAL PROCEDURE ACT 1986

[2-Sch 2]

(c) is a party or potential witness in the proceedings concerned. (6) The children’s champion appointed for a witness must, if requested by the Court, provide a written report, on the communication needs of the witness. (7) A copy of any such report is to be provided to the parties to the proceedings concerned before the witness gives evidence in the proceedings. Giving of evidence of witness in presence of children’s champion 90 (1) Subject to the rules of court and any practice direction, in a proceeding to which this Part applies, the evidence of a witness for whom a children’s champion has been appointed is to be given in the presence of the children’s champion. (2) The evidence is to be given in circumstances in which: (a) the Court and any Australian legal practitioner acting in the proceedings are able to see and hear the giving of the evidence and are able to communicate with the children’s champion, and (b) except in the case of evidence given under Part 6 of Chapter 6 or this Part by a recording, the jury are able to see and hear the giving of the evidence. (3) During any part of the proceedings to which this Part applies in which a children’s champion for a witness is present, the children’s champion is exempt from any requirement or direction under this Act that requires the proceedings or part of the proceedings to be heard in camera. (4) The provisions of the Evidence Act 1995 apply to and in respect of a person who acts as a children’s champion for a witness in the same way as they apply to and in respect of an interpreter under that Act. Note. Section 22 of the Evidence Act 1995 requires an interpreter to take an oath, or make an affirmation, before acting as an interpreter.

(5) The regulations may prescribe the form of oath or affirmation to be taken by the children’s champion for the purposes of subclause (4). DIVISION 4 — GENERAL

Warnings 91 In any proceedings to which this Part applies, in which evidence of a witness is given by a pre-recording or a children’s champion is used, the Court must: (a) inform the jury that it is standard procedure to give evidence in that way or to use a children’s champion in such proceedings, and (b) warn the jury not to draw any inference adverse to the accused person or to give the evidence any greater or lesser weight because evidence was given in that way or a children’s champion used. Relationship to other provisions of this Act 92 (1) Except as provided by this Part, the regulations or rules of court, this Part does not affect the application of this Act to proceedings for offences to which this Part applies. (2) In particular, and without limiting subclause (1), the provisions of this Part are in addition to, and do not affect the following: (a) the entitlement of a witness to give, and the giving of, evidence under Parts 5 and 6 of Chapter 6,

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(b) the rights of the accused person under those Parts, (c) any powers of the Court under those Parts. (3) To avoid doubt, section 20 applies to an indictment presented at a pre-recorded evidence hearing. [subcl (3) insrt Act 29 of 2018 Sch 1 item 1.10[17], opn 21 June 2018]

Regulations and rules of court 93 (1) The regulations may make provision for or with respect to the following: (a) the giving, taking, recording and access to evidence of witnesses under this Part, (b) children’s champions. (2) Rules of court may (subject to the regulations) be made for or with respect to any matter referred to in subclause (1). Practice directions 94 The Chief Judge may give such directions as the Chief Judge considers appropriate in connection with the following: (a) the taking and giving of evidence of witnesses under this Part, (b) children’s champions. PART 30 — PROVISIONS CONSEQUENT ON ENACTMENT OF CRIMINAL PROCEDURE AMENDMENT (SUMMARY PROCEEDINGS FOR INDICTABLE OFFENCES) ACT 2016 [Pt 30 insrt Act 44 of 2016 Sch 1[4], opn 11 Nov 2016]

Definitions 95 In this Part: amending Act means the Criminal Procedure Amendment (Summary Proceedings for Indictable Offences) Act 2016. former provisions means clauses 6, 7 and 8 of Table 1 of Schedule 1 to this Act as in force before the commencement of Schedule 1[2] to the amending Act. Application of amendments 96 (1) Each of the former provisions continues to apply in relation to proceedings for offences alleged to have been committed before the repeal of section 5 of the Crimes Act 1900. Note. Section 5 of the Crimes Act 1900 defined the term maliciously for the purposes of that Act and was repealed by the Crimes Amendment Act 2007.

(2) A reference in any of the former provisions to maliciously is taken to have always included a reference to intentionally or recklessly for offences alleged to have been committed on or after the repeal of section 5 of the Crimes Act 1900. (3) Clause 8A of Table 1 of Schedule 1 to this Act does not apply to proceedings for offences for which alleged offenders were charged before the commencement of that clause.

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CRIMINAL PROCEDURE ACT 1986

[2-Sch 2]

PART 31 — PROVISION CONSEQUENT ON ENACTMENT OF JUSTICE LEGISLATION AMENDMENT ACT 2018 [Pt 31 insrt Act 4 of 2018 Sch 1.5[10], opn 21 Mar 2018]

Application of amendments 97 An amendment made to Schedule 1 to this Act by the Justice Legislation Amendment Act 2018 does not apply to proceedings for an offence that commenced before the commencement of that amendment. PART 32 — PROVISIONS CONSEQUENT ON ENACTMENT OF JUSTICE LEGISLATION AMENDMENT (COMMITTALS AND GUILTY PLEAS) ACT 2017 [Pt 32 insrt Act 55 of 2017 Sch 1 [12], opn 30 Apr 2018]

Definitions 98 In this Part: amending Act means the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017. existing proceedings means committal proceedings for an offence commenced before the substitution of the former committal provisions by the amending Act. former committal provisions means Divisions 2–5 of Part 2 of Chapter 3 of this Act, as in force before their substitution by the amending Act. Existing proceedings 99 The former committal provisions continue to apply to existing proceedings as if those provisions had not been substituted by the amending Act. Previous offences 100 This Act, as amended by the amending Act, extends to proceedings for an offence committed before the substitution of the former committal provisions by the amending Act, if proceedings for the offence commence on or after the substitution of the former committal provisions. PART 33 — PROVISIONS CONSEQUENT ON ENACTMENT OF JUSTICE LEGISLATION AMENDMENT ACT (NO 2) 2018 [Pt 33 insrt Act 29 of 2018 Sch 1 item 1.10[18], opn 21 June 2018]

Definition 101 In this Part, amending Act means the Justice Legislation Amendment Act (No 2) 2018. Compellability of family members 102 Section 279, as amended by the amending Act, does not apply in relation to proceedings the hearing of which began before the section was amended. Section 279, as in force before it was amended, continues to apply in relation to such proceedings. Terrorism evidence 103 Part 2B of Chapter 6, as inserted by the amending Act, extends to a criminal investigation or criminal proceedings commenced but not finally determined before the commencement of that Part.

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Sexual assault communications privilege 104 Section 298A, as inserted by the amending Act, extends to proceedings commenced but not finally determined before the commencement of that section. PART 34 — PROVISIONS CONSEQUENT ON ENACTMENT OF CRIMINAL PROCEDURE AMENDMENT (PRE-TRIAL DISCLOSURE) ACT 2018 [Pt 34 insrt Act 47 of 2018 Sch 1[5], opn 2 Nov 2018]

Case management provisions 105 (1) An amendment made by the amending Act applies only in respect of proceedings in which the indictment was presented or filed after the commencement of the relevant amendment. (2) Accordingly, a provision of Division 3 of Part 3 of Chapter 3, as in force before its amendment by the amending Act, continues to apply in respect of proceedings in which the indictment was presented or filed before the commencement of the relevant amendment. (3) In this clause: amending Act means the Criminal Procedure Amendment (Pre-trial Disclosure) Act 2018. PART 35 — PROVISIONS CONSEQUENT ON ENACTMENT OF JUSTICE LEGISLATION AMENDMENT ACT (NO 3) 2018 [Pt 35 insrt Act 87 of 2018 Sch 1 item 1.15[12], opn 28 Nov 2018]

Definition 106 In this Part, amending Act means the Justice Legislation Amendment Act (No 3) 2018. Back up summary offences 107 The amendments made to section 179 by the amending Act do not apply in respect of a back up summary offence if the conviction for the related indictable offence is set aside by the District Court on appeal before the commencement of the amendments. Giving of evidence by vulnerable persons 108 (1) Part 6 of Chapter 6, as amended by the amending Act, extends to an interview carried out, or a recording made, by an interstate investigating official before the commencement of the amendments to that Part made by that Act. (2) An interstate investigating official means a person who is an investigating official because of the amendments to section 306M made by the amending Act. PART 36 — PART PROVISIONS CONSEQUENT ON ENACTMENT OF CRIMINAL LEGISLATION AMENDMENT (CHILD SEXUAL ABUSE) ACT 2018 [Pt 36 insrt Act 33 of 2018 Sch 4[18], opn 1 Dec 2018]

Indictment for indecent assault 109 Clause 14 of Schedule 3, as in force immediately before its substitution by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018, continues to apply in respect of an offence committed before that substitution.

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CRIMINAL PROCEDURE ACT 1986

[2-Sch 2.10]

PART 37 — PROVISION CONSEQUENT ON ENACTMENT OF CRIMES LEGISLATION AMENDMENT (VICTIMS) ACT 2018 [Pt 37 insrt Act 88 of 2018 Sch 5[31], opn 1 Dec 2018]

Application of amendments 110 An amendment made to this Act by the Crimes Legislation Amendment (Victims) Act 2018 applies only to proceedings commenced after the commencement of the amendment. COMMENTARY ON SCHEDULE 2 Children’s champions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-Sch 2.10]

[2-Sch 2.5] See District Court Criminal Practice Note 11 — Child Sexual Offence Evidence Pilot — Downing Centre (issued on 17 December 2015) at [28-10,150]. [2-Sch 2.10] Children’s champions Clauses 100A–100D of the Criminal Procedure Regulation 2010 at [2-5845]–[2-5860] contain provisions relating to children’s champions.

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SCHEDULE 3 — PROVISIONS RELATING TO OFFENCES (Section 316)

[Heading insrt Act 119 of 2001 s 3 and Sch 1[145], opn 7 July 2003]

PART 1 — CONTEMPT [Heading insrt Act 119 of 2001 s 3 and Sch 1[145], opn 7 July 2003]

Institution of contempt proceedings 1 (1) Proceedings for contempt of court may be instituted in the Supreme Court in the name of the “State of New South Wales” by: (a) the Attorney General, or (b) the Solicitor General or Crown Advocate acting under a delegation from the Attorney General. (2) Nothing in subclause (1) prevents contempt of court being dealt with in any other manner, and in particular nothing in that subclause prevents proceedings for contempt of court from being instituted in any other manner. [subcl (2) am Act 119 of 2001 s 3 and Sch 1[147], opn 7 July 2003] [cl 1 insrt Act 49 of 1998 s 3 and Sch 7, opn 3 Aug 1998; renum Act 94 of 1999 s 4 and Sch 2[28], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[146], opn 7 July 2003]

PART 2 — TREASON AND TREASON-RELATED OFFENCES [Heading insrt Act 119 of 2001 s 3 and Sch 1[148], opn 7 July 2003]

Definitions 2 In this Part: expressed by spoken word, in relation to treasonable sentiments, means expressed, uttered or declared by open and advised speaking, and in no other manner. treason-related offence means an offence arising under section 12 of the Crimes Act 1900. treason means any of the offences whose existence is saved by operation of section 11 of the Crimes Act 1900. treasonable sentiments means the compassings, imaginations, inventions, devices or intentions giving rise to a treason-related offence. [cl 2 insrt Act 94 of 1999 s 4 and Sch 2[35], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[149], opn 7 July 2003]

Time within which prosecution to be commenced and warrant issued for treason-related offence 3 (1) No person is to be prosecuted for treasonable sentiments expressed by spoken word unless: (a) information of those sentiments, and of the words by which they were so expressed, was given on oath to a Magistrate or an authorised officer within 6 days after the words were spoken, and

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(b) a warrant for the arrest of the person was issued within 10 days after the information was given. [subcl (1) am Act 119 of 2001 s 3 and Sch 1[150], [151], opn 7 July 2003]

(2) No person may be convicted in respect of treasonable sentiments expressed by spoken word unless: (a) the person confesses to those sentiments in open court, or (b) the words by which those sentiments were so expressed are proved by at least 2 witnesses. [cl 3 insrt Act 94 of 1999 s 4 and Sch 2[35], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[149], opn 7 July 2003] Editor’s Note. Clause 3 (previously s 129) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 13 of the Crimes Act 1900.

More than one act may be charged in indictment for treason-related offence 4 In any indictment for a treason-related offence, any number of matters, acts or deeds by which treasonable sentiments have been expressed, uttered, or declared may be charged against the accused person. [cl 4 insrt Act 94 of 1999 s 4 and Sch 2[35], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[149], opn 7 July 2003] Editor’s Note. Clause 4 (previously s 130) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 14 of the Crimes Act 1900.

Indictment for treason-related offence valid though facts may amount to treason 5 (1) An indictment for a treason-related offence is not bad, insufficient, void, erroneous or defective merely because the facts or matters alleged in the indictment amount in law to treason. (2) A person is not entitled to be acquitted of a treason-related offence merely because the facts or matters proved on the person’s trial amount in law to treason, but no person tried for a treason-related offence may subsequently be prosecuted on the same facts for treason. [cl 5 insrt Act 94 of 1999 s 4 and Sch 2[35], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[149], opn 7 July 2003] Editor’s Note. Clause 5 (previously s 131) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 15 of the Crimes Act 1900.

Procedure for treason to be as for murder 6 In all cases of treason, the person charged is to be arraigned and tried in the same manner, and according to the same course and order of trial, as if the person stood charged with murder. [cl 6 insrt Act 94 of 1999 s 4 and Sch 2[35], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[149], opn 7 July 2003] Editor’s Note. Clause 6 (previously s 132) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 16A of the Crimes Act 1900.

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CRIMINAL PROCEDURE ACT 1986

[2-cl 7.1]

PART 3 — STEALING OFFENCES [Heading insrt Act 119 of 2001 s 3 and Sch 1[152], opn 7 July 2003]

Stealing and receiving in one indictment 7 (1) In an indictment containing a charge of stealing property, a further charge may be added against the same person for unlawfully receiving the property, or any part of the property, knowing it to have been stolen. (2) The prosecutor is not to be put to election as to those charges. [subs (2) am Act 119 of 2001 s 3 and Sch 1[154], opn 7 July 2003] [cl 7 insrt Act 94 of 1999 s 4 and Sch 2[29], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[153], opn 7 July 2003] Editor’s Note. Clause 7 (previously s 74) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 384 of the Crimes Act 1900.

COMMENTARY ON CLAUSE 7 Scope of the section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-cl 7.1]

[2-cl 7.1] Scope of the section Counts for larceny and receiving are added in the same indictment where the evidence to be presented by the Crown is as consistent with the accused’s guilt of stealing as it is with his guilt of receiving: R v Seymour [1954] 1 All ER 1006; 1 WLR 678; (1954) 38 Cr App Rep 68. This is often where the Crown is relying upon the possession by the accused of recently stolen property. In such a case, the jury may bring in a special verdict under s 121 if it cannot say whether the accused is guilty of larceny or receiving. However, if the jury convicts on one charge it is not required to give a verdict on the other.

Separate receivers may be charged in one indictment 8 If property has been stolen, taken, embezzled, obtained, fraudulently applied or disposed of in such a manner as to amount to a serious indictable offence: (a) any number of receivers at different times of the property, and (b) any number of receivers of different parts of the property, may be charged with substantive serious indictable offences in the same indictment, and be tried together, even if the principal offender is not included in the indictment, not in custody or not amenable to justice. [cl 8 insrt Act 94 of 1999 s 4 and Sch 2[29], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[153], opn 7 July 2003] Editor’s Note. Clause 8 (previously s 75) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 385 of the Crimes Act 1900.

Allegations in indictment as to money or securities stolen 9 (1) In an indictment: (a) for stealing, taking, receiving, or embezzling any money or valuable security, or (b) for misappropriating, or fraudulently applying or disposing of, any money or valuable security, or (c) for obtaining any money or valuable security by any threat or false pretence, or partly by a false pretence and partly by a wilfully false promise,

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it is sufficient to describe the property as a “certain amount of money” or a “certain valuable security”, without specifying any particular kind of money or security. (2) Such a description may be sustained by proof of the stealing, taking, receiving, embezzling, appropriating, disposal or obtaining of any money or valuable security: (a) even if some part of its value was agreed to be, or was in fact, returned, and (b) even if, as regards money, the particular kind of money is not proved or provable. [cl 9 insrt Act 94 of 1999 s 4 and Sch 2[29], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[153], opn 7 July 2003] Editor’s Note. Clause 9 (previously s 76) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 386 of the Crimes Act 1900.

Indictment for stealing by tenants 10 An indictment against a person for stealing property let to be used by the person as a tenant or lodger in relation to premises is sufficient: (a) in the case of a chattel, if it is in the common form for larceny, and (b) in the case of a fixture, if it is in the same form as if the person were not a tenant or lodger, and in either case the property may be described as being owned by the owner of the premises or by the person letting the premises. [cl 10 insrt Act 94 of 1999 s 4 and Sch 2[29], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[153], opn 7 July 2003] Editor’s Note. Clause 10 (previously s 77) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 387 of the Crimes Act 1900.

Indictment for stealing deeds 11 (1) In an indictment for stealing, embezzling, destroying, cancelling, obliterating or concealing any document of title to land, or any part of land, it is sufficient: (a) to allege that the document contains evidence of the title to the land, and (b) to mention the person, or one of the persons, having an interest in the land or any part of the land. (2) In this section: document of title to land includes any deed, certificate of title, map, paper or parchment (whether written or printed, or partly written and partly printed) that is or contains evidence of the title, or part of the title, to any real estate or any interest in or out of real estate. [cl 11 insrt Act 94 of 1999 s 4 and Sch 2[29], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[153], opn 7 July 2003] Editor’s Note. Clause 11 (previously s 78) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 388 of the Crimes Act 1900.

Indictment for larceny by public servant, property to be described as property of the State 12 In an indictment for larceny or embezzlement as a public servant, the property may be described as the property of the State, from which it is taken to have been stolen.

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[cl 12 insrt Act 94 of 1999 s 4 and Sch 2[29], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[153], opn 7 July 2003] Editor’s Note. Clause 12 (previously s 79) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 389 of the Crimes Act 1900.

PART 4 — OTHER OFFENCES [Heading insrt Act 119 of 2001 s 3 and Sch 1[155], opn 7 July 2003]

General averment of intent to defraud or injure 13 (1) It is sufficient to allege that the accused person did an act with intent to defraud or injure without alleging an intent to defraud or injure any particular person. (2) In an indictment for doing an act fraudulently, or for a fraudulent purpose, it is not necessary to state the fraudulent intent or purpose. [cl 13 insrt Act 94 of 1999 s 4 and Sch 2[29], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[156], opn 7 July 2003] Editor’s Note. Clause 13 (previously s 70) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in ss 375 and 551 of the Crimes Act 1900.

Sexual touching 14 In an indictment for an offence of sexual touching, it is sufficient to state that the accused person (at a specified time and place) committed an offence of sexual touching in relation to the person alleged to have been the victim of the offence, without stating the mode of touching. [cl 14 insrt Act 94 of 1999 s 4 and Sch 2[29], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[156], opn 7 July 2003; subst Act 33 of 2018 Sch 4[19], opn 1 Dec 2018] Editor’s Note. Clause 14 (previously s 71) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 381 of the Crimes Act 1900.

Partners and partnership property 15 (1) In an indictment: (a) it is sufficient to describe partners, joint tenants, parceners or tenants in common by naming one of them and referring to the others as “another” or “others”, as the case requires, and (b) it is sufficient to state the ownership of property belonging to partners, joint tenants, parceners or tenants in common by naming one of them and alleging the property to belong to the person so named and “another” or “others”, as the case requires. (2) This section extends to all joint stock companies, executors, administrators and trustees. [cl 15 insrt Act 94 of 1999 s 4 and Sch 2[29], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[156], opn 7 July 2003] Editor’s Note. Clause 15 (previously s 72) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in ss 373 and 383 of the Crimes Act 1900.

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[2-cl 7.1]

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Where not necessary to allege particular ownership 16 In any indictment in respect of any of the following matters: (a) stealing, destroying or injuring any testamentary instrument, any document issued by a court or anything fixed or growing in any place set aside for public use, (b) any offence committed in or in relation to a place of divine worship, (c) any offence committed in relation to property in any public library or other public building, (d) anything mentioned in section 202 or 210 of the Crimes Act 1900, it is not necessary to allege that the thing in respect of which the offence was committed is the property of any person. [cl 16 insrt Act 94 of 1999 s 4 and Sch 2[29], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[156], opn 7 July 2003] Editor’s Note. Clause 16 (previously s 73) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in ss 382 and 550 of the Crimes Act 1900.

On trial for perjury: presumption of authority to administer oath 17 On a trial for perjury, the person before whom the perjury is alleged to have been committed is presumed to have had authority to administer the oath, or take the declaration, or affirmation, unless the contrary is shown. [cl 17 insrt Act 94 of 1999 s 4 and Sch 2[31], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[157], opn 7 July 2003] Editor’s Note. Clause 17 (previously s 122) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 423 of the Crimes Act 1900.

Description in indictment for engraving 18 In an indictment: (a) for engraving or making the whole or any part of any instrument or thing, or (b) for using or having possession of any plate or material on which the whole or any part of any instrument or thing is engraved or made, or (c) for having possession of paper on which the whole or any part of any instrument or thing is made or printed, it is sufficient to describe any such instrument or thing by any name or designation by which it is usually known, without setting out a copy of it or any part of it. [cl 18 insrt Act 94 of 1999 s 4 and Sch 2[29], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[158], opn 7 July 2003] Editor’s Note. Clause 18 (previously s 80) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 390 of the Crimes Act 1900.

Indictment for sale of counterfeit coin 19 In an indictment with respect to the unlawful buying, selling, paying, putting off or receiving of counterfeit coin, it is not necessary to allege at what rate, or for what price, the coin was bought or sold or offered to be bought, sold, paid, put off or received. [cl 19 insrt Act 94 of 1999 s 4 and Sch 2[29], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[158], opn 7 July 2003] Editor’s Note. Clause 19 (previously s 81) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 391 of the Crimes Act 1900.

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CRIMINAL PROCEDURE ACT 1986

[2-cl 7.1]

Indictment for perjury 20 (1) In an indictment for perjury, it is sufficient: (a) to allege that, on a certain day, at a certain place and before a named person, the accused person falsely swore, declared or affirmed the matter charged as false: (i) stating only the substance of the matter, and (ii) averring that the matter was falsely sworn, declared or affirmed on an occasion when the truth of the matter was material, and (b) to state generally that the matter charged as false was false in fact without negativing each or any aspect of the matter. (2) Consequently, it is not necessary: (a) to specify the occasion on which the matter charged as false was falsely sworn, declared or affirmed, or (b) to show how the matter charged as false was material, or (c) to specify the proceedings in or in relation to which the matter charged as false was falsely sworn, declared or affirmed, or (d) to specify the judicial or official character of the person administering the oath, or taking the declaration or affirmation, charged as false. [cl 20 insrt Act 94 of 1999 s 4 and Sch 2[29], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[158], opn 7 July 2003] Editor’s Note. Clause 20 (previously s 82) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 392 of the Crimes Act 1900.

Indictment for conspiracy 21 (1) This clause applies to an indictment for conspiracy. [subcl (1) am Act 119 of 2001 s 3 and Sch 1[159], opn 7 July 2003]

(2) It is not necessary to state any overt act of conspiracy. (3) Each accused person, whether 2 or more are included in the same indictment or not: (a) may be charged separately, in any count: (i) as having conspired with other persons, of whom it is sufficient to name one only, or (ii) as having conspired with one other named person only, and (b) may be convicted on any such count on proof of having unlawfully conspired, for the purpose alleged in the indictment, with any one of the named persons. (4) No more than 3 counts against the same accused person may be inserted in one indictment. (5) In any case before a plea is entered, the court may order such particulars to be given as the court considers appropriate. (6) If substantially different conspiracies are charged in the same indictment, the prosecutor may be put to election as to the one on which to proceed. [subcl (6) am Act 119 of 2001 s 3 and Sch 1[160], opn 7 July 2003] [cl 21 insrt Act 94 of 1999 s 4 and Sch 2[29], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[158], opn 7 July 2003] Editor’s Note. Clause 21 (previously s 83) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 393 of the Crimes Act 1900.

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Criminal Procedure

Sch 3

[2-cl 21.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

COMMENTARY ON CLAUSE 21 Conspiracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Proceedings for conspiracy charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . Admissibility of declarations of co-conspirators . . . . . . . . . . . . . . . . . Conspiracy to cheat and defraud . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sentence for conspiracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Sch 3

[2-cl 21.1] [2-cl 21.5] [2-cl 21.10] [2-cl 21.15] [2-cl 21.20]

[2-cl 21.1] Conspiracy As to the substantive law of conspiracy see under Criminal Responsibility at [6-200] to [6-220]. [2-cl 21.5] Proceedings for conspiracy charges The courts have criticised the laying of conspiracy charges where a substantive offence has been committed: R v Hoar (1981) 148 CLR 32; 37 ALR 357; R v Mok (1987) 27 A Crim R 438; R v Checconi (1988) 34 A Crim R 160; BC8801781 where it was said that such a charge introduces unnecessary complexities in relation to the admissibility of evidence, and directions to a jury. However, where there is a “ring of criminality” showing an ongoing organisation there is no need for the Crown to select particular substantive offences and proceed only on those: Shepherd v R (1988) 94 FLR 55; 37 A Crim R 303. Where charges of substantive offences do not adequately represent the overall criminality it may be appropriate to charge a conspiracy. R v Jones (1974) 59 Cr App R 120 at 124. It is for the Crown to select the charge: R v Weaver (1931) 45 CLR 321 at 334, and it would not be an abuse of process for the Crown to charge conspiracy where a substantive offence is available, unless there was a strong basis for believing the Crown was seeking to achieve an ulterior purpose: R v McCready (1985) 20 A Crim R 32. (a) The indictment There is no objection in law to the inclusion in an indictment of a count of conspiracy as well as counts for specific offences for the objects which the conspiracy sought to accomplish: R v Weaver (1931) 45 CLR 321; R v Challita (1988) 37 A Crim R 175 at 180. If the Crown is alleging that a person counselled or procured a conspiracy, the indictment should be drafted in that way and not simply allege that the accused was part of the conspiracy: R v Lanteri (1985) 4 NSWLR 359. An indictment can allege that the accused conspired “with an unknown person” as the section does not abrogate the common law: R v Harrison (1995) 79 A Crim R 149; (1995) 2 Crim LN 28 [378]. (b) Particulars The accused is entitled to, and should be furnished with, particulars of the overt acts relied upon to establish the conspiracy so that the issues at the trial are clearly defined: R v Partridge (1930) 30 SR (NSW) 410 approved in R v Weaver (1931) 45 CLR 321 at 333. The prosecution should also indicate the person with whom it is alleged that the accused conspired and the specific scope of the conspiracy alleged: Saffron (No 1) v R (1988) 17 NSWLR 395; 36 A Crim R 262 at NSWLR 448. If particulars have not been given, the Crown Prosecutor is obliged to indicate these matters in the opening address: R v Mok (1987) 27 A Crim R 438 at 441. The Crown is entitled to lead evidence outside the particulars given and no amendment of the particulars is necessary although it is advisable to do so: Saffron (No 1) v R, above. (c) Joint trials As to joint trials of conspirators see Domican v R (1989) 43 A Crim R 24 and generally [2-s 64.15]. It would be appropriate to direct separate trials where the evidence admissible against one accused is significantly different from the evidence admissible against another accused: R v Darby (1982) 148 CLR 668; 40 ALR 594; 56 ALJR 688 at CLR 692. (d) Crown case The Crown should not be allowed to widen the scope of the conspiracy charged in the indictment during the course of the trial: R v Wong (1988) 37 A Crim R 385; R v Mok, above. The jury are not entitled to convict the accused on some other conspiracy than that alleged: Gerakiteys v R (1984) 153 CLR 317, where evidence disclosed numerous conspiracies but not the one charged in the indictment, in that there was no common agreement between all the

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CRIMINAL PROCEDURE ACT 1986

[2-cl 21.20]

defendants. However, there is no miscarriage where the evidence proves some other conspiracy as well as that alleged in the indictment: R v Greenfield (1973) 57 Cr App R 849; [1973] 1 WLR 1151. (e) Summing up The trial judge should clearly indicate in the summing up the evidence relied upon by the Crown to prove the conspiracy against each of the accused which the jury should consider when determining the case against each of the accused separately: R v Checconi (1988) 34 A Crim R 160; BC8801781; R v Towle (1954) 72 WN (NSW) 338. A person who is involved in a conspiracy merely for the purpose of obtaining evidence of the conspiracy is not an accomplice and no warning need be given to a jury regarding that evidence: R v Forgione [1969] SASR 248; R v Trudgeon (1988) 39 A Crim R 252 at 262. (f) Acquittal of co-conspirator The fact that a co-conspirator is acquitted does not mean that another co-conspirator may not be convicted, unless the two verdicts would be inconsistent in all the circumstances of the case: R v Darby (1982) 148 CLR 668; 40 ALR 594; 56 ALJR 688, but where there was no effective difference between the evidence against two accused it would be appropriate for a trial judge to tell the jury that they should either acquit both or convict both accused. [2-cl 21.10] Admissibility of declarations of co-conspirators As to the admissibility of statements made by co-conspirators in furtherance of the conspiracy see s 87(1)(c) of the Evidence Act 1995 and the annotations at [3-s 87.1]. [2-cl 21.15] Conspiracy to cheat and defraud “A conspiracy to defraud may be made out on proof of an agreement by fraudulent means to inflict economic loss upon an individual or deprive him of an advantage: Scott v Metropolitan Police Cmr [1975] AC 819 at 839, 841. A conspiracy to defraud may also be made out on proof of an agreement by fraudulent means to cause a public official to act contrary to his public duty, even though no question of economic loss is involved: Scott at 841, Withers v DPP [1974] 3 WLR 751 at 860, 862, 877. Fraudulent means is made out by proof of dishonesty in any form: Scott at 839, 841. Proof either that deceit was practiced on the victim or that a civil wrong was done to him is sufficient but not necessary to prove dishonesty: Scott at 836, 841, Welham v DPP [1961] AC 103 at 126”: R v Horsington and Bortolus [1983] 2 NSWLR 72 at 75. Every kind of description of fraudulent statement, conduct or trick by which a person may induce another to part with property for less than its value or give more than its worth for the property is within the concept of fraud for the purposes of this offence: R v Weaver (1931) 45 CLR 321. [2-cl 21.20] Sentence for conspiracy In general, the offence being a common law misdemeanour, the penalty is at large although it is normally not proper to impose a penalty greater than that prescribed for a similar substantive offence: Verrier v DPP [1967] 2 AC 195. However, the sentence for the offence of conspiracy may be more than that provided in respect of the substantive offence: eg R v Gallagher (1989) 44 A Crim R 256. A more severe sentence may be justified where, for example, the offence involves the commission of a number of offences and the objects of the conspiracy are transacted: R v Hoar (1981) 148 CLR 32; 37 ALR 357; R v Ho (NSWCCA, 11 February 1988, unreported); Shepherd (No 2) v R (1988) 16 NSWLR 1; 37 A Crim R 466. In sentencing for the crime of conspiracy, the judge may take into account the overt acts of the conspiracy in that they indicate the degree of criminality involved in the “content, duration and reality of the conspiracy”: Savvas v R (1995) 183 CLR 1; 129 ALR 319. In R v Marie (1983) 13 A Crim R 440, the amount of heroin imported under the conspiracy was taken into account. The court may impose differing sentences on the participants in recognition of the differing degrees of participation of the parties in the offence: R v Oliver (1984) 57 ALR 543. Where there is one penalty at the commencement of a conspiracy and another one during the course of the conspiracy in a case where the conspiracy exists over a lengthy period of time, it

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Criminal Procedure

Sch 3

[2-cl 21.20]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Sch 3

would not be inappropriate for a sentencing judge to determine that the level of penalty had increased over the period of the conspiracy and put that consideration into effect in sentencing: R v White (NSWCCA, 25 July 1991, unreported); R v Annecchini (NSWCCA, Gleeson CJ, Allen and James JJ, 24 April 1996, unreported, BC9601668).

Procedures regarding obscene or blasphemous libel 22 (1) In any indictment against the publisher of an obscene or blasphemous libel, it is not necessary to set out the obscene or blasphemous passages. (2) It is sufficient to tender the book, newspaper or other document containing the alleged libel with the indictment, together with particulars showing precisely, by reference to pages, columns and lines, in what part of the book, newspaper or other document the alleged libel is to be found. (3) The particulars referred to in subclause (2) are taken to form part of the record of the proceedings. [subcl (3) am Act 119 of 2001 s 3 and Sch 1[161], opn 7 July 2003]

(4) All proceedings may be taken as though the passages complained of had been set out in the indictment. [cl 22 insrt Act 94 of 1999 s 4 and Sch 2[29], opn 1 Jan 2000; renum Act 119 of 2001 s 3 and Sch 1[158], opn 7 July 2003] Editor’s Note. Clause 22 (previously s 84) was inserted by s 4 and Sch 2 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The provision was previously contained in s 574A of the Crimes Act1900.

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Criminal Procedure

Criminal Procedure Regulation 2017 TABLE OF PROVISIONS Regulation

Title

Paragraph

PART 1 — PRELIMINARY 1 2 3

Name of Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-5000] [2-5005] [2-5010]

PART 2 — LISTING OF CRIMINAL PROCEEDINGS 4 5 6 7 8 9

Information for Criminal Listing Director . . . . . . . . . . . . . . . Notice of appearance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Transcript . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Notice of readiness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application to stay indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . Notice of listing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-5040] [2-5045] [2-5050] [2-5055] [2-5060] [2-5065]

PART 2A — COMMITTAL PROCEEDINGS DIVISION 1 — COMMITTAL PROCESS

9A 9B 9C 9D 9E 9F 9G

Oral explanation of committal process . . . . . . . . . . . . . . . . . . . Written explanation of committal process . . . . . . . . . . . . . . . . Prosecutors who may exercise charge certificate and case conference functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Charge certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Availability of accused persons to give instructions for purposes of case conference . . . . . . . . . . . . . . . . . . . . . . . . . . . Attendance of accused persons at case conferences . . . . . . Case conference certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-5067] [2-5070] [2-5073] [2-5075] [2-5078] [2-5080] [2-5082]

DIVISION 2 — WITNESS STATEMENTS IN COMMITTAL PROCEEDINGS

9H 9I 9J 9K 9L

Application of Division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Endorsement of written statements . . . . . . . . . . . . . . . . . . . . . . Addresses, dates of birth and phone numbers not to be disclosed on written statements . . . . . . . . . . . . . . . . . . . . . . . Signing of written statements by maker or another person on the maker’s behalf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Presumptions about age and language . . . . . . . . . . . . . . . . . . .

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[2-5084] [2-5086] [2-5088] [2-5090] [2-5092]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Regulation

9M

Title

Paragraph

Presumptions about signatures on written statements . . . .

[2-5094]

PART 3 — COURT COSTS LEVY 10 11

Court costs levy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exemption from liability to pay levy . . . . . . . . . . . . . . . . . . . .

[2-5095] [2-5100]

PART 4 — FEES 12 13 14 15 16 17 18

Amounts payable in relation to court proceedings . . . . . . . Amounts payable in relation to Sheriff’s functions . . . . . . . Persons by and to whom fees are payable . . . . . . . . . . . . . . . When fees become due . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . General power to waive, postpone and remit fees . . . . . . . Postponement of fees for legally assisted persons . . . . . . . Court fees payable by certain NSW Government agencies or statutory bodies representing the Crown . . . . . . . . . . . .

[2-5105] [2-5110] [2-5115] [2-5120] [2-5150] [2-5155] [2-5160]

PART 5 — RECORDED INTERVIEWS WITH VULNERABLE PERSONS 19 20 21 22

Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Prosecuting authority notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Defence notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recorded interview to be made available within 7 days .

[2-5165] [2-5195] [2-5200] [2-5205]

PART 6 — EVIDENTIARY MATTERS 23 24 25 26

27 28 29 30

Notice — evidence of substantial mental impairment . . . . Offences for which briefs of evidence not required . . . . . . Short briefs of evidence required in certain circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . New trials of sexual assault proceedings — notice of intention to tender record of original evidence of complainant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Access to record of original evidence of complainant . . . Compellability of family members . . . . . . . . . . . . . . . . . . . . . . Depositions by persons dangerously ill . . . . . . . . . . . . . . . . . . Authorised classifiers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-5210] [2-5215] [2-5220]

[2-5225] [2-5230] [2-5265] [2-5270] [2-5275]

PART 7 — CIRCLE SENTENCING INTERVENTION PROGRAM DIVISION 1 — PRELIMINARY

31 32 33 34

Program declared to be intervention program . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Summary of process for participation in program . . . . . . .

442

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[2-5280] [2-5300] [2-5305] [2-5310]

Regulation

35 36 37 38

Title Paragraph DIVISION 2 — ASSESSMENT OF SUITABILITY TO PARTICIPATE

Notification of suitability assessment order . . . . . . . . . . . . . . Meeting of Aboriginal Community Justice Group . . . . . . . Role of Aboriginal Community Justice Group . . . . . . . . . . . Program Officer to assess if unable to convene meeting within reasonable period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-5330] [2-5335] [2-5340] [2-5345]

DIVISION 3 — THE CIRCLE SENTENCING INTERVENTION PROGRAM

39 40 41 42 43 44 45 46 47 48 49 50

Objectives of the program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Eligibility to participate in program . . . . . . . . . . . . . . . . . . . . . Measures that constitute the circle sentencing program . . Convening of circle sentencing group . . . . . . . . . . . . . . . . . . . Constitution of circle sentencing group . . . . . . . . . . . . . . . . . . Functions of circle sentencing groups . . . . . . . . . . . . . . . . . . . Exclusions of persons from circle sentencing groups . . . . Termination of circle sentencing group meeting . . . . . . . . . Victims to be heard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Procedure generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Records of meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Reconvening of the circle sentencing group . . . . . . . . . . . . .

[2-5350] [2-5355] [2-5360] [2-5365] [2-5370] [2-5375] [2-5380] [2-5385] [2-5405] [2-5410] [2-5415] [2-5420]

DIVISION 4 — ABORIGINAL COMMUNITY JUSTICE GROUPS

51 52 53 54

Minister to establish Group for each declared place . . . . . Appointment of members of Groups . . . . . . . . . . . . . . . . . . . . . Functions of Groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-5440] [2-5445] [2-5450] [2-5455]

DIVISION 5 — MISCELLANEOUS

55 56 57 58

Program Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Minister may issue guidelines . . . . . . . . . . . . . . . . . . . . . . . . . . . Evidence of statements generally inadmissible . . . . . . . . . . . Prohibition on disclosure of information . . . . . . . . . . . . . . . . .

[2-5485] [2-5490] [2-5495] [2-5500]

PART 8 — FORUM SENTENCING INTERVENTION PROGRAM [Repealed] PART 9 — TRAFFIC OFFENDER INTERVENTION PROGRAM DIVISION 1 — PRELIMINARY

96 97 98

Program declared to be intervention program . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Summary of process for participation in program . . . . . . .

[2-5805] [2-5810] [2-5830]

DIVISION 2 — DETERMINING ELIGIBILITY TO PARTICIPATE IN PROGRAM

99

Eligibility to participate in program . . . . . . . . . . . . . . . . . . . . .

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[2-5835]

Criminal Procedure

CRIMINAL PROCEDURE REGULATION 2017

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Regulation Title Paragraph DIVISION 3 — THE TRAFFIC OFFENDER INTERVENTION PROGRAM

100 101 102 103

Objective of the program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Measures that constitute the program . . . . . . . . . . . . . . . . . . . . Reports to Local Court on compliance . . . . . . . . . . . . . . . . . . Approved traffic course provider to make records . . . . . . .

[2-5840] [2-5870] [2-5875] [2-5880]

DIVISION 4 — APPROVED TRAFFIC COURSES

104 105

Secretary may approve courses for program . . . . . . . . . . . . . Approved traffic course to comply with guidelines . . . . . .

[2-5885] [2-5890]

DIVISION 5 — MISCELLANEOUS

106 107 108

Secretary may issue guidelines . . . . . . . . . . . . . . . . . . . . . . . . . . Evidence of statements generally inadmissible . . . . . . . . . . . Prohibition on disclosure of information . . . . . . . . . . . . . . . . .

[2-5895] [2-5900] [2-5905]

PART 10 — CHILD SEXUAL OFFENCE EVIDENCE PILOT SCHEME 108A 109 110 111 112

Extension of pilot scheme . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Qualifications for inclusion on panel of suitable children’s champions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Suspension or revocation of inclusion of children’s champions on panel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of oath or affirmation taken or made by children’s champions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-5907] [2-5910] [2-5915] [2-5920] [2-5925]

PART 11 — MISCELLANEOUS 113 114 115 116 117 118 119 119A

Public officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Certificate by Attorney General or Director of Public Prosecutions that no further proceedings to be taken . . Offences not within jurisdiction of District Court . . . . . . . . Issue of subpoenas in AVO proceedings . . . . . . . . . . . . . . . . . Election not to have indictable offence dealt with summarily . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Delegation of functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Savings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Transitional provision relating to committal proceedings procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2-5930] [2-5935] [2-5940] [2-5945] [2-5950] [2-5955] [2-5960] [2-5963]

SCHEDULE 1 — FORMS Form 1A — Charge certificate Form 1B — Case conference certificate Form 1 — Notice of intention to adduce evidence of substantial mental impairment . . . . . . . . . . . . . . . . . . . . . . . . .

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[2-5970]

Title

Form 2 — Reasons for excusing a family member from giving evidence for the prosecution in a domestic violence or child assault case Form 3 — Form of deposition . . . . . . . . . . . . . . . . . . . . . . . . . . Form 4 — Certificate of Attorney General or Director of Public Prosecutions Form 5 — Important information about your rights SCHEDULE 2 — FEES SCHEDULE 3 — NSW GOVERNMENT AGENCIES AND STATUTORY BODIES REQUIRED TO PAY COURT FEES SCHEDULE 4 — PENALTY NOTICE OFFENCES . . .

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Paragraph

[2-5980]

[2-6000]

Criminal Procedure

CRIMINAL PROCEDURE REGULATION 2017

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TABLE OF AMENDMENTS Criminal Procedure Regulation 2017 No 437, published on LW 25 August 2017, commenced 1 September 2017, as amended by: Amending Legislation

Notification

Date of Commencement

Statute Law (Miscellaneous Provisions) Act (No 2) 2017 No 63

23 November 2017

Sch 4.12: 14 January 2018

Criminal Procedure Amendment (Committals and Guilty Pleas) Regulation 2018 SI 171

LW 27 April 2018

30 April 2018 (cl 2)

Transport Administration Amendment (Sydney Metro) Act 2018 No 18

23 May 2018

Sch 2 item 2.3: 1 July 2018

Justice Legislation Amendment Act (No 2) 2018 No 29

21 June 2018

Sch 2 item 2.7: 21 June 2018 (s 2(1))

Criminal Procedure Amendment (Fees) Regulation 2018 SI 315

LW 29 June 2018

Sch 1: 1 July 2018

Criminal Procedure Amendment (Intervention Programs) Regulation 2018 SI 316

LW 29 June 2018

29 June 2018

Criminal Procedure Amendment (Penalty Notices for Drug Possession) Regulation 2019 SI 22

LW 25 January 2019

25 January 2019

Criminal Procedure Amendment (Child Sexual Offence Evidence Pilot Scheme) Regulation 2019 SI 44

LW 1 February 2019

1 February 2019

Criminal Procedure Amendment (Fees) Regulation 2019 SI 328

LW 11 July 2019

11 July 2019

Justice Legislation Amendment Act 2019 No 10

26 September 2019

Sch 1.10: 26 September 2019

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Criminal Procedure

Criminal Procedure Regulation 2017

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[2-5000] Name of Regulation 1

This Regulation is the Criminal Procedure Regulation 2017.

[2-5005] Commencement 2 This Regulation commences on 1 September 2017 and is required to be published on the NSW legislation website. Note. This Regulation replaces the Criminal Procedure Regulation 2010, which is repealed on 1 September 2017 by section 10(2) of the Subordinate Legislation Act 1989.

[2-5010] Definitions 3

(1) In this Regulation: community service order means a community service order under the Crimes (Sentencing Procedure) Act 1999. Criminal Listing Director has the same meaning that it has in Part 3 of Chapter 3 of the Act. Department means the Department of Justice. good behaviour bond means a good behaviour bond under the Crimes (Sentencing Procedure) Act 1999. Secretary means the Secretary of the Department. the Act means the Criminal Procedure Act 1986.

Note. The Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Regulation.

(2) In this Regulation, a reference to a Form is a reference to a Form set out in Schedule 1. (3) Notes included in this Regulation (except in Schedule 1) do not form part of this Regulation. PART 2 — LISTING OF CRIMINAL PROCEEDINGS

[2-5040] Information for Criminal Listing Director 4 (1) The Criminal Listing Director may direct any of the following persons to give to the Director any information to assist the Director in making arrangements for the listing of criminal proceedings that the Director reasonably requires: (a) a prosecuting authority, (b) an accused person or appellant, (c) an Australian legal practitioner acting for an accused person or appellant, (d) a registrar. (2) A person to whom a direction is given must comply with the direction without delay.

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Criminal Procedure

PART 1 — PRELIMINARY

[2-5040]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

reg 4

(3) The Criminal Listing Director must not give to a prosecuting authority any information furnished to the Director by an accused person or appellant (or by the Australian legal practitioner of an accused person or appellant) in response to a direction under this clause except with the consent of the accused person, appellant or Australian legal practitioner. (4) The Criminal Listing Director must not give to an accused person or appellant (or to any person acting in the interest of an accused person or appellant) any information furnished to the Director by a prosecuting authority in response to a direction under this clause except with the consent of the prosecuting authority.

[2-5045] Notice of appearance 5

(1) An Australian legal practitioner: (a) who acts for an accused person or appellant in any criminal proceedings, and (b) who has not filed a notice of appearance in the proceedings in the Local Court that led to those criminal proceedings, must file a notice of appearance, in the court in which the criminal proceedings are to be heard, as soon as practicable after accepting instructions to so act. (2) A notice of appearance must be in the form of a document signed by or on behalf of the Australian legal practitioner filing it containing: (a) the full name of the accused person or appellant for whom the Australian legal practitioner acts, and (b) the full name, address and telephone number of the Australian legal practitioner. (3) An Australian legal practitioner who ceases to act for an accused person or appellant in any criminal proceedings must file a notice of ceasing to act, in the court in which the proceedings are to be heard, as soon as practicable after ceasing to so act. (4) Subclause (3) does not apply if a notice of appearance for the accused person or appellant has already been filed by another Australian legal practitioner. (5) As soon as practicable after a notice under this clause is filed, the registrar with whom the notice is filed must give a copy of the notice to the Director of Public Prosecutions and to the Criminal Listing Director.

[2-5050] Transcript 6 (1) The Director of Public Prosecutions must notify the Criminal Listing Director and the relevant registrar of the Local Court: (a) if a written transcript of the proceedings in the Local Court that led to the committal for trial of an accused person is not received by the Director of Public Prosecutions within the prescribed time after the accused person was committed for trial, or (b) if a written transcript of the proceedings in the Local Court that led to an appeal is not received by the Director of Public Prosecutions within the prescribed time after the appellant lodged notice of the appeal under Part 3 of the Crimes (Appeal and Review) Act 2001. (2) For the purposes of this clause, the prescribed time is: (a) 2 weeks, in the case of an accused person under 21 years of age who is in custody for the offence the subject of the proceedings, or

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CRIMINAL PROCEDURE REGULATION 2017

[2-5065]

(b) 4 weeks, in any other case. (3) The Criminal Listing Director must take information received under this clause into account in fixing any date for the hearing or mention of the matter before the Supreme Court or the District Court.

[2-5055] Notice of readiness 7 (1) The Director of Public Prosecutions must, as soon as practicable after determining that criminal proceedings are ready to proceed on the part of the Crown, give the Criminal Listing Director a notice of readiness for the proceedings. (2) The notice must be in the form approved for the time being by the Criminal Listing Director and must be accompanied by a draft of the indictment proposed to be presented in the proceedings. (3) The Criminal Listing Director must, as soon as practicable after receiving the notice: (a) give a copy of the notice, and of the draft indictment that accompanies the notice, to the registrar of the relevant court, and (b) give a copy of the draft indictment to each accused person or the accused person’s Australian legal practitioner. (4) The Director of Public Prosecutions must, as soon as practicable after determining that the indictment to be presented in any criminal proceedings is to depart in any material particular from the draft indictment that accompanied the notice of readiness for the proceedings, give the Criminal Listing Director a draft of the indictment then proposed to be presented in the proceedings. (5) The later draft must contain a notice, in the form approved for the time being by the Criminal Listing Director, indicating the nature and extent of the departures from the earlier draft. (6) The Criminal Listing Director must, as soon as practicable after receiving a draft indictment under subclause (4), give a copy of the draft indictment to the registrar and to each accused person or the accused person’s Australian legal practitioner.

[2-5060] Application to stay indictment 8

(1) This clause applies to: (a) any application to the Supreme Court or District Court for an order staying or quashing an indictment, and (b) any demurrer to an indictment. (2) Unless the court otherwise orders, an application or demurrer to which this clause applies must not be listed for hearing unless it has been filed within the prescribed time after a copy of the draft indictment was given to the accused person or the accused person’s Australian legal practitioner under clause 7(3) or (6). (3) For the purposes of this clause, the prescribed time is: (a) 1 month, in the case of an accused person who is in custody for the offence to which the indictment relates, or (b) 3 months, in any other case.

[2-5065] Notice of listing 9 (1) The Criminal Listing Director must, as soon as practicable after fixing a date for the hearing or mention of any criminal proceedings, give notice of the listing to the registrar of the relevant court.

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Criminal Procedure

reg 9

[2-5065]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

reg 9

(2) The registrar must, as soon as practicable after receiving notice of the listing, cause written notice of the listing to be served, in accordance with the rules of court, on the Director of Public Prosecutions and each accused person or appellant in the proceedings. PART 2A — COMMITTAL PROCEEDINGS [Pt 2A insrt SI 171 of 2018 Sch 1[1], opn 30 Apr 2018]

DIVISION 1 — COMMITTAL PROCESS

[2-5067] Oral explanation of committal process 9A For the purposes of section 59(3) of the Act, the oral explanation of the committal process is to be in or to the effect of the following (as applicable to the accused person): Charge certificate The prosecutor has given you or your lawyer a charge certificate. The charge certificate shows all the offences that the prosecutor intends to proceed with if your case goes to trial in the District Court/Supreme Court [specify correct court]. Case conference (if accused has legal representation) [Include only if the accused person is represented by a legal practitioner] Your case will now be adjourned so that your lawyer and the prosecutor can discuss your case at a case conference. The case conference is to help you decide whether to plead guilty or not guilty to the charges against you and to discuss any offers that may be made. You must be available to give your lawyer instructions during the case conference and your lawyer will arrange this. After the case conference, a certificate will be prepared by the prosecutor and your lawyer as a record of the conference. What is in the case conference certificate is confidential. After the case conference you will come back before a Magistrate. What happens next (if accused has no legal representation) [Include only if the accused person is not represented by a legal practitioner] Your case will now be adjourned so that you can decide if you want to plead guilty or not guilty to the offences on the charge certificate. If you wish to contact the prosecutor about the offences listed in the charge certificate, you can do so in writing. You may wish to get legal representation or legal advice about your case while your case is adjourned. This may be available from Legal Aid NSW. After the adjournment you will come back before a Magistrate. Committal for trial or sentence The Magistrate will ask you whether you plead guilty or not guilty to each offence proceeding. If you plead guilty, the Magistrate will send your case to the District Court/Supreme Court [specify correct court] to decide your sentence. If you plead not guilty, the Magistrate will send your case to the District Court/Supreme Court [specify correct court] for trial. Statutory sentencing discount for guilty pleas

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CRIMINAL PROCEDURE REGULATION 2017

[2-5070]

[Include if the accused person is an offender to whom the discount scheme under Division 1A of Part 3 of the Crimes (Sentencing Procedure) Act 1999 applies] If you plead guilty to an indictable offence, you may get a discount on your sentence. The amount of the discount depends on when you plead guilty and you should seek legal advice about it. You will be given some written information with more details about the committal process and the sentencing discounts that may be available.

[2-5070] Written explanation of committal process 9B For the purposes of section 59(3) of the Act, the written explanation of the committal process is to be in or to the effect of the following (as applicable to the accused person): Purpose of committal proceedings This explanation is being given to you because you are facing criminal charges at a committal proceeding. The purposes of the committal proceeding are: (i) for the prosecutor to decide which criminal charges against you are proceeding, and (ii) for you to decide whether to plead guilty or not guilty to those offences. At the end of the committal proceeding your case will be sent to the District Court or Supreme Court for trial if you plead not guilty or to decide your sentence if you plead guilty. Charge certificate The prosecutor has given you or your lawyer a charge certificate. The charge certificate shows all the offences the prosecutor intends to proceed with if your case goes to trial in the District Court or Supreme Court. Case conference (if accused has legal representation) Your case will be adjourned so that your lawyer and the prosecutor can discuss your case at a case conference. Your lawyer will arrange the case conference. The case conference is to help you decide whether to plead guilty or not guilty to the charges against you and to discuss any offers that may be made. At the case conference other issues that relate to your case can also be discussed. You must be available to give your lawyer instructions during the case conference and your lawyer will arrange this. If the prosecutor and your lawyer agree, you may be present at the conference. After the case conference, a case conference certificate will be prepared and signed by the prosecutor and your lawyer. The certificate will show any offers made by you to plead guilty to an offence and whether the offers were accepted. The certificate will also show any offers made by the prosecutor to accept a guilty plea to another offence. It will also show any agreed facts (if a guilty plea offer is accepted). Your lawyer must explain the statutory sentencing scheme for guilty pleas to you if it applies to your case. You may also be asked to sign the certificate. What is in the case conference certificate is confidential. It is an offence to publish any information in the certificate. However, if you are found guilty of an offence the court that decides your sentence will be given the case conference certificate. What is said in the

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Criminal Procedure

reg 9B

[2-5070]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

reg 9B

certificate can affect whether you get a sentence discount. The court may use your certificate when deciding your sentence. You should ask your lawyer if you have any questions about this. After the case conference you will come back before a Magistrate. What happens next (if accused has no legal representation) Your case will now be adjourned so that you can seek legal advice and decide if you want to plead guilty or not guilty to the offences on the charge certificate. If you wish to contact the prosecutor about the offences listed in the charge certificate, you can do so in writing. You may wish to get legal representation or legal advice about your case while your case is adjourned. This may be available from Legal Aid NSW. After the adjournment you will come back before a Magistrate. Examination of prosecution witnesses At any time after you or your lawyer is given the charge certificate, you can ask a Magistrate to direct that one or more of the prosecution witnesses come to court to give evidence in the committal proceedings. The Magistrate will apply certain tests to determine whether to grant the request. If the Magistrate refuses, the Magistrate will give reasons for the refusal. The Magistrate must give the direction if the prosecutor agrees to your request. However, if the witness is the alleged victim of an offence involving violence, the Magistrate may give the direction only if the Magistrate believes there are special reasons why, in the interests of justice, the witness should attend. Some alleged victims of child sexual offences or other sexual offences cannot be asked to come to court to give evidence. Committal for trial or sentence A Magistrate will ask you whether you plead guilty or not guilty to each offence on the charge certificate. You can also plead guilty at any other time. If you plead guilty, the Magistrate will send your case to the District Court or Supreme Court to decide your sentence. This is called committal for sentence. If you plead not guilty, the Magistrate will send your case to the District Court or Supreme Court for trial. This is called committal for trial. Statutory sentencing discount for guilty pleas (if the discount scheme under Division 1A of Part 3 of the Crimes (Sentencing Procedure) Act 1999 applies) If you plead guilty to an indictable offence, you may get a discount on your sentence. The amount of discount depends on when you plead guilty. If you plead guilty before the end of the committal proceedings in the Local Court, that discount may be 25%. If you plead guilty after you are committed for trial and at least 14 days before the date your matter is first listed for trial, that discount may be 10%. This includes if you plead guilty in court or give the prosecutor a written offer to plead guilty. If you plead guilty after 14 days before the date your matter is first listed for trial, that discount may be 5%. The discount scheme does not apply to Commonwealth offences and serious children’s indictable offences, and you should ask your lawyer for advice or get legal advice about this.

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CRIMINAL PROCEDURE REGULATION 2017

[2-5080]

[2-5073] Prosecutors who may exercise charge certificate and case conference functions 9C For the purposes of section 65(d) of the Act, the following persons may exercise the functions of a prosecutor under Divisions 4 and 5 of Part 2 of Chapter 3 of the Act: (a) a person referred to in section 65(b) of the Act, in the case of a committal proceeding for a State offence, (b) a person appointed by the Commonwealth Director of Public Prosecutions to exercise any of the Director’s functions under Divisions 4 and 5 of Part 2 of Chapter 3 of the Act, (c) a legal representative of a person referred to in paragraph (a) or (b).

[2-5075] Charge certificates 9D For the purposes of section 66(1) of the Act, a charge certificate must be in Form 1A.

[2-5078] Availability of accused persons to give instructions for purposes of case conference 9E (1) An accused person is to be available to give instructions to the accused person’s legal representative during a case conference. (2) The legal representative of an accused person must, if appropriate to assist the accused person, ensure that a support person or an interpreter is available when the accused person is giving instructions to the accused person’s legal representative during a case conference. (3) The legal representative of an accused person, and any person in whose custody any such accused person is kept, has a duty to ensure, so far as is reasonably practicable, that the accused person is available to give instructions during a case conference. (4) An accused person who is not in custody is taken to be available to give instructions if the person is able to give instructions in person or, if that is not reasonably practicable or is not appropriate for any reason, by audio visual link or telephone. (5) An accused person who is in custody is taken to be available to give instructions if the person is able to give instructions in person or by audio visual link or, if that is not reasonably practicable, by telephone. (6) A failure by a person to comply with this clause does not affect the validity of anything done or omitted to be done in or for the purposes of the committal proceedings.

[2-5080] Attendance of accused persons at case conferences 9F (1) An accused person may attend part or all of the discussions between the prosecutor and the accused’s legal representative at a case conference in person, by audio visual link or by telephone, if the prosecutor and the accused person’s legal representative consent. (2) The legal representative of an accused person who so attends part or all of a case conference must, if appropriate to assist the accused person, ensure that a support person or an interpreter attends the case conference. (3) A failure by a person to comply with this clause does not affect the validity of anything done or omitted to be done in or for the purposes of the committal proceedings.

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Criminal Procedure

reg 9F

[2-5082]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

reg 9G

[2-5082] Case conference certificates 9G (1) For the purposes of section 75(1) of the Act, a case conference certificate must be in Form 1B. (2) Any matters set out in the form that are in addition to the matters specified in section 75(1) of the Act are prescribed for the purposes of section 75(1)(j) of the Act. DIVISION 2 — WITNESS STATEMENTS IN COMMITTAL PROCEEDINGS

[2-5084] Application of Division 9H This Division applies to a statement to which Part 3A of Chapter 6 of the Act applies.

[2-5086] Endorsement of written statements 9I (1) For the purposes of section 283B(3) of the Act, a written statement must be endorsed as follows: This statement made by me accurately sets out the evidence that I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I will be liable to prosecution if I have wilfully stated in it anything that I know to be false or do not believe to be true. (2) In the case of a person who is under the age of 18 years, or an adult who is apparently of appreciably below average intelligence, it is sufficient if the endorsement includes: (a) words to the effect that the statement is true, or (b) words to the effect that the statement contains no lies. (3) A written statement that is in a language other than English and has a document purporting to contain an English translation of the statement or part annexed to it in accordance with section 283B(5) of the Act must also have annexed to it a certificate by the translator stating his or her qualifications and certifying that the translation is a correct translation of the document.

[2-5088] Addresses, dates of birth and phone numbers not to be disclosed on written statements 9J (1) A copy of a written statement served on an accused person must not disclose the address, date of birth or telephone number of the person who made the statement or of any other living person, unless: (a) the address, date of birth or telephone number is a materially relevant part of the evidence, or (b) a Magistrate makes an order permitting the disclosure in the statement. (2) An application for an order permitting the disclosure may be made by the accused person or the prosecutor. (3) The Magistrate must not make the order unless satisfied that the disclosure is not likely to present a reasonably ascertainable risk to the welfare or protection of any person or that the interests of justice (including the accused person’s right to prepare properly for the hearing of the evidence for the prosecution) outweigh any such risk.

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CRIMINAL PROCEDURE REGULATION 2017

[2-5094]

(4) This clause does not prevent the disclosure of an address in a written statement if the statement does not identify it as a particular person’s address, or it could not reasonably be inferred from the statement that it is a particular person’s address. (5) An address, date of birth or telephone number that must not be disclosed may, without reference to the person who made the written statement, be deleted from the statement, or rendered illegible, before the statement is served on the accused person. (6) In this clause, address includes residential address, business address, email address and web-based address.

[2-5090] Signing of written statements by maker or another person on the maker’s behalf 9K (1) A written statement must be signed by the person who made the statement. (2) If the person is unable to sign the written statement, the statement may be signed by another person with the consent of and in the presence of the person who made the statement. (3) The other person must sign an endorsement on the statement to the effect that the person signed the statement on behalf of, with the consent of and in the presence of the person who made the statement. (4) A written statement must also be signed, as a witness, by a person who witnessed the signing of the statement by the person who made the statement or by another person signing on the maker’s behalf (if applicable).

[2-5092] Presumptions about age and language 9L (1) In any proceedings it is presumed, if there is no evidence to the contrary, that the age specified in a statement is in fact the age of the person who made the statement at the time the statement was made. (2) In any proceedings it is presumed, if there is no evidence to the contrary, that the language in which a written statement or an endorsement is written is a language of which the person who made the statement or endorsement has a reasonable understanding. (3) In any proceedings it is presumed, if there is no evidence to the contrary, that the English translation of a statement or part statement is an accurate translation of the statement or part.

[2-5094] Presumptions about signatures on written statements 9M (1) In any proceedings it is presumed, if there is no evidence to the contrary, that a signature on a written statement purporting or appearing to be the signature of the person who made it, or a person who signed on behalf of the maker, or a witness to the signing of the statement, is the signature of the person concerned. (2) In any proceedings it is presumed, if there is no evidence to the contrary, that a statement purporting or appearing to be signed by another person on behalf of the person who made the statement in accordance with this Division has been so signed.

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Criminal Procedure

reg 9M

[2-5095]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

reg 10

PART 3 — COURT COSTS LEVY

[2-5095] Court costs levy 10 For the purposes of section 211A(1) of the Act, the amount of the court costs levy is $85.

[2-5100] Exemption from liability to pay levy 11 For the purposes of section 211A(2)(e) of the Act, a conviction recorded before 13 May 2013 is exempt from the liability to pay the court costs levy. Note. In this clause, a reference to a conviction includes a reference to an order made under section 10 of the Crimes (Sentencing Procedure) Act 1999 (see section 211A(8) of the Criminal Procedure Act 1986).

PART 4 — FEES

[2-5105] Amounts payable in relation to court proceedings 12 (1) The fee that a person must pay to the Supreme Court, the Land and Environment Court, the District Court or the Local Court in respect of a matter referred to in Part 1 of Schedule 2 is the fee specified in that Part in respect of that matter. (2) Despite subclause (1), no fee is payable for a copy of the print out of any record of committal proceedings conducted in the Local Court by means of an ECM system within the meaning of Schedule 1 to the Electronic Transactions Act 2000.

[2-5110] Amounts payable in relation to Sheriff’s functions 13 The fee that a person must pay to the Sheriff in relation to a matter referred to in Part 2 of Schedule 2 is the fee specified in that Part in respect of that matter.

[2-5115] Persons by and to whom fees are payable 14 (1) Any fee imposed by Schedule 2 is payable, by the person at whose request the relevant document is filed or service rendered: (a) in the case of a fee imposed by Part 1 of Schedule 2, to the registrar of the court concerned, and (b) in the case of a fee imposed by Part 2 of Schedule 2, to the Sheriff or the registrar of the court concerned. (2) If a document is filed or service rendered at the request of a person acting as agent for another person, each of those persons is jointly and severally liable for payment of the fee.

[2-5120] When fees become due 15 (1) A fee imposed by Schedule 2 becomes due when the document concerned is filed or the service concerned is rendered. (2) Despite subclause (1), a registrar who is requested to file a document or render a service may require any fee for the document or service to be paid before the document is filed or the service rendered.

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CRIMINAL PROCEDURE REGULATION 2017

[2-5165]

[2-5150] General power to waive, postpone and remit fees 16 (1) The registrar of a court may, by order in writing, direct that the whole or any part of any fee payable to the court be waived, postponed or remitted, subject to any conditions that the registrar thinks fit to impose. (2) The Sheriff may, by order in writing, direct that the whole or any part of any fee payable to the Sheriff be waived, postponed or remitted, subject to any conditions that the Sheriff thinks fit to impose. (3) The powers conferred by this clause are to be exercised in accordance with any guidelines that may from time to time be published by the Attorney General.

[2-5155] Postponement of fees for legally assisted persons 17 (1) The taking of any fee in respect of the business of the court in relation to proceedings involving a party who is a legally assisted person is, if the fee is payable by the party, to be postponed until judgment has been given in the proceedings. (2) The fee is not to be taken at all, or if taken must be remitted, if: (a) judgment in the proceedings is against the legally assisted person, or (b) judgment is in favour of the legally assisted person, but costs are not awarded in his or her favour. (3) In this clause: legally assisted person means a person who is receiving legal assistance through a community legal service within the meaning of the Legal Profession Uniform Law (NSW).

[2-5160] Court fees payable by certain NSW Government agencies or statutory bodies representing the Crown 18 For the purposes of section 4A(2A) of the Act, the NSW Government agencies and statutory bodies representing the Crown set out in Schedule 3 are prescribed. PART 5 — RECORDED INTERVIEWS WITH VULNERABLE PERSONS

[2-5165] Definitions 19

In this Part:

defence notice means a notice given by an accused person or his or her Australian legal practitioner under clause 21. prosecuting authority, in relation to a prosecution, means the Director of Public Prosecutions, or a police officer, who is responsible for the conduct of the prosecution. prosecuting authority notice means a notice given by a prosecuting authority under clause 20. recorded interview means a recording made by an investigating official of an interview during which a vulnerable person is questioned by an investigating official in connection with the investigation of the commission or possible commission of an offence by the vulnerable person or any other person.

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Criminal Procedure

reg 19

[2-5165]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

reg 19

responsible person means a person named in a prosecuting authority notice as referred to in clause 20(2)(d). vulnerable person has the same meaning as it has in Part 6 of Chapter 6 of the Act.

[2-5195] Prosecuting authority notice 20 (1) For the purposes of section 306V(2) of the Act, if a prosecuting authority intends to adduce evidence in a criminal proceeding of a previous representation: (a) by a vulnerable person who is not the accused person, and (b) wholly or partly by means of a recorded interview or a transcript of a recorded interview, the prosecuting authority must notify the accused person or his or her Australian legal practitioner (if any) of the intention in accordance with this clause. (2) A notice under subclause (1) must: (a) be in writing, and (b) specify each recorded interview (or transcript of the interview) that the prosecuting authority intends to adduce, and (c) contain information to the effect that the accused person and his or her Australian legal practitioner are entitled to listen to or view each recorded interview at a police station or other place nominated by the prosecuting authority, and (d) set out the name of a person responsible for arranging access to each recorded interview. (3) A notice under subclause (1) must be given to the accused person or his or her Australian legal practitioner at least 14 days before the evidence for the prosecution is given in the proceeding. Note. Section 76 of the Act provides that a transcript of a recorded interview is not admissible in committal proceedings unless the accused person has been given, in accordance with the regulations under section 306V(2) of the Act, a reasonable opportunity to listen to or view the recorded interview.

[2-5200] Defence notice 21 (1) An accused person or Australian legal practitioner who receives a prosecuting authority notice may notify the responsible person that he or she requires access to any one or more of the recorded interviews specified in the notice. (2) A notice under subclause (1) must: (a) be in writing, and (b) set out the name of the accused person and his or her Australian legal practitioner (if any), and (c) specify the recorded interview or interviews to which the accused person or his or her Australian legal practitioner requires access, and (d) be given to the responsible person at least 7 days before the evidence for the prosecution is given in the proceeding, unless the court gives leave for the notice to be given at a later time.

[2-5205] Recorded interview to be made available within 7 days 22 (1) A responsible person who receives a defence notice must give the accused person and his or her Australian legal practitioner (if any) access to listen to or view the

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CRIMINAL PROCEDURE REGULATION 2017

[2-5220]

recorded interview within 7 days (or any shorter period of time that the court may direct) after the day on which the responsible person receives the defence notice. (2) The responsible person may give the accused person or his or her Australian legal practitioner access to listen to or view the recorded interview on more than one occasion. PART 6 — EVIDENTIARY MATTERS

[2-5210] Notice — evidence of substantial mental impairment 23 For the purposes of section 151(1) of the Act, notice of an accused person’s intention to adduce evidence of substantial mental impairment at his or her trial for murder: (a) must be in Form 1, and (b) must be given to the Director of Public Prosecutions at least 35 days before the date on which the trial is listed to commence.

[2-5215] Offences for which briefs of evidence not required 24 For the purposes of section 187(5) of the Act, the following proceedings are prescribed as proceedings of a kind in which a prosecutor is not required to serve a brief of evidence: (a) proceedings for an offence for which a penalty notice may be issued (other than an offence that is set out in Schedule 4 and that is not referred to below), (b) proceedings for an offence under section 4 of the Summary Offences Act 1988, (c) proceedings for an offence under any of the following provisions of the Road Transport Act 2013 (or a former corresponding provision within the meaning of that Act): (i) section 53(3) or 54(1)(a), (3)(a), (4)(a), (5)(a)(i) or (b)(i), (ii) section 110 or 112, (d) proceedings for a summary offence for which there is a monetary penalty only, (e) proceedings for an offence under section 10 of the Drug Misuse and Trafficking Act 1985, (f) proceedings for an offence under section 16(1) of the Poisons and Therapeutic Goods Act 1966.

[2-5220] Short briefs of evidence required in certain circumstances 25 (1) The object of this clause is to reduce the time spent by police officers in producing statements of non-material witnesses for inclusion in certain briefs of evidence and, accordingly, a court is to have regard to that object when exercising its functions under this clause. (2) This clause applies only to proceedings for summary offences (including proceedings for indictable offences specified in Table 2 to Schedule 1 to the Act that are being dealt with summarily) for which a brief of evidence is required to be served under section 183 of the Act. (3) In this clause, prescribed statement means, in relation to a brief of evidence required to be served under section 183 of the Act in proceedings, a statement of a non-material witness, including the following: (a) a police officer who provides evidence that the preconditions of the exercise of a power have been satisfied or establishes that the evidence on which the

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Criminal Procedure

reg 25

[2-5220]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

reg 25

prosecutor relies was obtained in accordance with the law (for example, the custody manager who cautions the accused person under Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002), (b) a police officer who was responsible for the movement of, or recording the movement of, a thing connected with the offence or the investigation of the offence (for example, a police officer who conveys DNA or a drug sample to the Division of Analytical Laboratories), (c) a police officer who operated a device that produced or caused the production of a document, photograph, video or any other thing relied on by the prosecutor to prove the prosecution’s case, (d) any other police officer who provides evidence that merely corroborates evidence of another police officer whose statement relates to a process or procedure and is included in the brief of evidence (for example, a police officer, other than the investigating police officer, who was present when the accused person was interviewed), (e) a person who is a medical practitioner, nurse, paramedic or other health care professional if all the notes of the person (for example, doctor’s treatment notes or ambulance officer’s checklists) have been included in the brief of evidence. (4) For the purposes of section 183(2) of the Act, a brief of evidence need not include the following: (a) any prescribed statement, but only if the brief includes a list of each prescribed statement that, but for this clause, would need to be included in the brief and a summary of what each listed statement would include, (b) any document that was served on the accused person or the accused person’s legal representative by or on behalf of the prosecutor after the court attendance notice in relation to the offence concerned was served. (5) On application by the accused person in proceedings, the court may order that any prescribed statement, or any document referred to in subclause (4)(b), be served on the accused person by the prosecutor within a specified time before the hearing if the statement or document was not included in the brief of evidence. The court is to give reasons for the making of the order. (6) The court may make an order under subclause (5) only if satisfied that: (a) in the case of a prescribed statement, the making of the order would assist the accused person to respond to the charge or assist the court in determining the matter, or (b) in the case of a document referred to in subclause (4)(b), the application for the order has been made in good faith.

[2-5225] New trials of sexual assault proceedings — notice of intention to tender record of original evidence of complainant 26 For the purposes of section 306B(3)(a) or 306I(3)(a) of the Act, a notice given by the prosecutor to the accused person under either of those provisions must: (a) specify whether the record or records to be tendered by the prosecutor in the new trial proceedings are an audio visual recording, an audio recording or a transcript of the evidence given by the complainant in the original proceedings, and (b) if a record to be tendered is an audio visual recording or audio recording, contain information to the effect that the accused person and his or her

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CRIMINAL PROCEDURE REGULATION 2017

[2-5280]

Australian legal practitioner are entitled to listen to or view the recording at a place nominated by the prosecutor and set out the name of the person responsible for arranging access to the recording.

[2-5230] Access to record of original evidence of complainant 27 (1) For the purposes of section 306F(4) of the Act, this clause sets out the procedure for obtaining access to listen to or view an audio visual recording or audio recording of the original evidence of a complainant. (2) On receipt of a notice under section 306B(3)(a) or 306I(3)(a) of the Act specifying the prosecutor’s intention to tender in proceedings an audio visual recording or audio recording of the original evidence of the complainant, the accused person, or his or her Australian legal practitioner, may give the responsible person a notice in writing that he or she requires access to the recording. (3) A responsible person who receives a notice that complies with this clause must give the accused person and his or her Australian legal practitioner (if any) access to listen to or view the recording as soon as practicable after the day on which the responsible person receives the notice. (4) The responsible person may give any person accompanying the accused person, or his or her Australian legal practitioner, who has been engaged to assist the accused person’s case access to listen to or view the recording. (5) In this clause: responsible person means the person nominated under clause 26(b) by the prosecutor as the person responsible for arranging access to the recording.

[2-5265] Compellability of family members 28 For the purposes of section 279(5)(b) of the Act, Form 2 is the prescribed form in which a court’s reasons are to be recorded. [reg 28 am Act 29 of 2018 Sch 2 item 2.7[1], opn 21 June 2018]

[2-5270] Depositions by persons dangerously ill 29 For the purposes of section 284(2) of the Act, Form 3 is the prescribed form in which a deposition must be taken.

[2-5275] Authorised classifiers 30 For the purposes of the definition of authorised classifier in section 289A of the Act, members of the NSW Police Force who have undertaken training in the classification of child abuse material that is conducted or arranged by the NSW Police Force are prescribed as authorised classifiers. PART 7 — CIRCLE SENTENCING INTERVENTION PROGRAM DIVISION 1 — PRELIMINARY

[2-5280] Program declared to be intervention program 31 For the purposes of section 347(1) of the Act, the program of measures described in this Part for dealing with offenders is declared to be an intervention program for the purposes of Part 4 of Chapter 7 of the Act.

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Criminal Procedure

reg 31

[2-5300]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

reg 32

[2-5300] Definitions 32

In this Part:

Aboriginal Community Justice Group for a declared place means the Aboriginal Community Justice Group established for that place under Division 4. Aboriginal person means a person who: (a) is a member of the Aboriginal race of Australia, and (b) identifies as an Aboriginal person, and (c) is accepted by the Aboriginal community as an Aboriginal person. circle sentencing group for a referred offender means a circle sentencing group convened under Division 3 for the offender. guidelines means guidelines issued by the Minister under clause 56. offender means a person who has pleaded guilty to, or has been found guilty of, an offence before a participating court where that offence is an offence in respect of which an intervention program may be conducted as provided by section 348 of the Act. participating court means the Local Court. presiding Magistrate means the Magistrate presiding over the participating court that refers a referred offender. program means the program of measures described in Division 3. Program Officer for a declared place means an employee of the Department whose role involves administering the program for the place referred to in clause 55(1). program participation order means a grant of bail by, or other order of, a participating court made in respect of an offender for the purpose of allowing the offender to participate in the program. referred offender means an offender who is the subject of: (a) a suitability assessment order, or (b) a program participation order. suitability assessment order means a grant of bail by, or other order of, a participating court made in respect of an offender for the purpose of allowing an assessment of the offender’s capacity and prospects for participation in the program to be made. victim has the same meaning as victim of crime has for the purposes of the Victims Rights and Support Act 2013.

[2-5305] Application 33 (1) This Part applies only in respect of the Local Court sitting at a declared place. (2) For the purposes of this Part, a declared place means: (a) Armidale, Bourke, Brewarrina, Dubbo, Kempsey, Lismore, Mount Druitt, Nambucca, Nowra and Walgett, and Note. The places referred to in paragraph (a) are places taken to be declared places under clause 30(3) of the repealed Criminal Procedure Regulation 2010.

(b) any place declared by the Minister to be a place for the program.

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CRIMINAL PROCEDURE REGULATION 2017

[2-5310]

(3) Any declaration made, or taken to have been made, under this clause may be amended or revoked from time to time.

[2-5310] Summary of process for participation in program 34 (1) The following is a summary of the process involved in referring an offender for participation in the program: (a) Suitability assessment order made A participating court makes a suitability assessment order in respect of the offender. (b) Program Officer convenes meeting of Aboriginal Community Justice Group The Program Officer for the declared place convenes a special meeting of the Aboriginal Community Justice Group for the declared place under Division 2 to assess whether the offender is a suitable candidate to participate in the program. (The Program Officer is to carry out the assessment if, after making all reasonable efforts to do so, the Program Officer cannot convene a meeting of the Group within a reasonable time.) (c) Aboriginal Community Justice Group assesses offender The Aboriginal Community Justice Group meets to assess the offender’s suitability having regard to certain criteria. The Group may either assess the offender as being suitable or not suitable for participation. In either event, the Group must report its finding to the court that referred the offender. (If the Program Officer carries out the assessment, the Program Officer is to have regard to the same criteria in carrying out the assessment, and report the finding to the court.) (d) Court determines whether program participation order should be made If the Aboriginal Community Justice Group (or the Program Officer, if that is the case) assesses an offender as not being suitable for participation, the offender will not be eligible to participate in the program. However, if the Group (or the Program Officer) assesses the offender to be suitable, the participating court may then make a program participation order if it is satisfied that the offender is otherwise eligible to participate and that it would be appropriate for the offender to participate in the program. (e) Offender enters into agreement to participate The offender enters into an agreement to participate in the program. (f) Program Officer convenes a circle sentencing group The Program Officer will then convene a circle sentencing group constituted as provided by Division 3 for the purpose of recommending an appropriate sentence and determining a treatment and rehabilitation plan for the offender. The presiding Magistrate will preside over the circle sentencing group. (g) Offender must comply with program and any intervention plan An offender must comply with the program participation order and any intervention plan determined by the circle sentencing group. A failure to do so may result in the offender being returned to the participating court for the court to deal with the offender. (h) Court may pronounce a sentence The court that referred the offender may, if it agrees with the consensus of the circle sentencing group on the issue, impose a sentence on the offender in the terms recommended by the group following the conclusion of the circle. The sentence will be pronounced in open court.

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Criminal Procedure

reg 34

[2-5310]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

reg 34

(2) This clause does not affect the meaning or interpretation of any provision of this Part that it summarises. DIVISION 2 — ASSESSMENT OF SUITABILITY TO PARTICIPATE

[2-5330] Notification of suitability assessment order 35 If a participating court sitting at a declared place makes a suitability assessment order in respect of a referred offender, it must notify the Program Officer for the declared place of the order.

[2-5335] Meeting of Aboriginal Community Justice Group 36 (1) The Program Officer for the declared place must convene a meeting of the Aboriginal Community Justice Group for the declared place to assess the suitability of a referred offender to participate in the program as soon as practicable after being notified of a suitability assessment order in respect of the offender. (2) The meeting is to be attended by at least 3 members of the Group chosen by the Program Officer.

[2-5340] Role of Aboriginal Community Justice Group 37 (1) In assessing the suitability of a referred offender to participate in the program, the Aboriginal Community Justice Group to which the offender has been referred is to have regard to the following matters: (a) the nature of the offence committed by the offender, (b) whether the offender is part of an Aboriginal community at the declared place or has a close association or kinship with that community, (c) the impact of the offence on its victims and the Aboriginal community to which the offender belongs or with which the offender has a close association or kinship, (d) the potential benefits to the offender, the victims, the Aboriginal community and the community generally should the offender participate in the program, (e) any other matter that it considers relevant. (2) The Aboriginal Community Justice Group to which an offender has been referred must report to the participating court that made the suitability assessment order in the form approved by the Minister within 14 days (or any further period that the court may allow) after the Group has been convened.

[2-5345] Program Officer to assess if unable to convene meeting within reasonable period 38 (1) Despite clauses 36 and 37, if the Program Officer is not able to convene a meeting of the Aboriginal Community Justice Group for a declared place in accordance with clause 36: (a) after making all reasonable efforts in the circumstances to do so, and (b) within a time that the Program Officer considers is a reasonable time after being notified of a suitability assessment order in respect of an offender (taking into account the time by which the finding must be reported under clause 37(2)), the Program Officer instead is to assess the suitability of the offender to participate in the program.

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CRIMINAL PROCEDURE REGULATION 2017

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(2) In making an assessment under subclause (1), the Program Officer is to have regard to the matters set out in clause 37(1) in relation to the offender. (3) The Program Officer is to report his or her finding on an assessment made under subclause (1) to the participating court that made the suitability assessment order within 21 days (or any further period that the court may allow) after being notified of the order. DIVISION 3 — THE CIRCLE SENTENCING INTERVENTION PROGRAM

[2-5350] Objectives of the program 39 The objectives of the program are as follows: (a) to include members of Aboriginal communities in the sentencing process, (b) to increase the confidence of Aboriginal communities in the sentencing process, (c) to reduce barriers between Aboriginal communities and the courts, (d) to provide more appropriate sentencing options for Aboriginal offenders, (e) to provide effective support to victims of offences by Aboriginal offenders, (f) to provide for the greater participation of Aboriginal offenders and their victims in the sentencing process, (g) to increase the awareness of Aboriginal offenders of the consequences of their offences on their victims and the Aboriginal communities to which they belong, (h) to reduce recidivism in Aboriginal communities.

[2-5355] Eligibility to participate in program 40 (1) A person is eligible to participate in the program only if: (a) the person is an Aboriginal person, and (b) the person is an offender, and (c) the person has been assessed as suitable for participation in the program by the Aboriginal Community Justice Group for the declared place at a meeting convened in accordance with Division 2 (or by the Program Officer, under clause 38), and (d) the person enters into an agreement to participate in the program, and (e) the court considers that the facts, as found by the court, or as pleaded to by the person, in connection with the offence, together with the person’s antecedents and any other information available to the court, indicate that it is likely that the person will be required to serve, or be subject to, a relevant sentence. (2) In this clause, relevant sentence means: (a) any sentence of imprisonment, including a suspended sentence and a sentence the subject of an intensive correction order or home detention order under the Crimes (Sentencing Procedure) Act 1999, or (b) a community service order, or (c) an order providing for an offender to enter into a good behaviour bond.

[2-5360] Measures that constitute the circle sentencing program 41 The program is constituted by the following measures: (a) Offender enters into agreement to participate in the program A participating court refers an offender for participation in a circle sentencing intervention program by making a program participation order and the offender enters into an agreement to participate in the program.

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Criminal Procedure

reg 41

[2-5360]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

reg 41

(b) Constitution of circle sentencing group The Program Officer for the declared place, in consultation with the presiding Magistrate, convenes a circle sentencing group for the referred offender. (c) Circle sentencing group determines intervention plan for offender and recommends sentence The circle sentencing group meets: (i) to determine an appropriate plan (if any) for the treatment or rehabilitation of the referred offender, and (ii) to recommend an appropriate sentence for the offender. (d) Offender to comply with intervention plan The offender complies with the requirements of an intervention plan (if any) determined by the circle sentencing group. Note. Section 346(1) of the Act defines intervention plan to mean a plan, agreement or arrangement arising out of the participation of an offender or an accused person in an intervention program.

[2-5365] Convening of circle sentencing group 42 (1) A participating court that makes a program participation order in respect of a referred offender must notify the Program Officer for the declared place of the order. (2) The Program Officer must convene a circle sentencing group for the referred offender as soon as practicable after being notified of the making of a program participation order in respect of the offender. (3) A circle sentencing group must be convened at a location approved by the presiding Magistrate.

[2-5370] Constitution of circle sentencing group 43 (1) A circle sentencing group for a referred offender must include the following persons: (a) the presiding Magistrate, (b) the offender, (c) the offender’s legal representatives (unless the offender directs otherwise), (d) the prosecutor, (e) the Program Officer, (f) at least 3 Aboriginal persons (but no more than the maximum number of persons specified in the guidelines) chosen by the Program Officer, being persons who the Program Officer is satisfied belong to the Aboriginal community of which the offender claims to be part or with which the offender claims to have a close association or kinship. (2) A circle sentencing group convened by a Program Officer may (but need not) include the following persons: (a) any victim of the offender’s offence who consents to participate in the group, (b) a support person for the victim chosen by the victim, (c) a support person for the offender chosen by the offender, (d) any other person or persons chosen by the Program Officer, but only with the consent of the offender and, if a victim is participating, the consent of the victim. (3) A member of a circle sentencing group may object to the participation in the group of a person chosen by the Program Officer for the purposes of subclause (1)(f) or (2)(d). The presiding Magistrate is to determine the objection.

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[2-5380]

(4) The presiding Magistrate may invite any other person of a class specified by the guidelines to attend a circle sentencing group. (5) The guidelines may specify whether that person may or may not participate in the circle sentencing group.

[2-5375] Functions of circle sentencing groups 44 (1) The functions of a circle sentencing group are as follows: (a) to determine an appropriate plan for the treatment or rehabilitation of a referred offender, (b) to recommend an appropriate sentence for the offender, (c) to provide support or other assistance to the offender in completing the program or an intervention plan arising out of the program, (d) any other functions that may be imposed or conferred on the group by this Division or the guidelines. (2) Without limiting subclause (1)(a), a circle sentencing group may require a referred offender to comply with a plan that includes requirements relating to any one or more of the following: (a) the conduct and good behaviour of the offender, (b) attendance for counselling or other treatment, (c) the supervision of the offender for the duration of the plan, (d) residence, association with other persons or attendance at specified locations, (e) involvement in activities, courses, training or employment for the purpose of promoting the reintegration of the offender into the community, (f) any other matters that the group considers would promote the treatment or rehabilitation of the offender.

[2-5380] Exclusions of persons from circle sentencing groups 45 (1) The presiding Magistrate may exclude a person (other than the offender or a victim) from participation in a circle sentencing group if the Magistrate is satisfied that: (a) the person has a conflict of interest that would prevent the person from impartially discharging his or her obligations as a member of the group, or (b) the behaviour of the person is disrupting the orderly conduct of a meeting of the group. (2) The Magistrate may, with the agreement of the other members of the group, invite another person to replace a person who has been excluded from participating in the group under subclause (1). However, if the other members do not agree, the Program Officer is to convene a new circle sentencing group for the offender excluding that other person. (3) A person who is not a member of the circle sentencing group may not attend a meeting of the group unless all of the following persons consent: (a) the presiding Magistrate, (b) the offender, (c) the victim, if a victim is participating in the group.

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Criminal Procedure

reg 45

[2-5385]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

reg 46

[2-5385] Termination of circle sentencing group meeting 46 (1) The presiding Magistrate may terminate a meeting of a circle sentencing group if the Magistrate is satisfied that the behaviour of a member of the group is disrupting the orderly conduct of the meeting. (2) If a meeting is terminated, the Magistrate may direct the Program Officer to convene a new circle sentencing group or the Magistrate may return the matter to the participating court.

[2-5405] Victims to be heard 47 If a victim agrees to participate in a circle sentencing group, the victim must be given an opportunity to express his or her views about the offender and the nature of the offence committed against the victim.

[2-5410] Procedure generally 48 (1) The procedure for the calling of meetings of a circle sentencing group and the conduct of business at those meetings is, subject to this Division and the guidelines, to be as determined by the group. (2) The presiding Magistrate is to preside at a meeting of a circle sentencing group. (3) The quorum for a meeting of a circle sentencing group is all of the members of the group (other than members excluded under clause 45). Note. A circle sentencing group is to be constituted in accordance with clause 43 (subject to clause 50).

(4) A decision supported by a majority of the members in a meeting of the circle sentencing group is to be treated as a decision of the whole group.

[2-5415] Records of meetings 49 (1) The presiding Magistrate must make a record (or cause a record to be made) of the following matters in connection with a circle sentencing group: (a) the name, address and date of birth of the referred offender, (b) the nature of the offence, (c) the name of the Program Officer, (d) the names of the other members of the group and the capacity in which they participated, (e) the dates on, and the locations at, which the circle sentencing group met, (f) particulars of any intervention plan determined, or sentence recommended, by the group, (g) the major points of discussion of the group, (h) any other matter that the Magistrate considers relevant. (2) A copy of a record made under subclause (1) must be kept in the participating court’s file for the proceedings in respect of which a referred offender was referred.

[2-5420] Reconvening of the circle sentencing group 50 (1) The Program Officer may, in consultation with the presiding Magistrate, reconvene a circle sentencing group after it has determined an intervention plan or

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CRIMINAL PROCEDURE REGULATION 2017

[2-5455]

recommended an appropriate sentence (or both) for a referred offender for the purpose of reconsidering any matter it had previously determined or recommended. (2) The members of the reconvened group should, so far as is reasonably possible, be the same members who participated in the original circle sentencing group. (3) A circle sentencing group cannot be reconvened if: (a) the period of 12 months has elapsed since the matter to be reconsidered was originally determined or recommended by the group, or (b) the court that referred the referred offender to the group has imposed a sentence on the offender for the offence (whether or not in the terms recommended by the group). DIVISION 4 — ABORIGINAL COMMUNITY JUSTICE GROUPS

[2-5440] Minister to establish Group for each declared place 51 The Minister is to establish an Aboriginal Community Justice Group for each declared place.

[2-5445] Appointment of members of Groups 52 (1) The Minister may appoint those Aboriginal persons that the Minister considers necessary to be members of an Aboriginal Community Justice Group established under this Part. (2) The Minister may make an appointment under subclause (1) only on the recommendation of the Program Officer for the declared place concerned. (3) A person appointed as a member under subclause (1) is appointed for a period of 3 years, unless before the expiry of that period: (a) the person resigns his or her appointment, or (b) the person’s appointment is revoked by the Minister. (4) A person appointed as a member under subclause (1) may resign his or her appointment by written notice to the Minister. (5) The Minister may revoke the appointment of a person as a member of an Aboriginal Community Justice Group at any time by written notice to the person. (6) Nothing in this clause prevents the Minister from re-appointing a person as a member of an Aboriginal Community Justice Group under subclause (1) following the expiry of a previous period of appointment or the revocation of a previous appointment.

[2-5450] Functions of Groups 53 The functions of an Aboriginal Community Justice Group include (but are not limited to) the following functions: (a) assessing the suitability of a referred offender to participate in the program and reporting to the participating court that referred the offender about the offender’s suitability, (b) any other functions that may be imposed or conferred on the Group by this Part or the guidelines.

[2-5455] Procedure 54 (1) The procedure for the calling of meetings of an Aboriginal Community Justice Group and the conduct of business at those meetings is, subject to this Part and the guidelines, to be as determined by the Group.

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Criminal Procedure

reg 54

[2-5455]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

reg 54

(2) The quorum for a meeting of an Aboriginal Community Justice Group is 3 members of the Group. (3) A decision supported by a majority of the members in attendance at a meeting of an Aboriginal Community Justice Group is to be treated as a decision of the whole Group. DIVISION 5 — MISCELLANEOUS

[2-5485] Program Officer 55 (1) The Minister is to ensure that there is a Program Officer for each declared place. (2) The functions of a Program Officer include (but are not limited to) the following functions: (a) contacting victims of a referred offender for the purpose of ascertaining whether they wish to participate in a circle sentencing group for the offender, (b) informing the offender of: (i) the processes involved in the program or in being assessed for participation in the program, and (ii) the offender’s obligations under the program or an intervention plan arising out of the program, (c) convening meetings of Aboriginal Community Justice Groups and circle sentencing groups, (d) any other functions that may be imposed or conferred on the Program Officer by this Part or the guidelines.

[2-5490] Minister may issue guidelines 56 (1) The Minister may from time to time issue guidelines, not inconsistent with this Part, for or with respect to any or all of the following matters: (a) the constitution and procedure for meetings of Aboriginal Community Justice Groups and circle sentencing groups, (b) the functions of those Aboriginal Community Justice Groups and circle sentencing groups and of members of those groups in connection with the program or assessment for participation in the program, (c) any other matter in respect of which guidelines are permitted or required by this Part. (2) Without limiting subclause (1), the guidelines may include provisions that: (a) apply generally, or (b) apply only in relation to specified persons, courts, groups or other bodies, or (c) apply only in specified circumstances, or (d) do a combination of the things referred to in paragraphs (a), (b) and (c).

[2-5495] Evidence of statements generally inadmissible 57 (1) Evidence of anything said, or any admission made or document produced, in: (a) a meeting of a circle sentencing group concerning a referred offender, or (b) a meeting of an Aboriginal Community Justice Group held to assess a referred

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CRIMINAL PROCEDURE REGULATION 2017

[2-5810]

offender’s suitability to participate in the program, is not admissible in any criminal or civil proceedings. (2) Subclause (1) does not apply to the criminal proceedings in respect of which a referred offender was referred or any appeal made in respect of those proceedings.

[2-5500] Prohibition on disclosure of information 58 (1) A relevant program participant must not disclose any information obtained in connection with: (a) the assessment of a referred offender’s suitability to participate in the program, or (b) the conduct of the program or an intervention plan arising out of the program. Maximum penalty: 20 penalty units. (2) Nothing in subclause (1) prevents a relevant program participant from disclosing information: (a) in connection with the conduct of an assessment of a referred offender’s suitability to participate in the program, or (b) to a victim of a referred offender about the outcome of a circle sentencing group for the offender, or (c) for the purposes of any legal proceedings, or (d) in accordance with a requirement of the Ombudsman Act 1974 or with any request made by the Ombudsman, or (e) with other lawful excuse. (3) In this clause: relevant program participant means: (a) a member of an Aboriginal Community Justice Group, or (b) a person selected to participate in a circle sentencing group for a referred offender under clause 43(1)(f) or (2)(b), (c) or (d). PART 8 — FORUM SENTENCING INTERVENTION PROGRAM [Repealed] [Pt 8 rep SI 316 of 2018 cl 3, opn 29 June 2018]

PART 9 — TRAFFIC OFFENDER INTERVENTION PROGRAM DIVISION 1 — PRELIMINARY

[2-5805] Program declared to be intervention program 96 (1) For the purposes of section 347(1) of the Act, the program of measures described in this Part for dealing with offenders is declared to be an intervention program for the purposes of Part 4 of Chapter 7 of the Act. (2) Nothing in this Part prevents an offender from undertaking an approved traffic course otherwise than pursuant to a program participation order.

[2-5810] Definitions 97

(1) In this Part:

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Criminal Procedure

reg 97

[2-5810]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

reg 97

approved traffic course means a course of study or training conducted by a government agency or an association that is approved under Division 4. approved traffic course provider means the person, association or body that conducts an approved traffic course. association means: (a) an association registered under the Associations Incorporation Act 2009, or (b) an Aboriginal and Torres Strait Islander corporation within the meaning of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 of the Commonwealth. government agency means any person, department or body exercising executive or administrative functions on behalf of the Government. guidelines means guidelines issued by the Secretary under Division 5. program means the program of measures described in Division 3. program participation order means a grant of bail by, or other order of, the Local Court made in respect of a traffic offender for the purpose of allowing the offender to participate in the program by undertaking or completing an approved traffic course specified by the Court. Note. An offender may be referred for participation in the traffic offender intervention program at the following points in criminal proceedings: (a) a court that grants bail to a person may impose a bail condition requiring the person to participate in the program, (b) a court may defer the sentencing of an offender for the purpose of allowing the offender to participate in the program by an order under section 11 of the Crimes (Sentencing Procedure) Act 1999.

referral means the referral of a traffic offender under a program participation order for participation in the program by undertaking or completing an approved traffic course. referred traffic offender means a traffic offender who is the subject of a program participation order. traffic offence means: (a) an offence under the road transport legislation (within the meaning of the Road Transport Act 2013), or (b) an offence under the former road transport legislation (within the meaning of Part 2 of Schedule 4 to the Road Transport Act 2013). traffic offender means a person who has pleaded guilty to, or has been found guilty of, a traffic offence before the Local Court where that offence is an offence in respect of which an intervention program may be conducted as provided by section 348 of the Act. victim has the same meaning as victim of crime has for the purposes of the Victims Rights and Support Act 2013. (2) A reference in this Part to a program participation order specifying an approved traffic course includes a reference to the order specifying a list of approved traffic courses (one of which the offender must nominate for the purposes of the order).

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CRIMINAL PROCEDURE REGULATION 2017

[2-5835]

[2-5830] Summary of process for participation in program 98 (1) The following is a summary of the process involved in referring a traffic offender for participation in the program: (a) Court determines whether an offender may be referred for participation The Local Court determines whether a traffic offender may be referred to the program having regard to the matters specified in Division 2. (b) Court makes a program participation order The Local Court may make a program participation order if it is satisfied that a traffic offender is eligible to participate in the program. The order will specify the approved traffic course that the offender is to undertake or complete. (c) Traffic offender enters into an agreement to participate The traffic offender enters into an agreement to participate in the program as a condition of bail or deferral of sentence. (d) Traffic offender to comply with requirements of approved traffic course The traffic offender complies with the requirements of the approved traffic course. A failure to do so may result in the offender being returned to the Local Court for the Court to deal with the offender. (2) This clause does not affect the meaning or interpretation of any provision of this Part that it summarises. DIVISION 2 — DETERMINING ELIGIBILITY TO PARTICIPATE IN PROGRAM

[2-5835] Eligibility to participate in program 99 (1) A person is eligible to be referred by the Local Court to participate in the program only if: (a) the person is a traffic offender, and (b) the person has not been sentenced for the traffic offence, and (c) a suitable approved traffic course is available for the person to attend or will become available within what the Court considers is a reasonable time, and (d) the person enters into an agreement to participate in the program, and (e) the Court considers that, having regard to the matters referred to in subclause (2), the person is suitable for participation in the program. (2) The Local Court is to have regard to the following matters in determining whether a traffic offender is suitable for participation in the program: (a) the extent to which the offender’s character, antecedents, age, health and mental condition would be likely to prevent the offender’s participation in the program or disrupt the conduct of the program, (b) the nature of the offence committed by the offender, (c) any extenuating circumstances in which the traffic offence was committed, (d) the impact of the offence on the community and the victim of the offence (if any), (e) the offender’s history of convictions for traffic offences (if any), (f) the offender’s previous participation in an approved traffic course (if any), (g) any other matters that the Court considers relevant. (3) When considering a traffic offender’s history for the purposes of subclause (2), the Local Court is to consider the following: (a) whether this is the traffic offender’s first offence,

475

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Criminal Procedure

reg 99

[2-5835]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

reg 99

(b) if it is not the traffic offender’s first offence, the nature and seriousness of any previous offence or offences. DIVISION 3 — THE TRAFFIC OFFENDER INTERVENTION PROGRAM

[2-5840] Objective of the program 100 The objective of the program is to provide a community based road safety educational program for referred traffic offenders: (a) to provide the offenders with the information and skills necessary to develop positive attitudes to driving and to change driving behaviour, and (b) to develop safer driving behaviour in the offenders.

[2-5870] Measures that constitute the program 101 The program is constituted by the following measures: (a) Court refers traffic offender to approved traffic course The Local Court refers an offender for participation in the program by making a program participation order that specifies the approved traffic course that the offender is to undertake or complete and the offender enters into an agreement to participate in the program. (An order may also relate to completion of an approved traffic course if an offender has already commenced the course on the offender’s own initiative or that of the offender’s legal representative.) (b) Referred traffic offender to participate in course The referred traffic offender complies with the requirements of the approved traffic course that the Local Court has required the offender to undertake or complete. (c) Approved traffic course provider reports to Local Court on compliance The approved traffic course provider makes a written report to the Local Court as to the referred traffic offender’s compliance with the requirements of the approved traffic course before the Court finalises the matter.

[2-5875] Reports to Local Court on compliance 102 The approved traffic course provider that conducts the approved traffic course to which a referred traffic offender has been referred must report to the Local Court on the extent to which the offender has complied with the requirements of the course: (a) in the form approved by the Secretary, and (b) no later than the date fixed by the Court for the offender to re-appear before the Court to finalise the matter.

[2-5880] Approved traffic course provider to make records 103 An approved traffic course provider must make a record (or cause a record to be made) of the matters in connection with the participation of offenders in the course that are specified by the guidelines. DIVISION 4 — APPROVED TRAFFIC COURSES

[2-5885] Secretary may approve courses for program 104 (1) The Secretary may, by order published in the Gazette, approve a course of study or training as an approved traffic course for the purposes of the program.

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CRIMINAL PROCEDURE REGULATION 2017

[2-5895]

(2) The Secretary may approve a course of study or training under subclause (1) only if: (a) the course is to be conducted by a government agency or by an association, and (b) any other prerequisites for approval that are specified by the guidelines have been met. (3) A course of study or training approved under subclause (1) may be approved for all places at which sittings of the Local Court are held or only for the places that are specified in the order approving the course. (4) The Secretary may at any time and for any reason revoke an approval for a course of study or training under subclause (1) by order published in the Gazette. (5) An approval for a course of study or training under subclause (1) has effect for a period of 3 years, unless sooner revoked. (6) Nothing in subclause (5) prevents the Secretary from re-approving a course of study or training under subclause (1) after a previous approval for the study or training has ceased to have effect.

[2-5890] Approved traffic course to comply with guidelines 105 An approved traffic course provider that conducts an approved traffic course is to ensure that: (a) the course complies with any content requirements specified in the guidelines that are relevant to the course, and (b) the course is otherwise conducted in accordance with any guidelines that are relevant to the course. DIVISION 5 — MISCELLANEOUS

[2-5895] Secretary may issue guidelines 106 (1) The Secretary may issue guidelines, not inconsistent with this Part, from time to time with respect to any or all of the following matters: (a) the keeping of records in respect of participation in the program or approved traffic courses undertaken or completed as part of the program, (b) the monitoring of participation of referred traffic offenders in the program and in approved traffic courses undertaken or completed as part of the program, (c) the functions and responsibilities of approved traffic course providers in connection with the program, (d) the content and conduct of approved traffic courses, (e) the process of identifying the availability of a suitable approved traffic course, (f) the undertaking of an approved traffic course otherwise than pursuant to a program participation order, (g) the administration of the program, (h) any other matter in respect of which guidelines are permitted or required by this Part. (2) Without limiting subclause (1), the guidelines may include provisions that: (a) apply generally, or (b) apply only in relation to specified persons, courts, groups or other bodies, or (c) apply only in specified circumstances, or (d) do a combination of the things referred to in paragraphs (a), (b) and (c).

477

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Criminal Procedure

reg 106

[2-5895]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

reg 106

(3) Guidelines must be published on the Department’s website.

[2-5900] Evidence of statements generally inadmissible 107 (1) Evidence of anything said, or any admission made, by a referred traffic offender in the course of participating in an approved traffic course is not admissible in any criminal or civil proceedings. (2) Subclause (1) does not apply to the criminal proceedings in respect of which a referred traffic offender was referred.

[2-5905] Prohibition on disclosure of information 108 (1) An approved traffic course provider that conducts an approved traffic course that is undertaken or completed by a referred traffic offender as part of the program (or any person involved in conducting the course for or on behalf of the provider) must not disclose the name of, or any other identifying information about, the offender that is obtained in connection with the conduct of the program or course. Maximum penalty: 20 penalty units. (2) Nothing in subclause (1) prevents an approved traffic course provider or person from disclosing information of the kind referred to in that subclause: (a) in connection with the conduct of the program or an approved traffic course that is undertaken or completed as part of the program, or (b) for the purposes of any legal proceedings, or (c) in accordance with a requirement of the Ombudsman Act 1974 or with any request made by the Ombudsman, or (d) with other lawful excuse. PART 10 — CHILD SEXUAL OFFENCE EVIDENCE PILOT SCHEME

[2-5907] Extension of pilot scheme 108A For the purposes of clause 81 of Schedule 2 to the Act, 30 June 2022 is prescribed as the date until which Part 29 of Schedule 2 to the Act operates. [cl 108A insrt SI 44 of 2019 cl 3, opn 1 Feb 2019]

[2-5910] Qualifications for inclusion on panel of suitable children’s champions 109 For the purposes of clause 89(2) of Schedule 2 to the Act, the following are prescribed as the qualifications, training, experience or skills that a person must have to be included on a panel: (a) successful completion of the witness intermediary training course provided by the Department, and (b) a tertiary qualification in psychology, social work, speech pathology, teaching or occupational therapy.

[2-5915] Suspension or revocation of inclusion of children’s champions on panel 110 Victims Services in the Department (or, if the Attorney General has nominated another agency under clause 89(1) of Schedule 2 to the Act, that agency) may:

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CRIMINAL PROCEDURE REGULATION 2017

[2-5930]

(a) suspend or revoke the inclusion of a person on a panel under clause 89 of Schedule 2 to the Act, or (b) make the inclusion subject to conditions, or (c) vary or revoke any condition of inclusion or impose additional conditions on inclusion.

[2-5920] Form of oath or affirmation taken or made by children’s champions 111 The following are prescribed as the form of oath to be taken, or affirmation to be made, respectively, by a children’s champion for the purposes of clause 90(4) of Schedule 2 to the Act: (a) I swear that I will well and faithfully communicate questions and answers and make true explanation of all matters and things as may be required of me according to the best of my skill and understanding, (b) I solemnly and sincerely declare and affirm that I will well and faithfully communicate questions and answers and make true explanation of all matters and things as may be required of me according to the best of my skill and understanding. Note. A person must either take an oath, or make an affirmation, before acting as a children’s champion in proceedings to which Part 29 of Schedule 2 to the Act applies.

[2-5925] Fees 112 The following fees are payable to a children’s champion (not including the amount of any Goods and Services Tax payable in respect of the relevant work or report): (a) $144 for each hour of work done, (b) $550 for each report provided. PART 11 — MISCELLANEOUS

[2-5930] Public officers 113 (1) For the purposes of paragraph (f) of the definition of public officer in section 3(1) of the Act, the following bodies are declared to be public bodies: (a) the Independent Commission Against Corruption, (b) the Royal Society for the Prevention of Cruelty to Animals, New South Wales, (c) the Animal Welfare League NSW, (d) the Australian Federal Police, (e) the Australian Securities and Investments Commission, (f) the Australian Health Practitioner Regulation Agency, (g) the Office of the Commonwealth Director of Public Prosecutions, (h) the Law Enforcement Conduct Commission. (2) For the purposes of the definitions of public officer in sections 218(2) and 257E(2) of the Act, an officer or employee of any of the following bodies is prescribed as a person who is not a public officer: (a) the Royal Society for the Prevention of Cruelty to Animals, New South Wales, (b) the Animal Welfare League NSW, (c) the Australian Federal Police,

479

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Criminal Procedure

reg 113

[2-5930]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

reg 113

(d) the Australian Securities and Investments Commission, (e) the Office of the Commonwealth Director of Public Prosecutions.

[2-5935] Certificate by Attorney General or Director of Public Prosecutions that no further proceedings to be taken 114 For the purposes of section 44(1) of the Act, Form 4 is the prescribed form of certificate.

[2-5940] Offences not within jurisdiction of District Court 115 For the purposes of section 46(2) of the Act, the offences referred to in sections 12 and 19A of the Crimes Act 1900 are prescribed as being offences that are not within the jurisdiction of the District Court.

[2-5945] Issue of subpoenas in AVO proceedings 116 For the purposes of section 220 of the Act, proceedings for or relating to an apprehended violence order commenced under the Crimes (Domestic and Personal Violence) Act 2007 are prescribed as proceedings to which Part 3 of Chapter 4 of the Act applies.

[2-5950] Election not to have indictable offence dealt with summarily 117 (1) For the purposes of section 265(1)(b) of the Act, Form 5 is the prescribed form of words for the statement about a person’s right to make an election and the consequences of not making an election. (2) For the purposes of section 266(2)(a) of the Act, an election may be made orally to the Local Court or by filing a written notice with the Court. (3) For the purposes of section 266(2)(b) of the Act, the withdrawal of an election may be made orally to the Local Court or by filing a written notice with the Court.

[2-5955] Delegation of functions 118 (1) The registrar of a court may delegate to any person the exercise of any of the functions conferred on the registrar by this Regulation, other than this power of delegation. (2) The Sheriff may delegate to any person the exercise of any of the functions conferred on the Sheriff by this Regulation, other than this power of delegation. (3) The Secretary may delegate to any person the exercise of any of the functions conferred on the Secretary by clauses 104 and 106. [subcl (3) insrt SI 316 of 2018 cl 3, opn 29 June 2018]

[2-5960] Savings 119 (1) Any act, matter or thing that, immediately before the repeal of the Criminal Procedure Regulation 2010, had effect under that Regulation continues to have effect under this Regulation.

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CRIMINAL PROCEDURE REGULATION 2017

[2-5963]

(2) Any guidelines issued by the Minister under Division 5 of Part 8 of that Regulation and in force immediately before the commencement of this Regulation are taken to be issued by the Secretary under Division 5 of Part 9 of this Regulation.

[2-5963] Transitional provision relating to committal proceedings procedures 119A The Act, as in force before its amendment by the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017, continues to apply to committal proceedings that deal with one or more offences if proceedings for any of those offences commenced before the amendments made to Part 3 of the Act by that amending Act commenced. [cl 119A insrt SI 171 of 2018 Sch 1[2], opn 30 Apr 2018]

481

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Criminal Procedure

reg 119A

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SCHEDULE 1 — FORMS (Clause 3(2))

Form 1A

[2-5967]

CHARGE CERTIFICATE (Criminal Procedure Act 1986; section 66(1)) Case name: Case number: Prosecutor’s reference number:

Part 1 Offences The following offences are to proceed as set out below (court attendance notices for each offence are attached): Reference number

Offence details (legislation reference/ common law)

Offences Law part code

Description (sufficient for indictment or averment) and date of offence

How offence will proceed (indicate if for committal/back up or related offence/ withdrawn/ summary offence)

Part 2 Declarations by prosecutor This is to certify that: (a) the evidence available is capable of establishing each element of the offences that are to be the subject of the proceedings against the accused person, and (b) [if the offence is not an offence under the law of the Commonwealth or an offence prosecuted by the Commonwealth Director of Public Prosecutions] a certificate under section 15A of the Director of Public Prosecutions Act 1986 relating to the offence has been received and considered. Signature: Title of prosecutor: Location of office of prosecutor: Date: [Form 1A insrt SI 171 of 2018 Sch 1[3], opn 30 Apr 2018; am Act 10 of 2019 Sch 1.10, opn 26 Sep 2019]

483

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Criminal Procedure

[2-5965]

[2-5969]

[2-5969]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Form 1B

Form 1B CASE CONFERENCE CERTIFICATE (Criminal Procedure Act 1986; section 75))

Case name: Case number: Prosecutor’s reference number: Title of prosecutor attending: Defence reference number: Name, title and firm/organisation of accused person’s legal representative: Name and date of birth of accused person: Date/s of case conference/s:

Part 1 Offences shown in charge certificate The following offences are as shown in the charge certificate (court attendance notices for each offence are attached): Reference number

Charge certificate offences Law part code Description Offence details (sufficient for (legislation indictment or reference/ averment) and common law) date of offence

How offence will proceed (indicate if for committal/back up or related offence/ withdrawn/ summary offence)

Part 2 Offers by accused person and prosecutor The following offers have been made to or by the accused person and the prosecutor (and are listed in chronological order of the making of the offers): Offer made by

Offers made by accused person or prosecutor Details of offer Acceptance/Rejection Date of acceptance/rejection

484

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CRIMINAL PROCEDURE REGULATION 2017

[2-5969]

Part 3 Offences The offences that are being proceeded with are set out below (court attendance notices for each offence are attached), as well as the offences that have been withdrawn: Reference number

Offence details (legislation reference/ common law)

Law part code

Offences Description (sufficient for indictment or averment) and date of offence

How offence will proceed (indicate if for committal/ back up or related offence/ withdrawn/ summary offence)

Type of committal (trial or sentence)

Part 4 Agreed facts for offences Where guilty plea accepted The facts on the basis of which the accused person is pleading guilty are agreed and attached/The agreed facts on the basis of which the accused person is pleading guilty are attached with the disputed facts identified. [delete the statement that is not applicable]

Part 5 Declaration by prosecutor [Not to be completed for offences against a law of the Commonwealth or other offences to which the sentencing discount under Division 1A of Part 3 of the Crimes (Sentencing Procedure) Act 1999 does not apply] I, [insert title], have not notified the accused person that it is intended to make a submission to the sentencing court that the discount for a guilty plea should not apply or should be reduced in relation to the following offence or offences: [delete if not applicable] I, [insert title], have notified the accused person that it is intended to make a submission to the sentencing court that the discount for a guilty plea should not apply or should be reduced in relation to the following offence or offences: [delete if not applicable] Signature: Date and place:

Part 6 Declaration by legal representative of accused person [Not to be completed for offences against a law of the Commonwealth or other offences to which the sentencing discount under Division 1A of Part 3 of the Crimes (Sentencing Procedure) Act 1999 does not apply] I, [insert name], the legal representative of the accused person, have explained to the accused person the matters specified in section 72(2) of the Criminal Procedure Act 1986, that is, the following:

485

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Criminal Procedure

Form 1B

[2-5969]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Form 1B

The effect of the scheme for the sentencing discount applied under Part 3 of the Crimes (Sentencing Procedure) Act 1999 for a plea of guilty to an offence. The penalties that apply to the offences that are proceeding and for any extra offences about which the accused person made offers or the prosecutor made offers for guilty pleas. The effect on the penalty for an offence if the accused person pleads guilty to the offence at different stages of proceedings for the offence. Signature: Date and place:

Part 7 Declaration by accused person [Only to be completed if the accused person does not intend to plead guilty to an offence, the case is to be committed for trial and the matter involves offences to which the sentencing discount under Division 1A of Part 3 of the Crimes (Sentencing Procedure) Act 1999 applies] I intend to plead not guilty to some/all of the offences that I have been charged with. I understand that my case will be sent to the District Court/Supreme Court [specify correct court] for trial for those offences. My legal representative has explained to me the matters specified in section 72(2) of the Criminal Procedure Act 1986, that is, the following: The effect of the scheme for the sentencing discount applied under Part 3 of the Crimes (Sentencing Procedure) Act 1999 for a plea of guilty to an offence. The penalties that apply to the offences that are proceeding and for any extra offences about which I made offers or the prosecutor made offers for guilty pleas. The effect on the penalty for an offence if I plead guilty to the offence at different stages of proceedings for the offence. I understand and acknowledge the effect of the matters set out above in my case. Signature: Date and place:

Part 8 Obligations relating to confidentiality The matters specified in this certificate must be treated as confidential (see section 79 of the Criminal Procedure Act 1986). It is an offence to publish, or permit another person to publish, this certificate or evidence of anything said during a case conference or during subsequent negotiations relating to plea offers (see section 80 of the Criminal Procedure Act 1986). This certificate and evidence of those things cannot be used in court proceedings, other than relevant sentencing or appeal proceedings or disciplinary proceedings against a lawyer (see section 78 of the Criminal Procedure Act 1986).

Part 9 Signatures of prosecutor and legal representative of accused This case conference certificate was signed by the prosecutor and the legal representative of the accused. Prosecutor Signature: Title of prosecutor: Location of office of prosecutor: Date and place:

486

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CRIMINAL PROCEDURE REGULATION 2017

[2-5975] Criminal Procedure

Form 2

Legal representative of accused person Signature: Name of legal representative: Date and place: [Form 1B insrt SI 171 of 2018 Sch 1[3], opn 30 Apr 2018]

Form 1

[2-5970]

NOTICE OF INTENTION TO ADDUCE EVIDENCE OF SUBSTANTIAL MENTAL IMPAIRMENT (Clause 23) (Criminal Procedure Act 1986: section 151(1)) R v [insert name of defendant] To the Director of Public Prosecutions: The defendant [insert name of defendant] has been committed for trial on a charge of murder. The trial is listed for hearing on [insert date] at [insert name of court]. In accordance with section 151 of the Criminal Procedure Act 1986, notice is given to the Director of Public Prosecutions that the defendant intends to adduce evidence tending to prove a contention by the defendant that the defendant is not liable to be convicted of murder by virtue of section 23A of the Crimes Act 1900. The defendant intends to rely on the evidence of the following persons in support of that contention [insert the name, occupation and address of each person to be called by the defendant, and include (in relation to each person) a short statement of the particulars of the evidence that the person proposes to give]. Note. If more space is needed, attach material to this form. [insert signature of defendant or defendant’s legal practitioner] Defendant/defendant’s legal practitioner Date:

[2-5975]

Form 2

REASONS FOR EXCUSING A FAMILY MEMBER FROM GIVING EVIDENCE FOR THE PROSECUTION IN A DOMESTIC VIOLENCE OR CHILD ASSAULT CASE (Clause 28) (Criminal Procedure Act 1986: section 279(5)(b)) On this date, I, the undersigned, a Judge of the Supreme Court/Judge of the District Court/Magistrate, sitting at [insert location] in the State of New South Wales, dealt with an application under section 279 of the Criminal Procedure Act 1986, that [insert name of person to be excused] be excused from giving evidence for the prosecution in proceedings against [insert name of person charged] charged with the following offence [insert offence]. I am satisfied, for the reasons stated below, that the application to be excused was made freely and independently of threat or any other improper influence by any person and that: (a) it is relatively unimportant to the case to establish the facts in relation to which it

487

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[2-5975]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Form 2

appears that a member of the accused person’s family is to be asked to give evidence or there is other evidence available to establish those facts, and (b) the offence with which the accused person is charged is of a minor nature. Reasons: [insert signature of Judge or Magistrate] Judge/Magistrate Date: [Form 2 am Act 29 of 2018 Sch 2 item 2.7[2], [3], opn 21 June 2018]

Form 3

[2-5980]

FORM OF DEPOSITION (Clause 29) (Criminal Procedure Act 1986: section 284(2)) The deposition of [insert name of person], a person now dangerously ill, taken before the undersigned *Judge/Justice [insert location]. [insert name of person], being duly sworn, states as follows: Note. The witness’s statement is to be in the first person, and should be reasonably full as to all material facts. The statement should be signed by the witness. And I hereby certify that I have taken this deposition under section 284 of the Criminal Procedure Act 1986 because it has been made to appear to me that the deponent is dangerously ill and that his or her evidence, if not immediately taken, will probably be lost. [insert signature of Judge or Justice] *Judge/Justice Date: Note. If the deposition is by affirmation or declaration, the form is to be varied accordingly. * Delete whichever is inapplicable.

Form 4

[2-5985]

CERTIFICATE OF ATTORNEY GENERAL OR DIRECTOR OF PUBLIC PROSECUTIONS (Clause 114) (Criminal Procedure Act 1986: section 44(1)) This is to certify that no further proceedings are to be taken with respect to [insert name of person], a person who is in custody on remand in the correctional centre at [insert name of correctional centre], under the order of [insert name of Judge], a Judge of the Supreme Court, or [insert name of Justice], Justice, on the following charge: To their Honours the Judges of the Supreme Court.

}

[insert signature of Attorney General or Director of Public Prosecutions] Attorney General/Director of Public Prosecutions Date:

488

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CRIMINAL PROCEDURE REGULATION 2017

[2-5990]

Form 5

[2-5990]

IMPORTANT INFORMATION ABOUT YOUR RIGHTS (Clause 117) (Criminal Procedure Act 1986: section 265(1)(b)) To [insert name of person charged] charged with the offence of [insert offence] before the [insert name of court]. You have a right to make an election The offence with which you have been charged is an indictable offence. That means that you may be dealt with by a jury in a higher court known as the District Court. If you want to be dealt with by a jury you must elect to have the offence dealt with that way. You can make an election by telling the Magistrate you want to be dealt with by a jury. If you do not elect to be dealt with by a jury, you will be dealt with summarily. That means you will be dealt with by a Magistrate of the Local Court. To help you make your decision, you will shortly be provided with a copy of the brief of evidence against you and with your criminal history. You have to make your decision within [insert number of days] days of being served with a copy of the brief of evidence. You may wish to seek legal advice before you make an election. Regardless of what you do, the prosecutor can elect to have the offence dealt with on indictment. If you are dealt with by a jury This will be in the District Court. The jury (which is a group of people selected from the community) will hear evidence and decide if you are guilty or not guilty. If the jury decides that you are guilty, the Judge will decide your penalty. The maximum penalty/term that the Judge can impose is [insert maximum penalty or term] If you are dealt with by a Magistrate This will be in the Local Court. The Magistrate will hear evidence and decide if you are guilty or not guilty. If the Magistrate decides that you are guilty, the Magistrate will decide your penalty. The maximum penalty/term that the Magistrate can impose is [insert maximum penalty or term]

489

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Criminal Procedure

Form 5

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SCHEDULE 2 — FEES (Clauses 12 and 13)

[Sch 2 subst SI 315 of 2018 Sch 1, opn 1 July 2018; SI 328 of 2019 Sch 1, opn 11 July 2019]

PART 1 — COURT FEES Item 1

2

3

4

5

6

7 8

9

10 11

Matter for which fee payable Filing a court attendance notice under Chapter 4 of the Criminal Procedure Act 1986 to commence proceedings to which Parts 2–4 of that Chapter apply Filing an application under Chapter 4 of the Criminal Procedure Act 1986 to commence proceedings to which Part 5 of that Chapter applies, being proceedings in the Land and Environment Court (Class 5 of that Court’s jurisdiction) Filing an application to commence summary proceedings brought in the District Court, other than proceedings brought by the secretary of an industrial organisation of employees Filing an application to the Local Court for annulment of conviction or sentence under Part 2 of the Crimes (Appeal and Review) Act 2001 Filing a notice of appeal, or an application for leave to appeal, to the District Court under Part 3 of the Crimes (Appeal and Review) Act 2001: (a) in relation to a single offence (b) in relation to more than one offence arising from the same court appearance Filing a notice of appeal, or an application for leave to appeal, to the Land and Environment Court under Part 4 of the Crimes (Appeal and Review) Act 2001 (Class 6 or 7 of that Court’s jurisdiction) Issuing a certificate of conviction or dismissal Retrieving, providing access to and furnishing a copy of any document (otherwise than as provided for by items 9 and 11): (a) for up to 20 pages (b) for each 10 pages (or part thereof) after the first 20 pages Retrieving and providing access to, but not furnishing a copy of, any file or box of files, where the file or box of files is retrieved from an off-site storage facility: (a) standard retrieval request (for each file or box of files) (b) non-standard retrieval request (including an urgent retrieval request, a high or after hours priority retrieval request or a retrieval request for delivery to or from a regional location outside the Sydney metropolitan area) Supplying a duplicate recording of sound-recorded evidence — perdisc Providing a copy of any deposition or transcript (unless otherwise provided for under any other Act): (a) for each page, where the matter being transcribed is under 3 months old:

491

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Fee $97

$973

$1,922

$97

$119 $186 $973

$62

$13 $7

$83 Such additional fee incurred by a court $54

Criminal Procedure

[2-5995]

[2-5995] Item

Sch 2

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Matter for which fee payable (i) for up to 8 pages (ii) for each page after the first 8 pages (b) for each page, where the matter being transcribed is 3 months old or older: (i) for up to 8 pages (ii) for each page after the first 8 pages

Fee $93 $11

$113 $13

PART 2 — SHERIFF’S FEES Item 1

Matter for which fee payable Attending a view by a jury in criminal proceedings

492

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Fee $191

Criminal Procedure

[2-5995A]

SCHEDULE 3 — NSW GOVERNMENT AGENCIES AND STATUTORY BODIES REQUIRED TO PAY COURT FEES (Clause 18)

[Sch 3 am Act 63 of 2017 Sch 4.12[1], [2], opn 14 Jan 2018; Act 18 of 2018 Sch 2 item 2.3, opn 1 July 2018]

Barangaroo Delivery Authority Centennial Park and Moore Park Trust Department of Finance, Services and Innovation, but only in relation to offences against the following Acts or the regulations made under them or the following regulation: (a) the Associations Incorporation Act 2009, (b) the Australian Consumer Law (NSW), (c) the Boarding Houses Act 2012, (d) the Community Land Management Act 1989, (e) the Contracts Review Act 1980, (f) the Conveyancers Licensing Act 2003, (g) the Co-operative Housing and Starr-Bowkett Societies Act 1998, (h) the Co-operatives National Law (NSW), (i) the Electricity (Consumer Safety) Act 2004, (j) the Fair Trading Act 1987, (k) the Fitness Services (Pre-paid Fees) Act 2000, (l) the Funeral Funds Act 1979, (m) the Gas Supply (Consumer Safety) Regulation 2012, (n) the Holiday Parks (Long-term Casual Occupation) Act 2002, (o) the Home Building Act 1989, (p) the Landlord and Tenant Act 1899, (q) the Landlord and Tenant (Amendment) Act 1948, (r) the Motor Dealers and Repairers Act 2013, (s) the Partnership Act 1892, (t) the Pawnbrokers and Second-hand Dealers Act 1996, (u) the Plumbing and Drainage Act 2011, (v) the Prices Regulation Act 1948, (w) the Property, Stock and Business Agents Act 2002, (x) the Residential (Land Lease) Communities Act 2013, (y) the Residential Parks Act 1998, (z) the Residential Tenancies Act 2010, (aa) the Retirement Villages Act 1999, (ab) the Strata Schemes Management Act 1996, (ac) the Strata Schemes Management Act 2015, (ad) the Tattoo Parlours Act 2012, (ad1) the Tow Truck Industry Act 1998, (ae) the Travel Agents Act 1986. Department of Industry, but only in relation to offences against the following Acts or the regulations made under them: (a) the Combat Sports Act 2013, (b) the Fisheries Act 1935,

493

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[2-5995A]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Sch 3

(c) the Fisheries Management Act 1994, (d) the Motor Vehicle Sports (Public Safety) Act 1985, (e) the Mount Panorama Motor Racing Act 1989, (f) the Sporting Venues Authorities Act 2008, (g) the Sydney Cricket and Sports Ground Act 1978, (h) the Sydney Olympic Park Authority Act 2001, (i) the Water Act 1912, (j) the Water Management Act 2000. Department of Justice, but only in relation to offences against the following Acts or the regulations made under them: (a) the Civil and Administrative Tribunal Act 2013, (b) the Crimes Act 1900. Destination NSW Environment Protection Authority Historic Houses Trust of New South Wales Hunter Development Corporation Independent Liquor and Gaming Authority Lifetime Care and Support Authority Local Land Services Long Service Corporation New South Wales Land and Housing Corporation NSW Food Authority NSW Self Insurance Corporation NSW Trains NSW Trustee and Guardian Office of Environment and Heritage, Department of Planning and Environment, but only in relation to offences against the National Parks and Wildlife Act 1974 or the regulations made under it Parramatta Park Trust Place Management NSW Property NSW Rail Corporation New South Wales Rental Bond Board Residual Transport Corporation Roads and Maritime Services, but only in relation to offences against the following Acts or the regulations made under them: (a) the Heavy Vehicle National Law (NSW), (b) the Marine Safety Act 1998. The Royal Botanic Gardens and Domain Trust SafeWork NSW State Archives and Records Authority of New South Wales State Insurance Regulatory Authority State Transit Authority of NSW Statutory State owned corporations (within the meaning of the State Owned Corporations Act 1989) that represent the Crown by express agreement of the voting shareholders as referred to in section 20F of that Act

494

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CRIMINAL PROCEDURE REGULATION 2017

Sydney Metro Sydney Ferries Sydney Olympic Park Authority Sydney Trains Teacher Housing Authority of New South Wales UrbanGrowth NSW Development Corporation Venues NSW Western Sydney Parklands Trust Zoological Parks Board of New South Wales

495

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[2-5995A] Criminal Procedure

Sch 3

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SCHEDULE 4 — PENALTY NOTICE OFFENCES

[Sch 4 am SI 22 of 2019 cl 3, opn 25 Jan 2019]

For the purposes of sections 336 and 337 of the Act: (a) each offence specified in this Schedule is an offence for which a penalty notice may be issued, and (b) the amount payable under the penalty notice is the amount specified in this Schedule for the offence. Column 1 Provision Offences under Crimes Act 1900 section 117, if value of property or amount does not exceed $300 section 527C(1) Offences under Drug Misuse and Trafficking Act 1985 Section 10, if prohibited drug is other than cannabis leaf and: (a) in the case of 3,4-Methylenedioxymethylamphetamine: (i) in capsule form — does not exceed a small quantity, and (ii) in any other form — is less than a traffickable quantity, or (b) in any other case — does not exceed a small quantity, within the meaning of the Drug Misuse and Trafficking Act 1985 Offences under Summary Offences Act 1988 section 4(1) section 4A(1) section 6 section 6A section 9

497

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Column 2 Penalty $300 $350 $400

$500 $500 $200 $250 $1,100

Criminal Procedure

[2-6000]

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TABLE OF PROVISIONS Section

Title

Paragraph

PART 1 — PRELIMINARY 1 2 3 3A

Name of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Purposes of sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 1] [5-s 2] [5-s 3] [5-s 3A]

PART 2 — PENALTIES THAT MAY BE IMPOSED DIVISION 1 — GENERAL

4 4A 4B

Penalties generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Domestic violence offenders — requirement for full-time detention or supervision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Domestic violence offenders — protection and safety of victims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 4] [5-s 4A] [5-s 4B]

DIVISION 2 — CUSTODIAL SENTENCES

5 5A 6 6 7

Penalties of imprisonment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Compulsory drug treatment detention . . . . . . . . . . . . . . . . . . . . Periodic detention [Repealed] Home detention [Repealed] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intensive correction orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 5] [5-s 5A] [5-s 6] [5-s 7]

DIVISION 3 — NON-CUSTODIAL ALTERNATIVES

8 9 10 10A 11 12 13

Community correction orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . Conditional release orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dismissal of charges and conditional discharge of offender ....................................................... Conviction with no other penalty . . . . . . . . . . . . . . . . . . . . . . . . Deferral of sentencing for rehabilitation, participation in an intervention program or other purposes . . . . . . . . . . . . Suspended sentences [Repealed] . . . . . . . . . . . . . . . . . . . . . . . . Community service orders and good behaviour bonds to be alternative penalties only [Repealed] . . . . . . . . . . . . . .

499

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[5-s 8] [5-s 9] [5-s 10] [5-s 10A] [5-s 11] [5-s 12] [5-s 13]

Sentencing

Crimes (Sentencing Procedure) Act 1999

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Section

14 15 16 17

Title DIVISION 4 — FINES

Fines as an additional penalty to good behaviour bond [Repealed] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Fines as an additional or alternative penalty to imprisonment for offences dealt with on indictment . . Fines for bodies corporate for offences punishableby imprisonment only . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Penalty units . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Paragraph

[5-s 14] [5-s 15] [5-s 16] [5-s 17]

DIVISION 4A — NON-ASSOCIATION AND PLACE RESTRICTION ORDERS

17A

Non-association and place restriction orders . . . . . . . . . . . . .

17B

Definition of and provisions relating to “assessment report” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Request for assessment report . . . . . . . . . . . . . . . . . . . . . . . . . . . Requirement for assessment report . . . . . . . . . . . . . . . . . . . . . .

[5-s 17A]

DIVISION 4B — ASSESSMENT REPORTS

17C 17D

[5-s 17B] [5-s 17C] [5-s 17D]

DIVISION 4C — PROVISIONS RELATING TO CERTAIN ORDERS

17E 17F 17G 17H 17I 17J

Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Multiple orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Community service work conditions under multiple orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Curfew conditions under multiple orders . . . . . . . . . . . . . . . . Explanation of relevant order to offender . . . . . . . . . . . . . . . . Notice of relevant order to be given . . . . . . . . . . . . . . . . . . . . .

[5-s 17E] [5-s 17F] [5-s 17G] [5-s 17H] [5-s 17I] [5-s 17J]

DIVISION 5 — MISCELLANEOUS

18 19 20

Interpretation of provisions imposing penalties . . . . . . . . . . Effect of alterations in penalties . . . . . . . . . . . . . . . . . . . . . . . . No double jeopardy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 18] [5-s 19] [5-s 20]

PART 3 — SENTENCING PROCEDURES GENERALLY DIVISION 1 — GENERAL

21 21A 22 22A 23 24

General power to reduce penalties . . . . . . . . . . . . . . . . . . . . . . Aggravating, mitigating and other factors in sentencing . Guilty plea to be taken into account for offences not dealt with on indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Power to reduce penalties for facilitating the administration of justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Power to reduce penalties for assistance provided to law enforcement authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Court to take other matters into account . . . . . . . . . . . . . . . . .

500

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[5-s 21] [5-s 21A] [5-s 22] [5-s 22A] [5-s 23] [5-s 24]

CRIMES (SENTENCING PROCEDURE) ACT 1999

24A 24B 24C 25 25AA

Title

Mandatory requirements for supervision and other prohibitions to be disregarded in sentencing . . . . . . . . . . Confiscation of assets and forfeiture of proceeds of crime to be disregarded in sentencing . . . . . . . . . . . . . . . . . . . . . . . Loss of parliamentary pension to be disregarded insentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Local Court not to impose certain penalties if offender is absent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sentencing for child sexual offences . . . . . . . . . . . . . . . . . . . . .

Paragraph

[5-s 24A] [5-s 24B] [5-s 24C] [5-s 25] [5-s 25AA]

DIVISION 1A — SENTENCING DISCOUNTS FOR GUILTY PLEAS TO INDICTABLE OFFENCES

25A 25B 25C 25D 25E 25F

Application of Division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Timing of pleas and notice requirements . . . . . . . . . . . . . . . . Sentencing discounts for guilty plea for offences dealt with on indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sentencing discounts to apply in certain cases where guilty plea offer made for different offences and refused when made . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Other provisions applying to sentencing discount . . . . . . . .

[5-s 25A] [5-s 25B] [5-s 25C] [5-s 25D] [5-s 25E] [5-s 25F]

DIVISION 2 — VICTIM IMPACT STATEMENTS

26 27

Subdivision 1 — Preliminary Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application of Division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 26] [5-s 27]

28 29 30

Subdivision 2 — Preparation of statements Contents of victim impact statements . . . . . . . . . . . . . . . . . . . . Formal requirements for victim impact statements . . . . . . . Victim may be assisted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 28] [5-s 29] [5-s 30]

30A 30B 30C 30D 30E 30F 30G

30H

Subdivision 3 — Consideration of statements by court Tendering of victim impact statements . . . . . . . . . . . . . . . . . . Receipt of victim impact statement by court . . . . . . . . . . . . . Victim may object to tendering of victim impact statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Reading out of statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . How court uses victim impact statements . . . . . . . . . . . . . . . . Restrictions on consideration of victim impact statements not made in accordance with Division . . . . . . . . . . . . . . . . Access to victim impact statements prior to sentencing hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 30A] [5-s 30B] [5-s 30C] [5-s 30D] [5-s 30E] [5-s 30F] [5-s 30G]

Subdivision 4 — Special provisions relating to the reading of statements Victims are entitled to have a support person present . . . . [5- s 30H]

501

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Sentencing

Section

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Section

30I 30J 30K

30L 30M 30N

Title

Victims who are entitled to give evidence in closed court may also read their victim impact statements in closed court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Victims who are entitled to give evidence by CCTV may also read their victim impact statements by CCTV . . . . Other victims may read their victim impact statements in closed court or by CCTV with leave of court . . . . . . . . .

Paragraph

[5- s 30I] [5- s 30J] [5- s 30K]

Subdivision 5 — Special provisions regarding forensic patients Victim impact statements where verdict of not guilty by reason of mental illness or limited finding of guilt . . . . [5-s 30L] Submissions by designated carers and principal care providers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [5-s 30M] Victim impact statements in mental health and cognitive impairment forensic proceedings . . . . . . . . . . . . . . . . . . . . . . [5-s 30N] DIVISION 3 — TAKING FURTHER OFFENCES INTO ACCOUNT

31 32 33 34 35 35A

Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Prosecutor may file list of additional charges . . . . . . . . . . . Outstanding charges may be taken into account . . . . . . . . Ancillary orders relating to offences taken into account . Consequences of taking offences into account . . . . . . . . . . Consultation with victim and police in relation to charge negotiations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s [5-s [5-s [5-s [5-s

31] 32] 33] 34] 35]

[5-s 35A]

DIVISION 4 — SENTENCING GUIDELINES

36 37 37A 37B 38 39 39A 40 41 42 42A

Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Guideline judgments on application of Attorney General . Guideline judgments on own motion . . . . . . . . . . . . . . . . . . . Review, variation and revocation of guideline judgments . Senior Public Defender may intervene . . . . . . . . . . . . . . . . . . . Director of Public Prosecutions may intervene . . . . . . . . . . Attorney General may intervene . . . . . . . . . . . . . . . . . . . . . . . . Discretion of Court preserved . . . . . . . . . . . . . . . . . . . . . . . . . . . Rules of court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Use of evidence in giving guideline judgments . . . . . . . . . Relationship of guidelines and other sentencing matters .

[5-s 36] [5-s 37] [5-s 37A] [5-s 37B] [5-s 38] [5-s 39] [5-s 39A] [5-s 40] [5-s 41] [5-s 42] [5-s 42A]

DIVISION 5 — CORRECTION AND ADJUSTMENT OF SENTENCES

43

Court may reopen proceedings to correct sentencing errors .......................................................

[5-s 43]

PART 4 — SENTENCING PROCEDURES FOR IMPRISONMENT DIVISION 1 — SETTING TERMS OF IMPRISONMENT

44

Court to set non-parole period . . . . . . . . . . . . . . . . . . . . . . . . . . .

502

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[5-s 44]

CRIMES (SENTENCING PROCEDURE) ACT 1999

45 46 47 48 49 50 51 51A 51B 52 53 53A 53B 54

Title

Court may decline to set non-parole period . . . . . . . . . . . . . Court not to set non-parole period for sentence of 6 months or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Commencement of sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . Information about release date . . . . . . . . . . . . . . . . . . . . . . . . . . Restriction on term of sentence . . . . . . . . . . . . . . . . . . . . . . . . . Making of parole orders by court [Repealed] . . . . . . . . . . . . Conditions on parole orders [Repealed] . . . . . . . . . . . . . . . . . Conditions of parole as to non-association and place restriction [Repealed] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Certain information not to be published or broadcast [Repealed] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Court’s powers on appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Multiple sentences of imprisonment . . . . . . . . . . . . . . . . . . . . . Aggregate sentences of imprisonment . . . . . . . . . . . . . . . . . . . Limitation on aggregate sentences imposed by Local Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exclusions from Division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Paragraph

[5-s 45] [5-s [5-s [5-s [5-s [5-s [5-s

46] 47] 48] 49] 50] 51]

[5-s 51A] [5-s 51B] [5-s 52] [5-s 53] [5-s 53A] [5-s 53B] [5-s 54]

DIVISION 1A — STANDARD NON-PAROLE PERIODS

54A 54B 54C 54D

What is the standard non-parole period? . . . . . . . . . . . . . . . . . Consideration of standard non-parole period in sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Court to give reasons if non-custodial sentence imposed . Exclusions from Division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 54A] [5-s 54B] [5-s 54C] [5-s 54D]

DIVISION 2 — CONCURRENT AND CONSECUTIVE SENTENCES

55 56 57 58 59 60

Sentences for offences generally . . . . . . . . . . . . . . . . . . . . . . . . Sentences for offences involving assault by convicted inmate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sentences for offences involving escape by inmates . . . . Limitation on consecutive sentences imposed by Local Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Court may vary commencement of sentence on quashing or varying other sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application of Division to interstate sentences of imprisonment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 55] [5-s 56] [5-s 57] [5-s 58] [5-s 59] [5-s 60]

DIVISION 2A — PROVISIONAL SENTENCING FOR CHILD OFFENDERS

60A 60B 60C 60D 60E

Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Power to impose provisional sentence . . . . . . . . . . . . . . . . . . . Case plan to be provided . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Effect of provisional sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . Progress reviews . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

503

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[5-s 60A] [5-s 60B] [5-s 60C] [5-s 60D] [5-s 60E]

Sentencing

Section

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Section

60F

Title

60G 60H 60I

Progress reports to be provided by person responsible for detention of an offender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Final sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Time limit for imposition of final sentence . . . . . . . . . . . . . . Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

61 62 63

Mandatory life sentences for certain offences . . . . . . . . . . . Warrant of commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Offenders to be photographed and fingerprinted . . . . . . . .

Paragraph

[5-s 60F] [5-s 60G] [5-s 60H] [5-s 60I]

DIVISION 3 — MISCELLANEOUS

[5-s 61] [5-s 62] [5-s 63]

PART 5 — SENTENCING PROCEDURES FOR INTENSIVE CORRECTION ORDERS DIVISION 1 — PRELIMINARY

64 65

Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 64] [5-s 65]

DIVISION 2 — RESTRICTIONS ON POWER TO MAKE INTENSIVE CORRECTION ORDERS

66 67 68 69

Community safety and other considerations . . . . . . . . . . . . . Intensive correction order not available for certain offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intensive correction orders not available where imprisonment exceeds limits . . . . . . . . . . . . . . . . . . . . . . . . . . Assessment of suitability of offender for intensive correction order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 66] [5-s 67] [5-s 68] [5-s 69]

DIVISION 3 — TERM AND COMMENCEMENT

70 71

Term of intensive correction order . . . . . . . . . . . . . . . . . . . . . . . Commencement of intensive correction order . . . . . . . . . . . .

[5-s 70] [5-s 71]

DIVISION 4 — CONDITIONS

72 73 73A 73B

Conditions generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Standard conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Additional conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Further conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 72] [5-s 73] [5-s 73A] [5-s 73B]

PART 6 — SENTENCING PROCEDURES FOR HOME DETENTION ORDERS [Repealed] PART 7 — SENTENCING PROCEDURES FOR COMMUNITY CORRECTION ORDERS DIVISION 1 — PRELIMINARY

84

Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

504

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[5-s 84]

CRIMES (SENTENCING PROCEDURE) ACT 1999

Title DIVISION 2 — TERM AND COMMENCEMENT

85 86

Term of community correction order . . . . . . . . . . . . . . . . . . . . Commencement of community correction order . . . . . . . . .

87 88 89 90 91

Conditions generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Standard conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Additional conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Further conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Power of court in dealing with applications . . . . . . . . . . . . .

Paragraph

[5-s 85] [5-s 86]

DIVISION 3 — CONDITIONS

[5-s [5-s [5-s [5-s [5-s

87] 88] 89] 90] 91]

PART 8 — SENTENCING PROCEDURES FOR CONDITIONAL RELEASE ORDERS DIVISION 1 — PRELIMINARY

94

Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 94]

DIVISION 2 — TERM AND COMMENCEMENT

95 96

Term of conditional release order . . . . . . . . . . . . . . . . . . . . . . . . Commencement of conditional release order . . . . . . . . . . . .

[5-s 95] [5-s 96]

DIVISION 3 — CONDITIONS

97 98 99 99A 100

Conditions generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Standard conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Additional conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Further conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Power of court in dealing with applications . . . . . . . . . . . . .

[5-s 97] [5-s 98] [5-s 99] [5-s 99A] [5-s 100]

PART 8A — NON-ASSOCIATION AND PLACE RESTRICTION ORDERS 100A 100B 100C 100D 100E 100F 100G 100H

Non-association and place restriction orders not to restrict certain associations or activities . . . . . . . . . . . . . . . . . . . . . . . Explanation of non-association and place restriction orders to offenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Commencement of non-association and place restriction orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Suspension of non-association and place restriction orders while offenders in custody . . . . . . . . . . . . . . . . . . . . . . . . . . . . Contravention of non-association and place restriction orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Variation or revocation of non-association and place restriction orders following subsequent conviction . . . . Variation or revocation of non-association and place restriction orders on application . . . . . . . . . . . . . . . . . . . . . . . Certain information not to be published or broadcast . . . .

505

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[5-s 100A] [5-s 100B] [5-s 100C] [5-s 100D] [5-s 100E] [5-s 100F] [5-s 100G] [5-s 100H]

Sentencing

Section

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Section

Title

Paragraph

PART 8B — NEW SOUTH WALES SENTENCING COUNCIL 100I 100J 100K 100L

Constitution of New South Wales Sentencing Council . . . Functions of Sentencing Council . . . . . . . . . . . . . . . . . . . . . . . . Committees of Sentencing Council . . . . . . . . . . . . . . . . . . . . . . Staff of Sentencing Council . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 100I] [5-s 100J] [5-s 100K] [5-s 100L]

PART 8C — SENTENCING PROCEDURES FOR INTERVENTION PROGRAM ORDERS DIVISION 1 — PRELIMINARY

100M

Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 100M]

DIVISION 2 — RESTRICTIONS ON POWER TO MAKE INTERVENTION PROGRAM ORDERS

100N 100O 100P

Suitability of offender for intervention program . . . . . . . . . Referral of offender for assessment . . . . . . . . . . . . . . . . . . . . . . Explanation of intervention program order . . . . . . . . . . . . . .

[5-s 100N] [5-s 100O] [5-s 100P]

DIVISION 3 — ENFORCEMENT OF INTERVENTION PROGRAM ORDER

100Q 100R 100S 100T

Procedure following failure to enter into agreement . . . . . Proceedings for breach of order . . . . . . . . . . . . . . . . . . . . . . . . . Consequences of revocation of order . . . . . . . . . . . . . . . . . . . . Right to decide not to participate in intervention program .

[5-s 100Q] [5-s 100R] [5-s 100S] [5-s 100T]

PART 9 — MISCELLANEOUS 101 101A 102 103 104 105 106 107

Abolition of power of court concerning recognizances and sureties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Effect of failure to comply with Act . . . . . . . . . . . . . . . . . . . . . Prerogative of mercy preserved . . . . . . . . . . . . . . . . . . . . . . . . . Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Savings, transitional and other provisions . . . . . . . . . . . . . . . Review of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Review of Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 . . . . . . . . . . . . Review of Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014 . SCHEDULE 1 — EXISTING LIFE SENTENCES SCHEDULE 1A — PROVISIONS RELATING TO MEMBERSHIP AND PROCEDURE OF NEW SOUTH WALES SENTENCING COUNCIL SCHEDULE 2 — SAVINGS, TRANSITIONAL AND OTHER PROVISIONS

506

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[5-s 101] [5-s 101A] [5-s 102] [5-s 103] [5-s 104] [5-s 105] [5-s 106] [5-s 107]

TABLE OF AMENDMENTS Crimes (Sentencing Procedure) Act 1999 No 92, received assent 8 December 1999, commenced 3 April 2000 (Gaz No 42 of 31 March 2000), as amended by: Amending Legislation

Date of Assent

Date of Commencement

Occupational Health and Safety Act 2000 No 40

26 June 2000

1 September 2001 (Gaz 129 of 24 August 2001)

Crimes Legislation Amendment Act 2000 No 43

27 June 2000

31 July 2000 (Gaz 93 of 21 July 2000)

Legal Aid Commission Amendment Act 2000 No 98

13 December 2000

15 January 2001 (Gaz 10 of 12 January 2001)

Crimes (Administration of Sentences) Amendment Act 2000 No 110

20 December 2000

16 February 2001 (Gaz 39 of 16 February 2001)

Criminal Procedure Amendment (Pretrial Disclosure) Act 2001 No 7

18 April 2001

19 November 2001 (Gaz 173 of 9 November 2001)

Crimes Legislation Amendment (Existing Life Sentences) Act 2001 No 29

27 June 2001

20 July 2001 (Gaz 113 of 20 July 2001)

Crimes Amendment (Aggravated Sexual Assault in Company) Act 2001 No 62

21 September 2001

1 October 2001 (Gaz 146 of 28 September 2001)

Justice Legislation Amendment (Nonassociation and Place Restriction) Act 2001 No 100

11 December 2001

s 3 and Sch 1.1: 22 July 2002 (Gaz 119 of 19 July 2002)

Criminal Legislation Amendment Act 2001 No 117

18 December 2001

Sch 5[1]–[8], [13]–[14]: on assent (s 2(2); Sch 5[9]– [12] and [15]: 21 December 2001 (Gaz 196 of 21 December 2001)

Justices Legislation Repeal and Amendment Act 2001 No 121

19 December 2001

7 July 2003

Crimes (Sentencing Procedure) Amendment (General Sentencing Principles) Act 2002 No 5

9 April 2002

15 April 2002 (Gaz 74 of 15 April 2002)

Crimes Legislation Amendment (Periodic and Home Detention) Act 2002 No 74

2 October 2002

2 December 2002 (Gaz 225 of 22 November 2002)

507

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Sentencing

Crimes (Sentencing Procedure) Act 1999

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Amending Legislation

Date of Assent

Date of Commencement

Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 No 90

22 November 2002

s 3 and Sch 1 (except [5] and [7]) and Sch 3.2 (except [2]): 1 February 2003 (Gaz 263 of 20 December 2002); s 3 and Sch 1[5] and [7] and Sch 3.2[2]: 17 February 2003 (Gaz 39 of 7 February 2003)

Crimes Legislation Amendment (Criminal Justice Interventions) Act 2002 No 100

29 November 2002

s 5 and Sch 3: 24 February 2003 (Gaz 49 of 21 February 2003)

Crimes Legislation Amendment Act 2002 No 130

17 December 2002

s 3 and Sch 5: 13 January 2003 (Gaz 13 of 10 January 2003)

Victims Legislation Amendment Act 2003 No 10

5 June 2003

s 3 and Sch 1: 23 June 2003 (Gaz 101 of 20 June 2003)

Crimes Legislation Amendment (Parole) Act 2003 No 25

7 July 2003

s 3 and Sch 1: 3 November 2003 (Gaz 174 of 31 October 2003)

Crimes Legislation Amendment Act 2003 No 27

8 July 2003

s 3 and Sch 6: 8 July 2003 (except Sch 6[6]–[8]) (Gaz 114 of 18 July 2003); Sch 6[6] - [8]: 18 August 2003 (Gaz 126 of 15 August 2003)

Crimes Legislation Further Amendment Act 2003 No 85

5 December 2003

14 February 2004 (Gaz 12 of 16 January 2004)

Crimes (Sentencing Procedure) Amendment (Victim Impact Statements) Act 2004 No 3

17 March 2004

s 3 and Sch 1: 31 July 2004 (Gaz 126 of 30 July 2004)

Crimes Legislation Amendment Act 2004 No 11

24 March 2004

24 March 2004

Compulsory Drug Treatment Correctional Centre Act 2004 No 42

6 July 2004

21 July 2006

Courts Legislation Amendment Act 2004 No 68

6 July 2004

s 3 and Sch 4: on assent

Crimes (Sentencing Procedure) Amendment (Existing Life Sentences) Act 2005 No 13

6 May 2005

s 3 and Sch 1: on assent

Statute Law (Miscellaneous Provisions) Act (No 2) 2005 No 98

24 November 2005

1 December 2005

Crimes (Sentencing Procedure) Amendment 2006 No 27

26 May 2006

On assent

Crimes Amendment (Apprehended Violence) Act 2006 No 73

27 October 2006

Sch 3.7: 12 March 2007

508

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Amending Legislation

Date of Assent

Date of Commencement

Crimes and Courts Legislation Amendment Act 2006 No 107

29 November 2006

Sch 1(1.11) items (20)–(21): NYP; Sch 1(1.15) items (1)–(2): 2 February 2007; Sch 1(1.9) items (5)–(8): 23 February 2007: rem: 29 November 2006

Victims Support and Rehabilitation Amendment Act 2006 No 127

4 December 2006

16 February 2007

Crimes (Sentencing Procedure) Amendment Act 2007 No 50

1 November 2007

Sch 1: 1 January 2008

Crimes (Domestic and Personal Violence) Act 2007 No 80

7 December 2007

Sch 2.8: 10 March 2008 (Gaz 30 of 7 March 2008)

Miscellaneous Acts (Local Court) Amendment Act 2007 No 94

13 December 2007

All (except Schs 1.3[1]–[2], 1.6, 1.13[2], 1.29[17]– [18], 1.35[1] and 1.47): 6 July 2009 (s 2 and SI 314 of 2009); rem: NYP

Crimes (Sentencing Procedure) Amendment (Life Sentences) Act 2008 No 57

1 July 2008

s 3 and Sch 1: 1 July 2008

Mental Health Legislation Amendment (Forensic Provisions) Act 2008 No 79

5 November 2008

1 March 2009 (s 2 and Gaz 44 of 27 February 2009, p 1229)

Crimes (Sentencing Procedure) Amendment (Victim Impact Statements) Act 2008 No 81

5 November 2008

1 January 2009 (s 2 and Gaz 158 of 19 December 2008, p 12304)

Rail Safety Act 2008 No 97

3 December 2008

1 January 2009 (s 2 and Gaz 158 of 19 December 2008, p 12308)

Crimes Amendment (Sexual Offences) Act 2008 No 105

8 December 2008

Sch 1[10]: 1 January 2009 (s 2(2)); rem: 1 January 2009 (s 2(1) and Gaz 158 of 19 December 2008, p 12303)

Crimes (Domestic and Personal Violence) Amendment Act 2008 No 119

10 December 2008

On assent (s 2)

Criminal Legislation Amendment Act 2009 No 27

19 May 2009

On assent (s 2)

Crimes (Sentencing Procedure) Amendment (Council Law Enforcement Officers) Act 2009 No 28

9 June 2009

On assent (s 2)

Courts and Other Legislation Amendment Act 2009 No 37

19 June 2009

Sch 1.5: 19 June 2009 (s 2)

Relationships Register Act 2010 No 19

19 May 2010

Sch 3: on assent (s 2(2))

Weapons and Firearms Legislation Amendment Act 2010 No 40

15 June 2010

9 July 2010 (s 2 and SI 351 of 2010, LW 9 July 2010)

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Sentencing

CRIMES (SENTENCING PROCEDURE) ACT 1999

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Amending Legislation

Date of Assent

Date of Commencement

Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010 No 48

28 June 2010

Sch 1: 1 October 2010 (s 2 and SI 532 of 2010, LW 17 September 2010)

Crimes (Sentencing Procedure) Amendment Act 2010 No 136

7 December 2010

Schs 1.2 and 2: 14 March 2011 (s 2 and SI 175 of 2011, LW 3 March 2011)

Courts and Other Legislation Amendment Act 2011 No 8

7 June 2011

Sch 1.1: 7 June 2011 (s 2)

Statute Law (Miscellaneous Provisions) Act (No 2) 2011 No 62

16 November 2011

Sch 3.6: 6 January 2012 (s 2(1))

Crimes (Sentencing Procedure) Amendment (Children in Vehicles) Act 2011 No 64

16 November 2011

Sch 1: 16 November 2011 (s 2)

Work Health and Safety Legislation Amendment Act 2011 No 67

28 November 2011

Sch 4.4: 1 January 2012 (s 2)

Criminal Case Conferencing Trial Repeal Act 2012 No 4

14 March 2012

Sch 1: 14 March 2012 (s 2)

Graffiti Legislation Amendment Act 2012 No 57

28 August 2012

Sch 1.2: 10 December 2012 (s 2 and SI 599 of 2012, LW 7 December 2012)

Crimes Legislation Amendment Act 2012 No 67

24 September 2012

24 September 2012 (s 2)

Rail Safety (Adoption of National Law) Act 2012 No 82

29 October 2012

Sch 2.2: 20 January 2013 (s 2 and SI 646 of 2012, LW 21 December 2012)

Crimes (Serious Sex Offenders) Amendment Act 2013 No 4

19 March 2013

19 March 2013 (s 2)

Crimes (Sentencing Procedure) Amendment (Provisional Sentencing for Children) Act 2013 No 7

25 March 2013

25 March 2013 (s 2)

Road Transport Legislation (Repeal and Amendment) Act 2013 No 19

3 April 2013

1 July 2013 (s 2 and SI 329 of 2013, LW 28 June 2013)

Child Protection Legislation Amendment (Children’s Guardian) Act 2013 No 31

3 June 2013

Sch 3: 15 June 2013 (s 2)

Crimes (Sentencing Procedure) Amendment (Standard Non-parole Periods) Act 2013 No 78

29 October 2013

29 October 2013 (s 2)

Crimes and Courts Legislation Amendment Act 2013 No 80

29 October 2013

29 October 2013 (s 2)

Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 No 2

31 January 2014

Schs 3 and 6: 31 January 2014 (s 2(1))

Bail (Consequential Amendments) Act 2014 No 5

12 March 2014

20 May 2014 (s 2 and SI 235 of 2014, LW 24 April 2014)

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Amending Legislation

Date of Assent

Date of Commencement

Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014 No 18

20 May 2014

1 July 2014 (s 2 and SI 396 of 2014, LW 27 June 2014)

Crimes Legislation Amendment Act 2014 No 59

23 October 2014

23 October 2014 (s 2)

Crimes Legislation Amendment (Child Sex Offences) Act 2015 No 13

29 June 2015

29 June 2015 (s 2)

Statute Law (Miscellaneous Provisions) Act 2015 No 15

29 June 2015

Sch 2.12: 8 July 2015 (s 2(1)); Sch 3.17: 15 July 2015 (s 2(3))

Crimes (Sentencing Procedure) Amendment (Firearms Offences) Act 2015 No 17

21 August 2015

21 August 2015 (s 2)

Courts and Other Justice Portfolio Legislation Amendment Act 2015 No 67

24 November 2015

Sch 1.7: 24 November 2015 (s 2(1))

Justice Portfolio Legislation (Miscellaneous Amendments) Act 2016 No 54

25 October 2016

Sch 1.6: 25 October 2016 (s 2)

Parliamentary Contributory Superannuation Amendment (Criminal Charges and Convictions) Act 2017 No 18

1 June 2017

1 June 2017 (s 2(1))

Justice Legislation Amendment Act 2017 No 40

14 August 2017

Sch 1.6: 14 August 2017 (s 2(1))

Justice Legislation Amendment Act (No 2) 2017 No 44

25 September 2017

Sch 1.8: 25 September 2017 (s 2(1))

Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 No 53 as amended by Statute Law (Miscellaneous Provisions) Act 2018 No 25 and Justice Legislation Amendment Act (No 2) 2018 No 29

24 October 2017

Schs 1, 2: 24 September 2018 (LW 21 September 2018)

Crimes (High Risk Offenders) Amendment Act 2017 No 54

24 October 2017

Sch 2.2: 6 December 2017

Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 No 55

24 October 2017

Sch 2: 30 April 2018

Parole Legislation Amendment Act 2017 No 57

24 October 2017

Sch 3.2: 26 February 2018

Rural Crime Legislation Amendment Act 2017 No 62

23 November 2017

Sch 1.2: 23 November 2017 (s 2(1))

Terrorism (High Risk Offenders) Act 2017 No 68

30 November 2017

Sch 2.10[2]: 6 December 2017; Sch 2.10[1]: 19 January 2018

Statute Law (Miscellaneous Provisions) Act 2018 No 25

15 June 2018

Sch 1.5: 24 September 2018

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Sentencing

CRIMES (SENTENCING PROCEDURE) ACT 1999

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Amending Legislation

Date of Assent

Date of Commencement

Justice Legislation Amendment Act (No 2) 2018 No 29

21 June 2018

Sch 1.7: 21 June 2018 (s 2(1))

Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 No 33

27 June 2018

Sch 3[4]–[6]: 31 August 2018; Sch 3[1]–[3], [7], [8] and [10]: 1 December 2018

Crimes (Sentencing Procedure) Amendment (Community-based Orders and Other Matters) Regulation 2018 SI 537

LW 21 September 2018

Sch 2: 24 September 2018

Justice Legislation Amendment Act (No 3) 2018 No 87

28 November 2018

Sch 1 item 1.13: 28 November 2018

Crimes Legislation Amendment (Victims) Act 2018 No 88

28 November 2018 (LW 24 May 2019)

Sch 3: 27 May 2019

Justice Legislation Amendment Act 2019 No 10

26 September 2019

Sch 1.8: 26 September 2019

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PART 1 — PRELIMINARY

1

This Act is the Crimes (Sentencing Procedure) Act 1999.

[5-s 2] Commencement 2

This Act commences on a day or days to be appointed by proclamation.

[5-s 3] Interpretation 3 (1) In this Act: aggregate sentence of imprisonment — see section 53A. [def insrt Act 136 of 2010 Sch 2[1], opn 14 Mar 2011]

associate with means: (a) to be in company with, or (b) to communicate with by any means (including post, facsimile, telephone and email). [def insrt Act 100 of 2001 s 3 and Sch 1.1[1], opn 22 July 2002]

authorised officer has the same meaning as it has in the Criminal Procedure Act 1986. [def insrt Act 121 of 2001 s 4 and Sch 2.75[1], opn 7 July 2003]

Commissioner means the Commissioner of Corrective Services, Department of Justice. [def insrt Act 53 of 2017 Sch 1[1], opn 24 Sep 2018]

community correction order means an order referred to in section 8. [def insrt Act 53 of 2017 Sch 1[1], opn 24 Sep 2018]

community corrections officer has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999. [def insrt Act 53 of 2017 Sch 1[1], opn 24 Sep 2018]

community service order [def rep Act 53 of 2017 Sch 1[2], opn 24 Sep 2018]

community service work has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999. community service work condition — see sections 73A and 89. [def insrt Act 53 of 2017 Sch 1[1], opn 24 Sep 2018]

compulsory drug treatment detention means detention in accordance with Part 4A of the Crimes (Administration of Sentences) Act 1999. [def insrt Act 42 of 2004 s 4 and Sch 2[1], opn 21 July 2006]

conditional release order means an order referred to in section 9. [def insrt Act 53 of 2017 Sch 1[1], opn 24 Sep 2018]

convicted inmate has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999.

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Sentencing

[5-s 1] Name of Act

[5-s 3]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s3

correctional centre has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999. correctional officer has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999. Corrective Services NSW has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999. [def insrt Act 53 of 2017 Sch 1[1], opn 24 Sep 2018]

court means: (a) the Supreme Court, the Court of Criminal Appeal, the Land and Environment Court, the Industrial Relations Commission, the District Court or the Local Court, or (b) any other court that, or person who, exercises criminal jurisdiction, but, subject to the Children (Criminal Proceedings) Act 1987, does not include the Children’s Court or any other court that, or person who, exercises the functions of the Children’s Court. [def am Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009]

detention centre has the same meaning as it has in the Children (Detention Centres) Act 1987. [def insrt Act 130 of 2002 s 3 and Sch 5[1], opn 13 Jan 2003]

domestic violence offence has the same meaning as it has in the Crimes (Domestic and Personal Violence) Act 2007. [def insrt Act 53 of 2017 Sch 1[1], opn 24 Sep 2018]

Drug Court means the Drug Court of New South Wales constituted under the Drug Court Act 1998. [def insrt Act 42 of 2004 s 4 and Sch 2[1], opn 21 July 2006]

exercise a function includes perform a duty. full-time detention means detention in a correctional centre. [def subst Act 48 of 2010 Sch 1, opn 1 Oct 2010; Act 53 of 2017 Sch 1[3], opn 24 Sep 2018]

function includes a power, authority or duty. good behaviour bond [def rep Act 53 of 2017 Sch 1[2], opn 24 Sep 2018]

graffiti offence means an offence under the Graffiti Control Act 2008. [def insrt Act 57 of 2012 Sch 1 item 1.2, opn 10 Dec 2012]

home detention means detention in accordance with Part 4 of the Crimes (Administration of Sentences) Act 1999. home detention condition — see section 73A. [def insrt Act 53 of 2017 Sch 1[1], opn 24 Sep 2018]

home detention order [def am Act 48 of 2010 Sch 1, opn 1 Oct 2010; rep Act 53 of 2017 Sch 1[2], opn 24 Sep 2018]

inmate has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999.

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s3

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 3]

intensive correction has the same meaning as in the Crimes (Administration of Sentences) Act 1999. [def insrt Act 48 of 2010 Sch 1, opn 1 Oct 2010]

intervention plan has the same meaning as in the Criminal Procedure Act 1986. [def insrt Act 100 of 2002 s 5 and Sch 3[1], opn 24 Feb 2003]

intervention program has the same meaning as in the Criminal Procedure Act 1986. [def insrt Act 100 of 2002 s 5 and Sch 3[1], opn 24 Feb 2003]

intervention program order means an order referred to in section 10(1)(c). [def insrt Act 100 of 2002 s 5 and Sch 3[1], opn 24 Feb 2003]

juvenile justice officer has the same meaning as it has in the Children (Detention Centres) Act 1987. [def insrt Act 130 of 2002 s 3 and Sch 5[1], opn 13 Jan 2003; am Act 15 of 2015 Sch 3.17[1], opn 15 July 2015]

juvenile justice officer means a juvenile justice officer employed in the Department of Justice. [def insrt Act 53 of 2017 Sch 1[1], opn 24 Sep 2018]

Local Court [def rep Act 94 of 2007 s 3 and Sch 1.27, opn 6 July 2009]

non-association order means an order referred to in section 17A(2)(a). [def insrt Act 100 of 2001 s 3 and Sch 1.1[1], opn 22 July 2002]

non-parole period means a non-parole period referred to in section 44(1). [def am Act 90 of 2002 s 3 and Sch 3.2[1], opn 1 Feb 2003]

offender means a person whom a court has found guilty of an offence. Parole Authority means the State Parole Authority constituted by section 183 of the Crimes (Administration of Sentences) Act 1999. [def insrt Act 53 of 2017 Sch 1[1], opn 24 Sep 2018]

periodic detention [def rep Act 48 of 2010 Sch 1, opn 1 Oct 2010]

periodic detention centre [def rep Act 48 of 2010 Sch 1, opn 1 Oct 2010]

periodic detention order [def rep Act 48 of 2010 Sch 1, opn 1 Oct 2010]

person subject to control has the same meaning as it has in the Children (Detention Centres) Act 1987. [def insrt Act 130 of 2002 s 3 and Sch 5[1], opn 13 Jan 2003]

place restriction order means an order referred to in section 17A(2)(b). [def insrt Act 100 of 2001 s 3 and Sch 1.1[1], opn 22 July 2002]

probation and parole officer [def rep Act 87 of 2018 Sch 1 item 1.13[1], opn 28 Nov 2018]

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Sentencing

intensive correction order means an order referred to in section 7. [def insrt Act 48 of 2010 Sch 1, opn 1 Oct 2010]

[5-s 3]

s3

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

proceed to a conviction includes record a conviction. [def insrt Act 53 of 2017 Sch 1[1], opn 24 Sep 2018]

sentence means: (a) when used as a noun, the penalty imposed for an offence, and (b) when used as a verb, to impose a penalty for an offence. Sentencing Council means the New South Wales Sentencing Council constituted under Part 8B. [Def insrt Act 90 of 2002 s 3 and Sch 3.2[2], opn 17 Feb 2003]

sentencing court, in relation to an offender undergoing a penalty imposed by a court, means the court by which the penalty was imposed. supervision condition — see sections 73, 89 and 99. [def insrt Act 53 of 2017 Sch 1[1], opn 24 Sep 2018]

Note. The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

(2) In this Act: (a) a reference to a sentence of imprisonment to which an offender is subject includes a reference to a sentence that has been imposed but is yet to commence, and (b) a reference to the term of a sentence of imprisonment is, if the term is varied under this or any other Act, a reference to the term as so varied, and (c) a reference to a non-parole period of a sentence of imprisonment is, if the period is varied under this or any other Act, a reference to the period as so varied, and (d) a reference to a court that has sentenced an offender, made an order or given a direction includes a reference to the same court differently constituted. [subs (2) am Act 94 of 2007 s 3 and Sch 1.27, opn 6 July 2009]

(3) Notes in the text of this Act do not form part of this Act.

[5-s 3A] Purposes of sentencing 3A The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. [s 3A insrt Act 90 of 2002 s 3 and Sch 1[1], opn 1 Feb 2003]

COMMENTARY ON SECTION 3A Purposes of sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 3A.1]

[5-s 3A.1] Purposes of sentencing Section 3A states the purposes of sentencing. In Veen v R (No 2) (1988) 164 CLR 465; 77 ALR 385; BC8802593 at CLR 476; ALR 393, Mason CJ, Brennan, Dawson and Toohey JJ said:

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s 4A

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 4A]

In Muldrock v R (2011) 244 CLR 120; 281 ALR 652; [2011] HCA 39; BC201107577, the High Court observed at [20] that the purposes of sentencing listed in s 3A at [5-s 3A] were familiar, and that there was nothing in the Crimes (Sentencing Procedure) Act 1999 to indicate that the court was to depart from the principles explained in Veen v R (No 2) in applying them. The purposes of punishment set out in s 3A at [5-s 3A] are constrained by other sentencing principles including the principles of proportionality and totality: R v MMK (2006) 164 A Crim R 481; [2006] NSWCCA 272; BC200607122; 13(8) Crim LN 77 [2099]. See s 28(4) at [5-s 28] concerning the use of victim impact statements by family victims on sentence by reference to harm done to the community for the purpose of s 3A(g). It is important that sentences passed for child sex offences recognise the harm done to the victim of the crime: s 3A(g); R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469; BC201402604 at [87]; R v Crowe [2016] NSWCCA 39; BC201601466 at [92]. Section 3A applies to the determination of sentence for an offence whenever committed, and thus applies to sentencing for historic sex offences: R v Crowe at [92]; Sch 2 cl 45(2) at [5–Sch 2].

PART 2 — PENALTIES THAT MAY BE IMPOSED DIVISION 1 — GENERAL

[5-s 4] Penalties generally 4 (1) The penalty to be imposed for an offence is to be the penalty provided by or under this or any other Act or law. [subs (1) subst Act 43 of 2000 Sch 3 item 1, opn 31 July 2000]

(2) The penalty to be imposed for a statutory offence for which no penalty is so provided is imprisonment for 5 years. [subs (2) subst Act 43 of 2000 Sch 3 item 1, opn 31 July 2000]

(3) Part 3 applies to the imposition of all penalties imposed by a court, whether under this Act or otherwise.

[5-s 4A] Domestic violence offenders — requirement for full-time detention or supervision 4A (1) If a court finds a person guilty of a domestic violence offence, the court must impose on the person either: (a) a sentence of full-time detention, or (b) a supervised order. (2) However, the court is not required to impose either of those sentencing options if the court is satisfied that a different sentencing option is more appropriate in the circumstances and gives reasons for reaching that view.

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The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.

[5-s 4A]

s 4A

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

(3) For the purposes of this section, a supervised order is an order (being an intensive correction order, community correction order or conditional release order) that is subject to a supervision condition. [s 4A insrt Act 53 of 2017 Sch 1[4], opn 24 Sep 2018]

COMMENTARY ON SECTION 4A Purpose of s 4A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 4A.1]

[5-s 4A.1] Purpose of s 4A In the second reading speech for the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017, the Attorney General, Mr Speakman explained the purpose of s 4A as follows (Hansard, Legislative Assembly, 11 October 2017): Item [4] of Sch 1 of the Bill provides for presumption of full-time detention or a supervised community-based sentence for domestic violence offences. The rationale for this is simple. Offenders who are sentenced for domestic violence will be required to address their offending behaviour if they are given a community-based sentence, or go to prison. The Government wants the courts to ensure that domestic violence offenders who receive community-based sentences receive whatever supervision or programs are needed to address their offending behaviour. For offenders who would otherwise receive a short prison sentence, the court should only impose an intensive correction order if satisfied the order will adequately protect the safety of the victim. This will hold offenders accountable and promote the safety of victims and the community. The presumption will not mean that every domestic violence offender will be supervised or go to prison. What it means is that more domestic violence offenders will be referred to Community Corrections for risk assessment and then supervised for as long as it is appropriate to do so up to the maximum term of the order. This means that more medium and high-risk domestic violence offenders who currently receive unsupervised orders will receive intervention to address their offending behaviour. Some offenders will, of course, go to prison because their offences are too serious to be dealt with by way of a community-based sentence. Other offenders may be very low risk and unsuitable for supervision and programs, and the court may be satisfied that a different sentencing option is more appropriate in those circumstances. This may include, for example, situations where the domestic violence offence occurs between flatmates who no longer reside with each other.

[5-s 4B] Domestic violence offenders — protection and safety of victims 4B (1) An intensive correction order must not be made in respect of: (a) a sentence of imprisonment for a domestic violence offence, or (b) an aggregate sentence of imprisonment for 2 or more offences, any 1 or more of which is a domestic violence offence, unless the sentencing court is satisfied that the victim of the domestic violence offence, and any person with whom the offender is likely to reside, will be adequately protected (whether by conditions of the intensive correction order or for some other reason). (2) If the sentencing court finds a person guilty of a domestic violence offence, the court must not impose a home detention condition if the court reasonably believes that the offender will reside with the victim of the domestic violence offence. (3) Before making a community correction order or conditional release order in respect of a person whom the sentencing court finds guilty of a domestic violence offence, the court must consider the safety of the victim of the offence. [s 4B insrt Act 53 of 2017 Sch 1[4], opn 24 Sep 2018]

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s5

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 5.1]

DIVISION 2 — CUSTODIAL SENTENCES [Div 2 heading insrt Act 42 of 2004 s 4 and Sch 2[2], opn 21 July 2006]

5 (1) A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. (2) A court that sentences an offender to imprisonment for 6 months or less must indicate to the offender, and make a record of, its reasons for doing so, including: (a) its reasons for deciding that no penalty other than imprisonment is appropriate, and (b) its reasons for deciding not to make an order allowing the offender to participate in an intervention program or other program for treatment or rehabilitation (if the offender has not previously participated in such a program in respect of the offence for which the court is sentencing the offender). [subs (2) subst Act 100 of 2002 s 5 and Sch 3[2], opn 24 Feb 2003]

(3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions. (4) A sentence of imprisonment is not invalidated by a failure to comply with this section. (5) Subject to sections 12 and 99, Part 4 applies to all sentences of imprisonment, including any sentence the subject of an intensive correction order. [subs (5) am Act 48 of 2010 Sch 1, opn 1 Oct 2010; Act 53 of 2017 Sch 1[5], opn 24 Sep 2018]

COMMENTARY ON SECTION 5 Sentence of imprisonment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sentencing for serious violence offences . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 5.1] [5-s 5.5]

[5-s 5.1] Sentence of imprisonment The manner in which a court proceeds to consider whether to impose a sentence of imprisonment and how the sentence should be served was considered in R v Foster (2001) 33 MVR 565; [2001] NSWCCA 215; BC200102728; R v LRS [2001] NSWCCA 338; BC200105260 at [65]; R v Zamagias [2002] NSWCCA 17; BC200200346; (2002) 9 Crim LN 2 [1394] and Douar v R (2005) 159 A Crim R 154; [2005] NSWCCA 455; BC200511166. There are three steps involved, a preliminary step by applying s 5(1) and considering whether any alternative to imprisonment is appropriate and then a two-step approach, the first being to determine the term of the sentence: R v Foster at [30]; R v Zamagias at [26], and, having reached that determination, the second being to determine the manner in which the sentence is to be served, that is, in increasing order of severity; a suspended sentence, home detention, intensive correction order or full-time custody: R v LRS at [65]; R v Zamagias at [27]; R v Douar at [69]. Having determined the appropriate sentence, the court must explain the sentence imposed and this may require in an appropriate case some discussion of the alternatives available and why a particular alternative has been chosen: R v JCE (2000) 120 A Crim R 18; [2000] NSWCCA 498; BC200007408 at [19]. Merely because a court has not expressly indicated that it has taken the two-step approach to the determination of a sentence of imprisonment it does not follow that it has failed to carry out the sentencing exercise in this manner, compliance may be inferred: R v Saldaneri [2001] NSWCCA 480; BC200107856 at [14]; (2002) 9 Crim LN 6 [1383]; R v Assaad [2009] NSWCCA 182; BC200906528; (2009) 16(8) Crim LN [2604]. However, the nature of the sentence imposed and the failure to record that a two-step approach has been taken may lead the Court of Criminal Appeal to examine findings made by the sentencing judge to determine whether

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Sentencing

[5-s 5] Penalties of imprisonment

[5-s 5.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s5

the sentence is erroneous: R v Foster at [35]. It is preferable for a sentencing judge to articulate his or her conclusion as to the appropriate term before determining any alternative to full time custody, R v Assaad at [33]. It will not always be an error for a judge to proceed through the steps set out in Zamagias because there may be cases where a sentence of imprisonment is so obviously warranted that the steps can be appropriately forgone: Hardie v R; Phillipsen v R [2012] NSWCCA 6; BC201200770; 19(3) Crim LN [3037]. [5-s 5.5] Sentencing for serious violence offences A court that sentences a person for a “serious violence offence” (as defined in s 5A of the Crimes (High Risk Offenders) Act 2006 at [29-954A]) is to cause the person to be advised of the existence of that Act and of its application to the offence: s 25C(1), Crimes (High Risk Offenders) Act 2006 at [29-977C].

[5-s 5A] Compulsory drug treatment detention 5A The Drug Court may make an order under Part 2A of the Drug Court Act 1998 directing that an offender, who is an eligible convicted offender within the meaning of that Act, serve a sentence of imprisonment by way of compulsory drug treatment detention. [s 5A insrt Act 42 of 2004 s 4 and Sch 2[3], opn 21 July 2006]

Periodic detention 6

[s 6 rep Act 48 of 2010 Sch 1, opn 1 Oct 2010]

[5-s 6] Home detention 6

[s 7 renum as s 6 by Act 48 of 2010 Sch 1, opn 1 Oct 2010; rep Act 53 of 2017 Sch 1[6], opn 24 Sep

2018]

[5-s 7] Intensive correction orders 7 (1) A court that has sentenced an offender to imprisonment in respect of 1 or more offences may make an intensive correction order directing that the sentence or sentences be served by way of intensive correction in the community. (2) If the court makes an intensive correction order directing that a sentence of imprisonment be served by way of intensive correction in the community, the court is not to set a non-parole period for the sentence. (3) This section does not apply to an offender who is under the age of 18 years. (4) This section is subject to the provisions of Part 5. Note. Among other matters, Part 5 provides that a single offence cannot be the subject of an intensive correction order if the imprisonment imposed exceeds 2 years, and that multiple offences cannot be the subject of an intensive correction order or orders if the imprisonment imposed exceeds 3 years. [s 7 insrt Act 48 of 2010 Sch 1, opn 1 Oct 2010; subst Act 53 of 2017 Sch 1[7], opn 24 Sep 2018] Editor’s note: what was formerly s 7 (entitled “Home detention”) was renumbered as s 6 by Act 48 of 2010, effective 1 October 2010.

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CRIMES (SENTENCING PROCEDURE) ACT 1999

COMMENTARY ON SECTION 7 Intensive correction orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 8.5]

[5-s 7.5]

[5-s 7.5] Intensive correction orders In the second reading speech for the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017, the Attorney General, Mr Speakman explained the abolition of suspended sentences and enactment of new s 7 in the following way (Hansard, Legislative Assembly, 11 October 2017): The Bill will replace the current community-based sentences with a new range of community sentencing options. First, we are strengthening the intensive correction order. It will be available for offenders sentenced to up to 2 years imprisonment and will require all offenders to submit to supervision. As well as mandatory supervision, the intensive correctional order will have a range of additional conditions to help courts ensure that offenders address their offending behaviour and are held accountable. Courts will be required to impose at least one of these additional conditions and may impose further conditions where necessary to support the safe and effective management of the offender in the community. With the new intensive correction order, offenders who would otherwise be unsuitable or unable to work will be able to access intensive supervision as an alternative to a short prison sentence. Suspended sentences will be abolished as a sentencing option. They do not hold offenders accountable. Forty four per cent of them are not supervised and they have been found to increase the New South Wales prison population. Home detention will no longer be a separate sentence. It will be available as an additional condition of the intensive correction order. The same conditions that currently apply to home detention orders will apply to offenders who have a home detention condition on their intensive correction order.

DIVISION 3 — NON-CUSTODIAL ALTERNATIVES

[5-s 8] Community correction orders 8 (1) Instead of imposing a sentence of imprisonment on an offender, a court that has convicted a person of an offence may make a community correction order in relation to the offender. (2) A community service work condition must not be imposed on a community correction order made in relation to an offender to whom the Children (Community Service Orders) Act 1987 applies. (3) This section is subject to the provisions of Part 7. [s 8 subst Act 53 of 2017 Sch 1[8], opn 24 Sep 2018]

COMMENTARY ON SECTION 8 Community Corrections Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 8.5]

[5-s 8.5] Community Corrections Orders In the second reading speech for the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017, the Attorney General, Mr Speakman explained s 8 as follows (Hansard, Legislative Assembly, 11 October 2017): . . . the bill will introduce a new community correction order to replace section 9 good behaviour bonds and community service orders. The community correction order will be a more flexible order so that offenders can receive supervision to tackle their offending behaviour and be held accountable. Courts will be able to tailor the sentence to impose a range of conditions. As with the new intensive correction order, where offenders cannot work or where there is limited available work, other conditions can be imposed as part of a community correction order to hold the offender accountable.

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s8

[5-s 9]

s9

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

[5-s 9] Conditional release orders 9 (1) Instead of imposing a sentence of imprisonment or a fine (or both) on an offender, a court that finds a person guilty of an offence may make a conditional release order discharging the offender, if: (a) the court proceeds to conviction, or (b) the court does not proceed to conviction but makes an order under section 10(1)(b). (2) In deciding whether to make a conditional release order with a conviction, the sentencing court is to have regard to the following factors: (a) the person’s character, antecedents, age, health and mental condition, (b) whether the offence is of a trivial nature, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. Note. These factors are considered under section 10 in respect of an order under section 10(1)(b) in connection with a conditional release order without a conviction.

(3) To avoid doubt and without limitation: (a) a fine and a conditional release order cannot be imposed in relation to the offender in respect of the same offence, and (b) a conditional release order with a conviction may be made as an alternative to imposing a fine. (4) This section is subject to the provisions of Part 8. [s 9 subst Act 53 of 2017 Sch 1[9], opn 24 Sep 2018]

COMMENTARY ON SECTION 9 Conditional Release Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 9.5]

[5-s 9.5] Conditional Release Orders In the second reading speech for the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017, the Attorney General, Mr Speakman explained s 9 as follows (Hansard, Legislative Assembly, 11 October 2017): . . . we are introducing the conditional release order as a community-based sentence for the lowest level of offending. Like the tougher and more onerous community correction order and intensive correction order, courts will be able to impose optional conditions like supervision and participation in programs, but more onerous conditions like curfews and community service work will not be permitted.

[5-s 10] Dismissal of charges and conditional discharge of offender 10 (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person under a conditional release order (in which case the court proceeds to make a conditional release order under section 9), (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. [subs (1) subst Act 100 of 2002 s 5 and Sch 3[3], opn 24 Feb 2003; am Act 53 of 2017 Sch 1[10], opn 24 Sep 2018]

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s 10

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 10.1]

(1A) A reference in any legislation (including this Act) to an order under this section includes, in the case of an order under subsection (1)(b), a reference to a conditional release order made under section 9 pursuant to that paragraph. (2) An order referred to in subsection (1)(b) may be made if the court is satisfied: (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to discharge the person under a conditional release order. [subs (2) am Act 53 of 2017 Sch 1[12], opn 24 Sep 2018]

(2A) An order referred to in subsection (1)(c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person. [subs (2A) insrt Act 100 of 2002 s 5 and Sch 3[4], opn 24 Feb 2003]

(2B) Subsection (1)(c) is subject to Part 8C. [subs (2B) insrt Act 100 of 2002 s 5 and Sch 3[4], opn 24 Feb 2003]

(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person’s character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. (4) An order under this section has the same effect as a conviction: (a) for the purposes of any law with respect to the revesting or restoring of stolen property, and (b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996, and (c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property. Note. Certain other Acts and regulations contain provisions to the effect that an order under this section made in respect of an offence is to be treated as a conviction for certain purposes of the legislation concerned. Accordingly, those provisions apply to an order under subsection (1)(b) in respect of the offence and a conditional release order made pursuant to that paragraph. [subs (4) am Act 53 of 2017 Sch 1[13], opn 24 Sep 2018]

(5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence. COMMENTARY ON SECTION 10 Dismissal of charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Conditions of good behaviour bond . . . . . . . . . . . . . . . . . . . . . . . . . . . . Right of appeal against dismissal under the section . . . . . . . . . . . . . .

[5-s 10.1] [5-s 10.5] [5-s 10.10]

[5-s 10.1] Dismissal of charges The section replaces s 556A of the Crimes Act. Where a jury has found the accused guilty but a conviction has not been formally recorded, the judge has the power to dismiss the charge under a similar provision as it is for the court, and not the jury to convict the accused: R v Reinsch [1978] 1 NSWLR 483. The court should make it clear whether

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[subs (1A) insrt Act 53 of 2017 Sch 1[11], opn 24 Sep 2018]

[5-s 10.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 10

it is applying this provision or whether it is requiring the offender to enter into a good behaviour bond after conviction: R v Gillan (1991) 100 ALR 66; 54 A Crim R 475 (Federal Court). The section sets out the factors which are to be considered and, although none of them are conclusive, they are all to be taken into account and it is not necessary that the offence be considered as trivial before the section can be applied: R v Paris [2001] NSWCCA 83; BC200104818; (2001) 8 Crim LN 75 [1332] cf R v Piccin (No 2) [2001] NSWCCA 323; BC200105655; (2001) 8 Crim LN 75 [1333]. The triviality of the offence should be determined and assessed by reference to the actual offence committed by the defendant and the circumstances surrounding the offence and not by reference to the maximum penalty prescribed for the offence: Walden v Hensler (1987) 163 CLR 561; 75 ALR 173. As to the relevance of the consequences of conviction on the circumstances of the accused, see R v Beissel (1996) 89 A Crim R 210 CA(Qld) where it was held that the court should not attempt to minimise the seriousness of criminal conduct with a view to influencing third persons, such as licensing authorities, to disregard or overlook the offence in determining whether the accused person is suitable to hold a particular position or occupation and thus pre-empting or influencing the proper exercise of that function. It was recognised in R v Nguyen [2002] NSWCCA 183; BC200202582 that the capacity to dismiss charges under the predecessor to s 10 (s 556A) reflected the willingness of the legislature, and thus the community, to provide first offenders, in certain circumstances, a second chance to maintain a reputation of good character. It is erroneous to dismiss a charge under the section in order to avoid the consequences that would follow a conviction for the offence by reason of the provisions of legislation where otherwise the dismissal is unwarranted by the circumstances or nature of the offence: Re Attorney-General’s Application under s 37 Crimes (Sentencing Procedure) Act (No 3 of 2002) (2004) 61 NSWLR 305; 147 A Crim R 546; [2004] NSWCCA 303; BC200405864 at [132] where the consequences were the disqualification of a person from holding a drivers licence, and R v KNL (2005) 154 A Crim R 268; [2005] NSWCCA 260; BC200505405; (2005) 12 Crim LN 66 [1918] the recording of the person as a sex offender. In considering whether to exercise the discretion provided by the section regard can be had to the potential effect of the commission of the offence, even though such a matter would not be admissible when imposing sentence: Thorneloe v Filipowski (2001) 52 NSWLR 60; 123 A Crim R 92; [2001] NSWCCA 213; BC200104337; (2001) 8 Crim LN 74 [1331], where the width of the discretion was recognised. For the equivalent provision for Commonwealth offenders see s 19B of the Crimes Act (Cth) at [5-20,275]. The benefits of the section can be given to a corporation, see the definition of “offender” in s 3 of the Act and the definition of “person” in the Interpretation Act at [29-45,200]. [5-s 10.5] Conditions of good behaviour bond The conditions which may be imposed upon a good behaviour bond are contained in s 95 of the Act see at [5-s 95]. Under that section the court can not require that the offender perform any community service work or make any payment of money. Although the court may impose other conditions it has been held that conditions imposed after dismissal of a charge cannot be of such a nature that they involve punishment (eg a fine) for an offence of which the offender has not been convicted: R v Ingrassia (1997) 41 NSWLR 447; 91 A Crim R 383; BC9701001; 4 Crim LN 20 [675]. It has been held that while such a section confers a wide discretion, it is a judicial discretion to be exercised consistently with the scheme and purpose of the section as a whole; the scope of conditions which may be imposed is not unfettered: R v Ingrassia (1997) 41 NSWLR 447; 91 A Crim R 383; BC9701001; 4 Crim LN 20 [675] citing R v Keur (1973) 7 SASR 13; 2 ALR 237 and Bantick v Blunden (1981) 36 ALR 541; 58 FLR 414 at FLR 416. [5-s 10.10] Right of appeal against dismissal under the section The availability of an order for prohibition under s 112 of the Justices Act (now repealed) in respect of a dismissal under such a provision was considered in Worsley v Aitken (NSWSC, Sully J, 16 March 1990, unreported,

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s 11

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 11]

BC9003194); (1990) 9 Petty SR 4074, where it was held that there was nothing which the Supreme Court could prohibit and therefore there was no jurisdiction to grant such relief, see also Williams v Lewer [1974] 2 NSWLR 91; Dixon v McCarthy [1975] 1 NSWLR 617.

10A (1) A court that convicts an offender may dispose of the proceedings without imposing any other penalty. (2) Any such action is taken, for the purposes of the Crimes (Appeal and Review) Act 2001 and the Criminal Appeal Act 1912, to be a sentence passed by the court on the conviction of the offender. [subs (2) am Act 15 of 2015 Sch 2.12, opn 8 July 2015]

Note. The Crimes (Appeal and Review) Act 2001 and the Criminal Appeal Act 1912 provide for appeals against sentence, including (in some circumstances) by the prosecutor. [s 10A insrt Act 107 of 2006, s 3 and Sch 1[1], opn 29 Nov 2006; am Act 15 of 2015 Sch 2.12, opn 8 July 2015]

COMMENTARY ON SECTION 10A Application of the section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 10A.1]

[5-s 10A.1] Application of the section The section was utilised by the Court of Criminal Appeal in determining an appeal against sentence, where the court was concerned that despite the appellant maintaining the plea of guilty before the court, no offence was disclosed on the material upon which he was sentenced: Bikhit v R [2007] NSWCCA 202; BC200705470; (2007) 14 Crim LN 103 [2263]. In R v Chant [2009] NSWSC 290; BC200902937 s 10A was used for an offender who pleaded guilty to conceal a serious indictable offence and improperly interfere with a corpse or human remains. Howie J said that using s 10A was an extraordinary course to take in the Supreme Court, but due to the offender’s role in the commission of the offences, the extraordinary situation in which he found himself, the extenuating circumstances in relation to the commission of the offences, the period of time that had transpired, the physical and emotional difficulties he now suffers as a result, his assistance to the prosecution, his determination to ensure that his mother was brought to justice, and his time spent in custody, it was warranted in this unusual case.

[5-s 11] Deferral of sentencing for rehabilitation, participation in an intervention program or other purposes 11 (1) A court that finds a person guilty of an offence (whether or not it proceeds to conviction) may make an order adjourning proceedings against the offender to a specified date: (a) for the purpose of assessing the offender’s capacity and prospects for rehabilitation, or (b) for the purpose of allowing the offender to demonstrate that rehabilitation has taken place, or (b1) for the purpose of assessing the offender’s capacity and prospects for participation in an intervention program, or (b2) for the purpose of allowing the offender to participate in an intervention program, or (c) for any other purpose the court considers appropriate in the circumstances. [subs (1) am Act 43 of 2000 Sch 3 item 3, opn 31 July 2000; Act 100 of 2002 s 5 and Sch 3[5], opn 24 Feb 2003; Sch 2 item 2.13[1], opn 20 May 2014]

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Sentencing

[5-s 10A] Conviction with no other penalty

[5-s 11]

s 11

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

(1A) Proceedings must not be adjourned under this section unless bail for the offence is or has been granted or dispensed with under the Bail Act 2013. [subs (1A) insrt Act 5 of 2014 Sch 2 item 2.13[2], opn 20 May 2014]

(2) The maximum period for which proceedings may be adjourned under this section is 12 months from the date of the finding of guilt. [subs (2) am Act 43 of 2000 Sch 3 item 4, opn 31 July 2000]

(2A) An order referred to in subsection (1)(b2) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person. [subs (2A) insrt Act 100 of 2002 s 5 and Sch 3[6], opn 24 Feb 2003; am Act 5 of 2014 Sch 2 item 2.13[3], opn 20 May 2014]

(3) This section does not limit any power that a court has, apart from this section, to adjourn proceedings or to grant bail in relation to any period of adjournment. (4) Subsection (1)(b1) and (b2) do not limit the kinds of purposes for which an order may be made under subsection (1), so that an order may be made under that subsection for the purpose of allowing an offender to participate in a program for treatment or rehabilitation that is not an intervention program, or to be assessed for participation in such a program. [subs (4) insrt Act 100 of 2002 s 5 and Sch 3[7], opn 24 Feb 2003]

COMMENTARY ON SECTION 11 Deferral of sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 11.1]

[5-s 11.1] Deferral of sentence The power given to the court in this section replaces what was known as a “Griffith’s remand”, see Griffıths v R (1977) 137 CLR 293; 15 ALR 1; BC7700058. It has been held that the use of such a procedure will rarely be appropriate where the ultimate sentence which must be passed is a custodial order, although it might be done in order to allow the offender to complete a rehabilitation programme which would otherwise be disrupted: R v Robinson (NSWCCA, 15 September 1989, unreported, BC8901702). In R v Trindall (2002) 133 A Crim R 119; [2002] NSWCCA 364; BC200205072; it was held that a remand under the section is likely to be considered in a relatively small number of cases and only where there are good reasons for concluding that it is likely to assist the court in determining whether an offender should be sent to gaol or in fixing the length of the sentence or the non-parole period. In R v Leahy [2004] NSWCCA 148; BC200402757 the court confirmed that an adjournment under this section may be appropriate where a fulltime custodial sentence remains the most likely outcome, even if rehabilitation has been achieved, so that the court can gain a more reliable assessment of the offender’s prospects of rehabilitation, for determining both the head sentence and the non-parole period. However, if the section is only being used to assist the court in determining the length of the sentence or the non-parole period the judge should make it clear to the offender that he or she will be going to gaol and what the purpose of the remand is: R v Trindall (2002) 133 A Crim R 119; [2002] NSWCCA 364; BC200205072; R v Brown [2009] NSWCCA 6; BC200901586. Such a remand has been held to be an unsatisfactory sentence, particularly in cases involving serious objective circumstances: R v Khoury (NSWCCA, 5 December 1994, unreported); (1995) 2 Crim LN 4 [324] (a case of armed robbery where the firearm was discharged). The section can only be utilised in a principled way and upon proper material placed before the court and, because the exercise of the power will inevitably result in delay in the finalisation of the prosecution of the offender, such delay will only be appropriate where it is essential in order to ensure a just result: R v Palu (2002) 134 A Crim R 174; [2002] NSWCCA 381; BC200205450; (2002) 9 Crim LN 73 [1478].

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s 16

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 16.1]

As to the assessment and participation of an offender in an intervention program, see [5-s 95A] and [5-s 95B].

12

[s 12 rep Act 53 of 2017 Sch 1[14], opn 24 Sep 2018]

[5-s 13] Community service orders and good behaviour bonds to be alternative penalties only 13

[s 13 rep Act 53 of 2017 Sch 1[15], opn 24 Sep 2018]

DIVISION 4 — FINES

[5-s 14] Fines as an additional penalty to good behaviour bond 14

[s 14 rep Act 53 of 2017 Sch 1[16], opn 24 Sep 2018]

[5-s 15] Fines as an additional or alternative imprisonment for offences dealt with on indictment

penalty

to

15 (1) This section applies to all offences dealt with on indictment, other than offences for which the penalty that may be imposed (otherwise than under this section) includes a fine. (2) A court may impose a fine not exceeding 1,000 penalty units on an offender whom it convicts on indictment of an offence to which this section applies. (3) The fine may be imposed in addition to or instead of any other penalty that may be imposed for the offence.

[5-s 16] Fines for bodies corporate for offences punishable by imprisonment only 16 If the penalty that may be imposed (otherwise than under this section) for an offence committed by a body corporate is a sentence of imprisonment only, a court may instead impose a fine not exceeding: (a) 2,000 penalty units, in the case of the Supreme Court, the Court of Criminal Appeal, the Land and Environment Court, the Industrial Relations Commission or the District Court, or (b) 100 penalty units, in any other case. COMMENTARY ON SECTION 16 Operation of section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 16.1]

[5-s 16.1] Operation of section Section 16 serves to overcome the common law restriction whereby a company could not commit a crime for which it could not be punished: Presidential Security Services of Australia Pty Ltd v Brilley (2008) 67 ACSR 692; [2008] NSWCA 204; BC200807974 at [141]–[143].

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[5-s 12] Suspended sentences

[5-s 17]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 17

[5-s 17] Penalty units 17 Unless the contrary intention appears, a reference in any Act or statutory rule to a number of penalty units (whether fractional or whole) is taken to be a reference to an amount of money equal to the amount obtained by multiplying $110 by that number of penalty units. DIVISION 4A — NON-ASSOCIATION AND PLACE RESTRICTION ORDERS [Div 4A insrt Act 100 of 2001 s 3 and Sch 1.1[2], opn 22 July 2002]

[5-s 17A] Non-association and place restriction orders 17A (1) This section applies to any offence that is punishable by imprisonment for 6 months or more, whether or not the offence is also punishable by fine or to an aggregate sentence of imprisonment in respect of 2 or more offences any one of which is an offence to which this section applies. [subs (1) am Act 136 of 2010 Sch 2[2], opn 14 Mar 2011]

(2) When sentencing an offender for an offence to which this section applies, a court may make either or both of the following orders in respect of the offender: (a) a non-association order, being an order prohibiting the offender from associating with a specified person for a specified term, or (b) a place restriction order, being an order prohibiting the offender from frequenting or visiting a specified place or district for a specified term, if it is satisfied that it is reasonably necessary to do so to ensure that the offender does not commit any further offences to which this section applies. (3) An order under subsection (2)(a) is to be one of the following: (a) a limited non-association order, being an order prohibiting the offender from being in company with a specified person except at the times or in such circumstances (if any) as are specified, (b) an unlimited non-association order, being an order prohibiting the offender: (i) from being in company with a specified person, and (ii) from communicating with that person by any means. [subs (3) am Act 37 of 2009 Sch 1.5, opn 19 June 2009]

(3A) An order under subsection (2)(b) is to be one of the following: (a) a limited place restriction order, being an order prohibiting the offender from frequenting or visiting a specified place or district except at the times or in such circumstances (if any) as are specified, (b) an unlimited place restriction order, being an order prohibiting the offender from frequenting or visiting a specified place or district at any time or in any circumstance. [subs (3A) insrt Act 37 of 2009 Sch 1.5, opn 19 June 2009]

(4) An order under this section is to be made in addition to, and not instead of, any other penalty for the offence, but may not be made if the only other penalty for the offence is an order under section 10 or 11. (5) The term of an order under this section is not limited by any term of imprisonment imposed for the offence, but must not exceed 12 months.

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s 17B

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 17B.5]

COMMENTARY ON SECTION 17A Non-association or place restriction orders . . . . . . . . . . . . . . . . . . . . . .

[5-s 17A.5]

[5-s 17A.5] Non-association or place restriction orders There are certain restrictions imposed upon the making of orders under this section; see at [5-s 100A]. For example, the order cannot relate to the offender’s place of work or place of worship unless exceptional circumstances exist as set out in s 100A(2). The court is required to explain the order to the offender: [5-s 100B]. A contravention of the order without a reasonable excuse is a criminal offence; see [5-s 100E]. The court has power to revoke or vary the orders: see [5-s 100G]. There is a restriction on the publication of the name of a person who is named in a non-association order; see [5-s 100H].

DIVISION 4B — ASSESSMENT REPORTS [Div 4B insrt Act 53 of 2017 Sch 1[17], opn 24 Sep 2018]

[5-s 17B] Definition of and provisions relating to “assessment report” 17B (1) In this Division: assessment report means a report made by a community corrections officer or a juvenile justice officer under this Part. (2) The purpose of an assessment report is to assist a sentencing court to determine the appropriate sentence options and conditions to impose on the offender during sentencing proceedings. (3) An assessment report is made by a community corrections officer or a juvenile justice officer. (4) The regulations may make provision for or with respect to matters to be addressed in, and the preparation and furnishing of, an assessment report. COMMENTARY ON SECTION 17B Assessment reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 17B.5]

[5-s 17B.5] Assessment reports In the second reading speech for the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017, the Attorney General, Mr Speakman explained the reasoning behind the introduction of Div 4B concerning assessment reports in the following way (Hansard, Legislative Assembly, 11 October 2017): Item [17] of schedule 1 of the bill inserts division 4B into part 2 of the Crimes (Sentencing Procedure) Act to provide for pre-sentence assessment reports. This will make significant changes to the way courts receive pre-sentence reports from Community Corrections. Currently, courts must obtain different assessment reports for different sentences which state that the offender is suitable for the particular sentence. To consider an offender for multiple sentences the court must obtain multiple reports. This is overly complex and leads to adjournments and delays. The new assessment process will enable courts to get pre-sentence reports early in the sentencing process so that they can receive the information they need in a short, comprehensive report. The report will give the court useful, quality information about

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(6) This section does not limit the kinds of prohibition or restriction that may be imposed on an offender by means of any other order or direction under this or any other Act, so that such an order or direction may include prohibitions of the kind referred to in subsections (2) and (3). (7) This section is subject to the provisions of Part 8A.

[5-s 17B.5]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 17B

the offender’s risks, criminogenic needs, suitability to perform work, and any conditions that will assist to safely and effectively manage the offender in the community. The specific matters to be addressed in these reports will be prescribed in regulations. Courts can use the report to help select the appropriate community order and the appropriate conditions to tailor it to the specific needs and risks of the individual offender. Courts will have the power to order additional reports where necessary. Proposed section 17C provides that obtaining a report is at the court’s discretion except where provided by section 17D, and can be obtained at any time during sentencing proceedings.

[5-s 17C] Request for assessment report 17C (1) Except as provided by section 17D: (a) the sentencing court may request, but is not obliged to request, an assessment report on an offender, and (b) such a request may be made at the following times only: (i) after finding an offender guilty of an offence and before a sentence is imposed, (ii) during sentencing proceedings after a sentence of imprisonment has been imposed on the offender, (iii) during proceedings to impose, vary or revoke an additional or further condition on a community correction order or conditional release order that has been made in respect of the offender, (iv) during proceedings to correct a sentencing error in accordance with section 43, (v) during proceedings to re-sentence an offender after a court has revoked the offender’s community correction order or conditional release order. (vi) during proceedings to determine an appeal against a sentence, (vii) any other times prescribed by the regulations. [subs (1) am Act 87 of 2018 Sch 1 item 1.13[2], opn 28 Nov 2018]

(2) If a court refers an offender for assessment in relation to a sentence and a sentence of imprisonment has been imposed in respect of the offence concerned: (a) the referral stays the execution of the sentence and the operation of section 48, and (b) the offender is to be remanded in custody, or granted bail in accordance with the Bail Act 2013, until the court decides whether or not to make an intensive correction order.

[5-s 17D] Requirement for assessment report 17D (1) The sentencing court must not make an intensive correction order in respect of an offender unless it has obtained a relevant assessment report in relation to the offender. (1A) However, the sentencing court is not required to obtain an assessment report (except if required under subsection (2) or (4)) if it is satisfied that there is sufficient information before it to justify the making of an intensive correction order without obtaining an assessment report. (2) The sentencing court must not impose a home detention condition on an intensive correction order unless it has obtained an assessment report relating to the imposition of such a condition in relation to the offender.

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[5-s 17F]

CRIMES (SENTENCING PROCEDURE) ACT 1999

(3) The sentencing court must not request an assessment report relating to the imposition of a home detention condition on an intensive correction order unless it has imposed a sentence of imprisonment on the offender for a specified term. (4) The sentencing court must not impose a community service work condition on an intensive correction order or community correction order unless it has obtained an assessment report relating to the imposition of such a condition in relation to the offender. (5) The assessment reports referred to in this section may be in the 1 report or in more than 1 report. Note. See also sections 73A(3) and 89(4) regarding the imposition of home detention conditions and community service work conditions. COMMENTARY ON SECTION 17D Requirement for assessment reports . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 17D.5]

[5-s 17D.5] Requirement for assessment reports In the second reading speech for the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017, the Attorney General, Mr Speakman referred to s 17D as follows (Hansard, Legislative Assembly, 11 October 2017): Proposed section 17D(1) provides that reports will be mandatory for intensive correction orders. This will ensure that, where the court gives an offender a short prison sentence and considers imposing an intensive correction order, it has all the information necessary to make an informed decision. Proposed section 17D(3) provides that if a court is considering imposing an intensive correction order with a home detention condition, it must obtain a report about the offender’s suitability for home detention after a prison sentence has been imposed. This restriction is necessary because home detention assessments are resource-intensive for Community Corrections. A home detention assessment should only be ordered where a court has already imposed a sentence of imprisonment. Reports will not be mandatory for community correction orders and conditional release orders unless the court is considering a work requirement on a community correction order. There will be extensive consultation and discussion between Community Corrections and the courts about the content and format of these reports before the reforms come into force.

DIVISION 4C — PROVISIONS RELATING TO CERTAIN ORDERS [Div 4C insrt Act 53 of 2017 Sch 1[17], opn 24 Sep 2018]

[5-s 17E] Definitions 17E In this Division: relevant orders means the following orders (or any combination of 1 or more of them): (a) intensive correction orders, (b) community correction orders, (c) conditional release orders.

[5-s 17F] Multiple orders 17F (1) Only 1 relevant order can be in force at the same time in respect of the same offence in relation to the same offender. (2) Subject to subsection (1), 2 or more relevant orders can be in force at the same time in respect of 2 or more offences in relation to the same offender.

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s 17F

[5-s 17F]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 17F

(3) For the purposes of subsection (1), an intensive correction order prevails over a community correction order, and a community correction order prevails over a conditional release order. (4) For the purposes of subsection (2) and subject to sections 17G and 17H, if there is an inconsistency as to how any conditions of the relevant orders operate together, then to the extent of the inconsistency: (a) a condition of an intensive correction order prevails over a condition of a community correction order, and (b) a condition of a community correction order prevails over a condition of a conditional release order, and (c) despite paragraphs (a) and (b), a standard condition prevails over a condition that is not a standard condition.

[5-s 17G] Community service work conditions under multiple orders 17G (1) A relevant order (the new order) may not be made if the sum of: (a) the number of hours of community service work to be performed under the new order, and (b) the number of hours of community service work remaining to be performed under any other relevant order (an existing order), exceeds 750 hours (if any one of the orders is an intensive correction order) or 500 hours (if all the orders are community correction orders). Note. Community service work conditions can be imposed on intensive correction orders and community correction orders, but cannot be imposed on conditional release orders.

(2) In calculating the sum referred to in subsection (1), the hours of community service work to be performed under the new order are to be disregarded to the extent to which they run concurrently with those to be performed under any existing order. (3) The hours of community service work to be performed under the new order are taken to run concurrently with those to be performed under any existing order. COMMENTARY ON SECTION 17G Community service work conditions . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 17G.5]

[5-s 17G.5] Community service work conditions In the second reading speech for the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017, the Attorney General, Mr Speakman referred to s 17G as follows (Hansard, Legislative Assembly, 11 October 2017): Proposed section 17G will ensure that where an offender is subject to multiple orders with multiple community service work conditions, the offender will only be required to comply with the work condition that requires the offender to work the most number of hours. For offenders subject to multiple hours where at least one of the orders is an intensive correction order, there will be a maximum cap of 750 hours on the number of hours of work that the offender can be required to do. Where an offender is not subject to an intensive correction order but is otherwise subject to multiple orders with work conditions, the maximum number of hours that the offender can be required to work is 500. The same principle will apply to curfew hours.

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s 17I

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 17I]

[5-s 17H] Curfew conditions under multiple orders 17H (1) This section applies where 2 or more curfew conditions apply under 2 or more relevant orders in respect of the same period of 24 hours (the period of 24 hours). (2) If all the relevant orders are intensive correction orders, this section does not affect the curfew conditions. (3) If all the relevant orders are community correction orders, the following provisions apply: (a) The offender cannot be required to observe a curfew in respect of more than 12 hours in the period of 24 hours. Any excess is to be disregarded. (b) The offender is required in the period of 24 hours to observe only the curfew imposed by the 1 curfew condition that specifies more hours than the other or others. (4) If at least 1 of the relevant orders is an intensive correction order and at least 1 is a community correction order, the following provisions apply: (a) This section does not affect any curfew condition imposed on an intensive correction order. (b) The offender cannot be required, as a result of the curfew conditions imposed on the relevant orders, to observe a curfew in respect of more than the greater of: (i) the hours required by curfew conditions imposed on the intensive correction order or intensive correction orders in the period of 24 hours, or (ii) 12 hours in the period of 24 hours. Any excess is to be disregarded. (c) In determining the number of hours under 2 or more curfew conditions imposed on 2 or more community correction orders, regard is to be had only to the 1 curfew condition that specifies more hours than the other or others. (5) The regulations under the Crimes (Administration of Sentences) Act 1999 may make provision for or with respect to the manner of determining numbers of hours for the purposes of this section and any excess to be disregarded under this section. COMMENTARY ON SECTION 17H Curfew conditions under multiple orders . . . . . . . . . . . . . . . . . . . . . . . [5-s 17H.5] [5-s 17H.5] Curfew conditions under multiple orders In the second reading speech for the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017, the Attorney General, Mr Speakman referred to s 17H as follows (Hansard, Legislative Assembly, 11 October 2017): Proposed section 17H will ensure that where an offender is subject to multiple orders with multiple curfew conditions, the offender will only be required to comply with the condition that imposes the most number of curfew hours. The regulations will give Community Corrections discretion to resolve start and finishing times when there are inconsistencies between different curfew conditions.

[5-s 17I] Explanation of relevant order to offender 17I (1) Having made a relevant order in relation to an offender, the sentencing court must ensure that reasonable steps are taken to explain to the offender (in language that the offender can readily understand):

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Sentencing

Note. Curfew conditions can be imposed on intensive correction orders and community correction orders, but cannot be imposed on conditional release orders.

[5-s 17I]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 17I

(a) the offender’s obligations under the order, and (b) the consequences that may follow if the offender fails to comply with those obligations. (2) A relevant order is not invalidated by a failure to comply with this section.

[5-s 17J] Notice of relevant order to be given 17J (1) As soon as practicable after a relevant order is made, the registrar or another officer of the sentencing court must cause notice of the order to be given to the offender and to Corrective Services NSW. (2) The notice must include such information about the relevant order as may be prescribed by the regulations. (3) Notice of an order does not need to be given to Corrective Services NSW unless the order is subject to a supervision condition or a community service work condition. (4) A relevant order is not invalidated by a failure to comply with this section. DIVISION 5 — MISCELLANEOUS

[5-s 18] Interpretation of provisions imposing penalties 18 (1) The penalty: (a) specified at the end of a section of an Act (whether or not the section is divided into subsections), or (b) specified at the end of a subsection of a section of an Act, but not at the end of the section, or (c) specified at the end of a section of an Act or subsection of a section of an Act and expressed in such a way as to indicate that it applies to part only of the section or subsection, indicates that a contravention of the section, subsection or part, respectively, is an offence against the Act, punishable on conviction by a penalty not exceeding the penalty so specified. (2) For the purposes of subsection (1), a penalty specified at the end of the last subsection of a section is taken not to be specified at the end of the section if a penalty is specified at the end of any previous subsection. (3) If: (a) a section of an Act, or a subsection of a section of an Act, provides that a person is guilty of an offence under specified circumstances, and (b) a penalty is specified at the end of the section or subsection and expressed in such a way as to indicate that it applies to the section or subsection, a person who is guilty of such an offence is liable, on conviction, to a penalty not exceeding the penalty so specified. (4) This section applies to a statutory rule in the same way as it applies to an Act, subject to any necessary modification. (5) This section applies to a provision of an Act or statutory rule except in so far as the contrary intention appears in the Act or statutory rule concerned.

[5-s 19] Effect of alterations in penalties 19 (1) If an Act or statutory rule increases the penalty for an offence, the increased

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[5-s 21]

CRIMES (SENTENCING PROCEDURE) ACT 1999

penalty applies only to offences committed after the commencement of the provision of the Act or statutory rule increasing the penalty. (2) If an Act or statutory rule reduces the penalty for an offence, the reduced penalty extends to offences committed before the commencement of the provision of the Act or statutory rule reducing the penalty, but the reduction does not affect any penalty imposed before that commencement. (3) In this section, a reference to a penalty includes a reference to a penalty that is expressed to be a maximum or minimum penalty. COMMENTARY ON SECTION 19 Sentence tariff at time of offence on conviction . . . . . . . . . . . . . . . . .

[5-s 19.1]

[5-s 19.1] Sentence tariff at time of offence on conviction In R v MJR (2002) 54 NSWLR 368; 130 A Crim R 481; [2002] NSWCCA 129; BC200201655; (2002) 9 Crim LN 31 [1421], it was held that s 19 reflects a principle of perceived fairness applicable to maximum and minimum penalties which it is appropriate to adopt for other aspects of the exercise of the sentencing discretion. In cases where the statutory maximum penalty for an offence has not altered, a court sentencing for an offence committed in the past should seek to apply the tariff which applied at the time of the offence and not at the time of conviction.

[5-s 20] No double jeopardy 20 If an act or omission constitutes: (a) an offence under a law of New South Wales, and (b) an offence under a law of the Commonwealth or of some other State or Territory, and a penalty has been imposed on the offender in respect of the offence referred to in paragraph (b), the offender is not liable to any penalty in respect of the offence referred to in paragraph (a). PART 3 — SENTENCING PROCEDURES GENERALLY DIVISION 1 — GENERAL

[5-s 21] General power to reduce penalties 21 (1) If by any provision of an Act an offender is made liable to imprisonment for life, a court may nevertheless impose a sentence of imprisonment for a specified term. (2) If by any provision of an Act or statutory rule an offender is made liable to imprisonment for a specified term, a court may nevertheless impose a sentence of imprisonment for a lesser term. (3) If by any provision of an Act or statutory rule an offender is made liable to a fine of a specified amount, a court may nevertheless impose a fine of a lesser amount. (4) The power conferred on a court by this section is not limited by any other provision of this Part. (5) This section does not limit any discretion that the court has, apart from this section, in relation to the imposition of penalties.

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s 21

[5-s 21.1]

s 21

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

COMMENTARY ON SECTION 21 The maximum penalty for an offence . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 21.1]

[5-s 21.1] The maximum penalty for an offence Although the section allows for the court to impose a sentence less than the maximum penalty prescribed, the maximum penalty is a relevant consideration in determining the appropriate sentence for an offence. In R v Oliver (1980) 7 A Crim R 174 at 177 it was stated: “The first initial consideration is the statutory maximum prescribed by the legislature for the offence in question. The legislature manifests its policy in the enactment of the maximum penalty which may be imposed”. For a state offence s 4 now prescribes that the maximum penalty for any offence for which no penalty is prescribed by statute is 5 years imprisonment unless the offence previously was punishable by death in which case the maximum penalty is 25 years. The intention and objectives of the legislature must be acted upon: R v Peel [1971] 1 NSWLR 247. The maximum penalty reflects the seriousness of the crime as perceived by the public: R v H (1980) 3 A Crim R 53 at 65. Where the section contains various categories of prescribed conduct, it does not necessarily follow that each category is as heinous as any other, and the seriousness of the conduct depends upon the facts which have to be considered by the court over a spectrum rather than merely a consideration of the maximum penalty prescribed: Ibbs v R (1987) 163 CLR 447; 74 ALR 1; BC8701804, cf R v Thiagarajah (1989) 41 A Crim R 45; BC8902300 applied in Lam v R (1991) 53 A Crim R 118; BC8902300, where the section contained a number of separate offences which were each as serious as the other. Where the offence is a common law offence and no maximum penalty is prescribed, the court will have regard to the maximum penalty prescribed for a similar statutory or related cognate offence: R v Hoar (1981) 148 CLR 32; 37 ALR 357; BC9101894; Shepherd (No 2) v R (1988) 16 NSWLR 1; 37 A Crim R 466; BC8100119; Jackson v R (1988) 33 A Crim R 413; BC8802300. As to changes in the penalty prescribed for an offence, see s 19. An increase in the maximum penalty after the commission of the offence is relevant to show the community’s continued concern about the activity and the degree of seriousness with which it is regarded: R v Bielaczek (NSWSC, Badgery-Parker J, 19 March 1992, unreported, BC9202765). The maximum penalty prescribed for an offence “is intended for cases falling within the worst category of cases for which the penalty is prescribed: Ibbs v R (1987) 163 CLR 447; 74 ALR 1; BC8701804. That does not mean that a lesser penalty must be imposed if it be possible to envisage a worst case; ingenuity can always conjure up a case of greater heinousness”: Veen v R (No 2) (1988) 164 CLR 465 at 478; 77 ALR 385; BC8802593. The maximum penalty can be imposed on co-accused even though there are differences in their participation in the offence committed: R v Lawrence [1980] 1 NSWLR 122; (1980) 32 ALR 72. The court should consider the appropriateness of the charge to the seriousness of the conduct alleged so that the court may take into account that there was another and less punitive offence which could have been charged and was more appropriate: Liang v R (1995) 82 A Crim R 39; 124 FLR 350; BC9503917. It has been held that if an offence does not warrant the maximum penalty prescribed for the offence then it should not be described as being “in the worst category” of the particular offending: R v Kilic (2016) 339 ALR 229; 91 ALJR 131; [2016] HCA 48; BC201610424; 24(2) Crim LN [3794]. It was stated that courts should avoid use of the expression the “worst category” when discussing the seriousness of an offence.

[5-s 21A] Aggravating, mitigating and other factors in sentencing 21A (1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters: (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court,

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CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 21A]

(c) any other objective or subjective factor that affects the relative seriousness of the offence. The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law. (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the victim was a police officer, emergency services worker, correctional officer, judicial officer, council law enforcement officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim’s occupation or voluntary work, (b) the offence involved the actual or threatened use of violence, (c) the offence involved the actual or threatened use of a weapon, (ca) the offence involved the actual or threatened use of explosives or a chemical or biological agent, (cb) the offence involved the offender causing the victim to take, inhale or be affected by a narcotic drug, alcohol or any other intoxicating substance, (d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences), (e) the offence was committed in company, (ea) the offence was committed in the presence of a child under 18 years of age, (eb) the offence was committed in the home of the victim or any other person, (f) the offence involved gratuitous cruelty, (g) the injury, emotional harm, loss or damage caused by the offence was substantial, (h) the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability), (i) the offence was committed without regard for public safety, (ia) the actions of the offender were a risk to national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 of the Commonwealth), (ib) the offence involved a grave risk of death to another person or persons, (j) the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence, (k) the offender abused a position of trust or authority in relation to the victim, (l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, because of the geographical isolation of the victim or because of the victim’s occupation (such as a person working at a hospital (other than a health worker), taxi driver, bus driver or other public transport worker, bank teller or service station attendant), (m) the offence involved multiple victims or a series of criminal acts, (n) the offence was part of a planned or organised criminal activity, (o) the offence was committed for financial gain, (p) without limiting paragraph (ea), the offence was a prescribed traffic offence and was committed while a child under 16 years of age was a passenger in the offender’s vehicle.

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s 21A

[5-s 21A]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 21A

The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. [subs (2) am Act 27 of 2006 s 3 and Sch 1[1], [2], opn 26 May 2006; Act 50 of 2007 s 3 and Sch 1[1]–[5], opn 1 Jan 2008; Act of 28 of 2009 s 3, opn 9 June 2009; Act 64 of 2011 Sch 1[1], opn 16 Nov 2011; Act 62 of 2017 Sch 1.2, opn 23 Nov 2017; Act 29 of 2018 Sch 1 item 1.7, opn 21 June 2018]

(3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, (b) the offence was not part of a planned or organised criminal activity, (c) the offender was provoked by the victim, (d) the offender was acting under duress, (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise, (i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), (j) the offender was not fully aware of the consequences of his or her actions because of the offender’s age or any disability, (k) a plea of guilty by the offender (as provided by section 22 or Division 1A), (l) the degree of pre-trial disclosure by the defence (as provided by section 22A), (m) assistance by the offender to law enforcement authorities (as provided by section 23). (n) an offer to plead guilty to a different offence where the offer is not accepted, the offender did not plead guilty to the offence and the offender is subsequently found guilty of that offence or a reasonably equivalent offence (this circumstance, among others, is provided for by section 25E(1)). [subs (3) am Act 50 of 2007 s 3 and Sch 1[6], opn 1 Jan 2008; Act 55 of 2017 Sch 2[1], [2], opn 30 Apr 2018]

(4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so. (5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence. (5A) Special rules for child sexual offences In determining the appropriate sentence for a child sexual offence, the good character or lack of previous convictions of an offender is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence. [subs (5A) insrt Act 105 of 2008 s 4 and Sch 2, opn 1 Jan 2009]

(5AA) Special rule for self-induced intoxication In determining the appropriate sentence for an offence, the self-induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor. [subs (5AA) insrt Act 2 of 2014 Sch 3[1], opn 31 Jan 2014]

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s 21A

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 21A]

(5B) Subsections (5A) and (5AA) have effect despite any Act or rule of law to the contrary. (5C) For the purpose of subsection (2)(p), an offence under any of the following provisions is taken to have been committed while a child under 16 years of age was a passenger in the offender’s vehicle if the offence was part of a series of events that involved the driving of the vehicle while the child was a passenger in the vehicle: (a) section 13(2), 15(4), 18B(2), 18D(2), 22(2), 24D(1) or 29(2) of the former Road Transport (Safety and Traffic Management) Act 1999, (b) clause 16(1)(a), (b) or (c), 17(1) or 18(1) of Schedule 3 to the Road Transport Act 2013. [subs (5C) subst Act 19 of 2013 Sch 4 item 4.12[1], opn 1 July 2013]

(6) In this section: child sexual offence means: (a) an offence against section 61I, 61J, 61JA, 61K, 61KC, 61KD, 61KE, 61KF or 66F of the Crimes Act 1900 where the person against whom the offence was committed was then under the age of 16 years, or (b) an offence against section 66A, 66B, 66C, 66D, 66DA, 66DB, 66DC, 66DD, 66DE, 66DF, 66EA, 66EB, 66EC, 91D, 91E, 91F, 91G or 91H of the Crimes Act 1900, or (c) an offence against section 80D or 80E of the Crimes Act 1900 where the person against whom the offence was committed was then under the age of 16 years, or (d) an offence against section 91J, 91K or 91L of the Crimes Act 1900 where the person who was being observed or filmed as referred to in those sections was then under the age of 16 years, or (d1) an offence against a provision of the Crimes Act 1900 set out in Column 1 of Schedule 1A to that Act where the person against whom the offence was committed was then under the age of 16 years, or (e) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in any of the above paragraphs, or (f) an offence under a previous enactment that is substantially similar to an offence referred to in any of the above paragraphs. prescribed traffic offence means an offence under any of the following provisions: (a) sections 9, 11B(1) and (3), 12(1), 13(2), 15(4), 18B(2), 18D(2), 22(2), 24D(1) and 29(2) of the former Road Transport (Safety and Traffic Management) Act 1999, (a1) sections 110, 111(1) and (3) and 112(1) of the Road Transport Act 2013 and clauses 16(1)(a), (b) or (c), 17(1) and 18(1) of Schedule 3 to that Act, (b) sections 51B(1) and 52A(1)(a) and (3)(a) of the Crimes Act 1900, (c) section 52A(2) and (4) of the Crimes Act 1900 in the circumstances of aggravation referred to in section 52A(7)(a), (c) or (d) of that Act. [def insrt Act 64 of 2011 Sch 1[3], opn 16 Nov 2011]

self-induced intoxication has the same meaning it has in Part 11A of the Crimes Act 1900. [def insrt Act 2 of 2014 Sch 3[3], opn 31 Jan 2014]

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[subs (5B) insrt Act 105 of 2008 s 4 and Sch 2, opn 1 Jan 2009; am Act 2 of 2014 Sch 3[2], opn 31 Jan 2014]

[5-s 21A]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 21A

serious personal violence offence means a personal violence offence (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007) that is punishable by imprisonment for life or for a term of 5 years or more. [subs (6) insrt Act 50 of 2007 s 3 and Sch 1[7], opn 1 Jan 2008; am Act 80 of 2007 s 103 and Sch 2.8[1], opn 10 Mar 2008; Act 105 of 2008 s 4 and Sch 2, opn 1 Jan 2009; Act 19 of 2013 Sch 4 item 4.12[2], [3], opn 1 July 2013; Act 33 of 2018 Sch 3[4], [5], opn 31 Aug 2018; Act 33 of 2018 Sch 3[1]–[3], opn 1 Dec 2018] [s 21A subst Act 90 of 2002 s 3 and Sch 1[2], opn 1 Feb 2003]

COMMENTARY ON SECTION 21A Application of the section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Aggravating factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 21A(2)(b) threat or use of violence . . . . . . . . . . . . . . . . . . Section 21A(2)(d) criminal record . . . . . . . . . . . . . . . . . . . . . . . . . . Section 21A(2)(e) offence committed in company . . . . . . . . . . . . Section 21A(2)(ea) presence of a child . . . . . . . . . . . . . . . . . . . . . . Section 21A(2)(eb) offence occurring in victim’s home . . . . . . . Section 21A(2)(f) gratuitous cruelty . . . . . . . . . . . . . . . . . . . . . . . . . Section 21A(2)(g) substantial injury . . . . . . . . . . . . . . . . . . . . . . . . . Section 21A(2)(h) racial hatred or prejudice . . . . . . . . . . . . . . . . . Section 21A(2)(i) disregard for public safety . . . . . . . . . . . . . . . . . Section 21A(2)(j) conditional liberty . . . . . . . . . . . . . . . . . . . . . . . Section 21A(2)(k) abuse of position of trust or authority . . . . . . Section 21A(2)(l) vulnerable victim . . . . . . . . . . . . . . . . . . . . . . . . . Section 21A(2)(m) multiple criminal acts . . . . . . . . . . . . . . . . . . . . Section 21A(2)(n) planned or organised activity . . . . . . . . . . . . . . Section 21A(2)(o) financial gain . . . . . . . . . . . . . . . . . . . . . . . . . . . Mitigating factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 21A(3)(a) Harm caused by the offence not substantial . Section 21A(3)(d) Duress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 21A(3)(f) Good character . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 21A(3)(h) Prospects of rehabilitation . . . . . . . . . . . . . . . . Section 21A(3)(i) Remorse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 21A(3)(j) Lack of awareness of consequences . . . . . . . . Section 21A(3)(k) Plea of guilty . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 21A(3)(n) Offer to plead guilty to different offence which is subsequently proved . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exclusion of self-induced intoxication as a mitigating factor . . . . . Special rule for child sexual offences . . . . . . . . . . . . . . . . . . . . . . . . . . . Operation of s 21A(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 21A.1] [5-s 21A.5]

[5-s 21A.10]

[5-s 21A.15] [5-s 21A.20] [5-s 21A.25]

[5-s 21A.1] Application of the section The section commenced on 1 February 2003 and applies to the determination of a sentence thereafter for an offence, whenever committed, unless before 1 February 2003, a court has convicted the person being sentenced of the offence or a court has accepted a plea of guilty to the offence and the plea has not been withdrawn: cl 45(2), Sch 2, Crimes (Sentencing Procedure) Act 1999 at [5-Sch 2]. Section 21A applies to sentencing by all courts for all offences under NSW law. In determining the appropriate sentence for an offence, s 21A(1) requires a court to take into account: (a) the aggravating factors referred to in s 21A(2) that are relevant and known to the court: s 21A(1)(a); (b) the mitigating factors referred to in s 21A(3) that are relevant and known to the court: s 21A(1)(b); (c) any other objective or subjective factor that affects the relative seriousness of the offence: s 21A(1)(c).

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CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 21A.1]

The section expressly states that the matters referred to in s 21A(1)(a)–(c) are in addition to any other matters that are required or permitted to be taken into account by a court under any Act or rule of law. Like the former s 21A(4) (as it stood prior to the 2003 amendments), this provision emphasises that existing statutory and common law factors may still be taken into account in determining sentence. It has been held that s 21A(1) preserves the entire well-established body of sentencing principles that have been developed by the courts: R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131; BC200402624 at [56]–[57], [103]–[106]. It was pointed out that the section does not constitute an exhaustive list of the aggravating or mitigating factors that a court may take into account. The fact that any aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence: s 21A(5). It will be a matter for the sentencing court to attach such weight to the factors as seems appropriate in determining sentence in the particular case. The limitations upon the section were described in R v Wickham [2004] NSWCCA 193; BC200403646 at [22] as follows: When a sentencing court is about to consider matters of aggravation or mitigation under s 21(A) it is important that it recognises the limits upon the use to be made of those factors. The first is that found in relation to factors of aggravation in s 21A(2) which, after listing a number of aggravating features, provides:

The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. The effect and policy behind such a limitation is self-evident: there should be no double counting of aggravating features of an offence. and at [23]: The second limitation is that found in the s 21A(4), which provides:

The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so. The effect of this provision is to ensure that a factor is not taken into account in a way inconsistent with general sentencing principles and policy. It was the intention of Parliament to replicate the common law. See also R v Johnson [2005] NSWCCA 186; BC200503397 where it was stressed that a matter of aggravation cannot be taken into account if it is an element of the offence. However, the court can take into account the nature and extent of the matter of aggravation arising from an element of the offence, without breaching the section. For example, on a charge of robbery in company the fact that the offender was in company could not be taken into account as an aggravating factor but the nature and extent of the company and the behaviour of the persons in company with the offender may be taken into account in relation to an evaluation of the seriousness of the charge: R v Way, above, at [106]. A court is entitled to take into account the fact that a child was 13 and by reason of her age more vulnerable on a charge where the element of the offence was that the complainant was under 16: R v Pearson [2005] NSWCCA 116; BC200502327; (2005) 12 Crim LN 45 [1865]. The court can take into account generally that the offence was in breach of a position of trust notwithstanding that s 21A(2)(k) was not engaged: Rainbow v R [2018] NSWCCA 42; BC201801897; 25(2) Crim LN [3970] referring to Cowling v R [2015] NSWCCA 213; BC201507549. Similarly, the nature and seriousness of the injuries inflicted could be taken into account on a charge of inflicting grievous bodily harm although the simple fact that grievous bodily harm was inflicted is an element of the offence. Care should be taken in determining what are the legal elements of the offence charged. A judge was in error in refusing to take into account that a weapon was used on a charge of malicious inflicting grievous bodily harm with intent under s 33 because the offence can be committed without the use of a weapon: R v Chisari [2006] NSWCCA 19; BC200601106; (2006) 13 Crim LN 12 [2029].

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Sentencing

s 21A

[5-s 21A.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 21A

Difficulties can arise where the prosecution relies upon more than one aggravating factor in the charge: see Hamze v R [2006] NSWCCA 36; BC200601102; (2006) 13 Crim LN 14 [2033]. It has been held to be an error to have additional regard to an aggravating factor if it is an element of the offence in the following cases: • R v Cramp [2004] NSWCCA 264; BC200404883 — that the injury was substantial on a charge of maliciously inflict grievous bodily harm; • R v Williams [2005] NSWCCA 99; BC200501608; (2005) 12 Crim LN 46 [1867] — the use of violence on a charge of manslaughter; • R v Ibrahimi [2005] NSWCCA 153; BC200502338 — the use of violence on a charge of robbery; • R v Johnson [2005] NSWCCA 186; BC200503397 — use of violence of a sexual character on a charge of sexual assault; • R v Martin [2005] NSWCCA 190; BC200503395 — breach of trust on a charge of fraud by a trustee under s 172; • R v Murphy [2005] NSWCCA 182; BC200503070 — taking into account injury on a charge of assault occasioning actual bodily harm; • R v House [2005] NSWCCA 88; BC200501960; (2005) 12 Crim LN 43 [1862] — possession of weapon on a charge of armed robbery. Double counting can occur where an aggravating factor is taken into account even though it is not an element of the offence but that factor is an inherent characteristic of the offence or the particular class of offence: Elyard v R (2006) 45 MVR 402; [2006] NSWCCA 43; BC200601101. Where there are multiple offences, the sentencing court should make it clear what factors, if any, are being taken into account in respect of particular offences where those factors do not apply to each and every offence before the court: R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145; BC200502331; (2005) 12 Crim LN 43 [1863]. Given that the aggravating and mitigating factors in s 21A(2) and (3) are said to re-state the application of such factors to the sentencing exercise as they presently apply at common law reference should be made to the authorities in the Introduction — Sentencing Law and Practice, and elsewhere in the Act, as follows: (a) position, function or vulnerability of the victim — s 21A(2)(a), s 21A(2)(l): see [5-135], [5-220]; (b) harm to victim — s 21A(2)(g), s 21A(3)(a): see [5-215], [5-220]; (c) abuse of position of trust re victim — s 21A(2)(k): see [5-225]; (d) actual or threatened use of weapon — s 21A(2)(c): see [5-230]; (e) degree of planning or organisation of criminal activity — s 21A(2)(n), s 21A(3)(b): see [5-210]; (f) offence in breach of conditional liberty — s 21A(2)(j): see [5-235]; (g) prospects of rehabilitation — s 21A(3)(h): see [5-140]; (h) previous convictions and character of offender — s 21A(2)(d), s 21A(3)(e), (f), (g): see [5-300]; (i) remorse shown by offender — s 21A(3)(i): see [5-330], [5-335]; (j) limited awareness of consequences because of age or disability — s 21A(3)(j): see [5-312], [5-305]; (k) plea of guilty by offender — s 21A(3)(k): see [5-340], [5-s 22]; (l) degree of pretrial disclosure by defence — s 21A(3)(l): see [5-s 22A]; (m) assistance by offender to law enforcement authorities — s 21A(3)(m): see [5-350], [5-s 23]. [5-s 21A.5] Aggravating factors The court should have regard to the limitations on the use to be made of aggravating factors referred to in R v Wickham [2004] NSWCCA 193; BC200403646; (2005) 11 Crim LN 55, see [5-s 21A.1]. A sentencing judge would be prudent to raise with the parties whether a particular aggravating factor exists or not, and if the court is considering relying upon an aggravating factor that is a matter that should be raised with the defence: R v Tadrosse (2005) 65 NSWLR 740; [2005]

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CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 21A.5]

NSWCCA 145; BC200502331. The issue whether a victim impact statement could be used to prove an aggravating factor under s 21A(2) was generally considered in R v Tuala [2015] NSWCCA 8; BC201500546; 22(3) Crim LN [3505]. A judge should indicate with particularity what aggravating factors, if any, have been taken into account and it is not sufficient to merely indicate that aggravating and mitigating factors specified in the section have been taken into account: Matu v R [2019] NSWCCA 23; BC201900782; 26(3) Crim LN [4104]. Such a “generic” statement is insufficient to amount to reasons. The court has stressed that what is required “is a clear identification of the relevant factors, the weight given to them and their role in the structuring of the sentencing order”. See also Hudson v R [2016] NSWCCA 278; BC201610294 where it was held that such a statement was meaningless; “it conveys nothing to the offender, the community, or this court about what has been taken into account and what significance it had in the assessment of sentence. A court should make it clear if it refers to an aggravating factor whether it finds that it is present or not and use the terms of the provision if making a finding: R v Wickham, above, and R v Williams [2005] NSWCCA 99; BC200501608, where it was held that, if a court refers to a matter of a aggravation without specifically rejecting it as applying, it will be taken on appeal that the court applied it. There is a risk of double counting arising where the court considers the application of a guideline setting out relevant aggravating factors and then takes into account the factors referred to in s 21A(2): R v Street [2005] NSWCCA 139; BC200502036, in relation to armed robbery and R v McMillan [2005] NSWCCA 28; BC200500727 in relation to dangerous driving. Section 21A(2)(b) threat or use of violence Care should be taken not to take this factor into account where it is an element of the offence such as in an offence of robbery see: R v Ibrahimi [2005] NSWCCA 153; BC200502338 or manslaughter; see R v Williams [2005] NSWCCA 99; BC200501608. See also R v Mohamadin [2004] NSWCCA 401; BC200408093; R v Franks [2005] NSWCCA 196; BC200503392; R v McNamara [2005] NSWCCA 195; BC200503393. The actual use of a dangerous weapon is not an element of an offence of armed robbery and may be taken into account as an aggravating factor: Dougan v R (2006) 160 A Crim R 135; [2006] NSWCCA 34; BC200601100; (2006) 13 Crim LN 12 [2030]. Actual use of violence is not an element of an offence of robbery though the threatened use of violence is: Hamze v R [2006] NSWCCA 36; BC200601102; (2006) 13 Crim LN 13 [2032]. Violence in the provision refers to violence against the person and not violence to property: Makrynikos v R [2006] NSWCCA 170; BC200603847; (2006) 13 Crim LN 37 [2054]. Section 21A(2)(d) criminal record The fact that the offender has a record of prior convictions is not itself an aggravating feature under this section. It is only an aggravating feature where the record gives rise to the consideration in Veen v R (No 2) (1988) 164 CLR 465; 77 ALR 385; BC8802593 that was described in R v Shankley [2003] NSWCCA 253; BC200305296 as being relevant, not to increase the objective seriousness of the offence committed but rather that “retribution, deterrence and protection of society may indicate a more severe sentence is warranted”: see R v Johnson [2004] NSWCCA 76; BC200402002; R v Wickham [2004] NSWCCA 193; BC200403646; (2005) 11 Crim LN 55. In R v McNaughton (2006) 66 NSWLR 566; 163 A Crim R 381; [2006] NSWCCA 242; BC200606244; (2006) 13 Crim LN 65 [2084] it was held that prior offending is not relevant to an assessment of the moral culpability of the offender but is restricted in the way identified in Shankley and applied in Wickham. However the existence of prior record does not aggravate the offence but is an aggravating factor in determining the appropriate sentence. It is unsatisfactory for a court to refer to the previous record as an aggravating factor without explaining the precise manner in which the record was taken into account: R v Walker [2005] NSWCCA 109; BC200501614; (2005) 12 Crim LN 47 [1868]. The relevance of criminal convictions for offences committed after the offence for which sentence is being passed was considered in R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381; BC200609898; 14(1) Crim LN 11 [2158]. The aggravating factor can apply even though the

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Sentencing

s 21A

[5-s 21A.5]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 21A

offender has a history of traffic offences but had never served a period in custody when being sentenced for a fraud offence: Tsakonas v R [2009] NSWCCA 258; BC200909563; (2009) 16 Crim LN 162 [2648]. An order under s 10 of the Act should be excluded from considering whether the record of an offender is an aggravating factor under the section: R v Price [2005] NSWCCA 285; BC200506068 considered in Frigiani v R [2007] NSWCCA 81; BC200702156; 14 Crim LN 59 [2211]. It was an error for a judge to take into account as part of the criminal record two previous verdicts of not guilty on the grounds of mental illness for offences of armed robbery: Heatley v R [2008] NSWCCA 229; BC200808653; 15 Crim LN 132 [2458]. It was an error for a judge to take into account the offences for which the offender was to be sentenced when considering the offender’s prior record: Pfeiffer v R [2009] NSWCCA 145; BC200904660; (2009) 16 Crim LN 99 [2586]. Section 21A(2)(e) offence committed in company The factor is not made out merely because the offender happens to be in the company of another person at the time of the offending but “company” means the presence of another person involved in the criminal undertaking, usually in order to give weight to the threats made by another offender: Gore v R [2010] NSWCCA 330; BC201010021; 18(3) Crim LN 46 [2875]. The factor cannot apply to a case of a principal in the second degree because presence at the commission of the crime being committed by the principal offender is an element of the offence and so the accessory must be in the principal’s company: Kukovec v R [2014] NSWCCA 308; BC201410600; 22(2) Crim LN [3491] where the offender was being sentenced for aiding and abetting an aggravated robbery. Section 21A(2)(ea) presence of a child This factor was considered in Gore v R [2010] NSWCCA 330; BC201010021 where it was held that it was insufficient that the child happened to be in the general vicinity where the offence was committed where there was no evidence that the child was present where the offence occurred. The policy behind the factor was considered. The aggravating factor can be present where the offenders are children and the multiple victims include a child: Lloyd v R [2017] NSWCCA 303; BC201710949; 25(2) Crim LN [3942]. The mere fact that there are children present in a house, outside of which the offence occurred, is not sufficient to give rise to the factor of aggravation where there is no evidence that the children were actually present at the scene of the crime: Alesbhi v R; Esbhi v R [2018] NSWCCA 30; BC201801504; 25(4) Crim LN [3966] where there is a general review of the cases dealing with this factor. Section 21A(2)(eb) offence occurring in victim’s home There had been some controversy as to the scope of this factor and, in particular, whether it applied only to an intruder into the home. The controversy was settled in Jonson v R [2016] NSWCCA 286; BC201610577; 24(2) Crim LN [3795]. It was held that a proper construction of the provision meant that the aggravating factor applied whether or not the accused was entitled to be present in the victim’s home. The accused in this case was in a relationship with the victim and lived in the home, yet the aggravating factor applied. This aggravating factor applies to an offence of aggravated breaking and entering under s 112(2) of the Crimes Act 1900 where the aggravating circumstance was that the offender knew that there were persons present in the house broken into, as it is no element of the offence that the place broken into was the home of the victim: R v Bennett [2014] NSWCCA 197; BC201408247; 22(1) Crim LN [3475]. Parliament did not intend that the operation of s 21A(2)(eb) be limited to circumstances where the offender was an intruder: Jonson v R [2016] NSWCCA 286; BC201610577; R v Lulham [2016] NSWCCA 287; BC201610564.

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s 21A

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 21A.5]

in offences which are of their nature violent, such as wounding or the infliction of grievous bodily harm, where the purpose of the offence is to cause pain and suffering to the victim there needs to be something more for the factor to be present than merely that the offender had no justification for causing the victim pain [at [30]]. In TMTW v R [2008] NSWCCA 50; BC200801364 there was gratuitous cruelty where the applicant inflicted pain on the victim by the use of a pair of pliers applied to the victim’s penis and scrotum. In R v Olsen [2005] NSWCCA 243; BC200505162 gratuitous cruelty was found by reason of the infliction of a very large number of injuries to a very young child. In R v King (2004) 150 A Crim R 409; [2004] NSWCCA 444; BC200408423 the factor was pregnant where the offender kicked a pregnant woman in the abdomen. It was held to be an error to take into account the factor in an offence of being in possession of child pornography where the offender did not inflict cruelty on the children the subject of the photographs: Saddler v R [2009] NSWCCA 83; BC200902237; (2009) 16(5) Crim LN 62 [2544]. Section 21A(2)(g) substantial injury This provision should be read subject to R v Previtera (1997) 94 A Crim R 76; BC9702102 which holds that the effect of the death of the victim upon others is not a relevant consideration to aggravate the offence or increase the sentence. However, some question has been raised whether the decision in Previtera continues to apply in light of s 3A of the Act: R v Berg (2004) 41 MVR 399; [2004] NSWCCA 300; BC200405646; (2004) 11 Crim LN 99 [1775] per Spigelman CJ with whom Wood CJ at CL generally agreed. The sentencing court is entitled to find that there was substantial injury inflicted, so that this aggravating feature applied, notwithstanding the absence of a victim impact statement or other external material. The judge can make such a finding based upon the material before the court including a statement of facts and by a consideration of all the circumstances surrounding the offence and what the effect on the victim would be, provided that the harm taken into account was not more than would normally be expected to be the result of such an offence: WAP v R [2017] NSWCCA 212; BC201707089. The issue of whether the injuries to a complainant can be taken into account as an aggravating factor where they are no more than would be expected from an offence of the kind committed was considered in King v R [2010] NSWCCA 33; BC201001247; 17(4) Crim LN 59 [2709] — a case concerned with the emotional harm suffered by a sexual assault victim. See also Josefski v R [2010] NSWCCA 41; BC201001109. In RP v R [2013] NSWCCA 192; BC201312214; 20(10) Crim LN [3298] it was held that the judge erred in having regard to the effects of the sexual assault on the victim that were more than would have been expected having regard to the nature of the sexual assault committed. An offender is only to be sentenced for the harm resulting from the offence which was reasonably foreseeable: Josefski v R [2010] NSWCCA 41; BC201001109; 17(4) Crim LN 57 [2706]; applying R v Wickham [2010] NSWCCA 41; BC201001109 after a review of cases in other common law jurisdictions. Care should be taken not to use as an aggravating factor the injury inflicted upon a victim where that is an element of the offence charged: R v Murphy [2005] NSWCCA 182; BC200503070. In R v Youkhana [2004] NSWCCA 412; BC200408415; (2005) 12 Crim LN 9 [1812] it was held that it was erroneous to take into account that the emotional trauma suffered by a victim of an armed robbery offence where it was no more serious than that which would normally be expected. It was also stated that it would be expected that evidence of a substantial emotional injury would be found in a victim impact statement. In R v Solomon (2005) 153 A Crim R 32; [2005] NSWCCA 158; BC200502528 (2005) 12 Crim LN 64 [1891], Youkhana was considered

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Sentencing

Section 21A(2)(f) gratuitous cruelty Gratuitous cruelty refers to the infliction of pain as an end in itself; that is needless yet intentional violence committed simply to make the victim suffer: McCullough v R [2009] NSWCCA 94; BC200902401 where it was held:

[5-s 21A.5]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 21A

and explained and where it was held that there was evidence of a substantial injury to the victims of armed robbery offences such that the aggravating factor applied. It was erroneous to take into account the fact that the victim had died on a charge of manslaughter: R v Williams [2005] NSWCCA 99; BC200501608; (2005) 12 Crim LN 46 [1867]. There is no need for specific evidence that the victim will suffer injury as a result of a sexual assault: Enriquez v R [2012] NSWCCA 60; BC201202127; 19(5) Crim LN [3059]. The relevance of a victim impact statement in cases of child sexual assault to prove emotional harm was considered in R v MJB [2014] NSWCCA 195; BC201408161; 21(10) Crim LN [3449] where the sentencing judge applied R v Slack [2004] NSWCCA 128; BC200402455, a decision which has been disapproved in a number of cases, see R v Gavel [2014] NSWCCA 56; BC201402604. The use of a victim impact statement to find a factor of aggravation under this provision was generally considered in R v Tuala [2015] NSWCCA 8; BC201500546; 22(3) Crim LN [3505] where it was held that, in the circumstances of that case, the statement could not be used to show that the injury was more severe than would have been expected from that offence. Section 21A(2)(h) racial hatred or prejudice This factor does not apply just because the offender decided that a person of a particular race was an appropriate victim, for example, because it was believed that such a person would be more likely to have money or valuable property in the house: Aslett v R [2006] NSWCCA 49; BC200601952; (2006) 13 Crim LN 13 [2031]. Section 21A(2)(i) disregard for public safety The provision is not directed at the risk of injury to the particular victim of the offence but to the danger caused to other members of the general public by the commission of the offence: R v Chisari [2006] NSWCCA 19; BC200601106; (2006) 13 Crim LN 12 [2029]. They may be offences where this factor cannot be taken into account because the offence is of such a nature that it will always be a factor relevant to sentencing for that offence. So it has been held that a court is not entitled to take into account the fact that an offence of dangerous driving alleging that the offender was under the influence of alcohol was committed in disregard for public safety as that was the gist of the offence and, therefore, an element of the offence: R v McMillan [2005] NSWCCA 28; BC200500727. In R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131; BC200402624 at [172] it was held that the supply of drugs was an offence committed in disregard for public safety notwithstanding that the drugs were unwittingly supplied to an undercover police officer, the offenders motivation or understanding in committing the offence being the relevant consideration. The fact that the offence related to the use or a firearm did not mean that the aggravating factor applied where the use of the firearm was an element of the offence: R v Street [2005] NSWCCA 139; BC200502036. It was an aggravating factor that an offence of violence was committed in the vicinity and within sight of members of the public whether or not the offence was considered to be in disregard of public safety: R v Saleib [2005] NSWCCA 85; BC200501605; (2005) 12 Crim LN 45 [1866]. Section 21A(2)(j) conditional liberty While it can be an aggravating factor that the offender was subject to conditional liberty at the time of the offence, this is not a factor that can be taken into account when assessing the objective seriousness of an offence: Turnbull v R [2019] NSWCCA 97; BC201904236; 26(6) Crim LN [4147] at [17] where it was held that an offender who is on liberty after parole has been revoked is on conditional liberty for the purpose of this factor. The fact that a person is subject to a good behaviour bond imposed under s 10 of the Act is an aggravating factor regardless of the offence for which the bond was granted: Frigiani v R [2007] NSWCCA 81; BC200702156; 14 Crim LN 59 [2211]. It will be more aggravating if the offence is one similar to that for which the offender is being sentenced. The factor is engaged where the offender commits an offence in breach of an order made under the Child Protection (Offenders Prohibition Orders) Act 2004: Sivell v R [2009] NSWCCA 286; BC200910950; (2010) 17 Crim LN 9 [2664]. However, the section does not apply where the offender has an outstanding warrant for breaching parole: Morrison v R [2009] NSWCCA 211; BC200907698; 16 Crim LN 128 [2615].

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s 21A

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 21A.5]

Section 21A(2)(k) abuse of position of trust or authority The nature of the aggravating factor of the offender being in a position of trust to the victim was considered in Suleman v R [2009] NSWCCA 70; BC200901710; (2009) 16(4) Crim LN 51 [2533] where it was held that it was not sufficient that the victim trusted the offender because, for example, of the position he held in the community or because the victim was commercially naïve. It was held to be an error where a court took into account as an aggravating factor that the offender was in a position of trust when sentencing for an offence under s 172 of the Crimes Act 1900 alleging that the offender was a trustee of property: R v Martin [2005] NSWCCA 190; BC200503395 where other examples are given of dishonesty offences where a position of trust was not an element of the offence. The scope of this factor was considered in Lu v R [2014] NSWCCA 307; BC201411201; 22(3) Crim LN [3501] where it was held that the provision applied to an offence contrary to s 176A of the Crimes Act 1900, notwithstanding that the offender was a company director, because the abuse of trust was over and above that expected from a person holding that position. Although it has been held that the section is not limited to a parental or spousal relationship, no position of trust arises merely because the accused and the victim may have had some prior encounter in which nothing untoward had occurred: R v MAK [2005] NSWCCA 369; BC200509808; 13(1) Crim LN [1986]. The factor did not arise simply because the complainant trusted the accused because of their previous relationship:Cowling v R [2015] NSWCCA 213; BC201507549; 22(10) Crim LN [3600]. The relationship may explain the circumstances of the offence but did not make it more serious. A female passenger in a taxi was held to be a vulnerable person when sentencing for an assault by the taxi driver: Ali v R [2010] NSWCCA 35; BC200801606; 17(5) Crim LN 69 [2718]. The section covers both an abuse of a position of trust and an abuse of a position of authority which are different concepts and it may be open to a court to take into account a breach of trust where the offender committed an offence which had as an element a breach of position of authority but the facts giving rise to the two aggravating factors are different: MRW v R [2011] NSWCCA 260; BC201109746. However, the sentencing court should indicate why there was both a breach of trust and an abuse of authority so that there is an acknowledgement of the different aggravating factors and why they both applied in the particular case. Where no such distinction was drawn in the sentencing remarks, it was an error for the judge to take into account that there was a breach of trust where the offence alleged an abuse of authority and the facts giving rise to each aggravating factor were the same: Beavis v R [2018] NSWCCA 248; BC201810418 at [255]. Section 21A(2)(l) vulnerable victim Vulnerability for the purpose of the aggravating factor refers to a class of persons recognised as being vulnerable to the commission of offences because of their age, employment or situation and not simply to the fact that the victim was vulnerable to the actions of the offender by the particular circumstances present when the offence was committed. So it was an error to find that a victim of domestic violence was vulnerable because the offender had created a situation where she was less able to seek help or assistance: Betts v R [2015] NSWCCA 39; BC201501792; 22(4) Crim LN [3513]. Vulnerability of victims as an aggravating factor was considered in: R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145; BC200502331; (2005) 12 Crim LN 44 [1864] where it was held that the sentencing judge erred in taking into account that victims of frauds perpetrated by the offender were vulnerable for the purpose of aggravating the offence where the victims were ordinary members of the public. In R v Williams [2005] NSWCCA 99; BC200501608; (2005) 12 Crim LN 46 [1867] it was held that the judge was in error in taking into account that the victim of a manslaughter was vulnerable merely because she was not as strong or violent as the offender, her husband.

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It was not double counting for a judge to take into account under the section that the offender was on conditional liberty both as a result of bail and an AVO as they are different types of breaches: Archer v R [2017] NSWCCA 151; BC201704980; 24(8) Crim LN [3867].

[5-s 21A.5]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 21A

A complainant who was an adult woman who was subject to acts of indecency at night was not “vulnerable” for the purpose of the section: Doolan v R (2006) 160 A Crim R 54; [2006] NSWCCA 29; BC200600558. Persons travelling on a train late at night are vulnerable persons for the purpose of the aggravating factor under this provision: R v Ibrahimi [2005] NSWCCA 153; BC200502338. A victim who was a student from Japan, aged 17 years, with limited English and travelling alone by train was held to be vulnerable, notwithstanding her age, where she had shown a trust in the offender that had been encouraged by him: Ollis v R [2011] NSWCCA 155; BC201105175; 18(8) Crim LN [2954]. Elderly persons living alone with no community support and in circumstances of social isolation can be regarded as members of a class that is vulnerable: Katsis v R [2018] NSWCCA 9; BC201800619; 25(3) Crim LN [3956]. Security guards working late at night in licensed premises are a class of persons that are vulnerable because they are liable to encounter intoxicated and aggressive persons in groups: Longworth v R [2017] NSWCCA 119; BC201704183. It was an error to take into account the vulnerability of a child aged 8 where the age of the child was an element of the offence: R v JDB (2005) 153 A Crim R 164; [2005] NSWCCA 102; BC200503220. However, in R v Pearson [2005] NSWCCA 116; BC200502327; (2005) 12 Crim LN 45 [1865] it was held that there was no error in the judge taking into account the vulnerability of a 13 year’s old complainant on a charge of indecently assaulting a complainant under the age of 16. However, there appears to be a fine distinction between when it is, and is not, permissible to take into account the vulnerability of the complainant. In R v JTAC [2005] NSWCCA 345,BC200507528; (2005) 12 Crim LN 112 [1946] it was held that there was no error in taking into account that the complainants aged 5 and 7 were “especially vulnerable” where it was an element of the offence that the child was under 10. In R v Boulad [2005] NSWCCA 289; BC200506979; (2005) 12 Crim LN 112 [1947] it was held to be an error to refer to the complainant as vulnerable where she was 15 and the offence related to a complainant over the age of 14 but under the age of 16 years. Although a judge was in error in taking into account the vulnerability of an aboriginal woman under this section, based upon certain asserted facts relevant to an aboriginal community in relation to complaints about domestic violent offences, the judge was entitled to find that the particular complainant in her relationship of emotional dependency on the accused was vulnerable and take that fact into account: Drew v R [2016] NSWCCA 310; 24(3) Crim LN [3809]. A security guard working at licensed premises who is attacked in the course of his duty is capable of being a “vulnerable” person for the purposes of s 21A(2)(l): Longworth v R [2017] NSWCCA 119; BC201704183 at [15]–[26]. Section 21A(2)(m) multiple criminal acts It is an error for a sentencing judge to take into account as an aggravating factor that there are multiple offences before the court where the court is sentencing the offender for those offences: R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145; BC200502331; (2005) 12 Crim LN 44 [1864] where it was held that the provision is referring to a situation where the offence charged involves a number of criminal acts such as frequently occur in offences of larceny as a servant or drug supply over a period of time. However, the court stressed that the factor could not be taken into account where it was an element of the offence that there was more than one criminal act such as in an offence of on-going supply under s 25A of the Drug Misuse and Trafficking Act. Tadrosse was followed most recently in Gray v R [2018] NSWCCA 39; BC201805764; 25(8) Crim LN [4022]. A judge is entitled to take into account when sentencing for an offence of ongoing supply the number of occasions on which the offender supplied the drug where the number significantly exceeds three occasions: Smith v R [2007] NSWCCA 138; BC200703798; (2007) 14 Crim LN 99 [2254]. Section 21A(2)(n) planned or organised activity Planning is generally an inherent characteristic of an offence of supplying drugs and can only be taken into account as an aggravating feature

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CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 21A.10]

where the amount of planning exceeds that which would ordinarily be expected: R v Yildiz (2006) 160 A Crim R 218; [2006] NSWCCA 97; BC200601974. The scope of the provisions was generally considered in Hewitt v R (2007) 180 A Crim R 306; [2007] NSWCCA 353; BC200711064; 15 Crim LN 24 [2349] where it was held that “organised criminal activity” may be carried out by a number of persons or it may be carried out by one person with planning or preparation. Offences carried over a sufficiently long period of time may involve sufficient repetition and system to lead to the conclusion that they were organised within the meaning of the section. Planning in relation to house breaking offences was considered in Williams v R [2010] NSWCCA 15; BC201000929; 17(4) Crim LN 58 [2707] where it was held that the judge was entitled to take into account that the offence was planned in that it required steps to be taken before the offence could be committed even though it did not fall within the section as it was not “a planned or organised criminal activity”. Planning was also considered in a drug supply offence of street level dealing in Knight v R [2010] NSWCCA 51; BC201002115; 17(5) Crim LN 76 [2726] where it was held to be an error under the section for the judge to find that the offence was aggravated even though the planning was “without much sophistication, and . . . part of an organised criminal activity”. Section 21A(2)(o) financial gain In Cicciarello v R [2009] NSWCCA 272; BC200910122; 17(1) Crim LN [2662] it was held that this factor of aggravation did not apply where the offender was supplying drugs in order to support his drug addiction and not for profit. In supply offence involving a commercial quantity, the factor is an inherent characteristic of the offence and generally cannot be taken into account as an aggravating factor unless the gain was significantly more than might be expected for an offence of this kind: Huang v R [2017] NSWCCA 312; BC201710923; 25(2) Crim LN [3945]. The factor was generally considered in Hejazi v R [2009] NSWCCA 282; BC200910598; 17(1) Crim LN [2657] where it was held that financial gain was not an inherent characteristic of an offence of break, enter and steal. There was no error in a judge taking into account when sentencing for an offence of armed robbery that it was committed for financial gain, as this was not an inherent characteristic of the offence charged: Couloumbis v R [2012] NSWCCA 264; BC201209687; 20(2) Crim LN [3175]. In Lee v R [2019] NSWCCA 15; BC201900524 it was held that there was no error in a judge finding that offences concerned with fraudulent use of identification information were aggravated by the fact that they were committed for financial gain as that factor was not an inherent characteristic of the offences charged. [5-s 21A.10] Mitigating factors Section 21A(3)(a) Harm caused by the offence not substantial This mitigating factor was rightly given no weight where there was a supply of drugs in an undercover operation as this was consistent with the view expressed that it would be an aggravating factor if the drugs were supplied to the community and the moral culpability of the offender is not reduced by the fact that they inadvertently supplied to police: Taysavang v R [2017] NSWCCA 146; BC201704912; 24(8) Crim LN [3875]. Section 21A(3)(d) Duress The approach to assessment of non-exculpatory duress as a factor on sentence was considered in Tiknius v R [2011] NSWCCA 215; BC201107348 at [30]–[54]. The nature of duress as a mitigating factor was also considered in Hernandez v R [2013] NSWCCA 51; BC201300863; 20(5) Crim LN [3219], where it was held that the applicant’s decision to involve himself in serious crime was one of the choices available to him to meet the circumstances in which he found himself and that the onus of proving duress had not been made out. Section 21A(3)(f) Good character Generally as to the relevance of good character see Ryan v R (2001) 206 CLR 267; 179 ALR 193; [2001] HCA 21; BC200102011 and generally at [5-300]. The offender must prove good character on the balance of probabilities and the court should consider

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s 21A

[5-s 21A.10]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 21A

the issue of character independently from the offences for which sentence is being passed: Aoun v R [2007] NSWCCA 292; BC200708836; 14 Crim LN 149 [2306]. Section 21A(3)(h) Prospects of rehabilitation A court is entitled to find that there are good prospects of rehabilitation despite the fact that the offender pleaded not guilty and maintains innocence of the crime: Alseedi v R [2009] NSWCCA 185; BC200906177; (2009) 16 Crim LN 114 [2603]. Section 21A(3)(i) Remorse The issue of remorse under the section was generally considered in Georgopolous v R [2010] NSWCCA 246; BC201008279 where it was held that for the purpose of the section there was no distinction between remorse and contrition and where consideration was given to the relevance of a plea of guilty as evidence of remorse. Remorse is to be taken into account only where the offender has provided evidence that he or she has accepted responsibility for the offence. A judge was in error in finding that there was no evidence of remorse where the subject was contained in an affidavit of the offender tendered without objection and even though the offender did not give evidence: Zwam v R [2017] NSWCCA 127; BC201704412; 24(7) Crim LN [3859]. Findings on remorse were considered in R v Thomas [2007] NSWCCA 269; BC200709863; 14 Crim LN 153 [2310]. No quantified discount should be allowed for remorse by itself or combined with the plea of guilty: R v MAK and MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381; BC200609898. There is no requirement that the offender give evidence in the proceedings before remorse can be taken into account: Butters v R [2010] NSWCCA 1; BC201000367. However if the offender does not give evidence the court may give less weight to assertion of remorse in reports: Pfitzner v R [2010] NSWCCA 314; BC201010468. The failure of an offender to give assistance to police is relevant to contrition but the offender should not be asked to name co-offenders in open court during the sentencing hearing: R v Baleisuva [2004] NSWCCA 344; BC200406822. An offender who fails to give assistance can be entitled to mitigation under the section but where some assistance has been given the offender will be entitled to greater consideration provided that there is no double counting by giving a discount for assistance to authorities: Morrison v R [2009] NSWCCA 211; BC200907698; (2009) 16 Crim LN 132 [2620]. There was no error in a judge finding that because the offender did not give evidence the judge was unable to make his own assessment of the offender’s remorse: Alvares and Farache v R [2011] NSWCCA 33; BC201101505; 18(4) Crim LN 57 [2887] applying Butters, above. As to the discretion of the sentencing judge to find there was no remorse, see Windle v R [2011] NSWCCA 277; BC201110827; 19(5) Crim LN [3062]. The duty of a legal representative in advising a client on whether to give evidence in sentencing proceedings, particularly on the issue of remorse, was considered in Brown v R [2018] NSWCCA 257; BC201811027; 26(1) Crim LN [4075] where it was held that in the circumstances of the particular case, a miscarriage had occurred by a failure to advise the accused that he could give evidence. It was open to a judge to reject a submission that the offender was remorseful, where the offender failed to give evidence that he accepted responsibility for his actions but to the contrary had in his evidence and to a probation officer attempted to excuse his actions by suggesting that had been acting in self-defence or was provoked by the victims contrary to the evidence in CCTV footage of the incident: Davis v R [2018] NSWCCA 67; BC201802688; 25(5) Crim LN [3981]. There was no denial of procedural fairness where a judge rejected a second-hand claim of remorse in a psychologist’s statement in circumstances where the offender had not given sworn evidence and notwithstanding that the Crown did not address on remorse and the judge gave no indication that he was going to take this approach: Newman v R [2018] NSWCCA 208; BC201808949; 25(10) Crim LN [4050]. It was simply a case of the application of the onus of proof where the judge had said nothing to indicate that the court was going to find in favour of the offender on this issue and merely did not accept a submission made by the defence on the issue.

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CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 21A.25]

There is no error in the failure of a judge to refer to remorse during sentencing remarks when it was obvious during the submissions that the judge accepted that the offender was remorseful: Biles v R [2014] NSWCCA 170; BC201406791; 21(10) Crim LN [3440]. While the absence of remorse may lead to a heavier sentence because the court does not mitigate the sentence by a finding that the offender is remorseful in accordance with the section, the absence of remorse cannot be used as an aggravating factor to increase a sentence or the non-parole period, and a sentencing court must be clear of this “fine distinction” when considering the issue of the lack of remorse or an acknowledgment of the effects of the offending: Roff v R [2017] NSWCCA 208; BC201706782; 24(10) Crim LN [3902]. Section 21A(3)(j) Lack of awareness of consequences For the relevance of age see at [5-305]. For mental disability see at [5-312]. Section 21A(3)(k) Plea of guilty See s 22 at [5-s 22] with respect to pleas of guilty for offences dealt with summarily or for offences dealt with on indictment to which ss 25A–25F at [5-s 25A]ff do not apply. Section 21A(3)(n) Offer to plead guilty to different offence which is subsequently proved See s 25E(1) at [5-s 25E]. [5-s 21A.15] Exclusion of self-induced intoxication as a mitigating factor In determining the appropriate sentence for an offence, the self-induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor: s 21A(5AA), Crimes (Sentencing Procedure) Act 1999 at [5-s 21A]. Self-induced intoxication has the same meaning it has in Pt 11A of the Crimes Act 1900 at [8-s 428A]: s 21A(6). Before the introduction of s 21A(5AA), an offender’s intoxication (by alcohol or drugs) could explain an offence but ordinarily did not mitigate the penalty: Bourke v R (2010) 199 A Crim R 38; [2010] NSWCCA 22; BC201000920 at [26]. The Court of Criminal Appeal had endorsed the statement in Hasan v R (2010) 31 VR 28; 222 A Crim R 306; [2010] VSCA 352; BC201009684 at [21] that “courts around Australia have consistently rejected the proposition that intoxication can mitigate the seriousness of an offence or reduce the offender’s culpability” and that although an “out of character” exception had been acknowledged to exist, it had almost never been applied: R v GWM [2012] NSWCCA 240; BC201209125 at [75]–[82] and ZZ v R [2013] NSWCCA 83; BC201301960; 20(7) Crim LN [3244]. By operation of cl 66 of Sch 2 of the Crimes (Sentencing Procedure) Act 1999 at [5-Sch 2], s 21A(5AA) applies to the determination of sentence for an offence whenever committed, unless, before the commencement of s 21A(5AA) on 31 January 2014: (a) the court has convicted the person being sentenced of the offence, or (b) a court has accepted a plea of guilty and the plea has not been withdrawn. [5-s 21A.20] Special rule for child sexual offences Section 21A(5A) was held to operate so as to prevent prior good character being taken into account as a mitigating factor on sentence where a child care worker committed offences against an 8 year old girl in his care of aggravated indecent assault (s 61M(2) Crimes Act 1900) and aggravated filming of a person engaged in a private act (s 91K(3) Crimes Act 1900): R v Stoupe [2015] NSWCCA 175; BC201505960 at [83]–[87]. A judge was held to be in error in applying the section in sentencing for child sexual offences committed against the daughter of his de facto partner: AH v R [2015] NSWCCA 51; BC201502298; 22(5) Crim LN [3528] as there was nothing to suggest that the offender’s good character assisted him in having access to the complainant. [5-s 21A.25] Operation of s 21A(4) The operation of this provision was considered in Jonson v R [2016] NSWCCA 286; BC201610577; 24(2) Crim LN [3795], which considered the scope of s 21A(2)(eb). It was held that s 21A(4) did not prevent the court from construing s 21A(2)(eb) in a way contrary to a previous decision of the court because the decision had not

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s 21A

[5-s 21A.25]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 21A

given rise to a “rule of law”, for the purposes of s 21A(4), that an offence could only be aggravated if it was committed by an intruder.

[5-s 22] Guilty plea to be taken into account for offences not dealt with on indictment 22 (1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account: (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty, and (c) the circumstances in which the offender indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it would otherwise have imposed. [subs (1) am Act 136 of 2010 Sch 1.2[1], opn 14 Mar 2011]

(1A) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence. [subs (1A) insrt Act 136 of 2010 Sch 1.2[2], opn 14 Mar 2011]

(2) When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so. (3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions. (4) The failure of a court to comply with this section does not invalidate any sentence imposed by the court. (5) This section applies only to a sentence for an offence that is dealt with summarily or to a sentence for an offence dealt with on indictment to which Division 1A does not apply. Note. Discounts for the utilitarian value of a guilty plea to other offences are provided for by Division 1A. [subs (5) insrt Act 55 of 2017 Sch 2[3], opn 30 Apr 2018]

COMMENTARY ON SECTION 22 2017 amendments to discounts for plea of guilty . . . . . . . . . . . . . . . . Discount for guilty plea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Duty to advise client . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 22.1] [5-s 22.5] [5-s 22.10]

[5-s 22.1] 2017 amendments to discounts for plea of guilty Substantial amendments were made concerning discounts for pleas of guilty by the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (“the 2017 Act”) which commenced on 30 April 2018. The 2017 Act inserted ss 25A–25F at [5-s 25A]ff which provides for sentencing discounts for guilty pleas to indictable offences. See [5-s 25A.1] for an outline of the changes. Section 22, as amended by the 2017 Act, will apply only to a sentence for an offence that is dealt with summarily or to a sentence for an offence dealt with on indictment to which s 25Aff does not apply: s 22(5). The amendments made by the 2017 Act extend to proceedings for an offence committed before the amendments if proceedings for the offence commenced on or after the amendments commenced on 30 April 2018: cl 72, Sch 2 at [5-Sch 2]. [5-s 22.5] Discount for guilty plea Generally as to the discount for the utilitarian value of the plea see N Bruni, “The Utilitarian Value of Pleading Guilty” (2004) 11 Crim LN 98 [1634].

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s 22

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 22.5]

The proposed amendment is not intended to change the nature of the court’s consideration of the guilty plea; rather it simply confirms the existing practice of the court. It does not allow offenders to artificially excuse a plea entered late. Clearly, the earlier a plea is entered, the greater are the savings for the justice system. Consistent with current case law, an explanation of the circumstances of a late plea may not result in any significant discount because the timing was so late that no utilitarian value was derived from it. A guideline judgment in respect of the discount for a plea has been given: R v Thomson and Houlton (2000) 49 NSWLR 383; 115 A Crim R 104; [2000] NSWCCA 309; BC200004800; (2000) 7 Crim LN 60 [1177], where the following was held: (i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight. (ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant — contrition, witness vulnerability and utilitarian value — but particular encouragement is given to the quantification of the last mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, eg assistance to authorities, a single combined quantification will often be appropriate. (iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10–25% discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge. (iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount. (v) The utilitarian value of the plea does not depend upon the strength of the Crown case. This judgment continues to have force in NSW despite the decisions in Wong v R (2001) 207 CLR 584; 185 ALR 233; [2001] HCA 64; BC200107047 and R v Cameron (2002) 209 CLR 339; 187 ALR 65; [2002] HCA 6; BC200200226, because of the terms of the section: R v Sharma (2002) 54 NSWLR 300; 130 A Crim R 238; [2002] NSWCCA 142; BC200202094; (2002) 9 Crim LN 31 [1420]. The guideline judgment has to be read in conjunction with other established principles of sentencing such as the approach to be taken when sentencing persons involved in the supply of drugs: R v Kipic [2004] NSWCCA 452; BC200408651; (2005) 12 Crim LN 8 [1811]. In R v MAK (2006) 167 A Crim R 159; [2006] NSWCCA 381; BC200609898; (2007) 14(1) Crim LN [2158] it was held that (ii) in the guideline set out above is no longer appropriate. In R v Borkowski [2009] NSWCCA 102; BC200902544; (2009) 16(5) Crim LN [2547] at [32] the principles in relation to the discount for the plea of guilty were summarised as follows: 1. The discount for the utilitarian value of the pleas will be determined largely by the timing of the plea so that the earlier the plea the greater discount: Thomson [(2000) 49 NSWLR 383; 115 A Crim R 104; [2000] NSWCCA 309; BC200004800] at [154]; Forbes [2005] NSWCCA 377 at [116]. 2. Some allowance may be made in determining the discount where the trial would be particularly complicated or lengthy: Thomson at [154]. 3. The utilitarian discount does not reflect any other consideration arising from the plea, such as saving witnesses from giving evidence but this is relevant to remorse: Thomson at [119] to [123]; nor is it affected by post-offending conduct: Perry [2006] NSWCCA 351. 4. The utilitarian discount does not take into account the strength of the prosecution case: Sutton [2004] NSWCCA 225.

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The section was amended to include subpara (c) in subs (1). In respect of that amendment the second reading speech includes the following:

[5-s 22.5]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 22

5. There is to be no component in the discount for remorse nor is there to be a separate quantified discount for remorse: MAK and MSK [2006] NSWCCA 381; Kite [2009] NSWCCA 12 or for the “Ellis discount”; Lewins [2007] NSWCCA 189; S [2008] NSWCCA 186. 6. Where there are multiple offences and pleas at different times, the utilitarian value of the plea should be separately considered for each offence: SY [2003] NSWCCA 291 7. There may be offences that are so serious that no discount should be given: Thomson at [158]; Kalache [2000] NSWCCA 2; where the protection of the public requires a longer sentence: El-Andouri [2004] NSWCCA 178. 8. Generally the reason for the delay in the plea is irrelevant because, if it is not forthcoming, the utilitarian value is reduced: Stambolis [2006] NSWCCA 56; Giac [2008] NSWCCA 280. 9. The utilitarian value of a delayed plea is less and consequently the discount is reduced even where there has been a plea bargain: Dib [2003] NSWCCA 117; Ahmad [2006] NSWCCA 177; or where the offender is waiting to see what charges are ultimately brought by the Crown: Sullivan and Skillin [2009] NSWCCA 296; or the offender has delayed the plea to obtain some forensic advantage: Stambolis [2006] NSWCCA 56; Saad [2007] NSWCCA 98, such as having matters put on a Form 1: Chiekh and Hoete [2004] NSWCCA 448. 10. An offer of a plea that is rejected by the Crown but is consistent with a jury verdict after trial can result in a discount even though there is no utilitarian value: Oinonen [1999] NSWCCA 310; Johnson [2003] NSWCCA 129. 11. The discount can result in a different type of sentence but the resulting sentence should not again be reduced by reason of the discount: Lo [2003] NSWCCA 313. 12. The amount of the discount does not depend upon the administrative arrangements or any practice in a particular court or by a particular judge for the management of trials or otherwise. It has been held that while the courts should generally follow the approach in Borkowski “the principles have to be applied by reference to the particular circumstances in any case”: R v AB (2011) 59 MVR 356; [2011] NSWCCA 229; BC201107942. There will be cases where a discount will not be appropriate because of the enormity of the crime committed: R v Kalache (2000) 111 A Crim R 152; [2000] NSWCCA 2; BC200000180; (2000) 7 Crim LN 9 [1111]. Such a case will usually be confined to those where the protection of the public requires a long sentence or the maximum sentence without discount, such as a life sentence: R v El-Andouri [2004] NSWCCA 178; BC200403645; (2004) 11 Crim LN 66 [1724]. The basis upon which a court can withhold a discount for a plea of guilty was considered in Milat v R; Klein v R [2014] NSWCCA 29; BC201401528; 21(4) Crim LN [3361] where, applying R v Robinson [2002] NSWCCA 359; BC200205630, it was held that the judge was entitled to refuse to discount a sentence where she determined not to impose the maximum penalty despite the seriousness of the offence. Although the court is not required to indicate the amount of discount awarded for the plea it has been emphasised that the court should disclose the discount in percentage terms where it is possible to do so: R v Shenton [2003] NSWCCA 346; BC200307075; R v Grbin [2004] NSWCCA 220; BC200404068; Xiao v R (2018) 329 FLR 1; [2018] NSWCCA 4; BC201800359. The discount cannot be expressed as a range: for example “Something in the vicinity of 10 to 15 per cent”: R v Knight; R v Biuvanua (2007) 176 A Crim R 338; [2007] NSWCCA 283; BC2007008745; or “something in the range of perhaps 15% or a little higher”: R v Burton [2008] NSWCCA 128; BC200804752; or “between 10% and 15%”; Huang aka Liu v R [2018] NSWCCA 70; BC201803059; 15(5) Crim LN [3983] but a judge can give a discount “of about x %” in order to avoid a sentence in weeks and days. The issue of a court giving a range for the discount was considered in a five judge bench in Huang aka Liu v R [2018] NSWCCA 70; BC201803059 where R v Knight; R v Biuvanua (2007) 176 A Crim R 338; [2007] NSWCCA 283; BC200708745 was followed.

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CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 22.5]

When imposing an aggregate sentence under s 53A, the discount is to be applied to the indicative sentences and not to the aggregate sentence imposed: PG v R [2017] NSWCCA 179; BC201705719 applying Elsaj v R [2017] NSWCCA 124; BC201704369 and see Berryman v R [2017] NSWCCA 297; BC201710692. It has been stressed repeatedly that the assessment of the amount of discount for the utilitarian value of the plea of guilty does not depend on the strength of the Crown case, which is a matter relevant only to the value of the plea as a sign of contrition:R v Sutton (2004) 41 MVR 40; [2004] NSWCCA 225; BC200404241; (2004) 11 Crim LN 69 [1732]; R v Brett [2004] NSWCCA 372; BC200407211; (2004) 11 Crim LN 113 [1794]. However, when sentencing for a Cth offence the strength of the Crown case is a relevant consideration in assessing the willingness of the offender to facilitate the course of justice: Danial v R [2008] NSWCCA 15; BC200800416; (2008) 15(3) Crim LN [2359]. There is nothing in the guideline judgment that requires the judge to give a 25% discount for the utilitarian effect of the plea alone in a non-complex case and the discount can reflect the utilitarian benefit, contrition and other advantages arising from the plea: R v Scott [2003] NSWCCA 286; BC200305880; (2003) 10 Crim LN 76 [1605]. There is no presumption in favour of or entitlement to a discount of a particular value. There may have to be discrimination between various charges as to the appropriate discount depending upon when the plea to a particular charge might reasonably have been made or indicated: R v SY [2003] NSWCCA 291; BC200306107 at [86]. In R v Johnstone [2004] NSWCCA 307; BC200405937; (2004) 11 Crim LN 102 [1779] it was held that a sentencing judge who determines to grant a discount significantly less than warranted by R v Thomson and Houlton (2000) 49 NSWLR 383; 115 A Crim R 104; [2000] NSWCCA 309; BC200004800 should at least give “a brief, clear and simple explanation of the process of reasoning” that led to that conclusion. It can amount to a denial of procedural fairness for a judge to let an offender believe that a discount of 25% will be allowed but then to give a lesser discount when the sentence is imposed: Trujillo-Mesa v R [2010] NSWCCA 201; BC201006699; 17(10) Crim LN 155 [2808]. The discount for the utilitarian value of the plea should not be reduced merely because the plea was to a less serious offence after a plea bargain with the Crown. However, the discount can be reduced because the utilitarian value of a plea forthcoming, a long time after the person is first charged when a lesser charge is substituted, is diminished: R v Dib [2003] NSWCCA 117; BC200302577; (2003) 10 Crim LN 45 [1562]; R v Scott, above; R v Harmouche (2005) 158 A Crim R 357; [2005] NSWCCA 398; BC200510272; (2006) 13 Crim LN 140 [1985] where it was emphasised that an accused has no entitlement to any particular discount. The appropriate discount for a plea entered after charge negotiations was considered in Morton v R [2014] NSWCCA 8; BC201400992; 21(4) Crim LN [3357] especially where counsel at the sentencing hearing conceded the discount should be reduced due to the delay caused by the negotiations. A discount of 25% was criticised as too generous in a case where the accused withheld the plea until the Crown had agreed to remove a charge from the indictment and place it on a Form 1: R v Stambolis (2006) 160 A Crim R 510; [2006] NSWCCA 56; BC200601166; (2006) 13 Crim LN 10 [2025] where it was held that the accused should not be rewarded for withholding the plea of guilty as a bargaining tool to achieve some particular result. In Ahmad v R [2006] NSWCCA 177; BC200604022; (2006) 13 Crim LN 36 [2052] it was held that the trial judge was correct to refuse to adopt a Crown concession that a 25% discount was appropriate in a case where the accused did not offer to plead guilty to manslaughter until the Crown indicted it was prepared to accept the plea. In Tazelaar v R [2009] NSWCCA 119; BC200903215; (2009) 16(5) Crim LN [2553] it was held, relying upon Stambolis, above, that a discount of no more than 15% should have been granted where the plea had come after extensive negotiations with the prosecution and the plea was given after the trial date. In Sullivan v R; Skillin v R (2008) 51 MVR 572; [2008] NSWCCA 296; BC200810948; (2009) 16(1) Crim LN [2487] it was held that the utilitarian value of the plea is reduced by the offender waiting to see what charges the prosecution will finally bring and then entering into negotiations.

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Sentencing

s 22

[5-s 22.5]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 22

It was within the discretion of the sentencing judge to reduce the discount where the offender had absconded for a lengthy period before entering a guilty plea in the Local Court: Samuel v R [2017] NSWCCA 239; BC201708383; 24(11) Crim LN [3916]. A discount was also reduced appropriately where the offender absconded after a plea of guilty was entered in the Local Court: R v Trad [2003] NSWCCA 213; BC200304257. Where the accused pleaded guilty shortly before the trial to some offences on the indictment, others being taken into account on a Form 1, a discount of 25% was excessive because the accused could have indicated the willingness to adopt this course much earlier in the proceedings: R v Cheikh; R v Hoete [2004] NSWCCA 448; BC200408756; (2005) 12 Crim LN 8 [1810]. A discount of 13% given to an accused who pleaded guilty before trial, following the successful appeal of an earlier conviction for a more serious offence, was held to be within the judge’s discretion, even though the accused could have given an indication of an intention to plead to the less serious offence at the time of his first trial: Blackwell v R [2012] NSWCCA 227; BC201208964; 20(1) Crim LN [3157]. Discounting for a plea of guilty and assistance in respect of a life sentence was considered in R v Lo [2003] NSWCCA 313; BC200306668; 10(11) Crim LN [1616] where the importance of avoiding “double dipping” in discounting the life sentence to a determinate sentence and then reducing the sentence again was stressed. Where the accused pleaded guilty to manslaughter on an indictment for murder and the plea was rejected by the Crown, but the accused was convicted of manslaughter and not murder, a discount should be given for the plea of guilty notwithstanding that there was no utilitarian benefit derived from the plea: R v Pennisi [2001] NSWCCA 326; BC200105217; 8(9) Crim LN [1344]. In R v Cardoso (2003) 137 A Crim R 535; [2003] NSWCCA 15; BC200300460; 10(3) Crim LN [1535] it was held that a discount should be given in such a case applying R v Oinonen [1999] NSWCCA 310; BC9906740; 6(10) Crim LN [1081]. The appropriate discount for a plea of guilty to manslaughter rejected by the Crown was considered in R v FD & JD (2006) 160 A Crim R 392; [2006] NSWCCA 31; BC200600673; 13(2) Crim LN [2008]. The offer to plead guilty to manslaughter did not result in a discount where the offer was based on certain facts being agreed to by the Crown, where no such agreement was pursued by the accused and where the facts ultimately relied upon by the accused could not have formed a proper basis for a plea to manslaughter: Merrick v R [2017] NSWCCA 264; BC201709793; 25(1) Crim LN [3931]. A full discount should be given where the accused could not make an earlier plea due to a question about being fit to be tried has arisen and which prevented a plea being made earlier during the proceedings: Hawkins v R [2011] NSWCCA 153; BC201106353; 18(9) Crim LN [2962] applying R v Zeilaa [2009] NSWSC 532; BC200905192. See also Hatfield v R [2011] NSWCCA 286; BC201110711; 19(2) Crim LN [3024]. Where the failure to enter a plea of guilty was not the fault of the offender, who believed that a plea had been entered in the Local Court and instructed his legal representative to that effect, it was appropriate to give the full discount and was an exceptional case where the reasons for the delay to enter a plea was relevant: Atkinson v R [2014] NSWCCA 262; BC201410622; 22(1) Crim LN [3478]. Exceptional cases where a full discount should be given notwithstanding a delay in the plea were examined in Haines v R [2016] NSWCCA 90; BC201603556; 23(6) Crim LN [3700] where at a late stage a psychiatrist withdrew the defence of mental illness. Criticism has been made of a practice of giving a discount and then imposing a sentence that is the most that can be given for imposing a suspended sentence or periodic detention where the starting point of the sentencing before discount was a most unlikely one, for example a discount of 10 per cent resulting in a sentence of 2 years that is then suspended: R v Huang [2010] NSWCCA 68; BC201002330; 17(5) Crim LN 78 [2730]. The failure to plead guilty and professions of innocence after conviction can be matters relevant to the prospect of rehabilitation of the accused: R v White (CCA(NSW), Spigelman CJ, Sheller JA and Newman J, 23 June 1998, unreported, BC9803139); (1998) 5 Crim LN 57 [887].

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[5-s 22A.1]

CRIMES (SENTENCING PROCEDURE) ACT 1999

Assistance to police by surrendering, admitting the offence and the plea of guilty should result in a substantial discount: Heard v R (1987) 11 NSWLR 46; 34 A Crim R 320. Although the judge should allow some discount for a voluntary disclosure of guilt it does not always follow that it should be significant or considerable: R v GLB [2003] NSWCCA 210; BC200304634; (2003) 10 Crim LN 59 [1577] following the majority in Ryan v R (2001) 206 CLR 267; 179 ALR 193; [2001] HCA 21; BC200102011 and disapproving R v CDH [2002] NSWCCA 103; BC200201373. Generally it is not appropriate to give separate discounts for the plea of guilty and assistance, except in relation to future assistance for Federal offences; R v El Hani [2004] NSWCCA 162; BC200403011; (2004) 11 Crim LN 66 [1728]. Where they are dealt with separately they should not be given cumulative effect R v NP [2003] NSWCCA 195; BC200303815; (2003) 10 Crim LN 53 [1572]. The discount can be reduced where there has been a factual dispute on sentence that required the calling of evidence: Donaczy v R [2010] NSWCCA 143; BC201004642. A plea given after the offender had escaped from custody on the matter to which the plea related is not a plea justifying a reduction of 25%: Visser v R [2011] NSWCCA 146; BC201104567; 18(7) Crim LN [2929]. There is no requirement to take into account, in determining the discount for a plea of guilty to a particular offence, when it was that the offender pleaded guilty to an offence being taken into account under Pt 3 Div 3 of the Act by considering the procedural history in respect of the offence being taken into account: Gordon v R [2018] NSWCCA 54; BC201802176; 25(5) Crim LN [3980]. Nor is there any requirement to take into account that an offender accepted or acknowledged guilt of an offence that is being taken into account. A similar provision applies in respect of the sentencing of children, see the Children (Criminal Proceedings) Act 1987 s 33B at [16-15,565]. As to the application of the discount in relation to aggregate sentencing see [5-s 53A.5]. [5-s 22.10] Duty to advise client Rule 38 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 provides that a barrister must (unless circumstances warrant otherwise in the barrister’s opinion) advise a client who is charged with a criminal offence about any law, procedure or practice which in substance holds out the prospect of some advantage (including diminution of penalty) if the client pleads guilty or authorises other steps towards reducing the issues, time, cost or distress involved in the proceedings.

[5-s 22A] Power to reduce administration of justice

penalties

for

facilitating

the

22A (1) A court may impose a lesser penalty than it would otherwise impose on an offender who was tried on indictment having regard to the degree to which the administration of justice has been facilitated by the defence (whether by disclosures made pre-trial or during the trial or otherwise). [subs (1) subst Act 136 of 2010 Sch 1.2[3], opn 14 Mar 2011]

(2) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence. [s 22A insrt Act 7 of 2001 s 5 and Sch 3[1], opn 19 Nov 2001]

COMMENTARY ON SECTION 22A Operation of section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Pre-trial disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 22A.1] [5-s 22A.5]

[5-s 22A.1] Operation of section Section 22A extends to proceedings for an offence that was substituted (but not finally determined) before the commencement of the section on 19 November 2001: cl 40, Sch 2, Crimes (Sentencing Procedure) Act at [5–Sch 2].

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Sentencing

s 22A

[5-s 22A.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 22A

Assistance under the section does not necessarily require a reduction in the sentence: Biddle v R [2017] NSWCCA 128; BC201704509; 24(8) Crim LN [3869] particularly where no submissions were addressed to the sentencing judge for such a reduction. It has been indicated that no separate discount should be given for this factor as to do so would result in a two-step approach to sentencing that has been condemned by the High Court: Chung v R [2017] NSWCCA 48; BC201701935. [5-s 22A.5] Pre-trial disclosure Chapter 3, Pt 3, Div 3 of the Criminal Procedure Act at [2-s 134] and following provides for pre-trial disclosure. In respect to an amendment made to the section to allow for a discount for defence disclosure whenever it occurs the second reading speech included the following: Cooperation may be in the form of admissions or disclosures in the course of the trial but may also encompass behaviour such as agreement to limit the facts in issue during a trial and hence reduce the number of witnesses required where the court is of the view that such behaviour is sufficient to justify a reduction of the sentence. I note that this provision will not result in defendants being penalised for the poor performance of their counsel; it merely provides the ability to reduce a penalty where the course of justice has been facilitated. Moreover, the amendment is not made to simply reward the defence where it has complied with mandated disclosure requirements; hence the court is provided with the discretion to impose a lesser penalty, which it may or may not exercise, having regard to the degree to which the defence has facilitated the administration of justice.

[5-s 23] Power to reduce penalties for assistance provided to law enforcement authorities 23 (1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence. (2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters: (a) [repealed] (b) the significance and usefulness of the offender’s assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered, (c) the truthfulness, completeness and reliability of any information or evidence provided by the offender, (d) the nature and extent of the offender’s assistance or promised assistance, (e) the timeliness of the assistance or undertaking to assist, (f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist, (g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist, (h) any injury suffered by the offender or the offender’s family, or any danger or risk of injury to the offender or the offender’s family, resulting from the assistance or undertaking to assist, (i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence, (j) [repealed] [subs (2) am Act 136 of 2010 Sch 1.2[4]–[5], opn 14 Mar 2011]

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CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 23.1]

(3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence. (4) A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must: (a) indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and (b) state the penalty that it would otherwise have imposed, and (c) where the lesser penalty is being imposed for both reasons — state the amount by which the penalty has been reduced for each reason. [subs (4) insrt Act 136 of 2010 Sch 1.2[6], opn 14 Mar 2011]

(5) Subsection (4) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions. [subs (5) insrt Act 136 of 2010 Sch 1.2[6], opn 14 Mar 2011]

(6) The failure of a court to comply with the requirements of subsection (4) with respect to any sentence does not invalidate the sentence. [subs (6) insrt Act 136 of 2010 Sch 1.2[6], opn 14 Mar 2011]

COMMENTARY ON SECTION 23 Assistance to the authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Identification of discount for past and future assistance . . . . . . . . . . Post-sentence assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Duty to advise client . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 23.1] [5-s 23.5] [5-s 23.10] [5-s 23.15]

[5-s 23.1] Assistance to the authorities The operation of the section was considered in detail in R v XX [2017] NSWCCA 90; BC201703330 where the history of the provision and extrinsic materials were considered in determining the operation of the section. It was held that: the section confers a discretion and not an obligation; the type of assistance given is not defined or limited; the person providing the assistance need not be the victim of the crime to which the assistance relates; the matters listed in the section are not an exhaustive list of the matters to be considered; the assistance need not be given after the offender’s arrest for the offence for which sentence is being passed; and the fact that the assistance does not relate to the offence being sentenced is relevant but not decisive to the determination of the discount to be given. The accused is to receive a significant reduction in the sentence by reason of the disclosure of otherwise unknown guilt which will vary depending upon the likelihood of guilt being discovered and established: R v Ellis (1986) 6 NSWLR 603; Heard v R (1987) 11 NSWLR 46; 34 A Crim R 320, but see Bond v R (1990) 48 A Crim R 1 and generally at [5-s 22.1]. Although there have been decisions stating that a separate discount should not be given for an “Ellis discount” more recent cases have held that a quantified discount should be given for this assistance under this section: Panetta v R [2016] NSWCCA 85; BC201603486; 23(6) Crim LN [3698]; but compare AG v R [2016] NSWCCA 102; BC201604186; 23(6) Crim LN [3699] and the comment. Where a discount is being given for assistance of the “Ellis type” under the section, then all of the provisions of the section have to be considered including s 23(2): R v AA [2017] NSWCCA 84; BC201703070 where the judge failed to indicate the discount being given and the other matters in the section. The court determined that, applying the section, no discount was appropriate for assistance. The ratio and application of discounts for assistance were considered in Isaac v R [2012] NSWCCA 195; BC201207151; 19(10) Crim LN [3130] where it was held that the discount should be applied equally over a number of sentences imposed for different counts. Unwitting assistance given by an accused to the authorities does not come within the scope of the section: R v Calderoni [2000] NSWCCA 511; BC200007790; (2001) 8 Crim LN 15 [1256], where the accused gave evidence on his trial for murder admitting his involvement in another

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Sentencing

s 23

[5-s 23.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 23

offence and was charged with that offence after being acquitted of murder. Nor is the fact that the offender voluntarily supplied the police with a DNA sample, or a handwriting sample or made a statement not knowing it was incriminating a matter justifying the granting of a discount for assistance to the authorities: R v Fernando [2004] NSWCCA 147; BC200402658; (2004) 11 Crim LN 38 [1689]. It was held that the provision of a password to enable police to access a computer did not merit a discount in the circumstances of the particular case: JL v R [2014] NSWCCA 130; BC201405598; 21(8) Crim LN [3420]. It has been held that admissions made by the offender to investigating police amounts to assistance falling within the section and its utility would have to be considered according to the provisions of the section: Howard v R [2019] NSWCCA 109; BC201904867; 26(6) Crim LN [4149]. It has been held that an accused person, who gives assistance to police in respect of an offence committed against him many years earlier, can be entitled to a discount of sentence for the offence for which he was being investigated at the time of the assistance: RJT v R [2012] NSWCCA 280; BC201209875; 20(1) Crim LN [3161]. In that case the accused was being sentenced for the sexual assault of his daughter and informed police that he had himself been sexually assault by his grandfather. He indicated he was prepared to give evidence and at the police request recorded incriminating conversations with his grandfather who later pleaded guilty to the offences against the accused. A majority of the court determined that he should receive a discount of 10% for the assistance. Assistance given to authorities many years before the offence for which sentence was being passed may be taken into account, but a relevant matter is whether the assistance related to the offence before the court: R v XX, above at [55]. It was held that a reduction of the sentence was not warranted in respect of a child sexual offence because of assistance given in relation to a conspiracy to murder many years before the commission of the sexual assault offence. The discount was found to be unreasonable having regard to the purpose for which the section was enacted because the assistance given was unrelated to the offence before the court and was given six or seven years before the offender’s arrest for the child sexual assault offence. The discount applies to the whole of the sentence and if applied only to the non-parole period is likely to skew the whole sentencing exercise: R v MacDonnell (2002) 128 A Crim R 44; [2002] NSWCCA 34; BC200200649; (2002) 9 Crim LN 24 [1407]. As to the method of discounting in relation to a sentence of life imprisonment, see R v Lo [2003] NSWCCA 313; BC200306668; (2003) 10 Crim LN 84 [1616]. Although the assistance to authorities should be seen to result in a substantial discount, there is no fixed amount and it need not be quantified separately: R v Gallagher (1991) 23 NSWLR 220; 53 A Crim R 248 where the matter is discussed generally, and where R v Cartwright (1989) 17 NSWLR 243 is considered. However, it has been held that, in the light of this provision, it would be prudent for a sentencing judge to include the arithmetic by which the appropriate sentence is derived where a discount has been given under the section: R v PPB [1999] NSWCCA 360; BC9907459; (1999) 6 Crim LN 99 [1095]. Leniency under the section will generally be recognised by a reduction in the total sentence and the judge would be expected to indicate why it is to be reflected in a decrease in the minimum term where special circumstances are found: R v S (2000) 111 A Crim R 225; [2000] NSWCCA 13; BC200000440; (2000) 7 Crim LN 10 [1112]. Since the introduction of this provision the effectiveness or usefulness of the assistance is a relevant factor contrary to the view of the majority in R v Cartwright above, and although the section does not mean that no discount can be made for such assistance, the discount must be less where the usefulness of the assistance has not been established: Yenice v R (1994) 72 A Crim R 234. The trial judge is not required to give the discount to all sentences to which the accused is subject: R v Gallagher, above. The discount is given both as an incentive to others to assist the police but also because such assistance will result in hardship to the accused in the nature of his custody: R v Perez-Vargas (1987) 8 NSWLR 559. However, unless there is evidence that the offender will serve the sentence in more difficult conditions the discount should be accordingly reduced and it would be

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CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 23.1]

exceptional for a discount of more than 40% to be given for plea and assistance unless there is evidence that the offender will serve the sentence in more difficult or disadvantaged conditions than other prisoners because of the assistance given: R v Sukkar (2006) 172 A Crim R 151; [2006] NSWCCA 92; BC200601971; (2006) 13 Crim LN 8 [2023]. A combined discount for pleas of guilty and assistance should not normally exceed 50% and a combined discount exceeding 50% should be reserved for exceptional cases: SZ v R (2007) 168 A Crim R 249; [2007] NSWCCA 19; BC200700607; 14(2) Crim LN 23. It was held would be rare case that a discount of more than 60% would not result in a manifestly inadequate sentence. There is no standard deduction to be given for assistance: FS v R [2009] NSWCCA 301; BC200911596; (2010) 17 Crim LN 26 [2681]. It has been held that there is more scope for a discount for assistance where there has been no discount for a guilty plea and a discount for assistance alone is not limited to 25% or any fixed percentage: Z v R [2014] NSWCCA 323; BC201411203; 22(3) Crim LN [3502]. The different types of relevant assistance were considered in Many v R (1990) 51 A Crim R 54. A discount can be given for assistance given before the commission of the offence in respect of which sentence is being passed: R v Kelly (1993) 113 ALR 535; 30 NSWLR 64. Assistance given after sentence and before an appeal will not generally be taken into account by the Court of Criminal Appeal: R v Henry (1992) 28 NSWLR 348. Assistance by the accused in relation to proceedings for forfeiture before the NSW Crime Commission and the repayment of proceeds was not a matter which was to be taken into account under the section: R v Murray (NSWCCA, Newman and Barr JJ 29 October 1997, unreported, BC9705899); (1997) 4 Crim LN 76 [762]. Generally confiscation orders or the offender’s co-operation in relation to them should not be taken into account when assessing sentence: R v Kalache (2000) 111 A Crim R 152; [2000] NSWCCA 2; BC200000180; (2000) 7 Crim LN 9 [1111]. However, it cannot be said as a matter of law that cooperation in this regard could never be taken into account in the sentencing process: Kalache v R (2000) 21(20) Leg Rep C3b; (HCA, 24 November 2000, Special Leave to Appeal); (2000) 7 Crim LN 95 [1227]. The section does not apply to assistance given by an offender to the Australian Securities and Investments Commission: R v Burke [2002] NSWCCA 353; BC200205003; (2002) 9 Crim LN 65 [1466]. Assistance given in other jurisdictions was considered in Shaw v R [2010] NSWCCA 23; BC201001197; 17(4) Crim LN 60 [2710] where it had been accepted that an appropriate discount had been given when the offender was sentenced in the other jurisdiction. The requirement of a court to give reasons for a discount under the section was considered in Greentree v R [2018] NSWCCA 227; BC201809607; 25(11) Crim LN [4060] where the tension between giving reasons for a discount and non-disclosure of the particulars of the assistances is noted. It was held that in such a case there should be very careful consideration given before concluding the sentencing court failed to give reasons for the discount given or failed to address the factors in s 23(2). The principles to be applied in relation to adduce in material in respect of assistance given or offered by an offender were discussed in R v Bourchas (2002) 133 A Crim R 413; [2002] NSWCCA 373; BC200205825; (2002) 9 Crim LN 73 [1479], where, after considering the conflicting decisions of R v Raz (NSWCCA, 17 December 1992, unreported, BC9201407) and R v Potter (1994) 72 A Crim R 108, the following was stated to apply: 1. The offender carries the burden of proving assistance to the authorities, as a matter going to mitigation. 2. The Crown should assist the offender in the discharge of that burden. 3. The assistance may extend to the Crown tendering the evidence of assistance to the authorities, but the Crown should not do so over the objection of the offender. 4. A statement made by way of assistance to the authorities on an undertaking that the information in it will not be used against the offender may properly be admitted on the basis that the information in it will not be used against the offender, and with its use restricted accordingly.

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s 23

[5-s 23.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 23

5. When the offender tenders a statement made by way of assistance to the authorities, or accepts the Crown’s assistance in tendering such a statement, it is prudent that the basis of the tender be agreed and stated showing any restriction on the use of the information in the statement; if there is disagreement, a ruling can be made in the normal way. 6. In the absence of an agreed basis of tender or a ruling at the time of admission, whether use of a statement made by way of assistance to the authorities is restricted will depend on the circumstances, but normally the information in the statement cannot be used against the offender. As to the obligation of the Crown on sentence in relation to evidence in relation to assistance to the authorities see R v Cartwright, above, where the use of a sealed letter to the court detailing such information was approved. The information ought not to be provided to the judge in chambers: R v Foster (1992) 25 NSWLR 732. There are conflicting authorities as to the admissibility of the material contained in an induced statement which is tendered in order to indicate the extent of the assistance provided by the accused. Where a discount has been given by reason of an undertaking by the accused to assist the law enforcement authorities and the accused fails in whole or in part to fulfil the undertaking, the Crown may appeal against the sentence, see the Criminal Appeal Act s 5DA [20-250]. As to the combination of discounts for both a plea of guilty and assistance see R v NP [2003] NSWCCA 195; BC200303815; (2003) 10 Crim LN 53 [1572]. But compare R v El Hani [2004] NSWCCA 162; BC200403011 where it was held that a discount for past assistance should not normally be indicated separately from a discount for the plea of guilty where the assistance and plea are part of the remorse and reform of the offender. These decisions were reviewed in R v Waqa (No 2) (2005) 156 A Crim R 454; [2005] NSWCCA 33; BC200500876; (2005) 12 Crim LN 34 [1851] where it was held that there was no one correct approach for determining the appropriate discount for plea and assistance but the process adopted should be transparent, particularly in the case of future assistance. It was also held that it will generally be appropriate to give a rolled-up discount for both plea and assistance. The failure of an accused to give assistance, such as failing to disclose his or her co-offenders is not an aggravating factor but may indicate that there is an absence of contrition: R v Baleisuva [2004] NSWCCA 344; BC200406822; (2004) 11 Crim LN 113 [1793]. It is the duty of the Crown to bring offers of assistance to the notice of the court and for this purpose such offers should be formally recorded by police in a statement and given to the defence as part of the brief: De Campos v R [2006] NSWCCA 51; BC200601099; (2006) 13 Crim LN 10 [2026]. [5-s 23.5] Identification of discount for past and future assistance Since March 2011 s 23(4) has required that a sentencing court identify separately the amounts of any discount which relates to past and future assistance, to assist in the event of appeal under s 5DA of the Criminal Appeal Act 1912 (see [20-250]): R v Ehrlich [2012] NSWCCA 38; BC201201670 at [8]–[9] and [74]–[75]. [5-s 23.10] Post-sentence assistance Where an offender has provided post-sentence assistance, the State Parole Authority (when considering the grant of parole) may have regard to the nature and extent of any assistance and the degree to which the offender’s willingness to provide such assistance reflects the offender’s progress to rehabilitation: s 135(2A) Crimes (Administration of Sentences) Act 1999 at [24-s.135]. [5-s 23.15] Duty to advise client Rule 38 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 provides that a barrister must (unless circumstances warrant otherwise in the barrister’s opinion) advise a client who is charged with a criminal offence about any law, procedure or practice which in substance holds out the prospect of some advantage (including diminution of penalty) if the client pleads guilty or authorises other steps towards reducing the issues, time, cost or distress involved in the proceedings.

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s 24

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 24.1]

24 In sentencing an offender, the court must take into account: (a) any time for which the offender has been held in custody in relation to the offence, and (b) in the case of an offender who is being sentenced as a result of failing to comply with the offender’s obligations under a community correction order, conditional release order or intervention program order: (i) the fact that the person has been the subject of such an order, and (ii) anything done by the offender in compliance with the offender’s obligations under the order, and (c) in the case of an offender who is being sentenced as a result of deciding not to participate in, or to continue to participate in, an intervention program or intervention plan under an intervention program order, anything done by the offender in compliance with the offender’s obligations under the intervention program order, and (d) in the case of an offender who is being sentenced following an order under section 11(1)(b2): (i) anything done by the offender in compliance with the offender’s obligations under the order, and (ii) any recommendations arising out of the offender’s participation in the intervention program or intervention plan. [s 24 am Act 100 of 2002 s 5 and Sch 3[8] and [9], opn 24 Feb 2003; Act 53 of 2017 Sch 1[18]–[20], opn 24 Sep 2018]

COMMENTARY ON SECTION 24 Time spent in custody . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 24.1]

[5-s 24.1] Time spent in custody Section 24(a) requires the court to take into account the time spent in custody for the offence for which sentence is to be passed. However, the court should not take into account a period which was referable to another offence, even if the accused was ultimately acquitted in respect of that offence: R v Niass (NSWCCA, Gleeson and Lee CJJ, Allen J, 16 November 1988, unreported, BC8801314); R v Webster and Jones (NSWCCA, Gleeson CJ, Hunt CJ at CL and Mathews J, 3 August 1992, unreported, BC9201710). Niass was approved in Hampton v R [2014] NSWCCA 131; BC201405594; 21(8) Crim LN [3421]. However, where the accused was in custody by reason of the offence for which he or she was to be sentenced and another sentence later quashed on appeal, the court should give the prisoner the benefit of the time served: R v Karageorge [1999] NSWCCA 213; BC9904370; (1999) 6 Crim LN 66 [1040]. It has been held in Wiggins v R [2010] NSWCCA 30; BC201000966; 17(4) Crim LN 62 [2711] that a sentence should be backdated to take into account a period served in custody in relation to the offence, even if it is to a date when the offender was not actually in custody, and a judge should give reasons for not taking that course. The case indicates where such a course might be considered inappropriate: see R v Leete (2001) 125 A Crim R 37; [2001] NSWCCA 337; BC200105346. In Pulitano v R [2010] NSWCCA 45; BC201001318; 17(4) Crim LN 63 [2712] it was noted that a suspended sentence could not be backdated when it was imposed so the time served must be taken into account by reducing the sentence when imposed or by backdating when it is revoked. The appropriateness of backdating a sentence to a date when the accused was not in custody was considered in R v Sayak (NSWCCA, Clarke JA, Hunt CJ at CL, Grove J, 16 September 1993, unreported, BC9304078) where differing views were expressed by the members of the court but

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[5-s 24] Court to take other matters into account

[5-s 24.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 24

the Court of Criminal Appeal made such an order in R v Macdonald (NSWCCA, Gleeson CJ, Kirby P and Hunt CJ, 12 December 1995, unreported, BC9501664); (2000) 7 Crim LN 50 [511].

[5-s 24A] Mandatory requirements for supervision and other prohibitions to be disregarded in sentencing 24A (1) In sentencing an offender, the court must not take into account, as a mitigating factor in sentencing, the fact that the offender: (a) has or may become a registrable person under the Child Protection (Offenders Registration) Act 2000 as a consequence of the offence, or (b) has or may become the subject of an order under the Child Protection (Offenders Prohibition Orders) Act 2004, or (c) as a consequence of being convicted of the offence, has become a disqualified person within the meaning of the Child Protection (Working with Children) Act 2012, or (d) has or may become the subject of an order under the Crimes (High Risk Offenders) Act 2006, or (e) has or may become the subject of an order under the Terrorism (High Risk Offenders) Act 2017. [subs (1) am Act 136 of 2010 Sch 1.2[7], opn 14 Mar 2011; Act 4 of 2013 Sch 2 item 2.9[1], [2], opn 19 Mar 2013; Act 31 of 2013 Sch 3 item 3.6, opn 15 June 2013; Act 54 of 2017 Sch 2.2, opn 6 Dec 2017; Act 68 of 2017 Sch 2.10[1], opn 19 Jan 2018]

(2) This section has effect despite any Act or rule of law to the contrary. [s 24A insrt Act 105 of 2008 s 4 and Sch 2, opn 1 Jan 2009]

[5-s 24B] Confiscation of assets and forfeiture of proceeds of crime to be disregarded in sentencing 24B (1) In sentencing an offender, the court must not take into account, as a mitigating factor in sentencing, the consequences for the offender of any order of a court imposed because of the offence under confiscation or forfeiture legislation. (2) In this section: confiscation or forfeiture legislation means the following: (a) the Confiscation of Proceeds of Crime Act 1989, (b) the Criminal Assets Recovery Act 1990, (c) the Proceeds of Crime Act 2002 of the Commonwealth, (d) any other law prescribed by the regulations for the purposes of this definition. [s 24B insrt Act 136 of 2010 Sch 1.2[8], opn 14 Mar 2011]

[5-s 24C] Loss of parliamentary pension to be disregarded in sentencing 24C In sentencing an offender who is a member or former member of Parliament, the court must not take into account, as a mitigating factor in sentencing, the loss of the offender’s entitlement to a pension under the Parliamentary Contributory Superannuation Act 1971 because of the conviction for the offence. [s 24C insrt Act 18 of 2017 Sch 2, opn 1 June 2017]

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s 25

CRIMES (SENTENCING PROCEDURE) ACT 1999

COMMENTARY ON SECTION 24C Loss of parliamentary pension to be disregarded in sentencing . . .

[5-s 25.5]

[5-s 24C.1]

[5-s 25] Local Court not to impose certain penalties if offender is absent 25 (1) The Local Court must not make any of the following orders with respect to an absent offender: (a) an order imposing a sentence of imprisonment, (b) an intensive correction order, (c) [repealed] (d) a community correction order, (e) a conditional release order, (f) a non-association order or place restriction order, (g) an intervention program order. [subs (1) am Act 100 of 2002 s 5 and Sch 3[10], opn 24 Feb 2003; Act 94 of 2007 s 4 and Sch 3, opn 6 July 2009; Act 48 of 2010 Sch 1, opn 1 Oct 2010; Act 53 of 2017 Sch 1[21], opn 24 Sep 2018]

(2) At any time after it finds an absent offender guilty of an offence or convicts an absent offender for an offence, the Local Court: (a) may issue a warrant for the offender’s arrest, or (b) may authorise an authorised officer to issue a warrant for the offender’s arrest, for the purpose of having the offender brought before the Local Court for conviction and sentencing, or for sentencing, as the case requires. [subs (2) am Act 121 of 2001 s 4 and Sch 2.75[3], opn 7 July 2003; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009]

(3) This section does not limit the power that any court other than the Local Court may have, apart from this section, to deal with an offender whom it has found guilty or convicted in his or her absence. [subs (3) am Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009]

(4) In this section: absent offender means an offender who is being dealt with in his or her absence. [def subst Act 43 of 2000 Sch 3 item 6, opn 31 July 2000]

authorised justice [def rep Act 121 of 2001 s 4 and Sch 2.75[4], opn 7 July 2003] [s 25 am Act 100 of 2001 s 3 and Sch 1.1[3], opn 22 July 2002]

COMMENTARY ON SECTION 25 Law Part Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Operation of section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [5-s 25.1] Law Part Code

[5-s 25.1] [5-s 25.5]

The Law Part Code for s 25(2) is 36612.

[5-s 25.5] Operation of section The proper construction of s 25 was considered in: Re Culleton (No 2) (2017) 91 ALJR 311; [2017] HCA 4; BC201700348 at [32]–[36], where it was

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[5-s 24C.1] Loss of parliamentary pension to be disregarded in sentencing Section 24C was applied in R v Macdonald; R v Maitland [2017] NSWSC 638; BC201704214 at [262].

[5-s 25.5]

s 25

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

said that, although an absent offender was not liable to be sentenced to imprisonment in their absence, once a s 25 arrest warrant was issued, the processes of the law pursuant to which the person might lawfully be sentenced to imprisonment had been set in train.

[5-s 25AA] Sentencing for child sexual offences 25AA (1) A court must sentence an offender for a child sexual offence in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of the offence. (2) However, the standard non-parole period for a child sexual offence is the standard non-parole period (if any) that applied at the time of the offence, not at the time of sentencing. (3) When sentencing an offender for a child sexual offence, a court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing (which may include recent psychological research or the common experience of courts). (4) This section does not affect section 19. (5) In this section: child sexual offence means the following offences regardless of when the offence occurred but only if the person against whom the offence was committed was then under the age of 16 years: (a) an offence under a provision of Division 10, 10A, 10B, 15 or 15A of Part 3 of the Crimes Act 1900, (b) an offence under a provision of that Act set out in Column 1 of Schedule 1A to that Act, (c) an offence of attempting to commit any offence referred to in paragraph (a) or (b), (d) an offence under a previous enactment that is substantially similar to an offence referred to in paragraphs (a)–(c). [s 25AA insrt Act 33 of 2018 Sch 3[6], opn 31 Aug 2018]

COMMENTARY ON SECTION 25AA Sentencing for child sexual offences . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 25AA.1]

[5-s 25AA.1] Sentencing for child sexual offences Section 25AA was enacted by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 as part of the legislative response to the Final Report of the Royal Commission into Institutional Responses to Child Sexual Abuse. In the second reading speech for that Act, the Attorney General, Mr Speakman, said that s 25AA was inserted (Hansard, Legislative Assembly, 6 June 2018): . . . to implement one of the Royal Commission’s key recommendations. This new section will require courts sentencing for historical offences to apply current sentencing practices and standards and our modern understanding of the trauma caused to children by sexual abuse. The purpose of this new provision is to override the current common law rule that a court must apply the sentencing standards from the time of the offence. In historical cases of child sexual abuse, this is resulting in lower sentences and discounts applied to reflect the leniency of sentencing for these offences in times past. This perpetuates our past lack of understanding of how seriously these offences should be treated and our past lack of understanding of the significant impact they have on the victim. The new provision will ensure that sentences meet

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s 25A

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 25A.1]

Before the enactment of s 25AA, it was said that when sentencing for historical child sexual assault offences, the court should attempt to sentence according to the tariff that existed at the time the offences were committed — see generally, MPB v R (2013) 234 A Crim R 576; [2013] NSWCCA 213; BC201313168; 20(10) Crim LN [3296], where the common law principles and authorities were considered.

DIVISION 1A — SENTENCING DISCOUNTS FOR GUILTY PLEAS TO INDICTABLE OFFENCES [Div 1A insrt Act 55 of 2017 Sch 2[4], opn 30 Apr 2018]

[5-s 25A] Application of Division 25A (1) This Division applies to a sentence for an offence that is dealt with on indictment, other than: (a) an offence under a law of the Commonwealth, unless the regulations otherwise provide in the case of a particular offence or class of offences, or (b) an offence committed by a person who was under the age of 18 years when the offence was committed and under the age of 21 years when charged before the court with the offence. (2) A court must not apply any other discount for the utilitarian value of a guilty plea to an offence to which this Division applies other than the discount provided for by this Division. COMMENTARY ON SECTION 25A Sentencing discounts for guilty pleas to indictable offences . . . . . . Commonwealth offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sentencing of children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Offences dealt with summarily . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Duty to advise client . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 25A.1] [5-s 25A.5] [5-s 25A.10] [5-s 25A.15] [5-s 25A.20]

[5-s 25A.1] Sentencing discounts for guilty pleas to indictable offences A new scheme for sentencing discounts for guilty pleas to indictable offences was enacted by the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (“the 2017 Act”) which commenced on 30 April 2018. The 2017 Act made major changes to committal proceedings in s 55 Criminal Procedure Act 1986 and following at [2-s 55]ff. A broad summary of the changes appears at [2-s 55.1]–[2-s 55.10] including the rationale for the overlapping reforms concerning committal proceedings and the use of case conferencing in the Local Court and discounts for guilty pleas. In the second reading speech (Legislative Assembly, 11 October 2017), the Attorney General Mr Mark Speakman referred to a backlog of trials in the District Court and associated delay and said: The early appropriate guilty plea reforms will reduce these delays by improving productivity and ensuring that cases are effectively managed. The Law Reform Commission found that 73 percent of indictable criminal cases end with the defendant pleading guilty. However, 23 percent of guilty pleas are not entered until the day of the trial. Late guilty pleas cause stress for victims as they await the trial and they contribute to the backlog of cases waiting to be heard in the District Court. They also mean that prosecution and defence lawyers spend time preparing for trials that never occur, and divert police resources away from frontline activities. The bill will ensure that cases are better managed to ensure early appropriate guilty pleas

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current community expectations, to the extent possible within the upper limit of the maximumpenalty from the time of the offence.

[5-s 25A.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 25A

The Attorney General said that the 2017 Act introduced “a strict fixed sentencing discount scheme” and continued: It replaces the existing common law sentence discount for the utilitarian value of a guilty plea. Currently large discounts of up to 25 per cent may be given for guilty pleas, which may be as late as on the first day of the trial. Tightening the discount scheme as proposed will prevent these large discounts from being granted late in the process. Instead, fixed discounts will apply depending on the timing of the guilty plea: first, a 25 per cent discount if the guilty plea is entered while the case is in the Local Court, before the case is committed to the higher courts; secondly, a 10 per cent discount where the guilty plea is entered after the case has been committed to the higher court but at least 14 days before the first day of the trial, or the accused gives notice to the prosecutor of his or her intention to plead guilty at least 14 days before the first day of the trial and enters the plea at the first available opportunity; and thirdly, a 5 per cent discount if the guilty plea is entered in other circumstances. These discounts are fixed, meaning that where they apply, the full discount must be given. This certainty about the discount that will apply is fundamental to creating a strong incentive for early guilty pleas. This strong incentive is reinforced by a substantial discount for a guilty plea in the Local Court and significantly lower discounts for guilty pleas after committal. The offender is required to plead guilty, or give notice to the prosecutor offering to plead guilty, 14 days before the first day of the trial to receive a 10 per cent discount. This is to give the prosecution sufficient time to call off its preparation for trial and advise victims and witnesses that they need not appear. The amendments made by the 2017 Act extend to proceedings for an offence committed before the amendments if proceedings for the offence commenced on or after the amendments commenced on 30 April 2018: cl 72, Sch 2 at [5-Sch 2]. The law as it stood prior to the commencement of the amendments on 30 April 2018 continues to apply with respect to proceedings for offences commenced before that date. [5-s 25A.5] Commonwealth offences Section 25Aff does not apply to Commonwealth offences unless the Regulations otherwise provide: s 25A(1)(a). As the Attorney General explained in the second reading speech (Legislative Assembly, 11 October 2017), the “sentencing discount scheme does not apply to Commonwealth offences because sentences for Commonwealth offences under the Commonwealth Crimes Act 1914 cannot be constrained by the New South Wales Parliament”. See s 16A(1)(g) Crimes Act 1914 at [15-s 16A] and Xiao v R [2018] NSWCCA 4; BC201800359; (2018) 25(2) Crim LN 23 [3941] with respect to taking into account the utilitarian value of a guilty plea in sentencing for a Commonwealth offence. [5-s 25A.10] Sentencing of children Section 25Aff does not apply to offences committed by a person under the age of 18 years when the offence was committed and under the age of 21 years when charged before the court with the offence: s 25A(1)(b). In the second reading speech, the Attorney General said that this was “because of the unique sentencing considerations that apply to children, including the emphasis on rehabilitation in sentencing, and young people’s lower capacity to make informed decisions and to give instructions about matters affecting their care, including whether to plead guilty”. [5-s 25A.15] Offences dealt with summarily The statutory sentencing discount scheme applies only to offences dealt with on indictment: s 25A(1). Section 22 at [5-s 22] applies to sentences for offences dealt with summarily. [5-s 25A.20] Duty to advise client Rule 38 of the Legal Profession Uniform Conduct (Barristers) Rule 2015 provides that a barrister must (unless circumstances warrant otherwise in the barrister’s opinion) advise a client who is charged with a criminal offence about any law, procedure or practice which in substance holds out the prospect of some advantage (including

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s 25C

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 25C.1]

[5-s 25B] Definitions 25B In this Division: negotiations document means: (a) if an offender was represented by an Australian legal practitioner in proceedings: (i) a case conference certificate (including any later plea offer) filed in committal proceedings for the offence concerned under the Criminal Procedure Act 1986, or (ii) any other document, served on the prosecutor in proceedings for the offence following committal for trial or sentence, that records an offer made by the offender to plead guilty to an offence specified in the document, or (b) if an offender was not represented in proceedings, any document served on the prosecutor in the proceedings that records an offer made by the offender to plead guilty to an offence specified in the document. new count offence means: (a) an offence the subject of an ex officio indictment, or (b) an offence for which the count is inserted in an indictment by amending the indictment (the original indictment). sentence means a term of imprisonment, fine or the term of an intensive correction order, a community correction order or a conditional release order. [def subst Act 25 of 2018 Sch 1.5, opn 24 Sep 2018]

[5-s 25C] Timing of pleas and notice requirements 25C (1) In this Division: first day of the trial of an offender means the first day fixed for the trial of the offender or, if that day is vacated, the next day fixed for the trial that is not vacated. (2) For the purposes of this Division, an offender complies with the pre-trial notice requirements if the offender serves a notice on the prosecutor at least 14 days before the first day of the trial of the offender accepting an offer by the prosecutor to plead guilty to the offence or offering to plead guilty to the offence. COMMENTARY ON SECTION 25C First day of the trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 25C.1]

[5-s 25C.1] First day of the trial With respect to the definition of “first day of the trial of the offender” in s 25C(1), the Attorney General said in the second reading speech (Legislative Assembly,11 October 2017) that this “provides a clear deadline from which a defendant can count back the 14 days to the day by which a guilty plea must be entered in order to be eligible for a 10 per cent discount. This definition will apply even where the actual commencement of the trial is delayed for a short period — for example, where the trial is listed on a Monday but does not

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diminution of penalty) if the client pleads guilty or authorises other steps towards reducing the issues, time, cost or distress involved in the proceedings. See also cll 39 and 40 of those Rules with respect to advising a client concerning criminal pleas.

[5-s 25C.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 25C

proceed until the Wednesday because a judge was not available on the Monday when the trial was listed to commence. However, if the listing date is vacated — for example, where one of the parties is not ready to proceed and makes an application for vacation — and the trial is subsequently re-listed at a later date, the new listing date will be the relevant date for the purpose of the definition of ‘first day of trial’. Certainty about the discounts that apply is reinforced by only allowing for limited variations and exceptions to the sentencing discount scheme proposed”.

[5-s 25D] Sentencing discounts for guilty plea for offences dealt with on indictment 25D (1) Mandatory nature of sentencing discount In determining the sentence for an offence, the court is to apply a sentencing discount for the utilitarian value of a guilty plea in accordance with this section if the offender pleaded guilty to the offence at any time before being sentenced. (2) Amounts of sentencing discounts The discount for a guilty plea by an offender (other than an offender referred to in subsection (3) or (5) or section 25E) is as follows: (a) a reduction of 25% in any sentence that would otherwise have been imposed, if the plea was accepted by the Magistrate in committal proceedings for the offence, (b) a reduction of 10% in any sentence that would otherwise have been imposed, if the offender was committed for trial and the offender: (i) pleaded guilty at least 14 days before the first day of the trial of the offender, or (ii) complied with the pre-trial notice requirements and pleaded guilty at the first available opportunity able to be obtained by the offender, (c) a reduction of 5% in any sentence that would otherwise have been imposed, if paragraph (a) or (b) does not apply. (3) Discount variations — new count offences The discount for a guilty plea by an offender in respect of a new count offence is as follows: (a) a reduction of 25% in any sentence that would otherwise have been imposed, if an offer to plead guilty was made by the offender and recorded in a negotiations document as soon as practicable after the ex officio indictment was filed or the indictment was amended to include the new count, (b) a reduction of 10% in any sentence that would otherwise have been imposed, if paragraph (a) does not apply and the offender: (i) pleaded guilty at least 14 days before the first day of the trial of the offender, or (ii) complied with the pre-trial notice requirements and pleaded guilty to the offence at the first available opportunity able to be obtained by the offender, (c) a reduction of 5% in any sentence that would otherwise have been imposed, if paragraph (a) or (b) does not apply. (4) However, the discount in subsection (3)(a) does not apply if: (a) the facts or evidence that establish the elements of the new count offence are substantially the same as those contained in the brief of evidence or other material served on the offender by the prosecutor in committal proceedings relating to the original indictment and the penalty for the new count offence is the same as, or less than, the offence set out in the original indictment, or

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[5-s 25D.15]

(b) the offender refused an offer to plead guilty to the new count offence that was made by the prosecutor in the committal proceedings relating to the original indictment and the offer was recorded in a negotiations document. (5) Discount variations — person found fit to be tried after committal for trial The discount for a guilty plea by an offender who is found fit to be tried after the offender is committed for trial, and whose matter was not remitted to a Magistrate for continued committal proceedings, is as follows: (a) a reduction of 25% in any sentence that would otherwise have been imposed, if the offender pleaded guilty as soon as practicable after the offender was found fit to be tried, (b) a reduction of 10% in any sentence that would otherwise have been imposed, if paragraph (a) does not apply and the offender: (i) pleaded guilty at least 14 days before the first day of the trial of the offender, or (ii) complied with the pre-trial notice requirements and pleaded guilty at the first available opportunity able to be obtained by the offender, (c) a reduction of 5% in any sentence that would otherwise have been imposed, if paragraph (a) or (b) does not apply. (6) Opportunities for legal help to be taken into account For the purpose of determining under subsection (3) or (5) whether the offender pleaded guilty as soon as practicable after an ex officio indictment was filed or the original indictment was amended or after a finding of fitness to be tried, the court is to take into account whether the offender had a reasonable opportunity to obtain legal advice and give instructions to his or her legal representative (if any). COMMENTARY ON SECTION 25D Purpose of s 25D . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Persons found fit to be tried after committal for trial . . . . . . . . . . . . Offender to establish grounds for discount . . . . . . . . . . . . . . . . . . . . .

[5-s 25D.1] [5-s 25D.5] [5-s 25D.10] [5-s 25D.15]

[5-s 25D.1] Purpose of s 25D See annotations at [5-s 25A.1] for the rationale behind the mandatory nature of the sentencing discount laid down in s 25D. [5-s 25D.5] Definitions the terms “negotiations document”, “new count offence” and “sentence” are defined in s 25B at [5-s 25B]. [5-s 25D.10] Persons found fit to be tried after committal for trial Section 25D(5) makes provision for the discount for a guilty plea by an offender who is found fit to be tried after the person is committed for trial and whose matter was not remitted to magistrate for continued committal proceedings. See also s 93 Criminal Procedure Act 1986 at [2-s 93] and annotations at [2-s 93.1] and s 13A Mental Health (Forensic Provisions) Act 1990 at [17-2152]. [5-s 25D.15] Offender to establish grounds for discount The burden of establishing that grounds exist for a statutory sentencing discount lies on the offender and must be proved on the balance of probabilities: s 25F(5) at [5-s 25F].

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s 25D

[5-s 25E]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 25E

[5-s 25E] Sentencing discounts to apply in certain cases where guilty plea offer made for different offences and refused when made 25E (1) Discount where offer not accepted In determining the sentence for an offence, the court is to apply a sentencing discount in accordance with this section if: (a) the offender made an offer recorded in a negotiations document to plead guilty to an offence, and (b) that offence (the different offence) was not the offence the subject of the proceedings when the offer was made, and (c) the offer was not accepted by the prosecutor, and (d) the offer was not subsequently withdrawn, and (e) the offender was found guilty of the different offence or an offence that is reasonably equivalent to the different offence. For the purposes of this subsection, an offence is reasonably equivalent to a different offence if: (a) the facts of the offence are capable of constituting the different offence, and (b) the maximum penalty for the offence is the same or less than the different offence. (2) Discount where offer later accepted In determining the sentence for an offence, the court is to apply a sentencing discount for the utilitarian value of a guilty plea in accordance with this section if: (a) the offender made an offer recorded in a negotiations document to plead guilty to an offence, and (b) that offence (the different offence) was not the offence the subject of the proceedings when the offer was made, and (c) the offer was refused but accepted by the prosecutor after the offender was committed for trial, and (d) the offender pleaded guilty to the different offence at the first available opportunity able to be obtained by the offender. (3) Discount variation — offer to plead guilty to different offence The discount to be applied by the court is as follows: (a) a reduction of 25% in any sentence that would otherwise have been imposed, if the offer was made before the offender was committed for trial, (b) a reduction of 10% in any sentence that would otherwise have been imposed, if the offer was made after the offender was committed for trial and at least 14 days before the first day of the trial of the offender, (c) a reduction of 5% in any sentence that would otherwise have been imposed, if the offer was made less than 14 days before or on or after the first day of the trial of the offender. COMMENTARY ON SECTION 25E Offers to plead guilty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 25E.1]

[5-s 25E.1] Offers to plead guilty In the second reading speech (Legislative Assembly, 11 October 2017), the Attorney General said that the: . . .effect of proposed section 25E is that where the accused person made an offer to plead guilty to an offence, or a reasonably equivalent offence, which either the prosecution refused but then later accepted, or the accused is later found guilty of that offence, or a reasonably equivalent offence, the accused may be eligible for up to a 25 per cent discount. This is important because there are multiple offences that have similar elements and penalties. An

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s 25F

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 25F]

There is also a variation to allow a person to receive a higher discount where the prosecutor lays a new charge by way of ex officio powers and there were no prior committal proceedings, or if the prosecutor adds a new offence to the indictment, where the facts and evidence that establish the new offence are substantially different from those contained in the brief of evidence for the committal proceedings. The higher discount is allowed because the accused person will not have had an earlier opportunity to consider a guilty plea to the new charges. The variations represent a careful balance between the need to provide a strict sentence discount scheme, and the practical realities of criminal offences and trials.

[5-s 25F] Other provisions applying to sentencing discount 25F (1) Application This section applies to a sentencing discount under this Division. (2) Exception to application of discount — level of culpability The court may determine not to apply the sentencing discount, or to apply a reduced sentencing discount, if the court determines, on its own motion or on the application of the prosecution, that the discount should not be applied or should be reduced because the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can be met only by imposition of a penalty with no allowance for, or a reduction of, that discount. (3) If a case conference certificate was filed in committal proceedings for the offence, a prosecutor is not entitled to apply to the court for a determination that the discount should not be applied or should be reduced unless the certificate records that the prosecutor notified the offender’s legal representative, at or before the conference, of the intention to make the application. (4) Exception to application of discount — disputed facts The court may determine not to apply the sentencing discount, or to apply a reduced sentencing discount, if the court determines that the discount should not be applied or should be reduced because the utilitarian value of the plea of guilty has been eroded by a dispute as to facts that was not determined in favour of the offender. (5) Offender to establish grounds for discount The burden of establishing that grounds exist for the sentencing discount lies on the offender and must be proved on the balance of probabilities. (6) Application to Drug Court proceedings The sentencing discount applicable to a person who is sentenced for an offence under the Drug Court Act 1998 applies to a person who indicates an intention to plead guilty to an offence before being referred to the Drug Court, and who subsequently pleads guilty to the offence before the Drug Court, as if the person had pleaded guilty to the offence before being committed for sentence in committal proceedings for the offence. (7) Discount information to be given to offender by court The court must indicate the following to the offender when passing sentence for an offence and must record the matters indicated: (a) if the sentencing discount is applied, how the sentence imposed was calculated, (b) if the court determines in accordance with this section not to apply or to reduce the discount, the reasons for the determination.

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accused person should not be required to offer to plead guilty to exactly the right charge, or to every possible variation of an offence, in order to obtain the discount.

[5-s 25F]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 25F

(8) Sentence not invalidated by failure to comply The failure by a court to comply with this Division does not invalidate any sentence imposed by the court. (9) No discount where life sentence A sentencing court must not allow any discount under this Division for a guilty plea if the court determines a sentence of life imprisonment. COMMENTARY ON SECTION 25F Exception to level of discount — level of culpability . . . . . . . . . . . . Exception to application of discount — disputed facts . . . . . . . . . . . Drug court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 25F.1] [5-s 25F.5] [5-s 25F.10]

[5-s 25F.1] Exception to level of discount — level of culpability Section 25F(2) provides that the court may determine not to apply the sentencing discount, or to apply a reduced sentencing discount, if the court determines, on the application of the prosecutor or on its own motion, that the discount should not be applied or should be reduced because the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can be met only by imposition of a penalty with no allowance for, or a reduction of, that discount. The principle contained in this provision is similar to that referred to in Milat v R; Klein v R [2014] NSWCCA 29; BC201401528 at [69]–[92]. Procedural fairness would require a sentencing judge to give the parties an opportunity to be heard if the judge was considering use of the section of the court’s own motion. [5-s 25F.5] Exception to application of discount — disputed facts Section 25F(4) provides that the court may determine not to apply the sentencing discount, or to apply a reduced sentencing discount, if the court determines that the discount should not be applied or should be reduced because the utilitarian value of the plea of guilty has been eroded by a dispute as to facts that was not determined in favour of the offender. The principle contained in this provision is similar to that referred to in R v AB (2011) 59 MVR 356; [2011] NSWCCA 229; BC201107942 at [2]–[3], [32]–[33]. [5-s 25F.10] Drug court Section 25F(6) relates to sentencing discounts concerning persons before the Drug Court. See also s 60 Criminal Procedure Act 1986 at [2-s 60] and annotations at [2-s 60.1].

DIVISION 2 — VICTIM IMPACT STATEMENTS [Div 2 subst Act 88 of 2018 Sch 3[1], opn 27 May 2019]

Subdivision 1 — Preliminary

[5-s 26] Definitions 26 In this Division: closed-circuit television arrangements means the arrangements for giving evidence provided for by section 294B or Division 4 of Part 6 of Chapter 6 of the Criminal Procedure Act 1986. family victim, in relation to an offence as a direct result of which a primary victim has died, means a person who was, at the time the offence was committed, a member of the primary victim’s immediate family, and includes such a person whether or not the person has suffered personal harm as a result of the offence.

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s 27

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 27]

member of the primary victim’s immediate family means any of the following: (a) the victim’s spouse, (b) the victim’s de facto partner, (c) (d) (e) (f)

a person to whom the victim is engaged to be married, a parent, step-parent or guardian of the victim, a grandparent or step-grandparent of the victim, a child or step-child of the victim or some other child for whom the victim is the guardian, (g) a grandchild or step-grandchild of the victim, (h) a brother, sister, half-brother, half-sister, step-brother or step-sister of the victim, (i) an aunt, uncle, niece or nephew of the victim, (j) in the case of a victim who is an Aboriginal person or a Torres Strait Islander — a person who is or has been part of the close family or kin of the victim according to the Indigenous kinship system of the victim’s culture, (k) any person who the prosecutor is satisfied is a member of the victim’s extended family or culturally recognised family to whom the victim is or was close, (l) any person who the prosecutor is satisfied is a person with whom the victim had a close relationship analogous to a family relationship, or whom the victim considered to be family. personal harm means actual physical bodily harm or psychological or psychiatric harm. prescribed sexual offence has the same meaning as it has in the Criminal Procedure Act 1986. primary victim, in relation to an offence, means: (a) a person against whom the offence was committed, or (b) a person who was a witness to the act of actual or threatened violence, the sexual offence, the death or the infliction of the physical bodily harm concerned, being a person who has suffered personal harm as a direct result of the offence. victim means a primary victim or a family victim. victim impact statement has the meaning given by section 28(1) and (2).

[5-s 27] Application of Division 27 (1) This Division applies only in relation to an offence that is being dealt with by the Supreme Court, the Industrial Relations Commission, the District Court or the Local Court, and only as provided by this section. (2) In relation to an offence that is being dealt with by the Supreme Court or the District Court, this Division applies only if the offence is being dealt with on indictment in the Supreme Court or on indictment or summarily in the District Court and is: (a) an offence that results in the death of, or actual physical bodily harm to, any person, or (b) an offence that involves an act of actual or threatened violence, or (c) an offence for which a higher maximum penalty may be imposed if the offence

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Note. “De facto partner” is defined in section 21C of the Interpretation Act 1987.

[5-s 27]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 27

results in the death of, or actual physical bodily harm to, any person than may be imposed if the offence does not have that result, or (d) a prescribed sexual offence, or (e) an offence against section 91H, 91J, 91K, 91L, 91P, 91Q or 91R of the Crimes Act 1900. (3) In relation to an offence being dealt with by the Industrial Relations Commission, this Division applies only if: (a) the offence is an offence against Division 5 of Part 2 of the Work Health and Safety Act 2011 or Subdivision 3 of Division 3 of Part 3 of the Rail Safety National Law (NSW), and (b) the offence results in the death of, or actual physical bodily harm to, any person. (4) In relation to an offence that is being dealt with by the Local Court, this Division applies only if the offence is: (a) an offence that results in the death of any person, or (b) an offence for which a higher maximum penalty may be imposed if the offence results in the death of any person than may be imposed if the offence does not have that result, or (c) an offence that is referred to in Table 1 of Schedule 1 to the Criminal Procedure Act 1986 and that: (i) results in actual physical bodily harm to any person, or (ii) involves an act of actual or threatened violence, or (d) a prescribed sexual offence that is referred to in Table 1 of Schedule 1 to the Criminal Procedure Act 1986, or (e) an offence against section 91H, 91J, 91K, 91L, 91P, 91Q or 91R of the Crimes Act 1900. (5) Nothing in this Division limits any other law by or under which a court may receive and consider a victim impact statement in relation to any offence to which this Division does not apply. (6) This Division extends to any offence referred to in subsection (1)–(4) that is dealt with under section 33. Subdivision 2 — Preparation of statements

[5-s 28] Contents of victim impact statements 28 (1) A primary victim in relation to an offence may prepare a statement (a victim impact statement) that contains particulars of the following suffered by the primary victim, or by the members of the primary victim’s immediate family, as a direct result of the offence: (a) any personal harm, (b) any emotional suffering or distress, (c) any harm to relationships with other persons, (d) any economic loss or harm that arises from any matter referred to in paragraphs (a)–(c). (2) A family victim in relation to an offence may prepare a statement (a victim impact statement) that contains particulars of the impact of the primary victim’s death on the family victim and other members of the primary victim’s immediate family.

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COMMENTARY ON SUBSTITUTED SECTION 28 Victim impact statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Victim impact statements by family victims . . . . . . . . . . . . . . . . . . . . .

[5-s 28.5]

[5-s 28.1] [5-s 28.5]

[5-s 28.1] Victim impact statements A victim impact statement should refer only to the effect on the victim of the actual offence before the court and not some offence charged but which did not proceed: R v Bakewell (NSWCCA, Gleeson CJ, McInerney and Studdert JJ, 27 June 1996, unreported, BC9602796); (1996) 3 Crim LN 45 [590]; R v MA [2001] NSWCCA 30; BC200100796; (2001) 8 Crim LN 23 [1270]. It is open to the defence to challenge facts relied upon by the Crown especially if used as aggravating features and to object to parts of a victim impact statement if they are relied upon to raise matters of aggravation or at least to address the judge upon the matters as to what weight should be given to them: R v Wilson (2005) 62 NSWLR 346; BC200500719; (2005) 12 Crim LN [1904]. Regardless of the material in a victim impact statement, a judge should not impose a sentence to take into account the effects of the offence on the victim that were more than would normally be expected, especially where objection is taken to that part of the statement or the judge is asked to not take it into account: RP v R [2013] NSWCCA 192; BC201312214; 20(10) Crim LN [3298]. The judge should treat that part of the statement with caution. In relation to an offence of sexual assault upon a child there must be a reasonable basis for conclusions regarding the impact of the offence upon the child over and above what would normally be expected from the type of assault committed: EG v R [2015] NSWCCA 21; BC201501032; 22(5) Crim LN [3521] where the nature of the assault was at the lowest end of seriousness but the asserted impact was substantial. Considerable caution must be exercised before finding that the harm inflicted upon the victim is an aggravating factor under s 21A(2)(g): R v Tuala [2015] NSWCCA 8; BC201500546 where there is a comprehensive review of the use of victim impact statements. Establishing emotional harm as an aggravating factor in an offence of wounding was considered in Muggleton v R [2015] NSWCCA 62; BC201502535; 22(5) Crim LN [3522] where it was held that the judge did not err in the use made of the victim impact statement, where there was no objection to its admission and it was supported by report of an expert and no attempt was made to cross-examine that witness. The emotional reaction was more than might have been expected from a victim of such an attack. [5-s 28.5] Victim impact statements by family victims Subsections 28(4), (4A) and (6) were inserted by the Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014 which commenced on 1 July 2014. The 2014 amendments apply to the determination of a sentence for an offence whenever committed, unless the court has convicted the person being sentenced of the offence, or a court has accepted a plea of guilty and the plea has not been withdrawn, before the commencement of the amendments: Sch 2 cl 2 at [5-Sch 2]. The 2014 amendments abolish the prohibition expressed in R v Previtera (1997) 94 A Crim R 76; BC9702102; 4 Crim LN 31 [691] and applied in R v Bollen (1998) 99 A Crim R 510; BC9800881; 5 Crim LN 17 [830] that a victim impact statement by a member of the family of the deceased which deals only with the effect of the death of the victim upon the family can never be relevant to the sentence. It was an express purpose of the 2014 amendments to abolish the R v Previtera principle (second reading speech, Legislative Assembly, 7 May 2014). The 2014 amendments allow a sentencing court, in circumstances where s 28(4) operates, to take into account in the determination of sentence, the harmful impact of the primary victim’s death on members of the immediate family of the primary victim as an aspect of harm done to the community, one of the purposes of sentencing under s 3A(g) at [5-s 3A].

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s 28

[5-s 29]

s 29

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

[5-s 29] Formal requirements for victim impact statements 29 (1) A victim impact statement must: (a) be in writing, and (b) comply with any other requirements prescribed by the regulations. (2) Photographs, drawings or other images may, subject to the regulations, be included in a victim impact statement. (3) A victim impact statement may relate to more than one victim. (4) The preparation of a victim impact statement is not mandatory.

[5-s 30] Victim may be assisted 30 (1) A representative of a primary victim may (subject to the regulations) do any of the following on behalf of the victim, but only if the primary victim is incapable of doing so because of age, impairment or otherwise: (a) provide information for the preparation of a victim impact statement, (b) object to the tendering of a victim impact statement. (2) A representative of a victim may (subject to the regulations) do any of the following on behalf of the victim: (a) prepare a victim impact statement, (b) read a victim impact statement. (3) Anything done by a representative in accordance with this section is taken to have been done by the victim. (4) The regulations may specify the persons or classes of person who may be a representative of a victim for the purposes of this section. (5) A representative of a victim who provides information for the preparation of a victim impact statement or prepares a victim impact statement for the victim is not precluded from providing information or preparing a victim impact statement on the representative’s own behalf in relation to the same offence if otherwise eligible. COMMENTARY ON SUBSTITUTED SECTION 30 Formal requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 30.1]

[5-s 30.1] Formal requirements See cl 10 of the Crimes (Sentencing Procedure) Regulation 2017, at [5-10,180], concerning the form of a victim impact statement. See cl 11 of that Regulation, at [5-10,185], concerning the content of a victim impact statement. Clause 9 of that Regulation, at [5-10,175], relates to qualified persons who may prepare victim impact statements. A victim impact statement may be tendered to the court only by the prosecutor in the proceedings before the court and only one victim impact statement may be tendered in respect of each victim: cl 12 of the Crimes (Sentencing Procedure) Regulation 2017, at [5-10,190]. It was doubted that a report which contained an annexure from a counsellor was admissible under s 30: R v MA [2001] NSWCCA 30; BC200100796; 8(3) Crim LN 23 [1270].

Subdivision 3 — Consideration of statements by court

[5-s 30A] Tendering of victim impact statements 30A (1) After it is prepared, a victim impact statement is to be provided to the prosecutor in the relevant proceedings. (2) A victim impact statement may be tendered to the court only by the prosecutor.

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s 30E

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 30E]

[5-s 30B] Receipt of victim impact statement by court

[5-s 30C] Victim may object to tendering of victim impact statement 30C (1) A victim to whom a victim impact statement relates may object to the statement being tendered to a court. (2) A victim impact statement may not be received or considered by a court if any victim to whom the statement relates objects to the statement being tendered to the court.

[5-s 30D] Reading out of statement 30D (1) A victim to whom a victim impact statement relates may read out the whole or part of a victim impact statement if the statement has been tendered to the court in accordance with this Division. (2) The statement may be read out at any time that the court determines after the court has convicted, but before it sentences, the offender.

[5-s 30E] How court uses victim impact statements 30E (1) A court to which a victim impact statement has been tendered in relation to an offence: (a) must consider the statement at any time after it convicts, but before it sentences, an offender for the offence, and (b) may make any comment on the statement that the court considers appropriate. (2) A victim impact statement may also be considered by the Supreme Court when it determines an application under Schedule 1 for the determination of a term and a non-parole period for an existing life sentence referred to in that Schedule. (3) A victim impact statement of a family victim may also be taken into account by a court in connection with the determination of the punishment for the offence on the basis that the harmful impact of a primary victim’s death on family victims is an aspect of harm done to the community, but only if: (a) the prosecutor applies for this to occur, and (b) the court considers it to be appropriate. (4) Subsection (3) does not affect the application of the law of evidence in proceedings relating to sentencing. (5) The absence of a victim impact statement does not give rise to any inference that an offence had little or no impact on a victim. (6) The absence of a victim impact statement given by a family victim does not give rise to any inference that an offence had little or no impact on the members of the primary victim’s immediate family.

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30B (1) A court must accept a victim impact statement tendered by a prosecutor if the statement complies with the requirements of this Division and the regulations. (2) A court to which a victim impact statement is tendered must acknowledge receipt of the statement.

[5-s 30F]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 30F

[5-s 30F] Restrictions on consideration of victim impact statements not made in accordance with Division 30F (1) A court must not consider or take into account a victim impact statement unless it has been prepared by the victim to whom it relates and tendered by the prosecutor. (2) A court must not consider or take into account any material that is not specifically authorised by this Division to be included in a victim impact statement.

[5-s 30G] Access to victim impact statements prior to sentencing hearing 30G (1) The prosecution may provide a copy of a victim impact statement to the offender’s Australian legal practitioner (in the case of a represented offender). (2) An Australian legal practitioner may copy, disseminate or transmit images of a victim impact statement only to the extent that it is reasonably necessary to do so for the purposes of providing the victim impact statement to another Australian legal practitioner for legitimate purposes related to the proceedings. (3) The Australian legal practitioner must destroy any copies or images at the conclusion of the sentencing proceedings. (4) The court may provide supervised access to a victim impact statement to an offender who is not represented by an Australian legal practitioner, if resources to facilitate the access are reasonably available. (5) An offender must not retain, copy, disseminate or transmit images of the victim impact statement. Subdivision 4 — Special provisions relating to the reading of statements

[5- s 30H] Victims are entitled to have a support person present 30H (1) The victim to whom a victim impact statement relates is entitled to have a person chosen by the victim to be present near the victim, and within the victim’s sight, when the statement is read out. (2) The person chosen by the victim may include a parent, guardian, relative, friend or support person of the victim or a person assisting the victim in a professional capacity. (3) The right to have a person present applies whether the victim impact statement is read in proceedings that are being heard in open court, in closed court or in accordance with any closed-circuit television arrangements. (4) A victim may have more than one person present.

[5- s 30I] Victims who are entitled to give evidence in closed court may also read their victim impact statements in closed court 30I (1) If the proceedings are for a prescribed sexual offence, the part of the proceedings in which the victim impact statement is read out is to be held in closed court unless: (a) the court directs (subject to section 30K), at the request of a party to the proceedings, that the proceedings are to be held in open court, and (b) the court is satisfied that:

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CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 30L]

(i) special reasons in the interests of justice require the part of the proceedings to be held in open court, or (ii) the victim to whom the statement relates consents to the statement being read out in open court. (2) The principle that proceedings for an offence should generally be open or public in nature, or that justice should be seen to be done, does not of itself constitute special reasons in the interests of justice requiring the part of the proceedings to be held in open court.

[5- s 30J] Victims who are entitled to give evidence by CCTV may also read their victim impact statements by CCTV 30J If the proceedings for the offence concerned are proceedings in which the victim to whom the victim impact statement relates is entitled to give evidence by means of closed-circuit television arrangements, the victim is also entitled to read out the victim’s victim impact statement in accordance with those closed-circuit television arrangements.

[5- s 30K] Other victims may read their victim impact statements in closed court or by CCTV with leave of court 30K (1) Any victim may request that the court give leave to the victim to read out the victim’s victim impact statement in closed court or by means of closed-circuit television arrangements. (2) In determining whether to grant leave to the victim to read out the victim’s victim impact statement in closed court, the court is to consider: (a) whether it is reasonably practicable to exclude the public, and (b) whether special reasons in the interests of justice require the statement to be read in open court, and (c) any other matter that the court considers relevant. (3) The principle that proceedings for an offence should generally be open or public in nature, or that justice should be seen to be done, does not of itself constitute special reasons in the interests of justice requiring the statement to be read in open court. (4) In determining whether to grant leave to the victim to read out the victim’s victim impact statement by means of closed-circuit television arrangements, the court is to consider: (a) whether the facilities necessary to do so are available or could reasonably be made available, and (b) any other matter that the court considers relevant. (5) This section does not apply to a victim to whom section 30I or 30J relates. Subdivision 5 — Special provisions regarding forensic patients

[5-s 30L] Victim impact statements where verdict of not guilty by reason of mental illness or limited finding of guilt 30L (1) A court may accept a victim impact statement after: (a) a verdict that an accused person is not guilty by reason of mental illness (whether or not following a special hearing) under the Mental Health (Forensic Provisions) Act 1990, or

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s 30L

[5-s 30L]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 30L

(b) a verdict following a special hearing under that Act, that, on the limited evidence available, an accused person committed an offence. (2) A court must acknowledge receipt of the victim impact statement. (3) A court may consider a victim impact statement when it considers what conditions are to be imposed on the release of the accused person. (4) A court is not to consider a victim impact statement when determining the limiting term to be imposed on an accused person. (5) A court must not consider a victim impact statement under this section unless it has been prepared by the victim to whom it relates and tendered by the prosecutor. (6) Section 30E does not apply to a victim impact statement received by a court under this section. (7) For the purposes of the definitions of family victim and primary victim in this Division, an offence is taken to have been committed by an accused person referred to in subsection (1).

[5-s 30M] Submissions by designated carers and principal care providers 30M (1) A court may seek a submission by the designated carer or principal care provider of an accused person after: (a) a verdict of not guilty by reason of mental illness (whether or not following a special hearing) under the Mental Health (Forensic Provisions) Act 1990, or (b) a verdict following a special hearing under that Act, that, on the limited evidence available, the accused person committed an offence. (2) The regulations may make provision for or with respect to submissions under this section. (3) In this section, designated carer and principal care provider have the same meanings as in the Mental Health Act 2007.

[5-s 30N] Victim impact statements in mental health and cognitive impairment forensic proceedings 30N (1) A victim may request that a court not disclose the whole or part of a victim impact statement received by the court under section 30L to the accused person or that the statement not be read out to the court. (2) The court is to agree to a request of a victim not to disclose the whole or part of a victim impact statement to the accused person or that a statement not be read out to the court unless the court considers that it is not in the interests of justice to agree to the request. Note. Among other things that may be considered by the court is the question of procedural fairness to the accused person.

(3) This section does not prevent the court from disclosing the whole or part of a victim impact statement to an Australian legal practitioner representing the accused person, on the condition that the statement is not to be disclosed to any other person, if the court is satisfied that it is in the interests of justice to do so. (4) The court is required to give a copy of the victim impact statement to the Mental Health Review Tribunal constituted by the Mental Health Act 2007, in accordance with

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s 32

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 32]

DIVISION 3 — TAKING FURTHER OFFENCES INTO ACCOUNT

[5-s 31] Definitions 31

In this Division:

further offence means an offence referred to in a list of additional charges. impose a penalty includes: (a) impose a sentence of imprisonment or a fine, or (b) make an intensive correction order or community correction order, or (c) make an order that provides for an offender to enter into a good behaviour bond, or (c1) make a non-association order or place restriction order, or (d) make an order under section 10, 11 or 12. [def am Act 53 of 2017 Sch 1[22], opn 24 Sep 2018] [s 31 am Act 100 of 2001 s 3 and Sch 1.1[4], opn 22 July 2002; Act 48 of 2010 Sch 1, opn 1 Oct 2010]

list of additional charges means a document filed in a court by the prosecutor, as referred to in section 32(1). principal offence means an offence the subject of proceedings referred to in section 32(1).

[5-s 32] Prosecutor may file list of additional charges 32 (1) In any proceedings for an offence (the principal offence), the prosecutor may file in the court a document that specifies other offences with which the offender has been charged, but not convicted, being offences that the offender has indicated are offences that the offender wants the court to take into account when dealing with the offender for the principal offence. (2) A list of additional charges may be filed at any time: (a) after the court finds the offender guilty of the principal offence, and (b) before the court deals with the offender for the principal offence. (3) A copy of the list of additional charges, as filed in the court, is to be given to the offender. (4) A list of additional charges: (a) [repealed] (b) must be signed by the offender, and (c) must be signed by or on behalf of the Director of Public Prosecutions or by a person, or a person belonging to a class of persons, prescribed by the regulations. [subs (4) am Act 68 of 2004 s 3 and Sch 4[1], opn 6 July 2004; Act 67 of 2012 Sch 3.2[1], opn 24 Sep 2012]

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the regulations, as soon as practicable after the court makes a decision that results in the accused person becoming a forensic patient within the meaning of that Act. (5) The regulations may make provision for or with respect to the requirements and procedures for victim impact statements in proceedings under the Mental Health (Forensic Provisions) Act 1990.

[5-s 32]

s 32

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

(5) A list of additional charges is taken to be signed on behalf of the Director of Public Prosecutions if it is signed by a person who is authorised to do so by means of a written order signed by the Director of Public Prosecutions or who belongs to a class of persons so authorised. [subs (5) subst Act 67 of 2012 Sch 3.2[2], opn 24 Sep 2012]

(6) A failure to comply with the requirements of this section does not invalidate any sentence imposed by the court for the principal offence. [subs (6) insrt Act 136 of 2010 Sch 1.2[9], opn 14 Mar 2011]

COMMENTARY ON SECTION 32 Prescribed form and prescribed persons . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 32.1]

[5-s 32.1] Prescribed form and prescribed persons A list of additional charges under s 32 is to be in the approved form: cl 4(1) of the Crimes (Sentencing Procedure) Regulation 2017, at [5-10,110]. For the purposes of s 32(4)(c) a list of prescribed persons is set out in cl 4(2) of the Regulation and includes police officers, at [5-10,110].

[5-s 33] Outstanding charges may be taken into account 33 (1) When dealing with the offender for the principal offence, the court is to ask the offender whether the offender wants the court to take any further offences into account in dealing with the offender for the principal offence. (2) The court may take a further offence into account in dealing with the offender for the principal offence: (a) if the offender: (i) admits guilt to the further offence, and (ii) indicates that the offender wants the court to take the further offence into account in dealing with the offender for the principal offence, and (b) if, in all of the circumstances, the court considers it appropriate to do so. (3) If the court takes a further offence into account, the penalty imposed on the offender for the principal offence must not exceed the maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account. (4) A court may not take a further offence into account: (a) if the offence is of a kind for which the court has no jurisdiction to impose a penalty, or (b) if the offence is an indictable offence that is punishable with imprisonment for life. (5) For the purposes of subsection (4)(a), a court is taken to have jurisdiction to impose a penalty for an offence even if that jurisdiction may only be exercised with the consent of the offender. (6) Despite subsection (4)(a), the Supreme Court, the Court of Criminal Appeal and the District Court may take a summary offence into account. COMMENTARY ON SECTION 33 Taking offences into account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Taking into account criminality of Form 1 offences . . . . . . . . . . . . . .

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[5-s 33.1] [5-s 33.5]

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 33.1]

[5-s 33.1] Taking offences into account The sentencing court is to inquire of the offender whether he or she wants the court to take the offences into account and can only take matters into account where the offender admits guilt and indicates that he or she wishes the court to take the offences into account, and where the court thinks that it is appropriate to do so: s 33(2). In R v Felton (2002) 135 A Crim R 328; [2002] NSWCCA 443; BC200206659 it was stated that the criminal courts should be astute to comply with the procedural formalities attending to the steps towards sentencing such as those in s 33(2). This because they are not empty gestures, but are important safeguards to ensure that the offender is aware of what is taking place and consents to procedures that may have a significant impact upon his freedom or the period during which he will remain in custody. See also R v Brandt (2004) 42 MVR 262; [2004] NSWCCA 3; BC200400157 at [8]. A court should take care to ensure that the Form 1 procedure is properly carried out especially in the specification of the offence in respect of which the matters on the Form 1 are to be taken into account: Doumit v R [2011] NSWCCA 134; BC201104172; 18(7) Crim LN [2932]. Generally, the offences taken into account should be of the same kind and no more serious than the offence for which sentence is to be passed. Taking 29 offences of armed robbery into account on a single charge of armed robbery was described as “questionable” in R v Lemene (2001) 118 A Crim R 131; [2001] NSWCCA 5; BC200100338; (2001) 8 Crim LN 14 [1254], where it was stated that the Crown has the onus of ensuring that the section is not misused. In R v Harris (2001) 125 A Crim R 27; [2001] NSWCCA 322; BC200105237; (2001) 8 Crim LN 77 [1337] it was said that taking firearms offences into account when sentencing for drug offences added to the complexity of the sentencing task. The prosecutor should take care that taking matters into account on a Form 1 does not result in an unexpected benefit to the accused by reason of the fact that such an offence is not treated as a conviction. In R v Felton (2002) 135 A Crim R 328; [2002] NSWCCA 443; BC200206659 the result of the fact that offences of driving whilst disqualified were taken into account on a Form 1 meant that they could not be used as the basis of a declaration that the accused was an habitual traffic offender. It has been held to be inappropriate for the prosecutor to have offences on a Form 1 in relation to different complainants where there were charges before the court in respect of each complainant. There should have been a separate Form 1 in relation to each complainant to be taken into account in respect of a particular offence against the complainant to whom the Form 1 offences related: SGJ v R [2008] NSWCCA 258; BC200809879; (2009) 16(1) Crim LN 9 [2483]. Furthermore, it is generally inappropriate to have a matter taken into account that carries a standard non-parole period. There may be situations where that procedure can be justified such as where the offender is being sentenced for a number of offences similar to those placed on the Form 1: Eedens v R [2009] NSWCCA 254; BC200909053 at [19]. Section 33(2) contemplates that the court must supervise the use of the Form 1 procedure. When an entirely inappropriate arrangement is proffered and because of it a court would be denied the opportunity to impose a proper sentence, the discretion provided by s 33(2)(b) should be invoked and the court should decline to accept the Form 1: C-P v R [2009] NSWCCA 291; BC200911181 at [8]. See Eedens v R [2009] NSWCCA 254; BC200909053 and El-Youssef v R [2010] NSWCCA 4; BC201000373 for examples of inappropriate use of a Form 1. Where offences are taken into account the effect is that the court is to impose a sentence for the totality of the criminality before it, reflected in both the offence for which the accused is to be sentenced and the offence or offences taken into account, and it is not the case that the matters taken into account are simply to be noted in passing: R v Bavadra (2000) 115 A Crim R 152; [2000] NSWCCA 292; BC200005331. This may mean that the sentence passed is greater than that which would have been appropriate for the principal offence standing alone: Vougdis v R (1989) 41 A Crim R 125; BC8902275. The sentence to be imposed for the offence taking into account the other matters on the Form 1 can exceed that which would otherwise be appropriate for the principal offence if it stood alone, even by a considerable degree: R v Grubbe [2005] NSWCCA 140; BC200502037; (2005) 12 Crim LN 50 [1874].

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s 33

[5-s 33.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 33

In determining the effect of an offence taken into account under the section, the court is to have regard to the maximum penalty for the offence and any relevant standard non-parole period: CH v R [2019] NSWCCA 68; BC201902352; 26(5) Crim LN [4134] holding that it is the maximum penalty that is relevant and not the maximum penalty if the offence were dealt with summarily. The appropriate manner in which the court should take matters into account under the section was considered in Attorney-General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; 137 A Crim R 180; [2002] NSWCCA 518; BC200208040. It was stressed that the focus is upon sentencing for the primary offence but that the fact that a matter or matters on a Form 1 are to be taken into account means that greater weight should be given to personal deterrence and retribution. This has the consequence that the purpose of the process is to impose a longer sentence than if the primary offence had stood alone and that the additional penalty will not necessarily be small. The manner and degree to which the Form 1 offences impinge upon the sentence for the primary offence will depend upon a range of other factors pertinent to those elements and the weight to be given to them in the overall sentencing task. But the effect of the inclusion of an offence on a Form 1 is to give the offences less weight in the sentencing process. It was further held that it was not appropriate for a court to proceed by assessing the appropriate sentence for the offences on the Form 1 and then discounting that sentence for that reason. In Markarian v R (2005) 228 CLR 357; 215 ALR 213; [2005] HCA 25; BC200503148; (2005) 12 Crim LN 58 [1882] it was held that it was not an error for the court to indicate the impact on the sentence from the taking into account of matters on the Form 1 not as the specification of a separate penalty for the matters on the Form 1 but by way of the amount that the otherwise appropriate sentence for the principal offence has been increased by the Form 1 matters. A court should not take into account matters on a Form 1 when determining whether, and to what degree, to accumulate sentences: Sparos v R [2013] NSWCCA 223; BC201313586; 21(1) Crim LN [3312] where it was held that, once the offences have been taken into account when determining the sentence for the offence to which they relate, the offences thereafter become irrelevant to a determination of the appropriate overall sentence. [5-s 33.5] Taking into account criminality of Form 1 offences In Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; BC201302632, a five judge bench of the Court of Criminal Appeal considered the Form 1 procedure and the manner in which a sentencing court can take into account criminality of Form 1 offences to increase penalty for the principal offence. Chief Justice Bathurst (Hoeben CJ at CL, Garling and Campbell JJ agreeing) said at [22]–[23]: [22] In my respectful opinion, the approach suggested by Adams J is incorrect if it is interpreted as meaning that a sentence cannot be increased to take into account an additional need for deterrence and retribution in respect of the offences charged by virtue of the Form 1 offences being taken into account. Such an interpretation is contrary, in my opinion, to the meaning of s 33 properly construed and to what was said by Spigelman CJ in Attorney General’s Reference. Section 33(1) empowers the court to take the further offences into account where the preconditions in that section and s 32 are met. It is clear from the provisions of s 33(3) that that could lead to an increase in penalty up to the maximum penalty for the principal offence. The existence of these additional offences may demonstrate the greater need for personal deterrence and retribution in respect of the offence charged. This does not mean the court is imposing a separate penalty for the Form 1 offences. Rather, as part of the instinctive synthesis approach to sentencing explained by McHugh J in Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [51]–[54], it takes these matters into account as required by the statute in determining the appropriate penalty for the offence for which the offender is convicted. [23] That approach would generally, but not universally, lead to the imposition of a sentence longer, and in some cases significantly longer, than would otherwise be required if the Form 1 offences were not taken into account: R v Barton [2001] NSWCCA 63; (2001) 121 A Crim R 185. That does not mean that the principle of proportionality referred to by the High Court in

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CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 35]

cases such as Hoare v R [1989] HCA 33; (1989) 167 CLR 348 at 354; Veen v R (No 2) supra at 472 and 477; Markarian supra at [83], is offended. Rather, the fact that the sentence is to be determined by reference to the additional need for personal deterrence and retribution for the offence for which the offender is being sentenced as a result of the Form 1 charges means that the principle of proportionality falls to be assessed by reference to matters which include those additional factors. That does not involve any injustice to the offender who has chosen to avail him or herself of the s 33 procedure. Nor does it mean that the offender is being sentenced for offences for which he or she has not been convicted. This is because the sentence is imposed by reference to the offence for which the offender has been convicted, by contrast to the “top down” approach rejected in Attorney General’s Reference. The extent to which the matters in a Form 1 can increase the sentence for the principal offence was considered in DG v R [2017] NSWCCA 139; BC201704749; 24(8) Crim LN [3870] where it was held that the seriousness of the matters on the Form 1 led to a significant increase in the sentence for the principal offence.

[5-s 34] Ancillary orders relating to offences taken into account 34 (1) If a court takes a further offence into account under this Division, the court may make such ancillary orders as it could have made had it convicted the offender of the offence when it took the offence into account, but may not impose a separate penalty for the offence. (2) An offender with respect to whom an ancillary order is made has the same rights of appeal as he or she would have had if the order had been made on the conviction of the offender for the further offence. (3) An ancillary order for an offence taken into account lapses, by operation of this subsection, if the offender’s conviction for the principal offence is quashed or set aside. (4) In this section, ancillary order means an order or direction with respect to restitution, compensation, costs, forfeiture, destruction, disqualification or loss or suspension of a licence or privilege. [subs (4) am Act 121 of 2001 s 4 and Sch 2.75[5], opn 7 July 2003]

[5-s 35] Consequences of taking offences into account 35 (1) If a further offence is taken into account under this Division: (a) the court is to certify, on the list of additional charges, that the further offence has been taken into account, and (b) no proceedings may be taken or continued in respect of the further offence unless the conviction for the principal offence is quashed or set aside. (2) This section does not prevent a court that has taken a further offence into account when dealing with an offender for a principal offence from taking the further offence into account if it subsequently imposes a penalty when sentencing or re-sentencing the offender for the principal offence. (3) An admission of guilt made for the purposes of this Division is not admissible in evidence in any proceedings relating to: (a) the further offence in respect of which the admission was made, or (b) any other offence specified in the list of additional charges. (4) An offence taken into account under this Division is not, merely because of its being taken into account, to be regarded for any purpose as an offence of which an offender has been convicted.

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s 35

[5-s 35]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 35

(5) In or in relation to any criminal proceedings, reference may lawfully be made to, or evidence may lawfully be given of, the fact that a further offence has been taken into account under this Division in imposing a penalty for a principal offence of which an offender has been found guilty if, in or in relation to those proceedings: (a) reference may lawfully be made to, or evidence may lawfully be given of, the fact that the offender was found guilty or convicted of the principal offence, and (b) had the offender been found guilty or convicted of the further offence so taken into account, reference could lawfully have been made to, or evidence could lawfully have been given of, the fact that the offender had been found guilty or convicted of that further offence. (6) The fact that a further offence has been taken into account under this Division may be proved in the same manner as the conviction for the principal offence.

[5-s 35A] Consultation with victim and police in relation to charge negotiations 35A (1) In this section: charge negotiations means negotiations between the prosecution and an offender with respect to a plea of guilty in relation to an offence other than the principal offence concerned. prosecution guidelines means prosecution guidelines in relation to charge negotiations issued by the Director of Public Prosecutions. requisite consultation means consultation with the victim and the police officer in charge of investigating an offence that complies with the applicable prosecution guidelines. victim has the same meaning as it has in section 26. [subs (1) am Act 44 of 2017 Sch 1.8[1], opn 25 Sep 2017]

(2) A court must not take into account offences other than the principal offence, or any statement of agreed facts, that was the subject of charge negotiations unless the prosecutor has filed a certificate with the court verifying that: (a) the requisite consultation has taken place or, if consultation has not taken place, the reasons why it has not occurred, and (b) any statement of agreed facts arising from the negotiations tendered to the court constitutes a fair and accurate account of the objective criminality of the offender having regard to the relevant and provable facts or has otherwise been settled in accordance with the applicable prosecution guidelines. [subs (2) am Act 44 of 2017 Sch 1.8[2], opn 25 Sep 2017]

(3) The certificate must be signed by or on behalf of the Director of Public Prosecutions or by a person, or a person belonging to a class of persons, prescribed by the regulations. [subs (3) am Act 67 of 2012 Sch 3.2[1], opn 24 Sep 2012]

(4) A certificate is taken to be signed on behalf of the Director of Public Prosecutions if it is signed by a person who is authorised to do so by means of a written order signed by the Director of Public Prosecutions or who belongs to a class of persons so authorised. [subs (4) subst Act 67 of 2012 Sch 3.2[3], opn 24 Sep 2012]

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s 37

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 37]

(5) The court may require the prosecution to explain the reason for a failure to file a certificate when it is required by this section to do so. COMMENTARY ON SECTION 35A Prescribed persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 35A.5]

[5-s 35A.5] Prescribed persons See cl 8 of the Crimes (Sentencing Procedure) Regulation 2017 at [5-10,130] for persons prescribed for the purpose of s 35A(3).

DIVISION 4 — SENTENCING GUIDELINES

[5-s 36] Definitions 36

In this Division:

Court means the Court of Criminal Appeal. guideline judgment means a judgment that is expressed to contain guidelines to be taken into account by courts sentencing offenders, being: (a) guidelines that apply generally, or (b) guidelines that apply to particular courts or classes of courts, to particular offences or classes of offences, to particular penalties or classes of penalties or to particular classes of offenders (but not to particular offenders). [def am Act 117 of 2001 s 3 and Sch 5[1], opn 18 Dec 2001]

guideline proceedings means: (a) proceedings under section 37 on an application for a guideline judgment referred to in that section, and (b) that part of proceedings that relates to the giving of a guideline judgment under section 37A. [def subst Act 117 of 2001 s 3 and Sch 5[2], opn 18 Dec 2001]

[5-s 37] Guideline judgments on application of Attorney General 37 (1) The Court may give a guideline judgment on the application of the Attorney General. (2) An application for a guideline judgment may include submissions with respect to the framing of the proposed guidelines. (3) An application is not to be made in any proceedings before the Court with respect to a particular offender. (4) The powers and jurisdiction of the Court to give a guideline judgment in proceedings under this section in relation to an indictable or summary offence are the same as the powers and jurisdiction that the Court has, under section 37A, to give a guideline judgment in a pending proceeding in relation to an indictable offence. [subs (4) am Act 117 of 2001 s 3 and Sch 5[3], opn 18 Dec 2001]

(5) A guideline judgment under this section may be given separately or may be included in any judgment of the Court that it considers appropriate. (6) [subs (6) rep Act 117 of 2001 s 3 and Sch 5[4], opn 18 Dec 2001]

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[s 35A insrt Act 136 of 2010 Sch 1.2[10], opn 14 Mar 2011]

[5-s 37.1]

s 37

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

COMMENTARY ON SECTION 37 Guideline judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Guideline judgments and the standard non-parole period offence scheme . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 37.1] [5-s 37.5]

[5-s 37.1] Guideline judgments The Court of Criminal Appeal has power to give a guideline judgment when determining an appeal in relation to sentence by the Crown or the offender: R v Jurisic (1998) 45 NSWLR 209; 101 A Crim R 259; (1998) 5 Crim LN 81 [919], reformulated in R v Whyte (2002) 55 NSWLR 252; 37 MVR 1; [2002] NSWCCA 343; BC200204713; (2002) 9 Crim LN 64 [1465]; R v Henry (1999) 46 NSWLR 346; 106 A Crim R 149; [1999] NSWCCA 111; BC9902288; (1999) 6 Crim LN 29 [989]; Attorney-General’s Application (No 1); R v Ponfield (1999) 48 NSWLR 327; [1999] NSWCCA 435; BC9908231; (2000) 7 Crim LN 2 [1101] and see generally the article by H Donnelly, “Guideline judgments from tariffs to starting points” at (1998) 5 Crim LN 93 [940]. The court has no power to issue a guideline in respect of a Commonwealth offence: Wong v R (2001) 207 CLR 584; 185 ALR 233; [2001] HCA 64; BC200107047; (2001) 8 Crim LN 95 [1361] and the issuing of a guideline as to the range of sentence appropriate was inconsistent with s 16A of the Crimes Act 1914 (Cth). The majority of the court indicated that it was inappropriate to issue a guideline in respect of a range of sentences rather than the appropriate sentencing principles to be applied. In R v Whyte, above, the court reaffirmed its power to promulgate a guideline judgment, stressing that a guideline should not confine a sentencing court’s discretion and is to be taken into account only as a “check” or “guide”, not as a “rule” or “presumption”. Current guideline judgments: • Armed robbery (Crimes Act 1900, s 97): R v Henry (1999) 46 NSWLR 346; 106 A Crim R 149; [1999] NSWCCA 111; BC9902288; (1999) 6 Crim LN 29 [989]. • Break, enter and steal (Crimes Act 1900, s 112(1)): R v Ponfield (1999) 48 NSWLR 327; [1999] NSWCCA 435; BC9908231. • Dangerous driving (Crimes Act 1900, s 52A): R v Jurisic (1998) 45 NSWLR 209; 29 MVR 49; BC9805254 reformulated in R v Whyte (2002) 55 NSWLR 252; 37 MVR 1; [2002] NSWCCA 343; BC200204713; (2002) 9 Crim LN 64 [1465]. • Drug importation (Customs Act 1901, s 233B): R v Wong (1999) 48 NSWLR 340; 154 FLR 80; [1999] NSWCCA 420; BC9908233; (2000) 7 Crim LN 3 [1102] now overruled see: Wong v R (2001) 207 CLR 584; 185 ALR 233; [2001] HCA 64; BC200107047; (2001) 8 Crim LN 95 [1361]. • Form 1: Attorney-General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; 137 A Crim R 180; [2002] NSWCCA 518; BC200208040. • Guilty plea (Crimes (Sentencing Procedure) Act 1999, s 22): R v Thomson and Houlton (2000) 49 NSWLR 383; 115 A Crim R 104; [2000] NSWCCA 309; BC200004800; (2000) 7 Crim LN 60 [1177]. • High Range PCA: Attorney-General’s Application under s 37 Crimes (Sentencing Procedure) Act (No 3 of 2002) (2004) 61 NSWLR 305; 41 MVR 346; [2004] NSWCCA 303; BC200405864. [5-s 37.5] Guideline judgments and the standard non-parole period offence scheme Division 1A of Pt 4 of the Act (s 54A at [5-s 54A] and following) introduced a scheme of standard non-parole periods where a sentence of imprisonment is imposed for certain serious offences. Offences for which guideline judgments have been promulgated by the Court of Criminal Appeal (armed robbery, dangerous driving causing death/grievous bodily harm and break enter and steal under s 112(1) of the Crimes Act 1900) are not included in the Table to Div 1A of Pt 4 of the Act. “. . . It is proposed that the guideline judgments already promulgated by the Court of

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CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 38]

Criminal Appeal should continue to be used by the courts when sentencing for these offences . . .” (second reading speech, Attorney General, Mr Debus, Legislative Assembly, Hansard, 23 October 2002, p 5815). A guideline judgment made before 1 February 2003 continues to have effect, except to the extent to which it is inconsistent with any amendment to the Crimes (Sentencing Procedure) Act 1999 made by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002: Sch 2 cl 46, Crimes (Sentencing Procedure) Act 1999 at [5-Sch 2].

[5-s 37A] Guideline judgments on own motion 37A (1) The Court may give a guideline judgment on its own motion in any proceedings considered appropriate by the Court, and whether or not it is necessary for the purpose of determining the proceedings. (2) The Court is to give the Senior Public Defender, Director of Public Prosecutions and Attorney General an opportunity to appear as referred to in sections 38, 39 and 39A before giving a guideline judgment. [s 37A insrt Act 117 of 2001 s 3 and Sch 5[5], opn 18 Dec 2001]

[5-s 37B] Review, variation and revocation of guideline judgments 37B A guideline judgment given in proceedings under section 37 or 37A may be reviewed, varied or revoked in a subsequent guideline judgment of the Court, whether or not given under the same section. [s 37B insrt Act 117 of 2001 s 3 and Sch 5[5], opn 18 Dec 2001]

[5-s 38] Senior Public Defender may intervene 38 (1) The Senior Public Defender, or a nominee of the Senior Public Defender who is an Australian legal practitioner, may appear in guideline proceedings. [subs (1) am Act 98 of 2005 Sch 3.18, opn 1 Dec 2005]

(2) Without limiting subsection (1), the Senior Public Defender or his or her nominee may do any one or more of the following: (a) oppose or support the giving of the guideline judgment by the Court, (b) make submissions with respect to the framing of the guidelines, (c) inform the Court of any relevant pending appeal with respect to sentence, (d) assist the Court with respect to any relevant matter. (3) Nothing in the Public Defenders Act 1995 or any other Act or law prevents, or in any way limits, the exercise of any function conferred on the Senior Public Defender, or on any nominee of the Senior Public Defender who is a Public Defender, under this section. (4) Without limiting subsection (3), in exercising any function conferred on the Senior Public Defender under this section, the Senior Public Defender is not, despite section 4(3) of the Public Defenders Act 1995, responsible to the Attorney General. (5) The Legal Aid Commission may make recommendations to the Senior Public Defender as to the exercise of any function conferred or imposed on the Senior Public Defender, or on any nominee of the Senior Public Defender, under this section. [subs (5) insrt Act 98 of 2000 s 3 and Sch 2.1, opn 15 Jan 2001]

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s 38

[5-s 39]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 39

[5-s 39] Director of Public Prosecutions may intervene 39 (1) The Director of Public Prosecutions may appear in person or be represented by an Australian legal practitioner in guideline proceedings. [subs (1) am Act 98 of 2005 Sch 3.18, opn 1 Dec 2005]

(2) Without limiting subsection (1), the Director of Public Prosecutions or his or her representative may do any one or more of the following: (a) oppose or support the giving of the guideline judgment by the Court, (b) make submissions with respect to the framing of the guidelines, (c) inform the Court of any relevant pending appeal with respect to sentence, (d) assist the Court with respect to any relevant matter. (3) Nothing in the Director of Public Prosecutions Act 1986, the Crown Prosecutors Act 1986 or any other Act or law prevents, or in any way limits, the exercise of any function conferred on the Director of Public Prosecutions, or on any representative of the Director who is a Crown Prosecutor, under this section. (4) Without limiting subsection (3), in exercising any function conferred on the Director of Public Prosecutions under this section, the Director is not, despite section 4(3) of the Director of Public Prosecutions Act 1986, responsible to the Attorney General.

[5-s 39A] Attorney General may intervene 39A (1) The Attorney General, or a nominee of the Attorney General who is an Australian legal practitioner, may appear in that part of proceedings that relates to the giving of a guideline judgment under section 37A. [subs (1) am Act 98 of 2005 Sch 3.18, opn 1 Dec 2005]

(2) Without limiting subsection (1), the Attorney General or his or her nominee may do any one or more of the following: (a) oppose or support the giving of the guideline judgment by the Court, (b) make submissions with respect to the framing of the guidelines, (c) inform the Court of any relevant pending appeal with respect to sentence, (d) assist the Court with respect to any relevant matter. (3) Nothing in any other Act or law prevents, or in any way limits, the exercise of any function conferred on the Attorney General, or on any nominee of the Attorney General, under this section. [s 39A insrt Act 117 of 2001 s 3 and Sch 5[6], opn 18 Dec 2001]

[5-s 40] Discretion of Court preserved 40 Nothing in this Division: (a) limits any power or jurisdiction of the Court to give a guideline judgment that the Court has apart from this Division, or (b) requires the Court to give any guideline judgment under this Division if it considers it inappropriate to do so.

[5-s 41] Rules of court 41 Rules of court may be made under the Supreme Court Act 1970 with respect to applications, and proceedings to determine applications, under this Division.

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s 43

[5-s 43]

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 42] Use of evidence in giving guideline judgments 42 (1) Nothing in section 12 of the Criminal Appeal Act 1912 limits the evidence or other matters that the Court may take into consideration in giving a guideline judgment and the Court may inform itself as it sees fit. (2) The Court must not increase a sentence in any appeal by reason of, or in consideration of, any evidence that is used by the Court in giving a guideline judgment in the appeal but was not given at the trial. COMMENTARY ON SECTION 42 Evidence in guideline judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 42.1]

[5-s 42.1] Evidence in guideline judgments Criminal statistics on the incidence of an offence, including police data, court data and victim surveys are not “evidence” within s 12 Criminal Appeal Act 1912 or under this section. Whilst academic literature on the effects of an offence, including both physical and psychological effects, may not be “evidence” within those sections, it is not material to which the Court should have regard in the individual cases, as the gravity of each case is determined by, inter alia, the effects on the particular victims: R v Henry (1999) 46 NSWLR 346; 106 A Crim R 149; [1999] NSWCCA 111; BC9902288; (1999) 6 Crim LN 29 [989].

[5-s 42A] Relationship of guidelines and other sentencing matters 42A A guideline that is expressed to be contained in a guideline judgment: (a) is in addition to any other matter that is required to be taken into account under Division 1 of Part 3, and (b) does not limit or derogate from any such requirement. [s 42A insrt Act 117 of 2001 s 3 and Sch 5[8], opn 18 Dec 2001]

DIVISION 5 — CORRECTION AND ADJUSTMENT OF SENTENCES

[5-s 43] Court may reopen proceedings to correct sentencing errors 43 (1) This section applies to criminal proceedings (including proceedings on appeal) in which a court has: (a) imposed a penalty that is contrary to law, or (b) failed to impose a penalty that is required to be imposed by law, and so applies whether or not a person has been convicted of an offence in those proceedings. (2) The court may reopen the proceedings (either on its own initiative or on the application of a party to the proceedings) and, after giving the parties an opportunity to be heard: (a) may impose a penalty that is in accordance with the law, and (b) if necessary, may amend any relevant conviction or order. (3) For the purposes of this section, the court: (a) may call on the person to whom the proceedings relate to appear before it and, if the person does not appear, may issue a warrant for the person’s arrest, or (b) if of the opinion that the person will not appear if called on to do so, may, without calling on the person to appear before it, issue a warrant for the person’s arrest.

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[subs (1) am Act 117 of 2001 s 3 and Sch 5[7], opn 18 Dec 2001]

[5-s 43]

s 43

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

(4) Subject to subsection (5), nothing in this section affects any right of appeal. (5) For the purposes of an appeal under any Act against a penalty imposed in the exercise of a power conferred by this section, the time within which such an appeal must be made commences on the date on which the penalty is so imposed. (6) In this section: impose a penalty includes: (a) impose a sentence of imprisonment or a fine, or (b) make an intensive correction order community correction order or conditional release order, or (c) [repealed] (c1) make a non-association order or place restriction order, or (d) make an order under section 10 or 11, or (e) make an order or direction with respect to restitution, compensation, costs, forfeiture, destruction, disqualification or loss, suspension or variation of a licence or privilege. [def am Act 48 of 2010 Sch 1, opn 1 Oct 2010] [subs (6) am Act 100 of 2001 s 3 and Sch 1.1[5], opn 22 July 2002; Act 121 of 2001 s 4 and Sch 2.75[6], opn 7 July 2003; Act 80 of 2013 Sch 4, opn 29 Oct 2013; Act 53 of 2017 Sch 1[23]–[25], opn 24 Sep 2018]

COMMENTARY ON SECTION 43 Law Part Codes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope of section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Correcting determinations other than penalties . . . . . . . . . . . . . . . . . .

[5-s 43.0] [5-s 43.1] [5-s 43.5]

[5-s 43.0] Law Part Codes The Law Part Code for s 43(3)(a) is 44509. The Law Part Code for s 43(3)(b) is 44510. [5-s 43.1] Scope of section The scope and operation of s 43 were considered in Achurch v R (2014) 306 ALR 566; 88 ALJR 490; [2014] HCA 10; BC201402187, where it was held that: (a) s 43 provides a conditional statutory power to correct penalties beyond the limits of the inherent and implied powers of courts and of the slip rule (at [19]); (b) a penalty is not “contrary to law” within the terms of s 43 only because it is reached by a process of erroneous legal reasoning or factual error (at [36]); (c) examples of circumstances in which a penalty may be said to be contrary to law include (at [32]): (i) a penalty which exceeds the maximum penalty prescribed for the offence; (ii) a penalty which is beyond the power of the court to impose because some precondition for its imposition is not satisfied — for example, the existence of an aggravating factor or the existence of prior convictions for the same kind of offence; (d) a penalty which lies outside the range of penalties that could have been imposed in a reasonable exercise of discretion is not, thereby, contrary to law in the sense required by s 43, not least because reconsideration of such would involve an evaluative exercise which must be dealt with by way of appeal (at [32]); (e) the principle of finality should not be taken to have been qualified except by clear statutory language and only to the extent that the language clearly permits (at [36]). A reopening of proceedings to correct a sentencing error under the section does not permit a reconsideration of the original decision: Bungie v R [2015] NSWCCA 9; BC201500543; 22(4) Crim LN [3511]. It was held that a judge correctly refused to allow further evidence to be led on a reopening where the aggregate sentence imposed was not permissible as the provisions did not apply to the sentencing proceedings.

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s 44

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 44.1]

PART 4 — SENTENCING PROCEDURES FOR IMPRISONMENT DIVISION 1 — SETTING TERMS OF IMPRISONMENT

[5-s 44] Court to set non-parole period 44 (1) Unless imposing an aggregate sentence of imprisonment, when sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence). [subs (1) am Act 136 of 2010 Sch 2[3], opn 14 Mar 2011]

(2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision). (2A) Without affecting the requirement to set a non-parole period for a sentence, a court imposing an aggregate sentence of imprisonment in respect of 2 or more offences on an offender may set one non-parole period for all the offences to which the sentence relates after setting the term of the sentence. [subs (2A) insrt Act 136 of 2010 Sch 2[4], opn 14 Mar 2011]

(2B) The term of the sentence that will remain to be served after the non-parole period set for the aggregate sentence of imprisonment is served must not exceed one-third of the non-parole period, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision). [subs (2B) insrt Act 136 of 2010 Sch 2[4], opn 14 Mar 2011]

(2C) The court need not indicate the non-parole period that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence unless it is required to do so by section 54B. [subs (2C) insrt Act 136 of 2010 Sch 2[4], opn 14 Mar 2011; am Act 78 of 2013 Sch 1[1], opn 29 Oct 2013]

(3) The failure of a court to comply with subsection (2), (2B) or (2C) does not invalidate the sentence. [subs (3) am Act 136 of 2010 Sch 2[5], opn 14 Mar 2011]

(4) Schedule 1 has effect in relation to existing life sentences referred to in that Schedule. [s 44 subst Act 90 of 2002 s 3 and Sch 1[3], opn 1 Feb 2003]

COMMENTARY ON SECTION 44 Application of section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Operation of section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Fixing the non-parole period for offences not included in the standard non-parole period scheme . . . . . . . . . . . . . . . . . . . . . . . . . . Special circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Parole orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[5-s 44.1] [5-s 44.5] [5-s 44.10] [5-s 44.15] [5-s 44.20]

Sentencing

[5-s 43.5] Correcting determinations other than penalties Where the court has convicted an accused person without jurisdiction or committed the accused person for trial on a summary offence, see [2-s 202.10].

[5-s 44.1]

s 44

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Fixing the non-parole period for standard non-parole period offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Record of reasons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Consequence of failure to comply with s 44(2) . . . . . . . . . . . . . . . . . . Life sentence redetermination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s [5-s [5-s [5-s

44.25] 44.30] 44.35] 44.40]

[5-s 44.1] Application of section Section 44, as enacted in 2002, applies with respect to sentencing for all offences committed on or after 1 February 2003: cl 45(1), Sch 2, Crimes (Sentencing Procedure) Act 1999 at [5-Sch 2]. The repealed s 44 will apply with respect to the determination of sentence for offences committed before 1 February 2003: s 30 Interpretation Act 1987 at [29-45,440]. [5-s 44.5] Operation of section Section 44(1) requires the sentencing court to first set a non-parole period for the sentence and then to set the balance of the term of the sentence. Section 44(2) provides that the balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more. Section 44(1) involves a return to the requirement under s 5 of the repealed Sentencing Act 1989 to first impose a non-parole period. In the second reading speech, the Attorney-General, Mr Debus, said (Legislative Assembly, Hansard, 23 October 2002, p 5816): “The replacement of the existing section [44] is a necessary consequence of the introduction of the scheme of standard non-parole sentencing”, as to which see s 54A at [5-s 54A] and following. Section 44 applies to all sentencing determinations where a sentence of imprisonment of more than six months is imposed (see s 46 at [5-s 46]), whether or not the offence comes within the standard non-parole sentencing scheme in Div 1A of Pt 4 of the Act. Note that a court may decline to set a non-parole period under s 45, but must give reasons for doing so. The section does not require a judge to determine or identify the non-parole period first and then proceed to consider the length of the overall sentence: Anjoul v R [2014] NSWCCA 234; BC201409108; 22(1) Crim LN [3476]. In particular the judge was not required to determine first whether a fixed term might be more appropriate than a short non-parole period, thus bringing into consideration other sentencing options than a term of full-time imprisonment. Where special circumstances have been found, the trial judge should determine what is the minimum period that the offender should serve, and not upon maintaining the proportion between the head sentence and the non-parole period: R v Chong [2003] NSWCCA 274; BC200305650; (2003) 10 Crim LN 77 [1606]. A failure by a court to comply with the section is not an error in the exercise of discretion but a formal or technical error in the pronouncement of the sentence: Itaoui v R (2005) 158 A Crim R 233; [2005] NSWCCA 415; BC200510341. Section 44(2A) permits the court to impose an aggregate non-parole period when sentencing for more than one offence, although the ratio between the aggregate non-parole period and the aggregate balance of the term must comply with the statutory ratio unless there is a finding of special circumstances: s 44(2B). The court is not generally required to indicate the non-parole period for each offence when setting an aggregate term. [5-s 44.10] Fixing the non-parole period for offences not included in the standard non-parole period scheme In fixing a non-parole period under the section it is impermissible to determine that period and then to determine the balance of the term of the sentence by considering whether there are special circumstances so to depart from the statutory relationship: R v Perez [2004] NSWCCA 218; BC200404318 applying R v Moffıtt (1990) 20 NSWLR 114; 49 A Crim R 20. The section permits the reduction of the non-parole period where there are special circumstances but in the context of the appropriate term of the sentence: R v Tobar (2004) 150 A Crim R 104; [2004] NSWCCA 391; BC200408087 but cf R v Simon [2005] NSWCCA 123; BC200501844 at [25]: In R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131; BC200402624 the court held:

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s 44

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 44.15]

[112] While there are separate considerations involved for s 44(2) of the Act, they need not be regarded as involving a two-step or sequential process since, as Spigelman CJ pointed out in R v Hampton (1998) 44 NSWLR 729; 101 A Crim R 399; BC9803140, the relevant steps can be taken simultaneously. The section does not create a statutory norm in relation to the proportion of the non-parole period as against the total term of the sentence and special circumstances are required only where the proportion is to be less that three-quarters: R v GDR (1994) 35 NSWLR 376; 75 A Crim R 319 The question of what evidence will support a finding of special circumstances was considered by a five-judge bench in R v Lulham [2016] NSWCCA 287; BC201610564; 24(2) Crim LN [3800] although there was no unanimity of approach, but there must be something about the circumstances of the offender that indicates there are prospects of rehabilitation, and a longer period on parole would assist in that rehabilitation. In determining whether to fix a non-parole period or its length the court is entitled to take into account the manner in which the sentence is to be served having regard to the nature of supervision that will necessarily follow upon the nature of the custodial order: R v Dickinson [2005] NSWCCA 284; BC200506727; (2005) 12 Crim LN 111 [1945], where the court declined to fix a non-parole period when making an order that the sentence be served by way of periodic detention. The non-parole period is the minimum period of imprisonment which the offender must serve before being given the benefit of mitigation of punishment by conditional freedom: Power v R; sub nom Lyons v R (1974) 131 CLR 623; 3 ALR 553 at CLR 628; Deakin v R (1984) 54 ALR 765; 58 ALJR 367; 11 A Crim R 88; BC8400468. The mitigation of the sentence is usually directed toward the rehabilitation of the offender: Leeth v Cth (1992) 174 CLR 455; 107 ALR 672. In fixing both the total sentence and the non-parole period the court is to take into account both the objective features of the offence and matters subjective to the offender although the weight to be given to such factors will differ because of the different purpose of the two parts of the sentence: Bugmy v R (1990) 169 CLR 525; 92 ALR 552; [1990] HCA 18; BC9002947; R v Ogochukwu [2004] NSWCCA 473; BC200409545. The non-parole period should reflect matters such as the seriousness of the offence and deterrence as well as the prospects for rehabilitation: Power v R; sub nom Lyons v R, above; Maclay v R (1990) 19 NSWLR 112; 46 A Crim R 340; BC9002713 at 126; R v Moffıtt (1990) 20 NSWLR 114 at 117, 121; 49 A Crim R 20. The non-parole period must reflect the criminality involved in the offence: R v McDonald (1998) 28 MVR 432; BC9805503; (1998) 5 Crim LN 82 [920]. It should be very rare for a non-parole period to be only 20% of the total sentence and it could only be in the most extraordinary circumstances that such a ratio could be justified: R v Tuhakaraina (2016) 75 MVR 434; [2016] NSWCCA 81; BC201603250; 23(6) Crim LN [3696]. There is no power to specify a non-parole period in respect of a life sentence: R v Harris (2000) 50 NSWLR 409; 121 A Crim R 342; [2000] NSWCCA 469; BC200007875; (2001) 8 Crim LN 1 [1234]. [5-s 44.15] Special circumstances The meaning of “special circumstances” was considered in R v Simpson (2001) 53 NSWLR 704; 126 A Crim R 525; [2001] NSWCCA 534; BC200108495; (2002) 9 Crim LN 7 [1385], where a five judge bench considered the approach that should be taken to a determination under s 44(2) as it stood prior to substitution of a new s 44 in 2002. It was held that the primary consideration in determining whether special circumstances existed should be the length of the minimum period of actual incarceration and this encompasses the full range of issues that are relevant to that period. However, the length of the parole period remains of potential significance and the desirability of a longer term of parole will be the appropriate

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Sentencing

[111] . . . In substance, the section specifies the sequence in which the sentence was to be set, focussing upon the period which was considered appropriate to be served by way of a minimum period of actual imprisonment, followed by the period for a potential supervised release on parole.

[5-s 44.15]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 44

consideration in many cases, but it is not the only perspective. The case law does not justify a restrictive approach to the scope of relevant considerations. However, in R v Fidow [2004] NSWCCA 172; BC200403273; (2004) 11 Crim LN 51 [1706], after referring to a report which indicated that 87% of prisoners had a finding of special circumstances made, it was stated at [22]: This research makes it necessary for this court to state the obvious. Simply because there is present in a case a circumstance which is capable of constituting a “special circumstance” does not mean that a sentencing judge is obliged to vary the statutory proportion. To repeat what was said in Simpson at [68], it is necessary that the circumstances be sufficiently special to justify a variation. As to special circumstances under the new s 44 see R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131; BC200402624. A finding that there were no special circumstances because the offender committed some offences while on bail was held to be erroneous as the matter was irrelevant to whether special circumstances existed: Bellchambers v R [2011] NSWCCA 131; BC201104171; 18(7) Crim LN [2931]. It has been held that the fact that the offender is to face imprisonment for the first time is unlikely to justify a finding of special circumstances: Collier v R [2012] NSWCCA 213; BC201208028; 19(11) Crim LN [3142], where it was noted that the fact that a person has no prior record is relevant to the total sentence to be imposed and does not necessarily justify a further reduction in the sentence to be served by a finding of special circumstances. Notwithstanding that there may be special circumstances the court is not permitted to reduce the non-parole period below what is necessary to punish the offender and act as a deterrence to the offender or others, so that notwithstanding a finding of special circumstances the court may decide not to reduce the non-parole period or reduce it by only a small amount notwithstanding the need for an extended period on parole: R v Cramp [2004] NSWCCA 264; BC200404883; Morrissey v R (NSWCCA, 15 July 1994, unreported); R v Kenworthy (NSWCCA, Grove, Newman, Dunford JJ, 3 August 1995, unreported). Notwithstanding that the court may find there are special circumstances, the court is not required to reduce the non-parole period where the importance of general deterrence requires that the non-parole period not be reduced: R v Stone (1995) 85 A Crim R 436; BC9506800, applying R v Moffat (NSWCCA, Blanch J, 21 June 1994, unreported). It may not be sufficient to justify special circumstances that the offender is young, with a lack of criminal antecedents and serving his first period in custody: R v Kama (2000) 110 A Crim R 47; [2000] NSWCCA 23; BC200000505; R v Christoff (2003) 38 MVR 218; 140 A Crim R 45; [2003] NSWCCA 52; BC200300946; and R v Kaliti (2001) 34 MVR 160; [2001] NSWCCA 268; BC200104104; (2001) 8 Crim LN 61 [1323], where it was held that some care must be taken in automatically elevating subjective features into special circumstances. Illness or disability on the part of a prisoner may amount to “special circumstances”: R v Sellen (1991) 57 A Crim R 313; BC9101376, but the relevance of the illness of an offender in sentencing will depend upon a number of factors including the seriousness of the offence, whether the illness was in existence at the time of the commission of the offence and the need for protection of the public from the offender: R v Wickham [2004] NSWCCA 193; BC200403646. Special circumstances may be found when dealing with an offence that was committed prior to the enactment of s 44 when there was no statutory relationship between the non-parole period and the term of the sentence: R v AJB (2007) 169 A Crim R 32; [2007] NSWCCA 51; BC200701206; 14(3) Crim LN 38 [2187]. The fact that the offender may have to serve the sentence in protection may be a matter taken into account in finding special circumstances, generally that is a matter which is relevant to a determination of the total sentence and, although it may result in a finding of special circumstances, the trial judge would be expected to explain why this was so in the particular case where it has already been taken into account in determining the length of the total term: R v S (2000) 111 A Crim R 225; [2000] NSWCCA 13; BC200000440; (2000) 7 Crim LN 10 [1112]. But just because the matter has been taken into account in determining the head sentence it does not

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CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 44.15]

follow that it cannot be used in determining whether there are special circumstances: R v Barakat [2004] NSWCCA 201; BC200403884; (2004) 11 Crim LN 62 [1721]. However the court should be careful about taking into account matters both to mitigate the total sentence, and thus the non-parole period, and then by way of a finding of special circumstances: R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131; BC200402624 at [178]; R v Fidow [2004] NSWCCA 172; BC200403273 at [18]. It would be erroneous double counting to take into account ill health in determining the head sentence and also as a basis for finding special circumstances: Bell v R; Jelisavac v R [2009] NSWCCA 206; BC200907562. It would also be erroneous double counting to take into account the same matters in determining not to impose the standard non-parole period and for finding special circumstances: R v Quin [2009] NSWCCA 16; BC200900696 at [41]; (2009) 16(3) Crim LN [2522]. There may be special circumstances where the offender is being sentenced after having already served a lengthy period of custody being released shortly before committing the offence for which he is being sentenced: Gower v R (1991) 56 A Crim R 115; BC9101563. Special circumstances should not be found to assist in the rehabilitation of the offender unless there are significant positive signs which show that, if allowed a longer than usual period of parole, rehabilitation is likely to be successful: R v Carter [2003] NSWCCA 243; BC200305119; (2003) 10 Crim LN 68 [1592]. See also R v Tuuta [2014] NSWCCA 40; BC201402311; 21(4) Crim LN [3363] where it was held that a judge erred in finding special circumstances where he saw some signs indicative of “some capacity for rehabilitation”. Where one or more sentences are made cumulative upon another sentence, it may be necessary to find that special circumstances exist in relation to the last sentence in order to preserve the statutory relationship between the overall head sentence and the overall minimum term to be served before release to parole: Close v R (1992) 31 NSWLR 743; 65 A Crim R 55; Hejazi v R [2009] NSWCCA 282; BC200910598. There are numerous decisions by the Court of Criminal Appeal considering whether the sentencing judge erred in determining an overall non-parole period that is more than 75% of the overall term of imprisonment. In some cases the appeal has been dismissed even where the judge found special circumstances for individual sentences: see for example Flynn v R [2010] NSWCCA 171; BC201005508; 17(9) Crim LN 140 [2793] but cf Maglis v R [2010] NSWCCA 247; BC201008612; 18(1) Crim LN 8 [2836]. It has been stated that a judge should give reasons in such a case for not finding special circumstances: Dunn v R [2007] NSWCCA 312; BC200709737 and see Wakefield v R [2010] NSWCCA 12; BC201000466; 17(3) Crim LN 40 [2693] where the non-parole period was 80% of the overall sentence. But the question is whether the sentencing judge determined that there should not be a finding of special circumstances notwithstanding accumulation of sentences: Russell v R [2010] NSWCCA 248; BC201008531; 18(1) Crim LN 7 [2835] and AB v R [2014] NSWCCA 31; BC2014015532; 21(4) Crim LN [3360] where an overall non-parole period of 82 per cent was upheld because it was what the sentencing judge intended and was commensurate with the overall criminality of the offences. In Banks v R [2018] NSWCCA 41; BC201801898; 25(4) Crim LN [3969] it was held that a finding of special circumstances should have been made where, because of accumulation of sentences, a lengthy prison term was to be served and the non-parole specified by the judge was effectively 92 per cent of the overall sentence, leaving only a period of 15 months for supervision after serving a period of 14 ½ years in custody. A judge who determines to impose a non-parole period in excess of 75 per cent of the total sentence particularly in cases of accumulation, should give reasons for arriving at that conclusion in order to overcome any suggestion that it was not an intentional result but a mathematical slip: Maglovski v R [2014] NSWCCA 238; BC201409197; Barrett v R [2011] NSWCCA 213; BC201107694. A judge should, in some circumstances, draw the parties’ attention to the possibility of imposing a non-parole period of more than 75 per cent in order to give the offender an opportunity to address the judge as to such an outcome where defence submissions had been made for the

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Sentencing

s 44

[5-s 44.15]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 44

finding of special circumstances and there had been no suggestion of imposing a non-parole exceeding 75 per cent during the hearing: Brennan v R [2018] NSWCCA 22; BC201800945; 25(3) Crim LN [3957]. The finding of special circumstances is a discretionary finding of fact: R v El-Hayek (2004) 144 A Crim R 90; [2004] NSWCCA 25; BC200400646 at [103]; Quayle v R [2010] NSWCCA 16; BC201000467 at [41]. The fact that in other cases special circumstances have been found because of a certain factual situation does not mean that another court must find special circumstances where the same factual situation exists: R v Holmes [2003] NSWCCA 258; BC200305376; (2003) 10 Crim LN 69 [1594]. There is no obligation to provide reasons for refusing to find “special circumstances”: R v Simpson (2001) 53 NSWLR 704; 126 A Crim R 525; [2001] NSWCCA 534; BC200108495 at [86]; R v Martin [2005] NSWCCA 190; BC200503395 at [50]. However, the Court of Criminal Appeal has found error in the failure of a judge to explain why no “special circumstances” were found where there were, in the evidence, matters that manifestly would have justified such a finding: R v Novakovic [2004] NSWCCA 437; BC200408421. It was stated in Quayle v R, above, that in a case in which there are compelling circumstances for making a finding of special circumstances and the judge is in fact asked to do so, one might expect that if the judge declines to do so he or she would provide reasons. It has been suggested by the Court of Criminal Appeal that a sentencing judge should always refer to the question of “special circumstances” in order to indicate that he or she has considered the question as to whether the non-parole period should be reduced: Brindley v R (1993) 66 A Crim R 204. However, the fact that a sentencing judge fails to indicate why the statutory provision was not varied will not readily be accepted as a basis for concluding that the judge did not turn his or her mind to the issue and cannot where the trial judge indicates that there are no special circumstances: R v Simpson (2001) 53 NSWLR 704; 126 A Crim R 525; [2001] NSWCCA 534; BC200108495 at [88]; (2002) 9 Crim LN 7 [1385]. [5-s 44.20] Parole orders Where a court imposes a sentence of three years imprisonment or less for any offence, the court must make a parole order releasing the offender on parole at the expiration of the non-parole period on such terms and conditions as the court specifies: see s 50 at [5-s 50]. It has been held that the court should not specify a date of release to parole but merely indicate that the prisoner is to be released at the expiration of the non-parole period: R v BA [2014] NSWCCA 148; BC201405995; 21(8) Crim LN [3423]. Where a court imposes a sentence of more than three years imprisonment for any offence, the court should indicate the date upon which the offender is eligible to be released on parole, which will be the day after the non-parole period expires. In such a case it is for the parole board to determine whether the offender should be released on that date and upon what conditions. [5-s 44.25] Fixing the non-parole period for standard non-parole period offences The general principles referred to at [5-s 44.10]–[5-s 44.15] are pertinent to the fixing of a non-parole period for an offence included in the standard non-parole period scheme in Div 1A of Pt 4 of the Act (ss 54A–54D). However, additional features are: (a) the quantified standard non-parole period for each offence which must be taken into account — this is a further quantified statutory reference point apart from the maximum penalty fixed by statute (see [5-s 21.1]); (b) the statutory function of a sentencing court under s 54B(2) of the Act. See annotations at [5-s 54B]. Section 44 applies to standard non-parole period offences — a finding of special circumstances under s 44(2) is an example of a matter that is “required or permitted to be taken into account by a court under any Act or rule of law” (see s 21A(1) at [5-s 21A]): R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131; BC200402624 at [109]–[113].

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CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 45]

[5-s 44.30] Record of reasons Section 44(2), like repealed s 5(3) Sentencing Act 1989 and repealed s 44(2) before it, requires a court to make a record of its reasons for a decision that the balance of the term of the sentence should exceed one-third of the non-parole period flowing from a finding of “special circumstances”. Quite apart from provisions of this type, there is a common law duty to give reasons when passing sentence: see authorities cited at [5-070]. As to the necessity to give reasons in relation to the fixing of a non-parole period see [5-s 44.15], above. [5-s 44.35] Consequence of failure to comply with s 44(2) The failure of a court to comply with s 44(2) does not invalidate the sentence: s 44(3). A failure to comply with a provision of the Act may be considered by an appeal court in any appeal against sentence even if the Act declares that the failure to comply does not invalidate the sentence: s 101A at [5-s 101A]. [5-s 44.40] Life sentence redetermination Schedule 1 to the Act at [5-Sch 1] provides for redetermination of a life sentence of imprisonment in certain circumstances. The construction and operation of provisions in Sch 1 were considered in Boyd v R [2016] NSWSC 1691 (where leave to withdraw an application was refused under cl 6A of Sch 1) and Boyd v R (No 3) [2017] NSWSC 863; BC201705235 (where application to determine the life sentence was refused).

[5-s 45] Court may decline to set non-parole period 45 (1) When sentencing an offender to imprisonment for an offence or, in the case of an aggregate sentence of imprisonment, for offences, a court may decline to set a non-parole period for the offence or offences if it appears to the court that it is appropriate to do so: (a) because of the nature of the offence to which the sentence, or of each of the offences to which an aggregate sentence relates, or the antecedent character of the offender, or (b) because of any other penalty previously imposed on the offender, or (c) for any other reason that the court considers sufficient. [subs (1) subst Act 136 of 2010 Sch 2[6], opn 14 Mar 2011; am Act 54 of 2016 Sch 1.6[1], opn 25 Oct 2016]

(1A) A court may decline to set a non-parole period for a sentence of imprisonment, or an aggregate sentence of imprisonment, for an offence or offences set out in the Table to Division 1A of this Part only if the term of the sentence is at least as long as the term of the non-parole period that the court would have set for the sentence if a non-parole period had been set in accordance with that Division. [subs (1A) insrt Act 54 of 2016 Sch 1.6[2], opn 25 Oct 2016]

(1B) Subsection (1A) does not apply in relation to the sentencing of an offender in respect of an offence: (a) which is being dealt with summarily, or (b) if the offender was under the age of 18 years at the time the offence was committed. [subs (1B) insrt Act 54 of 2016 Sch 1.6[2], opn 25 Oct 2016]

(2) If a court declines to set a non-parole period for a sentence of imprisonment or an aggregate sentence of imprisonment, it must make a record of its reasons for doing so. [subs (2) am Act 136 of 2010 Sch 2[7], opn 14 Mar 2011]

(3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions.

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Sentencing

s 45

[5-s 45]

s 45

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

(4) The failure of a court to comply with the requirements of subsection (2) with respect to a sentence does not invalidate the sentence. COMMENTARY ON SECTION 45 Standard non-parole period offences . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 45.1]

[5-s 45.1] Standard non-parole period offences Prior to the amendment of s 45(1) and the insertion of s 45(1A) in 2016, it was necessary to specify a non-parole period for a standard non-parole period offence.

[5-s 46] Court not to set non-parole period for sentence of 6 months or less 46 (1) A court may not set a non-parole period for a sentence of imprisonment if the term of the sentence is 6 months or less. (2) For the avoidance of doubt, subsection (1) does not apply to a court imposing an aggregate sentence of imprisonment in respect of 2 or more offences for a term exceeding 6 months. This subsection has effect even if the sentence that would have been imposed for any of those offences would have been 6 months or less (as referred to in section 53A(2)(b)). [subs (2) insrt Act 54 of 2016 Sch 1.6[3], opn 25 Oct 2016]

[5-s 47] Commencement of sentence 47 (1) A sentence of imprisonment commences, subject to section 71 and to any direction under subsection (2), on the day on which the sentence is imposed. [subs (1) am Act 48 of 2010 Sch 1, opn 1 Oct 2010; Act 53 of 2017 Sch 1[26], opn 24 Sep 2018]

(2) A court may direct that a sentence of imprisonment: (a) is taken to have commenced on a day occurring before the day on which the sentence is imposed, or (b) commences on a day occurring after the day on which the sentence is imposed, but only if the sentence is to be served consecutively (or partly concurrently and partly consecutively) with some other sentence of imprisonment. (3) In deciding whether or not to make a direction under subsection (2)(a) with respect to a sentence of imprisonment, and in deciding the day on which the sentence is taken to have commenced, the court must take into account any time for which the offender has been held in custody in relation to the offence or, in the case of an aggregate sentence of imprisonment, any of the offences to which the sentence relates. [subs (3) am Act 136 of 2010 Sch 2[8], opn 14 Mar 2011]

(4) The day specified in a direction under subsection (2)(b) must not be later than the day following the earliest day on which it appears (on the basis of the information currently available to the court) that the offender: (a) will become entitled to be released from custody, or (b) will become eligible to be released on parole, having regard to any other sentence of imprisonment to which the offender is subject. (5) A direction under subsection (2) (b) may not be made in relation to a sentence of imprisonment (or an aggregate sentence of imprisonment) imposed on an offender who is serving some other sentence of imprisonment by way of full-time detention if:

602

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s 47

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 47.1]

(a) a non-parole period has been set for that other sentence, and (b) the non-parole period for that other sentence has expired, and (c) the offender is still in custody under that other sentence. (6) A sentence of imprisonment (or an aggregate sentence of imprisonment) starts at the beginning of the day on which it commences or is taken to have commenced and ends at the end of the day on which it expires. [subs (6) am Act 136 of 2010 Sch 2[10], opn 14 Mar 2011]

COMMENTARY ON SECTION 47 Commencement of sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 47.1]

[5-s 47.1] Commencement of sentence Generally a sentence of imprisonment commences on the day it is imposed except where it is a sentence by way of intensive correction order, which must commence on a date no later than 21 days after the date the order was made: s 71 at [5-s 71], and sentence which is stayed in order to obtain an assessment for home detention under s 80 of the Act. Under s 47(2) the court may order that the sentence be taken to have commenced on an earlier date (even if the offender was not in custody) or at a later date if the sentence is to be served cumulatively or partly cumulatively with a sentence being served, see s 55(2). The court is to take into account any time for which the offender has been in custody for the offence: s 47(3). There is an important rule of practice that generally a court should back-date a sentence to take into account pre-sentence custody: R v McHugh (1985) 1 NSWLR 588; R v Deeble (CCA(NSW), 19 September 1991, unreported, BC9101554); R v English [2000] NSWCCA 245; BC200003829; (2000) 7 Crim LN 50 [1172]. There was a strong endorsement for the course of backdating a sentence to reflect the period of pre-sentence custody in Wiggins v R [2010] NSWCCA 30; BC201000966; (2010) 17 Crim LN 62 [2711] where it was held that it is the normal course to be adopted unless the judge indicates why that course was not appropriate in the circumstances. The failure of an explanation for a “novel approach” to taking into account time served was criticised in Eldridge v R [2011] NSWCCA 144; BC201104501; 18(7) Crim LN [2933]. The sentencing court has a discretion as to the commencement date of a sentence where the pre-sentence custody of the offender included the balance of parole arising from a breach of parole: R v Gray [2018] NSWCCA 241; BC201810001; 25(11) Crim LN [4058] applying Callaghan v R (2006) 160 A Crim R 145; [2006] NSWCCA 58; BC200601216. There is a consideration of the relevant factors that may lead a court to backdate the sentence to commence on the date of the breach of parole. The Court should also take into account any period of time spent by the offender in rehabilitation as quasi-custody and an allowance of approximately 50 per cent of the time spent will be taken into account by backdating the sentence: Hughes v R (2008) 49 MVR 420; 185 A Crim R 155; [2008] NSWCCA 48; BC200801360. The judge should take such a matter into account even if not requested to do so by the practitioner appearing for the offender: Gardiner v R [2018] NSWCCA 27; BC201801303; 25(4) Crim LN [3965]. It is not necessary that the period of quasi-custody be the subject of a court order so that a period of voluntary admission to a rehabilitation programme should be taken into account: Reddy v R (2018) 86 MVR 96; [2018] NSWCCA 212; BC201809103; 25(10) Crim LN [4045]. Sections 47 and 57 Crimes (Sentencing Procedure) Act 1999 were considered in R v Pham [2005] NSWCCA 94; BC200501606; (2005) 12 Crim LN 48 [1870] in the context of sentencing for the offence of escape lawful custody committed whilst the offender was serving balance of parole. The court has a discretion when to commence a sentence for an offence committed while the offender was on parole and where parole was revoked by reason of the commission of the offence: Callaghan v R (2006) 160 A Crim R 145; [2006] NSWCCA 58; BC200601216; (2006) 13 Crim LN 9 [2024].

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Sentencing

[subs (5) am Act 136 of 2010 Sch 2[9], opn 14 Mar 2011]

[5-s 48]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 48

[5-s 48] Information about release date 48 (1) When sentencing an offender to imprisonment for an offence, or to an aggregate sentence of imprisonment for 2 or more offences, a court must specify: (a) the day on which the sentence commences or is taken to have commenced, and (b) the earliest day on which it appears (on the basis of the information currently available to the court) that the offender will become entitled to be released from custody, or eligible to be released on parole, having regard to: (i) that and any other sentence of imprisonment to which the offender is subject, and (ii) the non-parole periods (if any) for that and any other sentence of imprisonment to which the offender is subject. Note. Example No 1: A court sentences an offender to 7 days’ imprisonment. The sentence is imposed on a Monday. The court has not set a non-parole period. The offender is not subject to any other sentence of imprisonment. In this example, the court should specify that the sentence commences on the Monday on which it is imposed and that the earliest day on which the offender will become entitled to be released from custody is the following Sunday. Example No 2: A court sentences an offender to 12 months’ imprisonment. The sentence is imposed on 5 May 2000. The court has set a non-parole period of 9 months. The offender is not subject to any other sentence of imprisonment. Because the offender has been remanded in custody for sentencing since 27 April 2000, the court has backdated the commencement of the sentence to that date. In this example, the court should specify that the sentence is taken to have commenced on 27 April 2000 and that the earliest date on which the offender will become entitled to be released on parole is 26 January 2001. Example No 3: A court sentences an offender to 2 years’ imprisonment. The sentence is imposed on 3 June 2000. The court has set a non-parole period of 18 months. The offender is subject to one other sentence of imprisonment in respect of which the offender will become eligible to be released on parole on 21 September 2000. The court has directed that the new sentence is to run consecutively with the other sentence. In this example, the court should specify that the sentence commences on 22 September 2000 and that the earliest date on which the offender will become eligible to be released on parole is 21 March 2002. [subs (1) am Act 136 of 2010 Sch 2[11], opn 14 Mar 2011]

(2) The purpose of this section is to require a court to give information about the likely effect of a sentence. (3) The failure of a court to comply with the requirements of this section with respect to a sentence does not invalidate the sentence.

[5-s 49] Restriction on term of sentence 49 (1) The term of a sentence of imprisonment (other than an aggregate sentence of imprisonment): (a) must not be more than the maximum term of imprisonment that may be imposed for the offence, and (b) must not be less than the shortest term of imprisonment (if any) that must be imposed for the offence. [subs (1) am Act 136 of 2010 Sch 2[12], opn 14 Mar 2011]

(2) The term of an aggregate sentence of imprisonment: (a) must not be more than the sum of the maximum periods of imprisonment that could have been imposed if separate sentences of imprisonment had been imposed in respect of each offence to which the sentence relates, and

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s 51A

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 51A]

(b) must not be less than the shortest term of imprisonment (if any) that must be imposed for any separate offence or, if the sentence relates to more than one such offence, must not be less than the shortest term of imprisonment that must be imposed for any of the offences. Sentencing

[subs (2) insrt Act 136 of 2010 Sch 2[13], opn 14 Mar 2011]

[5-s 50] Making of parole orders by court 50*

[s 50 rep Act 57 of 2017 Sch 3.2[1], opn 26 Feb 2018]

COMMENTARY ON REPEALED SECTION 50 Parole orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 50.1]

[5-s 50.1] Parole orders See cl 5 of the Crimes (Sentencing Procedure) Regulation 2017 at [5-10,115] concerning the form of a parole order and service of copies of the order. The section applies to each sentence imposed where an individual sentence is 3 years or less but the total aggregate sentence is more than 3 years: Cross v R (No 2) [2012] NSWCCA 234; BC201209055; 20(2) Crim LN [3173].

[5-s 51] Conditions on parole orders 51*

[s 51 rep Act 57 of 2017 Sch 3.2[2], opn 26 Feb 2018]

COMMENTARY ON REPEALED SECTION 51 Parole conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 51.1]

[5-s 51.1] Parole conditions See cl 6(1) of the Crimes (Sentencing Procedure) Regulation 2017, at [5-10,120], for consultation required before conditions as to residence or treatment are imposed on parole. See cl 6(2) of the Crimes (Sentencing Procedure) Regulation 2017, at [5-10,120], for the requirement of consent of a third party where co-operation of that person is required as a condition of parole. A court has no power to impose a condition upon parole in breach of the regulation: R v Leete (2001) 125 A Crim R 37; [2001] NSWCCA 337; BC200105346; (2001) 8 Crim LN 80 [1343], where the judge imposed a condition that the accused enter into a rehabilitation course without a probation report in accordance with cl 6. A parole condition that the offender abstain from alcohol ought not to have been made where there was no evidence that it was feasible to secure compliance with it: R v Williams (2005) 62 NSWLR 481; 152 A Crim R 405; [2005] NSWCCA 100; BC200501666; (2005) 12 Crim LN 47 [1869].

[5-s 51A] Conditions of parole as to non-association and place restriction 51A* [s 51A insrt Act 100 of 2001 s 3 and Sch 1.1[6], opn 22 July 2002; am Act 15 of 2015 Sch 3.17[2], opn 15 July 2015; rep Act 57 of 2017 Sch 3.2[3], opn 26 Feb 2018] * Note: sections 50–51B which related to court-ordered parole were repealed on 26 February 2018 by the Parole Legislation Amendment Act 2017. Statutory parole orders now apply to offenders serving sentences less than 3 years: s 158 Crimes (Administration of Sentences) Act 1999 at [24-s 158]. Parole orders made under s 50 in force immediately before the amendments are taken to be statutory parole orders.

605

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[5-s 51B]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 51B

[5-s 51B] Certain information not to be published or broadcast 51B*

[s 51B insrt Act 100 of 2001 s 3 and Sch 1.1[6], opn 22 July 2002; rep Act 57 of 2017 Sch 3.2[4], opn 26 Feb 2018]

COMMENTARY ON REPEALED SECTION 51B Law Part Codes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 25.0]

[5-s 25.0] Law Part Codes The Law Part Code for s 51B(1)(a) is 47062. The Law Part Code for s 51B(1)(b) is 47063.

[5-s 52] Court’s powers on appeal 52 (1) If an appeal is made against a conviction or sentence, the court determining the appeal: (a) may vary or rescind any non-parole period set by the sentencing court, or (b) may set a non-parole period for a sentence of imprisonment for which a non-parole period has not been set by the sentencing court. (2) Any non-parole period that is varied or set under this section must comply with the requirements of this Division. (3) This section does not limit any other power of a court in determining an appeal.

[5-s 53] Multiple sentences of imprisonment 53 (1) When a court imposes a sentence of imprisonment on an offender in relation to more than one offence, the court must (unless imposing an aggregate sentence of imprisonment in accordance with section 53A) comply with the requirements of this Division by imposing a separate sentence in relation to each offence. (2) The term, and any non-parole period, set under this Division in relation to a sentence of imprisonment is not revoked or varied by a later sentence of imprisonment that the same or some other court subsequently imposes in relation to another offence. [s 53 subst Act 136 of 2010 Sch 2[14], opn 14 Mar 2011]

COMMENTARY ON SECTION 53 Imposition of multiple sentences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 53.5]

[5-s 53.5] Imposition of multiple sentences When imposing a sentence under this section the court must undertake an assessment of the individual criminality for each offence for which sentence is being imposed: R v Brown [2012] NSWCCA 199; BC2012073329; 19(11) Crim LN [3140]. The application of the section generally was considered in R v Nykolyn [2012] NSWCCA 219; BC201208031; 19(11) Crim LN [3144], where it was held to be an error where a judge did not specify the sentence that would have been imposed for each offence. In that case RA Hulme J stressed the importance of a proper assessment of the individual sentences that would have been imposed for the purposes of assessing totality, informing the accused, the public and the appellate court so to understand the level of seriousness attributed to each offence and assist the appellate court to assess an appropriate new aggregate sentence if necessary, especially if one or more of the convictions are quashed. When sentencing under the section a court is required to take into account the extent of accumulation or concurrence of individual sentences specified for each offence when determining the aggregate sentence to be imposed: R v Rae [2013] NSWCCA 9; BC201300291; 20(4) Crim LN [3195].

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s 53A

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 53A.5]

53A (1) A court may, in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each. (2) A court that imposes an aggregate sentence of imprisonment under this section on an offender must indicate to the offender, and make a written record of, the following: (a) the fact that an aggregate sentence is being imposed, (b) the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence. [subs (2) am Act 59 of 2014 Sch 1 item 1.4[1], opn 23 Oct 2014]

(3) Subsection (2) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions. (4) The term, and any non-parole period, set under this Division in relation to an aggregate sentence of imprisonment is not revoked or varied by a later sentence of imprisonment that the same or some other court subsequently imposes in relation to another offence. (5) An aggregate sentence of imprisonment is not invalidated by a failure to comply with this section. [s 53A insrt Act 136 of 2010 Sch 2[14], opn 14 Mar 2011]

COMMENTARY ON SECTION 53A Imposition of aggregate sentences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 53A.5]

[5-s 53A.5] Imposition of aggregate sentences In JM v R [2014] NSWCCA 297; 22(2) Crim LN [3493] a number of propositions were set out based upon the provisions and cases dealing with the imposition of aggregate sentences as follows: 1. Section 53A was introduced in order to ameliorate the difficulties of applying the decision in Pearce v R (1998) 194 CLR 610; 156 ALR 684; 72 ALJR 1416; BC9804554 in sentencing for multiple offences: R v Nykolyn [2012] NSWCCA 219; BC201208031 at [31]. It offers the benefit when sentencing for multiple offences of obviating the need to engage in the laborious and sometimes complicated task of creating a “cascading or ‘stairway’ sentencing structure” when the principle of totality requires some accumulation of sentences: R v Rae [2013] NSWCCA 9; BC201300291 at [45]; Truong v R; R v Le, Nguyen v R; R v Nguyen [2013] NSWCCA 36; BC201300855 at [231]; Behman v R [2014] NSWCCA 239; BC201409192; R v MJB [2014] NSWCCA 195; BC201408161 at [55]–[57]. 2. When imposing an aggregate sentence a court is required to indicate to the offender and make a written record of the fact that an aggregate sentence is being imposed and also indicate the sentences that would have been imposed if separate sentences had been imposed instead (the indicative sentences): s 53A(2). The indicative sentences themselves should not be expressed as a separate sentencing order: R v Clarke [2013] NSWCCA 260; BC201314803 at [50]–[52]. See also Cullen v R [2014] NSWCCA 162; BC201406584 at [25]–[40]. 3. The indicative sentences must be assessed by taking into account such matters in Pt 3 or elsewhere in the Crimes (Sentencing Procedure) Act 1999 as are relevant: s 53A(2)(b). There is no need to list such matters exhaustively, but commonly encountered ones in Pt 3 include aggravating, mitigating and other factors (s 21A); reductions for guilty pleas, facilitation of the administration of justice and assistance to law enforcement authorities (ss 22, 22A and 23); and offences on a Form 1 taken into account (Pt 3 Div 3). Commonly encountered matters elsewhere in the Act are the purposes of sentencing

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Sentencing

[5-s 53A] Aggregate sentences of imprisonment

[5-s 53A.5]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 53A

in s 3A, and the requirements of s 5 as to not imposing a sentence of imprisonment unless a court is satisfied that there is no alternative and giving a further explanation for the imposition of any sentence of 6 months or less. SHR v R [2014] NSWCCA 94; BC201404288 is an example of a case where a sentencing judge took pleas of guilty into account only in relation to the aggregate sentence, and not in relation to the indicative sentence. This was held (at [42]) to be in breach of the requirement in s 53A(2)(b). Khawaja v R [2014] NSWCCA 80; BC201404948 is another example. Martin v R [2014] NSWCCA 124; BC201405388 is a case in which a sentencing judge was held (at [17]) to have correctly taken into account pleas of guilty in relation to the indicative sentences.

In JL v R [2014] NSWCCA 130; BC201405598 at [54] it was said by way of conclusion in an appeal against the asserted severity of a sentence that “[t]he starting point for the aggregate sentence of 24 years before the allowance of a discount of 25% to reflect the utilitarian value of the early pleas of guilty was not excessive”. This must be understood as a broad assessment within the conclusion rather than indicating that it is the aggregate sentence to which the discount should be applied. Stoeski v R [2014] NSWCCA 161; BC201406653 is anomalous in that at [33]–[34] it rejected a complaint that the sentencing judge had not discounted the aggregate sentence for the plea of guilty rather than rejecting the assertion that the discount applied to the aggregate sentence at all. 4. It is still necessary in assessing the indicative sentences to have regard to the requirements of Pearce v R (1998) 194 CLR 610; 156 ALR 684; 72 ALJR 1416; BC9804554. The criminality involved in each offence needs to be assessed individually. To adopt an approach of making a “blanket assessment” by simply indicating the same sentence for a number of offences is erroneous: R v Brown [2012] NSWCCA 199; BC201207329 at [17], [26]; R v Nykolyn, supra, at [32], [56]–[57]; Subramaniam v R [2013] NSWCCA 159; BC201303198 at [27]–[29]; SHR v R, supra, at [40]; R v Lolesio [2014] NSWCCA 219; BC201408696 at [88]–[89]. It has been said that s 53A(2) is “clearly directed to ensuring transparency in the process of imposing an aggregate sentence and in that connection, imposing a discipline on sentencing judges”: Khawaja v R, supra, at [18]. 5. The imposition of an aggregate sentence is not to be used to minimise the offending conduct, or obscure or obliterate the range of offending conduct or its totality: R v MJB, supra, at [58]–[60]. 6. One reason why it is important to assess individually the indicative sentences is that it assists in the application of the principle of totality. Another is that it allows victims of crime and the public at large to understand the level of seriousness with which a court has regarded an individual offence: R v Nykolyn, supra, at [58]; Subramaniam v R, supra, at [28]. A further advantage is that it assists when questions of parity of sentencing as between co-offenders arise: R v Clarke, supra, at [68], [75]. 7. Non-parole periods need not be specified in relation to indicative sentences except if they relate to an offence for which a standard non-parole period is prescribed: ss 44(2C) and 54B(4); AB v R [2014] NSWCCA 31; BC201401532 at [9]. 8. Specification of commencement dates for indicative sentences is unnecessary and is contrary to the benefits conferred by the aggregate sentencing provisions: AB v R, supra, at [10]. Doing so defeats the purpose of a court availing itself of the power to impose an aggregate sentence: Behman v R [2014] NSWCCA 239; BC201409192 at [26]. See also Cullen v R, supra, at [25]–[26]. 9. If a non-custodial sentence is appropriate for an offence that is the subject of the multiple offence sentencing task, it should be separately imposed as was done in Grealish v R [2013] NSWCCA 336; BC201316196. In my respectful view, there was

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CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 54]

error involved in Behman v R [2014] NSWCCA 239; BC201409192 where an offence with an indicative, but unspecified, non-custodial sentence was included in an aggregate sentence imposed by this Court. The provision for imposing an aggregate sentence in s 53A appears within Pt 4 of the Crimes (Sentencing Procedure) Act 1999 which is headed “Sentencing procedures for imprisonment”, and within Div 1 of that Part which is headed “Setting terms of imprisonment”. A judge should impose the sentence by first indicating the length of the head sentence and then the non-parole period but any error in this regard is at most merely technical and cannot affect the validity of the sentence imposed: Hunt v R [2017] NSWCCA 305; BC201710690; 25(2) Crim LN [3948]. An offence before the District or Supreme Court on a certificate under s 166 of the Criminal Procedure Act can be included in determining an aggregate sentence: R v Price (2016) 75 MVR 89; [2016] NSWCCA 50; BC201602330; 23(4) Crim LN [3667]. There has been consideration of the use of “fixed term” indicative sentences when imposing aggregate sentences where the fixed term represents the non-parole period, but the view adopted by the majority that such sentences were permissible, has not been universally accepted: McIntosh v R [2015] NSWCCA 184; BC201506297; 22(8) Crim LN [3572]. A judge should apply any applicable discount to the indicative sentences as well as to the aggregate sentence imposed: Sparkes v R [2015] NSWCCA 203; BC201507094; 22(8) Crim LN [3573]; see also comment at 22(8) Crim LN [3574]. It was emphasised that a discount for a plea of guilty had to be applied to each indicative sentence and it was wrong for a trial judge to average out the applicable discounts where the pleas occurred on different occasions: Bao v R [2016] NSWCCA 16; BC201600790; 23(3) Crim LN [3660]. See also Henderson v R [2016] NSWCCA 8; BC201600429; 23(3) Crim LN [3661] in respect of discounts for historic offences. Generally, as to the application of the discount for a guilty plea when imposing an aggregate sentence, see [5-s 22.1] and PG v R [2017] NSWCCA 179; BC201705719. The issue whether a discount for a plea of guilty should be applied to the aggregate sentence as well as the indicative sentences was discussed in detail in PG v R [2017] NSWCCA 179; BC201705719 where a majority of the court followed Elsaj v R [2017] NSWCCA 124; BC201704369 in holding that the discount is to be applied to the indicative sentences and not to the aggregate sentence. That decision was followed in Berryman v R [2017] NSWCCA 297; BC201710692; 25(2) Crim LN [3944].

[5-s 53B] Limitation on aggregate sentences imposed by Local Court 53B For the avoidance of doubt, the Local Court may impose an aggregate sentence of imprisonment that does not exceed 5 years. [s 53B insrt Act 54 of 2016 Sch 1.6[4], opn 25 Oct 2016]

[5-s 54] Exclusions from Division 54 This Division does not apply to the sentencing of an offender: (a) to imprisonment for life or for any other indeterminate period, or (b) to imprisonment under the Fines Act 1996 or the Habitual Criminals Act 1957, or (c) to detention under the Mental Health (Forensic Provisions) Act 1990. [s 54 am Act 79 of 2008 s 4 and Sch 3.6, opn 1 Mar 2009]

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Sentencing

s 54

[5-s 54A]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 54A

DIVISION 1A — STANDARD NON-PAROLE PERIODS [Div 1A insrt Act 90 of 2002 s 3 and Sch 1[4], opn 1 Feb 2003]

[5-s 54A] What is the standard non-parole period? 54A (1) For the purposes of this Division, the standard non-parole period for an offence is the non-parole period set out opposite the offence in the Table to this Division. (2) For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the Table to this Division that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness. [subs (2) subst Act 78 of 2013 Sch 1[2], opn 29 Oct 2013]

COMMENTARY ON SECTION 54A Standard non-parole periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Relevance of maximum penalty and standard non-parole period . .

[5-s 54A.1] [5-s 54A.5]

[5-s 54A.1] Standard non-parole periods Section 54A(2) was amended in 2013 to clarify the role of the standard non-parole period following the decision in Muldrock v R (2011) 244 CLR 120; 281 ALR 652; [2011] HCA 39; BC201107577; 18(10) Crim LN [2982]. The standard non-parole period represents the non-parole period for an offence in the middle of the range of seriousness, taking into account only the objective factors affecting the relative seriousness of that offence: s 54A(2). The standard non-parole period is a legislative guidepost to be taken into account, together with the maximum penalty, as part of the instinctive synthesis process: Muldrock v R at [27]. The standard non-parole period is to be taken into account together with other relevant considerations: s 54B(2). The court must record reasons for setting a non-parole period that is longer or shorter than the standard non-parole period: s 54B(3). However, the court is not required to record the extent to which the seriousness of the offence differs from that of an offence to which the standard non-parole period applies: s 54B(6). [5-s 54A.5] Relevance of maximum penalty and standard non-parole period Subsections 54B(2) and (3) oblige the court to take into account the full range of factors in determining the appropriate sentence for the offence and, in so doing, the court is mindful of two legislative guideposts — the maximum sentence and the standard non-parole period: Muldrock v R (2011) 281 ALR 652; 85 ALJR 1154; [2011] HCA 39; BC201107577; 18(10) Crim LN [2982] at [27].

[5-s 54B] Consideration sentencing

of

standard

non-parole

period

in

54B (1) This section applies when a court imposes a sentence of imprisonment for an offence, or an aggregate sentence of imprisonment with respect to one or more offences, set out in the Table to this Division. (2) The standard non-parole period for an offence is a matter to be taken into account by a court in determining the appropriate sentence for an offender, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender. (3) The court must make a record of its reasons for setting a non-parole period that is longer or shorter than the standard non-parole period and must identify in the record of its reasons each factor that it took into account.

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s 54B

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 54B.5]

[subs (4) am Act 59 of 2014 Sch 1 item 1.4[2], opn 23 Oct 2014]

(5) If the court indicates under subsection (4) that it would have set a non-parole period for an offence that is longer or shorter than the standard non-parole period for the offence, the court must make a record of the reasons why it would have done so and must identify in the record of its reasons each factor that it took into account. (6) A requirement under this section for a court to make a record of reasons for setting a non-parole period that is longer or shorter than a standard non-parole period does not require the court to identify the extent to which the seriousness of the offence for which the non-parole period is set differs from that of an offence to which the standard non-parole period is referable. (7) The failure of a court to comply with this section does not invalidate the sentence. [s 54B subst Act 78 of 2013 Sch 1[3], opn 29 Oct 2013]

COMMENTARY ON SECTION 54B Scope of the standard non-parole period provisions . . . . . . . . . . . . . . Sentencing for a standard non-parole period offence . . . . . . . . . . . . . Reasons for departing from the standard non-parole period . . . . . .

[5-s 54B.1] [5-s 54B.5] [5-s 54B.10]

[5-s 54B.1] Scope of the standard non-parole period provisions Division 1A applies only to sentencing for standard non-parole period offences committed on or after 1 February 2003, the date of commencement of the legislation: cl 45(1), Sch 2, Crimes (Sentencing Procedure) Act 1999 at [5-Sch 2]. The offences which carry a standard non-parole period are listed in the Table following s 54D at [5-s 54D]. However, Division 1A does not apply to sentencing of an offender: (a) to imprisonment for life or for any other indeterminate period: s 54D(1)(a); (b) to detention under the Mental Health (Forensic Provisions) Act 1990: s 54D(1)(b); (c) if the offence for which the offender is sentenced is dealt with summarily: s 54D(2). The standard non-parole provisions do not apply generally to an attempt to commit an offence listed in the Table: DAC v R [2006] NSWCCA 265; BC200606707; (2006) 13 Crim LN 76 [2097]. Some question has been raised as to whether they apply to an offence of knowingly take part in an offence under the Drug Misuse and Trafficking Act: Liu v R [2005] NSWCCA 450; BC200511590. There is some question as to whether the standard non-parole provisions apply to an offence of aiding and abetting an offence falling within the provisions: SAT v R [2009] NSWCCA 172; BC200905662; (2009) 16 Crim LN 115 [2605]. [5-s 54B.5] Sentencing for a standard non-parole period offence Section 54A(2) was amended in 2013 to clarify the standard non-parole period following the decision in Muldrock v R (2011) 244 CLR 120; 281 ALR 652; [2011] HCA 39; BC201107577; 18(10) Crim LN [2982]. The standard non-parole period represents the non-parole period for an offence in the middle of the range of seriousness, taking into account only the objective factors affecting the relative seriousness of that offence: s 54A(2). The standard non-parole period is a legislative guidepost to be taken into account, together with the maximum penalty, as part of the instinctive synthesis process: Muldrock v R at [27]. The standard non-parole period is to be taken into account together with other relevant considerations: s 54B(2). The court must record reasons for setting a non-parole period that is longer or shorter

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Sentencing

(4) When determining an aggregate sentence of imprisonment for one or more offences, the court is to indicate and make a written record of, for those offences to which a standard non-parole period applies, the non-parole period that it would have set for each such offence to which the aggregate sentence relates had it set a separate sentence of imprisonment for that offence.

[5-s 54B.5]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 54B

than the standard non-parole period: s 54B(3). However, the court is not required to record the extent to which the seriousness of the offence differs from that of an offence to which the standard non-parole period applies: s 54B(6). The application of the amended sections was considered in Tepania v R [2018] NSWCCA 247; BC201810350; 25(11) Crim LN [4057] where it was emphasised that it was the sections that were to be applied and the decision in Muldrock was to be read subject to the legislative amendments. It was emphasised, referring to Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118; BC201103533, that an assessment of the objective seriousness of the offence was a significant part of the sentencing process for all offences, whether or not a standard non-period applied. It was held by Johnson J at [110] that the following propositions apply to sentencing under the amended sections: (a) s 54B applies wherever a court imposes a sentence of imprisonment for a standard non-parole period offence and s 54B must be read as a whole: Muldrock v R at 131–132 [26]; (b) the standard non-parole period is a matter to be taken into account by a court as part of a single-stage (and not two-stage) process “in determining the appropriate sentence for an offender”, without limiting the matters that are otherwise required or permitted to be taken into account in the process of instinctive synthesis: s 54B(2); Muldrock v R at 131–132 [26]; (c) the concept of a standard non-parole period, as explained in s 54A(2), is an abstract one — it includes only “the objective factors affecting the relative seriousness of that offence” and “is in the middle of the range of seriousness”; (d) in construing s 54B as a whole, it is important to keep in mind the new s 54B(6) — a sentencing court is not required to identify the extent to which the seriousness of the offence in question differs from the abstract, notional or theoretical offence referred to in s 54A(2) — a process of comparing and contrasting the actual offence with the abstract one is not necessary; (e) an assessment of the objective gravity of the offence is necessary as required at common law (see [107]–[108] above), but the sentencing Judge is not required to undertake a process of identifying features of the offence which were taken into account (or not taken into account) in considering the role of the standard non-parole period in the particular case; (f) the task of the sentencing court is to take into account all factors which bear upon the process of instinctive synthesis in the particular case (s 54B(2)) including the two legislative guideposts constituted by the maximum penalty and the standard non-parole period: Muldrock v R at 132 [27]. It was held further: [112] In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: Neal v R (1982) 149 CLR 305; [1982] HCA 55 at 324–325 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v R (2001) 209 CLR 1; [2001] HCA 67 at 55–56 [171]–[172] (Callinan J).

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CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 54C.10]

[5-s 54B.10] Reasons for departing from the standard non-parole period Section 54B(3) requires a court to make a record of its reasons for setting a non-parole period that is longer or shorter than the standard non-parole period, including reasons for each factor that it took into account. Following 2013 amendments to ss 54A and 54B, a requirement to make a record of reasons for setting a non-parole period does not require the court to identify the extent to which the seriousness of the offence for which the non-parole period is set differs from that of an offence to which the standard non-parole period is referable: s 54B(6).

[5-s 54C] Court to give reasons if non-custodial sentence imposed 54C (1) If the court imposes a non-custodial sentence for an offence set out in the Table to this Division, the court must make a record of its reasons for doing so. The court must identify in the record of its reasons each mitigating factor that it took into account. (2) The failure of a court to comply with this section does not invalidate the sentence. (3) In this section: non-custodial sentence means a sentence referred to in Division 3 of Part 2 or a fine. COMMENTARY ON SECTION 54C Imposition of non-custodial sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . Consequence of failure to comply with s 54C . . . . . . . . . . . . . . . . . . . Non-custodial sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 54C.1] [5-s 54C.5] [5-s 54C.10]

[5-s 54C.1] Imposition of non-custodial sentence If the court imposes a non-custodial sentence for an offence in Division 1A of Part 4, the court must make a record of its reasons for doing so, including identification of each mitigating factor that it took into account: s 54C(1). The section requires more than simply giving reason for the sentence imposed, but the court must explain why it is that despite the fact that the offence falls within the standard non-parole provisions, it is appropriate to impose a sentence without a non-parole period: see R v Thawer [2009] NSWCCA 158; BC200904895; (2009) 16 Crim LN 97 [2583], where a suspended sentence was imposed. [5-s 54C.5] Consequence of failure to comply with s 54C The failure of a court to comply with s 54C does not invalidate the sentence: s 54C(2). A failure to comply with a provision of the Act may be considered by an appeal court in any appeal against sentence even if the Act declares that the failure to comply does not invalidate the sentence: s 101A at [5-s 101A]. [5-s 54C.10] Non-custodial sentence Section 54C(3) provides, in effect, that a “non-custodial sentence” means: (a) a community service order: s 8 at [5-s 8]; (b) a good behaviour bond: s 9 at [5-s 9]; (c) a dismissal or conditional discharge, without proceeding to conviction: s 10 at [5-s 10]; (d) an order deferring sentence for up to 12 months for rehabilitation or other purposes: s 11 at [5-s 11]; (e) a suspended sentence: s 12 at [5-s 12]; (f) a fine: s 54C(3); s 15 at [5-s 15].

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Sentencing

s 54C

[5-s 54D]

s 54D

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

[5-s 54D] Exclusions from Division 54D (1) This Division does not apply to the sentencing of an offender: (a) to imprisonment for life or for any other indeterminate period, or (b) to detention under the Mental Health (Forensic Provisions) Act 1990. [subs (1) am Act 79 of 2008 s 4 and Sch 3.6, opn 1 Mar 2009]

(2) This Division does not apply if the offence for which the offender is sentenced is dealt with summarily. (3) This Division does not apply to the sentencing of an offender in respect of an offence if the offender was under the age of 18 years at the time the offence was committed. [subs (3) insrt Act 105 of 2008 s 4 and Sch 2, opn 1 Jan 2009]

Table

Standard non-parole periods

Item No 1A

Offence Murder — where the victim was a police officer, emergency services worker, correctional officer, judicial officer, council law enforcement officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim’s occupation or voluntary work Murder — where the victim was a child under 18 years of age Murder — in other cases Section 26 of the Crimes Act 1900 (conspiracy to murder) Sections 27, 28, 29 or 30 of the Crimes Act 1900 (attempt to murder) Section 33 of the Crimes Act 1900 (wounding etc with intent to do bodily harm or resist arrest) Section 33A(1) of the Crimes Act 1900 (discharging a firearm with intent to cause grievous bodily harm) Section 33A(2) of the Crimes Act 1900 (discharging a firearm with intent to resist arrest or detention) Section 35(1) of the Crimes Act 1900 (reckless causing of grievous bodily harm in company) Section 35(2) of the Crimes Act 1900 (reckless causing of grievous bodily harm) Section 35(3) of the Crimes Act 1900 (reckless wounding in company) Section 35(4) of the Crimes Act 1900 (reckless wounding) Section 60(2) of the Crimes Act 1900 (assault of police officer occasioning bodily harm) Section 60(3) of the Crimes Act 1900 (wounding or inflicting grievous bodily harm on police officer) Section 61I of the Crimes Act 1900 (sexual assault) Section 61J of the Crimes Act 1900 (aggravated sexual assault)

1B 1 2 3 4 4AA 4AB 4A 4B 4C 4D 5 6 7 8

614

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Standard nonparole period 25 years

25 years 20 years 10 years 10 years 7 years 9 years 9 years 5 years 4 years 4 years 3 years 3 years 5 years 7 years 10 years

CRIMES (SENTENCING PROCEDURE) ACT 1999

Table

Standard non-parole periods

Item No 9

Offence Section 61JA of the Crimes Act 1900 (aggravated sexual assault in company) Section 61KD(1) of the Crimes Act 1900 (aggravated sexual touching) Section 66DA of the Crimes Act 1900 (sexual touching — child under 10) Section 66A of the Crimes Act 1900 (sexual intercourse — child under 10) Section 66B of the Crimes Act 1900 (attempt, or assault with intent, to have sexual intercourse with a child under 10 years) Section 66C(1) of the Crimes Act 1900 (sexual intercourse with a child 10–14 years) Section 66C(2) of the Crimes Act 1900 (aggravated sexual intercourse with a child 10–14 years) Section 66C(4) of the Crimes Act 1900 (aggravated sexual intercourse with a child 14–16 years) Section 66EB(2) of the Crimes Act 1900 (procure a child under 14 years for unlawful sexual activity) Section 66EB(2) of the Crimes Act 1900 (procure a child 14–16 years for unlawful sexual activity) Section 66EB(2A) of the Crimes Act 1900 (meet a child under 14 years following grooming) Section 66EB(2A) of the Crimes Act 1900 (meet a child 14–16 years following grooming) Section 66EB(3) of the Crimes Act 1900 (groom a child under 14 years for unlawful sexual activity) Section 66EB(3) of the Crimes Act 1900 (groom a child 14–16 years for unlawful sexual activity) Section 91D(1) of the Crimes Act 1900 (induce a child under 14 years to participate in child prostitution) Section 91E(1) of the Crimes Act 1900 (obtain benefit from child prostitution, child under 14 years) Section 91G(1) of the Crimes Act 1900 (use a child under 14 years for child abuse material purposes) Section 93GA(1) of the Crimes Act 1900 (fire a firearm at a dwelling-house or other building with reckless disregard for the safety of any person) Section 93GA(1A) of the Crimes Act 1900 (fire a firearm, during a public disorder, at a dwelling-house or other building with reckless disregard for the safety of any person) Section 93GA(1B) of the Crimes Act 1900 (fire a firearm, in the course of an organised criminal activity, at a dwelling-house or other building with reckless disregard for the safety of any person) Section 98 of the Crimes Act 1900 (robbery with arms etc and wounding)

9A 9B 10 10A 10B 10C 10D 10E 10F 10G 10H 10I 10J 10K 10L 10M 10N

10O

10P

11

615

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[5-s 54D] Standard nonparole period 15 years 5 years 8 years 15 years 10 years 7 years 9 years 5 years 6 years 5 years 6 years 5 years 5 years 4 years 6 years 6 years 6 years 5 years

6 years

6 years

7 years

Sentencing

s 54D

[5-s 54D]

s 54D

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Table

Standard non-parole periods

Item No

Offence

12

Section 112(2) of the Crimes Act 1900 (breaking etc into any house etc and committing serious indictable offence in circumstances of aggravation)

5 years

13

Section 112(3) of the Crimes Act 1900 (breaking etc into any house etc and committing serious indictable offence in circumstances of special aggravation)

7 years

14

Section 154C(1) of the Crimes Act 1900 (taking motor vehicle or vessel with assault or with occupant on board)

3 years

15

Section 154C(2) of the Crimes Act 1900 (taking motor vehicle or vessel with assault or with occupant on board in circumstances of aggravation)

5 years

15A

Section 154G of the Crimes Act 1900 (organised car or boat rebirthing activities)

4 years

15B

Section 203E of the Crimes Act 1900 (bushfires)

9 years

15C

Section 23(2) of the Drug Misuse and Trafficking Act 1985 (cultivation, supply or possession of prohibited plants), being an offence that involves not less than the large commercial quantity (if any) specified for the prohibited plant concerned under that Act

10 years

16

Section 24(2) of the Drug Misuse and Trafficking Act 1985 (manufacture or production of commercial quantity of prohibited drug), being an offence that:

10 years

17

18

19

(a)

does not relate to cannabis leaf, and

(b)

if a large commercial quantity is specified for the prohibited drug concerned under that Act, involves less than the large commercial quantity of that prohibited drug

Section 24(2) of the Drug Misuse and Trafficking Act 1985 (manufacture or production of commercial quantity of prohibited drug), being an offence that: (a)

does not relate to cannabis leaf, and

(b)

if a large commercial quantity is specified for the prohibited drug concerned under that Act, involves not less than the large commercial quantity of that prohibited drug

Section 25(2) of the Drug Misuse and Trafficking Act 1985 (supplying commercial quantity of prohibited drug), being an offence that: (a)

does not relate to cannabis leaf, and

(b)

if a large commercial quantity is specified for the prohibited drug concerned under that Act, involves less than the large commercial quantity of that prohibited drug

Section 25(2) of the Drug Misuse and Trafficking Act 1985 (supplying commercial quantity of prohibited drug), being an offence that: (a)

does not relate to cannabis leaf, and

616

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Standard nonparole period

15 years

10 years

15 years

Table

Standard non-parole periods

Item No

Offence (b) if a large commercial quantity is specified for the prohibited drug concerned under that Act, involves not less than the large commercial quantity of that prohibited drug Section 7 of the Firearms Act 1996 (unauthorised possession or use of firearms) Section 51(1A) or (2A) of the Firearms Act 1996 (unauthorised sale of prohibited firearm or pistol) Section 51B of the Firearms Act 1996 (unauthorised sale of firearms on an ongoing basis) Section 51D(2) of the Firearms Act 1996 (unauthorised possession of more than 3 firearms any one of which is a prohibited firearm or pistol) Section 7 of the Weapons Prohibition Act 1998 (unauthorised possession or use of prohibited weapon) — where the offence is prosecuted on indictment

20 21 22 23 24

[5-s 55]

CRIMES (SENTENCING PROCEDURE) ACT 1999

Standard nonparole period

4 years 10 years 10 years 10 years 5 years

[s 54D am Act 27 of 2006 s 3 and Sch 1[3], opn 26 May 2006; Act 50 of 2007 s 3 and Sch 1[8]–[14], opn 1 Jan 2008; Act 105 of 2008 s 4 and Sch 2, opn 1 Jan 2009; Act 27 of 2009 Sch 1, opn 19 May 2009; Act 28 of 2009 s 3, opn 9 June 2009; Act 13 of 2015 Sch 2[1], [2], opn 29 June 2015; Act 17 of 2015 Sch 1[1]–[4], opn 21 Aug 2015; Act 33 of 2018 Sch 3[7], [8], opn 1 Dec 2018; Act 10 of 2019 Sch 1.8[1], opn 26 Sep 2019]

DIVISION 2 — CONCURRENT AND CONSECUTIVE SENTENCES

[5-s 55] Sentences for offences generally 55 (1) In the absence of a direction under this section, a sentence of imprisonment imposed on an offender: (a) who, when being sentenced, is subject to another sentence of imprisonment that is yet to expire, or (b) in respect of whom another sentence of imprisonment has been imposed in the same proceedings, is to be served concurrently with the other sentence of imprisonment and any further sentence of imprisonment that is yet to commence. (2) The court imposing the sentence of imprisonment may instead direct that the sentence is to be served consecutively (or partly concurrently and partly consecutively) with the other sentence of imprisonment or, if there is a further sentence of imprisonment that is yet to commence, with the further sentence of imprisonment. (3) A direction under this section has effect according to its terms. (4) In this section, a reference to a sentence of imprisonment is taken to be a reference to: (a) the non-parole period of the sentence, in the case of a sentence for which a non-parole period has been set, or (b) the term of the sentence, in the case of a sentence for which a non-parole period has not been set. (5) This section does not apply to:

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Sentencing

s 55

[5-s 55]

s 55

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

(a) a sentence of imprisonment imposed on an offender in relation to an offence involving an assault, or any other offence against the person, committed by the offender while a convicted inmate of a correctional centre, or (a1) a sentence of imprisonment imposed on an offender in relation to an offence involving an assault, or any other offence against the person, against a juvenile justice officer committed by the offender while a person subject to control, or (b) a sentence of imprisonment imposed on an offender in relation to an offence involving an escape from lawful custody committed by the offender while an inmate of a correctional centre (whether or not the escape was from a correctional centre). [subs (5) am Act 117 of 2001 s 3 and Sch 5[10], opn 21 Dec 2001; Act 130 of 2002 s 3 and Sch 5[2], opn 13 Jan 2003]

COMMENTARY ON SECTION 55 Concurrent and cumulative sentences . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 55.1]

[5-s 55.1] Concurrent and cumulative sentences Generally it is a matter for the discretion of the sentencing judge whether to order that sentences be concurrent, partially cumulatively or totally cumulative and that discretion is to be exercised in accordance with established principle: R v Hammoud (2000) 118 A Crim R 66; [2000] NSWCCA 540; BC200008012. There is no general rule that determines whether sentences ought be imposed concurrently or consecutively. The issue is to be determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality of the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality: Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1; BC200700152 at [27]; Vaovasa v R (2007) 174 A Crim R 116; [2007] NSWCCA 253; BC200707303 at [15]. See generally R v XX [2009] NSWCCA 115; BC200902934 where the various cases are summarised in the judgment of Hall J. It is more likely though that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both: Cahyadi v R, above. The fact that the same motive was involved in each of the offences does not mean that concurrent sentences should be imposed: R v Spiero (1979) 22 SASR 543. Simply because offences are committed simultaneously does not mean that the sentences should be concurrent if the offences are in fact distinct and separate: Shaw v R (1989) 39 A Crim R 343; BC8901124; R v Cicekdag (2004) 150 A Crim R 299; [2004] NSWCCA 357; BC200408084; Cahyadi v R, above; Nguyen v R [2007] NSWCCA 14; BC200700369. Offences involving assaults or offences against the person committed by persons serving a sentence are generally to be served cumulatively to the sentence being served: s 56(2) or to sentences for escape: s 57. However, the fundamental principle is that the sentence passed should reflect the total criminality for which the offender is to be sentenced, whether the sentences are made concurrent or cumulative: Attorney-General v Tichy (1982) 30 SASR 84; Reynolds v R (1983) 10 A Crim R 30; Moyse v R (1988) 38 A Crim R 169; BC8800125. The principle of totality may require the reduction in the otherwise appropriate sentence for an offence if it were considered separately: R v Holder [1983] 3 NSWLR 245; (1983) 13 A Crim R 375; Johnson v R (2004) 205 ALR 346; 78

618

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CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 55.1]

ALJR 616; [2004] HCA 15; BC200401366; R v Riddell [2009] NSWCCA 96; BC200902409 at [72]. There are limitations upon the power of the Local Court to impose cumulative sentences, see at [5-s 58.1]. In Pearce v R (1998) 194 CLR 610; 156 ALR 684; [1998] HCA 57; BC9804554 (1998) 5 Crim LN 70 [902] it was held that a court imposing a sentence for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation and concurrence as well as totality. This means that except in cases of multiple offence committed as part of a single discrete episode of criminality, the sentence for individual offences should be determined without reference to the other offences; R v Hammoud, above. In R v AEM (Snr) [2002] NSWCCA 58; BC200200785 this was described as a fundamental sentencing principle. The practice of increasing a sentence on one count to reflect the totality of the criminality of all offences before the court is not a correct approach: R v Itamua [2000] NSWCCA 502; BC200007658 (2001) 8 Crim LN 5 [1239]; R v Merrin (2007) 174 A Crim R 100; [2007] NSWCCA 255; BC200707304 at [37]. The principal of totality can be achieved either by imposing the appropriate sentence for each offence and making them wholly or partially concurrent or by lowering the individual sentences: Mill v R (1988) 166 CLR 59; 83 ALR 1; 36 A Crim R 468; BC8802639. There is nothing inconsistent between this decision and Pearce: Johnson v R (2004) 205 ALR 346; [2004] HCA 15; BC200401366, the judge is to be allowed as much flexibility in sentencing as is consonant with consistency of approach and the statutory regime. In applying Pearce there is no need for the court to impose separate commencing dates for each offence and the offences may be grouped together and made concurrent, cumulative or partly cumulative in order to achieve the ultimate sentence that is appropriate to the total criminality before the court: R v Bahsa (2003) 138 A Crim R 245; [2003] NSWCCA 36; BC200301018; 10 Crim LN 21 [1534]. There may be a need to accumulate sentences in order to strike a proper balance between the principal of totality and the sentences to be imposed for particular counts: R v Bavadra (2000) 115 A Crim R 152; [2000] NSWCCA 292; BC200005331. Where an offence is committed in breach of a court order such as bail or a bond, then the sentence for that offence will normally be cumulative: R v Kain (1985) 38 SASR 309 at 312; R v Gills [1986] 1 Qd R 459; (1986) 22 A Crim R 115. It has been held that cumulative sentences were appropriate where the offender was being sentenced for two offences one being an act intending to pervert the course of justice in respect of the other offence notwithstanding that they might be considered to be part of the same course of conduct because the purpose of punishment were different in each case: Harrigan v R (2005) 45 MVR 352; [2005] NSWCCA 449; BC200511816; (2006) 13 Crim LN 158 [2007]. It will usually be an error to impose totally concurrent sentences in respect of completely disparate offences: R v Vaa [2006] NSWCCA 44; BC200601076; (2006) 13 Crim LN 159 [2009] (suppressed by the court). It has been held that a compelling explanation should be given for the imposition of concurrent sentences for offences that are distinct and separate criminal acts: R v Booth [2014] NSWCCA 156; BC201406807; 21(10) Crim LN [3444]. This is a special need to have a proper degree of accumulation where there are different victims of offences of a similar kind, such as child sexual assault offences: R v Gommeson [2014] NSWCCA 159. But even offences committed as part of the same transaction or criminality made need to be met with cumulative or partially accumulative sentences in order to reflect the totality of the criminality involved in the commission of the offences, so that cumulative sentence may be imposed for sexual assault offences committed as part of the same course of conduct: R v Gorman (2002) 137 A Crim R 326; [2002] NSWCCA 516; BC200208039; (2003) 10 Crim LN 5 [1507], and dangerous driving where more than one death results: R v Janceski (No 2) (2005) 44 MVR 328; [2005] NSWCCA 288; BC200506070. It has been held that the court has power to direct an accumulation of sentence where the previous sentence or sentences were passed in respect of offences under Commonwealth law dealt with by a State court exercising federal jurisdiction: Derriman v Slattery [1982] 1 NSWLR 214; (1982) 41 ALR 482; 61 FLR 230.

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Sentencing

s 55

[5-s 55.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 55

No additional sentence can be served cumulatively upon a life sentence: R v Farlow [1980] 2 NSWLR 166; (1979) 2 A Crim R 266; R v Jolly [1982] VR 46. Where one or more sentences are made cumulative upon another sentence it may be necessary to find that special circumstances exist in relation to the last sentence in order to preserve the statutory relationship between the overall head sentence and the overall minimum term to be served before release to parole. See generally at [5-s 44.15].

[5-s 56] Sentences for offences involving assault by convicted inmate 56 (1) This section applies to: (a) a sentence of imprisonment imposed on an offender in relation to an offence involving an assault, or any other offence against the person, committed by the offender while a convicted inmate of a correctional centre, or (b) a sentence of imprisonment imposed on an offender in relation to an offence involving an assault, or any other offence against the person, against a juvenile justice officer committed by the offender while a person subject to control. [subs (1) subst Act 130 of 2002 s 3 and Sch 5[3], opn 13 Jan 2003]

(2) In the absence of a direction under this section, a sentence of imprisonment imposed on an offender: (a) who, when being sentenced, is subject to another sentence of imprisonment that is yet to expire, or (b) in respect of whom another sentence of imprisonment has been imposed in the same proceedings, is to be served consecutively with the other sentence of imprisonment or, if there is a further sentence of imprisonment yet to commence, with that further sentence. (3) The court imposing the sentence of imprisonment may instead direct that the sentence is to be served concurrently (or partly concurrently and partly consecutively) with the other sentence of imprisonment and any further sentence of imprisonment that is yet to commence. (3A) Such a direction may not be given in relation to: (a) an offence involving an assault, or other offence against the person, against a correctional officer committed by the offender while a convicted inmate of a correctional centre, or (b) an offence involving an assault, or other offence against the person, against a juvenile justice officer committed by the offender while a person subject to control, unless the court is of the opinion that there are special circumstances justifying such a direction. [subs (3A) insrt Act 130 of 2002 s 3 and Sch 5[4], opn 13 Jan 2003]

(4) A direction under this section has effect according to its terms. (5) In this section, a reference to a sentence of imprisonment is taken to be a reference to: (a) the non-parole period of the sentence, in the case of a sentence for which a non-parole period has been set, or (b) the term of the sentence, in the case of a sentence for which a non-parole period has not been set. (6) In this section, a reference to another sentence of imprisonment, other sentence

620

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s 57

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 57.1]

of imprisonment or further sentence of imprisonment is taken to include a reference to a period for which a person is required to be detained in a detention centre under an order referred to in section 33(1)(g) of the Children (Criminal Proceedings) Act 1987. COMMENTARY ON SECTION 56 Offences committed in custody . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 56.1]

[5-s 56.1] Offences committed in custody The importance of a sentence for an offence committed in custody being accumulated on an existing sentence was emphasised in R v Jeremiah [2016] NSWCCA 241; BC201609289; 24(1) Crim LN [3785].

[5-s 57] Sentences for offences involving escape by inmates 57 (1) This section applies to a sentence of imprisonment imposed on an offender in relation to an offence involving an escape from lawful custody committed by the offender while an inmate of a correctional centre (whether or not the escape was from a correctional centre). [subs (1) am Act 117 of 2001 s 3 and Sch 5[11], opn 21 Dec 2001]

(1A) A sentence of imprisonment to which this section applies must be imposed after any other sentence of imprisonment that is imposed in the same proceedings. [subs (1A) insrt Act 136 of 2010 Sch 1.2[11], opn 14 Mar 2011]

(2) A sentence of imprisonment to which this section applies imposed on an offender: (a) who, when being sentenced, is subject to another sentence of imprisonment that is yet to expire, or (b) in respect of whom another sentence of imprisonment has been imposed in the same proceedings, is to be served consecutively with the other sentence of imprisonment or, if there is a further sentence of imprisonment yet to commence, with that further sentence. [subs (2) am Act 136 of 2010 Sch 1.2[12], opn 14 Mar 2011]

(3) In this section, a reference to a sentence of imprisonment is taken to be a reference to: (a) the non-parole period of the sentence, in the case of a sentence for which a non-parole period has been set, or (b) the term of the sentence, in the case of a sentence for which a non-parole period has not been set. COMMENTARY ON SECTION 57 Sentences for offences of escape by prisoners . . . . . . . . . . . . . . . . . . .

[5-s 57.1]

[5-s 57.1] Sentences for offences of escape by prisoners As to the offence of escaping lawful custody see Crimes Act s 310D at [8-s 310D]. The section requires that the court sentencing an offender for escape from a correctional centre must impose a sentence for the offence which is to be served cumulatively upon any sentence being served at the time of sentence or any sentence which has been imposed in the same proceedings or upon a further sentence which is yet to commence. Sections 47 and 57 Crimes (Sentencing Procedure) Act 1999 were considered in R v Pham [2005] NSWCCA 94; BC200501606; (2005) 12 Crim LN 48 [1870] in the context of sentencing for the offence of escape lawful custody committed whilst the offender was serving balance of parole.

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Sentencing

[subs (6) insrt Act 130 of 2002 s 3 and Sch 5[5], opn 13 Jan 2003]

[5-s 57.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 57

The importance of considering the fact of the accumulation of sentences by reason of a sentence for escape when determining whether there are special circumstances was stressed in Mattar v R [2012] NSWCCA 98; BC201203260; 19(6) Crim LN [3079].

[5-s 58] Limitation on consecutive sentences imposed by Local Court 58 (1) The Local Court may not impose a new sentence of imprisonment to be served consecutively (or partly concurrently and partly consecutively) with an existing sentence of imprisonment if the date on which the new sentence would end is more than 5 years after the date on which the existing sentence (or, if more than one, the first of them) began. [subs (1) am Act 94 of 2007 s 4 and Sch 3, opn 6 July 2009]

(2) Any period for which an existing sentence has been extended under this or any other Act is to be disregarded for the purposes of this section. (3) This section does not apply if: (a) the new sentence relates to: (i) an offence involving an escape from lawful custody, or (ii) an offence involving an assault or other offence against the person, being an offence committed (while the offender was a convicted inmate) against a correctional officer or (while the offender was a person subject to control) against a juvenile justice officer, and (b) either: (i) the existing sentence (or, if more than one, any of them) was imposed by a court other than the Local Court or the Children’s Court, or (ii) the existing sentence (or, if more than one, each of them) was imposed by the Local Court or the Children’s Court and the date on which the new sentence would end is not more than 5 years and 6 months after the date on which the existing sentence (or, if more than one, the first of them) began. [subs (3) am Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009]

(3A) In addition, this section does not apply if the new sentence relates to an offence against the regulations under the Crimes (Administration of Sentences) Act 1999) involving: (a) introducing or supplying (or attempting to introduce or supply) a drug, alcohol or other substance prohibited by those regulations into a place of detention, or (b) introducing or supplying (or attempting to introduce or supply) syringes into a place of detention, or (c) possessing an offensive weapon or instrument within the meaning of the Crimes Act 1900, or (d) possessing a mobile phone, a mobile phone SIM card or mobile phone charger (or any part of these). [subs (3A) insrt Act 68 of 2017 Sch 2.10[2], opn 6 Dec 2017]

(4) In this section: existing sentence means an unexpired sentence, and includes any expired sentence or unbroken sequence of expired sentences with which the unexpired sentence is being served consecutively (or partly concurrently and partly consecutively).

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s 59

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 59.5]

sentence of imprisonment includes an order referred to in section 33(1)(g) of the Children (Criminal Proceedings) Act 1987. COMMENTARY ON SECTION 58 Consecutive sentences in the Local Court . . . . . . . . . . . . . . . . . . . . . . .

[5-s 58.1]

[5-s 58.1] Consecutive sentences in the Local Court The present s 58 was enacted in 2003 and commenced on 14 February 2004. Section 58 applies to offences committed before that date where proceedings for the offence were commenced on or after 14 February 2004: cl 51(2), Schedule 2, Crimes (Sentencing Procedure) Act 1999 at [5-Sch 2]. The previous s 58 continues to apply to offences for which proceedings had commenced before its substitution on 14 February 2004: cl 51(1), Schedule 2, Crimes (Sentencing Procedure) Act 1999 at [5-Sch 2]. The previous s 58 was considered in R v Clayton (1997) 42 NSWLR 268; 4 Crim LN 62 at [74] where it was held that, where there are two existing sentences in a row, s 58 prohibits any further sentence or sentences to follow if that is done while the first sentence is being served. However, a third cumulative sentence could be imposed if the first sentence had expired and the prisoner was serving a second cumulative sentence. The section has no application to the situation where the District Court is sentencing for an indictable offence as well as an offence under s 166 of the Criminal Procedure Act by imposing an aggregate sentence for the two offences and the indicative sentence for the s 166 offence is made cumulative on a the indicative sentence for the indictable offence: Alesbhi v R; Esbhi v R [2018] NSWCCA 30; BC201801504; 25(4) Crim LN [3967]. This is because there is no sentence imposed for either of the offences individually but only an aggregate sentence that reflects the criminality of the two offences.

[5-s 59] Court may vary commencement of sentence on quashing or varying other sentence 59 (1) A court that quashes or varies a sentence of imprisonment imposed on a person (on appeal or otherwise) may vary the date of commencement of any other sentence that has been imposed on that person by that or any other court. (2) If a person is subject to two or more sentences, this section applies to each of them. (3) A court may vary a sentence under this section on its own initiative or on the application of a party to the proceedings on the quashing or variation of the other sentence. (4) An appeal does not lie merely because the date of commencement of a sentence is varied under this section. (5) The term of a sentence, or the non-parole period of a sentence, cannot be varied under this section. [s 59 am Act 27 of 2003 Sch 6[2]–[5], opn 8 July 2003]

COMMENTARY ON SECTION 59 Scope of section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 59.5]

[5-s 59.5] Scope of section The scope and operation of s 59 was considered in Makarov v R (No 4) [2008] NSWCCA 341; BC200813578 at [9] where it was said that the court is exercising a narrow and essentially mechanical task of varying the date of commencement of sentence, and does not involve the court proceeding as if on an application for leave to appeal against sentence under ss 5(1)(c) and 6(3) of the Criminal Appeal Act 1912.

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Sentencing

[s 58 subst Act 85 of 2003 s 3 and Sch 2[1], opn 14 Feb 2004]

[5-s 59.5]

s 59

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

In Allan v R (No 2) [2011] NSWCCA 27; BC201100884; 18(4) Crim LN 49 [2879] it was held that the operation of the section is not limited to cases where there would be a hiatus between sentences imposed upon the offender; it is a general power: applying R v Walsh [2004] NSWCCA 428; BC200408411.

[5-s 60] Application imprisonment

of

Division

to

interstate

sentences

of

60 This Division applies to unexpired sentences passed outside New South Wales, and being served or to be served within New South Wales, in the same way as it applies to unexpired sentences passed within New South Wales. DIVISION 2A — PROVISIONAL SENTENCING FOR CHILD OFFENDERS [Div 2A insrt Act 7 of 2013 Sch 1[1], opn 25 Mar 2013]

[5-s 60A] Definitions 60A In this Division: case plan means a plan of management for an offender. final sentence means a sentence imposed as a final sentence under this Division. ordinary sentence means a sentence imposed otherwise than under the powers conferred by this Division. person responsible for the detention of the offender means: (a) in the case of an offender detained or proposed to be detained in a detention centre — the Secretary of the Department of Justice, or (b) in the case of an offender detained or proposed to be detained in a mental health facility (within the meaning of the Mental Health Act 2007) — the Secretary of the Ministry of Health, or (c) in the case of an offender detained or proposed to be detained in a correctional centre — the Commissioner of Corrective Services or, if no person holds that position, the Secretary of the Department of Justice. [def am Act 15 of 2015 Sch 3.17[3], [4], opn 15 July 2015]

progress review — see section 60E. provisional sentence means a sentence imposed as a provisional sentence under this Division.

[5-s 60B] Power to impose provisional sentence 60B (1) A court that imposes a sentence on an offender for the offence of murder may impose a sentence for that offence as a provisional sentence if: (a) the offender was less than 16 years of age when the offence was committed, and (b) the offender is less than 18 years of age when the provisional sentence is imposed, and (c) the sentence proposed to be imposed for the offence is or includes a term of imprisonment, and (d) the court is of the opinion that it is not appropriate to impose an ordinary sentence on the offender because the information presently available does not

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CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 60D]

permit a satisfactory assessment of whether the offender has or is likely to develop a serious personality or psychiatric disorder, or a serious cognitive impairment, such that the court cannot satisfactorily assess either or both of the following matters: (i) whether the offender is likely to re-offend, (ii) the offender’s prospects of rehabilitation. (2) A court may impose a sentence as a provisional sentence of its own motion or on application of a party to the proceedings. (3) A reference in this Division to a sentence for the offence of murder includes a reference to an aggregate sentence for the offence of murder and for one or more other offences.

[5-s 60C] Case plan to be provided 60C (1) A court that is considering imposing a provisional sentence on an offender may request a person responsible for the detention of the offender to provide information on the case plan or proposed case plan for the offender. (2) The court may have regard to the case plan, in addition to any other relevant evidence provided by a party to the proceedings, in deciding whether or not it is appropriate to impose a provisional sentence. COMMENTARY ON SECTION 60C Provisional sentencing for child offenders . . . . . . . . . . . . . . . . . . . . . .

[5-s 60C.5]

[5-s 60C.5] Provisional sentencing for child offenders The scheme for provisional sentencing of child offenders convicted of murder (ss 60A–60I) was introduced by the Crimes (Sentencing Procedure) Amendment (Provisional Sentencing for Children) Act 2013 No 7 following the report of the NSW Sentencing Council entitled Provisional Sentencing for Children, which recommended such a scheme. The concept had been raised by Wood CJ at CL in R v SLD [2002] NSWSC 758; BC200204988 (on appeal — R v SLD (2003) 58 NSWLR 589; 142 A Crim R 503; [2003] NSWCCA 310; BC200306405; 10(11) Crim LN [1617]). In the course of the second reading speech (Hansard, Legislative Assembly, 26 February 2013), the Attorney General, Mr Smith, referred to the judgment of Wood CJ at CL in R v SLD and said: The sentencing process requires consideration of an offender’s likelihood of reoffending and prospects of rehabilitation. However, the human mind develops rapidly during childhood years, making it hard for a judge at the time of the initial sentence to determine a young person’s rehabilitation prospects or the likelihood that he or she will reoffend. The Attorney stated later: The changes to the law set out in the bill will enable judges to make more informed decisions about the detention of young people convicted of murder. In doing so, it will promote the protection of the community and uphold the integrity of the justice system. The scheme for provisional sentencing applies in respect of any sentence imposed after the commencement of the provisions on 25 March 2013 (including for an offence committed before that commencement): Sch 2, cl 64 at [5-Sch 2].

[5-s 60D] Effect of provisional sentence 60D (1) A provisional sentence is subject to review and redetermination under this Division.

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Sentencing

s 60D

[5-s 60D]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 60D

(2) The other Divisions of this Part apply in respect of a provisional sentence in the same way as they apply in respect of an ordinary sentence. (3) A provisional sentence is not a sentence for an indeterminate period, for the purposes of Division 1, merely because it is subject to review and redetermination under this Division.

[5-s 60E] Progress reviews 60E (1) A court that imposes a provisional sentence on an offender is to review the offender’s case from time to time for the purpose of deciding whether it is appropriate to impose a final sentence. (2) Such a review is a progress review. (3) The court may conduct a progress review on application of a party to the proceedings in which the provisional sentence was imposed or of its own motion. (4) A progress review may be conducted as often as the court considers appropriate but must be conducted at least once every 2 years after the provisional sentence is imposed. (5) The court that conducts the progress review is, if practicable, to be constituted in the same way as the court that imposed the provisional sentence. (6) A progress review is to be conducted in the presence of the offender.

[5-s 60F] Progress reports to be provided by person responsible for detention of an offender 60F (1) When a progress review is conducted by a court, the person responsible for the detention of the offender who is the subject of the progress review is to provide a report to the court about the offender’s progress. (2) The report is to include the following: (a) an assessment of the care and treatment of the offender while in custody, (b) an assessment of the offender’s psychiatric, cognitive and psychological development since the provisional sentence was imposed, (c) such other matters as the court requires to be addressed in the report. (3) A court that conducts a progress review may also request any other person who, or body that, has responsibilities with respect to the care and treatment of the offender to provide information about the offender. (4) A court that conducts a progress review may have regard to the information obtained under this section, in addition to any other relevant evidence provided by a party to the proceedings, in deciding whether or not it is appropriate at that time to impose a final sentence on the offender.

[5-s 60G] Final sentence 60G (1) A court may, after conducting a progress review: (a) impose a final sentence on the offender, or (b) decline to impose a final sentence on the offender. (2) A court imposes a final sentence by: (a) setting aside the provisional sentence and substituting instead another sentence as the final sentence for the offender, or

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CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 60I]

(b) confirming the provisional sentence as the final sentence for the offender. (3) If the court sets aside the provisional sentence: (a) the term of imprisonment imposed under the final sentence is not to exceed the term of imprisonment imposed under the provisional sentence, and (b) the non-parole period (if any) set for the final sentence is not to exceed the non-parole period set for the provisional sentence, and (c) the final sentence imposed is taken to have commenced on the day on which the provisional sentence commenced. (4) Subject to this Division, this Part applies to a final sentence in the same way as it applies to an ordinary sentence. (5) A final sentence is not subject to review and redetermination under this Division. (6) A decision to decline to impose a final sentence on an offender is not a sentence and, accordingly, is not subject to appeal under the Criminal Appeal Act 1912. (7) A court that conducts a further progress review after having declined to impose a final sentence on an offender is to conduct that review as a fresh hearing in relation to the question of whether it is appropriate to impose a final sentence on the offender.

[5-s 60H] Time limit for imposition of final sentence 60H (1) A final sentence must be imposed on an offender who is the subject of a provisional sentence before the expiry of the initial custodial period. (2) The expiry of the initial custodial period is: (a) the date that is 5 years after the date the provisional sentence is imposed, or (b) the date that is one year before the date the non-parole period (if any) for the provisional sentence ends, whichever happens first. (3) A final sentence is not invalid merely because it is imposed after the expiry of the initial custodial period.

[5-s 60I] Appeals 60I (1) On appeal against a provisional sentence, a court hearing the appeal that has power to vary the provisional sentence and substitute a new sentence (however expressed) may: (a) substitute a new provisional sentence, or (b) substitute a final sentence. (2) If a provisional sentence is varied and a new provisional sentence is imposed by a court on appeal: (a) the functions of the court under this Division with respect to progress reviews and the imposition of a final sentence on the offender are to be exercised by the court that first imposed a provisional sentence on the offender, and not the appeal court, and (b) a reference in this Division to the date on which the sentence is imposed is a reference to the date on which a provisional sentence for the relevant offence was first imposed (and not the date a new provisional sentence was imposed by the appeal court), and (c) a reference in this Division to a term of imprisonment imposed, or non-parole period set, under a provisional sentence is a reference to a term of

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Sentencing

s 60I

[5-s 60I]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 60I

imprisonment imposed, or non-parole period set, under the new provisional sentence as imposed by the appeal court. (3) To avoid doubt, a court that imposes a provisional sentence that is varied on appeal can set aside the provisional sentence (as varied on appeal) under section 60G and substitute another sentence as the final sentence for the offender in accordance with this Division. Note. Appeals against provisional sentences can be made to the Court of Criminal Appeal under the Criminal Appeal Act 1912. If the Court of Criminal Appeal varies the provisional sentence, the original sentencing court (and not the Court of Criminal Appeal) must conduct progress reviews and impose a final sentence. The final sentence can also be appealed under the Criminal Appeal Act 1912. DIVISION 3 — MISCELLANEOUS

[5-s 61] Mandatory life sentences for certain offences 61 (1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence. (2) A court is to impose a sentence of imprisonment for life on a person who is convicted of a serious heroin or cocaine trafficking offence if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence and the court is also satisfied that: (a) the offence involved: (i) a high degree of planning and organisation, and (ii) the use of other people acting at the direction of the person convicted of the offence in the commission of the offence, and (b) the person was solely or principally responsible for planning, organising and financing the offence, and (c) the heroin or cocaine was of a high degree of purity, and (d) the person committed the offence solely for financial reward. (3) Nothing in subsection (1) affects section 21(1). (4) Division 1 of Part 3 of this Act and section 33A(2) of the Drug Misuse and Trafficking Act 1985 do not apply if the court is satisfied that the circumstances referred to in subsection (2) exist. (5) Nothing in subsection (2) limits or derogates from the discretion of a court to impose a sentence of imprisonment for life on a person who is convicted of a serious heroin or cocaine trafficking offence. (6) This section does not apply to a person who was less than 18 years of age at the date of commission of the offence. (7) In this section: heroin has the same meaning as it has in the Drug Misuse and Trafficking Act 1985.

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s 61

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 61.1]

COMMENTARY ON SECTION 61 Scope of the section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 61.1]

[5-s 61.1] Scope of the section The section should be give a purposive application such that a life sentence is required if the culpability is so extreme that the community interest in the combined effect of such of the four indicia in the section as is applicable could only be met by such a sentence: R v Merritt (2004) 59 NSWLR 557; 146 A Crim R 309; [2004] NSWCCA 19; BC200400785 at A Crim R 322, where it was held that the primary focus of the section is directed towards an assessment of how extreme was the culpability of the offender so that before the section is applied the court would have to find features of very great heinousness along with the absence of any facts mitigating the crime. However, the absence of any finding of future dangerousness would not rule out the application of the provision. A provision similar to that in s 61 was considered in R v Harris (2000) 50 NSWLR 409; 121 A Crim R 342; [2000] NSWCCA 469; BC200007875; (2001) 8 Crim LN 1 [1234] where it was held that the trial judge was entitled to take into account the fact that multiple murders had been committed when considering the penalty for any one offence, particularly in a case where the offences were committed in close proximity and where the last two offences were similarly motivated and encouraged by success in carrying out the earlier offences without detection. It was also held that there could be cases where the objective circumstances of the offence were so heinous that the subjective circumstances of the offender could be wholly or substantially disregarded. The fact that the killing was committed with an intention to inflict grievous bodily harm rather than to kill does not mean that the murder cannot fall within the section: Tan v R [2010] NSWCCA 207; BC201006992; 17(10) Crim LN 156 [2809]. The principles applicable in considering the section in relation to murder were set out in Knight v R (2006) 164 A Crim R 126; [2006] NSWCCA 292; BC2006007178; (2006) 13 Crim LN 78 [2100] as follows [at 23]: • the maximum penalty for an offence in the case of murder, life imprisonment, is intended for cases falling within the worst category of case for which that penalty is prescribed: Ibbs v R (1987) 163 CLR 447 at 451-2. • it is not possible to prescribe a list of cases falling within the worst category - ingenuity can always conjure up a case of greater heinousness: Veen v R (No 2) (1988) 164 CLR 465 at 478; R v Petroff (unreported, NSWCCA, 12 November 1991, Hunt CJ at CL). • a life sentence is not reserved only for those cases where the offender is likely to remain a continuing danger to society for the rest of his or her life or for cases where there is no chance of rehabilitation; the maximum may be appropriate where the level of culpability is so extreme that the community interest in retribution and punishment can only be met by a sentence of life imprisonment: R v Kalazich (1997) 94 A Crim R 41 at 50-1; R v Baker (unreported, NSWCCA, 20 September 1995, 60547/93); R v Garforth (unreported, NSWCCA, 23 May 1994, BC9402546). • in many cases a two stage approach to the consideration of whether the maximum penalty should be imposed is appropriate. Firstly, consideration is given to whether the objective gravity of the offence brings it within the worst class of case and then consideration is given to whether the subjective circumstances of the offender require a lesser sentence: R v Bell (1985) 2 NSWLR 466; R v Valera [2002] NSWCCA 50; BC200201640. • it is the combined effect of the four indicia in s 61(1) which is critical: R v Merritt (2004) 59 NSWLR 557.

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Sentencing

serious heroin or cocaine trafficking offence means an offence under section 25(2) or (2A) of the Drug Misuse and Trafficking Act 1985 involving heroin or cocaine, and being an offence to which section 33 (subsection (2) excepted) of that Act applies.

[5-s 61.1]

s 61

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

• the absence of any one or more of the indicia of retribution, punishment, community protection or deterrence may make it more difficult for a sentencing judge to reach the conclusion that a life sentence is required although will not be determinative: Merritt at 559. Error was not demonstrated where the sentencing judge imposed a life sentence after assessing the objective gravity of the offences (11 counts of murder) as falling within the worst category, having taken into account the number of victims, the offender’s motive in lighting the fatal fires to avoid the consequences of his theft of prescription drugs and the mental element of recklessness: Dean v R [2015] NSWCCA 307; BC201511889.

[5-s 62] Warrant of commitment 62 (1) As soon as practicable after sentencing an offender to imprisonment, a court must issue a warrant for the committal of the offender to a correctional centre. (2) The warrant must be signed by an authorised officer. [subs (2) am Act 121 of 2001 s 4 and Sch 2.75[7], opn 7 July 2003; am Act 68 of 2004 s 3 and Sch 4[2], opn 6 July 2004]

(3) A warrant under this section is sufficient authority: (a) for any police officer to convey the offender to the correctional centre or police station identified in the warrant, and (b) for the governor of the correctional centre, or the person in charge of the police station, to keep the offender in his or her custody for the term of the sentence. (4) This section does not apply: (a) while action is being taken under Part 5 in relation to the making of an intensive correction order, or (b) to a sentence of imprisonment that is the subject of an intensive correction order. [subs (4) am Act 48 of 2010 Sch 1, opn 1 Oct 2010; subst Act 53 of 2017 Sch 1[27], opn 24 Sep 2018]

COMMENTARY ON SECTION 62 Warrant of commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 62.1]

[5-s 62.1] Warrant of commitment See cl 7 of the Crimes (Sentencing Procedure) Regulation 2010, at [5-10,125], concerning the form of a warrant under s 62(1).

[5-s 63] Offenders to be photographed and fingerprinted 63 (1) As soon as practicable after a court sentences an offender to imprisonment, the offender’s identifying particulars may be taken: (a) by a police officer or correctional officer, or (b) by any other person specified by an order of the court. (2) The court may revoke any related intensive correction order if the offender fails to submit to the taking of identifying particulars. [subs (2) am Act 48 of 2010 Sch 1, opn 1 Oct 2010; Act 53 of 2017 Sch 1[28], opn 24 Sep 2018]

(3) Nothing in this section prevents a court from making any other order with respect to the taking of an offender’s identifying particulars.

630

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CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 66.5]

(4) In this section: correctional officer means: (a) a correctional officer, within the meaning of the Crimes (Administration of Sentences) Act 1999, or (b) a person employed on a temporary basis within the Department of Justice to perform court security or escort duties, or (c) a person holding an authority under section 240 of the Crimes (Administration of Sentences) Act 1999 to perform escort duties. identifying particulars, in relation to an offender, means particulars necessary to identify the offender, including photographs and fingerprints. [subs (4) am Act 15 of 2015 Sch 3.17[5], opn 15 July 2015]

PART 5 — SENTENCING PROCEDURES FOR INTENSIVE CORRECTION ORDERS [Pt 5 subst Act 48 of 2010 Sch 1, opn 1 Oct 2010; Act 53 of 2017 Sch 1[29], opn 24 Sep 2018]

DIVISION 1 — PRELIMINARY

[5-s 64] Application 64 This Part applies in circumstances in which a court is considering, or has made, an intensive correction order.

[5-s 65] Definition 65 In this Part: assessment report, in relation an offender, means an assessment report within the meaning of Division 4B of Part 2 made in respect of the offender. DIVISION 2 — RESTRICTIONS ON POWER TO MAKE INTENSIVE CORRECTION ORDERS

[5-s 66] Community safety and other considerations 66 (1) Community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender. (2) When considering community safety, the sentencing court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender’s risk of reoffending. (3) When deciding whether to make an intensive correction order, the sentencing court must also consider the provisions of section 3A (Purposes of sentencing) and any relevant common law sentencing principles, and may consider any other matters that the court thinks relevant. COMMENTARY ON SECTION 66 Community safety . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 66.5]

[5-s 66.5] Community safety In the second reading speech for the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017, the Attorney General, Mr Speakman referred to s 66 as follows (Hansard, Legislative Assembly, 11 October 2017):

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Sentencing

s 66

[5-s 66.5]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 66

Proposed section 66 of the Crimes (Sentencing Procedure) Act will make community safety the paramount consideration when imposing an intensive correction order on offenders whose conduct would otherwise require them to serve a term of imprisonment. Community safety is not just about incarceration. Imprisonment under two years is commonly not effective at bringing about medium- to long-term behaviour change that reduces reoffending. Evidence shows that community supervision and programs are far more effective at this. That is why proposed section 66 requires the sentencing court to assess whether imposing an intensive correction order or serving the sentence by way of full-time detention is more likely to address the offender’s risk of reoffending.

[5-s 67] Intensive correction order not available for certain offences 67 (1) An intensive correction order must not be made in respect of a sentence of imprisonment for any of the following offences: (a) murder or manslaughter, (b) a prescribed sexual offence, (c) a terrorism offence within the meaning of the Crimes Act 1914 of the Commonwealth or an offence under section 310J of the Crimes Act 1900, (d) an offence relating to a contravention of a serious crime prevention order under section 8 of the Crimes (Serious Crime Prevention Orders) Act 2016, (e) an offence relating to a contravention of a public safety order under section 87ZA of the Law Enforcement (Powers and Responsibilities) Act 2002, (f) an offence involving the discharge of a firearm, (g) an offence that includes the commission of, or an intention to commit, an offence referred to in paragraphs (a)–(f), (h) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in paragraphs (a)–(g). (2) For the purposes of this section: Commonwealth Criminal Code means the Criminal Code set out in the Schedule to the Criminal Code Act 1995 of the Commonwealth. firearm means a firearm as defined in the Firearms Act 1996. prescribed sexual offence means: (a) an offence under Division 10 or 10A of Part 3 of the Crimes Act 1900, being: (i) an offence the victim of which is a person under the age of 16 years, or (ii) an offence the victim of which is a person of any age and the elements of which include sexual intercourse (as defined by section 61H of that Act), or (b) an offence under section 91D, 91E, 91F, 91G or 91H of the Crimes Act 1900, or (c) an offence under section 91J, 91K or 91L of the Crimes Act 1900, being an offence the victim of which is a person under the age of 16 years, or (d) an offence against section 50BA, 50BB, 50BC, 50BD, 50DA or 50DB of the Crimes Act 1914 of the Commonwealth, being an offence the victim of which was a person under the age of 16 years, or

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[5-s 69]

CRIMES (SENTENCING PROCEDURE) ACT 1999

(e) an offence against section 71.8, 71.12, 271.4, 271.7, 272.8(1) or (2), 272.9(1) or (2), 272.10(1), 272.11(1), 272.12(1) or (2), 272.13(1) or (2), 272.14(1), 272.15(1), 272.18(1), 272.19(1), 272.20(1) or (2), 273.5, 273.6, 273.7, 471.16(1) or (2), 471.17(1), 471.19(1) or (2), 471.20(1), 471.22(1), 471.24, 471.25, 471.26, 474.19(1), 474.20(1), 474.22(1), 474.23(1), 474.24A(1), 474.25A(1) or (2), 474.25B(1), 474.26, 474.27(1), (2) or (3), 474.27A of the Commonwealth Criminal Code, being an offence the victim of which was a person under the age of 16 years, or (f) an offence against section 233BAB of the Customs Act 1901 of the Commonwealth involving items of child pornography or child abuse material, or (g) an offence that, at the time it was committed, was a prescribed sexual offence within the meaning of this definition. (3) To avoid doubt, subsection (1) extends to a sentence of imprisonment for 2 or more offences any 1 of which includes an offence referred to in that subsection.

[5-s 68] Intensive correction imprisonment exceeds limits

orders

not

available

where

68 (1) An intensive correction order must not be made in respect of a single offence if the duration of the term of imprisonment imposed for the offence exceeds 2 years. (2) An intensive correction order may be made in respect of an aggregate sentence of imprisonment. However, the order must not be made if the duration of the term of the aggregate sentence exceeds 3 years. (3) Two or more intensive correction orders may be made in respect of each of 2 or more offences. However, the orders must not be made if: (a) the duration of the term of any individual term of imprisonment exceeds 2 years, and (b) the duration of the term of imprisonment imposed for all the offences exceeds 3 years. COMMENTARY ON SECTION 68 When an ICO can be imposed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 68.5]

[5-s 68.5] When an ICO can be imposed In R v Pullen (2018) 87 MVR 47; [2018] NSWCCA 264; BC201811154; 26(1) Crim LN [4077] it was held that the proper construction of the section is clear, so that the only relevant limitation on the imposition of an ICO when there is an aggregate sentence is that the aggregate sentence cannot exceed 3 years and it does not matter that one of the sentences making up the aggregate exceeds 2 years.

[5-s 69] Assessment of suitability of offender for intensive correction order 69 (1) In deciding whether or not to make an intensive correction order, the sentencing court is to have regard to: (a) the contents of any assessment report obtained in relation to the offender, and (b) evidence from a community corrections officer and any other information before the court that the court considers necessary for the purpose of deciding whether to make such an order.

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Sentencing

s 69

[5-s 69]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 69

(2) Subject to section 73A(3), the sentencing court is not bound by the assessment report. (3) The sentencing court may not make an intensive correction order in respect of an offender who resides, or intends to reside, in another State or Territory, unless the State or Territory is declared by the regulations to be an approved jurisdiction. DIVISION 3 — TERM AND COMMENCEMENT

[5-s 70] Term of intensive correction order 70 Unless sooner revoked, the term of an intensive correction order is the same as the term or terms of imprisonment in respect of which the order is made. Note. Section 68 contains provisions regarding the term or terms of imprisonment in respect of which intensive correction orders may be made.

[5-s 71] Commencement of intensive correction order 71 (1) An intensive correction order commences on the date on which it is made. (2) Subsection (1) does not apply to an intensive correction order made in relation to a sentence of imprisonment that is to be served consecutively (or partly concurrently and partly consecutively) with some other sentence of imprisonment the subject of an intensive correction order. DIVISION 4 — CONDITIONS

[5-s 72] Conditions generally 72 An intensive correction order is subject to the following conditions: (a) standard conditions imposed by the sentencing court under section 73, (b) any additional conditions imposed by the sentencing court under section 73A, (c) any further conditions imposed by the sentencing court under section 73B, (d) any conditions imposed by the Parole Authority under section 81A or 164 of the Crimes (Administration of Sentences) Act 1999. Note 1. Provisions relating to a breach of obligations under an intensive correction order are contained in sections 163 and 164 of the Crimes (Administration of Sentences) Act 1999. Note 2. After an offender is sentenced by the sentencing court, conditions of an intensive correction order are imposed, varied or revoked by the Parole Authority rather than the court.

[5-s 73] Standard conditions 73 (1) The sentencing court must at the time of sentence impose on an intensive correction order the standard conditions of an intensive correction order. (2) The standard conditions of an intensive correction order are the following: (a) a condition that the offender must not commit any offence, (b) a condition that the offender must submit to supervision by a community corrections officer. Note. Regulations may be made under the Crimes (Administration of Sentences) Act 1999 to prescribe the offender’s obligations under a standard condition of an intensive correction order.

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s 73A

CRIMES (SENTENCING PROCEDURE) ACT 1999

COMMENTARY ON SECTION 73 Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 73A]

[5-s 73.5]

Proposed section 73 of the Crimes (Sentencing Procedure) Act sets out the standard conditions of the intensive correction order — namely, not to commit an offence and to submit to supervision. All offenders will be required to submit to supervision. Community Corrections uses a risk framework that assigns different levels of intensiveness to each offender’s supervision. Offenders who are at high risk of reoffending and have complex issues are supervised intensively. Supervision for lower risk offenders is less intensive and may be suspended in appropriate circumstances. The discretion to suspend supervision will be subject to requirements specified in the regulations to ensure that the power is properly exercised and does not go unfettered. Proposed section 73A provides for the additional conditions of the intensive correction order, which will enable courts to tailor the order to hold offenders accountable and to tackle their offending behaviour. Courts will be required to impose at least one of the conditions in proposed subsection (2) in addition to the standard conditions in section 73, but can set a time limit on how long the order is in force.

[5-s 73A] Additional conditions 73A (1) In addition to the standard conditions, the sentencing court must at the time of sentence impose on an intensive correction order at least 1 of the additional conditions referred to in subsection (2). (1A) Despite subsection (1), the sentencing court is not required to impose an additional condition if the court is satisfied there are exceptional circumstances. (1B) The sentencing court must make a record of its reasons for not imposing an additional condition. The failure of the sentencing court to do so does not invalidate the sentence. (2) The additional conditions of an intensive correction order that are available to be imposed are the following conditions (as directed by the sentencing court): (a) a home detention condition, (b) an electronic monitoring condition, (c) a curfew condition imposing a specified curfew, (d) a community service work condition requiring the performance of community service work for a specified number of hours (not exceeding 750 hours or the number of hours prescribed by the regulations in respect of the class of offences to which the relevant offence belongs, whichever is the lesser), (e) a rehabilitation or treatment condition requiring the offender to participate in a rehabilitation program or to receive treatment, (f) an abstention condition requiring abstention from alcohol or drugs or both, (g) a non-association condition prohibiting association with particular persons, (h) a place restriction condition prohibiting the frequenting of or visits to a particular place or area. (3) The sentencing court must not impose a home detention condition or community service work condition on an intensive correction order unless an assessment report states that the offender is suitable to be the subject of such a condition.

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[5-s 73.5] Conditions In the second reading speech for the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017, the Attorney General, Mr Speakman said with respect to ss 73 and 73A (Hansard, Legislative Assembly, 11 October 2017):

[5-s 73A]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 73A

Note. The provisions of section 17D(2), (3) and (4) refer specifically to assessment reports regarding home detention conditions and community service work conditions.

(4) The sentencing court may limit the period during which an additional condition imposed by it on an intensive correction order is in force. Note. Regulations may be made under the Crimes (Administration of Sentences) Act 1999 to prescribe the offender’s obligations under an additional condition of an intensive correction order.

(5) The period during which a community service work condition requiring the performance of a specified number of hours of community service work is in force must not be less than the period prescribed by the regulations in respect of the specified number of hours of community service work.

[5-s 73B] Further conditions 73B (1) The sentencing court may at the time of sentence impose further conditions on an intensive correction order. (2) This section does not permit the sentencing court to impose any further conditions so as to be inconsistent with: (a) any of the standard conditions of an intensive correction order, or (b) any of the additional conditions (whether or not imposed on the intensive correction order) referred to in section 73A(2). (3) The sentencing court may limit the period during which a further condition imposed by it on an intensive correction order is in force. PART 6 — SENTENCING PROCEDURES FOR HOME DETENTION ORDERS [Repealed] [Pt 6 rep Act 53 of 2017 Sch 1[30], opn 24 Sep 2018]

PART 7 — SENTENCING PROCEDURES FOR COMMUNITY CORRECTION ORDERS [Pt 7 subst Act 53 of 2017 Sch 1[31], opn 24 Sep 2018]

DIVISION 1 — PRELIMINARY

[5-s 84] Application 84 This Part applies in circumstances in which a court is considering, or has made, a community correction order. DIVISION 2 — TERM AND COMMENCEMENT

[5-s 85] Term of community correction order 85 (1) The term of a community correction order is the period specified in the order. (2) The maximum term of a community correction order is 3 years.

[5-s 86] Commencement of community correction order 86

A community correction order commences on the date on which it is made.

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s 89

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 89]

DIVISION 3 — CONDITIONS

87 A community correction order is subject to the following conditions: (a) standard conditions imposed by the sentencing court under section 88, (b) any additional conditions imposed by the sentencing court under section 89, (c) any further conditions imposed by the sentencing court under section 90.

[5-s 88] Standard conditions 88 (1) The sentencing court must at the time of sentence impose on a community correction order the standard conditions of a community correction order. (2) The standard conditions of a community correction order are the following: (a) a condition that the offender must not commit any offence, (b) a condition that the offender must appear before the court if called on to do so at any time during the term of the community correction order. Note. Regulations may be made under the Crimes (Administration of Sentences) Act 1999 to prescribe the offender’s obligations under a standard condition of a community correction order.

[5-s 89] Additional conditions 89 (1) The sentencing court may at the time of sentence, or subsequently on the application of a community corrections officer or juvenile justice officer or the offender: (a) impose on a community correction order any of the additional conditions of a community correction order, or (b) vary or revoke any such additional conditions imposed by it on a community correction order. (2) The additional conditions of a community correction order that are available to be imposed are the following conditions (as directed by the sentencing court): (a) a curfew condition imposing a specified curfew (not exceeding 12 hours in any period of 24 hours), (b) a community service work condition requiring the performance of community service work for a specified number of hours (not exceeding 500 hours or the number of hours prescribed by the regulations in respect of the class of offences to which the relevant offence belongs, whichever is the lesser), (c) a rehabilitation or treatment condition requiring the offender to participate in a rehabilitation program or to receive treatment, (d) an abstention condition requiring abstention from alcohol or drugs or both, (e) a non-association condition prohibiting association with particular persons, (f) a place restriction condition prohibiting the frequenting of or visits to a particular place or area, (g) a supervision condition requiring the offender to submit to supervision: (i) by a community corrections officer, except as provided by subparagraph (ii), or (ii) if the offender was under the age of 18 years when the condition was imposed, by a juvenile justice officer until the offender has reached that age. (iii) [Repealed]

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[5-s 87] Conditions generally

[5-s 89]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 89

(2A) The functions of a community corrections officer under a supervision condition may be exercised by a juvenile justice officer and the functions of a juvenile justice officer under a supervision condition may be exercised by a community corrections officer, in accordance with any arrangements between Corrective Services NSW and Juvenile Justice NSW. (3) An additional condition of any of the following kinds must not be imposed on a community correction order: (a) a home detention condition, (b) an electronic monitoring condition, (c) a curfew condition imposing a curfew exceeding 12 hours in any period of 24 hours. (4) The sentencing court must not impose a community service work condition on a community correction order unless an assessment report states that the offender is suitable to be the subject of such a condition. Note. The provisions of section 17D(4) refer specifically to assessment reports regarding community service work conditions.

(4A) The sentencing court may not impose a supervision condition on a community correction order in respect of an offender who resides, or intends to reside, in another State or Territory, unless the State or Territory is declared by the regulations to be an approved jurisdiction. (4B) The sentencing court may not impose a community service work condition on a community correction order in respect of an offender who resides, or intends to reside, in another State or Territory, unless: (a) the court is satisfied that the offender is able and willing to travel to New South Wales to complete the community service work, or (b) the State or Territory is declared by the regulations to be an approved jurisdiction. (4C) The period during which a community service work condition requiring the performance of a specified number of hours of community service work is in force must not be less than the period prescribed by the regulations in respect of the specified number of hours of community service work. (5) The sentencing court may limit the period during which an additional condition on a community correction order is in force. Note. Regulations may be made under the Crimes (Administration of Sentences) Act 1999 to prescribe the offender’s obligations under an additional condition of a community correction order.

[5-s 90] Further conditions 90 (1) The sentencing court may at the time of sentence, or subsequently on the application of a community corrections officer or juvenile justice officer or the offender: (a) impose further conditions on a community correction order, or (b) vary or revoke any such further conditions imposed by it on a community correction order. (2) This section does not permit the sentencing court to impose any further conditions, or vary any such further conditions, if the conditions as imposed or varied: (a) would be inconsistent with: (i) any of the standard conditions of a community correction order, or

638

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s 98

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 98]

[5-s 91] Power of court in dealing with applications 91 (1) The sentencing court may refuse to consider an application by the offender under section 89 or 90 if the court is satisfied that the application is without merit. (2) The sentencing court may, with the consent of the community corrections officer or juvenile justice officer and the offender, deal with the application with or without parties being present and in open court or in the absence of the public. (3) To avoid doubt, a court may deal with an application even though the court is constituted differently from the court as constituted at the time of the sentence. PART 8 — SENTENCING PROCEDURES FOR CONDITIONAL RELEASE ORDERS [Pt 8 subst Act 53 of 2017 Sch 1[31], opn 24 Sep 2018]

DIVISION 1 — PRELIMINARY

[5-s 94] Application 94 This Part applies in circumstances in which a court is considering, or has made, a conditional release order. DIVISION 2 — TERM AND COMMENCEMENT

[5-s 95] Term of conditional release order 95 (1) The term of a conditional release order is the period specified in the order. (2) The maximum term of a conditional release order is 2 years.

[5-s 96] Commencement of conditional release order 96

A conditional release order commences on the date on which it is made. DIVISION 3 — CONDITIONS

[5-s 97] Conditions generally 97 A conditional release order is subject to the following conditions: (a) standard conditions imposed by the sentencing court under section 98, (b) any additional conditions imposed by the sentencing court under section 99, (c) any further conditions imposed by the sentencing court under section 99A. Note. Provisions relating to a breach of obligations under a conditional release order are contained in section 108C of the Crimes (Administration of Sentences) Act 1999.

[5-s 98] Standard conditions 98 (1) The sentencing court must at the time of sentence impose on a conditional release order the standard conditions of a conditional release order.

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(ii) any of the additional conditions (whether or not actually imposed on the community correction order) referred to in section 89(2), or (b) would not be permitted under section 89(3). (3) The sentencing court may limit the period during which a further condition on a community correction order is in force.

[5-s 98]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 98

(2) The standard conditions of a conditional release order are the following: (a) a condition that the offender must not commit any offence, (b) a condition that the offender must appear before the court if called on to do so at any time during the term of the conditional release order. Note. Regulations may be made under the Crimes (Administration of Sentences) Act 1999 to prescribe the offender’s obligations under a standard condition of a conditional release order.

[5-s 99] Additional conditions 99 (1) The sentencing court may at the time of sentence, or subsequently on the application of a community corrections officer or juvenile justice officer or the offender: (a) impose on a conditional release order any of the additional conditions of a conditional release order, or (b) vary or revoke any such additional conditions imposed by it on a conditional release order. (2) The additional conditions of a conditional release order that are available to be imposed are the following (as directed by the sentencing court): (a) a rehabilitation or treatment condition requiring the offender to participate in a rehabilitation program or to receive treatment, (b) an abstention condition requiring abstention from alcohol or drugs or both, (c) a non-association condition prohibiting association with particular persons, (d) a place restriction condition prohibiting the frequenting of or visits to a particular place or area, (e) a supervision condition requiring the offender to submit to supervision: (i) by a community corrections officer, except as provided by subparagraph (ii), or (ii) if the offender was under the age of 18 years when the condition was imposed, by a juvenile justice officer until the offender has reached that age. (iii) [Repealed] (2A) The functions of a community corrections officer under a supervision condition may be exercised by a juvenile justice officer and the functions of a juvenile justice officer under a supervision condition may be exercised by a community corrections officer, in accordance with any arrangements between Corrective Services NSW and Juvenile Justice NSW. (3) An additional condition of any of the following kinds must not be imposed on a conditional release order: (a) a home detention condition, (b) an electronic monitoring condition, (c) a curfew condition, (d) a community service work condition. (3A) The sentencing court may not impose a supervision condition on a conditional release order in respect of an offender who resides, or intends to reside, in another State or Territory, unless the State or Territory is declared by the regulations to be an approved jurisdiction.

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s 100A

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 100A]

(4) The sentencing court may limit the period during which an additional condition on a conditional release order is in force.

[5-s 99A] Further conditions 99A (1) The sentencing court may at the time of sentence, or subsequently on the application of a community corrections officer or juvenile justice officer or the offender: (a) impose further conditions on a conditional release order, or (b) vary or revoke any such further conditions imposed by it on a conditional release order. (2) This section does not permit the sentencing court to impose any further conditions, or vary any such further conditions, if the condition as imposed or varied: (a) would be inconsistent with: (i) any of the standard conditions of a conditional release order, or (ii) any of the additional conditions (whether or not actually imposed on the conditional release order) referred to in section 99(2), or (b) would not be permitted under section 99(3). (3) The sentencing court may limit the period during which a further condition on a conditional release order is in force.

[5-s 100] Power of court in dealing with applications 100 (1) The sentencing court may refuse to consider an application by the offender under section 99 or 99A if the court is satisfied that the application is without merit. (2) The sentencing court may, with the consent of the community corrections officer or juvenile justice officer and the offender, deal with the application with or without parties being present and in open court or in the absence of the public. (3) To avoid doubt, a court may deal with an application even though the court is constituted differently from the court as constituted at the time of the sentence. PART 8A — NON-ASSOCIATION AND PLACE RESTRICTION ORDERS [Pt 8A insrt Act 100 of 2001 s 3 and Sch 1.1[7], opn 22 July 2002]

[5-s 100A] Non-association and place restriction orders not to restrict certain associations or activities 100A (1) The persons specified in a non-association order as persons with whom the offender must not associate may not include any member of the offender’s close family. (1A) Despite subsection (1), a member of the offender’s close family may be specified in a non-association order if, and only if, the court considers that exceptional circumstances exist because there is reasonable cause to believe, having regard to the ongoing nature and pattern of criminal activity in which the member and the offender have both participated, that there is risk that the offender may be involved in conduct that could involve the commission of a further offence of the kind to which section 17A applies if the offender associates with that member. [subs (1A) insrt Act 37 of 2009 Sch 1.5, opn 19 June 2009]

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Note. Regulations may be made under the Crimes (Administration of Sentences) Act 1999 to prescribe the offender’s obligations under an additional condition of a conditional release order.

[5-s 100A]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 100A

(2) The places or districts specified in a place restriction order as places or districts that the offender must not frequent or visit may not include: (a) the offender’s place of residence or the place of residence of any member of the offender’s close family, or (b) any place of work at which the offender is regularly employed, or (c) any educational institution at which the offender is enrolled, or (d) any place of worship at which the offender regularly attends, or (e) any place at which the offender regularly receives a health service or a welfare service, or (f) any place at which the offender is provided with legal services by an Australian legal practitioner or by an organisation employing or otherwise using at least one Australian legal practitioner to provide such services, as at the time the order is made. [subs (2) am Act 37 of 2009 Sch 1.5, opn 19 June 2009]

(2A) Despite subsection (2), a place or district referred to in that subsection may be specified in a place restriction order if, and only if, the court considers that exceptional circumstances exist because there is reasonable cause to believe, having regard to the ongoing nature and pattern of participation of the offender in criminal activity occurring at that place or district, that there is risk that the offender may be involved in conduct that could involve the commission of a further offence of the kind to which section 17A applies if the offender frequents or visits that place or district. [subs (2A) insrt Act 37 of 2009 Sch 1.5, opn 19 June 2009]

(2B) The court must make a record of its reasons for making an order under subsection (1A) or (2A). [subs (2B) insrt Act 37 of 2009 Sch 1.5, opn 19 June 2009]

(2C) The failure of a court to comply with subsection (2B) does not invalidate the order. [subs (2C) insrt Act 37 of 2009 Sch 1.5, opn 19 June 2009]

(3) In this section, an offender’s close family includes: (a) the offender’s spouse or de facto partner, and (b) the offender’s parents, step-parents and grandparents, and (c) the offender’s children, step-children and grandchildren, and (d) the offender’s brothers and sisters, and step-brothers and step-sisters, and (e) the offender’s guardians or carers, and (f) in the case of an offender who is an Aboriginal person or a Torres Strait Islander — persons who are or have been part of the extended family or kin of the offender according to the indigenous kinship system of the offender’s culture. [subs (3) am Act 37 of 2009 Sch 1.5, opn 19 June 2009; Act 19 of 2010 Sch 3.31, opn 19 May 2010]

(4) In this section: health service means any medical, hospital, ambulance, paramedical, dental, community health or environmental health service or any other service (including any service of a class or description prescribed by the regulations) relating to the maintenance or improvement of the health, or the restoration to health, of persons or the prevention of disease in, or injury to, persons and whether provided as a public or private service.

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s 100E

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 100E]

[subs (4) insrt Act 37 of 2009 Sch 1.5, opn 19 June 2009]

[5-s 100B] Explanation of non-association and place restriction orders to offenders 100B (1) Having made a non-association order or place restriction order in relation to an offender, a court must ensure that all reasonable steps are taken to explain to the offender (in language that the offender can readily understand): (a) the offender’s obligations under the order, and (b) the consequences that may follow if the offender fails to comply with those obligations. (2) A non-association order or place restriction order is not invalidated by a failure to comply with this section.

[5-s 100C] Commencement of non-association and place restriction orders 100C A non-association order or place restriction order commences: (a) on the date on which it is made, or (b) if it is stayed as a consequence of appeal proceedings but confirmed on appeal, whether expressly or impliedly, on the date on which it is confirmed.

[5-s 100D] Suspension of non-association and place restriction orders while offenders in custody 100D (1) An offender’s non-association order or place restriction order is suspended: (a) while the offender is in lawful custody (otherwise than while unescorted as referred to in section 38(2)(a) of the Crimes (Administration of Sentences) Act 1999), and (b) while the offender is under the immediate supervision of a person employed in the Department of Justice pursuant to a condition of leave imposed under section 24 of the Children (Detention Centres) Act 1987. [subs (1) am Act 15 of 2015 Sch 3.17[2], opn 15 July 2015]

(2) The suspension of an offender’s non-association order or place restriction order does not operate to postpone the date on which the order comes to an end.

[5-s 100E] Contravention of non-association and place restriction orders 100E (1) An offender must not, without reasonable excuse, contravene a non-association order or place restriction order. Maximum penalty: 10 penalty units or imprisonment for 6 months, or both.

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welfare service means services (whether provided as public or private services) relating to the provision of housing, employment benefits, rental assistance or other financial assistance, family support and other community welfare services necessary for the promotion, protection, development and maintenance of the well-being of persons.

[5-s 100E]

s 100E

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

(2) Without limiting subsection (1), it is a reasonable excuse for associating with a specified person in contravention of a non-association order if: (a) the offender did so in compliance with an order of a court, or (b) having associated with the specified person unintentionally, the offender immediately terminated the association. (3) Without limiting subsection (1), it is a reasonable excuse for frequenting or visiting a specified place or district in contravention of a place restriction order if the offender did so in compliance with an order of a court. COMMENTARY ON SECTION 100E Law Part Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [5-s 100E.0] Law Part Code

[5-s 100E.0]

The Law Part Code for s 100E(1) is 47064.

[5-s 100F] Variation or revocation of non-association and place restriction orders following subsequent conviction 100F (1) This section applies to an offender who is sentenced in respect of an offence (the new offence) while subject to a non-association order or place restriction order in respect of some other offence (the old offence). (2) When sentencing the offender for the new offence, the court may vary or revoke the non-association order or place restriction order for the old offence, regardless of whether the order was made by it or by some other court.

[5-s 100G] Variation or revocation of non-association and place restriction orders on application 100G (1) An offender who is subject to a non-association order or place restriction order may apply to the Local Court for variation or revocation of the order, regardless of whether the order was made by the Local Court or by some other court. [subs (1) am Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009]

(2) Such an application must be accompanied by a copy of the relevant order, together with any variations to it that have been made under this Part. (3) Such an application may not be made except by leave of the Local Court, which leave may be granted only if it is satisfied that, having regard to changes in the applicant’s circumstances since the order was made or last varied, it is in the interests of justice that leave be granted. (4) The Local Court may refuse to entertain an application for leave if it is satisfied that the application is frivolous or vexatious. (5) If leave to make an application for variation or revocation of a non-association order is granted: (a) the Local Court must cause notice of the application to be served on the Commissioner of Police, and (b) the Commissioner of Police is entitled to appear and be heard in any proceedings on the application. (6) The Local Court may, at its discretion, deal with the application with or without the parties being present and in open court or in chambers. (7) The Local Court may dispose of the application:

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s 100I

[5-s 100I]

CRIMES (SENTENCING PROCEDURE) ACT 1999

COMMENTARY ON SECTION 100G Law Part Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [5-s 100G.0] Law Part Code

[5-s 100G.0]

The Law Part Code for s 100G(1) is 51111.

[5-s 100H] Certain information not to be published or broadcast 100H (1) A person must not publish or broadcast: (a) the fact that a named person (other than the offender) is specified in a non-association order pursuant to section 17A(2)(a), or (b) any information calculated to identify any such person. Maximum penalty: 10 penalty units. (2) Subsection (1) does not apply to the disclosure of information to any of the following persons: (a) the offender, (b) any person specified in the non-association order as a person with whom the offender is prohibited or restricted from associating, (c) any member of the NSW Police Force, (d) any person involved in the administration of the non-association order or of any other penalty to which the offender is subject in relation to the same offence, (e) any person involved in proceedings for an alleged breach of the non-association order, (f) any other person specified in the non-association order as a person to whom such information may be disclosed, (g) any other person to whom such information is required to be disclosed pursuant to any other Act or law, and does not apply to the publication or broadcasting of an official report of the proceedings of the court. [subs (2) am Act 62 of 2011 Sch 3.6, opn 6 Jan 2012]

COMMENTARY ON SECTION 100H Law Part Codes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 100H.0]

[5-s 100H.0] Law Part Codes The Law Part Code for s 100H(1)(a) is 47065. The Law Part Code for s 100H(1)(b) is 47066.

PART 8B — NEW SOUTH WALES SENTENCING COUNCIL [Pt 8B insrt Act 90 of 2002 s 3 and Sch 1[5], opn 17 Feb 2003]

[5-s 100I] Constitution of New South Wales Sentencing Council 100I (1) There is constituted by this Act a New South Wales Sentencing Council.

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(a) by varying or revoking the non-association order or place restriction order in accordance with the application, or (b) by dismissing the application. (8) The Local Court’s decision on the application is final.

[5-s 100I]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 100I

(2) The Sentencing Council is to consist of 16 members appointed by the Minister, of whom: (a) one is to be a retired judicial officer (not being a retired Magistrate), and (a1) one is to be a retired Magistrate, and (b) one is to have expertise or experience in law enforcement, and (c) four are to have expertise or experience in criminal law or sentencing (of whom one is to have expertise or experience in the area of prosecution and one is to have expertise or experience in the area of defence), and (d) one is to be a person who has expertise or experience in Aboriginal justice matters, and (e) four are to be persons representing the general community, of whom two are to have expertise or experience in matters associated with victims of crime, and (f) one is to have expertise or experience in corrective services, and (g) one is to have expertise or experience in juvenile justice, and (h) one is to be a representative of the Department of Justice, and (i) one is to have academic or research expertise or experience of relevance to the functions of the Sentencing Council. [subs (2) am Act 107 of 2006 s 3 and Sch 1(1.9) items [5]–[6], opn 23 Feb 2007; Act 27 of 2009 Sch 2, opn 19 May 2009; Act 8 of 2011 Sch 1.1[1]–[2], opn 7 June 2011; Act 15 of 2015 Sch 3.17[6], opn 15 July 2015]

(3) Schedule 1A has effect with respect to the members and procedure of the Sentencing Council.

[5-s 100J] Functions of Sentencing Council 100J (1) The Sentencing Council has the following functions: (a) to advise and consult with the Minister in relation to offences suitable for standard non-parole periods and their proposed length, (b) to advise and consult with the Minister in relation to: (i) matters suitable for guideline judgments under Division 4 of Part 3, and (ii) the submissions to the Court of Criminal Appeal to be made by the Minister in guideline proceedings, (c) to monitor, and to report annually to the Minister on, sentencing trends and practices, including the operation of standard non-parole periods and guideline judgments, (d) at the request of the Minister, to prepare research papers or reports on particular subjects in connection with sentencing, (e) to educate the public about sentencing matters. [subs (1) am Act 11 of 2004 s 3 and Sch 5, opn 24 Mar 2004; Act 107 of 2006 s 3 and Sch 1(1.9) item [7], opn 23 Feb 2007]

(2) Any advice given to the Minister by the Sentencing Council may be given either at the request of the Minister or without any such request. (3) The Sentencing Council has such other functions as are conferred or imposed on it by or under this or any other Act. (4) In the exercise of its functions, the Sentencing Council may consult with, and may receive and consider information and advice from, the Judicial Commission of New South Wales and the Bureau of Crime Statistics and Research of the Department of Justice (or any like agency that may replace either of those agencies). [subs (4) am Act 15 of 2015 Sch 3.17[6], opn 15 July 2015]

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s 100P

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 100P]

100K (1) The Sentencing Council may,with the approval of the Minister, establish committees to assist it in connection with the exercise of any of its functions. (2) It does not matter that any or all of the members of a committee are not members of the Sentencing Council. (3) The procedure for the calling of meetings of a committee and for the conduct of business at those meetings is to be as determined by the Sentencing Council or (subject to any determination of the Council) by the committee.

[5-s 100L] Staff of Sentencing Council 100L The Sentencing Council may,with the approval of the Minister, arrange for the use of the services of any staff or facilities of a Public Service agency or a public or local authority. [s 100L am Act 15 of 2015 Sch 3.17[7], opn 15 July 2015]

PART 8C — SENTENCING PROCEDURES FOR INTERVENTION PROGRAM ORDERS [Part 8C insrt Act 100 of 2002 s 5 and Sch 3[13], opn 24 Feb 2003]

DIVISION 1 — PRELIMINARY

[5-s 100M] Application 100M This Part applies in circumstances in which a court is considering, or has made, an intervention program order. DIVISION 2 — RESTRICTIONS ON POWER TO MAKE INTERVENTION PROGRAM ORDERS

[5-s 100N] Suitability of offender for intervention program 100N An intervention program order may not be made with respect to an offender unless the court is satisfied: (a) that the offender is eligible to participate in the intervention program in accordance with the terms of the program, and (b) that the offender is a suitable person to participate in the intervention program, and (c) that the intervention program is available in the area in which the offender resides or intends to reside.

[5-s 100O] Referral of offender for assessment 100O Before a court sentences an offender, the court may refer the offender for assessment as to the suitability of the offender to participate in an intervention program. Note. Regulations may be made for or with respect to the assessment of the suitability of a person to participate in an intervention program under the Criminal Procedure Act 1986.

[5-s 100P] Explanation of intervention program order 100P (1) A court that makes an intervention program order must ensure that all reasonable steps are taken to explain to the offender (in language that the offender can readily understand):

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Sentencing

[5-s 100K] Committees of Sentencing Council

[5-s 100P]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 100P

(a) the offender’s obligations under the order, and (b) the consequences that may follow if the offender fails to comply with those obligations. (2) An intervention program order is not invalidated by a failure to comply with this section. DIVISION 3 — ENFORCEMENT OF INTERVENTION PROGRAM ORDER

[5-s 100Q] Procedure following failure to enter into agreement 100Q If: (a) a court makes an order that provides for an offender to enter into an agreement to participate in an intervention program, and (b) the offender fails to enter into such an agreement in accordance with the order, the court may sentence the offender, or convict and sentence the offender, as if the order had not been made.

[5-s 100R] Proceedings for breach of order 100R (1) If it suspects that an offender may have failed to comply with an intervention program order: (a) the court that made the order, or (b) any other court of like jurisdiction, may call on the offender to appear before it. (2) If the offender fails to appear, the court may: (a) issue a warrant for the offender’s arrest, or (b) authorise an authorised officer to issue a warrant for the offender’s arrest. [subs (2) subst Act 53 of 2017 Sch 1[32], opn 24 Sep 2018]

(2A) If, however, at the time the court proposes to call on an offender to appear before it, the court is satisfied that the location of the offender is unknown, the court may immediately: (a) issue a warrant for the offender’s arrest, or (b) authorise an authorised officer to issue a warrant for the offender’s arrest. [subs (2A) insrt Act 53 of 2017 Sch 1[32], opn 24 Sep 2018]

(3) If it is satisfied that an offender appearing before it has failed to comply with an intervention program order, a court: (a) may decide to take no action with respect to the failure to comply, or (b) may revoke the intervention program order.

[5-s 100S] Consequences of revocation of order 100S (1) If a court revokes an intervention program order under this Division, the court may convict and sentence the offender for the offence in respect of which the offender entered into the agreement to participate in the intervention program. (2) This Act applies to the sentencing of an offender under this section in the same way as it applies to the sentencing of an offender on a conviction. (3) An offender who under this section is sentenced by a court for an offence has the same rights of appeal as the offender would have had if the offender had been sentenced by that court on being convicted of the offence.

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s 101A

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 101A]

100T (1) An offender may, at any time after entering into an agreement under section 10(1)(c) (including after the commencement of the intervention program concerned) decide not to participate or to continue to participate in the intervention program or any intervention plan arising out the program. (2) Such a decision is to be made in accordance with the terms of the intervention program. (3) If the offender makes such a decision, the sentencing court or any court of like jurisdiction, may call on the offender to appear before it. (4) If the offender fails to appear, the court may take an action referred to in section 100R(2) or (2A). [subs (4) am Act 53 of 2017 Sch 1[33], opn 24 Sep 2018]

(5) A court may, when an offender appears before it following a decision not to participate or to continue to participate in an intervention program or intervention plan: (a) revoke the intervention program order, and (b) make another order under section 10 (other than an intervention program order), or convict and sentence the offender for the offence in respect of which the intervention program order was imposed. (6) This Act applies to the sentencing of an offender under this section in the same way as it applies to the sentencing of an offender on a conviction. (7) An offender who under this section is sentenced by a court for an offence has the same rights of appeal as the offender would have had if the offender had been sentenced by that court on being convicted of the offence. PART 9 — MISCELLANEOUS

[5-s 101] Abolition of power of court concerning recognizances and sureties 101 (1) The power that a court had before the commencement of this section: (a) to require a person to enter into a recognizance to be of good behaviour or to keep the peace, or (b) to take surety from a person for the performance of an obligation imposed (whether on that or any other person) by such a recognizance, is abolished. (2) This section applies to any such power that a court had under section 30 of the Imperial Acts Application Act 1969, at common law or otherwise.

[5-s 101A] Effect of failure to comply with Act 101A A failure to comply with a provision of this Act may be considered by an appeal court in any appeal against sentence even if this Act declares that the failure to comply does not invalidate the sentence. [s 101A insrt Act 90 of 2002 s 3 and Sch 3.2[7], opn 1 Feb 2003]

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Sentencing

[5-s 100T] Right to decide not to participate in intervention program

[5-s 101A.1]

s 101A

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

COMMENTARY ON SECTION 101A Purpose of section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-s 101A.1]

[5-s 101A.1] Purpose of section A number of sections in the Act provide that a failure to comply with the provision does not invalidate the sentence: s 5(4) at [5-s 5], s 22(4) at [5-s 22], s 44(3) at [5-s 44], s 45(4) at [5-s 45], s 48(3) at [5-s 48], s 50(3) at [5-s 50], s 54B(5) at [5-s 54B], s 54C(2) at [5-s 54C], s 70(3) at [5-s 70], s 71(2) at [5-s 71], s 72(3) at [5-s 72], s 83(2) at [5-s 83], s 92(2) at [5-s 92], s 93(3) at [5-s 93], s 96(2) at [5-s 96] and s 100B(2) at [5-s 100B]. In the second reading speech, the Attorney-General, Mr Debus, said (Legislative Assembly, Hansard, 23 October 2002, p 5817): “The proposed section [101A] ensures that the courts are not relieved of the obligation to comply with the principal Act with respect to standard non-parole periods or other matters, but protects the validity of any sentence until such time as the matter is considered by an appeal court.”

[5-s 102] Prerogative of mercy preserved 102

Nothing in this Act limits or affects the prerogative of mercy.

[5-s 103] Regulations 103 (1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act. (2) In particular, the regulations may make provision for or with respect to the following: (a) the information or other matter to be contained in any notice, order, warrant, undertaking or other document that by or under this Act is required or permitted to be prepared, (b) requiring any such document to be in a form approved by the Minister, (c) the manner of service of any such document. [subs (2) insrt Act 68 of 2004 s 3 and Sch 4[6], opn 6 July 2004]

[5-s 104] Savings, transitional and other provisions 104

Schedule 2 has effect.

[5-s 105] Review of Act 105 (1) The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives. (2) The review is to be undertaken as soon as possible after the period of 5 years from the date of assent to this Act. (3) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years.

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s 107

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-s 107]

106 (1) In this section: standard non-parole provisions means the provisions of Division 1A of Part 4, as inserted by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002. (2) The Minister is to review the operation of the standard non-parole provisions to determine the effect of those provisions. (3) The review required by this section is to be undertaken as soon as possible after the period of 2 years from the commencement of the standard non-parole provisions. (4) A report on the outcome of the review required by this section is to be tabled in each House of Parliament within 12 months after the end of the period of 2 years. [s 106 insrt Act 90 of 2002 s 3 and Sch 1[6], opn 1 Feb 2003]

[5-s 107] Review of Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014 107 (1) In this section: family member victim impact statement amendments means the amendments made by the Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014. (2) The Minister is to review the operation of the family member victim impact statement amendments to determine the effect of those amendments. (3) The review required by this section is to be undertaken as soon as possible after the period of 3 years from the commencement of the family member victim impact statement amendments. (4) A report on the outcome of the review required by this section is to be tabled in each House of Parliament within 12 months after the end of the period of 3 years. [s 107 insrt Act 18 of 2014 Sch 1[4], opn 1 July 2014]

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Sentencing

[5-s 106] Review of Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002

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[5-Sch 1]

SCHEDULE 1 — EXISTING LIFE SENTENCES

Definitions 1 In this Schedule: existing life sentence means a sentence of imprisonment for life imposed before, on or after 12 January 1990 (the date on which the Crimes (Life Sentences) Amendment Act 1989 commenced), but does not include a sentence for the term of a person’s natural life under section 19A, 61JA or 66A(2) of the Crimes Act 1900 or section 33A of the Drug Misuse and Trafficking Act 1985. [def am Act 62 of 2001 s 4 and Sch 2.3, opn 1 Oct 2001; Act 105 of 2008 s 4 and Sch 2, opn 1 Jan 2009]

non-release recommendation, in relation to an offender serving an existing life sentence, means a recommendation or observation, or an expression of opinion, by the sentencing court that (or to the effect that) the offender should never be released from imprisonment, and includes any such recommendation, observation or expression of opinion that (before, on or after the date of assent to the Crimes (Sentencing Procedure) Amendment (Existing Life Sentences) Act 2005) has been quashed, set aside or called into question. [def am Act 13 of 2005 s 3 and Sch 1[1], opn 6 May 2005]

Review Council means the Serious Offenders Review Council constituted by section 195 of the Crimes (Administration of Sentences) Act 1999. sentencing court, in relation to an offender who has been resentenced as a result of a re-trial or other appeal proceedings, includes both the court by which a penalty was originally imposed for the offence and the court (whether the same court or a different court) by which a penalty was finally imposed for the offence. [def insrt Act 29 of 2001 s 3 and Sch 1[1], opn 20 July 2001]

Applications for determination of non-parole periods 2 (1) Subject to clauses 6 and 6A(2), an offender serving an existing life sentence may apply to the Supreme Court for the determination of a term and a non-parole period for the sentence. [subcl (1) am Act 57 of 2008 s 3 and Sch 1, opn 1 July 2008]

(2) An offender is not eligible to make such an application unless the offender has served: (a) at least 8 years of the sentence concerned, except where paragraph (b) applies, or (b) at least 30 years of the sentence concerned, if the offender is the subject of a non-release recommendation. [subcl (2) am Act 29 of 2001 s 3 and Sch 1[2], opn 20 July 2001]

(3) An offender who is the subject of a non-release recommendation is not eligible for a determination referred to in subclause (1) unless the Supreme Court, when considering the offender’s application, is satisfied that special reasons exist that justify the making of such a determination.

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Sentencing

(Section 44)

[5-Sch 1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Sch 1

Restriction on number of further applications by offender for determination of non-parole periods 2A (1) This clause applies only in relation to an application referred to in clause 2(1) made by an offender on or after 17 June 2008. It does not apply in relation to any such application made by an offender before that date (including an application that was made but not finally disposed of before that date). (2) An offender may not make more than one application referred to in clause 2(1). (3) If, in disposing under clause 4 of an application referred to in clause 2(1), the Supreme Court declines to set a specified term for an existing life sentence or to set a non-parole period for the sentence, the offender who made the application is to serve the existing life sentence for the term of his or her natural life. (4) An application referred to in clause 2(1) that is made by an offender and duly withdrawn is not to be counted as an application made by the offender for the purposes of subclause (2). (5) This clause has effect despite any other provision of this Schedule. [cl 2A insrt Act 57 of 2008 s 3 and Sch 1, opn 1 July 2008]

Matters for consideration by Supreme Court 3 (1) In considering an application in relation to an existing life sentence, the Supreme Court is to have regard to: (a) all of the circumstances surrounding the offence for which the sentence was imposed, and (b) all offences, wherever and whenever committed, of which the offender has been convicted, so far as this information is reasonably available to the Supreme Court. (2) The reference in subclause (1)(b) to an offence of which an offender has been convicted: (a) includes: (i) any offence in respect of which a court has found the offender guilty but has not proceeded to conviction, and (ii) any offence taken into account when the offender was sentenced, but (b) does not include: (i) an offence for which a conviction or finding of guilt has been quashed or set aside within the meaning of Part 4 of the Criminal Records Act 1991, or (ii) an offence of a class or description prescribed by the regulations. Determination of application 4 (1) The Supreme Court may dispose of an application in relation to an existing life sentence: (a) by setting a specified term for the sentence together with a non-parole period for the sentence, or (b) by declining to set a specified term for the sentence but setting a non-parole period for the sentence, or (c) by declining to set a specified term for the sentence and declining to set a non-parole period for the sentence.

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CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-Sch 1]

(2) The Supreme Court may set a specified term and a non-parole period for an existing life sentence even though the Court was not the sentencing court. (3) In the case of an offender who is the subject of a non-release recommendation, the Supreme Court may dispose of an application in relation to an existing life sentence: (a) by setting a non-parole period for the sentence, or (b) by declining to set a non-parole period for the sentence, but does not have jurisdiction to set a specified term for the sentence. [subcl (3) insrt Act 29 of 2001 s 3 and Sch 1[3], opn 20 July 2001]

Effect of determination to set a non-parole period 5 (1) A non-parole period arising from a determination referred to in clause 4(1) or (3) is taken to have commenced on the date on which the sentence commenced or, if the offender was remanded in custody for the offence, the date on which the first such remand commenced. [subcl (1) am Act 13 of 2005 s 3 and Sch 1[2], opn 6 May 2005]

(2) If the Supreme Court sets a specified term for an existing life sentence, the existing life sentence is taken to have been replaced by a sentence of imprisonment for the term so specified. (3) The term of the sentence, and any non-parole period, are to be taken to have been set under section 44, but are not required to comply with the other provisions of Division 1 of Part 4. Supreme Court may prohibit further applications 6 (1A) This clause applies only in relation to an application referred to in clause 2(1) that was made by an offender but not finally disposed of before 17 June 2008. It does not apply in relation to an application referred to in clause 2(1) that was made by an offender on or after that date. [subcl (1A) insrt Act 57 of 2008 s 3 and Sch 1, opn 1 July 2008]

(1) If the Supreme Court declines to set a specified term for an existing life sentence or to set a non-parole period for the sentence, the Court may (when making that decision) direct that the offender who made the application: (a) may never re-apply to the Court, or (b) may not re-apply to the Court for a specified period of time. (2) If the Court gives a direction under this clause that an offender may never re-apply to the Court, the offender is to serve the existing life sentence for the term of the person’s natural life. (3) If the Court does not give a direction under this clause, the offender may not re-apply to the Court within the period of 3 years from the date of the Court’s decision not to give the direction. (4) A direction under this clause that an offender may never re-apply to the Court or may not re-apply to the Court for a period exceeding 3 years may be given only if: (a) the offender was sentenced for the crime of murder, and (b) it is a most serious case of murder and it is in the public interest that such a direction be made. Leave required for withdrawal of application and re-application 6A (1) An application referred to in clause 2(1) may be withdrawn by the offender who made the application, but only with the leave of the Supreme Court.

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Sentencing

Sch 1

[5-Sch 1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Sch 1

(2) If the Supreme Court grants leave to withdraw an application referred to in clause 2(1): (a) the offender who made the application may not make a further application referred to in clause 2(1) without the leave of the Court, and (b) if the Court so directs, the offender may not make the further application for a specified period of time. (3) In considering whether to grant leave to withdraw an application, or to make a further application, referred to in clause 2(1), the Supreme Court must have regard to and give substantial weight to the number of times the offender has previously withdrawn any application referred to in clause 2(1). (4) Subclause (3) does not limit the matters to which the Supreme Court may have regard in deciding whether or not to grant leave to withdraw an application, or to make a further application, referred to in clause 2(1). (5) No appeal lies against the decision of the Supreme Court on an application for leave under subclause (1). (6) An application referred to in clause 2(1) that is withdrawn cannot be restored. (7) If the Supreme Court declines to grant an application for leave under subclause (2)(a), the offender is to serve the existing life sentence the subject of the application for the term of his or her natural life. [cl 6A insrt Act 57 of 2008 s 3 and Sch 1, opn 1 July 2008]

Matters relating to exercise of Supreme Court’s functions 7 (1) In considering an application referred to in clause 2(1), the Supreme Court is to have regard to: (a) any reports on the offender made by the Review Council, and any other relevant reports prepared after the offender was sentenced, that are available to the Supreme Court, and (b) the need to preserve the safety of the community, and (c) the age of the offender (at the time the offender committed the offence and also at the time the Supreme Court deals with the application), and (d) in the case of an offender sentenced before 12 January 1990 (the date on which section 463 of the Crimes Act 1900 was repealed by section 5 of the Prisons (Serious Offenders Review Board) Amendment Act 1989), the fact that the sentencing court: (i) would have been aware that an offender sentenced to imprisonment for life was eligible to be released on licence under section 463 of the Crimes Act 1900, and (ii) would have been aware of the practice relating to the issue of such licences, and (e) any other relevant matter. (2) The regulations may make provision for or with respect to reports referred to in subclause (1), including provisions relating to the matters to be dealt with in reports and the making of reports available to the Supreme Court. (3) In considering an application referred to in clause 2(1), the Supreme Court: (a) must have regard to and give substantial weight to any relevant recommendations, observations and comments made by the sentencing court when imposing the sentence concerned, and

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CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-Sch 1.1]

(b) must give consideration to adopting or giving effect to the substance of any such recommendations, observations and comments and the intention of the sentencing court when making them, and (c) to the extent that it declines to adopt or give effect to any such recommendations, observations and comments, must make a record of its reasons for doing so. (4) Subclause (3)(c) does not limit any other requirement that the Supreme Court has, apart from that paragraph, to record the reasons for its decisions. (5) In considering an application referred to in clause 2(1) that is made on or after 17 June 2008, or that was made before that date but not finally disposed of before the commencement of the Crimes (Sentencing Procedure) Amendment (Life Sentences) Act 2008, the Supreme Court must have regard to and give substantial weight to the following: (a) the level of culpability of the offender in the commission of the offence for which the sentence was imposed, (b) the heinousness of the offence. [subcl (5) insrt Act 57 of 2008 s 3 and Sch 1, opn 1 July 2008]

Appeal from Supreme Court’s decision 8 (1) An appeal lies to the Court of Criminal Appeal in relation to: (a) a determination by the Supreme Court under clause 4(1) or (3), or (b) a direction by the Supreme Court under clause 6(1) or 6A(2)(b), or (c) a decision of the Supreme Court on an application for leave under clause 6A(2)(a). [subcl (1) am Act 29 of 2001 s 3 and Sch 1[4], opn 20 July 2001; Act 57 of 2008 s 3 and Sch 1, opn 1 July 2008]

(2) The Criminal Appeal Act 1912 applies: (a) to an appeal referred to in subclause (1)(a) or (b), in the same way as it applies to an appeal against a sentence, and (b) to an appeal referred to in subclause (1)(c), in the same way as it applies to an appeal against an interlocutory judgment or order. [subcl (2) subst Act 57 of 2008 s 3 and Sch 1, opn 1 July 2008]

(3) If the Court of Criminal Appeal allows an appeal against the decision of the Supreme Court to refuse an application for leave under clause 6A(2)(a), the Court of Criminal Appeal may exercise the jurisdiction of the Supreme Court to determine the further application referred to in clause 2(1). [subcl (3) insrt Act 57 of 2008 s 3 and Sch 1, opn 1 July 2008]

COMMENTARY ON SCHEDULE 1 Redetermining existing life sentences . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-Sch 1.1]

[5-Sch 1.1] Redetermining existing life sentences The provision is similar to that which was previously found in s 13A of the Sentencing Act 1989. In so far that the cl 2(3) requires there to be special reasons demonstrated for releasing a prisoner who was subject to a “non-release recommendation” the provisions is not invalid even though it may be difficult or rare for those reasons to be demonstrated: Baker v R (2004) 223 CLR 513; 210 ALR 1; [2004] HCA 45; BC200406383; (2004) 11 Crim LN 99 [1774]. The construction and operation of provisions in Sch1 were considered in Boyd v R [2016] NSWSC 1691 (where leave to withdraw an application was refused under cl 6A of Sch 1)

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Sentencing

Sch 1

[5-Sch 1.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Sch 1

and Boyd v R (No 3) [2017] NSWSC 863; BC201705235 (where application to determine the life sentence was refused).

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SCHEDULE 1A — PROVISIONS RELATING TO MEMBERSHIP AND PROCEDURE OF NEW SOUTH WALES SENTENCING COUNCIL (Section 100I)

[Sch 1A insrt Act 90 of 2002 s 3 and Sch 1[7] opn 17 Feb 2003]

Definition 1 In this Schedule: member means any member of the Sentencing Council. Chairperson and Deputy Chairperson 2 (1) The member appointed under section 100I(2)(a) is to be the Chairperson of the Sentencing Council. (2) The Minister may, from time to time, appoint another member of the Sentencing Council as the Deputy Chairperson of the Council. Terms of office of members 3 Subject to this Schedule, a member holds office for such period (not exceeding 3 years) as may be specified in the member’s instrument of appointment but is eligible (if otherwise qualified) for re-appointment. Remuneration 4 A member (other than a member who is employed in the public sector) is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the member. Deputies of members 5 (1) The Minister may, from time to time, appoint a person to be the deputy of a member, and the Minister may revoke any such appointment. (2) In the absence of a member, the member’s deputy may, if available, act in the place of the member. (3) For the purposes of this clause, a vacancy in the office of a member is taken to be an absence of the member. Vacancy in office of member 6 (1) The office of a member becomes vacant if the member: (a) dies, or (b) completes a term of office and is not re-appointed, or (c) resigns the office by instrument in writing addressed to the Minister, or (d) is removed from office by the Minister under this clause, or (e) is absent from 4 consecutive meetings of the Sentencing Council of which reasonable notice has been given to the member personally or by post, except on leave granted by the Minister or unless the member is excused by the Minister for having been absent from those meetings, or

659

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Sentencing

[5-Sch 1A]

[5-Sch 1A]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Sch 1A

(f) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or (g) becomes a mentally incapacitated person, or (h) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable. (2) The Minister may at any time remove a member from office. Filling of vacancy in office of member 7 If the office of any member becomes vacant, a person is, subject to this Act, to be appointed to fill the vacancy. Effect of certain other Acts 8 (1) The provisions of the Government Sector Employment Act 2013 relating to the employment of Public Service employees do not apply to a member. [subcl (1) subst Act 15 of 2015 Sch 3.17[8], opn 15 July 2015]

(2) If by or under any Act provision is made: (a) requiring a person who is the holder of a specified office to devote the whole of his or her time to the duties of that office, or (b) prohibiting the person from engaging in employment outside the duties of that office, the provision does not operate to disqualify the person from holding that office and also the office of a member or from accepting and retaining any remuneration payable to the person under this Act as a member. General procedure 9 The procedure for the calling of meetings of the Sentencing Council and for the conduct of business at those meetings is, subject to this Act and the regulations, to be as determined by the Sentencing Council. Quorum 10 The quorum for a meeting of the Sentencing Council is a majority of its members for the time being. [cl 10 am Act 107 of 2006 s 3 and Sch 1(1.9) item [8], opn 23 Feb 2007; Act 27 of 2009 Sch 5, opn 19 May 2009; Act 8 of 2011 Sch 1.1[3], opn 7 June 2011]

Presiding member 11 (1) The Chairperson (or, in the absence of the Chairperson, the Deputy Chairperson, or, in the absence of both, a member elected to chair the meeting by the members present) is to preside at a meeting of the Sentencing Council. (2) The presiding member has a deliberative vote and, in the event of an equality of votes, has a second or casting vote. Voting 12 A decision supported by a majority of the votes cast at a meeting of the Sentencing Council at which a quorum is present is the decision of the Sentencing Council.

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Sch 1A

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-Sch 1A]

Sentencing

First meeting 13 The Minister may call the first meeting of the Sentencing Council in such manner as the Minister thinks fit.

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SCHEDULE 2 — SAVINGS, TRANSITIONAL AND OTHER PROVISIONS (Section 104)

PART 1 — PRELIMINARY Savings and transitional regulations 1 (1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts: Crimes (Sentencing Procedure) Act 1999 Crimes Legislation Amendment (Sentencing) Act 1999 Crimes Legislation Amendment (Existing Life Sentences) Act 2001 Justice Legislation Amendment (Non-association and Place Restriction) Act 2001 (to the extent only to which it amends this Act) Criminal Legislation Amendment Act 2001, to the extent that it amends this Act Crimes (Sentencing Procedure) Amendment (General Sentencing Principles) Act 2002 Crimes Legislation Amendment (Periodic and Home Detention) Act 2002 Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 Crimes Legislation Amendment (Criminal Justice Interventions) Act 2002 Crimes Legislation Amendment Act 2002 (but only to the extent that it amends this Act) Crimes Legislation Amendment (Parole) Act 2003, to the extent that it amends this Act Crimes Legislation Amendment Act 2003 Crimes Legislation Further Amendment Act 2003 (but only to the extent that it amends this Act) Courts Legislation Amendment Act 2004 (but only to the extent that it amends this Act) Crimes (Sentencing Procedure) Amendment (Victim Impact Statements) Act 2004 Crimes (Sentencing Procedure) Amendment Act 2006 Crimes and Courts Legislation Amendment Act 2006, to the extent that it amends this Act Crimes (Sentencing Procedure) Amendment Act 2007 Crimes (Sentencing Procedure) Amendment (Life Sentences) Act 2008 Crimes (Sentencing Procedure) Amendment (Victim Impact Statements) Act 2008 Crimes Amendment (Sexual Offences) Act 2008 Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010 (but only to the extent that it amends this Act or an Act amended by Schedule 5 to that Act) Crimes (Sentencing Procedure) Amendment Act 2010 (but only to the extent that it amends this Act)

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CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-Sch 2]

Courts and Other Legislation Amendment Act 2011 (but only to the extent that it amends this Act) Crimes (Sentencing Procedure) Amendment (Children in Vehicles) Act 2011 Criminal Case Conferencing Trial Repeal Act 2012 Graffiti Legislation Amendment Act 2012 (but only to the extent that it amends this Act) any Act that amends this Act [subcl (1) am Act 29 of 2001 s 3 and Sch 1[5], opn 20 July 2001; Act 117 of 2001 s 3 and Sch 5[13], opn 18 Dec 2001; Act 5 of 2002 s 3 and Sch 1[2], opn 15 Apr 2002; Act 100 of 2001 s 3 and Sch 1.1[8], opn 19 July 2002; Act 74 of 2002 s 4 and Sch 2[5], opn 2 Dec 2002; Act 90 of 2002 s 3 and Sch 3.2[1], opn 1 Feb 2002; Act 130 of 2002 s 3 and Sch 5[7], opn 13 Jan 2003; Act 100 of 2002 s 5 and Sch 3[14], opn 24 Feb 2003; Act 27 of 2003 Sch 6[9], opn 8 July 2003; Act 25 of 2003 s 3 and Sch 1, opn 3 Nov 2003; Act 85 of 2003 s 3 and Sch 2[2], opn 14 Feb 2004; Act 68 of 2004 s 3 and Sch 4[7], opn 6 July 2004; Act 3 of 2004 s 3 and Sch 1[5], opn 31 July 2004; Act 27 of 2006 s 3 and Sch 1[4], opn 26 May 2006; Act 107 of 2006 s 3 and Sch 1.9[9], opn 29 Nov 2006; Act 50 of 2007 s 3 and Sch 1[15], opn 1 Jan 2008; Act 57 of 2008 s 3 and Sch 1, opn 1 July 2008; Act 81 of 2008 s 3 and Sch 1, opn 1 Jan 2009; Act 105 of 2008 s 4 and Sch 2, opn 1 Jan 2009; Act 48 of 2010 Sch 1, opn 1 Oct 2010; Act 136 of 2010 Sch 1.2[13], opn 14 Mar 2011; Act 8 of 2011 Sch 1.1[4], opn 7 June 2011; Act 64 of 2011 Sch 1[4], opn 16 Nov 2011; Act 4 of 2012 Sch 1[1], opn 14 Mar 2012; Act 57 of 2012 Sch 1 item 1.2, opn 10 Dec 2012; Act 7 of 2013 Sch 1[2], opn 25 Mar 2013]

(2) Such a provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later day. (3) To the extent to which such a provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as: (a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of that publication, or (b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of that publication. PART 2 — PROVISIONS CONSEQUENT ON ENACTMENT OF CRIMES (SENTENCING PROCEDURE) ACT 1999 DIVISION 1 — PERIODIC DETENTION OF PRISONERS ACT 1981

Definitions 2 In this Division: 1981 Act means the Periodic Detention of Prisoners Act 1981, as in force immediately before the appointed day. appointed day means the day on which Part 5 of this Act commences. Periodic detention orders 3 Any order for periodic detention that, immediately before the appointed day, was in force under the 1981 Act: (a) is taken to be a periodic detention order within the meaning of this Act, and (b) is taken to be subject to the same conditions as those to which it was subject immediately before that day. Undertakings 4 Any undertaking entered into under section 5(1B) of the 1981 Act is taken to be an undertaking entered into under section 66 of this Act.

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Sch 2

[5-Sch 2]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Sch 2

Ancillary orders 5 Any order that, immediately before the appointed day, was in force under section 5(6) of the 1981 Act is taken to be an order of the same kind made under this Act, and may be amended or revoked accordingly. Suitability reports 6 A suitability report prepared under section 5(7) of the 1981 Act is taken to be an assessment report prepared under section 69 of this Act. Warrants 7 Any warrant that, immediately before the appointed day, was in force under section 6 of the 1981 Act is taken to be a warrant in force under this Act, and may be enforced accordingly. Notices 8 Any notice served on a person before the appointed day under section 7 of the 1981 Act is taken to have been served on the person under section 72 of this Act. DIVISION 2 — HOME DETENTION ACT 1996

Definitions 9 In this Division: 1996 Act means the Home Detention Act 1996, as in force immediately before the appointed day. appointed day means the day on which Part 6 of this Act commences. Home detention orders 10 Any home detention order that, immediately before the appointed day, was in force under the 1996 Act: (a) is taken to be a home detention order within the meaning of this Act, and (b) is taken to be subject to the same conditions as those to which it was subject immediately before that day. Assessment reports 11 Any assessment report prepared under section 10 of the 1996 Act is taken to be an assessment report prepared under section 81 of this Act. Undertakings 12 Any undertaking entered into under section 12 of the 1996 Act is taken to be an undertaking entered into under section 78 of this Act. DIVISION 3 — COMMUNITY SERVICE ORDERS ACT 1979

Definitions 13 In this Division: 1979 Act means the Community Service Orders Act 1979, as in force immediately before the appointed day.

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Sch 2

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-Sch 2]

Community service orders 14 Any community service order that, immediately before the appointed day, was in force under the 1979 Act: (a) is taken to be a community service order within the meaning of this Act, and (b) is taken to be subject to the same conditions as those to which it was subject immediately before that day. Suitability reports 15 Any report prepared under section 6 of the 1979 Act is taken to be an assessment report prepared under section 89 of this Act. Notices 16 Any copy of a community service order served on a person before the appointed day under section 12 of the 1979 Act is taken to be notice of the order served in accordance with section 93 of this Act. DIVISION 4 — SENTENCING ACT 1989

Definitions 17 In this Division: 1989 Act means the Sentencing Act 1989, as in force immediately before the appointed day. appointed day means the day on which Part 4 of this Act commences. Parole orders 18 Any parole order that, immediately before the appointed day, was in force under the 1989 Act: (a) is taken to be a parole order within the meaning of this Act, and (b) is taken to be subject to the same conditions as those to which it was subject immediately before that day. Sentences of imprisonment 19 (1) The term of a sentence ascertained under the 1989 Act is taken to be the term of the sentence determined under this Act. (2) Any minimum term determined under the 1989 Act is taken to be a non-parole period determined under this Act. (3) Any additional term determined under the 1989 Act is taken to be that part of a sentence of imprisonment whose term has been determined under this Act as occurs after the expiry of the non-parole period for the sentence. (4) Any fixed term determined for a sentence under the 1989 Act is taken to be the term of the sentence determined under this Act. Information about minimum term 20 Any information given by a court for the purposes of section 8 of the 1989 Act is taken to have been given for the purposes of section 48 of this Act.

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Sentencing

appointed day means the day on which Part 7 of this Act commences.

[5-Sch 2]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Sch 2

Applications for determination of minimum terms for existing life sentences 21 (1) Any application under section 13A of the 1989 Act that had been made, but not determined, before the appointed day is to be determined in accordance with Schedule 1 to this Act. (2) In particular, any such application that had been made before 8 May 1997 under section 13A of the 1989 Act but had not been determined as at the date of assent to the Crimes (Sentencing Procedure) Amendment (Existing Life Sentences) Act 2005, being an application made by an offender who is the subject of a non-release recommendation: (a) is not to be determined until the offender has served at least 30 years of the existing life sentence to which the application relates, and (b) is to be disposed of in accordance with clause 4(3) of Schedule 1 to this Act, and not otherwise. [subcl (2) subst Act 13 of 2005 s 3 and Sch 1[3], opn 6 May 2005]

(3) Any determination in force immediately before the appointed day under section 13A(4) of the 1989 Act, or made after the appointed day under that subsection, is taken to be a determination under clause 4 of Schedule 1 to this Act. [subcl (3) am Act 130 of 2002 s 3 and Sch 5[8], opn 13 Jan 2003]

(4) Any direction in force immediately before the appointed day under section 13A (8) of the 1989 Act, or given after the appointed day under that subsection, is taken to be a direction under clause 6 of Schedule 1 to this Act. [subcl (4) am Act 130 of 2002 s 3 and Sch 5[9], opn 13 Jan 2003]

Existing licences and existing sentences 22 (1) Schedule 2 to the 1989 Act, and the 1989 Regulation, continue to have effect in relation to: (a) an existing licence, and (b) an existing sentence, and (c) a person the subject of an existing licence or existing sentence, as if this Act and the Crimes Legislation Amendment (Sentencing) Act 1999 had not been enacted. (2) In this clause: 1989 Regulation means the Sentencing (Savings and Transitional Provisions) Regulation 1989. existing licence has the same meaning as it has in the 1989 Act. existing sentence means a sentence of imprisonment to which a person was subject immediately before the repeal of the Probation and Parole Act 1983. DIVISION 5 — CRIMINAL PROCEDURE ACT 1986

Definitions 23 In this Division: 1986 Act means the Criminal Procedure Act 1986, as in force immediately before the appointed day. appointed day means the day on which Part 3 of this Act commences.

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Sch 2

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-Sch 2]

Lists of additional charges 25 A document prepared before the appointed day in accordance with the requirements of section 21 of the 1986 Act is taken have been prepared in accordance with the requirements of section 32 of this Act. Ancillary orders 26 The power of a court to make ancillary orders under section 34 of this Act in relation to a further offence that has been taken into account by the court under Division 3 of Part 3 of this Act extends to an offence that has been taken into account by the court under Part 6 of the 1986 Act. Guideline judgments 27 Division 4 of Part 3 applies to guideline judgments given under Part 8 of the 1986 Act in the same way as it applies to guideline judgments given under that Division. DIVISION 6 — CRIMES ACT 1900

Definition 28 In this Division: 1900 Act means the Crimes Act 1900, as in force immediately before the appointed day. appointed day means: (a) in relation to clause 29(1), the day on which Schedule 3[6] to the Crimes Legislation Amendment (Sentencing) Act 1999 commences, or (b) in relation to clause 29(2), the day on which Schedule 3[7] to the Crimes Legislation Amendment (Sentencing) Act 1999 commences. Recognizances 29 (1) Any recognizance that, immediately before the commencement of Schedule 3[6] to the Crimes Legislation Amendment (Sentencing) Act 1999, was in force under section 547 of the 1900 Act continues to have effect, and may be enforced in accordance with that section, as if that section had not been repealed. (2) Any recognizance that, immediately before the commencement of Schedule 3[7] to the Crimes Legislation Amendment (Sentencing) Act 1999, was in force under section 556A or 558 of the 1900 Act continues to have effect, and may be enforced in accordance with Part 15 of that Act, as if that Part had not been repealed.

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Victim impact statements 24 A victim impact statement prepared before the appointed day in accordance with the requirements of Part 6A of the 1986 Act is taken have been prepared in accordance with the requirements of Division 2 of Part 3 of this Act.

[5-Sch 2]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Sch 2

DIVISION 7 — JUSTICES ACT 1902

Definition 30 In this Division: 1902 Act means the Justices Act 1902, as in force immediately before the appointed day. appointed day means the day on which Schedule 4.35[17] to the Crimes Legislation Amendment (Sentencing) Act 1999 commences. Arrest warrants for absent offenders 31 Any warrant that, immediately before the commencement of Schedule 4.35[17] to the Crimes Legislation Amendment (Sentencing) Act 1999, was in force under section 80AA of the 1902 Act is taken to be a warrant under section 25 of this Act, and may be enforced accordingly. DIVISION 8 — GENERAL

Definitions 32 In this Division: appointed day means the day appointed under section 2 for the commencement of the provision of this Act in relation to which that expression is used. old legislation means: (a) any Act or instrument repealed by Schedule 1 to the Crimes Legislation Amendment (Sentencing) Act 1999, as in force immediately before its repeal, and (b) any Act or instrument amended by Schedule 2, 3, 4 or 5 to the Crimes Legislation Amendment (Sentencing) Act 1999, as in force immediately before its amendment. Power to fine for certain offences 33 Section 15 of this Act does not apply to an offence committed before 17 March 1991 (the date on which section 440AA of the Crimes Act 1900 commenced) so as to enable a fine to be imposed on an offender in addition to any other penalty imposed on the offender for the same offence. Taking of photographs and fingerprints 34 Section 63 of this Act extends to offenders sentenced before the appointed day. Delegations 35 Any delegation that, immediately before the appointed day, was in force under a provision of the old legislation for which there is a corresponding provision in this Act is taken to be a delegation in force under the corresponding provision of this Act. Construction of certain references 36 Subject to the regulations, in any Act or instrument: (a) a reference to a provision of the old legislation for which there is a corresponding provision in this Act extends to the corresponding provision of this Act, and

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Sch 2

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-Sch 2]

General saving 37 Subject to the regulations: (a) anything begun before the appointed day under a provision of the old legislation for which there is a corresponding provision in this Act may be continued and completed under the old legislation as if the Crimes Legislation Amendment (Sentencing) Act 1999 had not been enacted, and (b) subject to paragraph (a), anything done under a provision of the old legislation for which there is a corresponding provision in this Act (including anything arising under paragraph (a)) is taken to have been done under the corresponding provision of this Act. PART 3 — PROVISIONS CONSEQUENT ON ENACTMENT OF CRIMES LEGISLATION AMENDMENT (EXISTING LIFE SENTENCES) ACT 2001 [Pt 3 insrt Act 29 of 2001 s 3 and Sch 1[6], opn 20 July 2001]

Definition 38 In this Part, the 2001 amending Act means the Crimes Legislation Amendment (Existing Life Sentences) Act 2001. Application of amendments 39 [cl 39 rep Act 13 of 2005 s 3 and Sch 1[4], opn 6 May 2005] PART 4 — PROVISIONS CONSEQUENT ON ENACTMENT OF CRIMINAL PROCEDURE AMENDMENT (PRE-TRIAL DISCLOSURE) ACT 2001 [Pt 4 insrt Act 7 of 2001 s 5 and Sch 3[2], opn 19 Nov 2001]

Application of section 22A (Power to reduce penalties for pre-trial disclosure) 40 Section 22A extends to proceedings for an offence that were instituted (but not finally determined) before the commencement of that section. PART 5 — PROVISIONS CONSEQUENT ON ENACTMENT OF CRIMINAL LEGISLATION AMENDMENT ACT 2001 [Pt 5 insrt Act 117 of 2001 s 3 and Sch 5[14], opn 18 Dec 2001]

Validation of guideline judgments 41 Any guideline judgment given by the Court of Criminal Appeal before the commencement of section 37A that would have been validly given had section 37A commenced before it was given has, and is taken always to have had, the same force and effect as it would have had if section 37A had commenced before it was given. Application of amendments 42 Section 37B extends to any guideline judgment given before the commencement of that section (whether under Division 4 of Part 3 or apart from that Division).

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(b) a reference to any act, matter or thing referred to in a provision of the old legislation for which there is a corresponding provision in this Act extends to the corresponding act, matter or thing referred to in the corresponding provision of this Act.

[5-Sch 2]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Sch 2

Parole orders 43 Section 51(1b)(b) applies to a parole order regardless of whether the order was made before, on or after the commencement of that provision. [cl 43 insrt Act 117 of 2001 s 3 and Sch 5[15], opn 21 Dec 2001]

PART 6 — PROVISIONS CONSEQUENT ON ENACTMENT OF JUSTICE LEGISLATION AMENDMENT (NON-ASSOCIATION AND PLACE RESTRICTION) ACT 2001 [Pt 6 insrt Act 100 of 2001 s 3 and Sch 1.1[9], opn 22 July 2002]

Application of section 17A 44 Section 17A, as inserted by the Justice Legislation Amendment (Non-association and Place Restriction) Act 2001, does not apply to any offence committed before the commencement of that section. PART 7 — PROVISIONS CONSEQUENT ON ENACTMENT OF CRIMES (SENTENCING PROCEDURE) AMENDMENT (STANDARD MINIMUM SENTENCING) ACT 2002 [Pt 7 insrt Act 90 of 2002 s 3 and Sch 3.2[9], opn 1 Feb 2003]

Offences to which amending Act applies 45 (1) Except as provided by subclause (2), the amendments made to this Act by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 do not apply to offences committed before the commencement of the amendments. (2) Sections 3A and 21A of this Act, as inserted by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002, apply to the determination of a sentence for an offence whenever committed, unless: (a) a court has convicted the person being sentenced of the offence, or (b) a court has accepted a plea of guilty to the offence and the plea has not been withdrawn, before the commencement of the section concerned. (3) Section 21A of this Act, as in force immediately before its repeal by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002, continues to apply as if it had not been repealed to the determination of a sentence for an offence in respect of which: (a) a court has convicted the person being sentenced of the offence, or (b) a court has accepted a plea of guilty to the offence and the plea has not been withdrawn, before that repeal. (4) In this clause: convict includes make a finding of guilt. Application of existing guideline judgments 46 A guideline judgment made before the commencement of any amendment to this Act made by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 continues to have effect, except to the extent to which it is inconsistent with this Act, as so amended.

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Sch 2

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-Sch 2]

PART 8 — PROVISIONS CONSEQUENT ON CRIMES LEGISLATION AMENDMENT (CRIMINAL JUSTICE INTERVENTIONS) ACT 2002 Application 47 An amendment to this Act made by the Crimes Legislation Amendment (Criminal Justice Interventions) Act 2002 extends to an offence committed before the commencement of the amendment unless proceedings (other than committal proceedings) for the offence were commenced before the commencement of the amendment. PART 9 — PROVISIONS CONSEQUENT ON ENACTMENT OF CRIMES LEGISLATION AMENDMENT ACT 2002 [Pt 9 insrt Act 130 of 2002 s 3 and Sch 5, opn 13 Jan 2003]

Application of amendments to sections 55 and 56 48 (1) An amendment to section 55 or 56 made by the Crimes Legislation Amendment Act 2002 applies only to a new sentence of imprisonment imposed in relation to an offence committed after the commencement of the amendment, and so applies whether or not the old sentence was imposed before the commencement of the amendment. (2) In subclause (1), new sentence of imprisonment means a sentence of imprisonment imposed on an offender who, when being sentenced, is subject to another sentence of imprisonment that is yet to expire, or in respect of whom another sentence of imprisonment has been imposed in the same proceedings, and old sentence of imprisonment means that other sentence of imprisonment (that term having the extended meaning given by section 56(6), as inserted by the Crimes Legislation Amendment Act 2002). Application of amendment to section 58 49 The amendment to section 58 made by the Crimes Legislation Amendment Act 2002 applies only to a new sentence (within the meaning of that section) imposed in relation to an offence committed after the commencement of the amendment, and so applies whether or not the old sentence (within the meaning of that section, as amended by the Crimes Legislation Amendment Act 2002) was imposed before the commencement of the amendment. PART 10 — PROVISIONS CONSEQUENT ON ENACTMENT OF CRIMES LEGISLATION AMENDMENT (PAROLE) ACT 2003 [Pt 10 insrt Act 25 of 2003 s 3 and Sch 1, opn 3 Nov 2003]

Application of section 51(1AA) 50 Section 51 (1AA), as inserted by the Crimes Legislation Amendment (Parole) Act 2003, does not apply to any parole order made by a court under section 50 before the commencement of that subsection. PART 11 — PROVISIONS CONSEQUENT ON ENACTMENT OF CRIMES LEGISLATION AMENDMENT ACT 2003 [Pt 11 insrt Act 27 of 2003 s 3 and Sch 6[10], opn 8 July 2003]

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[Pt 8 insrt Act 100 of 2002 s 3 and Sch 3[15], opn 24 Feb 2003]

[5-Sch 2]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Sch 2

Application of amendments 51 (1) Section 65B, as inserted by the Crimes Legislation Amendment Act 2003, does not apply to proceedings commenced before the commencement of that section. (2) For the purposes of this clause, proceedings on indictment following an accused person’s committal for trial for an offence are taken to have commenced when committal proceedings for the offence were first commenced. (3) Section 65B, as inserted by the Crimes Legislation Amendment Act 2003, extends to offences committed before the commencement of that section and, for that purpose, a prescribed sexual offence is taken to include: (a) an offence committed before 13 June 2003 under Division 10 or 10A of Part 3 of the Crimes Act 1900, as in force from time to time before that date, being: (i) an offence committed on a person under the age of 16 years, or (ii) an offence, committed on a person of any age, the elements of which include sexual intercourse (as defined by section 61H of that Act), homosexual intercourse (as defined by section 78G of that Act) or carnal knowledge (as defined by section 62(2) of that Act), and (b) an offence committed before 17 March 1991 under section 61B, 61C, 61D, 61E or 61F of the Crimes Act 1900, as in force from time to time before that date, being: (i) an offence committed on a person under the age of 16 years, or (ii) an offence, committed on a person of any age, the elements of which include sexual intercourse (as defined by section 61A of that Act), and (c) the offence of rape committed before 14 July 1981 as referred to in section 63 or 65 of the Crimes Act 1900, as in force from time to time before that date. PART 12 — PROVISIONS CONSEQUENT ON ENACTMENT OF CRIMES LEGISLATION FURTHER AMENDMENT ACT 2003 [Pt 12 insrt Act 85 of 2003 s 3 and Sch 2[3], opn 14 Feb 2004]

Power of Local Court to impose further consecutive sentences 52 (1) Section 58, as in force immediately before its substitution by the Crimes Legislation Further Amendment Act 2003, continues to apply to offences for which proceedings had commenced before its substitution. (2) Section 58, as substituted by the Crimes Legislation Further Amendment Act 2003, extends to offences committed before the commencement of that section, other than offences for which proceedings had commenced before its substitution. PART 13 — PROVISIONS CONSEQUENT ON ENACTMENT OF CRIMES (SENTENCING PROCEDURE) AMENDMENT (VICTIM IMPACT STATEMENTS) ACT 2004 [Pt 13 insrt Act 3 of 2004 s 3 and Sch 1[6], opn 31 July 2004]

Victim impact statements 53 The amendments made to sections 27 and 28 of this Act by the Crimes (Sentencing Procedure) Amendment (Victim Impact Statements) Act 2004 extend to offences committed before the commencement of those amendments, whether or not proceedings were commenced before that commencement.

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Sch 2

CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-Sch 2]

PART 14 — PROVISION CONSEQUENT ON ENACTMENT OF COURTS LEGISLATION AMENDMENT ACT 2004 Prescribed forms 54 A form to the effect of a form prescribed for the purpose of section 32, 62, 66, 73 or 78 by a regulation in force immediately before the commencement of Schedule 4 to the Courts Legislation Amendment Act 2004 may be used for the purpose of the relevant section until such time as regulations are made under section 103(2). PART 15 — PROVISIONS CONSEQUENT ON ENACTMENT OF CRIMES (SENTENCING PROCEDURE) AMENDMENT ACT 2006 [Pt 15 insrt Act 27 of 2006 s 3 and Sch 1[5], opn 26 May 2006]

Existing offences and proceedings 55 The amendments made to this Act by the Crimes (Sentencing Procedure) Amendment Act 2006 apply to the determination of a sentence for an offence whenever committed, unless: (a) the court has convicted the person being sentenced of the offence, or (b) a court has accepted a plea of guilty and the plea has not been withdrawn, before the commencement of that Act. PART 16 — PROVISIONS CONSEQUENT ON ENACTMENT OF CRIMES AND COURTS LEGISLATION AMENDMENT ACT 2006 [Pt 16 insrt Act 107 of 2006, s 3 and Sch 1[10], opn 29 Nov 2006]

Application of amendments 56 (1) The amendments made to sections 12 and 99 by the Crimes and Courts Legislation Amendment Act 2006, and section 10A, as inserted by that Act, extend to proceedings commenced (but not concluded) before the commencement of the amendments. (2) The amendments made to section 99 by the Crimes and Courts Legislation Amendment Act 2006 extend to proceedings in respect of the revocation of a good behaviour bond entered into before the commencement of the amendments, subject to subclause (3). (3) The amendments to section 99 do not require a non-parole period in respect of a sentence of imprisonment to be set on the revocation of a good behaviour bond entered into before the commencement of the amendments if the non-parole period was set at the time that the sentence was suspended. PART 17 — PROVISIONS CONSEQUENT ON ENACTMENT OF CRIMES (SENTENCING PROCEDURE) AMENDMENT ACT 2007 [Pt 17 insrt Act 50 of 2007 s 3 and Sch 1[16], opn 1 Jan 2008]

Existing offences and proceedings 57 The amendments made to this Act by the Crimes (Sentencing Procedure) Amendment Act 2007 apply to the determination of a sentence for an offence whenever committed, unless:

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(a) the court has convicted the person being sentenced of the offence, or (b) a court has accepted a plea of guilty and the plea has not been withdrawn, before the commencement of the amendments. PART 18 — PROVISIONS CONSEQUENT ON ENACTMENT OF CRIMES (SENTENCING PROCEDURE) AMENDMENT (VICTIM IMPACT STATEMENTS) ACT 2008 [Pt 18 insrt Act 81 of 2008 s 3 and Sch 1, opn 1 Jan 2009]

Application of amendments 58 (1) An amendment made to this Act by the Crimes (Sentencing Procedure) Amendment (Victim Impact Statements) Act 2008 applies in respect of any victim impact statement that is first received by a court after the commencement of the amendment. (2) This Act, as in force immediately before any such amendment, continues to apply in respect of any victim impact statement received by a court before the commencement of the amendment. PART 19 — PROVISIONS CONSEQUENT ON ENACTMENT OF CRIMES AMENDMENT (SEXUAL OFFENCES) ACT 2008 [Pt 19 insrt Act 105 of 2008 s 4 and Sch 2, opn 1 Jan 2009]

Existing offences and proceedings 59 (1) An amendment made to Part 3 of this Act by the Crimes Amendment (Sexual Offences) Act 2008 applies to the determination of a sentence for an offence whenever committed, unless: (a) a court has convicted the person being sentenced of the offence, or (b) a court has accepted a plea of guilty and the plea has not been withdrawn, before the commencement of the amendment. (2) In this clause: convict includes make a finding of guilt. Standard non-parole periods 60 (1) An amendment made to section 54D by the Crimes Amendment (Sexual Offences) Act 2008 does not affect any sentence imposed before the commencement of that amendment. (2) The Table to Division 1A of Part 4, as in force immediately before its amendment by the Crimes Amendment (Sexual Offences) Act 2008, continues to apply in respect of an offence against section 66A of the Crimes Act 1900 committed before the commencement of the amendment. PART 20 — PROVISIONS CONSEQUENT ON ENACTMENT OF CRIMES (SENTENCING LEGISLATION) AMENDMENT (INTENSIVE CORRECTION ORDERS) ACT 2010 [Pt 20 insrt Act 48 of 2010 Sch 1, opn 1 Oct 2010]

Savings for periodic detention orders 61 (1) The repeal of section 6 (Periodic detention) does not affect the continuity of

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operation of a periodic detention order made before the repeal of that section. Such an order continues in force despite the repeal of that section, subject to this Act and the Crimes (Administration of Sentences) Act 1999. (2) This Act and each amended Act (and the regulations under this Act and each amended Act) continue to apply to and in respect of the following as if the Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010 had not been enacted: (a) a periodic detention order made before the repeal of section 6, (b) a person subject to such an order, (c) the revocation of such an order and the reinstatement of such an order. (3) In this clause, amended Act means an Act amended by Schedule 5 to the Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010. PART 21 — PROVISION CONSEQUENT ON ENACTMENT OF CRIMES (SENTENCING PROCEDURE) AMENDMENT ACT 2010 [Pt 21 insrt Act 136 2010 Sch 1.2[14], opn 14 Mar 2011]

Application of amendments 62 (1) In this Part: amending Act means the Crimes (Sentencing Procedure) Amendment Act 2010. (2) An amendment made by the amending Act applies to the determination of a sentence for an offence whenever committed, unless: (a) a court has convicted the person being sentenced of the offence, or (b) a court has accepted a plea of guilty and the plea has not been withdrawn, before the commencement of the amendment concerned. PART 21A — PROVISIONS CONSEQUENT ON ENACTMENT OF COURTS AND OTHER LEGISLATION AMENDMENT ACT 2011 [Pt 21A insrt Act 8 of 2011 Sch 1.1[5], opn 7 June 2011]

Effect of amendments 62A Without limiting section 53 of the Interpretation Act 1987, the amendment of section 100I by the Courts and Other Legislation Amendment Act 2011 does not affect the appointment of any existing member of the Sentencing Council (including the appointment of the existing Chairperson of the Council). PART 21B — PROVISIONS CONSEQUENT ON REPEAL OF CRIMINAL CASE CONFERENCING TRIAL ACT 2008 Definitions 62B In this Part: repeal date means the date of assent to the Criminal Case Conferencing Trial Repeal Act 2012. repealed Act means the Criminal Case Conferencing Trial Act 2008, as in force immediately before its repeal.

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Effect of repeal of Act 62C Except as provided by this Part, the repealed Act ceases to apply on and from the repeal date to and in respect of any proceedings for an offence to which the repealed Act applied immediately before the repeal date (regardless of what steps have been taken with respect to any compulsory conference under the repealed Act in the proceedings). Continued operation of sentencing discount arrangements 62D (1) Part 4 (Sentences — guilty pleas) of the repealed Act continues to apply (as if it had not been repealed) to and in respect of the sentencing of an offender on or after the repeal date in proceedings for an offence to which the repealed Act applied immediately before the repeal date, but not to the sentencing of an offender who pleads guilty, on or after the repeal date, at any time after being committed for trial. (2) The repeal of the repealed Act does not affect a sentence imposed before the repeal date. Continued operation of certain protections and offences 62E The following provisions of the repealed Act continue to apply (as if the Act had not been repealed): (a) section 6(4) of the repealed Act, to and in respect of the admissibility of evidence of anything said or admission made (as referred to in that provision) before the repeal date, in any proceedings before a court, tribunal or body commenced before, or on or after, that date, (b) section 9(3) (as qualified by section 9(7)) of the repealed Act, to and in respect of a pre-conference disclosure certificate filed with the Local Court before the repeal date, in relation to any Local Court proceedings with respect to the matters set out in it commenced before, or on or after, the repeal date, (c) section 12(5) of the repealed Act, to and in respect of a compulsory conference certificate filed before the repeal date, (d) section 13 of the repealed Act, to and in respect of: (i) the production and admissibility of a compulsory conference certificate filed before the repeal date (or a copy of such a certificate), in any proceedings before a court, tribunal or body commenced before, or on or after, that date, and (ii) a disclosure of a compulsory conference certificate filed before the repeal date or a copy of such a certificate (or any of its contents) that occurs on or after the repeal date, Note. Section 13(5) of the repealed Act creates an offence of disclosing the contents of a filed compulsory conference certificate (or copy) in contravention of section 13(1) of the repealed Act.

(e) section 14 of the repealed Act, to and in respect of a disclosure of information referred to in that section that occurs before, or on or after, the repeal date. General 62F (1) The provisions of this Part are subject to any regulations made under clause 1. (2) Except to the extent otherwise provided by this Part, nothing in this Part affects the application of section 30 of the Interpretation Act 1987.

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PART 22 — PROVISION CONSEQUENT ON ENACTMENT OF GRAFFITI LEGISLATION AMENDMENT ACT 2012 Conditions of community service orders 63 The amendments made by the Graffiti Legislation Amendment Act 2012 apply to community service orders made in relation to offences committed after the commencement of the amendments. PART 23 — PROVISION CONSEQUENT ON ENACTMENT OF CRIMES (SENTENCING PROCEDURE) AMENDMENT (PROVISIONAL SENTENCING FOR CHILDREN) ACT 2013 [Pt 23 insrt Act 7 of 2013 Sch 1[3], opn 25 Mar 2013]

Provisional sentencing 64 Division 2A of Part 4, as inserted by the Crimes (Sentencing Procedure) Amendment (Provisional Sentencing for Children) Act 2013, applies in respect of any sentence imposed after the commencement of that Division (including for an offence committed before that commencement). PART 24 — PROVISION CONSEQUENT ON ENACTMENT OF CRIMES (SENTENCING PROCEDURE) AMENDMENT (STANDARD NON-PAROLE PERIODS) ACT 2013 [Pt 24 insrt Act 78 of 2013 Sch 1[4], opn 25 Mar 2013]

Operation of amendments 65 An amendment made by the Crimes (Sentencing Procedure) Amendment (Standard Non-parole Periods) Act 2013 extends to an offence committed before the commencement of the amendment but does not affect any sentence imposed before the commencement of the amendment. PART 25 — PROVISION CONSEQUENT ON ENACTMENT OF CRIMES AND OTHER LEGISLATION AMENDMENT (ASSAULT AND INTOXICATION) ACT 2014 [Pt 25 insrt Act 2 of 2014 Sch 3[4], opn 31 Jan 2014]

Existing offences and proceedings 66 The amendments made to this Act by the Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 apply to the determination of a sentence for an offence whenever committed, unless: (a) the court has convicted the person being sentenced of the offence, or (b) a court has accepted a plea of guilty and the plea has not been withdrawn, before the commencement of the amendments. PART 26 — PROVISION CONSEQUENT ON CRIMES (SENTENCING PROCEDURE) AMENDMENT (FAMILY MEMBER VICTIM IMPACT STATEMENT) ACT 2014 [Pt 26 insrt Act 18 of 2014 Sch 1[5], opn 1 July 2014]

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[Pt 22 subst Act 57 of 2012 Sch 1 item 1.2, opn 10 Dec 2012]

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Application of amendments 67 The amendments made to section 28 of this Act by the Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014 apply to the determination of a sentence for an offence whenever committed, unless: (a) the court has convicted the person being sentenced of the offence, or (b) a court has accepted a plea of guilty and the plea has not been withdrawn, before the commencement of the amendments. PART 27 — PROVISION CONSEQUENT ON ENACTMENT OF CRIMES LEGISLATION AMENDMENT (CHILD SEX OFFENCES) ACT 2015 [Pt 27 insrt Act 13 of 2015 Sch 2[3], opn 29 June 2015]

Standard non-parole periods 68 The amendments made to this Act by the Crimes Legislation Amendment (Child Sex Offences) Act 2015 do not apply to offences committed before the commencement of the amendments. PART 28 — PROVISION CONSEQUENT ON ENACTMENT OF CRIMES (SENTENCING PROCEDURE) AMENDMENT (FIREARMS OFFENCES) ACT 2015 [Pt 28 insrt Act 17 of 2015 Sch 1[5], opn 21 Aug 2015]

Standard non-parole periods 69 An amendment made to this Act by the Crimes (Sentencing Procedure) Amendment (Firearms Offences) Act 2015 applies only in respect of an offence committed, or alleged to have been committed, on or after the commencement of the amendment. PART 29 — PROVISIONS CONSEQUENT ON ENACTMENT OF CRIMES (SENTENCING PROCEDURE) AMENDMENT (SENTENCING OPTIONS) ACT 2017 [Pt 29 insrt Act 53 of 2017 Sch 2, opn 24 Sep 2018]

DIVISION 1 — PRELIMINARY

Definitions 70 In this Part: amending Act means the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017. breach of an order or bond includes a failure to comply with the obligations of the order or bond. [def insrt SI 537 of 2018 Sch 2[2], opn 24 Sep 2018]

commencement day means the day on which the amending Act commences. [def subst SI 537 of 2018 Sch 2[1], opn 24 Sep 2018]

Parole Authority means the State Parole Authority constituted under the Crimes (Administration of Sentences) Act 1999. [def insrt SI 537 of 2018 Sch 2[2], opn 24 Sep 2018]

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sentencing legislation means the Crimes (Sentencing Procedure) Act 1999 and the Crimes (Administration of Sentences) Act 1999 as respectively in force at any relevant time. DIVISION 2 — EXISTING BONDS AND ORDERS

Existing home detention orders under section 6 71 (1) This clause applies to a home detention order (the home detention order) made under section 6 before its repeal by the amending Act and in force immediately before the commencement day. A reference in this clause to the home detention order includes a reference to the sentence of imprisonment that is being served by way of home detention, including any period during which the offender is required to be subject to a parole order. (2) The home detention order is taken to be an intensive correction order (the intensive correction order) made under section 7 as substituted by the amending Act. (3) The sentence of imprisonment served by way of the home detention order is taken to be a sentence of imprisonment served by way of the intensive correction order. (4) The intensive correction order is on the commencement day subject only to: (a) the standard conditions of an intensive correction order, and (b) a home detention condition, and (c) any conditions imposed under section 103(1)(b) or (c) or section 103(2)(a) of the Crimes (Administration of Sentences) Act 1999 and in force immediately before the commencement day in respect of the home detention order, and (d) any other conditions prescribed by or determined under the regulations. [subcl (4) am SI 537 of 2018 Sch 2[3], opn 24 Sep 2018]

(5) Subject to this Act and the Crimes (Administration of Sentences) Act 1999, the intensive correction order operates for the same term as the home detention order. (6) A parole order made in relation to the home detention order ceases to have effect on and from the commencement day. (7) If a home detention order includes a period in which the offender is required to be subject to a parole order, the period during which the offender would have been subject to the parole order is to be served subject to the standard conditions of the intensive correction order only. (8) Without limitation, the regulations may make provision for or with respect to conditions that apply to intensive correction orders referred to in this clause. Note. Clause 125 of Schedule 5 to the Crimes (Administration of Sentences) Act 1999 provides for the manner in which the Parole Authority is to exercise its functions under section 81A of that Act (Conditions — Parole Authority) in relation to the conditions of an intensive correction order referred to in this clause.

Existing intensive correction orders under section 7 72 (1) This clause applies to an intensive correction order (the intensive correction order) made under section 7 before its substitution by the amending Act and in force immediately before the commencement day. (2) The intensive correction order is taken to have been made under section 7 as substituted by the amending Act.

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[def insrt SI 537 of 2018 Sch 2[2], opn 24 Sep 2018]

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(3) The intensive correction order is on the commencement day subject only to: (a) the standard conditions of an intensive correction order, and (b) any conditions imposed under section 81(3) of the Crimes (Administration of Sentences) Act 1999 and in force immediately before the commencement day in respect of the intensive correction order, and (c) a condition that requires the offender to undertake a minimum of 32 hours of community service work a month, as directed by a community corrections officer, and (d) any other conditions prescribed by or determined under the regulations. [subcl (3) am SI 537 of 2018 Sch 2[4], [5], opn 24 Sep 2018]

(3A) An offender who is subject to a condition imposed under subclause (3)(c) is subject to the same obligations that are prescribed for the purposes of section 82 of the Crimes (Administration of Sentences) Act 1999 for an offender who is subject to a community service work condition of an intensive correction order. [subcl (3A) insrt SI 537 of 2018 Sch 2[6], opn 24 Sep 2018]

(4) Sections 163 and 164 of the Crimes (Administration of Sentences) Act 1999 as in force on or after the commencement day apply to the intensive correction order in respect of action that may be taken for a breach of the order. (5) The conditions imposed on the intensive correction order by the court under section 81 of the Crimes (Administration of Sentences) Act 1999 as in force before the commencement day cease to apply to the order. This subclause does not limit subclause (3) or (4). (6) The offender is compliant with the community service work condition referred to in subclause (3)(c) which provides for a minimum of 32 hours of community service work a month: (a) to the extent the offender worked the scheduled hours at a work site, if the work was performed in accordance with directions of a community corrections officer or supervisor, including: (i) tea and meal breaks to which the offender is entitled, and (ii) time spent travelling to and from the work site, that a community corrections officer considers appropriate, and (b) to the extent (if any) the offender did not work the scheduled hours, if the offender (within 7 days of the failure to work): (i) provided a medical certificate to a community corrections officer that states the nature of the illness or injury and indicates that its nature or extent justifies the offender’s failure to perform the work, or (ii) provided another reason to a community corrections officer for the failure to work and the officer is satisfied that the reason is valid, and (c) to the extent (if any) the offender did not work the scheduled hours, if: (i) work was cancelled or finished early for reasons such as, but not limited to, bad weather, lack of available supervision, an emergency situation or lack of equipment, and (ii) a community corrections officer is satisfied that the reasons are valid. [subcl (6) insrt SI 537 of 2018 Sch 2[7], opn 24 Sep 2018]

(7) A community corrections officer may vary or waive the obligation to provide a medical certificate under subclause (6)(b). [subcl (7) insrt SI 537 of 2018 Sch 2[7], opn 24 Sep 2018]

Note. Clause 125 of Schedule 5 to the Crimes (Administration of Sentences) Act 1999 provides for the manner in which the Parole Authority is to exercise its functions under section 81A of that Act (Conditions — Parole Authority) in relation to the conditions of an intensive correction order referred to in this clause.

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Existing community service orders under section 8 73 (1) This clause applies to a community service order (the community service order) made under section 8 before its substitution by the amending Act and in force immediately before the commencement day. (2) The community service order is taken to be a community correction order (the community correction order) made under section 8 as substituted by the amending Act. (3) The community correction order is on the commencement day subject only to: (a) the standard condition referred to in section 88(2)(b) as inserted by the amending Act (that the offender must appear before the court if called on to do so at any time during the term of the community correction order), and (b) a community service work condition, and (c) any other conditions prescribed by or determined under the regulations. (4) Subject to this Act and the Crimes (Administration of Sentences) Act 1999: (a) the community correction order is taken to specify the same number of hours required for the performance of community service work as were specified in the community service order (so that the number of hours remaining to be completed under the community service order is the number of hours to be completed under the community correction order), and (b) the community correction order expires: (i) 12 months from the date on which the order was made, if the required number of hours under the order is less than 300, or if the order is extended for any further period before the commencement day, at the end of that further period, or (ii) 18 months from the date on which the order was made, if the required number of hours under the order is 300 or more, or if the order is extended for any further period before the commencement day, at the end of that further period, [subcl (4) subst SI 537 of 2018 Sch 2[8], opn 24 Sep 2018]

(4A) If the community service order has a condition that requires the offender to participate in a development program under section 90 as in force before the commencement day, the community correction order is subject to a condition that the offender must comply with an additional condition referred to in section 89(2)(c) (a rehabilitation or treatment condition) until the obligations relating to the development program have been fulfilled. [subcl (4A) insrt SI 537 of 2018 Sch 2[8], opn 24 Sep 2018]

(5) Without limitation, the regulations may make provision for or with respect to community service work required by or under community correction orders referred to in this clause. Existing good behaviour bonds under section 9 74 (1) This clause applies to a good behaviour bond entered into under section 9 of this Act (the section 9 bond) before its substitution by the amending Act and in force immediately before the commencement day. (2) The section 9 bond is taken to be a community correction order (the community correction order) made under section 8 as substituted by the amending Act. (3) The community correction order is on conversion subject only to: (a) the standard conditions of a community correction order, and

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(b) any conditions referred to in section 95(c) that were imposed on the section 9 bond before the commencement day and in force immediately before that day, and (c) any other conditions prescribed by or determined under the regulations. [subcl (3) am SI 537 of 2018 Sch 2[9], opn 24 Sep 2018]

(4) The community correction order expires on the date set by the sentencing court before the commencement day in relation to the section 9 bond. (5) If a condition relating to supervision was imposed on the section 9 bond by a court before the commencement day and was in force immediately before that day, the offender is subject to such obligations in respect of the condition as may be prescribed by regulations made under the Crimes (Administration of Sentences) Act 1999. (6) Any warrant issued under section 98 in respect of the section 9 bond before the commencement day continues to have effect. The warrant authorises a police officer to arrest and bring the offender before a court to be dealt with for an alleged breach of the section 9 bond. (7) An offender who is brought before a court on a warrant referred to in subclause (6) is to be dealt with under sections 107C and 107D of the Crimes (Administration of Sentences) Act 1999. (8) Section 89(2A) as inserted by the amending Act applies to a good behaviour bond to which this clause applies. Existing good behaviour bonds under section 10(1)(b) 75 (1) This clause applies to a good behaviour bond entered into under section 10(1)(b) (the section 10 bond) before its substitution by the amending Act and in force immediately before the commencement day. (2) The section 10 bond is taken to be a conditional release order (the conditional release order) made under section 9 as substituted by the amending Act, without proceeding to conviction, pursuant to section 10(1)(b) as in force on and after the commencement day. (3) The conditional release order is on the commencement day subject only to: (a) the standard conditions of a conditional release order, and (b) any conditions referred to in section 95(c) that were imposed on the section 10 bond before the commencement day and in force immediately before that day, and (c) any other conditions prescribed by or determined under the regulations. [subcl (3) am SI 537 of 2018 Sch 2[10], opn 24 Sep 2018]

(4) The conditional release order expires on the date set by the sentencing court before the commencement day in relation to the section 10 bond. (5) If a supervision condition was imposed on the section 10 bond by a court before the commencement day and was in force immediately before that day, the offender is subject to such obligations in respect of the condition as may be prescribed by regulations made under the Crimes (Administration of Sentences) Act 1999. (6) Any warrant issued under section 98 in respect of a section 10 bond before the commencement day continues to have effect. The warrant authorises a police officer to arrest and bring the offender before a court to be dealt with for an alleged breach of the section 10 bond.

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Existing suspended sentence orders under section 12 76 (1) This clause applies to an order (the suspended sentence order) made under section 12 before its repeal by the amending Act: (a) suspending execution of a sentence of imprisonment, and (b) directing that the offender enter into a good behaviour bond, and in force immediately before the commencement day. (2) The repeal of section 12 and any associated provisions does not affect the continuity of operation of the suspended sentence order. The order continues in force despite the repeal of that section, subject to this Act. (3) This Act and the regulations continue to apply to and in respect of the following as if the amending Act had not been enacted: (a) the suspended sentence order and good behaviour bond, (b) the person subject to the order and bond, (c) action that may be taken for failure to comply with any of the conditions of the bond. (4) If a court (under section 98 as previously in force but continuing to apply under subclause (3)) revokes the good behaviour bond: (a) the suspended sentence order ceases to have effect in relation to the sentence of imprisonment suspended by the order, and (b) the court must either: (i) order that the offender be sentenced or re-sentenced to imprisonment to be served in full-time detention, or (ii) make an intensive correction order under this Act, as amended by the amending Act, in respect of the offence concerned, and (c) this Act (including Part 4), as amended by the amending Act, applies to the sentencing or re-sentencing of the offender under this clause in the same way as it applies to the sentencing of an offender on a conviction, and (d) section 24 applies to the sentencing or re-sentencing of the offender under this clause in the same way as it applies to the sentencing of an offender on a conviction, but taking into account: (i) the fact that the offender has been the subject of the good behaviour bond, and (ii) anything done by the offender in compliance with the offender’s obligations under the good behaviour bond, and (e) the offender who under this clause is sentenced or re-sentenced by a court for an offence has the same rights of appeal as the offender would have had if the offender had been sentenced by that court on being convicted of the offence. (5) However, subclauses (2), (3) and (4) cease to have effect in relation to the suspended sentence order at the end of the period of 3 years commencing with the commencement day (unless the order had already expired or otherwise ceased to be in force).

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(7) An offender who is brought before a court on a warrant referred to in subclause (6) is to be dealt with under sections 108C and 108D of the Crimes (Administration of Sentences) Act 1999 (variations, breach and revocations). (8) Section 99(2A) as inserted by the amending Act applies to a good behaviour bond to which this clause applies.

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(6) If the suspended sentence order was still in force immediately before the end of that period of 3 years, the offender is required to appear before the court and is to be re-sentenced. If the offender fails to appear, the court may issue a warrant for the offender’s arrest. (7) Without limitation, the regulations may make provision for or with respect to the revocation of the suspended sentence order and for the re-sentencing of the offender. Action for breaches of expired suspended sentence orders 76A (1) This clause applies to an order (the suspended sentence order) made under section 12 before its repeal by the amending Act suspending execution of a sentence of imprisonment and directing that the offender enter into a good behaviour bond, if— (a) the bond was breached before the commencement day for the repeal of section 100, and (b) the bond had expired before that day, and (c) action in respect of the breach had not been commenced or completed before that day. (2) The breach of the bond may be dealt with or continue to be dealt with on or after that day under this Act and the regulations as if the amending Act had not been enacted. (3) If a court (under section 98 as previously in force but continuing to apply under subclause (2)) revokes the bond— (a) the suspended sentence order ceases to have effect in relation to the sentence of imprisonment suspended by the order, and (b) the court must either— (i) order that the offender be sentenced or re-sentenced to imprisonment to be served in full-time detention, or (ii) make an intensive correction order under this Act, as amended by the amending Act, in respect of the offence concerned, and (c) this Act (including Part 4), as amended by the amending Act, applies to the sentencing or re-sentencing of the offender under this clause in the same way as it applies to the sentencing of an offender on a conviction, and (d) section 24 applies to the sentencing or re-sentencing of the offender under this clause in the same way as it applies to the sentencing of an offender on a conviction, but taking into account— (i) the fact that the offender has been the subject of the good behaviour bond, and (ii) anything done by the offender in compliance with the offender’s obligations under the good behaviour bond, and (e) the offender who under this clause is sentenced or re-sentenced by a court for an offence has the same rights of appeal as the offender would have had if the offender had been sentenced by that court on being convicted of the offence. [cl 76A insrt Act 10 of 2019 Sch 1.6[2], opn 26 Sep 2019]

References in other legislation 77 (1) Except in so far as the context or subject matter otherwise indicates or requires or the regulations otherwise provide, a reference (however expressed) in another Act, or statutory rule under another Act, to: (a) a home detention order, is taken to include a reference to an intensive correction order that is subject to a home detention condition, and

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(b) a community service order, is taken to include a reference to a community correction order, and (c) a good behaviour bond, is taken to include a reference to a community correction order or a conditional release order or both. (2) A reference in any legislation to an assigned officer (within the meaning of the Crimes (Administration of Sentences) Act 1999) is taken to include a reference to a community corrections officer. [subcl (2) insrt SI 537 of 2018 Sch 2[11], opn 24 Sep 2018]

Variations of conditions of converted orders 78 (1) Subject to subclause (2), nothing in clauses 71–75 prevents the imposition, variation or revocation (in accordance with this Act) of conditions referred to in those clauses after the commencement day. (2) However, in the case of an application made to a court (under section 89, 90, 99 or 99A) for the imposition, variation or revocation of a condition on: (a) the community correction order referred to in clause 73(2) or 74(2), or (b) the conditional release order referred to in clause 75(2), the court must, as far as practicable, not make an order that would result in the conditions of the community correction order or conditional release order being more onerous than conditions that were available, in comparable circumstances immediately before the commencement day, for the relevant community service order, section 9 bond or section 10 bond. [subcl (2) subst SI 537 of 2018 Sch 2[12], opn 24 Sep 2018]

DIVISION 3 — PERIODIC DETENTION ORDERS

Application of this Division 79 This Division applies to a periodic detention order (the periodic detention order): (a) made before the repeal of section 6 (Periodic detention) by the Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010, and (b) continued in force by that Act after that repeal. Existing periodic detention orders 80 (1) This clause applies to the periodic detention order to which this Division applies and that was in force immediately before the commencement day. (2) The periodic detention order ceases to apply to the offender named in the order on and from the commencement day. (3) The Commissioner must notify the court that sentenced the offender, or a court prescribed by the regulations (the court), of that fact within 14 days commencing with the commencement day, and provide the court with such information about the offender and the periodic detention order as may be prescribed by the regulations. (4) On being notified under subclause (3), the court may call on the offender to appear before it on a date to be fixed by the court to be re-sentenced. (5) If the offender fails to appear, the court may issue a warrant for the offender’s arrest.

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(6) When re-sentencing the offender, the court must, without limitation, take into account: (a) the gravity of the offence for which the periodic detention order was made, and (b) the offender’s record of performance during periodic detention and compliance with applicable requirements of periodic detention, and (c) the offender’s current circumstances. (7) The following information, if available, about the offender is, at the request of the court, to be provided by the Commissioner: (a) a copy of the relevant assessment report, offender declaration and periodic detention order, (b) details of the offender’s compliance with the requirements of the periodic detention order, (c) the number of detention periods completed and outstanding, (d) relevant circumstances of any breach of the periodic detention order, (e) details of any relevant action taken by the Parole Authority, (f) any other information available from its records that Corrective Services NSW considers relevant. [subcl (7) insrt SI 537 of 2018 Sch 2[13], opn 24 Sep 2018]

Offenders in custody following warrant 80A (1) This clause applies to an offender subject to a periodic detention order to which this Division applies and who was in custody immediately before the commencement day. (2) The Commissioner must notify the court that the offender is in custody within 14 days of the commencement day. (3) On being notified under subclause (2), the court may direct the Commissioner to cause the offender to be brought before the court on a date fixed by the court to be re-sentenced. (4) Proceedings under this clause are taken to be proceedings for the administration of sentence for the purposes of clause 1 of Schedule 1 to the Bail Act 2013. (5) The court is to deal with the offender as if the offender were an offender arrested under clause 80. [cl 80A insrt SI 537 of 2018 Sch 2[14], opn 24 Sep 2018]

Existing warrants for revoked periodic detention orders 81 (1) This clause applies where: (a) a warrant (the warrant) had been issued under section 181 of the Crimes (Administration of Sentences) Act 1999 or section 26 of the Periodic Detention of Prisoners Act 1981 in respect of a periodic detention order to which this Division applies, and (b) the warrant was in force immediately before the commencement day but the periodic detention order had been revoked before that day. (2) The warrant continues in force after the commencement day. Provisions regarding warrants referred to in clauses 80 and 81 82 (1) This clause applies to: (a) warrants issued under clause 80, and

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(b) warrants referred to in clause 81. (2) A police officer who arrests or has custody of the offender named in a warrant to which this clause applies may convey the offender to the correctional centre named in the warrant and deliver the offender into the custody of the governor of that correctional centre. (3) The Commissioner must notify the court that sentenced the offender, or a court of equivalent jurisdiction, within 14 days that the offender has been received into the custody of the governor of that correctional centre. [subcl (3) subst SI 537 of 2018 Sch 2[15], opn 24 Sep 2018]

(4) On receiving notice from the Commissioner under subclause (3), the court must direct the Commissioner to cause the offender to be brought before the court to be re-sentenced on a date to be fixed by the court. [subcl (4) subst SI 537 of 2018 Sch 2[15], opn 24 Sep 2018]

(4A) Proceedings under this clause are taken to be proceedings for the administration of sentence for the purposes of clause 1 of Schedule 1 to the Bail Act 2013. [subcl (4A) insrt SI 537 of 2018 Sch 2[16], opn 24 Sep 2018]

(4B) The following information, if available, about the offender is, at the request of the court, to be provided by the Commissioner: (a) a copy of the relevant assessment report, offender declaration and periodic detention order, (b) details of the offender’s compliance with the requirements of the periodic detention order, (c) the number of detention periods completed and outstanding, (d) relevant circumstances of any breach of the periodic detention order, (e) details of any relevant action taken by the Parole Authority, (f) any other information available from its records that Corrective Services NSW considers relevant. [subcl (4B) insrt SI 537 of 2018 Sch 2[16], opn 24 Sep 2018]

(5) Without limitation, the regulations may make provision for or with respect to: (a) the return to custody of offenders subject to warrants to which this clause applies, and (b) the re-sentencing of offenders under this clause, and (c) the issue and execution of warrants for those purposes. DIVISION 4 — OTHER PROVISIONS

Existing assessment reports 82A (1) If an assessment report was prepared on an offender for the purposes of section 78 of the Act, as in force before the repeal of that section by the amending Act, the report is taken to be an assessment report for the purposes of section 17D(2) and a further report is not required. (2) If an assessment report was prepared on an offender for the purposes of section 86 of the Act, as in force before the repeal of that section by the amending Act, the report is taken to be an assessment report for the purposes of section 17D(4) and a further report is not required. [cl 82A insrt SI 537 of 2018 Sch 2[17], opn 24 Sep 2018]

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Court to take community service order or good behaviour bond into account when sentencing 83 In sentencing an offender, the court must, under section 24, also take into account: (a) in the case of an offender who is being sentenced as a result of failing to comply with the offender’s obligations under a community service order or good behaviour bond to which a clause of Division 2 applies: (i) the fact that the person has been the subject of such an order or bond, and (ii) anything done by the offender in compliance with the offender’s obligations under the order or bond, and (b) in the case of an offender who is being sentenced as a result of deciding not to participate in, or to continue to participate in a good behaviour bond to which a clause of Division 2 applies, anything done by the offender in compliance with the offender’s obligations under the good behaviour bond. Correction and adjustment of sentences 84 (1) A reference in section 43 to imposing a sentence extends to the making of a home detention order, a community service order, an order under section 12 or an order that provides for an offender to enter into a good behaviour bond. (2) Section 43 extends to authorising the court to sentence the offender, or convict and sentence the offender, in accordance with this Act as amended by the amending Act, as if the order had not been made. Procedure following failure to enter into good behaviour bond 85 If a person: (a) was the subject of an order under section 9 (as in force before the date of the substitution of that section by the amending Act) directing the person to enter into a good behaviour bond, and: (i) the order was in force immediately before that date, and (ii) the person had not entered into such a bond in accordance with the order before that date, or (b) was the subject of an order under section 10(1)(b) (in force immediately before the date of the substitution of that paragraph by the amending Act) discharging the person on condition that the person enter into a good behaviour bond, and: (i) the order was in force immediately before that date, and (ii) the person had not entered into such a bond in accordance with the order before that date, the court may sentence the offender, or convict and sentence the offender, in accordance with this Act as amended by the amending Act, as if the order had not been made. Appeals in respect of converted order and bonds 86 (1) This clause applies to an order or bond (an original order or bond) referred to in clause 71(1), 72(1), 73(1), 74(1) or 75(1). Note. Clauses 71–75 deal respectively with existing home detention orders, intensive correction orders, community service orders, section 9 bonds and section 10 bonds, which were made or entered into before the commencement day.

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(2) An appeal in respect of an original order or bond that was pending immediately before the commencement day is not affected by the amending Act. However: (a) if the court hearing the appeal sentences or re-sentences the offender, it must do so in accordance with this Act as in force on and after the commencement day, or (b) to the extent the court confirms the original order or bond, this clause does not affect the operation of whichever of clauses 71–75 is relevant to the order. (3) An appeal may be made in respect of an original order or bond on or after the commencement day as if the amending Act had not been enacted. However: (a) if the court hearing the appeal sentences or re-sentences the offender, it must do so in accordance with this Act as in force on and after the commencement day, or (b) to the extent the court confirms the original order or bond, this clause does not affect the operation of whichever of clauses 71–75 is relevant to the order. Note. This subclause does not confer a right of appeal where a right of appeal did not exist before the commencement day.

Applications to Supreme Court as to certain existing orders 86A (1) This clause applies in relation to a home detention order or intensive correction order referred to in section 176 of the Crimes (Administration of Sentences) Act 1999 and made under section 6 or 7 of this Act or section 165A of that Act before the commencement day. (2) An application to the Supreme Court under that section in respect of an order to which this clause applies, and any proceedings in respect of the application, that were pending before the Court immediately before the commencement day are not affected by the amending Act. (3) An application may be made on or after the commencement day to the Supreme Court under that section in respect of an order to which this clause applies. (4) Any direction given by the Supreme Court under that section pursuant to an application referred to in this clause is given in respect of the intensive correction order or home detention order concerned as if the amending Act had not been enacted. [cl 86A insrt SI 537 of 2018 Sch 2[18], opn 24 Sep 2018]

Other transitional matters in respect of home detention orders 86B (1) Application to home detention orders This clause applies in respect of a home detention order made under section 6 before its repeal by the amending Act. (2) Previous breaches Subclause (3) applies if a breach of a home detention order occurred or is suspected to have occurred before the repeal of section 6 by the amending Act and action under the sentencing legislation as in force before the commencement day had not been commenced or completed in respect of the breach. (3) Action in respect of the breach may, on or after that day, be commenced or continued under the sentencing legislation in relation to the intensive correction order to which the home detention order was converted by the operation of this Schedule in the same way as action may be taken in respect of a breach of an offender’s obligations under an intensive correction order made by a court on or after that day. (4) Previous assessment for home detention If the Parole Authority referred an offender for assessment under section 165A(4) of the Crimes (Administration of

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Sentences) Act 1999, before the commencement day, in relation to the making of an order for home detention following the revocation of an intensive correction order and the Parole Authority had not completed its functions under that section before that day in relation to the matter: (a) the assessment may be carried out on or after that day if it has not already been carried out, and (b) the assessment (whether received by the Parole Authority before that day or on or after that day) is taken to be an assessment as to the suitability of the offender for an intensive correction order with a home detention condition on or after that day, and (c) the Parole Authority may, if satisfied that it is appropriate to do so, make an intensive correction order. Note. See also subclause (12) as to the power of the Parole Authority to make intensive correction orders under this clause.

(5) Pending inquiries into home detention breaches If an inquiry by the Parole Authority under section 166 of the Crimes (Administration of Sentences) Act 1999 (relating to a suspected breach of an offender’s obligations under a home detention order) was pending immediately before the commencement day: (a) the inquiry may be conducted or continue to be conducted by the Parole Authority on or after that day, and (b) any findings of the Parole Authority may be considered in connection with the exercise of the Authority’s functions (including its functions under section 164 of that Act). (6) Effect of existing revocation order A revocation order made by the Parole Authority under section 167 of the Crimes (Administration of Sentences) Act 1999 before the commencement day: (a) continues to have effect for the purposes of that Act, as amended by the amending Act, according to the terms of the order, and (b) is taken to be a revocation order to which section 164A of that Act applies. (7) Existing reinstatement applications If an application for the reinstatement of a home detention order under section 168A(1) of the Crimes (Administration of Sentences) Act 1999 was pending immediately before the commencement day: (a) the application may be dealt with or continue to be dealt with by the Parole Authority on or after that day, and (b) the Parole Authority may, if satisfied that it is appropriate to do so, make an intensive correction order with a home detention condition and a supervision condition. Note. See also subclause (12) as to the power of the Parole Authority to make intensive correction orders under this clause.

(8) If an application for the reinstatement of an intensive correction order under section 168A(1A) of the Crimes (Administration of Sentences) Act 1999 was pending immediately before the commencement day: (a) the application may be dealt with or continue to be dealt with by the Parole Authority on or after that day, and (b) the Parole Authority may, if satisfied that it is appropriate to do so, make an intensive correction order with a supervision condition and at least 1 of the additional conditions referred to in section 73A of this Act. Note. See also subclause (12) as to the power of the Parole Authority to make intensive correction orders under this clause.

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(9) Despite subclause (8)(b), the Parole Authority may make an intensive correction order under that paragraph without imposing any of the additional conditions referred to in section 73A of this Act if it considers that it is not necessary to do so because of exceptional circumstances. (10) If an offender was, under section 168A(2) of the Crimes (Administration of Sentences) Act 1999, referred for assessment in relation to the reinstatement of a home detention order or intensive correction order and the assessment was received by the Parole Authority before the commencement day but the Parole Authority had not completed its consideration of the assessment or the assessment is received by the Parole Authority on or after that day: (a) the Parole Authority may consider or continue to consider the assessment on or after that day, and (b) the Parole Authority may use the assessment when considering whether to make an intensive correction order under subclause (7) or (8) (as the case requires). (11) Existing warrants made after revocation of home detention orders If a warrant that was issued under section 181(1) of the Crimes (Administration of Sentences) Act 1999 before the commencement day in respect of a revoked home detention order, and that commits an offender to a correctional centre to serve the remainder of a sentence by way of full-time detention, was in force immediately before that day, the warrant: (a) continues in force on and after that day until it is executed, and (b) is taken to be issued under section 181(1) of that Act as amended by the amending Act in respect of an intensive correction order revoked under that Act as amended by the amending Act, and (c) commits the offender to a correctional centre to serve the remainder of the sentence to which the order relates by way of full-time detention. (12) New intensive correction orders For the purposes of an intensive correction order authorised to be made by the Parole Authority under subclause (4), (7) or (8): (a) Part 5 of the Crimes (Sentencing Procedure) Act 1999, as in force on or after the relevant commencement day, applies to and in respect of the Parole Authority and the offender in relation to the making of the intensive correction order in the same way as it applies to and in respect of a court and an offender in relation to the making of an intensive correction order by a court, and (b) the intensive correction order is taken to have been made by a court. [cl 86B insrt SI 537 of 2018 Sch 2[18], opn 24 Sep 2018]

Other transitional matters in respect of intensive correction orders 86C (1) Application to intensive correction orders This clause applies in respect of an intensive correction order made under section 7 before its substitution by the amending Act. (2) Previous breaches Subclause (3) applies if a breach of an intensive correction order occurred or is suspected to have occurred before the substitution of section 7 by the amending Act and action under the sentencing legislation as in force before the commencement day had not been commenced or completed in respect of the breach. (3) Action in respect of the breach may, on or after that day, be commenced or continued under the sentencing legislation in relation to the intensive correction order to

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which the order was converted by the operation of this Schedule in the same way as action may be taken in respect of a breach of an offender’s obligations under an intensive correction order made on or after that day. (4) Applications relating to conditions If an application for the imposition of conditions on, or the variation of conditions of, an intensive correction order under section 81(3) of the Crimes (Administration of Sentences) Act 1999 was pending before the sentencing court immediately before the commencement day: (a) the application is transferred to the Parole Authority to be dealt with by it instead of the court, and (b) the application may be dealt with or continue to be dealt with by the Parole Authority on or after that day as if the application had been made under section 81A of that Act, and (c) in considering the application, the Parole Authority may have regard to matters raised before the court before that day and may concur with any decisions made by the court in that connection or may deal with all or any matters afresh. (5) Pending inquiries into breaches of intensive correction orders If an inquiry by the Parole Authority under section 162 of the Crimes (Administration of Sentences) Act 1999 (relating to a suspected breach of an offender’s obligations under an intensive correction order) was pending immediately before the commencement day: (a) the inquiry may be conducted or continue to be conducted by the Parole Authority on or after that day, and (b) any findings of the Parole Authority may be considered in connection with the exercise of the Authority’s functions (including its functions under section 164 of that Act). (6) Effect of existing revocation order for intensive correction order A revocation order made by the Parole Authority under section 163 of the Crimes (Administration of Sentences) Act 1999 before the commencement day: (a) continues to have effect for the purposes of that Act, as amended by the amending Act, according to the terms of the order, and (b) is taken to be a revocation order to which section 164A of that Act applies. (7) Existing reinstatement applications If an application for the reinstatement of an intensive correction order under section 165 of the Crimes (Administration of Sentences) Act 1999 was pending immediately before the commencement day: (a) the application may be dealt with or continue to be dealt with by the Parole Authority on or after that day under that section as amended by the amending Act, and (b) that section as so amended applies to and in respect of the application (including the provisions relating to the assessment as to suitability and the making of an intensive correction order). (8) Existing warrants made after revocation of intensive correction orders If a warrant that was issued under section 181(1) of the Crimes (Administration of Sentences) Act 1999 before the commencement day in respect of a revoked intensive correction order, and that commits an offender to a correctional centre to serve the remainder of a sentence by way of full-time detention, was in force immediately before that day, the warrant: (a) continues in force on and after that day until it is executed, and

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[cl 86C insrt SI 537 of 2018 Sch 2[18], opn 24 Sep 2018]

Other transitional matters in respect of community service orders 86D (1) Application to community service orders This clause applies in respect of a community service order made under section 8 before its substitution by the amending Act. (2) Previous breaches Subclause (3) applies if a breach of a community service order occurred or is suspected to have occurred before the substitution of section 8 by the amending Act and action under the sentencing legislation as in force before the commencement day had not been commenced or completed in respect of the breach. (3) Action in respect of the breach may, on or after that day, be commenced or continued under the sentencing legislation in relation to the community correction order to which the order is converted by the operation of this Schedule in the same way as action may be taken in respect of a breach of an offender’s obligations under a community correction order made on or after that day. (4) Pending extension applications If an application for the extension of the relevant maximum period for a community service order under section 114 of the Crimes (Administration of Sentences) Act 1999 was pending immediately before the commencement day: (a) the application may be dealt with or continue to be dealt with by the court on or after that day, and (b) the application is taken to be an application duly made under section 89 of this Act in respect of the relevant community service work condition of the community correction order (to which the community service order was converted by the operation of this Schedule), and (c) the court may make any order under section 89 that it may make in respect of an application made under that section. (5) Existing revocation applications If an application for the revocation of a community service order under section 115 of the Crimes (Administration of Sentences) Act 1999 was pending immediately before the commencement day: (a) the application may be dealt with or continue to be dealt with by the court on or after that day, and (b) in the case of an application made under section 115(2)(a), the application is taken to be an application made, for the purposes of section 107C of that Act as amended by the amending Act, to revoke the community correction order to which the community service order is converted by the operation of this Schedule, and (c) in the case of an application made under section 115(2)(b), the court may continue to deal with the application under section 115 as in force immediately before the commencement day. (6) Existing warrants issued in extension proceedings If a warrant issued under section 116 of the Crimes (Administration of Sentences) Act 1999 before the

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(b) is taken to be issued under section 181(1) of that Act as amended by the amending Act in respect of an intensive correction order revoked under that Act as amended by the amending Act, and (c) commits the offender to a correctional centre to serve the remainder of the sentence to which the order relates by way of full-time detention.

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commencement day, in connection with an application for the extension of the period for which an offender’s community service order is to remain in force, was in force immediately before that day, the warrant: (a) continues in force on and after that day until it is executed, and (b) authorises the offender to be brought before the relevant court. (7) Existing warrants issued in revocation proceedings If a warrant issued under section 116 of the Crimes (Administration of Sentences) Act 1999 before the commencement day, in connection with an application under section 115 of that Act for the revocation of an offender’s community service order, was in force immediately before that day, the warrant: (a) continues in force on and after that day until it is executed, and (b) authorises the offender to be brought before the relevant court. (8) Action for breaches of expired community service orders Subclause (9) applies if: (a) a community service order was breached before the repeal of section 115 of the Crimes (Administration of Sentences) Act 1999 by the amending Act, and (b) the order had expired not later than 1 month before that day, and (c) action in respect of the breach had not been commenced or completed before that day. (9) The breach may be dealt with or continue to be dealt with on or after that day under sections 107C and 107D of the Crimes (Administration of Sentences) Act 1999 and, for that purpose, those provisions apply despite the expiry of the order but only apply in respect of matters arising during the term of the order. [cl 86D insrt SI 537 of 2018 Sch 2[18], opn 24 Sep 2018]

Other transitional matters in respect of good behaviour bonds 86E (1) Application This clause applies in respect of a good behaviour bond entered into under section 9 (a section 9 bond) or section 10(1)(b) (a section 10 bond) before their substitution by the amending Act. (2) Previous breaches Subclause (3) applies if a breach of a good behaviour bond occurred or is suspected to have occurred before the commencement day and action under the sentencing legislation as in force before that day had not been commenced or completed in respect of the breach. (3) Action in respect of the breach may, on or after that day, be commenced or continued under the sentencing legislation in relation to the community correction order or conditional release order to which the bond is converted by the operation of this Schedule in the same way as action may be taken in respect of a breach of an offender’s obligations under such an order made on or after that day. (4) Intervention program conditions Subclause (5) applies if before the commencement day a court referred, under section 95B, an offender for assessment as to the suitability of the offender to participate in an intervention program and the report was received before, or is received on or after, that day. (5) The court may, if it decides to make a community correction order or conditional release order in respect of the offender on or after that day, impose a further condition requiring the offender to participate in an intervention program and to comply with any intervention plan arising out of the program.

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CRIMES (SENTENCING PROCEDURE) ACT 1999

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(6) Existing breach proceedings If any proceedings were pending before a court immediately before the repeal of section 98 of the Crimes (Sentencing Procedure) Act 1999 in respect of a breach of a section 9 bond or section 10 bond: (a) the proceedings are to continue to be dealt with by the court, and (b) the breach may be dealt with or continue to be dealt with on or after that day under sections 107C and 107D or sections 108C and 108D (as the case requires) of the Crimes (Administration of Sentences) Act 1999 in relation to the community correction order or conditional release order to which the bond is converted by the operation of this Schedule, and (c) in considering the breach, the court may have regard to matters raised before the court before that day and may concur with any decisions made by the court in that connection or may deal with all or any matters afresh. (7) Refusal to participate in intervention program If an offender who was subject to a section 9 bond or section 10 bond decided under section 99A not to participate or to continue to participate in an intervention program or an intervention plan arising out of the program and action had not been taken or completed under that section before the commencement day: (a) the matter may be dealt with or continue to be dealt with on or after that day by taking action under sections 107C and 107D or sections 108C and 108D (as the case requires) of the Crimes (Administration of Sentences) Act 1999 in relation to the community correction order or conditional release order to which the bond is converted by the operation of this Schedule, and (b) for that purpose, the decision is taken to be a breach of the order. (8) Action for breaches of expired bonds Subclause (9) applies if: (a) a section 9 bond or section 10 bond was breached before the commencement day for the repeal of section 100, and (b) the bond had expired before that day, and (c) action in respect of the breach had not been commenced or completed before that day. (9) The breach may be dealt with or continue to be dealt with on or after that day under sections 107C and 107D or sections 108C and 108D (as the case requires) of the Crimes (Administration of Sentences) Act 1999 in relation to the community correction order or conditional release order to which the bond is converted by the operation of this Schedule and, for that purpose: (a) the breach is taken to be a breach of the order, and (b) those provisions apply despite the expiry of the bond but only apply in respect of matters arising during the term of the bond. [cl 86E insrt SI 537 of 2018 Sch 2[18], opn 24 Sep 2018]

Transitional provisions in respect of certain warrants 86F (1) If a warrant that was issued under section 181(1) of the Crimes (Administration of Sentences) Act 1999 in respect of a revoked parole order, and that commits an offender to a correctional centre to serve the remainder of a sentence by way of full-time detention, was in force immediately before the commencement day, the warrant: (a) continues in force on and after that day until it is executed, and

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Sch 2

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ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Sch 2

(b) is taken to be issued under section 181(1) of that Act as amended by the amending Act in respect of a parole order revoked under that Act as so amended, and (c) commits the offender to a correctional centre to serve the remainder of the sentence to which the order relates by way of full-time detention. (2) If a warrant that was issued under section 181(1A) of the Crimes (Administration of Sentences) Act 1999, and that commits an offender to a correctional centre pending the Parole Authority’s decision as to whether or not to make a home detention order, was in force immediately before the commencement day, the warrant: (a) continues in force on and after that day until it is executed, and (b) commits the offender to a correctional centre pending the Parole Authority’s decision as to whether or not to make an intensive correction order. [cl 86F insrt SI 537 of 2018 Sch 2[18], opn 24 Sep 2018]

Regulations 87 (1) The regulations made under clause 1 in relation to the amending Act or under another clause of this Part have effect despite anything to the contrary in this Part. (2) To avoid doubt, the regulations made under clause 1 may be made in relation to amendments made by Schedules 1–4 to the amending Act. Nothing in this subclause affects any power under another Act that is amended by Schedule 3 or 4 to the amending Act to make regulations of a savings or transitional nature. (3) The regulations made under clause 1 may make separate savings and transitional provisions or amend this Part to consolidate the savings and transitional provisions. (4) This clause does not affect the meaning or construction of any other Part of this Schedule. PART 30 — PROVISIONS CONSEQUENT ON ENACTMENT OF JUSTICE LEGISLATION AMENDMENT (COMMITTALS AND GUILTY PLEAS) ACT 2017 [Pt 30 insrt Act 55 of 2017 Sch 2[5], opn 30 Apr 2018]

Definitions 88 In this Part: amending Act means the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017. existing proceedings means proceedings for an offence commenced before the amendment of the former sentencing provisions by the amending Act. former sentencing provisions means Part 3 of this Act, as in force before its amendment by the amending Act. Existing proceedings 89 The former sentencing provisions continue to apply to existing proceedings as if those provisions had not been amended by the amending Act. Previous offences 90 This Act, as amended by the amending Act, extends to proceedings for an offence committed before the amendment of the former sentencing provisions by the amending Act, if proceedings for the offence commenced on or after that amendment.

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CRIMES (SENTENCING PROCEDURE) ACT 1999

[5-Sch 2]

PART 31 — PROVISION CONSEQUENT ON ENACTMENT OF CRIMINAL LEGISLATION AMENDMENT (CHILD SEXUAL ABUSE) ACT 2018 Standard non-parole periods 91 The Table to Division 1A of Part 4 of this Act, as in force immediately before its amendment by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018, continues to apply in respect of an offence against section 61M(1) or (2) of the Crimes Act 1900 committed before that amendment. PART 32 — PROVISION CONSEQUENT ON ENACTMENT OF CRIMES LEGISLATION AMENDMENT (VICTIMS) ACT 2018 [Pt 32 insrt Act 88 of 2018 Sch 3[2], opn 27 May 2019]

Application of amendments 92 Each of the following provisions as substituted by the Crimes Legislation Amendment (Victims) Act 2018 applies only to proceedings that are commenced after the relevant substitution: (a) Division 2 of Part 3 of this Act, (b) Division 2 of Part 2 of the Crimes (Sentencing Procedure) Regulation 2017. PART 33 — PROVISION CONSEQUENT ON ENACTMENT OF JUSTICE LEGISLATION AMENDMENT ACT 2019 [Pt 33 insrt Act 10 of 2019 Sch 1.6[3], opn 26 Sep 2019]

Standard non-parole periods 93 The Table to Division 1A of Part 4 of this Act, as in force immediately before its amendment by the Justice Legislation Amendment Act 2019, continues to apply in respect of an offence against section 203E of the Crimes Act 1900 committed before that amendment.

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[Pt 31 insrt Act 33 of 2018 Sch 3[10], opn 1 Dec 2018]

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TABLE OF PROVISIONS Regulation

Title

Paragraph

PART 1 — PRELIMINARY 1 2 3

Name of Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5-10,000] [5-10,005] [5-10,010]

PART 2 — SENTENCING PROCEDURES GENERALLY DIVISION 1 — GENERAL

4 5 6

Lists of additional charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Parole orders [Repealed] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Consultation required before conditions as to residence or treatment imposed on parole orders [Repealed] . . . . . . . Warrants of commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Consultation with victim and police in relation to charge negotiations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7 8

[5-10,110] [5-10,115] [5-10,120] [5-10,125] [5-10,130]

DIVISION 2 — VICTIM IMPACT STATEMENTS

9 10 11 11A 12

Persons who may assist victim . . . . . . . . . . . . . . . . . . . . . . . . . . Form of victim impact statements . . . . . . . . . . . . . . . . . . . . . . . Content of victim impact statements . . . . . . . . . . . . . . . . . . . . . Victim impact statements by victims of offenders found not guilty by reason of mental illness . . . . . . . . . . . . . . . . . Tendering of victim impact statements . . . . . . . . . . . . . . . . . .

[5-10,175] [5-10,180] [5-10,185] [5-10,187] [5-10,190]

DIVISION 3 — ASSESSMENT REPORTS FOR COURTS

12A 12B

Assessment reports generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assessment reports for home detention condition . . . . . . . .

[5-10,235] [5-10,240]

DIVISION 4 — OFFENDERS AFFECTED BY MENTAL ILLNESS OR COGNITIVE IMPAIRMENT

12C 12D 12E

Provision of copy to Mental Health Review Tribunal . . . . Victim impact statements in proceedings before Mental Health Review Tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Submissions by designated carers and principal care providers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[5-10,245] [5-10,250] [5-10,255]

Sentencing

Crimes (Sentencing Procedure) Regulation 2017

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Regulation

Title

Paragraph

PART 3 — COMMUNITY-BASED ORDERS 13 14

Procedure for imposition, variation or revocation of additional or further conditions of community correction orders or conditional release orders . . . . . . . . Community service work — maximum hours and minimum periods (ICO or CCO) . . . . . . . . . . . . . . . . . . . . . .

[5-10,290] [5-10,295]

PART 4 — SENTENCING PROCEDURES FOR HOME DETENTION ORDERS [Repealed] PART 5 — SENTENCING PROCEDURES FOR COMMUNITY SERVICE ORDERS [Repealed] PART 6 — MISCELLANEOUS 25 26

Savings provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Transitional arrangements for guilty pleas provisions . . . .

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[5-10,645] [5-10,650]

TABLE OF AMENDMENTS Crimes (Sentencing Procedure) Regulation 2017 SI 436, notified on LW 25 August 2017, commenced 1 September 2017, as amended by: Amending Legislation

Date of Assent

Date of Commencement

Crimes (Sentencing Procedure) Amendment (Parole Orders) Regulation 2018 SI 56

LW 23 February 2018

26 February 2018

Crimes (Sentencing Procedure) Amendment (Guilty Pleas) Regulation 2018 SI 170

LW 27 April 2018

30 April 2018 (cl 2)

Crimes (Sentencing Procedure) Amendment (Community-based Orders and Other Matters) Regulation 2018 SI 537

LW 21 September 2018

Sch 1: 24 September 2018

Crimes Legislation Amendment (Victims) Act 2018 No 88

28 November 2018 (LW 24 May 2019)

Sch 4: 27 May 2019

Crimes (Sentencing Procedure) Amendment (Victim Impact Statements) Regulation 2019 SL 208

LW 24 May 2019

Sch 1: 27 May 2019

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Crimes (Sentencing Procedure) Regulation 2017

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PART 1 — PRELIMINARY

1

This Regulation is the Crimes (Sentencing Procedure) Regulation 2017.

[5-10,005] Commencement 2 This Regulation commences on 1 September 2017 and is required to be published on the NSW legislation website. Note. This Regulation replaces the Crimes (Sentencing Procedure) Regulation 2010 which is repealed on 1 September 2017 by section 10(2) of the Subordinate Legislation Act 1989.

[5-10,010] Definitions 3

(1) In this Regulation: approved form means a form approved by the Minister. the Act means the Crimes (Sentencing Procedure) Act 1999.

Note. The Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Regulation.

(2) Notes included in this Regulation do not form part of this Regulation. (3) A reference in this Regulation to a community corrections officer is, where the offender is subject to supervision by a juvenile justice officer, taken to be a reference to a juvenile justice officer within the meaning of the Children (Detention Centres) Act 1987. Note. Juvenile justice officers are referred to in certain provisions of the Crimes (Sentencing Procedure) Act 1999 (see sections 89–91 and 99–100) and the Crimes (Administration of Sentences) Act 1999 (see sections 107E and 108E). [subcl (3) insrt SI 537 of 2018 Sch 1[1], opn 24 Sep 2018]

PART 2 — SENTENCING PROCEDURES GENERALLY DIVISION 1 — GENERAL

[5-10,110] Lists of additional charges 4 (1) A list of additional charges under section 32 of the Act is to be in the approved form. (2) For the purposes of section 32(4)(c) of the Act, the following persons and classes of persons are prescribed: (a) police officers, (b) persons employed in the Transport Service in any role designated by the Secretary of the Department of Transport as a senior legal role, (c) the Point to Point Transport Commissioner appointed under the Point to Point Transport (Taxis and Hire Vehicles) Act 2016, (d) persons employed in the Department of Finance, Services and Innovation in any role designated by the Secretary of that Department as a senior legal role,

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[5-10,000] Name of Regulation

[5-10,110]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

reg 4

(e) the Commissioner for Fair Trading, Department of Finance, Services and Innovation or, if there is no person employed as Commissioner for Fair Trading, the Secretary of that Department, (f) the General Counsel, Ministry of Health, (g) the Chief Health Officer, Ministry of Health, (h) the Secretary of the Ministry of Health, (i) the Chief Executive Officer of the Food Authority, (j) the Secretary of the Department of Planning and Environment, (k) the Secretary of the Department of Industry, (l) officers or employees of an approved charitable organisation within the meaning of the Prevention of Cruelty to Animals Act 1979 designated by the chief executive of the organisation.

[5-10,115] Parole orders 5

[cl 5 rep SI 56 of 2018 cl 3, opn 26 Feb 2018]

[5-10,120] Consultation required before conditions as to residence or treatment imposed on parole orders 6

[cl 6 rep SI 56 of 2018 cl 3, opn 26 Feb 2018]

[5-10,125] Warrants of commitment 7 A warrant for the committal of an offender referred to in section 62(1) of the Act is to be in the approved form.

[5-10,130] Consultation with victim and police in relation to charge negotiations 8 For the purposes of section 35A(3) of the Act, the following persons and classes of persons are prescribed: (a) in relation to proceedings being prosecuted by a police prosecutor — police officers, (b) the Commissioner for Fair Trading, Department of Finance, Services and Innovation or, if there is no person employed as Commissioner for Fair Trading, the Secretary of that Department, (c) persons employed in the Department of Finance, Services and Innovation in any role designated by the Secretary of that Department as a senior legal role. DIVISION 2 — VICTIM IMPACT STATEMENTS [Div 2 subst Act 88 of 2018 Sch 4, opn 27 May 2019]

[5-10,175] Persons who may assist victim 9 (1) For the purposes of section 30(4) of the Act, a person who may be a representative of a victim for the purposes of providing information for inclusion in a victim impact statement or objecting to the tendering of a victim impact statement are as follows: (a) a person having parental responsibility for the victim, (b) a member of the victim’s immediate family,

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CRIMES (SENTENCING PROCEDURE) REGULATION 2017

[5-10,185]

(c) the victim’s carer, (d) a person who is important in the victim’s life or any other person chosen by the victim. (2) For the purposes of section 30(4) of the Act, and without limiting the ability of a victim to designate any person as a representative to prepare a victim impact statement, a person who may be a representative of a victim for preparing a victim impact statement is a qualified person designated by: (a) the victim or victims to whom the statement relates, or (b) a representative referred to in subclause (1) who is providing information for inclusion in a victim impact statement, or (c) the prosecutor in the proceedings to which the statement relates. (3) For the purposes of section 30(4) of the Act, a person who may be a representative of a victim for the purposes of reading a victim impact statement is: (a) a person designated by the victim or victims to whom the statement relates, or (b) if a representative referred to in subclause (1) is providing information for inclusion in a victim impact statement, a person (including the representative) designated by the representative. (4) In this clause, qualified person means: (a) a counsellor who is approved under section 31 of the Victims Rights and Support Act 2013, or (b) any other person who is qualified by training, study or experience to provide the particulars required for inclusion in a victim impact statement.

[5-10,180] Form of victim impact statements 10 A victim impact statement: (a) must be legible and may be either typed or hand-written, and (b) must be on A4 size paper, and (c) must be no longer than 20 pages in length including medical reports or other annexures (except with the leave of the court). Note. Victims Services provides information about victim impact statements, including the suggested form of a victim impact statement, on its website at www.victimsservices.justice.nsw.gov.au.

[5-10,185] Content of victim impact statements 11 (1) A victim impact statement must identify the victim or victims to whom it relates. (2) The statement must include the full name of the person who prepared the statement. (3) If the person who prepared the statement is not a victim to whom it relates (or a representative referred to in clause 9(1) who is providing information for inclusion in a victim impact statement): (a) the statement must indicate that the victim or victims do not object to the statement being tendered to the court, and (b) the victim or victims (or the victim’s representative) must sign the statement to verify that they do not object. (4) If a victim to whom the statement relates is a family victim, the statement must identify the primary victim and state the nature and (unless a relative by blood or marriage) the duration of that victim’s relationship with the primary victim.

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reg 11

[5-10,185]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

reg 11

(5) If a victim’s representative acts on behalf of a primary victim for the purpose of providing information for inclusion in the victim impact statement, the statement must indicate the name of that person and the nature and (unless a relative by blood or marriage) the duration of that person’s relationship with the primary victim. (6) A victim impact statement must not contain: (a) anything that is offensive, threatening, intimidating or harassing, or (b) any suggestion or views about the sentence to be imposed, or the matters that the sentencing court should take into account, or (c) anything else that is not referred to in section 28 of the Act or that is otherwise not contemplated by the Act to be included in the statement.

[5-10,187] Victim impact statements by victims of offenders found not guilty by reason of mental illness 11A (1) This clause applies to a victim impact statement prepared for the purposes of section 30L of the Act. (2) The statement may include the following matters: (a) the risk that the release of the offender would pose to the victim, (b) conditions that should be imposed on the release of the offender, (c) any other matter relating to the victim that the victim thinks should be considered in deciding the conditions of release for the offender. (3) The court may, if a victim impact statement is received by the court, invite the victim or the person who prepared the statement to add to the statement a matter referred to in subclause (2) or to make submissions on any of those matters. (4) Clause 11(3) does not apply to a victim impact statement to which this clause applies. [cl 11A insrt SL 208 of 2019 Sch 1[1], opn 27 May 2019]

[5-10,190] Tendering of victim impact statements 12 Only one victim impact statement may be tendered in respect of: (a) the primary victim, or (b) if the primary victim has died as a result of the offence — each family victim. DIVISION 3 — ASSESSMENT REPORTS FOR COURTS [Div 3 insrt SI 537 of 2018 Sch 1[2], opn 24 Sep 2018]

Note. A request for an assessment report about an offender may be made at any time during sentencing proceedings. An offender is defined as “a person whom a court has found guilty of an offence”. See sections 3 and 17C of the Act.

[5-10,235] Assessment reports generally 12A matters: (a) (b) (c)

(1) An assessment report in respect of an offender is to address the following

the offender’s risk of re-offending, any factors related to the offender’s offending behaviour, any factors that may impact on the offender’s ability to address his or her offending behaviour, (d) how the matters referred to in paragraphs (b) and (c) would be addressed by supervision and the availability of resources to do so,

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[5-10,250]

(e) any conditions that would facilitate the effective supervision of the offender in the community, (f) the offender’s suitability for community service work, (g) a summary of the offender’s response to any previous period of management in the community in respect of any relevant order, (h) any additional matters that the court wishes to have specifically addressed. (2) Subclause (1) does not limit the matters that may be addressed in an assessment report. (3) An assessment report need not address a matter referred to in subclause (1) if the matter is not relevant to the circumstances relating to the offender or the court does not require the matter to be addressed.

[5-10,240] Assessment reports for home detention condition 12B address (a) (b)

(1) An assessment report in relation to a home detention condition must the following matters: the offender’s suitability for home detention, any risks associated with imposing home detention, including any risks to the offender or any other persons, including children, and any strategies that could manage the risks, (c) any other matters relevant to administering an intensive correction order with a home detention condition. (2) If it appears that the offender does not have accommodation suitable for the purposes of home detention, the assessment report is not to be finalised until reasonable efforts have been made by a community corrections officer, in consultation with the offender, to find suitable accommodation. (3) Subclause (1) does not limit the matters that may be addressed in an assessment report. DIVISION 4 — OFFENDERS AFFECTED BY MENTAL ILLNESS OR COGNITIVE IMPAIRMENT [Div 4 insrt SL 208 of 2019 Sch 1[2], opn 27 May 2019]

[5-10,245] Provision of copy to Mental Health Review Tribunal 12C A court must give to the Mental Health Review Tribunal a copy of a victim impact statement relating to an offender that the court received under section 30L of the Act as soon as practicable after the court makes a decision that results in the offender becoming a forensic patient within the meaning of the Mental Health (Forensic Provisions) Act 1990.

[5-10,250] Victim impact statements in proceedings before Mental Health Review Tribunal 12D (1) This clause applies if a victim impact statement made by or on behalf of the victim of a forensic patient is given to the Mental Health Review Tribunal by a court under section 30N of the Act. (2) The Tribunal is to acknowledge the victim impact statement at each review by the Tribunal of the forensic patient and is to consider and take into account the statement before determining an application by the forensic patient for release or a grant of leave.

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reg 12D

[5-10,250]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

reg 12D

(3) The victim may, with the consent of the Tribunal, update the victim impact statement. (4) The Tribunal may disclose the contents of a victim impact statement to the forensic patient’s legal representative only in the circumstances in which, and subject to any conditions on which, the court permitted the disclosure of the victim impact statement. (5) Despite subclause (4), if information contained in a victim impact statement was not disclosed by the court to the forensic patient’s legal representative or is inserted in an updated victim impact statement, the Tribunal may, in the interests of justice for the purposes of determining an application for release or a grant of leave, disclose the information to: (a) the legal representative, or (b) if the forensic patient does not have a legal representative, to an Australian lawyer appointed by the Tribunal for that purpose. (6) The Tribunal may direct that the information referred to in subclause (5) must not be disclosed by the legal representative to the forensic patient and may also, in that case, consent to general information about the statement being disclosed to the forensic patient.

[5-10,255] Submissions by designated carers and principal care providers 12E For the purposes of section 30M of the Act, the court may seek written or oral submissions from a designated carer or principal care provider as to the following: (a) the risk that the release of the offender would pose to the victim, (b) conditions that should be imposed on the release of the offender, (c) any other matter that the designated carer or principal care provider thinks should be considered in deciding the conditions of release for the offender. PART 3 — COMMUNITY-BASED ORDERS [Pt 3 subst SI 537 of 2018 Sch 1[3], opn 24 Sep 2018]

Note 1. If, in sentencing an offender, the sentencing court makes an intensive correction order in respect of the offender (with conditions imposed by the sentencing court under the Act), conditions of the intensive correction order are afterwards imposed, varied or revoked by the Parole Authority rather than the sentencing court. Note 2. Section 20AB of the Crimes Act 1914 of the Commonwealth provides for intensive correction orders under State legislation to be available for federal offences in certain circumstances. The Parole Authority’s powers in relation to administering intensive correction orders (including imposing, varying or revoking conditions of an order or providing permissions in relation to conditions of an order) extend to intensive correction orders for federal offences. Section 20AC of that Act in effect requires breaches of intensive correction orders for federal offences to be dealt with by the sentencing court. Note 3. Sections 69, 89 and 99 of the Act provide that certain orders and conditions must not be made or imposed in relation to offenders who reside or intend to reside in another State or Territory, unless that State or Territory is an approved jurisdiction. (Section 69 relates to making intensive correction orders, section 89 relates to imposing supervision conditions and community service work conditions on community correction orders, and section 99 relates to imposing supervision conditions on conditional release orders.) No States or Territories are currently declared by the regulations to be approved jurisdictions for the purposes of section 69, 89 or 99 of the Act.

708

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reg 13

CRIMES (SENTENCING PROCEDURE) REGULATION 2017

[5-10,290]

13 (1) An application to a court for the imposition, variation or revocation (under section 89, 90, 99 or 99A of the Act) of an additional or further condition of a community correction order or conditional release order must be in writing. (2) The court to which an application is made must fix a date for the hearing of the application, being a date not earlier than 14 days after, and not later than 3 months after, the date the application is filed. (3) The court may vary or waive a requirement imposed by subclause (2). (4) If the court fixes a date for the hearing, a copy of the application must be given not later than 5 days before the date fixed for the hearing of the application: (a) to the offender (unless the offender’s whereabouts are unknown or the court decides to deal with the matter under subclause (6) without the offender being present), if the applicant is a community corrections officer, or (b) to a community corrections officer, if the applicant is an offender. (5) For the purposes of subclause (4), the application may be given to a person by the court or by the applicant: (a) by serving it or causing it to be served on the person personally, or (b) by email to an email address, or by other electronic means, specified by the offender or a community corrections officer for the service of documents of that kind, or (c) in the case of notice to the offender — by sending it or causing it to be sent by post to the person’s address as last known to Community Corrections, or (d) in the case of notice to a community corrections officer — by sending it or causing it to be sent to the officer’s work address or to an office of Community Corrections. (6) The court may deal with the matter with or without parties being present and in open court or in the absence of the public. (7) The court: (a) must cause notice of the outcome of the application to be given to the offender, and (b) must, as soon as practicable after the application is dealt with, cause notice of the outcome to be given to Community Corrections if the court: (i) adds, varies or revokes a condition of a community correction order or conditional release order that is subject to a supervision condition or community service work condition, or (ii) imposes a supervision condition on a community correction order or conditional release order or a community service work condition on a community correction order. (8) If the court imposes, adds or varies a condition, the court must take reasonable steps to explain to the offender (in language that the offender can readily understand): (a) the offender’s obligations under the condition, and (b) the consequences that may follow if the offender fails to comply with those obligations. (9) An order of the court is not invalidated by a failure to comply with subclause (8).

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Sentencing

[5-10,290] Procedure for imposition, variation or revocation of additional or further conditions of community correction orders or conditional release orders

[5-10,290]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

reg 13

(10) The court may vary or waive a requirement imposed by subclause (7)(a) or (8). (11) In this clause, Community Corrections means the Community Corrections Division, Department of Justice.

[5-10,295] Community service work — maximum hours and minimum periods (ICO or CCO) 14 (1) For the purposes of sections 73A and 89 of the Act, the maximum number of hours that may be specified for community service work in an additional condition of an intensive correction order or community correction order is: (a) 100 hours — for offences for which the maximum term of imprisonment provided by law does not exceed 6 months, or (b) 200 hours — for offences for which the maximum term of imprisonment provided by law exceeds 6 months but does not exceed 1 year, or (c) 500 hours if the order is a community correction order — for offences for which the maximum term of imprisonment provided by law exceeds 1 year, or (d) 750 hours if the order is an intensive correction order — for offences for which the maximum term of imprisonment provided by law exceeds 1 year. (2) For the purposes of sections 73A and 89 of the Act, the minimum period that a community service work condition of an intensive correction order or community correction order must be in force is: (a) the period of 6 months — if the number of hours of community service work required to be performed does not exceed 100 hours, or (b) the period of 12 months — if the number of hours of community service work required to be performed exceeds 100 hours but does not exceed 300 hours, or (c) the period of 18 months — if the number of hours of community service work required to be performed exceeds 300 hours but does not exceed 500 hours, or (d) the period of 2 years — if the number of hours of community service work required to be performed exceeds 500 hours. PART 4 — SENTENCING PROCEDURES FOR HOME DETENTION ORDERS [Repealed] [Pt 4 rep SI 537 of 2018 Sch 1[3], opn 24 Sep 2018]

PART 5 — SENTENCING PROCEDURES FOR COMMUNITY SERVICE ORDERS [Repealed] [Pt 5 rep SI 537 of 2018 Sch 1[3], opn 24 Sep 2018]

PART 6 — MISCELLANEOUS

[5-10,645] Savings provision 25 Any act, matter or thing that, immediately before the repeal of the Crimes (Sentencing Procedure) Regulation 2010, had effect under that Regulation continues to have effect under this Regulation.

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reg 26

CRIMES (SENTENCING PROCEDURE) REGULATION 2017

[5-10,650]

26 Part 3 of the Act, as in force before its amendment by the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017, continues to apply to the determination of the sentence for an indictable offence to which the offender pleaded guilty, if the committal proceedings for that offence: (a) dealt with one or more offences and proceedings for any of those offences commenced before the commencement of Schedule 1 to that Act, and (b) were conducted in accordance with the provisions that were applicable to committal proceedings before the commencement of Schedule 1 to that Act. [cl 26 insrt SI 170 of 2018 cl 3, opn 30 Apr 2018]

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Sentencing

[5-10,650] Transitional arrangements for guilty pleas provisions

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Introduction: Procedure for Hearings On Indictment CONTENTS PRE-TRIAL PROCEDURES: PROCEDURE FOR HEARINGS ON INDICTMENT Decision to prosecute Finding a bill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Finding no bill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ex-officio indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[7-001] [7-005] [7-010]

Administrative arrangements Venue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Notice of readiness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Listing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[7-050] [7-055] [7-060]

Indictment and nolle prosequi The indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Nolle prosequi . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[7-100] [7-105]

Arraignment Arraignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Fitness to plead and stand trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Special pleas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Plea of not guilty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Plea of guilty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[7-150] [7-155] [7-160] [7-165] [7-170]

Pre-trial determinations and applications Pre-trial case management and disclosure . . . . . . . . . . . . . . . . . . . . . Orders for trial by judge alone . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Orders for separate trial and severance of counts . . . . . . . . . . . . . . Demurrer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application for a quashing of the indictment . . . . . . . . . . . . . . . . . . Application for a stay of the indictment . . . . . . . . . . . . . . . . . . . . . . . Pre-trial hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[7-195] [7-200] [7-205] [7-210] [7-215] [7-220] [7-225]

Trial Procedure

Paragraph

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Paragraph

Subpoenas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[7-230]

THE TRIAL: PROCEDURE FOR HEARINGS ON INDICTMENT The accused Legal representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Unrepresented accused at trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Accused absconding during trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[7-400] [7-405] [7-410]

Open court and non-publication orders Open court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Court suppression and non-publication orders . . . . . . . . . . . . . . . . .

[7-425] [7-430]

The jury Empanelling the jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Accused in charge of the jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Conduct of jury throughout the trial . . . . . . . . . . . . . . . . . . . . . . . . . . .

[7-450] [7-455] [7-460]

The Crown case The Crown opening . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Defence opening address . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Admissions by the accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Crown witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The giving of evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Crown case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Evidence for the Crown . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Crown reopening its case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[7-475] [7-477] [7-480] [7-485] [7-490] [7-495] [7-500] [7-505]

Applications by accused at close of Crown case Verdict by direction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Prasad direction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[7-525] [7-530]

Defence case Statement by the accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Evidence for the defence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[7-550] [7-555]

Case in reply Evidence by Crown in reply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[7-575]

Addresses Addresses of counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[7-600]

TRIAL PROCEDURE

Paragraph

Summing up Content of summing up . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Duties of counsel in respect of summing up . . . . . . . . . . . . . . . . . . .

[7-625] [7-640]

JURY DELIBERATIONS AND VERDICT: PROCEDURE FOR HEARINGS ON INDICTMENT

PROCEEDINGS

AFTER VERDICT: PROCEDURE HEARINGS ON INDICTMENT

Hearing of related summary offences . . . . . . . . . . . . . . . . . . . . . . . . . . Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Forfeiture, confiscation and disposal of property . . . . . . . . . . . . . . . Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[7-800] [7-805] [7-810]

FOR [7-900] [7-905] [7-910] [7-915]

Trial Procedure

Retirement of jury for deliberation . . . . . . . . . . . . . . . . . . . . . . . . . . . . Failure to reach agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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PRE-TRIAL PROCEDURES: PROCEDURE FOR HEARINGS ON INDICTMENT DECISION TO PROSECUTE [7-001] Finding a bill Where the defendant has been committed for trial for an indictable offence, the Director of Public Prosecutions must determine whether the prosecution shall continue and on what charges. A Crown Prosecutor or solicitor from the Office of the Director of Public Prosecutions finds a bill in respect of the offence for which the defendant was committed for trial or some other indictable offence: see Director of Public Prosecutions Act 1986 s 7(2) at [29-10,225]; Crown Prosecutors Act 1986 s 5(1)(b) at [29-5200]. The decision to find a bill is an independent act and not confirmatory of anything done by the magistrate: R v Grassby (1988) 15 NSWLR 109 at 114; R v Scott (1993) 42 FCR 1; 116 ALR 703. The finding of a bill will cure any defects in the committal proceedings, subject to any unfairness caused to the trial of the accused: R v Butler (1991) 24 NSWLR 66; 56 A Crim R 231. The bill found need not be for the most serious offence which the evidence would support and it is a matter for the discretion of the Crown to determine the appropriate charge: R v Weaver (1931) 45 CLR 321 at 334; R v Brown (1989) 17 NSWLR 472; 44 A Crim R 385; R v Saraswati (1989) 47 A Crim R 1 at 3. See paragraph 9 of the Prosecution Guidelines of the NSW DPP at [28-25,045] concerning factors relevant to finding bills of indictment.

[7-005] Finding no bill Where the defendant has been committed for trial, the Director of Public Prosecutions (or the Attorney General) may determine that no bill shall be found in respect of any or all offences for which the defendant was committed for trial: Director of Public Prosecutions Act 1986 s 7(2), see at [29-10,225]. A Crown Prosecutor has no power to determine that no bill be found, see Crown Prosecutors Act 1986 s 5(3) at [29-5200]. The court will not examine the power to find no bill or enter a nolle prosequi: Clyne v A-G (Cth) (1984) 12 A Crim R 378 at 381-2. As to the procedure where the prosecution determine not to proceed further and the accused is in custody on remand see at [2-s 44]. See paragraph 9 of the Prosecution Guidelines of the NSW DPP at [28-25,045] concerning factors relevant to finding a bill of indictment and paragraph 12 of those Guidelines at [28-25,060] concerning the giving of reasons for DPP decisions.

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Trial Procedure

Introduction: Procedure for Hearings on Indictment

[7-010]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

[7-010] Ex-officio indictment The Director of Public Prosecutions and the Attorney General may determine that a prosecution shall proceed notwithstanding that the defendant was not committed for trial for the offence charged or any offence, or even where there have been no committal proceedings: Criminal Procedure Act 1986 s 8(2) and Director of Public Prosecutions Act 1986 s 7(2)(c). A bill found in such circumstances is referred to as an ex-officio indictment: see [2-s 8.10]. It will be found where the defendant was discharged at committal, committed for trial or sentence for a different offence than the one charged, or where there has been some defect in the committal proceedings, eg R v Duffıeld (1992) 28 NSWLR 638; 110 ALR 323; BC9203066, where committal proceedings were terminated after a plea of guilty and before any evidence called, and see R v Butler (1991) 24 NSWLR 66; 56 A Crim R 231 and Sergi v DPP (NSWCA, Kirby P, Meagher and Handley JJA, 40518/1991, 18 September 1991, unreported, BC9101577). See paragraph 9 of the Prosecution Guidelines of the NSW DPP at [28-30,045] for factors relevant to the filing of an ex-officio indictment. The provisions of Pt 2 Div 3 of the Criminal Procedure Act do not affect the power of the Crown to bring proceedings by ex officio indictment: R v Bartalesi (1997) 41 NSWLR 641; 93 A Crim R 274; BC9702655; (1997) 4 Crim LN 44 [709]. It is not a case of double jeopardy or an abuse of process for the prosecution to file a second ex officio indictment after terminating proceedings on a first ex officio indictment: D v R [2016] NSWCCA 60 (unreported judgment; see 23(6) Crim LN [3695]). Nor was there any issue estoppel arising.

ADMINISTRATIVE ARRANGEMENTS [7-050] Venue Proceedings for all offences but murder are generally held in the District Court and offences of murder and those for which a life sentence may be appropriate are heard in the Supreme Court: see Criminal Procedure Act 1986 s 128 and the Practice Notes referred to at [2-s 128.1]. As to the proper venue in the District Court, see District Court Rules r 7(2) at [2-12,045]. As to change of venue, see at [2-s 13].

[7-055] Notice of readiness The Director of Public Prosecutions is required to forward a notice of readiness to the District Court including a draft indictment: cl 7, Criminal Procedure Regulation 2017 at [2-5055]. See also Practice Note 15 at [28-10,005]. See para 5 of the Prosecution Guidelines of the NSW DPP at [28-25,025] concerning the obligation of the prosecution to proceed in an expeditious fashion.

[7-060] Listing The listing of matters before the court is a function of the Criminal Listing Directorate: Criminal Procedure Act 1986 s 123, see at [2-s 123], and District Court Rules r 6 at [2-12,040]. The magistrate, when committing the defendant for trial, will generally fix a date for the appearance of the defendant in the District Court: see Practice Note No 1/91 at [28-15,015] and Practice Note No 15 at [28-10,005].

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TRIAL PROCEDURE

[7-105]

INDICTMENT AND NOLLE PROSEQUI Sections 127 and 129 of the Criminal Procedure Act 1986 at [2-s 127] and [2-s 129] make provision concerning the manner of and time for presentation of an indictment. As to an indictment in respect of a corporation see at [2-s 10]. There can only be one indictment for each trial: Munday v Gill (1930) 44 CLR 38 at 87; [1930] ALR 313; BC3000017 applied in Swansson v R (2007) 168 A Crim R 263; [2007] NSWCCA 67; BC200701920; 14 Crim LN 72 [2223] where it was held that the simultaneous hearing of two or more indictments is a nullity. If more than one person is to be tried, they must be joined in the one indictment: R v Howard (1992) 29 NSWLR 242 at 247; BC9203118. The indictment contains the charges for which a bill has been found and is in the name of the Director of Public Prosecutions or the Attorney General: see [2-s 9]. The indictment may contain more than one count: see [2-s 66]. Each count on the indictment must be for a distinct and separate offence: R v West [1948] 1 KB 709. As to the requirements of stating an offence in a count in an indictment, see [2-s 16.5] and following. An indictment may contain counts in the alternative and there is no error if the alternative count is more serious than the principal count: R v Maharaj (NSWCCA, Gleeson CJ, Beazley JA and Donovan AJ, 60558/1997, 1 May 1998, unreported, BC9801519); (1998) 5 Crim LN 41 [858]. As to duplicity, see at [2-s 16.20]. As to the contents of an indictment generally, see ibid Pt 3 Div 5. As to the joinder of persons and offences in an indictment, see [2-s 21.5] and [2-s 21.10]. As to the form of indictment generally, see Supreme Court Rules 1970 r 3D at [20-26,835]. The prescribed forms of indictment for particular offences have been repealed: see Smith and Kirton v R (1990) 47 A Crim R 43; BC9002723. As to specimen forms of indictments for offences in the Crimes Act, see below for each offence set out in the text.

[7-105] Nolle prosequi Once an indictment has been filed the Director of Public Prosecutions or the Attorney General may terminate the proceedings by a nolle prosequi. Once the proceedings have been terminated and that decision is notified to the court, the court has no power to proceed on any indictment filed in the court: R v GKA (1998) 99 A Crim R 491; 5 Crim LN 20 [827]. As to the history of the power to enter a nolle prosequi, see R v Jell; Ex parte A-G [1991] 1 Qd R 48 at 57-9; 46 A Crim R 161 and Question of Law Reserved on Acquittal (No 3 of 1995) (1996) 88 A Crim R 1; BC96002752 where the use of a nolle prosequi is examined in detail. A Crown Prosecutor has no power to determine that there be no further proceedings taken against a person: see Crown Prosecutors Act 1986 s 5(3) at [29-5200]. At common law a nolle prosequi could only be entered after the indictment was presented and before judgment: R v Economou (1989) 51 SASR 421 at 425; 44 A Crim R 88; R v Colling (1847) 2 Cox CC 184. No particular formality is required in entering a nolle prosequi in this State: R v Howard (1992) 29 NSWLR 242 at 248. The power to enter a nolle prosequi is not subject to the control of the courts: R v Comptroller of Customs [1899] 1 QB 909; Maxwell v R (1996) 184 CLR 501 at 512, 534; 135 ALR 1; (1996) 3 Crim LN 9 [533] but the court has power to refuse to accept

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Trial Procedure

[7-100] The indictment

[7-105]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

a nolle prosequi where to do so would result in abuse of process: Question of Law Reserved on Acquittal (No 3 of 1995) (1996) 88 A Crim R 1; BC96002752. The issue was considered by Kirby J in Director of Public Prosecutions v B (1998) 155 ALR 539; 5 Crim LN 56 [883] where he held that the court has power to stay entry of a nolle prosequi where it was satisfied that it will be, or will be the first step in, an abuse of process. Once a nolle prosequi has been entered by the court it has no further power to deal with the matter and must discharge the accused: Question of Law Reserved on Acquittal (No 3 of 1995), above, where it was held that the effect of the nolle is a statement that the prosecution is unwilling to proceed but does not amount to a promise not to proceed on another occasion or another charge. The fact that a nolle prosequi is entered in respect of a charge does not mean that the prosecutor cannot proceed on that charge or another charge, as it does not prove the accused’s innocence: Davis v Gell (1924) 35 CLR 275 at 286–7, 291–2, 294, 297; Broome v Chenoweth (1947) 73 CLR 583 at 599; 20 ALJ 401; [1947] VLR 1; 8 ATD 218; Re Seidler [1986] 1 Qd R 486 at 489. Costs cannot be awarded against the Crown where proceedings are terminated after committal: R v Scott (1993) 42 FCR 1; 116 ALR 703. It is not an abuse of process for the prosecution to enter a nolle prosequi and then present an indictment for the same offence: R v McLoughlin; Ex parte DPP [1988] 1 Qd R 464; (1987) 31 A Crim R 256 but cf R v Mellifont (1992) 64 A Crim R 75, where the nolle was entered at a time where the accused would have been acquitted, and it was held to be oppressive to continue the prosecution. Nor is it an abuse of process to prosecute offences arising from the same facts in an earlier trial where the accused had been acquitted: R v Clarkson [1987] VR 962; (1987) 25 A Crim R 277; cf R v Breen (1990) 99 FLR 474; 47 A Crim R 298; R v Hofschuster (1993) 70 A Crim R 260, where the further proceedings were a collateral attack on the earlier verdict and infringed the principle against double jeopardy.

ARRAIGNMENT [7-150] Arraignment On the date for the arraignment of the accused the indictment is presented to the court: Practice Note No 15 at [28-10,005]. See [2-s 129] for the time within which an indictment is to be presented. When the indictment is read to the accused, he is required to plead to it and if a plea of not guilty is entered the accused is to stand trial, see [2-s 153]. The accused is put to trial on the indictment upon which he has been arraigned: R v Janceski [2005] NSWCCA 281; BC200506067; (2005) 12 Crim LN 63 [1914]. Each count should be put separately to the accused: R v Boyle [1954] 2 QB 292. There is a special procedure to be adopted where the count in the indictment avers that the accused has previously been convicted of an offence, see [2-s 152]. Where the accused stands mute, the court may enter a plea of not guilty: [2-s 155]. The accused must plead to the indictment personally and should plead to each count separately: R v Ellis (1973) 57 Cr App R 571; cf R v Boyle, above. There may be a number of arraignments of the accused before the accused is placed in charge of the jury: R v Nicolaidis (1994) 33 NSWLR 364; 72 A Crim R 394; BC9405312. However, the proceedings commence when the accused is first arraigned and continue notwithstanding that there may be a further arraignment: R v Taylor [2003]

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[7-160]

NSWCCA 194; BC200306670. However, there can only be one indictment in any one trial: R v Howard (1992) 29 NSWLR 242 at 247–8; BC9203118. The accused should be arraigned in the District Court before any pre-trial proceedings take place and where pre-trial rulings are made the accused is to be re-arraigned again before the jury panel: [2-s 130]. Otherwise it is unnecessary for the accused to be arraigned before the jury where the accused has been previously arraigned on the indictment in respect of which the accused is to stand trial: R v Janceski, above. An arraignment before the jury panel is the formal commencement of the trial: R v Nicolaidis, above. Where an accused is pleading not guilty but a co-accused is pleading guilty the plea of the co-accused should not be taken before the jury. The plea of guilty of the co-accused is not admissible evidence to prove the co-accused’s guilt as a principal on a charge that the accused is an accessory to the offence committed by the co-accused: R v Velardi (NSWCCA, Gleeson CJ, Allen and James JJ, 60611/1995, 24 May 1996, unreported, BC9601940); (1996) 3 Crim LN 36 [572].

[7-155] Fitness to plead and stand trial As to fitness to plead and stand trial, see at [17-2105.1]. Where the question of the accused’s fitness to be tried arises before arraignment the Attorney General is to determine whether there should be an inquiry into the accused’s fitness: see s 8, Mental Health (Forensic Provisions) Act 1990 at [17-2120]. Where the question as to the accused’s fitness arises after arraignment, the court is to hear submissions on the matter in the absence of the jury: see ibid s 9 at [17-2125]. The question of the accused’s fitness may be determined by a jury or, if the accused elects, by judge alone: ibid s 11A at [17-2140]. As to the conduct of the inquiry, see ibid s 12 at [17-2145]. See paragraph 22 of the Prosecution Guidelines of the NSW DPP at [28-25,110] concerning the role of the DPP where mental health issues arise, including the application of the Mental Health (Forensic Provisions) Act 1990.

[7-160] Special pleas The accused can, instead of pleading not guilty to the general issue, raise a special plea being: Plea as to the jurisdiction of the court This plea is raised without the accused answering the general issue, although normally the jurisdiction of the court is raised on a motion to quash the indictment or after a plea of not guilty: R v Jameson [1896] 2 QB 425. There is a distinction between a plea to the jurisdiction of the court to hear and determine a charge and a plea of not guilty on the basis that the acts charged did not fall within the jurisdiction of the court: Thompson v R (1989) 169 CLR 1 at 22; 86 ALR 1 per Brennan J. Plea of pardon As to a plea of pardon, which is not the same as an indemnity to a witness, see R v Milnes and Green (1983) 33 SASR 211. Plea of autrefois acquit, autrefois convict, or plea in bar As to the plea of autrefois convict or acquit, see [2-s 156]. As to plea in bar see Dodd v R (1991) 56 A Crim R 451; BC9101494 where it was held that a plea in bar is available

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TRIAL PROCEDURE

[7-160]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

where, although the plea of autrefois convict may not apply, the second offence was an aggravated form of the offence of which the accused was convicted. Normal procedure The normal procedure is that a jury is empanelled to determine the special plea and if found against the accused, he is required to plead over (ie to plead guilty or not guilty to the charge) and a new jury is empanelled to try that question: R v Milnes and Green, above. However, the plea of autrefois acquit or autrefois convict is determined by a judge and not a jury: see [2-s 154]. At common law the plea cannot be entered after the accused has pleaded not guilty to the charge unless the court permits that plea to be withdrawn: R v Kent-Newbold (1939) 62 CLR 398 at 406, 412; Chenoweth v Broome [1947] VLR 1. The accused cannot plead generally and specially: R v Strahan (1855) 7 Cox CC 85.

[7-165] Plea of not guilty The plea of not guilty puts the accused to trial: [2-s 154]. There is no trial where the accused pleads guilty on arraignment: R v MacDonald (2000) 110 A Crim R 238; [2000] NSWCCA 1; BC200000178; (2000) 7 Crim LN 14 [1121].

[7-170] Plea of guilty The accused can plead guilty to any count on the indictment. Where the accused pleads guilty to any alternative count, the Crown can accept such a plea in full discharge of the indictment: see [2-s 153.1]. The Crown is not required to accept the lesser plea and the plea can be refused by the trial judge. If the accused pleads guilty during the course of the trial and the jury is discharged and the court finds the accused guilty, see [2-s 157]. The accused cannot be allowed to withdraw a plea of guilty after a verdict by the jury given in consequence of that plea: R v Chiron [1980] 1 NSWLR 218; R v Mitchell (NSWCCA, Gleeson CJ, Cole JA and Sperling J, 60321/1994, unreported, 5 April 1995, BC9504682); (1995) 2 Crim LN 51 [595]. The plea of guilty does not have to be accepted by the court, and it should not do so if there is no factual basis for the plea or if the accused gives a version inconsistent with the plea: R v Tonks [1963] VR 121; Griffıths v R (1977) 137 CLR 293; 15 ALR 1 at CLR 302; Marlow v R [1990] 1 Tas SR 1; Maxwell v R (1996) 184 CLR 501; 135 ALR 1; (1996) 3 Crim LN 9[533]. Where the accused suffered significant mental impairment and stated in evidence after plea that he did not touch the complainant, the trial judge should have rejected the plea and entered a plea of not guilty: R v Jones (NSWCCA, Carruthers J, Abadee J, Blanch J, 60630/1993, 14 April 1994, unreported, BC9402488). Where the trial judge found that there was no evidence to support a plea of guilty to manslaughter based upon provocation, the plea of guilty was refused even though it had been accepted by the Crown: R v Dib [2002] NSWSC 934; BC200205992; (2002) 9 Crim LN 79 [1483]. As to the effect of a guilty plea on sentencing, see [5-045]; Crimes Act (Cth) s 16A(2)(g) at [18-15,010]. As to the withdrawal of a guilty plea, see at [5-020]. The Crown may be permitted to withdraw the acceptance of a plea to a less serious offence than that originally charged where to proceed on the less serious charge would endanger the reputation of the system of justice: R v Beeby (1999) 104 A Crim R 142; [1999] NSWCCA 30; BC9900748; R v Filimoehala [2003] NSWCCA 37; BC200300828 (2003) 10 Crim LN 19 [1531].

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[7-200]

PRE-TRIAL DETERMINATIONS AND APPLICATIONS Division 3 of Pt 3 in Ch 3 of the Criminal Procedure Act 1986 at [2-s 134]ff contains case management provisions and other provisions to reduce delays in proceedings on indictment. See ss 139–140 of the Criminal Procedure Act 1986 at [2-s 139]–[2-s 140] for provisions concerning pre-trial hearings and pre-trial conferences. Provision is made at ss 141–144 of the Criminal Procedure Act 1986 at [2-s 141]–[2-s 144] for mandatory prosecution and defence disclosure. See s 146 of the Criminal Procedure Act 1986 at [2-s 146] for sanctions for non-compliance with pre-trial disclosure requirements. See s 146A of the Criminal Procedure Act 1986 at [2-s 146A] concerning inferences which may be drawn where the accused fails to comply with certain pre-trial disclosure obligations. Disclosure requirements are ongoing: s 147 of the Criminal Procedure Act 1986 at [2-s 147]. A court may waive any pre-trial disclosure requirements but only if the court is of the opinion that it would be in the interests of the administration of justice to do so: s 148 of the Criminal Procedure Act 1986 at [2-s 148]. See s 149E of the Criminal Procedure Act 1986 at [2-s 149E] for powers of the court to ensure the efficient management and conduct of a trial. See s 150 of the Criminal Procedure Act 1986 at [2-s 150] concerning defence notice of alibi and s 151 of the Criminal Procedure Act 1986 at [2-s 151] for defence notice of intention to adduce evidence of substantial mental impairment at a trial for murder. See [2-s 142.5] for the prosecutor’s general law duty of disclosure and para 18 of the Prosecution Guidelines of the DPP (NSW) at [28-25,090].

[7-200] Orders for trial by judge alone Trials on indictment are normally by jury: s 131 of the Criminal Procedure Act 1986, at [2-s 131]. However in respect of a state offence, an accused person or the prosecutor may apply to the court for an order for trial by judge alone: s 132(1) at [2-s 132]. The court must make a trial by judge order if both the accused person and the prosecutor agree: s 132(2), Criminal Procedure Act 1986 at [2-s 132]. If the accused person does not agree, a trial by judge order must not be made: s 132(3). If the prosecutor does not agree, the court may make a trial by judge order if it considers it in the interests of justice to do so: s 132(4). See s 132(5) for certain factors which bear upon the interests of justice test in s 132(4). The court may make a trial by judge order despite any provision in ss 132 or 132A if the court is of the opinion that the requirements of s 132(7) (a substantial risk of jury tampering) are made out. An application for a trial by judge order under s 132 of the Criminal Procedure Act 1986 must be made not less than 28 days before the date fixed for trial, except with leave of the court: s 132A at [2-s 132A]. See s 132A(2) of the Criminal Procedure Act 1986, at [2-s 132A], concerning applications for a trial by judge order in a joint trial. An accused in respect of a Commonwealth offence must be tried by jury: Brown v R (1986) 160 CLR 171; 64 ALR 161; BC8601411.

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[7-195] Pre-trial case management and disclosure

[7-205]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

[7-205] Orders for separate trial and severance of counts As to separate trials, see [2-s 21.15]. As to the procedure in the District Court see District Court Rules 1973 Pt 53 r 10 at [2-12,060].

[7-210] Demurrer The accused may demur to the indictment where it is contended that a count in the indictment does not disclose an offence: see at [2-s 18] and annotations. As to the procedure in the District Court, see District Court Rules 1973 r 10 at [2-12,060]. An application for a demurrer must be filed within three months of receipt of the draft indictment or within one month where the accused is in custody; see Criminal Procedure Regulation 2000 cl 10 at [2-5235].

[7-215] Application for a quashing of the indictment The accused may apply to have the indictment quashed because the facts stated did not amount to an offence or an offence is not disclosed in the depositions: see [2-s 19] and annotations. As to the procedure in the District Court, see District Court Rules 1973 r 10 at [2-12,060]. An application to quash the indictment must be filed within three months of receipt of the draft indictment or within 1 month where the accused is in custody; see cl 8 of the Criminal Procedure Regulation 2017 at [2-5060].

[7-220] Application for a stay of the indictment The accused may seek a stay of the indictment on the basis that it is an abuse of process: see at [2-s 19.5]. The trial court has jurisdiction to stay a trial permanently where there is no other remedy available to overcome such unfairness to an accused that any trial would be unfair, but the jurisdiction is exceptional and is to be exercised cautiously: Jago v District Court of NSW (1989) 168 CLR 23 at 34, 72, 76; 87 ALR 577; 41 A Crim R 307; Barton v R (1980) 147 CLR 75 at 95–6; 32 ALR 449. The Supreme Court has power to stay a trial in the trial court: Herron v McGregor (1986) 6 NSWLR 246 at 251; Aboud v A-G (NSW) (1987) 10 NSWLR 671. The stay can be granted even before an application has been made to the trial court: Attorney-General (NSW) v Kintominas (1987) 28 A Crim R 371, but the application should first be taken before the trial court even if the indictment has not been presented: Watson v A-G (NSW) (1987) 8 NSWLR 685 at 701; 28 A Crim R 332. The fact that the committal proceedings were defective will not result in a stay unless the defect results in an unfair trial: R v Stanton (1991) 52 A Crim R 164; R v Butler (1991) 24 NSWLR 66; 56 A Crim R 231. However, a defective committal proceeding may give rise to a serious risk of an unfair trial and may justify a pre-trial inquiry in which a witness is called for the purposes of cross-examination: see R v Basha (1989) 39 A Crim R 337; BC8902533. Such an inquiry may be appropriate where a witness was not called at committal or where cross-examination was not permitted, for example R v Kennedy (1997) 94 A Crim R 341; BC9702759; 4 Crim LN 46 [712]. As to the procedure in the District Court, see District Court Rules 1973 Pt 53 r 10 at [29-31,060]. An application for a stay of the indictment must be filed within three months of receipt of the draft indictment or within 1 month where the accused is in custody, see cl 8 of the Criminal Procedure Regulation 2017 at [2-5060].

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[7-405]

The trial court has jurisdiction to conduct proceedings after the presentation of the indictment and before a jury is empanelled and may make necessary orders for the purposes of the trial: see [2-s 130]. Such proceedings are considered as part of the trial and the accused is to be arraigned again when the jury is empanelled. The accused can apply to have a voir dire hearing before the jury is empanelled in order to determine the admissibility of evidence or the capacity of a witness to give evidence. In the District Court the accused shall be required to plead if he or she has not already done so: see District Court Rules 1973 r 11 at [2-12,075] and the annotations. As to a voir dire in respect of a witness not called at the committal, see R v Basha (1989) 39 A Crim R 337; BC8902533 and R v Sandford (1994) 33 NSWLR 172. As to voir dire hearings generally, see Evidence Act 1995 s 189 at [3-s 189]. A pretrial order made by a judge in proceedings on indictment is binding on the trial judge in those proceedings unless, in the opinion of the trial judge, it would not be in the interests of justice for the order to be binding: s 130A Criminal Procedure Act 1986 at [2-s 130A]. Section 130A extends to a ruling given on the admissibility of evidence: s 130A(5). In light of s 5F(3A) Criminal Appeal Act 1912 at [20-265], it is essential that the Crown attempt to identify challenges to the Crown case so that such challenges may be resolved prior to empanelling a jury: R v Lameri and Cohen BC200404129; [2004] NSWCCA 217; (2004) 11 Crim LN 61 [1720]. Trial judges should raise with counsel prior to the jury being empanelled whether there is any challenge to the Crown’s case and, if there is, whether the Crown contends that the exclusion of the evidence would substantially weaken its case to be presented to the jury: R v Lameri and Cohen, above, at [52].

[7-230] Subpoenas As to the issuing of subpoenas in the District Court, see District Court Rules r 8 at [2-12,050]. As to legal professional privilege see [2-12,050.5]. As to public interest immunity, see at [2-12,050.10]. As to legitimate forensic purposes, see at [2-12,050.15].

THE TRIAL: PROCEDURE FOR HEARINGS ON INDICTMENT THE ACCUSED [7-400] Legal representation The accused has the right to legal representation at the trial: see at [2-s 36]. As to the right to legally aid counsel, see at [2-s 42.5] and Dietrich v R (1992) 177 CLR 292; 109 ALR 385; BC9202663. As to the right to an adjournment to obtain legal representation, see Small v R (1994) 33 NSWLR 575; 72 A Crim R 462; BC9405328. As to the rules, relating to representation in the District Court, see at [2-12,035].

[7-405] Unrepresented accused at trial The accused who is unrepresented has no right to be assisted by a “McKenzie friend”: Smith v R (1985) 159 CLR 532; 71 ALR 631; BC8501047. Where the accused is

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[7-225] Pre-trial hearings

[7-405]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

unrepresented, the trial judge may permit him or her to sit at the bar table instead of being in the dock: R v Burke [1993] 1 Qd R 166; (1991) 56 A Crim R 242. As to the placement of the accused during the course of the trial, see [2-s 34]. Generally the trial judge should ensure that the accused has a fair trial: R v Smith (EJ) [1982] 2 NSWLR 608; Smith v R (1985) 159 CLR 532 at 534; 71 ALR 631; BC8501047. It is the duty of the trial judge to tell the accused of his rights but not how to exercise them: R v Anastasiou (aka Peters) (1991) 21 NSWLR 394; 52 A Crim R 7. The judge should inform the accused of his rights in relation to objections to evidence, and cross-examination of witnesses: MacPherson v R (1981) 147 CLR 512; 37 ALR 81; BC8100115. However, the judge should not formulate questions to witnesses: R v Zorad (1990) 19 NSWLR 91; 47 A Crim R 211. The accused should be informed that a denial of an allegation put to a witness is not evidence: R v Anastasiou (aka Peters) (1991) 21 NSWLR 394; 52 A Crim R 7. The unrepresented accused should also be told of his right to have a voir dire hearing when it is apparent that there is a real question as to the admissibility of the evidence: MacPherson v R, above; R v Gidley [1984] 3 NSWLR 168 at 180–1. If the evidence is admitted the judge should then tell the accused of his right to have the jury reject the evidence: R v Zorad, above. There is no obligation on the judge to advise the accused against the tender of prejudicial material, although the judge may be required to advise on the consequences of action taken by the accused: R v Gidley, above, or not taken by him: R v Anastasiou (aka Peters), above. The trial judge must inform the accused of his right to address the jury: R v Nilson [1971] VR 853. Where inadmissible evidence has been given, the trial judge should inform the accused of his right to ask for a discharge of the jury: R v Waring (No 2) [1972] Qd R 263. The accused should be warned as to the consequences of the failure to give evidence including the fact that the trial judge could comment upon the failure: R v Wilson (NSWCCA, Spigelman CJ, Sully and Ireland JJ, 60599/97, 15 July 1998, unreported, BC9805276); (1998) 5 Crim LN 75 [908]. See paragraph 23 of the Prosecution Guidelines of the Office of the Director of Public Prosecutions NSW at [28-25,115] concerning the obligations of the Crown where an accused person is unrepresented.

[7-410] Accused absconding during trial The trial judge has a discretion to continue the trial in the absence of an accused who is absconding during the course of the trial even though there is a general rule that an accused should be present at every stage of the trial: Williams v R (2012) 62 MVR 382; [2012] NSWCCA 286; BC201210453; 20(2) Crim LN [3171].

OPEN COURT AND NON-PUBLICATION ORDERS [7-425] Open court Generally, the court has no power to exclude members of the public unless such power is given by statute. Sections 291–291B of the Criminal Procedure Act 1986, at [2-s 291]–[2-s 291B], make provision for proceedings to be held wholly or partly in camera for certain sexual offences.

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[7-455]

[7-430] Court suppression and non-publication orders The Court Suppression and Non-publication Orders Act 2010 at [29-9001] and following creates a statutory power for courts to make suppression orders and non-publication orders. See the commentary at [2-s 56.1] concerning the open justice principle and authorities relating to the use of pseudonym orders in criminal proceedings. Section 578A of the Crimes Act 1900 at [8-s 578A] prohibits publication of the identity of victims of prescribed sexual offences.

[7-450] Empanelling the jury Where the accused has not elected to be tried by judge alone (see above at [7-170]), the trial is to be by judge and jury of 12 persons: Criminal Procedure Act 1986 s 131 at [2-s 131]; Jury Act 1977 s 19 at [29-50,400]. The court may order the empanelment of up to three additional jurors in certain circumstances: ss 19(2),(3) Jury Act at [29-50,400]. Jurors may be excused from the jury panel: Jury Act 1977 ss 38 and 39 at [29-50,605]. The accused may challenge the whole jury panel, which is called a challenge to the array: ibid s 41, see [29-50,725.1]. After the accused is arraigned before the jury panel, the particular jurors are selected by ballot: ibid s 48 at [29-50,875]. The accused or the Crown may challenge a juror for cause or peremptorily after the juror has been called but before the juror is sworn: ibid s 45 at [29-50,745]. As to the Crown’s right to challenge for cause, see ibid s 43 at [29-50,735]. As to challenge for cause, see at [29-50,750.5]. See paragraph 25 of the Prosecution Guidelines for the Office of the Director of Public Prosecutions NSW at [28-25,125] concerning the exercise of the Crown’s right of challenge. Unless there is an agreement to the contrary the accused and the Crown have three peremptory challenges each: ibid s 42 at [29-50,730]. The judge may discharge the jury if he is of the view that the exercise of the right to make peremptory challenge has resulted in a jury that appears unfair: ibid s 47A at [29-50,760]. As to the procedure where there are insufficient jurors, see ibid s 51 at [29-50,890]. In light of s 5F(3A) Criminal Appeal Act 1912 at [20-265], it is essential that the Crown attempt to identify challenges to the Crown case so that such challenges may be resolved prior to empanelling a jury: R v Lameri and Cohen [2004] NSWCCA 217; BC200404129; (2004) 11 Crim LN 61 [1720]. Trial judges should raise with counsel prior to the jury being empanelled whether there is any challenge to the Crown’s case and, if there is, whether the Crown contends that the exclusion of the evidence would substantially weaken its case to be presented to the jury: R v Lameri and Cohen, above, at [52].

[7-455] Accused in charge of the jury After the jury has been sworn the accused is in the charge of the jury and unless the jury is discharged without verdict or the accused pleads guilty during the trial, the jury must deliver a verdict on the indictment. When the accused has been put in the charge of the jury the trial commences: R v McHardie [1983] 2 NSWLR 733 at 739; (1983) 10 A Crim R 51; R v Tonner [1985] 1 All ER 807. Where the accused pleads guilty to an

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THE JURY

[7-455]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

offence during the course of the trial and the plea is accepted, the jury are to be discharged and the court finds the accused guilty of the charge: Criminal Procedure Act 1986 s 157. Where the accused absconds during the trial, the judge has a discretion to continue the trial in the absence of the accused: Williams v R (2012) 62 MVR 382; [2012] NSWCCA 286; BC201210453; 20(2) Crim LN [3171], where a number of decisions are discussed including R v McHardie, above.

[7-460] Conduct of jury throughout the trial See generally the commentary to Jury Act 1977 s 54 at [29-51,000]. As to the discharge of the jury during the trial, see [29-51,000.35]–[29-51,000.45] and Webb and Hay v R (1994) 181 CLR 41; 122 ALR 41; BC9404635. As to the questioning of witnesses by jurors, see at [29-51,000.25]. As to jury communications with the trial judge, see at [29-51,000.30].

THE CROWN CASE [7-475] The Crown opening The Crown opens the case by giving an outline of the charges and the evidence the prosecutor intends to call. The prosecutor should avoid inflammatory language or statements prejudicial to the accused: McCullough v R [1982] Tas R 43; (1982) 6 A Crim R 274; Vella v R (1990) 2 WAR 537; 47 A Crim R 119; BC9001405; R v Penich and Maxwell (1991) 55 A Crim R 464; BC9102516. In matters of child sexual assault the prosecutor must be particularly vigilant to ensure that the jury’s emotions and sympathy are not aroused: R v M [1991] 2 Qd R 68. The trial judge should intervene where counsel oversteps the mark even if there is no objection by the defence: Vella v R, above; R v M, above. Where counsel refers to evidence subsequently ruled inadmissible, if the judge does not discharge the jury, he should tell them to disregard that part of the opening: R v Johnson (1979) 22 SASR 161; 4 ACLR 80. Counsel should not indicate the options available to the accused as to whether to give evidence or not: R v Anastasiou (aka Peters) (1991) 21 NSWLR 394.

[7-477] Defence opening address The accused or defence counsel may make an opening address to the jury directly after the Crown opening in order to outline the issues that will arise in the trial, s 159 of the Criminal Procedure Act 1986. The limits of such an address was considered in R v MM (2004) 145 A Crim R 148; [2004] NSWCCA 81; BC200401712 see at [4-s 159.1]

[7-480] Admissions by the accused The accused may, on the advice of defence counsel, make any admission of fact: see Evidence Act 1995 s 184 at [3-s 184].

[7-485] Crown witnesses Generally, it is a matter for the prosecutor to determine which witnesses are to be called in the Crown case: Ziems v The Prothonotary (1957) 97 CLR 279; [1957] ALR 620; BC5700380; Apostilides v R (1984) 154 CLR 563; 53 ALR 445; BC8400498;

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[7-485]

Richardson v R (1974) 131 CLR 116 at 119–22; 3 ALR 115; BC7400025; R v Pateman (1983) 33 A Crim R 212; [1984] 1 Qd R 312; R v Bellino and Conte [1993] 1 Qd R 521; (1992) 59 A Crim R 323. In Apostilides v R, above, the following general propositions were held to be applicable to the conduct of criminal trials in Australia: 1. The Crown prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown. A refusal to call the witness will be justified only by reference to the overriding interest of justice. Such occasions are likely to be rare. The unreliability of the evidence will only suffice where there are clear circumstances which clearly establish it. 2. The trial judge may, but is not obliged to, question the prosecutor in order to discover the reasons which lead the prosecutor to decline to call a particular person. He is not called upon to adjudicate the sufficiency of those reasons. 3. While at the close of the Crown case, the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings. He cannot direct the prosecutor to call a particular witness. 4. When charging the jury, the trial judge may make such comment as he then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have on the course of the trial. No doubt that comment, if any, will be affected by such information as to the prosecutor’s reasons for his decision as the prosecutor thinks it proper to divulge. 5. Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence. 6. A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice. See paragraph 26 of the Prosecution Guidelines for the Office of the Director of Public Prosecutions NSW at [28-25,130] for factors to be taken into account by the prosecutor with respect to the calling of witnesses. See also paragraph 16 at [28-25,080] concerning informers, paragraph 17 at [28-25,085] concerning prosecution disclosure and paragraph 19 at [28-25,095] concerning victims of crime and vulnerable witnesses. The prosecutor should call all relevant witnesses, whether or not they advance the Crown case, unless the witness is considered unreliable or untruthful: Whitehorn v R (1983) 152 CLR 657 at 674; 49 ALR 448; BC8300115. The Crown is not obliged to call a witness who it considers is unreliable: R v Su [1997] 1 VR 1; (1995) 129 FLR 120; BC9502564. However the Crown prosecutor must have a reasonable basis upon which to determine that the witness is unreliable before determining not to call a witness and it is not sufficient that the evidence of the witness merely contradicts the Crown’s case: R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279; BC9906003; (1999) 6 Crim LN 83 [1063]. The relevant principles were considered in R v Gibson [2002] NSWCCA 401; BC200205919, where it was held that there was no miscarriage arising from the failure of the Crown to call a witness where the Crown explained why it took the view that the witness was unreliable. The fact that a witness has made inconsistent statements does not mean that he is necessarily unreliable: R v Shaw (1991) 57 A Crim

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TRIAL PROCEDURE

[7-485]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

R 425. As to the Crown’s duty to call expert witnesses, see Velevski v R (2002) 187 ALR 233; [2002] HCA 4; BC200200230; 9(2) Crim LN [1393]. Where objection is taken, the Crown is required to call available witnesses involved in the testing of samples for DNA where the results of those tests were later interpreted by an expert giving evidence as to the likelihood of a match in DNA from the samples: R v Sing (2002) 54 NSWLR 31; [2002] NSWCCA 20; BC200200347; (2002) 9 Crim LN 22 [1402]. The duties and functions of a prosecutor in calling witnesses were reviewed in R v Russell-Jones (1995) 1 Cr App Rep 538; 3 All ER 239. There is no longer any prohibition upon a prosecutor calling a witness who is known to be hostile as any prior inconsistent statement is generally admissible: R v Adam (1999) 47 NSWLR 267; [1999] NSWCCA 197; BC9904095; (1999) 6 Crim LN 64 [1035]. Generally the Crown should not call a person who has been implicated in the offence to give evidence unless the person has been dealt with for that offence by plea, nolle prosequi or immunity: R v Booth [1982] 2 NSWLR 847; (1982) 8 A Crim R 81. However, the practice can be departed from in appropriate situation, for example where the witness was subject to a remand under s 11 of the Crimes (Sentencing Procedure) Act 1999; see R v Ambrosi (2004) 144 A Crim R 67; [2004] NSWCCA 23; BC200400651. The Crown should lead evidence of the extent of any sentencing discount granted to the witness as a result of an undertaking to assist the Crown but the Crown has a discretion as to the amount of information led in its case; R v Ambrosi. As to indemnified witnesses, see Criminal Procedure Act 1986 [2-s 32.5]. Although the judge has power to call a witness, the power would only be used in exceptional cases: Apostilides v R, above, Richardson v R, above; R v Damic [1982] 2 NSWLR 750; (1982) 6 A Crim R 35. Where the Crown does not intend to call a witness, the witness should be made available to the defence to call, or the prosecutor should offer to call the witness for the purposes of cross-examination: Re Van Beelen (1974) 9 SASR 163 at 248; R v Perry (No 1) (1981) 27 SASR 166. As to the Crown calling witnesses only for the purpose of cross-examination by the defence, see Foley v R (1984) 13 A Crim R 29; BC8400086; R v Komornick [1986] VR 845; (1984) 14 A Crim R 256. Although it is good practice for the prosecutor to make any relevant statement available to the defence in respect of a person not to be called at the trial, he or she is not obliged to do so: Lawless v R (1979) 142 CLR 659; 26 ALR 161; BC7900083. The Crown has a duty to disclose to the accused material in its possession under s 138 of the Criminal Procedure Act 1986, see generally R v Reardon (No 2) (2004) 60 NSWLR 454; [2004] NSWCCA 197; BC200403886; (2004) 11 Crim LN 71 [1741] and R v Spiteri (2004) 61 NSWLR 369; [2004] NSWCCA 321; BC200406903; (2004) 11 Crim LN 112 [1792] as to the duty of disclosure. The Crown should provide any statement made by a person not called at the trial which may provide relevant and credible evidence to support the defence or tends to disclose the innocence of the accused: Dallison v Caffery [1965] 1 QB 348 at 369; [1964] 2 All ER 610; Re Van Beelen, above at 249; R v Easom (1981) 28 SASR 134 at 148; 4 A Crim R 171. The defence should be provided with any material which may affect the credibility or reliability of a Crown witness, such as a prior inconsistent statement made by the witness: Gouldham v R [1970] WAR 119; or which may tend to assist the defence case: Clarkson v DPP (Vic) [1990] VR 745; BC8900452; Carew v Carone (1991) 5 WAR 1. The prosecution’s duty to disclose material to the defence was reviewed in Bradshaw v

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[7-490]

R (WACCA, Malcolm CJ, Pidgeon and Owen JJ, 142/1996, 13 May 1997, unreported, BC9701944); (1997) 4 Crim LN 41 [702] and considered in R v Lewis-Hamilton [1998] 1 VR 630; (1997) 92 A Crim R 532; BC9701485; 4 Crim LN 45 [711] where the duty to reveal material which reflected upon the credit of a prosecution witness was considered. Material in psychiatric reports relevant to the credit of the complainants in possession of the Crown ought to have been disclosed to the defence: R v CPK (NSWCCA, Gleeson CJ, Clarke and Hulme JJA, 60330/1994, 21 June 1995, unreported, BC9504846); (1995) 2 Crim LN 47 [419]. The Crown has a duty to disclose to the defence material it intends to lead to rebut alibi before the close of the Crown case: R v Heuston (1996) 90 A Crim R 213 at 226; BC9606382. The duty to disclose depends upon the circumstances of the case and the significance of the material: R v Charlton [1972] VR 758. It is not necessary that the Crown advise the defence that a witness has been granted an immunity: Jamieson v R (1992) 60 A Crim R 68; BC9202076. See paragraph 26 of the Prosecution Guidelines for the Office of the Director of Public Prosecutions NSW at [28-25,130] for factors to be taken into account by the prosecutor with respect to the calling of witnesses. See also paragraph 16 at [28-25,080] concerning informers, paragraph 17 at [28-25,085] concerning prosecution disclosure and paragraph 19 at [28-25,095] concerning victims of crime and vulnerable witnesses. Where the Crown witness has been given a discount on sentence, see R v Sullivan [2003] NSWCCA 100; BC200301699 (2003) 10 Crim LN 26 [1540] at [3-675.5]. The accused and his or her spouse are competent but not compellable witnesses: Evidence Act 1995 ss 17 and 18 at [3-s 17] and [3-s 18]. As to the compellability of spouses to give evidence in certain cases, see at [2-s 270]. Where the Crown intends to call a witness not called at committal proceedings, the defence should be provided with a statement of the witness and given sufficient notice of the Crown’s intention to call the witness before the trial: R v Devenish [1969] VR 737; Re Van Beelen (1974) 9 SASR 163 at 248–9; R v Russell-Smith (1981) 35 ACTR 31; 51 FLR 42; R v Utans (1982) 29 SASR 592; 5 A Crim R 315. The judge can allow the witness to be cross-examined prior to giving evidence before the jury: R v Basha (1989) 39 A Crim R 337; BC8902533 but cf R v Sandford (1994) 33 NSWLR 172; BC9405309. A judge of the Supreme Court may grant an injunction to stop the Crown calling a witness in a trial in an appropriate case: Tam v DPP (Cth) (NSWSC, Harrison M, 11909/98, 21 October 1998, BC9805444); (1998) 5 Crim LN 40 [857] where the Crown sought to call a witness who had refused to offer assistance to the Crown in respect of the accused.

[7-490] The giving of evidence Witnesses are generally required to give evidence on oath or affirmation: Evidence Act 1995 s 22 at [3-s 22]. Every person is presumed to be competent to give evidence: see Evidence Act s 12 at [2-200]. A witness who is not capable of giving sworn evidence can give unsworn evidence, see Evidence Act s 13. In respect of certain proceedings, including offences of assault, a child (including the accused) may give evidence by way of closed circuit television, see Criminal Procedure Act 1986 s 306ZE at [2-s 306ZE]. A trial judge is required to give the jury a warning in respect of evidence given by such means; see Criminal Procedure Act 1986 s 306ZI at [2-s 306ZI]. A police officer may give evidence by reading or being led through a statement made by the officer: Evidence Act 1995 s 33 at [3-s 33].

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Trial Procedure

TRIAL PROCEDURE

[7-490]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

A court may make a screening order in respect of a witness to preserve the witnesses’ identity for the purpose of protecting national security or for some other legitimate reason, for example, because of public interest immunity with an undercover police officer: BUSB v Director-General of Security [2011] NSWCA 49; BC201101463; 18(4) Crim LN 54 [2883]. Whether such an order should be made will depend upon the significance of the witness and the effect on the ability of the accused to cross-examine the witness. Depositions of witnesses who gave evidence at committal proceedings or whose statements were tendered at committal proceedings may be admitted where the witness is dead, so ill as to be unable to travel or give evidence, or is absent from Australia: Criminal Procedure Act 1986 at [2-s 285]. As to certificates and photographs under the Road Transport (Safety and Traffic Management) Act, see [2-s 283]. As to business records, see Evidence Act 1995 s 69 at [3-s 69]. As to voir dire hearings on the admissibility of evidence see Evidence Act 1995 s 189 at [3-s 189].

[7-495] Crown case The Crown determines the order of witnesses and the manner in which the evidence will be presented: Saffron (No 1) v R (1988) 17 NSWLR 395 at 457; 36 A Crim R 262; BC8801435. It should not needlessly call evidence which is not in contest: R v Mok (1987) 27 A Crim R 438; BC8701697. The Crown should present its case completely and not split its case by calling evidence in reply to the defence case where it could have anticipated that the defence would raise such an issue: Shaw v R (1952) 85 CLR 365; [1952] ALR 257; BC5200140; Killick v R (1981) 147 CLR 565; 37 ALR 407; BC8100121; R v Chin (1985) 157 CLR 671; 59 ALR 1; BC8501094; R v Aldridge (1990) 20 NSWLR 737; 51 A Crim R 281 (as to evidence of intoxication of the victim); Bush v R (1993) 43 FCR 549; 115 ALR 654, where evidence was permitted to be called in rebuttal of evidence led in the accused’s case or the defence case to automatism as the Crown could not have foreseen such an issue would arise. It was held in Rend v R (2006) 160 A Crim R 178; [2006] NSWCCA 41; BC200601215 that the Crown ought not to have been permitted to call a police officer in reply on the question of the accused’s intoxication as this was a matter that ought to have been anticipated by the Crown. The Crown should not introduce evidence during cross-examination in the defence case: Lawrence v R (1981) 38 ALR 1; BC8100125; R v Chin, above; R v Catt (1993) 68 A Crim R 189. It was held that the Crown had wrongfully split its case when it introduced evidence of the accused’s interview with police during the course of cross-examination of the accused, the Crown having decided without sufficient reason not to lead the evidence in its own case: Soma v R (2003) 212 CLR 299; 196 ALR 421; [2003] HCA 13; BC200300831 (2003) 10 Crim LN 20 [1533]. This was notwithstanding that the Crown was relying upon evidence of prior inconsistent statements contained in the interview. There is no requirement that the Crown introduce evidence to rebut an alibi in its case because of the provisions of the Criminal Procedure Act 1986 s 49: R v Browne (1987) 30 A Crim R 278; BC8700895. The Crown should normally tender in its case an exculpatory record of interview made by the accused which is admissible under s 60 of the Evidence Act 1995: R v Rymer (2005) 156 A Crim R 84; [2005] NSWCCA 310; BC200506636; (2005) 12 Crim LN 94 [1926].

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TRIAL PROCEDURE

[7-525]

See paragraph 3 (fairness) of the Prosecution Guidelines for the Office of the Director of Public Prosecutions NSW at [28-25,015] concerning the duties of the prosecutor and the presentation of the Crown case.

See paragraph 27 of the Prosecution Guidelines for the Office of the Director of Public Prosecutions NSW at [28-25,135] for the role of the prosecution in the case of disputed evidence, illegally or improperly obtained evidence and hypnosis or EMDR evidence. As to admissibility of evidence of prior sexual experience of a witness, see at [2-s 293]. As to evidence of relationship between the complainant and the accused, see [3-s 98.10]. As to evidence of complaint, see [8-s 61I.10]. As to evidence of corroboration, see [8-s 61I.15]. As to evidence of similar facts, see [3-s 98.10]. As to evidence of confessions and admissions by the accused, see Evidence Act 1995 s 85 at [3-s 85] and at [2-s 281]. As to evidence of identification, see Evidence Act 1995 ss 114 and 115 at [3-s 114] and [3-s 115].

[7-505] Crown reopening its case The trial judge has a discretion, in limited circumstances, to allow further evidence to be led by the Crown after the close of its case: R v Smith (1948) 48 SR (NSW) 268; 65 WN (NSW) 101; R v Picknell [1970] 1 NSWR 604; (1969) 90 WN (Pt 1) (NSW) 731; Ng v Haskett [2002] NSWSC 258; BC200201396. However, no evidence in favour of the Crown can be given after the jury has retired: Dryburgh v R (1961) 105 CLR 532; 35 ALJR 254; BC6100820; R v Delon (1992) 29 NSWLR 29. The trial judge will generally allow the Crown to reopen its case in order to supplement a deficiency in evidence which was overlooked or is only technical: Wasow v R (1985) 18 A Crim R 348; BC8500736.

APPLICATIONS BY ACCUSED AT CLOSE OF CROWN CASE [7-525] Verdict by direction At the close of the Crown case, the accused can ask the trial judge to direct the jury to acquit on all or any of the counts in the indictment on the basis that there is no prima facie case. Such a submission is made in the absence of the jury: R v Falconer-Atlee (1974) 58 Cr App R 348; Williams v R [1982] WAR 277. Whether there is a prima facie case is a question of law and the question is whether there is sufficient evidence upon which the accused may be convicted: May v O’Sullivan (1955) 92 CLR 654; [1955] ALR 671; BC5500740; Zanetti v Hill (1962) 108 CLR 433; [1963] ALR 165; BC6200460, that is whether there is evidence capable of proving each of the elements of the offence beyond reasonable doubt: R v Bilick (1984) 36 SASR 321; 11 A Crim R 452; R v Briggs (1987) 24 A Crim R 98. A verdict of not guilty can only be directed if there is a defect in the evidence such that taken at its highest it will not sustain a verdict of guilty: Doney v R (1990) 171 CLR 207; 96 ALR 539; BC9002908. Where the Crown case is based on circumstantial evidence the trial judge is to decide the question on the

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Trial Procedure

[7-500] Evidence for the Crown

[7-525]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

basis of such inferences that are reasonably open as are most favourable to the Crown and should not choose between the available inferences or direct an acquittal on the basis that other reasonable inferences are open: R v JMR (1991) 57 A Crim R 39. It is for the jury to determine which part of the evidence of a witness they will accept: Haw Tua Tau v Public Prosecutor [1982] AC 136 at 150–1; [1981] 3 WLR 395; R v Towers (1984) 14 A Crim R 12 at 15. The principles to be applied when determining a no case submission were considered in R v XHR [2012] NSWCCA 247; BC201209166; 20(1) Crim LN [3154], where it was held that a trial judge erroneously directed a verdict of acquittal in a sexual assault case. A no case submission can be made and determined once the Crown case has reached its high-water mark and there is no further evidence to be adduced by the Crown in proof of the commission of the offence, even though the Crown case has not formally been closed: R v TS [2017] NSWCCA 247; BC201708556; 24(11) Crim LN [3915]. The court held a submission could be made at the conclusion of the complainant’s evidence in a sexual assault charge. The submission is determined without the accused deciding whether to call evidence: Evgeniou v R (1964) 37 ALJR 508; [1965] ALR 209, even where the defence had tendered evidence during the Crown case: R v Hass (1986) 22 A Crim R 299; BC8600969. If the judge determines that there is no prima facie case he or she will direct the jury that they are to bring in a verdict of not guilty on the charge and usually gives the jury the reasons: Attorney-General’s Reference (No 3 of 1987) (1987) 48 SASR 1; 30 A Crim R 343. Generally, the trial judge has no power to direct a verdict on the basis that a conviction would be unsafe and unsatisfactory: R v R (1989) 18 NSWLR 74; 44 A Crim R 404; Doney v R (1990) 171 CLR 207; 96 ALR 539; BC9002908 at CLR 214. The trial judge, however has power to reject evidence of identification and therefore can direct a verdict where there is no other evidence against an accused: see R v R, above; Doney v R, above at CLR 212. In R v Tugaga (1994) 74 A Crim R 190; BC9403059 it was held, in determining whether to reject the evidence of identification on the basis that it was unsafe, that the trial judge should consider whether the jury, taking into account the directions to be given in respect of the evidence, could convict upon it. If there is other evidence apart from that rejected, the trial judge must determine whether the trial can continue or whether the jury should be discharged without verdict: Steffan v R (1993) 30 NSWLR 633. Normally a trial judge will tell the jury that they cannot convict before the conclusion of the summing up, but a conviction has been upheld where the jury convicted before the summing up: R v Carlairs (1925) 25 SR (NSW) 515.

[7-530] Prasad direction A practice had arisen of some trial judges at the end of the Crown case informing the jury that they were entitled to acquit the accused at that time without hearing any further evidence. This was commonly referred to as a “Prasad direction”. The direction was given at the discretion of the trial judge and was usually warranted only in the simple case where the jury could determine whether to reject the prosecution evidence without hearing addresses or a summing up. However, in Re Director of Public Prosecutions (DPP) Reference No 1 of 2017 [2019] HCA 9; BC201901939 it was held that at common law a trial judge had no power to give such a direction and the practice should cease.

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[7-575]

DEFENCE CASE [7-550] Statement by the accused The accused has no right to make an unsworn statement: see at [2-s 31]. However, an unsworn statement may still be made by an accused where he or she was charged with the offence before 10 June 1994, see at [8-Sch 11]. As to an unsworn statement, see at [2-s 31.1]. Where the accused intends to call evidence, defence counsel may open to the jury, see at [2-s 159]. The accused may give and call evidence at the trial. As to evidence of character on behalf of the accused, see Evidence Act 1995 s 110 at [3-s 110]. As to the cross-examination of the accused on character, see Evidence Act 1995 s 112 at [3-s 112]. The accused cannot call evidence as to alibi without the leave of the court unless he has given proper notice to the Crown: see at [2-s 151]. As to limits upon evidence of the sexual history of the complainant, see at [2-s 293]. As to the cross-examination of the accused concerning credit or motive, see paragraph 3 (fairness) of the Prosecution Guidelines of the NSW DPP at [28-25,015]. The defence must give notice of an intention to adduce evidence of a substantial mental impairment for the purposes of a defence under s 23A of the Crimes Act: see [2-s 151]. Generally the accused should not be prevented from giving evidence upon a particular topic only because that evidence was not put in cross-examination to a prosecution witness in breach of the rule in Browne v Dunne: Khamis v R [2010] NSWCCA 179; BC20105950 cf Schneidas (No 2) (1981) 4 A Crim R 101.

CASE IN REPLY [7-575] Evidence by Crown in reply Generally the Crown cannot call evidence in reply which it should have called in its case in chief: see above at [7-495]. As to calling evidence of character of the accused in reply, see Evidence Act 1995 s 110 at [3-s 110]. The trial judge has a discretion whether to allow the Crown to call evidence of a prior inconsistent statement by a defence witness in reply: Niven v R (1968) 118 CLR 513; [1969] ALR 187; BC6800500; R v Kern [1986] 2 Qd R 209; (1985) 18 A Crim R 191, where it was held that the discretion should be exercised by weighing the probative force as against the prejudice from its admission in reply: R v Rose (1993) 69 A Crim R 1, but cf Cheney v R (1991) 28 FCR 103 at 126; 99 ALR 360, where it was held that the proper course was to stand the witness down and prove the statement and then continue the evidence of the witness. The failure of counsel to put allegations to witnesses may give rise to a case in reply by the Crown: R v Popescu (1989) 39 A Crim R 137; BC8902424. There is no two-step approach to be undertaken in determining whether to grant the Crown leave to call a case in reply — the question is whether the circumstances are “very special” or “exceptional” having regard to all the circumstances, including whether the Crown should have reasonably foreseen the issue and called evidence about it during its own case: Morris v R [2010] NSWCCA 152; BC201005732; 17(9) Crim LN 135 [2789]. Where the Crown is entitled to lead evidence in reply, it ought not to do so repetitively: R v Aldridge (1990) 20 NSWLR 737; 51 A Crim R 281 at 288. The Crown can lead evidence to rebut an alibi in reply whether or not it had notice of it: R v Browne (1987) 30 A Crim R 278; BC8700895.

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Trial Procedure

[7-555] Evidence for the defence

[7-600]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

ADDRESSES [7-600] Addresses of counsel As to the order of addresses at the close of the evidence see at [2-s 160]. The Crown addresses first but may be permitted a second address after the address for the defence where there has been any misstatement of the facts. As to the right of the Crown to address where the accused is unrepresented, and the content of addresses generally, see [2-s 160.1]. The unrepresented accused should be told of the right to address: R v Nilson [1971] VR 853. Counsel for the Crown is obliged to put the Crown case to the jury and may do so firmly and vigorously and may test and attack the accused’s case, but must always do so temperately and with restraint, bearing constantly in mind that the prosecutor’s primary function is to aid in the attainment of justice, not the securing of convictions: McCullough v R [1982] Tas R 43; (1982) 6 A Crim R 274. It is inappropriate for a prosecutor to provide his own reaction to the accused’s evidence — as counsel, his reaction is irrelevant: R v Liristis (2004) 146 A Crim R 547; [2004] NSWCCA 287; BC200405456; 11(9) Crim LN [1755]. The prosecutor should not address a particular portion of the jury designated by gender and ask them to draw certain inferences in evaluating some of the evidence by also indicating how the prosecutor would feel in that situation; GDD v R [2010] NSWCCA 62; BC201002181. In Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334; BC200608432 at [31] the court listed conduct by the Crown in addressing what was inappropriate as including: (i) A submission to the jury based upon material which is not in evidence. (ii) Intemperate or inflammatory comments, tending to arouse prejudice or emotion in the jury. (iii) Comments which belittle or ridicule any part of an accused’s case. (iv) Impugning the credit of a Crown witness, where the witness was not afforded the opportunity of responding to an attack upon credit. (v) Conveying to the jury the Crown Prosecutor’s personal opinions. In Soames v R [2012] NSWCCA 188; BC201206674; 19(9) Crim LN [3116] it was held that there was nothing to stop the prosecutor making submissions to the jury that a Crown witness was unreliable where there was evidence to support that submission and where the issue had been raised with the witnesses. In that case the witness was a close personal friend of the accused. The Crown was permitted to hand a document to the jury during address indicating topics with cross-reference to answers given by the accused in his interview with police as an aid memoire and in assisting the jury during deliberations: R v Thomas Sam (No 14) [2009] NSWSC 561; BC200905452; 16(7) Crim LN [2580].

SUMMING UP [7-625] Content of summing up As to the contents of the summing up, see [2-s 161.1] and following, and Domican v R (1992) 173 CLR 555 at 561; 106 ALR 203; [1992] HCA 13; BC9202665.It is not necessary that the trial judge summarise the evidence, at [2-s 161]. As to the warnings

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[7-800]

to be given in respect of unreliable evidence, see [2-s 161.40] and Evidence Act 1995 s 165 at [3-s 165]. As to warnings on identification evidence, see [2-s 161.55] and Evidence Act 1995 s 116 at [3-s 116]. As a matter of proper trial practice, it is undesirable for a trial judge to raise during the summing-up, for the first time, the prospect of an alternative verdict: Sheen v R [2011] NSWCCA 259; BC201109701 at [68]–[94]. Likewise, a trial judge should avoid raising in the summing-up, without prior notice to the parties, a factual scenario (adverse to the accused) not advanced by the Crown during the trial: Robinson v R (2006) 162 A Crim R 88; [2006] NSWCCA 192; BC200604577 at [138]–[149].

Counsel for the Crown and the defence should listen attentively to the summing up and seek any amplification or correction which is thought necessary to prevent a miscarriage of justice: R v Croft (1933) 50 WN(NSW) 56; R v El Mir (1957) 75 WN (NSW) 191; R v Parker [1974] 1 NSWLR 14; R v Bourke (1987) 28 A Crim R 216; R v Finn (1988) 34 A Crim R 425; BC8801739; Fitzgerald v R (1992) 106 FLR 331. The Crown should have corrected errors that make a conviction more likely but depart from the law: R v Caine (1990) 48 A Crim R 464 at 475. The judge should be asked to correct any misstatements of facts immediately: R v Tripodina (1988) 35 A Crim R 183; BC8801414. The request for corrections and amendments is not to be taken as an opportunity for a general attack upon the conduct of the judge at the trial: R v Zischke [1983] 1 Qd R 240. It is not sufficient merely to make an objection, but counsel should argue the matter on its merits and, if required, specify the direction required: R v Thompson (1945) 45 SR(NSW) 374. If counsel believes there has been a misdirection he or she should specify that portion of the direction which should be withdrawn and specify with precision what direction is sought: R v GPP (2001) 129 A Crim R 1; [2001] NSWCCA 493; BC200107637; (2002) 9 Crim LN 15 [1392]. As to the effect of the failure of defence counsel to raise a matter at the trial on an appeal, see r 4 Criminal Appeal Rules at [20-5015] and the annotations at [20-270.5]. Applications for further directions should be taken in the absence of the jury, preferably before the summing up, but at the latest before the jury retires to consider its verdict: R v Trivett (NSWCCA, 13 June 1991, unreported, BC9101892); R v Sandford (1994) 33 NSWLR 172 at 183–4.

JURY DELIBERATIONS AND VERDICT: PROCEDURE FOR HEARINGS ON INDICTMENT [7-800] Retirement of jury for deliberation Where additional jurors were empanelled and the jury consists of more than 12 persons immediately before the jury is required to retire to consider its verdict, a ballot should take place under s 55G Jury Act at [29-51,033] to select 12 persons to constitute the verdict jury.

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Trial Procedure

[7-640] Duties of counsel in respect of summing up

[7-800]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

After the jury retires, it may not receive evidence in favour of the Crown but may receive evidence in favour of the accused: see at [29-51,000.115]. As to the examination of exhibits, see [29-51,000.90]. As to the provision of written directions and other aids, see at [29-51,000.95]. The jury may receive a copy of the transcript: see s 55C at [29-51,020]. As to communications after retirement, see at [29-51,000.75]. Before the jury is permitted to separate, the trial judge should make an order to that effect: R v Radju (2001) 53 NSWLR 471; [2001] NSWCCA 103; BC200101579; (2001) 8 Crim LN 22 [1268].

[7-805] Failure to reach agreement As to the proper direction to be given where the jury is having difficulty in reaching a verdict, see R v Black (1993) 179 CLR 44; 118 ALR 209; R v Kolalich (NSWCCA, Cole JA, Allen and Sperling JJ, 60641/1993, 9 October 1995, unreported, BC9505504); (1995) 2 Crim LN 76 [479] and see [29-51,035.1]. The period for which the jury may be allowed to consider its verdict is a matter for the discretion of the trial judge: R v Lusher [1976] 1 NSWLR 227. Where the jury cannot agree upon a verdict in respect of any matter on the indictment it is to be discharged as to that count without verdict: see Jury Act s 56 at [29-51,035]. Where an accused stands trial for murder, the jury should only be asked whether they find the accused guilty or not guilty of manslaughter if they have already found the accused not guilty or not guilty of murder — the jury is not entitled to deliver a verdict of manslaughter where it is not unanimous as to the verdict on the count of murder: Stanton v R (2003) 198 ALR 41; [2003] HCA 29; BC200302634; (2003) 10 Crim LN 46 [1564] at [20]–[23]. See also A van Hilst, “A Valid Verdict?” (1997) 4 Crim LN 87 [791] and T Molomby, “A Fair Verdict?” (1998) 5 Crim LN 1 [806].

[7-810] Verdict A majority verdict is permissible in a trial for a state offence in the circumstances set out in s 55F Jury Act 1977 at [29-51,032]. A majority verdict is not permissible in a trial for a Commonwealth offence: s 55F(4); Cheatle v R (1993) 177 CLR 541; 116 ALR 1; [1993] HCA 44; BC9303555. As to the manner in which the jury is to give its verdict, and matters related to verdict generally, see at [29-51,000.100]. As to the verdict of a judge in a trial by judge alone, see [2-s 132]. As to the verdict of not guilty on the ground of mental illness and the consequences thereof, see Mental Health (Forensic Provisions) Act ss 38 and 39 at [17-2480] and [17-2485]. Following the delivery of the verdict the jury is to be immediately discharged: Jury Act s 55E at [29-51,030]. The District Court has no express or implied power to order non-publication of a verdict: John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344; [2004] NSWCA 324; BC200406122; (2004) 11 Crim LN 96 [1772].

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TRIAL PROCEDURE

[7-915]

PROCEEDINGS AFTER VERDICT: PROCEDURE FOR HEARINGS ON INDICTMENT [7-900] Hearing of related summary offences

[7-905] Sentencing As to sentencing procedure and practice, see at [5-001] and following.

[7-910] Forfeiture, confiscation and disposal of property The court can make orders for restitution of property whether or not the accused is convicted of an offence in relation to the property, see at [2-s 43]. The court can order the delivery of any property in police custody to the person who appears to be lawfully entitled to it: Criminal Procedure Act 1986 [2-s 318]. As to livestock, see [2-s 324] and following. As to confiscation of the profits of crime and other tainted property, see Confiscation of Proceeds of Crime Act at [22-5001] and following, and Proceeds of Crime Act (Cth) at [22-30,001] and following. As to destruction of drugs, see Drug Misuse and Trafficking Act ss 39I and 39PA at [10-s 39O] and [10-s 39P]. As to the forfeiture of firearms, see Crimes Act s 358B(2) at [8-s 358B].

[7-915] Costs Generally there can be no order against or in favour of the Crown for the payment of costs: R v Mosely (1992) 28 NSWLR 735; (1992) 65 A Crim R 542; BC9203074. However, the trial judge may grant a certificate in certain circumstances where the accused has been acquitted, whereby the accused can apply to the Director General of the Attorney General’s Department for the payment of costs: see Costs in Criminal Cases Act s 2 at [19-5005] and following.

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Trial Procedure

At the conclusion of the trial, the court may determine summary offences that arose from substantially the same facts as those on which the indictable offence dealt with at the trial arose: see at [2-s 165] and following.

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Crimes Act 1900 TABLE OF PROVISIONS Section

Title

Paragraph

PART 1 — PRELIMINARY AND INTERPRETATION Name of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [Repealed] Application of certain provisions of Act . . . . . . . . . . . . . . . . . [Repealed] Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recklessness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dishonesty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [Repealed] “Possession” when criminal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . “Public place” etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [Repealed]

[8-s 1] [8-s 3] [8-s 4] [8-s 4A] [8-s 4B] [8-s 7] [8-s 8]

PART 1A — GEOGRAPHICAL JURISDICTION 10A 10B 10C 10D 10E 10F

Application and effect of Part . . . . . . . . . . . . . . . . . . . . . . . . . . . Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Extension of offences if there is a geographical nexus . . . Provisions relating to double criminality . . . . . . . . . . . . . . . . . Procedural and other provisions . . . . . . . . . . . . . . . . . . . . . . . . . Special provisions with respect to geographical jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 10A] [8-s 10B] [8-s 10C] [8-s 10D] [8-s 10E] [8-s 10F]

PART 2 — OFFENCES AGAINST THE SOVEREIGN 11 12 13–15 16 16A

Provisions of 36 Geo III, c 7, and 57 Geo III, c 6, repealed except as to offences against the person of the Sovereign . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Compassing etc deposition of the Sovereign — overawing Parliament etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [Repealed] Nothing herein to affect 25 Ed III, c 2 . . . . . . . . . . . . . . . . . . [Repealed] PART 3 — OFFENCES AGAINST THE PERSON DIVISION 1 — HOMICIDE

17

[Repealed]

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[8-s 11] [8-s 12] [8-s 16]

Crimes

1 2 3 3A–3B 4 4A 4B 5–6 7 8 9–10

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Section

Title

17A 18 19 19A 19B 20 21

Date of death . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Murder and manslaughter defined . . . . . . . . . . . . . . . . . . . . . . . [Repealed] Punishment for murder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mandatory life sentences for murder of police officers . . Child murder — when child deemed born alive . . . . . . . . . Child murder by mother — verdict of contributing to death etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Trial for child murder — verdict of concealment of birth . Infanticide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Trial for murder — partial defence of extreme provocation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Substantial impairment by abnormality of mind . . . . . . . . . Manslaughter — punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . [Repealed] Assault causing death . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assault causing death when intoxicated — mandatory minimum sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Supply of drugs causing death . . . . . . . . . . . . . . . . . . . . . . . . . . .

22 22A 23 23A 24 25 25A 25B 25C

Paragraph

[8-s 17A] [8-s 18] [8-s 19A] [8-s 19B] [8-s 20] [8-s 21] [8-s 22] [8-s 22A] [8-s 23] [8-s 23A] [8-s 24] [8-s 25A] [8-s 25B] [8-s 25C]

DIVISION 2 — CONSPIRACY TO MURDER

26

Conspiring to commit murder . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 26]

DIVISION 3 — ATTEMPTS TO MURDER

27 28 29 30

Acts done to the person with intent to murder . . . . . . . . . . . Acts done to property with intent to murder . . . . . . . . . . . . . Certain other attempts to murder . . . . . . . . . . . . . . . . . . . . . . . . Attempts to murder by other means . . . . . . . . . . . . . . . . . . . . .

31

Documents containing threats . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s [8-s [8-s [8-s

27] 28] 29] 30]

DIVISION 4 — DOCUMENTS CONTAINING THREATS

[8-s 31]

DIVISION 5 — SUICIDE

31A 31B 31C

Suicide and attempt to commit suicide . . . . . . . . . . . . . . . . . . Survivor of suicide pact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Aiding etc suicide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 31A] [8-s 31B] [8-s 31C]

DIVISION 6 — ACTS CAUSING DANGER TO LIFE OR BODILY HARM

32 32A–32C 33 33A 33B 34 35

Impeding endeavours to escape shipwreck . . . . . . . . . . . . . . . [Repealed] Wounding or grievous bodily harm with intent . . . . . . . . . . Discharging firearm etc with intent . . . . . . . . . . . . . . . . . . . . . . Use or possession of weapon to resist arrest etc . . . . . . . . . [Repealed] Reckless grievous bodily harm or wounding . . . . . . . . . . . .

742

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[8-s 32] [8-s 33] [8-s 33A] [8-s 33B] [8-s 35]

CRIMES ACT 1900

35A 36 37 38 38A 39 40 41 41A 42 43 43A 43B 44 45 45A 46 47 48 49 49A 50–51 51A 51B 52A 52AA 52AB 52B 52BA 53 54

Title

Causing dog to inflict grievous bodily harm or actual bodily harm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [Repealed] Choking, suffocation and strangulation . . . . . . . . . . . . . . . . . . Using intoxicating substance to commit an indictable offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Spiking drink or food . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Using poison etc to endanger life or inflict grievous bodily harm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [Repealed] Using poison etc to injure or to cause distress or pain . . . Poisoning etc of water supply . . . . . . . . . . . . . . . . . . . . . . . . . . . Injuries to child at time of birth . . . . . . . . . . . . . . . . . . . . . . . . . Abandoning or exposing a child under 7 years . . . . . . . . . . Failure of persons with parental responsibility to care for child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Failure to reduce or remove risk of child becoming victim of child abuse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Failure of persons to provide necessities of life . . . . . . . . . Prohibition of female genital mutilation . . . . . . . . . . . . . . . . . Removing person from State for female genital mutilation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Causing bodily injury by gunpowder etc . . . . . . . . . . . . . . . . Using etc explosive substance or corrosive fluid etc . . . . . Causing explosives to be placed in or near building, conveyance or public place . . . . . . . . . . . . . . . . . . . . . . . . . . . Setting trap etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Throwing rocks and other objects at vehicles and vessels . [Repealed] Predatory driving . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Police pursuits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dangerous driving: substantive matters . . . . . . . . . . . . . . . . . . Dangerous driving: procedural matters . . . . . . . . . . . . . . . . . . Offence of failing to stop and assist after vehicle impact causing death or grievous bodily harm . . . . . . . . . . . . . . . . Dangerous navigation: substantive matters . . . . . . . . . . . . . . . Dangerous navigation: procedural matters . . . . . . . . . . . . . . . Injuries by furious driving etc . . . . . . . . . . . . . . . . . . . . . . . . . . . Causing grievous bodily harm . . . . . . . . . . . . . . . . . . . . . . . . . . .

Paragraph

[8-s 35A] [8-s 37] [8-s 38] [8-s 38A] [8-s 39] [8-s 41] [8-s 41A] [8-s 42] [8-s 43] [8-s 43A] [8-s 43B] [8-s 44] [8-s 45] [8-s 45A] [8-s 46] [8-s 47] [8-s 48] [8-s 49] [8-s 49A] [8-s 51A] [8-s 51B] [8-s 52A] [8-s 52AA] [8-s 52AB] [8-s 52B] [8-s 52BA] [8-s 53] [8-s 54]

DIVISION 7 — POSSESSING OR MAKING EXPLOSIVE ETC WITH INTENT TO INJURE THE PERSON

55

Possessing or making explosives or other things with intent to injure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[8-s 55]

Crimes

Section

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Section

56 57 58 59 59A

Title DIVISION 8 — ASSAULTS

Obstructing member of the clergy in discharge of his or her duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assault on persons preserving wreck . . . . . . . . . . . . . . . . . . . . Assault with intent to commit a serious indictable offence on certain officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assault occasioning actual bodily harm . . . . . . . . . . . . . . . . . Assault during public disorder . . . . . . . . . . . . . . . . . . . . . . . . . . .

Paragraph

[8-s 56] [8-s 57] [8-s 58] [8-s 59] [8-s 59A]

DIVISION 8A — ASSAULTS AND OTHER ACTIONS AGAINST POLICE AND OTHER LAW ENFORCEMENT OFFICERS

60AA 60 60A 60B 60C

Meaning of “law enforcement officer” . . . . . . . . . . . . . . . . . . . Assault and other actions against police officers . . . . . . . . . Assault and other actions against law enforcement officers (other than police officers) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Actions against third parties connected with law enforcement officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Obtaining of personal information about law enforcement officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 60AA] [8-s 60] [8-s 60A] [8-s 60B] [8-s 60C]

DIVISION 8B — ASSAULTS ETC AT SCHOOLS

60D 60E

Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assaults etc at schools . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 60D] [8-s 60E]

DIVISION 9 — COMMON ASSAULTS

61

Common assault prosecuted by indictment . . . . . . . . . . . . . .

[8-s 61]

DIVISION 9A — DEFENCE OF LAWFUL CORRECTION

61AA

Defence of lawful correction . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 61AA]

DIVISION 10 — SEXUAL OFFENCES AGAINST ADULTS AND CHILDREN

61A–61G [Repealed] 61H 61HA 61HB 61HC 61HD 61HE

Subdivision 1 — Interpretation Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Meaning of “sexual intercourse” . . . . . . . . . . . . . . . . . . . . . . . . . Meaning of “sexual touching” . . . . . . . . . . . . . . . . . . . . . . . . . . . Meaning of “sexual act” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Meaning of “cognitive impairment” . . . . . . . . . . . . . . . . . . . . . Consent in relation to sexual offences . . . . . . . . . . . . . . . . . . .

[8-s 61H] [8-s 61HA] [8-s 61HB] [8-s 61HC] [8-s 61HD] [8-s 61HE]

Subdivision 2 — Sexual assault and assault with intent to have sexual intercourse 61I Sexual assault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 61I] 61J Aggravated sexual assault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 61J] 61JA Aggravated sexual assault in company . . . . . . . . . . . . . . . . . . [8-s 61JA] 61K Assault with intent to have sexual intercourse . . . . . . . . . . . [8-s 61K]

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CRIMES ACT 1900

61KA 61KB

Title

61L 61M 61N 61O

Offender married to victim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Circumstances of certain sexual offences to be considered in passing sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Indecent assault [Repealed] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Aggravated indecent assault [Repealed] . . . . . . . . . . . . . . . . . Act of indecency [Repealed] . . . . . . . . . . . . . . . . . . . . . . . . . . . . Aggravated act of indecency [Repealed] . . . . . . . . . . . . . . . .

61KC 61KD

Subdivision 3 — Sexual touching Sexual touching . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Aggravated sexual touching . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

61KE 61KF 61P 61R 62 64–66 66A 66B 66C 66D

66DA 66DB

Subdivision 4 — Sexual act Sexual act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Aggravated sexual act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Attempt to commit offence under sections 61I–61O [Repealed] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [Repealed] [Repealed] [Repealed] Subdivision 5 — Children — sexual assault Sexual intercourse — child under 10 . . . . . . . . . . . . . . . . . . . . Attempting, or assaulting with intent, to have sexual intercourse with child under 10 . . . . . . . . . . . . . . . . . . . . . . . Sexual intercourse — child between 10 and 16 . . . . . . . . . . Assault with intent to have sexual intercourse — child between 10 and 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Subdivision 6 — Children — sexual touching Sexual touching — child under 10 . . . . . . . . . . . . . . . . . . . . . . Sexual touching — child between 10 and 16 . . . . . . . . . . . .

Paragraph

[8-s 61KA] [8-s 61KB] [8-s 61L] [8-s 61M] [8-s 61N] [8-s 61O] [8-s 61KC] [8-s 61KD] [8-s 61KE] [8-s 61KF] [8-s 61P] Crimes

Section

[8-s 66A] [8-s 66B] [8-s 66C] [8-s 66D] [8-s 66DA] [8-s 66DB]

66E

Subdivision 7 — Children — sexual act Sexual act — child under 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sexual act — child between 10 and 16 . . . . . . . . . . . . . . . . . . Aggravated sexual act — child between 10 and 16 . . . . . . Sexual act for production of child abuse material — child under 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alternative verdicts [Repealed] . . . . . . . . . . . . . . . . . . . . . . . . . .

66EA

Subdivision 8 — Children — persistent sexual abuse Persistent sexual abuse of a child . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 66EA]

Subdivision 9 — Children — procurement and grooming Procuring or grooming child under 16 for unlawful sexual activity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 66EB]

66DC 66DD 66DE 66DF

66EB

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[8-s 66DC] [8-s 66DD] [8-s 66DE] [8-s 66DF] [8-s 66E]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Section

66EC

66F 67–72A

Title

Grooming a person for unlawful sexual activity with a child under the person’s authority . . . . . . . . . . . . . . . . . . . . . Subdivision 10 — Sexual offences — cognitive impairment Sexual offences — cognitive impairment . . . . . . . . . . . . . . . [Repealed]

Paragraph

[8-s 66EC] [8-s 66F]

Subdivision 11 — Sexual offences — young person under special care 72B Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 72B] 73 Sexual intercourse — young person between 16 and 18 under special care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 73] 73A Sexual touching — young person between 16 and 18 under special care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 73A] 74–76A [Repealed] 77A–78 [Repealed] Subdivision 12 — Incest 78A Incest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78B Incest attempts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78C Defences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78D–78E [Repealed] 78F Sanction of Attorney-General . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78G–78T [Repealed] 79 80

Subdivision 13 — Bestiality Bestiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Attempt to commit bestiality . . . . . . . . . . . . . . . . . . . . . . . . . . . .

80A

Subdivision 14 — Sexual assault by forced self-manipulation Sexual assault by forced self-manipulation . . . . . . . . . . . . . .

80AA 80AB 80AC 80AD 80AE 80AF 80AG

Subdivision 15 — Miscellaneous Referral to child protection agency . . . . . . . . . . . . . . . . . . . . . . Alternative verdicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Offenders who are minors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Common law offences of rape and attempted rape abolished . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Consent no defence in certain cases . . . . . . . . . . . . . . . . . . . . . Uncertainty about time when sexual offence against child occurred . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Defence of similar age . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 78A] [8-s 78B] [8-s 78C] [8-s 78F]

[8-s 79] [8-s 80] [8-s 80A] [8-s 80AA] [8-s 80AB] [8-s 80AC] [8-s 80AD] [8-s 80AE] [8-s 80AF] [8-s 80AG]

DIVISION 10A — SEXUAL SERVITUDE

80B 80C 80D 80E

Meaning of “sexual servitude” . . . . . . . . . . . . . . . . . . . . . . . . . . . Meaning of “circumstances of aggravation” . . . . . . . . . . . . . Causing sexual servitude . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Conduct of business involving sexual servitude . . . . . . . . .

746

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[8-s 80B] [8-s 80C] [8-s 80D] [8-s 80E]

CRIMES ACT 1900

Section

80F

Title

Paragraph

Alternative verdicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 80F]

DIVISION 10B — INCITEMENT TO COMMIT SEXUAL OFFENCE

80G 81–81B

Incitement to commit sexual offence . . . . . . . . . . . . . . . . . . . . [Repealed]

[8-s 80G]

DIVISION 11 — MISCONDUCT WITH REGARD TO CORPSES

81C

Misconduct with regard to corpses . . . . . . . . . . . . . . . . . . . . . .

[8-s 81C]

DIVISION 12 — TERMINATION OF PREGNANCIES BY UNQUALIFIED PERSONS

82 83 84

Termination of pregnancy performed by unqualified person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Administering drugs etc to woman with intent . . . . . . . . . . Procuring drugs etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 82] [8-s 83] [8-s 84]

DIVISION 13 — CONCEALING BIRTH OF A CHILD

Concealment of birth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

86 87 88–91

Kidnapping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Child abduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [Repealed]

[8-s 85]

DIVISION 14 — KIDNAPPING

[8-s 86] [8-s 87]

DIVISION 14A — PROCURING FOR PROSTITUTION

91A 91B

Procuring etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Procuring person by drugs etc . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 91A] [8-s 91B]

DIVISION 15 — CHILD PROSTITUTION

91C 91D 91E 91F

Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Promoting or engaging in acts of child prostitution . . . . . . Obtaining benefit from child prostitution . . . . . . . . . . . . . . . . Premises not to be used for child prostitution . . . . . . . . . . .

[8-s 91C] [8-s 91D] [8-s 91E] [8-s 91F]

DIVISION 15A — CHILD ABUSE MATERIAL

91FA 91FB 91G 91H 91HAA 91HA

Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Child abuse material — meaning . . . . . . . . . . . . . . . . . . . . . . . . Children not to be used for production of child abuse material . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Production, dissemination or possession of child abuse material . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Defences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 91FA] [8-s 91FB] [8-s 91G] [8-s 91H] [8-s 91HAA] [8-s 91HA]

DIVISION 15B — VOYEURISM AND RELATED OFFENCES

91I 91J

Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Voyeurism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[8-s 91I] [8-s 91J]

Crimes

85

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Section

91K 91L 91M

Title

Filming a person engaged in private act . . . . . . . . . . . . . . . . . Filming a person’s private parts . . . . . . . . . . . . . . . . . . . . . . . . . Installing device to facilitate observation or filming . . . . .

Paragraph

[8-s 91K] [8-s 91L] [8-s 91M]

DIVISION 15C — RECORDING AND DISTRIBUTING INTIMATE IMAGES

91N 91O 91P 91Q 91R 91S 91T

Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Meaning of consent in intimate image offences . . . . . . . . . . Record intimate image without consent . . . . . . . . . . . . . . . . . . Distribute intimate image without consent . . . . . . . . . . . . . . . Threaten to record or distribute intimate image . . . . . . . . . . Court may order rectification . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 91N] [8-s 91O] [8-s 91P] [8-s 91Q] [8-s 91R] [8-s 91S] [8-s 91T]

DIVISION 16 — BIGAMY

92 93

Bigamy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Participator in bigamy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 92] [8-s 93]

PART 3A — OFFENCES RELATING TO PUBLIC ORDER DIVISION 1 — RIOT AND AFFRAY

93A 93B 93C 93D 93E

Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Riot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Affray . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mental element under sections 93B and 93C . . . . . . . . . . . . [Repealed]

[8-s 93A] [8-s 93B] [8-s 93C] [8-s 93D]

DIVISION 2 — EXPLOSIVES AND FIREARMS OFFENCES

93F 93FA 93FB 93G 93GA 93H 93I

Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Possession, supply or making of explosives . . . . . . . . . . . . . Possession of dangerous articles other than firearms . . . . . Causing danger with firearm or spear gun . . . . . . . . . . . . . . . Firing at dwelling-houses or buildings . . . . . . . . . . . . . . . . . . . Trespassing with or dangerous use of firearm or spear gun . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Possession of unregistered firearm in public place . . . . . . .

[8-s 93F] [8-s 93FA] [8-s 93FB] [8-s 93G] [8-s 93GA] [8-s 93H] [8-s 93I]

DIVISION 3 — CONTAMINATION OF GOODS

93J 93K 93L 93M

Definitions of “contaminate” and “goods” . . . . . . . . . . . . . . . Contaminating goods with intent to cause public alarm or economic loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Threatening to contaminate goods with intent to cause public alarm or economic loss . . . . . . . . . . . . . . . . . . . . . . . . Making false statements concerning contamination of goods with intent to cause public alarm or economic loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[8-s 93J] [8-s 93K] [8-s 93L]

[8-s 93M]

CRIMES ACT 1900

Section

93N 93O 93P

Title

Aggravated circumstances — unwarranted demand . . . . . . Aggravated circumstances — death or grievous bodily harm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Special provisions relating to geographical application of this Division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Paragraph

[8-s 93N] [8-s 93O] [8-s 93P]

DIVISION 4 — BOMB AND OTHER HOAXES

93Q 93R

Conveying false information that a person or property is in danger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Leaving or sending an article with intent to cause alarm .

[8-s 93Q] [8-s 93R]

DIVISION 5 — CRIMINAL GROUPS

93U

Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Participation in criminal groups . . . . . . . . . . . . . . . . . . . . . . . . . Receiving material benefit derived from criminal activities of criminal groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alternative verdicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 93S] [8-s 93T] [8-s 93TA] [8-s 93U]

DIVISION 6 — UNLAWFUL GAMBLING

93V

Offence of conducting unlawful gambling operation . . . .

[8-s 93V]

DIVISION 7 — CONSORTING

93W 93X 93Y

Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Consorting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Defence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 93W] [8-s 93X] [8-s 93Y]

DIVISION 8 — PUBLIC THREATS OR INCITEMENT OF VIOLENCE ON GROUNDS OF RACE, RELIGION, SEXUAL ORIENTATION, GENDER IDENTITY OR INTERSEX OR HIV/AIDS STATUS

93Z

Offence of publicly threatening or inciting violence on grounds of race, religion, sexual orientation, gender identity or intersex or HIV/AIDS status . . . . . . . . . . . . . . .

[8-s 93Z]

PART 4 — STEALING AND SIMILAR OFFENCES DIVISION 1 — GENERAL

94AA

Property previously stolen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

94 95 96 97

Robbery or stealing from the person . . . . . . . . . . . . . . . . . . . . . Same in circumstances of aggravation . . . . . . . . . . . . . . . . . . . Same (robbery) with wounding . . . . . . . . . . . . . . . . . . . . . . . . . . Robbery etc or stopping a mail, being armed or in company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Robbery with arms etc and wounding . . . . . . . . . . . . . . . . . . .

[8-s 94AA]

DIVISION 2 — ROBBERY

98

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[8-s 94] [8-s 95] [8-s 96] [8-s 97] [8-s 98]

Crimes

93S 93T 93TA

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Section

99 100–105

Title Paragraph DIVISION 3 — DEMANDING PROPERTY WITH INTENT TO STEAL

Demanding property with intent to steal . . . . . . . . . . . . . . . . . [Repealed]

[8-s 99]

DIVISION 4 — SACRILEGE AND HOUSEBREAKING

105A 106–108 109 110 111 112 113 114 115 115A

Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [Repealed] Breaking out of dwelling-house after committing, or entering with intent to commit, indictable offence . . . . . Breaking, entering and assaulting with intent to murder etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Entering dwelling-house . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Breaking etc into any house etc and committing serious indictable offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Breaking etc into any house etc with intent to commit serious indictable offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Being armed with intent to commit indictable offence . . . Being convicted offender armed with intent to commit indictable offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alternative verdicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 105A]

[8-s 109] [8-s 110] [8-s 111] [8-s 112] [8-s 113] [8-s 114] [8-s 115] [8-s 115A]

DIVISION 5 — LARCENY

116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136

All larcenies to be of same nature . . . . . . . . . . . . . . . . . . . . . . . Punishment for larceny . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intent to return property no defence . . . . . . . . . . . . . . . . . . . . . Verdict where several takings proved . . . . . . . . . . . . . . . . . . . . Trial for larceny — verdict of embezzlement etc . . . . . . . . Verdict of “larceny or receiving” . . . . . . . . . . . . . . . . . . . . . . . . Verdict where persons indicted for joint larceny or receiving . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Verdict of minor indictable offence . . . . . . . . . . . . . . . . . . . . . . Fraudulent appropriation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Larceny by bailee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Stealing cattle or killing with intent to steal . . . . . . . . . . . . . Stealing or killing cattle — uncertainty as to sex or age not to entitle to acquittal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Trial for stealing cattle — verdict of stealing skins . . . . . . Trial for killing cattle — verdict of stealing . . . . . . . . . . . . . Trial for stealing cattle — verdict of misdemeanour . . . . . Unlawfully using etc another person’s cattle . . . . . . . . . . . . Stealing dogs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Taking money to restore dogs . . . . . . . . . . . . . . . . . . . . . . . . . . . Stealing, destroying etc valuable security . . . . . . . . . . . . . . . . Stealing, destroying etc wills or codicils . . . . . . . . . . . . . . . . . Proviso to sections 134 and 135 . . . . . . . . . . . . . . . . . . . . . . . . .

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[8-s 116] [8-s 117] [8-s 118] [8-s 119] [8-s 120] [8-s 121] [8-s [8-s [8-s [8-s [8-s

122] 123] 124] 125] 126]

[8-s [8-s [8-s [8-s [8-s [8-s [8-s [8-s [8-s [8-s

127] 128] 129] 130] 131] 132] 133] 134] 135] 136]

CRIMES ACT 1900

137 138 139 140 141–147 148 149 150 151 152 153 154 154A 154AA 154B 154C 154D

Title

Civil remedies not affected by conviction . . . . . . . . . . . . . . . Stealing, destroying etc records etc of any court or public office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Stealing etc metal, glass, wood etc fixed to house or land . Stealing etc trees etc in pleasure-grounds etc . . . . . . . . . . . . [Repealed] Stealing property in a dwelling-house . . . . . . . . . . . . . . . . . . . The same with menaces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Stealing goods in process of manufacture . . . . . . . . . . . . . . . Selling etc materials to be manufactured . . . . . . . . . . . . . . . . Stealing from ship in port or on wharfs etc . . . . . . . . . . . . . . Stealing from ship in distress or wrecked . . . . . . . . . . . . . . . . Tenants etc stealing articles let to hire . . . . . . . . . . . . . . . . . . . Taking a conveyance without consent of owner . . . . . . . . . [Repealed] Stealing aircraft and unlawfully taking or exercising control of aircraft . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Taking motor vehicle or vessel with assault or with occupant on board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Stealing firearms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Paragraph

[8-s 137] [8-s 138] [8-s 139] [8-s 140] [8-s 148] [8-s 149] [8-s 150] [8-s 151] [8-s 152] [8-s 153] [8-s 154] [8-s 154A]

[8-s 154B] [8-s 154C] [8-s 154D]

DIVISION 5A — OFFENCES RELATING TO THEFT OF MOTOR VEHICLES AND VESSELS

154E 154F 154G 154H 154I 154J

Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Stealing motor vehicle or vessel . . . . . . . . . . . . . . . . . . . . . . . . . Facilitating organised car or boat rebirthing activities . . . Making, using and interfering with unique identifiers . . . . Possession of motor vehicle or vessel where unique identifier has been interfered with . . . . . . . . . . . . . . . . . . . . . Possession of vehicle identification plate not attached to motor vehicle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 154E] [8-s 154F] [8-s 154G] [8-s 154H] [8-s 154I] [8-s 154J]

DIVISION 6 — EMBEZZLEMENT OR LARCENY

155 156 157 158 159 160 161 162 163 164–186

Definition of clerk or servant . . . . . . . . . . . . . . . . . . . . . . . . . . . . Larceny by clerks or servants . . . . . . . . . . . . . . . . . . . . . . . . . . . Embezzlement by clerks or servants . . . . . . . . . . . . . . . . . . . . . [Repealed] Larceny by persons in Public Service . . . . . . . . . . . . . . . . . . . Embezzlement etc by persons in the Public Service . . . . . Proof of general deficiency in accounts . . . . . . . . . . . . . . . . . . Larceny etc by joint owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Trial for embezzlement — verdict of larceny . . . . . . . . . . . . [Repealed]

751

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[8-s 155] [8-s 156] [8-s 157] [8-s [8-s [8-s [8-s [8-s

159] 160] 161] 162] 163]

Crimes

Section

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Section

187 188 189 189A 189B 190 191 192 192A

Title DIVISION 16 — RECEIVERS

Term “stealing” in sections 188 and 189 . . . . . . . . . . . . . . . . Receiving stolen property where stealing a serious indictable offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Receiving etc where principal guilty of minor indictable offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Receiving etc goods stolen out of New South Wales . . . . Prosecution under section 188 or 189 where property stolen in course of transmission . . . . . . . . . . . . . . . . . . . . . . . Receiving etc cattle unlawfully killed, or carcass etc . . . . Uncertainty as to sex or age not to entitle to acquittal . . . Receiving material or tools intrusted for manufacture . . . Verdict where several persons are indicted for jointly receiving . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Paragraph

[8-s 187] [8-s 188] [8-s 189] [8-s 189A] [8-s 189B] [8-s 190] [8-s 191] [8-s 192] [8-s 192A]

PART 4AA — FRAUD DIVISION 1 — PRELIMINARY

192B 192C 192D

Deception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Obtaining property belonging to another . . . . . . . . . . . . . . . . . Obtaining financial advantage or causing financial disadvantage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 192B] [8-s 192C] [8-s 192D]

DIVISION 2 — FRAUD AND RELATED OFFENCES

192E 192F 192G 192H

Fraud . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intention to defraud by destroying or concealing accounting records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intention to defraud by false or misleading statement . . . Intention to deceive members or creditors by false or misleading statement of officer of organisation . . . . . . . .

[8-s 192E] [8-s 192F] [8-s 192G] [8-s 192H]

PART 4AB — IDENTITY OFFENCES 192I 192J 192K 192L 192M 193

Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dealing with identification information . . . . . . . . . . . . . . . . . . Possession of identification information . . . . . . . . . . . . . . . . . Possession of equipment etc to make identification documents or things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Miscellaneous provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [Repealed]

[8-s 192I] [8-s 192J] [8-s 192K] [8-s 192L] [8-s 192M]

PART 4AC — MONEY LAUNDERING 193A 193B

Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Money laundering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

752

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[8-s 193A] [8-s 193B]

CRIMES ACT 1900

Section

193C 193D 193E 193F 193FA 193G

Title

Dealing with property suspected of being proceeds of crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dealing with property that subsequently becomes an instrument of crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alternative verdicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Proof of other offences not required . . . . . . . . . . . . . . . . . . . . . Combining several contraventions in a single charge . . . . Transitional provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Paragraph

[8-s 193C] [8-s 193D] [8-s 193E] [8-s 193F] [8-s 193FA] [8-s 193G]

PART 4ACA — CHEATING AT GAMBLING DIVISION 1 — PRELIMINARY

193L 193M

Corrupting betting outcome of event . . . . . . . . . . . . . . . . . . . . Betting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Events and event contingencies . . . . . . . . . . . . . . . . . . . . . . . . . . Obtaining financial advantage or causing financial disadvantage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Proof of intention to obtain financial advantage or cause financial disadvantage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Encourage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 193H] [8-s 193I] [8-s 193J] [8-s 193K] [8-s 193L] [8-s 193M]

DIVISION 2 — OFFENCES

193N 193O 193P 193Q

Engage in conduct that corrupts betting outcome of event . Facilitate conduct that corrupts betting outcome of event . Concealing conduct or agreement about conduct that corrupts betting outcome of event . . . . . . . . . . . . . . . . . . . . . Use of corrupt conduct information or inside information for betting purposes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 193N] [8-s 193O] [8-s 193P] [8-s 193Q]

PART 4AD — CRIMINAL DESTRUCTION AND DAMAGE DIVISION 1 — INTERPRETATION

194

Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 194]

DIVISION 2 — CRIMES AGAINST PROPERTY GENERALLY

195 196 197 198 199 200

Destroying or damaging property . . . . . . . . . . . . . . . . . . . . . . . . Destroying or damaging property with intent to injure a person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dishonestly destroying or damaging property . . . . . . . . . . . . Destroying or damaging property with intention of endangering life . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Threatening to destroy or damage property . . . . . . . . . . . . . . Possession etc of explosive or other article with intent to destroy or damage property . . . . . . . . . . . . . . . . . . . . . . . . . .

753

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[8-s 195] [8-s 196] [8-s 197] [8-s 198] [8-s 199] [8-s 200]

Crimes

193H 193I 193J 193K

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Section Title Paragraph DIVISION 3 — CRIMES RELATING TO PARTICULAR KINDS OF PROPERTY

201 202 203

Interfering with a mine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Causing damage etc to sea, river, canal and other works . [Repealed]

[8-s 201] [8-s 202]

DIVISION 4 — SABOTAGE

203A 203B 203C

Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sabotage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Threaten sabotage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 203A] [8-s 203B] [8-s 203C]

DIVISION 5 — BUSHFIRES

203D 203E

Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 203D] [8-s 203E]

PART 4AE — OFFENCES RELATING TO TRANSPORT SERVICES DIVISION 1 — OFFENCES RELATING TO AIRCRAFT, VESSELS ETC

204

Destruction of, or damage to, an aircraft or vessel with intent or reckless indifference . . . . . . . . . . . . . . . . . . . . . . . . . Prejudicing the safe operation of an aircraft or vessel . . . Assault etc on member of crew of aircraft or vessel . . . . . Placing etc dangerous articles on board an aircraft or vessel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Threatening to destroy etc an aircraft, vessel or vehicle . False information as to plan etc to prejudice the safety of an aircraft or vessel or persons on board an aircraft or vessel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Destroying, damaging etc an aid to navigation . . . . . . . . . .

205 206 207 208 209 210

[8-s 204] [8-s 205] [8-s 206] [8-s 207] [8-s 208] [8-s 209] [8-s 210]

DIVISION 2 — OFFENCES RELATING TO RAILWAYS ETC

211 212 213 214 215–249

Criminal acts relating to railways . . . . . . . . . . . . . . . . . . . . . . . . Endangering passengers etc on railway . . . . . . . . . . . . . . . . . . Obstructing a railway . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Obstructing a railway — verdict of misdemeanour . . . . . . [Repealed]

[8-s 211] [8-s 212] [8-s 213] [8-s 214]

PART 4A — CORRUPTLY RECEIVING COMMISSIONS AND OTHER CORRUPT PRACTICES 249A 249B 249C 249D 249E 249F

Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Corrupt commissions or rewards . . . . . . . . . . . . . . . . . . . . . . . . Misleading documents or statements used or made by agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Corrupt inducements for advice . . . . . . . . . . . . . . . . . . . . . . . . . Corrupt benefits for trustees and others . . . . . . . . . . . . . . . . . . Aiding, abetting etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

754

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[8-s 249A] [8-s 249B] [8-s 249C] [8-s 249D] [8-s 249E] [8-s 249F]

CRIMES ACT 1900

Section

249G 249H 249I 249J

Title

Repayment of value of gift etc . . . . . . . . . . . . . . . . . . . . . . . . . . Disqualification for office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dismissal of trivial case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Custom not a defence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Paragraph

[8-s 249G] [8-s 249H] [8-s 249I] [8-s 249J]

PART 4B — BLACKMAIL 249K 249L 249M 249N 249O

Blackmail offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Unwarranted demands — meaning . . . . . . . . . . . . . . . . . . . . . . Menaces — meaning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Obtaining gain or causing loss — meaning . . . . . . . . . . . . . . Public duty — meaning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 249K] [8-s 249L] [8-s 249M] [8-s 249N] [8-s 249O]

PART 5 — FORGERY

250 251 252

False document — meaning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inducing acceptance of false document . . . . . . . . . . . . . . . . . . Interpretative provisions relating to obtaining property, financial advantage and financial disadvantage . . . . . . . .

[8-s 250] [8-s 251] [8-s 252]

DIVISION 2 — FORGERY

253

Forgery — making false document . . . . . . . . . . . . . . . . . . . . . .

[8-s 253]

DIVISION 3 — OFFENCES RELATED TO FORGERY

254 255 256 257–307

Using false document . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Possession of false document . . . . . . . . . . . . . . . . . . . . . . . . . . . . Making or possession of equipment etc for making false documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [Repealed]

[8-s 254] [8-s 255] [8-s 256]

PART 5A — FALSE AND MISLEADING INFORMATION 307A 307B 307C

False or misleading applications . . . . . . . . . . . . . . . . . . . . . . . . . False or misleading information . . . . . . . . . . . . . . . . . . . . . . . . False or misleading documents . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 307A] [8-s 307B] [8-s 307C]

PART 6 — COMPUTER OFFENCES 308 308A 308B 308C

General definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Meaning of access to data, modification of data and impairment of electronic communication . . . . . . . . . . . . . . Meaning of unauthorised access, modification or impairment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Unauthorised access, modification or impairment with intent to commit serious indictable offence . . . . . . . . . . . .

755

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[8-s 308] [8-s 308A] [8-s 308B] [8-s 308C]

Crimes

DIVISION 1 — PRELIMINARY

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Section

308D 308E 308F 308G 308H 308I 309–310

Title

Unauthorised modification of data with intent to cause impairment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Unauthorised impairment of electronic communication . . Possession of data with intent to commit serious computer offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Producing, supplying or obtaining data with intent to commit serious computer offence . . . . . . . . . . . . . . . . . . . . . Unauthorised access to or modification of restricted data held in computer (summary offence) . . . . . . . . . . . . . . . . . . Unauthorised impairment of data held in computer disk, credit card or other device (summary offence) . . . . . . . . [Repealed]

Paragraph

[8-s 308D] [8-s 308E] [8-s 308F] [8-s 308G] [8-s 308H] [8-s 308I]

PART 6A — OFFENCES RELATING TO ESCAPE FROM LAWFUL CUSTODY 310A 310B 310C 310D 310E 310F 310G 310H

Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rescuing inmate from lawful custody . . . . . . . . . . . . . . . . . . . Aiding escape . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Escaping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tunnels to facilitate escape . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Permitting escape . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Harbouring escapee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application of Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 310A] [8-s 310B] [8-s 310C] [8-s 310D] [8-s 310E] [8-s 310F] [8-s 310G] [8-s 310H]

PART 6B — TERRORISM 310I 310J 310K

Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Membership of terrorist organisation . . . . . . . . . . . . . . . . . . . . Multiplicity of offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 310I] [8-s 310J] [8-s 310K]

PART 7 — PUBLIC JUSTICE OFFENCES DIVISION 1 — DEFINITIONS

311 312 313

Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Meaning of “pervert the course of justice” . . . . . . . . . . . . . . Knowledge about type of offence is unnecessary . . . . . . . .

[8-s 311] [8-s 312] [8-s 313]

DIVISION 2 — INTERFERENCE WITH THE ADMINISTRATION OF JUSTICE

314 315 315A 316 316A 317 318

False accusations etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Hindering investigation etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Threatening or intimidating victims or witnesses . . . . . . . . Concealing serious indictable offence . . . . . . . . . . . . . . . . . . . . Concealing child abuse offence . . . . . . . . . . . . . . . . . . . . . . . . . . Tampering etc with evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . Making or using false official instrument to pervert the course of justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

756

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[8-s 314] [8-s 315] [8-s 315A] [8-s 316] [8-s 316A] [8-s 317] [8-s 318]

CRIMES ACT 1900

Section

319

Title

General offence of perverting the course of justice . . . . . .

Paragraph

[8-s 319]

DIVISION 3 — INTERFERENCE WITH JUDICIAL OFFICERS, WITNESSES, JURORS ETC

320 321 322 323 324 325 326

Extended meaning of “giving evidence” . . . . . . . . . . . . . . . . . Corruption of witnesses and jurors . . . . . . . . . . . . . . . . . . . . . . Threatening or intimidating judges, witnesses, jurors etc . Influencing witnesses and jurors . . . . . . . . . . . . . . . . . . . . . . . . . Increased penalty if serious indictable offence involved . Preventing, obstructing or dissuading witness or juror from attending etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Reprisals against judges, witnesses, jurors etc . . . . . . . . . . .

[8-s [8-s [8-s [8-s [8-s

320] 321] 322] 323] 324]

[8-s 325] [8-s 326]

327 328 329 330 331 332 333 334 335 336 337 338 339

Offence of perjury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Perjury with intent to procure conviction or acquittal . . . . Conviction for false swearing on indictment for perjury . False statement on oath not amounting to perjury . . . . . . . Contradictory statements on oath . . . . . . . . . . . . . . . . . . . . . . . . Certain technical defects provided for . . . . . . . . . . . . . . . . . . . Subornation of perjury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . General provisions applicable to perjury and false statement offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . False statements in evidence on commission . . . . . . . . . . . . False entry on public register . . . . . . . . . . . . . . . . . . . . . . . . . . . . False instruments issued by public officers . . . . . . . . . . . . . . Restrictions on prosecutions for perjury . . . . . . . . . . . . . . . . . Application of Division to perjury under other Acts . . . . .

[8-s [8-s [8-s [8-s [8-s [8-s [8-s

327] 328] 329] 330] 331] 332] 333]

[8-s [8-s [8-s [8-s [8-s [8-s

334] 335] 336] 337] 338] 339]

DIVISION 5 — MISCELLANEOUS

340 341 342 343 343A

Extent of abolition of offences . . . . . . . . . . . . . . . . . . . . . . . . . . . Certain common law offences abolished . . . . . . . . . . . . . . . . . Certain conspiracy offences not affected . . . . . . . . . . . . . . . . . Certain common law offences not abolished . . . . . . . . . . . . . Saving of other punishments . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 340] [8-s 341] [8-s 342] [8-s 343] [8-s 343A]

PART 8 — [Repealed] PART 8A — ATTEMPTS 344A

Attempts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 344A]

PART 9 — ABETTORS AND ACCESSORIES 345

Principals in the second degree — how tried and punished . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

757

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[8-s 345]

Crimes

DIVISION 4 — PERJURY, FALSE STATEMENTS ETC

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Section

346 347 347A 348 349 350 351 351A 351B

Title

Accessories before the fact — how tried and punished . . Accessories after the fact — how tried and punished . . . . Wife may be accessory after fact to husband’s felony . . . Punishment of accessories after the fact to certain treason-related offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Punishment of accessories after the fact to murder etc . . . Punishment of accessories after the fact to other serious indictable offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Trial and punishment of abettors of minor indictable offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recruiting persons to engage in criminal activity . . . . . . . . Aiders and abettors punishable as principals . . . . . . . . . . . .

Paragraph

[8-s 346] [8-s 347] [8-s 347A] [8-s 348] [8-s 349] [8-s 350] [8-s 351] [8-s 351A] [8-s 351B]

PARTS 10–10B — [Repealed] PART 11 — CRIMINAL RESPONSIBILITY — DEFENCES DIVISION 1 — [Repealed]

359–416

[Repealed] DIVISION 2 — LAWFUL AUTHORITY OR EXCUSE

417 417A

Proof of lawful authority or excuse . . . . . . . . . . . . . . . . . . . . . . Proof of exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 417] [8-s 417A]

DIVISION 3 — SELF-DEFENCE

418 419 420

Self-defence — when available . . . . . . . . . . . . . . . . . . . . . . . . . . Self-defence — onus of proof . . . . . . . . . . . . . . . . . . . . . . . . . . . Self-defence — not available if death inflicted to protect property or trespass to property . . . . . . . . . . . . . . . . . . . . . . . 421 Self-defence — excessive force that inflicts death . . . . . . . 422 Self-defence — response to lawful conduct . . . . . . . . . . . . . 423 Offences to which Division applies . . . . . . . . . . . . . . . . . . . . . . 423A–428 [Repealed]

[8-s 418] [8-s 419] [8-s [8-s [8-s [8-s

420] 421] 422] 423]

PART 11A — INTOXICATION 428A 428B 428C 428D 428E 428F 428G

Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Offences of specific intent to which Part applies . . . . . . . . Intoxication in relation to offences of specific intent . . . . . Intoxication in relation to other offences . . . . . . . . . . . . . . . . . Intoxication in relation to murder, manslaughter and assault causing death . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication in relation to the reasonable person test . . . . Intoxication and the actus reus of an offence . . . . . . . . . . . .

758

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[8-s 428A] [8-s 428B] [8-s 428C] [8-s 428D] [8-s 428E] [8-s 428F] [8-s 428G]

CRIMES ACT 1900

Section

428H 428I

Title

Abolition of common law relating to self-induced intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application of Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Paragraph

[8-s 428H] [8-s 428I]

PART 11B — DEFENCE OF MENTAL ILLNESS PART 12 — SENTENCES 429–430 [Repealed] 431 Convicted persons not to be liable to death penalty . . . . . 431A Life sentences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 431B–447A[Repealed]

[8-s 431] [8-s 431A]

PARTS 13–13A — [Repealed]

475A 475B

Offences punishable summarily . . . . . . . . . . . . . . . . . . . . . . . . . . Election for summary trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 475A] [8-s 475B]

PART 14 — [Repealed] PART 14A — MISCELLANEOUS OFFENCES DIVISION 1 — LARCENY AND SIMILAR SUMMARY OFFENCES

501 502 503 504 505 506 507 508 509 510 511 512 513 514 515 516 517

[Repealed] Possession of skin etc of stolen cattle . . . . . . . . . . . . . . . . . . . Stealing dogs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Possessing stolen dog or skin . . . . . . . . . . . . . . . . . . . . . . . . . . . . Stealing animals etc ordinarily kept in confinement . . . . . Stealing animals etc ordinarily kept in confinement — second offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Possession of stolen animals etc . . . . . . . . . . . . . . . . . . . . . . . . . Possession of stolen animals etc — second offence . . . . . . Restoration of such stolen animals etc . . . . . . . . . . . . . . . . . . . Setting engine for deer etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [Repealed] Taking fish in waters on private property . . . . . . . . . . . . . . . . Stealing shrubs etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [Repealed] Stealing etc live or dead fence etc . . . . . . . . . . . . . . . . . . . . . . . [Repealed] Unlawful possession of trees, fences etc . . . . . . . . . . . . . . . . .

759

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[8-s [8-s [8-s [8-s

502] 503] 504] 505]

[8-s [8-s [8-s [8-s [8-s

506] 507] 508] 509] 510]

[8-s 512] [8-s 513] [8-s 515] [8-s 517]

Crimes

PART 13B — OFFENCES PUNISHABLE BY THE SUPREME COURT IN ITS SUMMARY JURISDICTION

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Section

Title

518 519 520 521 521A 522 523 524 525

Stealing dead wood . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [Repealed] Stealing plants etc in gardens . . . . . . . . . . . . . . . . . . . . . . . . . . . . Stealing plants etc not growing in gardens . . . . . . . . . . . . . . Stealing of rock, stone etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Possession of shipwrecked goods . . . . . . . . . . . . . . . . . . . . . . . . Offering shipwrecked goods for sale . . . . . . . . . . . . . . . . . . . . . Seizure of such goods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Stealing or damaging books and other things in public library and other places . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 526 Term “Public Library” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 526A–527B[Repealed] 527C Persons unlawfully in possession of property . . . . . . . . . . . . 528 [Repealed]

Paragraph

[8-s 518] [8-s 520] [8-s 521] [8-s 521A] [8-s 522] [8-s 523] [8-s 524] [8-s 525] [8-s 526] [8-s 527C]

DIVISION 2 — OTHER OFFENCES

529 530 531

Criminal defamation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Serious animal cruelty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Killing or seriously injuring animals used for law enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 532–545AB[Repealed] 545B Intimidation or annoyance by violence or otherwise . . . . . 545C Knowingly joining or continuing in etc an unlawful assembly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 545D–545E[Repealed] 546 Abetting or procuring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 546A [Repealed] 546B Convicted persons found with intent to commit offence . 546C Resisting etc police . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 546D Impersonation of police officers . . . . . . . . . . . . . . . . . . . . . . . . . 547–547A [Repealed] 547B Public mischief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 547C Peeping or prying . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 547D Person apprehended carrying razor etc . . . . . . . . . . . . . . . . . .

[8-s 529] [8-s 530] [8-s 531] [8-s 545B] [8-s 545C] [8-s 546] [8-s 546B] [8-s 546C] [8-s 546D] [8-s 547B] [8-s 547C] [8-s 547D]

DIVISION 3 — GENERAL

548–555 556

[Repealed] Summary conviction a bar to further proceedings . . . . . . . PARTS 15–15A — [Repealed] PART 16 — MISCELLANEOUS ENACTMENTS

563–573

[Repealed]

760

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[8-s 556]

CRIMES ACT 1900

574 574A 574B 575–578 578A 578B 578C 578D 578E 579 580 580A 580B 580C 580D 580E 580F 580G 580H 581 582

Title

Prosecutions for blasphemy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [Repealed] Prevention of suicide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [Repealed] Prohibition of publication identifying victims of certain sexual offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [Repealed] Publishing indecent articles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [Repealed] Offences relating to advertising or displaying products associated with sexual behaviour . . . . . . . . . . . . . . . . . . . . . . Evidence of proceedings dealt with by way of recognizance after 15 years . . . . . . . . . . . . . . . . . . . . . . . . . . . Certain charges not to be brought at common law . . . . . . . Abolition of offence of being a common nightwalker . . . Abolition of offences of eavesdropping and being a common scold . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Abolition of common law offences relating to brothels . . Abolition of rule that husband and wife cannot be guilty of conspiracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Abolition of distinction between felony and misdemeanour . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Abolition of penal servitude . . . . . . . . . . . . . . . . . . . . . . . . . . . . Abolition of imprisonment with light or hard labour . . . . Abolition of common law offences and rules . . . . . . . . . . . . Savings and transitional provisions . . . . . . . . . . . . . . . . . . . . . . Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SCHEDULE 2 — APPLICATION OF ACT . . . . . . . . . . . . SCHEDULE 3 — ABOLISHED COMMON LAW OFFENCES AND RULES SCHEDULE 10 — OFFENCES PUNISHABLE BY THE SUPREME COURT IN ITS SUMMARY JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SCHEDULE 11 — SAVINGS, TRANSITIONAL AND OTHER PROVISIONS

761

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Paragraph

[8-s 574] [8-s 574B]

[8-s 578A] [8-s 578C]

[8-s 578E] [8-s 579] [8-s 580] [8-s 580A] [8-s 580B] [8-s 580C] [8-s 580D] [8-s 580E] [8-s 580F] [8-s 580G] [8-s 580H] [8-s 581] [8-s 582] [8-Sch 2]

[8-Sch 10]

Crimes

Section

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Crimes Act 1900 TABLE OF AMENDMENTS

Amending Legislation

Date of Assent

Date of Commencement

Crimes Legislation Amendment Act 2004 No 11

24 March 2004

24 March 2004

Road Transport (Safety and Traffic Management) Amendment (Alcohol) Act 2004 No 17

24 March 2004

s 4 and Sch 2: 3 May 2004 (Gaz 77 of 30 April 2004)

Crimes Amendment (Child Neglect) Act 2004 No 41

6 July 2004

s 3 and Sch 1: 22 October 2004 (Gaz 166 of 22 October 2004)

Crimes Legislation Amendment (Terrorism) Act 2004 No 48

6 July 2004

ss 3 and 4; Sch 1 and 2: 12 November 2004 (Gaz 179 of 12 November 2004)

Statute Law (Miscellaneous Provisions) Act 2004 No 55

6 July 2004

s 3 and Sch 2.7: 6 July 2004 (Gaz 120 of 16 July 2004)

Classification (Publications, Films and Computer Games) Enforcement Amendment (Uniform Classification) Act 2004 No 82

3 November 2004

Sch 2: 26 May 2005

Statute Law (Miscellaneous Provisions) Act (No 2) 2004 No 91

10 December 2004

s 2 and Sch 2: on assent

Crimes Amendment (Child Pornography) Act 2004 No 95

15 December 2004

s 3 and Sch 1[11]: on assent; remainder: 1 January 2005 (Gaz 200 of 17 December 2004)

Marine Safety Amendment (Random Breath Testing) Act 2005 No 4

10 March 2005

13 May 2005 (Gaz 54 of 13 March 2005)

Road Transport (General) Act 2005 No 11

14 April 2005

s 247 and Sch 3.33[1]–[3], [15]–[19]: 1 December 2005; rem: 30 September 2005 (Gaz 120 of 30 September 2005)

Crimes Amendment (Grievous Bodily Harm) Act 2005 No 14

12 May 2005

on assent (Gaz 57 of 20 May 2005)

Criminal Procedure Further Amendment (Evidence) Act 2005 No 25

31 July 2005

12 August 2005 (Gaz 101 of 12 August 2005)

Terrorism Legislation Amendment (Warrants) Act 2005 No 54

27 June 2005

Sch 4: 13 September 2005 (Gaz 113 of 9 September 2005)

763

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Crimes

Crimes Act 1900 No 40, assented to 31 October 1900, commenced on assent (see s 3 of the now repealed Interpretation Act of 1897). This Act has been amended by (as of 2004):

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Amending Legislation

Date of Assent

Date of Commencement

Confiscation of Proceeds of Crime Amendment Act 2005 No 73

21 October 2005

28 October 2005 (s 5 and Sch 3) (Gaz 132 of 28 October 2005)

Crimes Amendment (Road Accidents) (Brendan’s Law) Act 2005 No 74

26 October 2005

13 February 2006 (Gaz 16 of 3 February 2006)

Defamation Act 2005 No 77

26 October 2005

1 January 2006 (Gaz 137 of 4 November 2005)

Crimes Amendment (Animal Cruelty) Act 2005 No 94

24 November 2005

16 December 2005 (Gaz 158 of 16 December 2005)

Law Enforcement Legislation Amendment (Public Safety) Act 2005 No 119

15 December 2005

On assent

Crimes Amendment (Organised Car and Boat Theft) Act 2006 No 26

26 May 2006

1 September 2006 (Gaz 111 of 1 September 2006)

Statute Law (Miscellaneous Provisions) Act 2006 No 58

20 June 2006

On assent

Crimes Legislation Amendment (Gangs) Act 2006 No 61

28 September 2006

Sch 1: 15 December 2006 (SG 186 of 15 December 2006)

Crimes (Appeal and Review) Amendment (DNA Review Panel) Act 2006 No 70

19 October 2006

23 February 2007

Crimes Amendment (Apprehended Violence) Act 2006 No 73

27 October 2006

12 March 2007

Road Transport Legislation Amendment (Drug Testing) Act 2006 No 79

27 October 2006

15 December 2006

Criminal Procedure Amendment (Sexual and Other Offences) Act 2006 No 88

2 November 2006

1 January 2007

Police Amendment (Miscellaneous) Act 2006 No 94

22 November 2006

1 February 2007

Aboriginal Land Rights Amendment Act 2006 No 111

4 December 2006

s 4 and Sch 2.1: 1 July 2007

Statute Law (Miscellaneous Provisions) (No 2) Act 2006 No 120

4 December 2006

Sch 3: on assent (s 2(2))

Police Powers Legislation Amendment Act 2006 No 128

12 December 2006

Sch 4(4.1): on assent

Criminal Procedure Amendment (Vulnerable Persons) Act 2007 No 6

15 June 2007

12 October 2007

APEC Meeting (Police Powers) Act 2007 No 14

4 July 2007

Sch 3: on assent

Crimes Amendment Act 2007 No 38

27 September 2007

Sch 1 (Sch 1[7] excepted): 15 February 2008 (s 2(2) and Gaz 16 of 15 February 2008; Sch 1[7] and Sch 2: on assent (s 2(1))

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Amending Legislation

Date of Assent

Date of Commencement

Criminal Legislation Amendment Act 2007 No 57

15 November 2007

Sch 3[2]: 7 December 2007; Sch 3[3]–[6]: 15 November 2007

Crimes Amendment (Consent — Sexual Assault Offences) Act 2007 No 66

23 November 2007

1 January 2008

Crimes Amendment (Sexual Procurement or Grooming of Children) Act 2007 No 74

7 December 2007

18 January 2008 (Gaz 9 of 18 January 2008)

Crimes (Domestic and Personal Violence) Act 2007 No 80

27 August 2007

10 March 2007 (Gaz 30 of 7 March 2008)

Statute Law (Miscellaneous Provisions) Act (No 2) 2007 No 82

7 December 2007

Sch 2(2.1): on assent

Miscellaneous Acts (Local Court) Amendment Act 2007 No 94

13 December 2007

Schs 1.23, 2 and 3: 6 July 2009 (s 2 and SI 314 of 2009, LW 3 July 2009)

Law Enforcement and Other Legislation Amendment Act 2007 No 97

13 December 2007

Sch 1.2: 14 December 2007

Road Transport Legislation (Breath Testing and Analysis) Act 2007 No 99

13 December 2007

s 4 and Sch 3.5[1]–[4]: 25 January 2008

Crimes Amendment (Drink and Food Spiking) Act 2008 No 1

19 March 2008

28 March 2008 (Gaz 37 of 28 March 2008)

Crimes Amendment (Rock Throwing) Act 2008 No 18

20 May 2008

23 May 2008 (Gaz 57 of 23 May 2008)

Courts and Crimes Legislation Amendment Act 2008 No 53

1 July 2008

Sch 6: on assent

Crimes Amendment (Cognitive Impairment — Sexual Offences) Act 2008 No 74

28 October 2008

1 December 2008 (s 2 and Gaz 150 of 21 November 2008)

Crimes Amendment (Sexual Offences) Act 2008 No 105

8 December 2008

Sch 1[10]: 1 January 2009 (s 2(2)); rem: 1 January 2009 (s 2(1) and Gaz 158 of 19 December 2008)

Courts and Crimes Legislation Further Amendment Act 2008 No 107

8 December 2008

s 3 and Sch 5: 8 December 2008 (s 2)

Criminal Legislation Amendment Act 2009 No 27

19 May 2009

On assent (s 2)

NSW Trustee and Guardian Act 2009 No 49

26 June 2009

1 July 2009 (s 2 and SI 305 of 2009, LW 1 July 2009)

Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009 No 99

14 December 2009

22 February 2010 (s 2 and SI 41 of 2010, LW 19 February 2010)

Statute Law (Miscellaneous Provisions) Act (No 2) 2009 No 106

14 December 2009

Sch 2: 8 January 2010 (s 2(2))

Crimes Amendment (Police Pursuits) Act 2010 No 2

18 March 2010

On assent (s 2)

765

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Crimes

CRIMES ACT 1900

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Amending Legislation

Date of Assent

Date of Commencement

Crimes Amendment (Child Pornography and Abuse Material) Act 2010 No 9

28 April 2010

Sch 1: 17 September 2010 (s 2 and SI 517 of 2010)

Relationships Register Act 2010 No 19

19 May 2010

Sch 3: on assent (s 2(2))

Health Practitioner Regulation Amendment Act 2010 No 34

15 June 2010

Sch 2: 1 July 2010 (s 2(2))

Weapons and Firearms Legislation Amendment Act 2010 No 40

15 June 2010

9 July 2010 (s 2 and SI 351 of 2010, LW 9 July 2010)

Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010 No 48

28 June 2010

Sch 5: 1 October 2010 (s 2 and SI 532 of 2010, LW 17 September 2010)

Crimes Amendment (Terrorism) Act 2010 No 64

10 September 2010

10 September 2010

Firearms Legislation Amendment Act 2010 No 92

4 November 2010

Sch 3: 4 February 2011 (s 2(1))

Courts and Crimes Legislation Further Amendment Act 2010 No 135

7 December 2010

Sch 9: on assent (s 2)

Crimes Amendment (Murder of Police Officers) Act 2011 No 20

23 June 2011

23 June 2011 (s 2)

Statute Law (Miscellaneous Provisions) Act 2011 No 27

27 June 2011

Sch 3.5: 8 July 2011 (s 2(1))

Crimes Amendment (Consorting and Organised Crime) Act 2012 No 3

14 March 2012

Sch 1: 9 April 2012 (s 2 and SI 143 of 2012, LW 5 April 2012)

Crimes Amendment (Reckless Infliction of Harm) Act 2012 No 41

21 June 2012

21 June 2012 (s 2)

Statute Law (Miscellaneous Provisions) Act 2012 No 42

21 June 2012

Sch 1.5: 6 July 2012 (s 2(1))

Crimes Amendment (Cheating at Gambling) Act 2012 No 64

13 September 2012

13 September 2012 (s 2)

Crime Commission Act 2012 No 66

24 September 2012

Sch 5.1: 5 October 2012 (s 2 and SI 499 of 2012, LW 5 October 2012)

Crimes Legislation Amendment Act 2012 No 67

24 September 2012

24 September 2012 (s 2)

Road Transport Legislation (Repeal and Amendment) Act 2013 No 19

3 April 2013

1 July 2013 (s 2 and SI 329 of 2013, LW 28 June 2013)

Police Legislation Amendment (Special Constables) Act 2013 No 56

23 August 2013

1 December 2014 (s 2 and SI 750 of 2014, LW 28 November 2014)

Crimes Amendment (Terrorism) Act 2013 No 64

12 September 2013

12 September 2013 (s 2)

Crimes Legislation Amendment Act 2013 No 90

20 November 2013

20 November 2013 (s 2)

766

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Amending Legislation

Date of Assent

Date of Commencement

Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 No 2

31 January 2014

Sch 1: 31 January 2014 (s 2(1))

Crimes Amendment (Provocation) Act 2014 No 13

20 May 2014

13 June 2014 (s 2 and SI 354 of 2014, LW 13 June 2014)

Crimes Amendment (Female Genital Mutilation) Act 2014 No 15

20 May 2014

20 May 2014 (s 2)

Crimes Amendment (Strangulation) Act 2014 No 23

5 June 2014

5 June 2014 (s 2)

Crimes Legislation Amendment Act 2014 No 59

23 October 2014

23 October 2014 (s 2)

Crimes Legislation Amendment (Child Sex Offences) Act 2015 No 13

29 June 2015

29 June 2015 (s 2)

Crimes Amendment (Off-road Fatal Accidents) Act 2015 No 61

24 November 2015

24 November 2015 (s 2)

Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Act 2016 No 7

22 March 2016

Sch 2: 1 June 2016 (s 2 and SI 277 of 2016, LW 1 June 2016)

Criminal Legislation Amendment (Organised Crime and Public Safety) Act 2016 No 16

11 May 2016

Sch 2: 8 September 2016 (cl 2 and SI 577 of 2016, LW 8 September 2016)

Terrorism (Police Powers) Amendment (Investigative Detention) Act 2016 No 17

16 May 2016

16 May 2016 (s 2)

Justice Portfolio Legislation (Miscellaneous Amendments) Act 2016 No 54

25 October 2016

Sch 1.4: 25 October 2016 (s 2)

Statute Law (Miscellaneous Provisions) Act (No 2) 2016 No 55

25 October 2016

Sch 3.5: 6 January 2017 (s 2(1))

Law Enforcement Conduct Commission Act 2016 No 61

14 November 2016

Sch 6.7: 1 July 2017 (s 2(1) and SI 256 of 2017, LW 16 June 2017)

Independent Commission Against Corruption Amendment Act 2016 No 65

23 November 2016

Sch 3.1: 7 August 2017

Greyhound Racing Act 2017 No 13

11 April 2017

Sch 6.1: 3 July 2017 (s 2 and SI 295 of 2017, LW 30 June 2017)

Crimes Amendment (Intimate Images) Act 2017 No 29

27 June 2017

Sch 1: 25 August 2017

Justice Legislation Amendment Act 2017 No 40

14 August 2017

Sch 1.5: 14 August 2017 (s 2(1))

Justice Legislation Amendment Act (No 2) 2017 No 44

25 September 2017

Sch 1.4: 25 September 2017 (s 2(1))

767

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Crimes

CRIMES ACT 1900

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Amending Legislation

Date of Assent

Date of Commencement

Health Practitioner Regulation Amendment Act 2017 No 50

24 October 2017 (LW 1 December 2017)

Sch 5.5: 8 January 2018

Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 No 53

24 October 2017 (LW 21 September 2018)

Sch 4 item 4.9: 24 September 2018

Justice Legislation Amendment Act 2018 No 4

21 March 2018

Sch 1.4[1], [2]: 21 March 2018; Sch 1.4[3], [4]: 2 July 2018 (s 2(2))

Statute Law (Miscellaneous Provisions) Act 2018 No 25

15 June 2018

Sch 5 item 5.7: 29 June 2018 (s 2(1))

Miscellaneous Acts Amendment (Marriages) Act 2018 No 28

15 June 2018

Sch 1 item 1.12: 15 June 2018

Justice Legislation Amendment Act (No 2) 2018 No 29

21 June 2018

Sch 1 item 1.4; Sch 2 item 2.3: 21 June 2018 (s 2(1))

Crimes Amendment (Publicly Threatening and Inciting Violence) Act 2018 No 32

27 June 2018 (LW 10 August 2018)

Sch 1: 13 August 2018

Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 No 33

27 June 2018 (LW 30 November 2018)

Sch 1[1], [54]–[59], [62]: 31 August 2018; Sch 1[2]–[53], [60]–[61]: 1 December 2018

Victims Rights and Support Amendment (Statutory Review) Act 2018 No 34

27 June 2018 (LW 14 December 2018)

Sch 3 item 3.3: 14 January 2019

Paintball Act 2018 No 44

21 August 2018 (LW 28 June 2019)

Sch 2 item 2.2: 1 July 2019

Criminal Legislation Amendment (Consorting and Restricted Premises) Act 2018 No 50

5 October 2018 (LW 22 February 2019)

Sch 1: 28 February 2019

Emergency Services Legislation Amendment Act 2018 No 59

26 October 2018

Sch 5 item 5.1: 26 October 2018

Crimes Legislation Amendment Act 2018 No 83

28 November 2018

Sch 3 item 3.1: 1 December 2018

Justice Legislation Amendment Act (No 3) 2018 No 87

28 November 2018

Sch 1 item 1.8: 28 November 2018

Community Protection Legislation Amendment Act 2018 No 94

28 November 2018

Sch 2: 28 November 2018

Justice Legislation Amendment Act 2019 No 10

26 September 2019

Sch 1.6: 26 September 2019

Abortion Law Reform Act 2019 No 11

2 October 2019

Sch 2.1: 2 October 2019

768

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The Legislature of New South Wales enacts: An Act to consolidate the Statutes relating to Criminal Law. PART 1 — PRELIMINARY AND INTERPRETATION [Heading am Act 54 of 1998; s 3 and Sch 2.6, opn 30 June 1998]

[8-s 1] Name of Act 1

This Act is the Crimes Act 1900.

[s 1 subst Act 147 of 1997 s 3 and Sch 2.8, opn 17 Dec 1997] 2 [s 2 rep Act 38 of 2007 s 3 and Sch 2[1], opn 27 Sep 2007] Explanatory note: This section is now spent.

[8-s 3] Application of certain provisions of Act

[s 3 am Act 38 of 2007 s 3 and Sch 2[2], opn 27 Sep 2007] 3A–3B [s 3A–3B rep Act 43 of 2000 s 3 and Sch 1, opn 31 July 2000]

[8-s 4] Definitions 4 (1) In this Act, unless the context or subject-matter otherwise indicates or requires: Aircraft includes any machine that can derive support in the atmosphere from the reactions of the air. Armed, in relation to a weapon, or instrument, or an offensive weapon, or instrument, that is a dangerous weapon, includes bearing or having the immediate physical possession of the weapon, or instrument. [def insrt Act 84 of 1994 s 3 and Sch 1(2)]

Authorised officer has the same meaning as it has in the Criminal Procedure Act 1986. [def insrt Act 121 of 2001 s 4 and Sch 2.72[1], opn 7 July 2003]

Banker includes every director or manager of any banking company, whether incorporated or not, or of any branch thereof, and every person carrying on the business of a banker. Cattle includes any horse, mare, gelding, colt, foal, filly, ass, mule, bull, cow, ox, steer, heifer, calf, ram, ewe, sheep, lamb, pig, goat, deer, alpaca, llama, vicuna, camel, or dromedary, and every hybrid or cross thereof. Counsel [def rep Act 120 of 2006 s 3 and Sch 3.6[1], opn 4 Dec 2006]

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

769

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Crimes

3 The Parts and sections mentioned in Schedule 2, so far as their provisions can be applied, shall be in force with respect to all offences, whether at Common Law or by Statute, whensoever committed and in whatsoever Court tried.

[8-s 4]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s4

Dangerous weapon means: (a) a firearm, or an imitation firearm, within the meaning of the Firearms Act 1996, or (b) a prohibited weapon within the meaning of the Weapons Prohibition Act 1998, or (c) a spear gun. [def insrt Act 84 of 1994 s 3 and Sch 1(2); am Act 54 of 1998 s 3 and Sch 2.6, opn 30 June 1998; Act 127 of 1998 s 53 and Sch 3.2, opn 8 Feb 1999; Act 40 of 2010 Sch 3.8[1], opn 9 July 2010]

Document of title to goods includes every bill of lading, India warrant, dock warrant, warehousekeeper’s certificate, warrant, or order for the delivery or transfer of any goods or valuable thing, and every bought and sold note or document used in the ordinary course of business as proof of the possession or control of goods, or purporting to authorise by indorsement or delivery, the possessor of such document to transfer or receive any goods thereby represented or therein mentioned or referred to. Document of title to land includes every deed, certificate of title, map, paper, or parchment, written or printed, or partly written and partly printed, being or containing evidence of the title, or part of the title, to any real estate or to any interest in or out of real estate. Domestic violence offence [def rep Act 73 of 2006 s 3 and Sch 2[1], opn 12 Mar 2007]

Dwelling-house includes: (a) any building or other structure intended for occupation as a dwelling and capable of being so occupied, although it has never been so occupied, (b) a boat or vehicle in or on which any person resides, and (c) any building or other structure within the same curtilage as a dwelling-house, and occupied therewith or whose use is ancillary to the occupation of the dwelling-house. Governor means, except in respect of the exercise of the pardoning power, the Governor with the advice of the Executive Council. Grievous bodily harm includes: (a) the destruction (other than in the course of a medical procedure or a termination of a pregnancy in accordance with the Abortion Law Reform Act 2019) of the foetus of a pregnant woman, whether or not the woman suffers any other harm, and (b) any permanent or serious disfiguring of the person, and (c) any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease). [def subst Act 14 of 2005 s 2 and Sch 1, opn 20 May 2005; am Act 38 of 2007 s 3 and Sch 1[1], opn 15 Feb 2008; Act 11 of 2019 Sch 2.1[1], opn 2 Oct 2019]

Indictment includes any information presented or filed as provided by law for the prosecution of offences. Intoxicating substance includes alcohol or a narcotic drug or any other substance that affects a person’s senses or understanding. [def insrt Act 1 of 2008 s 3 and Sch 1, opn 28 Mar 2008]

770

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s4

CRIMES ACT 1900 (NSW) — PART 1

[8-s 4]

Intoxication has the same meaning it has in Part 11A. [def insrt Act 2 of 2014 Sch 1[1], opn 31 Jan 2014]

Judge — see Court. Justice [def rep Act 121 of 2001 s 4 and Sch 2.72[2], opn 7 July 2003]

Loaded arms means any gun, pistol, or other arms, loaded in the barrel or chamber or magazine with gunpowder or other explosive substance, and with ball, shot, slug, or other destructive material, although the attempt to discharge may fail from want of proper priming, or from any other cause; and every gun, pistol, or other arms, unlawfully presented at any person, shall be deemed to be loaded unless the contrary is shown. Member of the crew in relation to an aircraft means a person having functions or duties on board the aircraft. Minor indictable offence means an indictable offence that is not a serious indictable offence. Money includes all coined money, whether current within New South Wales or not, and all bank notes or instruments ordinarily so called, if current as such, and payable to the bearer. Night means the period of time commencing at nine of the clock in the evening of each day and concluding at six of the clock in the morning of the next succeeding day. Offensive weapon or instrument means: (a) a dangerous weapon, or (b) any thing that is made or adapted for offensive purposes, or (c) any thing that, in the circumstances, is used, intended for use or threatened to be used for offensive purposes, whether or not it is ordinarily used for offensive purposes or is capable of causing harm. [def subst Act 21 of 1999 s 3 and Sch 1[1], opn 1 Sep 1999]

Officer, in relation to a body corporate or public company, includes a person who has been appointed, or acts, as an auditor of the body corporate or public company. Person, Master, and Employer severally include any society, company, or corporation. Personal violence offence [def rep Act 73 of 2006 s 3 and Sch 2[1], opn 12 Mar 2007]

Place of Divine worship includes any building or structure ordinarily used for Divine worship. Prescribed sexual offence [def rep Act 94 of 1999 s 5 and Sch 3[8], opn 1 Jan 2000]

Prescribed sexual offence proceedings [def rep Act 94 of 1999 s 5 and Sch 3[8], opn 1 Jan 2000]

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Crimes

[def insrt Act 94 of 1999 s 5 and Sch 3[20], opn 1 Jan 2000]

[8-s 4]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s4

Property includes every description of real and personal property; money, valuable securities, debts, and legacies; and all deeds and instruments relating to, or evidencing the title or right to any property, or giving a right to recover or receive any money or goods; and includes not only property originally in the possession or under the control of any person, but also any property into or for which the same may have been converted or exchanged, and everything acquired by such conversion or exchange, whether immediately or otherwise. Property belonging to a vessel includes every portion of its cargo, and property belonging to any of the officers, crew, or passengers thereof. Public disorder means a riot or other civil disturbance that gives rise to a serious risk to public safety, whether at a single location or resulting from a series of incidents in the same or different locations. [def insrt Act 61 of 2006 s 3 and Sch 1[1], opn 15 Dec 2006]

Railway includes a tramway, and also includes all stations, buildings, structures and equipment belonging to or associated with a railway or tramway. [def subst Act 287 of 1987 s 3 and Sch 1(2)]

Serious indictable offence means an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more. [def insrt Act 94 of 1999 s 5 and Sch 3[20], opn 1 Jan 2000]

Trustee means a trustee on some express trust howsoever created, and includes the heir or personal representative of such trustee, and every other person upon whom the duty of such trust shall have devolved, and also any official manager, assignee, liquidator, or other like officer, acting under any Act relating to joint stock companies or to bankruptcy or insolvency and also an executor or administrator. Valuable security includes every order or other security whatsoever entitling or evidencing the title of any person to any share or interest in any public stock or fund, whether of any part of the British dominions or of any Foreign State, or in any fund of any body corporate, company, or society, whether within or without the British dominions, or to any deposit in any bank; and every debenture, deed, bond, bill, note, cheque, warrant, order, or security whatsoever for money, or for payment of money, whether current in any part of the British dominions or in any Foreign State, and every document of title to land or goods, as herein defined. Vessel [def rep Act 26 of 2006 s 3 and Sch 1[2], opn 1 Sep 2006]

Weapon and Weapon, or instrument [def rep Act 21 of 1999 s 3 and Sch 1[1], opn 1 Sep 1999]

Note. The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

(2) A dwelling-house does not cease to be a dwelling-house by reason only of being temporarily unoccupied. (3) [subs (3) rep Act 53 of 2000 s 3 and Sch 3.3, opn 29 June 2000] (4) In this Act, except in so far as the context or subject-matter otherwise indicates or requires, a reference to an offence mentioned in a specified provision of this Act that has

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s4

CRIMES ACT 1900 (NSW) — PART 1

[8-s 4.5]

been amended or repealed is, or includes, a reference to an offence mentioned in the provision as in force before the amendment or repeal. (5) [subs (5) rep Act 121 of 2001 s 4 and Sch 2.72[3], opn 7 July 2003] (6) [subs rep Act 73 of 2006 s 3 and Sch 2[2], opn 12 Mar 2007] (7) A reference in any offence under this Act to causing any poison, intoxicating substance or other destructive or noxious thing to be administered to or taken by any person includes a reference to causing any person to inhale, take or be exposed to the poison, intoxicating substance or thing by its release into the person’s environment. [subs (7) insrt Act 48 of 2004 s 3 and Sch 1[1], opn 12 Nov 2004; am Act 1 of 2008 s 3 and Sch 1, opn 28 Mar 2008]

(7A) In any provision of this Act where a reference to a firearm means a firearm within the meaning of the Firearms Act 1996, that reference is taken to include a paintball marker within the meaning of the Paintball Act 2018 and consequently, being authorised under that Act to possess a paintball marker satisfies any requirement in this Act that possession of the paintball marker be authorised under the Firearms Act 1996. [subs (7A) insrt Act 44 of 2018 Sch 2 item 2.2, opn 1 July 2019]

(8) Notes included in this Act do not form part of this Act. COMMENTARY ON SECTION 4 Grievous bodily harm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Offensive weapon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dangerous weapon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dwelling house . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 4.1] [8-s 4.5] [8-s 4.10] [8-s 4.15] [8-s 4.20]

[8-s 4.1] Grievous bodily harm Section 4(1) provides that “grievous bodily harm” includes any permanent or serious disfiguring of the person. Grievous bodily harm requires that the injury be a really serious one, but does not require that the injury be permanent or that the consequences of the injury are long lasting or life threatening: Haoui v R [2008] NSWCCA 209; BC200807970; (2008) 15 Crim LN 114 [2443]. “Grievous bodily harm” in s 4(1) includes the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any other harm (see R v King (2003) 59 NSWLR 472; 139 A Crim R 132; [2003] NSWCCA 399; BC200308056; (2003) 11 Crim LN 93 [1626]) and any grievous bodily disease. There is a discussion of the extent of injuries that may amount to grievous bodily harm in Swan v R [2016] NSWCCA 79; BC201603252; 23(6) Crim LN [3693] where the court concluded that the jury’s finding that the victim’s injuries amounted to grievous bodily harm was unreasonable. The injury was fracture of a bone which was part of a lumbar vertebrae. Although such an injury could amount to grievous bodily harm, it did not in the present case for the reasons given by the court. The expression includes a disease such as HIV: Aubrey v R (2017) 343 ALR 538; 91 ALJR 601; [2017] HCA 18; BC201703306; 24(5) Crim LN [3828] where R v Clarence [1886–90] All ER Rep 133; (1888) 53 JP 149; 58 LJMC 10; 22 QBD 23 was not followed. [8-s 4.5] Offensive weapon Any instrument, however innocent in its ordinary use, may be an offensive weapon if brought out for offensive uses, and it is a question for the jury as to whether under the particular circumstance such a weapon or instrument is to be used for the purpose of an offence: R v Sutton (1877) 13 Cox CC 648; see also Considine v Kirkpatrick [1971] SASR 73 applied in R v Hamilton (1993) 66 A Crim R 575; 10 Petty SR 4551 where a motor vehicle was held to be an offensive weapon for the purposes of s 33B. In Harkins v R [2015] NSWCCA 263; BC201509456; 22(11) Crim LN [3610] a motor vehicle used to break the grip of a police officer to permit the accused to escape was held to be an “offensive weapon” within the definition.

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Crimes

[subs (8) insrt Act 73 of 2006 s 3 and Sch 2[3], opn 12 Mar 2007]

[8-s 4.10]

s4

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

[8-s 4.10] Property What is property for the purposes of theft was discussed in Parsons v R (1999) 195 CLR 619; 160 ALR 531; [1999] HCA 1; BC9900183; (1999) 6 Crim LN 5 [948]. [8-s 4.15] Dangerous weapon

A firearm within the meaning of the Firearms Act s 4 means:

a gun, or other weapon, that is (or at any time was) capable of propelling a projectile by means of an explosive and includes a blank fire firearm, or an air gun, but does not include anything declared by the regulations not to be a firearm. [8-s 4.20] Dwelling house The meaning of “dwelling house” was considered in Nassr v R [2015] NSWCCA 284; BC201511144; (2016) 23 Crim LN 9 [3627] where it was held that the term did not include the yard of the property. The term “dwelling house” does not extend to the whole of the structure in which a single unit is found, such as to encompass another unit or units — the term “dwelling house” cannot be made to include an entirely separate dwelling, albeit one within the same large structure: R v Tahau [1975] 1 NSWLR 479. In Director of Public Prosecutions (DPP) v Williams [2018] NSWSC 1832; BC201811523, the meaning of the terms “dwelling house” and “curtilage” were considered with the court determining that the secure underground car park of an apartment complex was within the same curtilage as the victim’s dwelling as it was clearly occupied by him, and ancillary to the occupation of the dwelling.

[8-s 4A] Recklessness 4A For the purposes of this Act, if an element of an offence is recklessness, that element may also be established by proof of intention or knowledge. [s 4 insrt Act 57 of 2007 s 3 and Sch 3[1], opn 15 Nov 2007]

COMMENTARY ON SECTION 4A Recklessness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 4A.5]

[8-s 4A.5] Recklessness The Act does not define recklessness. Under the repealed provision defining malice in s 5, recklessness was held to be a realisation on the part of the accused “that the particular kind of harm in fact done (that is some physical harm — but not necessarily the degree of harm in fact done) might be inflicted”: R v Coleman (1990) 19 NSWLR 467; 47 A Crim R 306. However, this concept of recklessness is no longer the law in relation to an offence of recklessly causing or inflicting a particular harm upon a person, such as in s 35(2) of the Act. In Blackwell v R [2011] NSWCCA 93; BC201102296; 18(5) Crim LN 72 [2901] it was held that a person is reckless to the infliction of grievous bodily harm where that person foresaw the possibility of the infliction of grievous bodily harm as a result of his or her act and yet went on to commit that act. The law as expressed in Coleman, above, would no longer seem to have any application under the Act. However, certain sections have been amended to bring about the effect of Coleman, such that a person is reckless as to the infliction of grievous bodily harm if the person foresees the possibility of the infliction of actual bodily harm, see for example [8-s 35]. The new offences commenced from 21 June 2012.

[8-s 4B] Dishonesty 4B (1) In this Act: dishonest means dishonest according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people.

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s7

CRIMES ACT 1900 (NSW) — PART 1

[8-s 7.1]

(2) In a prosecution for an offence, dishonesty is a matter for the trier of fact. [s 4B insrt Act 99 of 2009 Sch 1, opn 22 Feb 2010]

COMMENTARY ON SECTION 4B Directions to jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 4B.5]

[8-s 4B.5] Directions to jury The appropriate directions to be given to a jury on the subject of dishonesty were considered in Krecichwost v R (2012) 88 ACSR 339; [2012] NSWCCA 101; BC201203594; 19(8) Crim LN [3107] where it was stressed that what factual matters the jury were to take into account and their importance depended upon the facts of the particular matter and there is no prescription of relevant matters to be addressed. In that case it was held to be sufficient that the trial judge addressed the issues relied upon by defence counsel at the trial and it did not matter that in another case other factors were relied upon or held to be relevant.

5–6 [s 5 rep Act 38 of 2007 s 3 and Sch 1[2], opn 15 Feb 2008] [s 6 rep Act 38 of 2007 s 3 and Sch 2[3], opn 27 Sep 2007] 7 Where by this or any other Act the unlawful receiving of any property, or its possession without lawful cause or excuse, is expressed to be an offence, every person shall be deemed to have such property in his or her possession within the meaning of such Act who: (a) has any such property in his or her custody, or (b) knowingly has any such property in the custody of another person, or (c) knowingly has any such property in a house, building, lodging, apartment, field, or other place, whether belonging to or occupied by himself or herself or not, and whether such property is there had or placed for his or her own use, or the use of another. [s 7 am Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998; am Act 94 of 1999 s 5 and Sch 3[21], opn 1 Jan 2000]

COMMENTARY ON SECTION 7 Possession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 7.1]

[8-s 7.1] Possession “In the ordinary use of the word ‘possession’, one has in one’s possession whatever is, to one’s knowledge, physically in one’s custody or under one’s physical control”: Director of Public Prosecutions v Brooks [1974] 2 WLR 899; [1974] AC 862 at AC 866. Actual possession is where the person has present physical custody of the property or has it in such a place that he alone (or any person acting in concert with him) has the right or power to place his hands upon it and take custody of it: Moors v Burke (1919) 26 CLR 265 at 274; R v Dib (1991) 52 A Crim R 64. The fact that the accused cannot gain immediate custody does not mean that he is not in possession: Williams v Douglas (1949) 78 CLR 521; R v Grooms (NSWCCA, 9 October 1989, unreported), but cf R v Abbrederis (1981) 36 ALR 109; [1981] 1 NSWLR 530 where the accused was deprived of possession by the police even though they were unaware of the relevant item. Constructive possession is where the person does not have actual possession, but has the legal right to take possession whenever the person wishes to do so, such as an employer leaving property in the custody of an employee or a person sending goods by rail: R v Rogers (1868) 1 LR 136. For the purposes of the criminal law the accused must know of the existence of the property and intend to exercise physical control over it: He Kaw Teh v R (1985) 157 CLR 523; 60 ALR 449. It is necessary that the accused intends to exercise control over the item “to the exclusion of others not acting in concert with him”: Moors v Burke, above at 274.

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Crimes

[8-s 7] “Possession” when criminal

[8-s 7.1]

s7

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Where there are other persons who could have possession of the property independently of the accused, the Crown must negative the possibility that they were in possession and not the accused: R v Filippetti (1978) 13 A Crim R 335. If the Crown is alleging joint possession, it must prove that each of the accused intended to exercise exclusive control of the property against persons not jointly in possession: R v Dib (1991) 52 A Crim R 64; R v Kayrouz (NSWCCA, 6 July 1979, unreported). See further at [10-10,155.40]. As to states of mind being less than full knowledge of the property alleged to be in possession, see Kural v R (1987) 162 CLR 502; 70 ALR 658; Saad v R (1987) 70 ALR 667; 61 ALJR 243; 29 A Crim R 20 and Pereira v DPP (1988) 82 ALR 217; 35 A Crim R 382; (1989) 63 ALJR 1 at [10-10,155.15]. In Pereira it was stated that a combination of suspicious circumstances and a failure to make inquiry may lead to an inference of knowledge of the actual or likely existence of the property. See also R v Schipanski (1989) 17 NSWLR 618. A belief, which if true would establish the necessary state of mind, will, if that belief is shown to be true by other evidence, be sufficient to amount to the requisite knowledge: R v Baird (1985) 3 NSWLR 331. It has been held in England that a person who had possession but forgets about the item or mistakenly believes that he has no longer the item in possession can still be guilty of possession in respect of the item: R v Buswell [1972] 1 All ER 75; R v Martindale [1986] 3 All ER 31. It is possible to attempt to obtain possession: R v Beckwith [1976] 1 NSWLR 511, and Beckwith v R (1976) 135 CLR 569; 12 ALR 333; 51 ALJR 247. As to possession generally and in relation to drug offences see at [10-10,155.5]–[10-10,155.40].

[8-s 8] “Public place” etc 8 Where, by this or any other Act, or by any rule, regulation, ordinance or by-law, duly made under or by virtue of the provisions of any Act, any offence, conduct, or language, in a public place, or open and public place, or place of public resort, is made punishable, or a person guilty thereof is made liable to apprehension, the place shall be deemed public for the purposes of the enactment or taken to be otherwise within the meaning if the same, although a vessel or vehicle only, or a room, or field, or place, ordinarily private, was at the time used for a public purpose, or as a place of common resort, or was open to the public on the payment of money or otherwise. [s 8 am Act 10 of 1924 s 4] 9–10 [ss 9–10 rep Act 94 of 1999 s 5 and Sch 3[22], opn 1 Jan 2000]

PART 1A — GEOGRAPHICAL JURISDICTION [Pt 1A insrt Act 43 of 2000 Sch 1[3], opn 31 July 2000]

[8-s 10A] Application and effect of Part 10A (1) This Part applies to all offences. (2) This Part extends, beyond the territorial limits of the State, the application of a law of the State that creates an offence if there is the nexus required by this Part between the State and the offence. (3) If the law that creates an offence makes provision with respect to any geographical consideration concerning the offence, that provision prevails over any inconsistent provision of this Part. (4) This Part is in addition to and does not derogate from any other basis on which the courts of the State may exercise criminal jurisdiction. COMMENTARY ON SECTION 10A Commencement of Part 1A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[8-s 10A.1]

s 10D

CRIMES ACT 1900 (NSW) — PART 1A

Crimes at sea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope of Part 1A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 10D] [8-s 10A.5] [8-s 10A.10]

[8-s 10A.1] Commencement of Part 1A Part 1A (ss 10A–10E) Crimes Act 1900 does not apply with respect to any act or omission occurring before the commencement of Pt 1A on 31 July 2000: Pt 17 Sch 11 Crimes Act at [8-Sch 11]. [8-s 10A.5] Crimes at sea See the Crimes at Sea Act 1998 at [29-920] and following concerning the application of State criminal law extraterritorially in the areas adjacent to the coast of Australia. [8-s 10A.10] Scope of Part 1A The scope and operation of Pt 1A has been considered in Director General NSW Dept of Agriculture v Temmingh [2003] NSWSC 247; BC200301726 at 34–40 and Weston v Cmr of Police, Qld [2004] 1 Qd R 103; [2003] QSC 174; BC200303057 at 14–23.

10B (1) For the purposes of this Part, the necessary geographical nexus is the geographical nexus required by section 10C. (2) For the purposes of this Part, the place in which an offence is committed is the place in which the physical elements of the offence occur. (3) For the purposes of this Part, the place in which an offence has an effect includes: (a) any place whose peace, order or good government is threatened by the offence, and (b) any place in which the offence would have an effect (or would cause such a threat) if the criminal activity concerned were carried out. (4) A reference in this Part to the State includes a reference to the coastal waters of the State in which the criminal law of the State applies (including in any part of the adjacent area of the State in which the substantive criminal law of the State applies by force of the law of the State or of the Commonwealth in accordance with the Crimes at Sea Act 1998).

[8-s 10C] Extension of offences if there is a geographical nexus 10C (1) If: (a) all elements necessary to constitute an offence against a law of the State exist (disregarding geographical considerations), and (b) a geographical nexus exists between the State and the offence, the person alleged to have committed the offence is guilty of an offence against that law. (2) A geographical nexus exists between the State and an offence if: (a) the offence is committed wholly or partly in the State (whether or not the offence has any effect in the State), or (b) the offence is committed wholly outside the State, but the offence has an effect in the State.

[8-s 10D] Provisions relating to double criminality 10D (1) This Part applies to an offence that is committed partly in the State and partly in another place outside the State, irrespective of whether it is also an offence in that other place.

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Crimes

[8-s 10B] Interpretation

[8-s 10D]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 10D

(2) This Part applies to an offence that is committed wholly in a place outside the State only if: (a) it is also an offence in that place, or (b) it is not also an offence in that place, but the trier of fact is satisfied that the offence constitutes such a threat to the peace, order or good government of the State that the offence warrants criminal punishment in the State.

[8-s 10E] Procedural and other provisions 10E (1) The existence of the necessary geographical nexus for an offence is to be presumed and the presumption is conclusive unless rebutted under subsection (2). (2) If a person charged with an offence disputes the existence of the necessary geographical nexus, the court is to proceed with the trial of the offence in the usual way. If, at the conclusion of the trial, the trier of fact is satisfied on the balance of probabilities that the necessary geographical nexus does not exist, it must (subject to subsection (3)) make or return a finding to that effect and the charge is to be dismissed. (3) If the trier of fact would, disregarding any geographical considerations, find the person not guilty of the offence, it must make or return a finding of not guilty. The trier of fact must make or return a finding of not guilty on the grounds of mental illness in any such case if they were the only grounds on which the trier of fact would have found the person not guilty of the offence. (4) This section also applies to any alternative verdict available by law to the trier of fact in respect of another offence with which the person was not charged. A finding of guilt may be made or returned in any such case, unless the trier of fact is satisfied on the balance of probabilities that the necessary geographical nexus for that other offence does not exist. (5) The issue of whether the necessary geographical nexus exists must, if raised before the trial, be reserved for consideration at the trial. (6) A power or authority exercisable on reasonable suspicion or belief that an offence has been committed may be exercised in the State if the person in whom the power or authority is vested suspects on reasonable grounds or believes that the elements necessary to constitute the offence exist (whether or not the person suspects or believes or has any ground to suspect or believe that the necessary geographical nexus with the State exists). COMMENTARY ON SECTION 10E Validity of s 10E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 10E.1]

[8-s 10E.1] Validity of s 10E A challenge to the validity of s 10E was rejected in Weston v Cmr of Police, Qld [2004] 1 Qd R 103; [2003] QSC 174; BC200303057 at 17–22.

[8-s 10F] Special jurisdiction

provisions

with

respect

to

geographical

10F (1) This section applies for the purposes of, but without limiting, this Part. (2) The necessary geographical nexus exists between the State and any of the following offences if the offence is committed by a public official (within the meaning of the Independent Commission Against Corruption Act 1988) and involves public money of the State or property held by the public official for or on behalf of the State:

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s 12

CRIMES ACT 1900 (NSW) — PART 2

[8-s 12.1]

(a) larceny or any offence that includes larceny, (b) fraud or any other offence under Part 4AA. (3) The necessary geographical nexus exists between the State and an offence against section 45 or 45A if the person against whom the offence is committed is a person ordinarily resident in the State. [subs (3) insrt Act 15 of 2014 Sch 1[1], opn 20 May 2014] [s 10F insrt Act 99 of 2009 Sch 1, opn 22 Feb 2010]

PART 2 — OFFENCES AGAINST THE SOVEREIGN [heading before s 11 rep Act 94 of 1999 s 5 and Sch 3[23], opn 1 Jan 2000]

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

[8-s 12] Compassing etc deposition of the Sovereign — overawing Parliament etc 12 Whosoever, within New South Wales or without, compasses, imagines, invents, devises, or intends to deprive or depose Our Most Gracious Lady the Queen, her heirs or successors, from the style, honour, or Royal name of the Imperial Crown of the United Kingdom, or of any other of Her Majesty’s dominions and countries, or to levy war against Her Majesty, her heirs or successors, within any part of the United Kingdom, or any other of Her Majesty’s dominions, in order, by force or constraint, to compel her or them to change her or their measures or counsels, or in order to put any force or constraint upon, or in order to intimidate or overawe, both Houses or either House of the Parliament of the United Kingdom, or the Parliament of New South Wales, or to move or stir any foreigner or stranger with force to invade the United Kingdom, or any other of Her Majesty’s dominions, or countries under the obeisance of Her Majesty, her heirs or successors, and expresses, utters, or declares such compassings, imaginations, inventions, devices, or intentions, or any of them, by publishing any printing or writing, or by open and advised speaking, or by any overt act or deed, shall be liable to imprisonment for 25 years. [s 12 am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000]

COMMENTARY ON SECTION 12 Treason and related offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 12.1]

[8-s 12.1] Treason and related offences There are provisions concerning the prosecution for treason and related offences in Pt 2 of Sch 3 of the Criminal Procedure Act which have effect by

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Crimes

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

[8-s 12.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 12

reason of s 316 of that Act, see at [2-Sch 3]. A person tried for treason is to be tried according to the procedures and practices on a trial for murder: cl 6.

13–15

[ss 13–15 rep Act 94 of 1999 s 5 and Sch 3[9], opn 1 Jan 2000]

Editor’s note: Sections 13–15 were repealed by s 5 and Sch 3 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. Section 13 was transferred to the Criminal Procedure Act 1986: see Sch 3 cl 3 at [2-5520]. Section 14 was transferred to the Criminal Procedure Act 1986: see Sch 3 cl 4 at [2- 5520]. Section 15 was transferred to the Criminal Procedure Act 1986: see Sch 3 cl 5 at [2-5520].

[8-s 16] Nothing herein to affect 25 Ed III, c 2 16 Nothing contained in this Part shall lessen the force of, or in any matter affect, anything enacted by the Statute passed in the twenty-fifth year of King Edward the Third “A declaration which offences shall be adjudged Treason”. 16A [s 16A rep Act 94 of 1999 s 5 and Sch 3[9], opn 1 Jan 2000] Editor’s note: Section 16A was repealed by s 5 and Sch 3 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. The section was transferred to the Criminal Procedure Act 1986: see Sch 3 cl 6 at [2-5520].

PART 3 — OFFENCES AGAINST THE PERSON DIVISION 1 — HOMICIDE [Div heading insrt Act 53 of 2000 s 3 and Sch 3.3, opn 29 June 2000]

17

[s 17 rep Act 31 of 1951 s 2]

[8-s 17A] Date of death 17A (1) The rule of law that it is conclusively presumed that an injury was not the cause of death of a person if the person died after the expiration of the period of a year and a day after the date on which the person received the injury is abrogated. (2) This section does not apply in respect of an injury received before the commencement of this section. [s 17A insrt Act 101 of 1990 s 3 and Sch 1, opn 17 Mar 1991]

[8-s 18] Murder and manslaughter defined 18 (1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years. (b) Every other punishable homicide shall be taken to be manslaughter. [subs (1) am Act 218 of 1989 s 3 and Sch 1(2); Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998; am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000]

(2) (a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section.

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s 18

[8-s 18.1]

CRIMES ACT 1900 (NSW) — PART 3

(b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only. [subs (2) am Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998; Act 116 of 2001 s 3 and Sch 1[1], opn 22 Feb 2002] Editor’s note: For proof material on s 18, see [27-15,100] behind the “27 — Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 18

MURDER

MANSLAUGHTER Manslaughter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Involuntary manslaughter by gross negligence . . . . . . . . . . . . . . . . . . Involuntary manslaughter by unlawful and dangerous act . . . . . . . . Involuntary manslaughter by an assault with the intention to injure . Verdict of manslaughter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Fact of death . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Attempt murder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . MURDER Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alternative verdicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Manslaughter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dangerous driving occasioning death . . . . . . . . . . . . . . . . . . . . . . . . Dangerous navigation occasioning death . . . . . . . . . . . . . . . . . . . . . Infanticide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Special findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Verdict of contributing to death . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Verdict of concealment of birth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Other relevant provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . MANSLAUGHTER Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence of involuntary manslaughter . . . . . . . . . . . . . Elements of offence of voluntary manslaughter . . . . . . . . . . . . . . . Alternative verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dangerous driving occasioning death . . . . . . . . . . . . . . . . . . . . . . . . Dangerous navigation occasioning death . . . . . . . . . . . . . . . . . . . . . Special findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Verdict of concealment of birth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Other relevant provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 18.1] [8-s 18.5] [8-s 18.10] [8-s 18.15] [8-s 18.20] [8-s 18.25] [8-s 18.27] [8-s 18.30] [8-s [8-s [8-s [8-s [8-s [8-s [8-s [8-s

18.40] 18.50] 18.55] 18.60] 18.62] 18.65] 18.70] 18.75]

[8-s 18.80] [8-s 18.85] [8-s 18.90] [8-s 18.95] [8-s 18.100] [8-s 18.105] [8-s 18.110] [8-s 18.115] [8-s 18.120] [8-s 18.125] [8-s 18.130] [8-s [8-s [8-s [8-s [8-s [8-s [8-s [8-s [8-s [8-s

18.135] 18.140] 18.145] 18.150] 18.155] 18.160] 18.165] 18.170] 18.175] 18.180]

MURDER [8-s 18.1] Mens rea of murder Murder is committed under the section where the accused does an act causing death with (a) reckless indifference to human life, (b) an intention to kill or do grievous bodily harm or (c) with the necessary mental state for an offence which carries a maximum penalty of 25 years penal servitude.

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Crimes

Mens rea of murder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Reckless indifference to human life . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intention to kill or cause grievous bodily harm . . . . . . . . . . . . . . . . . . Act or omission causing death . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Constructive murder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Murder reduced to voluntary manslaughter . . . . . . . . . . . . . . . . . . . . . Self defence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 18.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 18

The definition in s 18 was to overcome the common law concept of malice aforethought: R v Downs (1985) 3 NSWLR 312; R v Coleman (1990) 19 NSWLR 467; 47 A Crim R 306. If the Crown proves any of the states of mind referred to in the section, then s 18(2) has no part to play, and is only relevant to felony murder: R v Coleman, above at 474. In relation to murder the definition of malice has been described as “mere question-begging”: Mraz v R (1955) 93 CLR 493; [1955] ALR 929; BC5500200 discussed in R v Coleman, above. The relationship between s 5 and s 18 and the requirement of malice in murder was considered in Royall v R (1991) 172 CLR 378; 100 ALR 669; BC9102607. The necessary mental state must exist at the time of the act or acts of the accused that caused the death of the victim: Royall v R, above, and therefore it is necessary for the trial judge to isolate the act relied upon: Ryan v R (1967) 121 CLR 205; [1967] ALR 577; BC6700220; Royall at 385, 401. The act can be part of a single transaction and it does not matter that the necessary intention was not present when every act was committed: R v Thabo Meli [1954] 1 WLR 228; R v Church [1966] 1 QB 59. In R v Ramsay [1967] NZLR 1005 the distinction was drawn in such a case between intention and knowledge of the likelihood of death. The meaning of “malice” in s 18(2)(a) was considered in R v IL [2016] NSWCCA 51; BC201602329; 23(4) Crim LN [3665]. It was held that the word had the same meaning as had the word “maliciously” in s 5 of the Crimes Act before it was repealed. That meaning was preserved by Sch 5 cl 65 of the Crimes Act. The decision examines the meaning of the word under s 5. In IL v R (2017) 345 ALR 375; 91 ALJR 764; [2017] HCA 27; BC201706044 Bell and Nettle JJ considered the concept of malice in s 18 and applied the statement in Aubrey v R (2017) 343 ALR 538; 91 ALJR 601; [2017] HCA 18; BC201703306 at [46] that “the effect of s 18(1) is to replace the common law concept of malice aforethought with a list of matters that would previously have established malice aforethought; and, consequently, that in a case in which the Crown is able to prove an act of the kind described in s 18(1), s 18(2)(a) (which excludes from the definition in s 18(1) any act or omission which was not malicious) has no role to play”. [8-s 18.5] Reckless indifference to human life At common law a person who does an act foreseeing that it is probable (as distinct from possible) that death will result from that act is guilty of murder where death results: Crabbe v R (1985) 156 CLR 464; 58 ALR 417; BC8501130. Reckless indifference under the section has been held to be the same as reckless indifference at common law: Royall v R (1991) 172 CLR 378; 100 ALR 669; BC9102607 approving Annakin v R (1988) 17 NSWLR 202; 37 A Crim R 131; BC8801294, although (unlike common law) it is not sufficient, under the section, that only grievous bodily harm is foreseen by the accused as a probable consequence of his conduct: R v Solomon [1980] 1 NSWLR 321. An awareness or foresight of the consequences of the act on the part of the accused is therefore essential and it is not sufficient that an ordinary or reasonable person would have foreseen such a consequence, although that fact may be relevant to infer the actual state of mind of the accused: Pemble v R (1971) 124 CLR 107; [1971] ALR 762; BC7100090. “Likely” and “probably” are synonymous and mean “a real and not remote chance”, but it is not necessary that the probability be more than 50% or more likely than not, and such terms ought not to be used when instructing a jury: Boughey v R (1986) 161 CLR 10; 65 ALR 609; BC8601432. However, a direction that it was sufficient if the accused foresaw that their acts “might well cause death” was not correct by itself: Annakin v R, above. A direction on recklessness should not be given unless there is material to warrant such a direction: La Fontaine v R (1976) 136 CLR 62 at 69; 11 ALR 307; BC7600094. It has been said that it is not sufficient to refer the jury merely to “recklessness” or “reckless indifference” to alert them to the necessary state of mind of the accused: Pemble v R, above at 120, La Fontaine v R, above at 77; Tumanako v R (1992) 64 A Crim R 149; (1993) 17 Crim LJ 110 where there was overwhelming evidence of intent.

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s 18

CRIMES ACT 1900 (NSW) — PART 3

[8-s 18.15]

Murder by reckless indifference to human life is an offence of specific intent and, therefore, evidence of self-induced intoxication is relevant to the state of mind of the accused: R v Grant (2002) 55 NSWLR 80; 131 A Crim R 510; [2002] NSWCCA 243; BC200203711; (2002) 9 Crim LN 56 [1448].

[8-s 18.15] Act or omission causing death The act causing death must be committed by a person other than the deceased as the section is not engaged where the deceased brings about his or her own death: IL v R [2017] HCA 27; BC201706044; 24(8) Crim LN [3866]. The accused was charged with murder arising from her involvement in a joint criminal enterprise with the deceased to manufacture drugs but the Crown could not prove which of the two committed the act that led to the death of the deceased. A similar situation arose in Moussa v R [2017] NSWCCA 237; BC201708243; 24(11) Crim LN [3912] where the deceased was party to a joint criminal exercise with the accused to intentionally set fire to a house. The conviction of the accused for the unlawful and dangerous act of manslaughter of the deceased, who died in starting the fire, was quashed. It is not necessary for the Crown to establish the precise cause of death for the offence of murder: R v PL (2009) 261 ALR 365; [2009] NSWCCA 256; BC200909170; (2009) 16 Crim LN 156 [2642]. It is for the jury to determine what act or acts were done by the accused and whether they or any of them caused death, so that the question of whether a reflex or automatic motor action is a voluntary or unwilled act is a question for the jury: Murray v R (2002) 211 CLR 193; 189 ALR 40; [2002] HCA 26; BC200203273; (2002) 9 Crim LN 53 [1444], applying Ryan v R (1967) 121 CLR 205; [1967] ALR 577; BC6700220. It was held that it was open to a jury to find that the discharge of a firearm was a voluntary act of the accused in circumstances where he had knowingly presented a loaded weapon in the direction of the victim. In that case it was held that the act causing death, which was the discharge of a loaded shot gun, was not a single act but a composite set of movements, most, if not all, being voluntary or willed. As to the situation in relation to the stabbing of the deceased in a fight see Ugle v R (2002) 211 CLR 171; 189 ALR 22; [2002] HCA 25; BC200203272, where it was held that the trial judge should give directions to the jury on a voluntary act of the accused before directions on intent or self-defence where the issue of voluntariness arises. If a question of causation arises, the matter must be fully explained to the jury and the acts relied upon by the Crown as causing the death of the victim identified: Royall v R (1991) 172 CLR 378; 100 ALR 669; BC9102607. This is particularly so where the question arises as to the contemporaneity of the act and the mental state of the accused: White v Ridley (1978) 140 CLR 342 at 359; 21 ALR 661 at 675; BC7800071, see [8-s 18.1]. It is unnecessary that the jury identify a single act causing death as there may be more than one: R v Butcher [1986] VR 43; (1985) 16 A Crim R 1.

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Crimes

[8-s 18.10] Intention to kill or cause grievous bodily harm As to intention, generally see [6-500]. Where there is an intention to kill some person, it does not matter that some other person is killed other than the person intended: R v Supple (1870) 1 VR 151. The definition in the section does not require that there be an intent to kill or inflict harm upon the person actually killed: Royall v R (1991) 172 CLR 378 at 393, 401; 100 ALR 669; BC9102607. As to “grievous bodily harm” see [8-s 4.1]. It is unnecessary for the prosecution to prove that the accused intended to cause the death or the injury in a particular way. The fact that death or injury occurred in a way unintended or unexpected by the accused is irrelevant except as to the question of causation: Royall v R (1991) 172 CLR 378 at 391, 400, 411; 100 ALR 669; BC9102607. The evidence of a mental disorder of the accused may be relevant to the question whether the accused had the necessary mental element for the crime of murder notwithstanding that the accused intends to rely upon a defence of substantial mental impairment: R v Gosling [2002] NSWCCA 351; BC200205009; R v Toki [2003] NSWCCA 125; BC200302309 (2003) 10 Crim LN 36 [1549].

[8-s 18.15]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 18

A person causes the death of another where that person does an act which substantially contributes to the death of the deceased and that person may be guilty of murder notwithstanding that the immediate cause of death is the act of another person or even the deceased’s own act: Gaudron and Gummow JJ in Osland v R (1998) 197 CLR 316; 159 ALR 170 at 174; [1998] HCA 75; BC9806597; (1999) 6 Crim LN 1 [941]. Where a person is acting as part of a joint criminal enterprise with another or others, that person will be liable for the act or acts committed by any other person who is part of that agreement or understanding and can be convicted of murder even though the person who committed the acts which resulted in the death of the deceased is convicted of manslaughter or acquitted: Osland v R, above per McHugh J. The question of whether the accused caused the death of the deceased is a matter for the common sense of the jury, appreciating that they are deciding legal responsibility in a criminal matter: Royall v R, above approving Campbell v R (1980) 2 A Crim R 157. The various legal tests for determining causation are discussed in Royall v R, particularly in the judgment of McHugh J (at CLR 441–51) and they are: (a) the operating and substantial cause test Where the wound inflicted by the accused is an operating and substantial cause of the accused’s death, the death is a result of the wound, notwithstanding some other cause of death is operating: R v Smith [1959] 2 QB 35, applied in R v Evans and Gardiner (No 2) [1976] VR 523; R v Hallett [1969] SASR 141. The accused’s act must be more than a “de minimis” cause of death: R v Hennigan [1971] 3 All ER 133; R v Cato [1976] 1 All ER 260; 1 WLR 110; (b) the natural consequence test Where the action of the victim resulting in death was the natural consequence of the accused’s conduct, he could be said to have caused the death: R v Beech (1912) 7 Cr App R 197; (c) the reasonable foresight of consequence test Where the actions of the victim leading to death were a reasonably foreseeable consequence of what the accused said and did, the accused has caused the death: R v Roberts (1971) 56 Cr App R 95; Director of Public Prosecutions v Daley [1980] AC 237. (d) the novus actus interveniens test Although the act of the accused may have been a necessary condition for the death of the victim, the accused will not be legally responsible where the unexpected intervention of a third person, or the occurrence of an event can be regarded as the sole cause of death so that the causal chain has been broken: R v Pagett (1983) 76 Cr App R 279, where the police shot a person placed by the accused as a shield and it was held that the police action was not a novus actus. Where the accused left the victim unconscious on the seashore and he drowned when the tide came in, the act of the accused still caused the death: R v Hallett [1969] SASR 141. Nor was the refusal of a person to have a blood transfusion because of medical beliefs: R v Blaue [1975] 1 WLR 1411, or where the victim left hospital contrary to medical advice: R v Bingapore (1975) 11 SASR 469, an intervening act sufficient to relieve the accused of liability for the death. The accused will have caused the death of the victim, where the victim has been placed on a life support system as a result of the injuries sustained and the system is later disconnected by doctors: R v Kinash (1981) 5 A Crim R 240 applying the substantial cause test above, see also R v Malcherech [1981] 1 WLR 690. The same principle has been applied to incompetent medical treatment: R v Smith [1959] 2 QB 35; R v Evans and Gardiner (No 2) [1976] VR 523, but see R v Jordan (1956) 40 Cr App R 152 stressing that causation is a matter for the jury in such a situation. Where the victim has brought about his death in an effort to escape the accused, see Royall v R (1991) 172 CLR 378; 100 ALR 669; BC9102607, where the cases are reviewed and where it was held that the accused will have caused the death if the victim’s fear was well-founded or reasonable, and the escape a natural consequence of the accused’s behaviour. The majority of the High Court thought that a reference to the concept of foreseeability would be likely to confuse the jury. See R v McAuliffe (1993) 70 A Crim R 303 for an application of Royall in a “paradigm case of conduct which is regarded as causing death”.

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CRIMES ACT 1900 (NSW) — PART 3

[8-s 18.25]

[8-s 18.20] Constructive murder Once the intent to commit the offence, which is punishable by penal servitude for 25 years, is proved, there is no need to prove any further act of malice on the part of the accused in order to prove murder: Mraz v R (No 2) (1956) 96 CLR 62; [1956] ALR 999; (1956) 30 ALJR 604; BC5600560. There is no need to prove a causal connection between the felony and the death, or that the death was foreseeable: R v Van Beelen (1973) 4 SASR 353. The act causing death must be a voluntary act and the jury should be directed that it is a matter of fact for them to decide what was the act causing death (if any) and whether that act was a voluntary one: Penza and Di Maria v R [2013] NSWCCA 21; BC201300634; 20(3) Crim LN [3183]. As to constructive murder in NSW, especially in relation to the words “during” or “immediately after” in s 18, see Ryan v R (1967) 121 CLR 205; [1967] ALR 577; (1967) 40 ALJR 488; BC6700220. The elements for proof of constructive murder (previously referred to as felony murder) based upon an offence of robbery with wounding (s 98) was considered in R v Sharah (1992) 30 NSWLR 292; 63 A Crim R 361; BC9203141. There has been doubt expressed as to whether Sharah correctly states the law as to the mental element of constructive murder in a joint criminal enterprise case, see IL v R [2017] HCA 27; BC201706044 at [89], [156] but cf at [102]. A person who participates in a felony which is punishable by penal servitude for 25 years is guilty of murder, even though not the actual perpetrator of the killing and where the killer is guilty of constructive murder (formerly referred to as felony murder); even if the killing was contrary to the intention of the person, see R v R (1995) 63 SASR 417; 180 LSJS 443; 79 A Crim R 191; BC9503113. In R v IL [2016] NSWCCA 51; BC201602329; 23(4) Crim LN [3664] it was stressed that, in a case of constructive murder arising from a common purpose, the parties foresee the possibility that a particular incident may occur in carrying out the foundational offence and not a foresight of the possibility of death arising in carrying out the common purpose. The foreseeability of death is not an element of a constructive murder. It is only necessary that the death, although unexpected and unforeseen, occurs during an attempt to commit or during the commission of the foundation offence. In this case the death arose during a common purpose between the accused and the deceased to manufacture drugs when a fire occurred as a result of the process of “cooking” the drugs. The trial judge erroneously directed an acquittal of both a charge of murder and a charge of manslaughter on the basis that there was no evidence that the accused foresaw the possibility of the death of the deceased. All that was required was that the accused foresaw the possibility of the act that caused the fire, here the igniting of a gas ring during the process of manufacture. In IL v R [2017] HCA 27; BC201706044; 24(8) Crim LN [3866] the decision of the Court of Criminal Appeal was overturned but not on the basis of the reasoning set out above. The High Court agreed that, if the death arising as a result of the fire had killed a third person who was not involved in the joint criminal enterprise, IL would have been liable to be found guilty of murder of that person even though she had not caused the fire. [8-s 18.25] Murder reduced to voluntary manslaughter An accused may be convicted of manslaughter on an indictment charging murder alone, because murder and manslaughter are two descriptions of the one felony at common law and, where murder is charged, manslaughter is a necessary alternative without being charged in the indictment: R v Downs (1985) 3 NSWLR 312. Although a jury can always bring in a verdict of manslaughter on a trial for murder, the trial judge is not required to inform them of this power where there is no evidence to justify such a verdict, although if the jury asked he would be bound to do so, although he may indicate the impropriety of such a verdict: Gammage v R (1969) 122 CLR 444; [1970] ALR 385; BC6900630; Beavan v R (1954) 92 CLR 660; [1954] ALR 775; BC5400820. There is no obligation on a trial judge to leave manslaughter to the jury if there is no reasonable basis upon which such a verdict can be found, but if there is such evidence the jury must be directed upon manslaughter regardless of the conduct of the defence case: R v Schneidas (No 2) [1981] 2 NSWLR 713; Van den Hoek v R (1986) 161 CLR 158; 69 ALR 1; BC8601396. The obligation upon a trial judge to leave the alternative verdict of manslaughter was considered in

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Crimes

s 18

[8-s 18.25]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 18

Carney and Cambey v R [2011] NSWCCA 223; BC201108760; 19(1) Crim LN [3006] where, applying Hayne J in Gillard v R (2003) 219 CLR 1; 202 ALR 202; [2003] HCA 64; BC200306728, it was held that the alternative is left where it is open, on the evidence, for the jury to find the accused not guilty of murder but guilty of manslaughter. A trial judge is not required to leave manslaughter to the jury if there is no evidence to support it even where requested to do so by defence counsel: R v Williamson (2000) 1 VR 58; [2000] VSCA 5; BC200000555; 7(6) Crim LN [1168]. If the jury do bring back a “merciful” verdict of manslaughter, the accused will be sentenced on the basis that all the elements of murder exist except the necessary mental element: Beavan v R, above at 663. There is no definition of manslaughter in s 18 and the common law applies; Royall v R (1991) 172 CLR 378 at 429; 100 ALR 669; BC9102607; R v Downs, above. The history of manslaughter is discussed in R v Wilson (1992) 174 CLR 313; 107 ALR 257; BC9202703. A homicide which would otherwise amount to murder may be reduced to voluntary manslaughter by reason of provocation, (see [8-s 23]) or diminished responsibility. As to the circumstances in which excessive self defence will reduce murder to manslaughter: (a) see s 421 at [8-s 421] where proceedings for the alleged offence (other than committal proceedings) were instituted on or after 22 February 2002, irrespective of when the offence was alleged to have been committed: s 423 at [8-s 423]; (b) with respect to cases not caught by s 421, see Zecevic v DPP (Vic) (1987) 162 CLR 645 at 662; 71 ALR 641 at 652; BC8701784 where it was stated: If the response of an accused goes beyond what he believed to be necessary to defend himself or if there were no reasonable grounds for a belief on his part that the response was necessary in defence of himself, then the occasion will not have been one which would support a plea of self-defence. That is to say, the killing will have been without justification or excuse and it will be for the jury to determine how it must be regarded. If it was done with intent to kill or to do grievous bodily harm, then unless there was provocation reducing it to manslaughter, it will be murder. In the absence of such an intent it will be manslaughter . . . Where an accused stands trial for murder, the jury should only be asked whether they find the accused guilty or not guilty of manslaughter if they have already found the accused not guilty or not guilty of murder — the jury is not entitled to deliver a verdict of manslaughter where it is not unanimous as to the verdict on the count of murder: Stanton v R (2003) 198 ALR 41; [2003] HCA 29; BC200302634 at [20]–[23]; (2003) 10 Crim LN 46 [1564]. See also “A Valid Verdict?” (1997) 4 Crim LN 87 [791] and “A Fair Verdict?” (1998) 5 Crim LN 7 [806]. [8-s 18.27] Self defence Division 3 of Pt 11 of the Act applies in respect of the issue of self-defence where proceedings for the alleged offence (other than committal proceedings) were instituted on or after 22 February 2002: s 423. See also R v Taylor (2002) 129 A Crim R 146; [2002] NSWSC 610; BC200203715; (2002) 9 Crim LN 47 [1436] where it was held that the Division did not apply where the accused was arraigned on an indictment before the commencement date and a further indictment was presented after the commencement date. As to unreasonable self-defence which would result in murder being reduced to manslaughter, see s 421. Division 3 does not apply where a person uses “force involving the intentional or reckless infliction of death” in relation to defence of property or to prevent a criminal trespass: see s 420. The Home Invasion (Occupants Protection) Act 1998 was repealed on 22 February 2002 by s 4 of the Crimes Amendment (Self-defence) Act 2001. [8-s 18.30] Intoxication An offence of murder which is alleged to have been committed after 16 August 1996 is an offence of specific intent for the purpose of Pt 11A of the Crimes Act relating

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s 18

CRIMES ACT 1900 (NSW) — PART 3

[8-s 18.50]

to intoxication: see s 428B Crimes Act ff at [8-s 428B]. This is so even where the Crown is relying upon reckless indifference to human life: R v Grant (2002) 55 NSWLR 80; 131 A Crim R 510; [2002] NSWCCA 243; BC200203711; (2002) 9 Crim LN 56 [1448]. As to the use which may be made of evidence of intoxication for the purpose of manslaughter where a person is acquitted of murder as a result of intoxication, see s 428E Crimes Act at [8-s 428E]. MANSLAUGHTER

[8-s 18.50] Involuntary manslaughter by gross negligence Manslaughter is committed where the accused owes a legal duty of care to the deceased and causes the death of the deceased by an intentional act or omission in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised, and which involved such a high risk that death or grievous bodily harm would follow, that the doing of the act merits criminal punishment: Nydam v R [1977] VR 430; R v Bateman (1925) 94 LJKB 791; 133 LT 730; 41 TLR 557; 19 Cr App Rep 8. A very high degree of negligence is necessary: Andrews v DPP [1937] AC 576; [1937] 2 All ER 552; (1937) 101 JP 386; 26 Cr App Rep 34 and R v Adomako [1995] 1 AC 171; [1994] 3 All ER 79; [1994] 3 WLR 288; (1994) 99 Cr App Rep 362 — where an anaesthetist was convicted of manslaughter based upon the breach of a professional duty of care owed to a patient. The offence was considered in R v Lavender (2005) 222 CLR 67; 218 ALR 521; [2005] HCA 37; BC200505502; 12(8) Crim LN [1912] where it was held that malice is not an element of the offence as s 5 of the Crimes Act had no application to the offence of manslaughter. The High Court approved Nydam, above, and held that the offence does not require a subjective appreciation on the part of the accused that the conduct is unsafe. Further, it was held that the common law defence of honest and reasonable mistake did not apply, as a belief that the conduct was safe is a conclusion and does not come within the scope of the defence. Gross criminal negligence requires a consideration of the conduct of a reasonable person in the position of the accused, that is possessing the same personal attributes of the accused with the accused’s actual knowledge of the facts and possessing the ordinary firmness of character and strength of mind of a reasonable member of the community: Sam v R (2011) 206 A Crim R 67; [2011] NSWCCA 36; BC201101508; 18(4) Crim LN [2893] — a case involving the death of a child as a result of septicaemia. In that case there was a consideration of whether “cultural factors” were relevant but no view was reached on the issue. There is no duty of care between a drug supplier and the recipient of the drugs, so that the supplier does not assume any liability for a failure to render assistance to the recipient who suffered an adverse reaction to the ingestion of the drugs in the supplier’s own home and in her presence: Burns v R (2012) 290 ALR 713; [2012] HCA 35; BC201206985; 19(11) Crim LN [3138]. In that case the High Court was not prepared to extend the common law in relation to situations where a duty of care arose between two persons such that a obligation was placed on one of them to take care of the other.

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Crimes

[8-s 18.40] Manslaughter There are two forms of manslaughter: voluntary and involuntary manslaughter. Voluntary manslaughter is where there is present in the offender a state of mind that would support a conviction of murder but the culpability of the offender’s conduct is reduced by reason of excessive self defence, provocation, or substantial impairment by abnormality of mind. Involuntary manslaughter involves neither intent to cause death or grievous bodily harm to the victim, nor the other mental elements necessary for murder: R v Lavender (2005) 222 CLR 67; 218 ALR 521; [2005] HCA 37; BC200505502; (2005) 12 Crim LN 61 [1912]. It is not necessary for the Crown to establish the precise cause of death for the offence of manslaughter: R v PL (2009) 261 ALR 365; [2009] NSWCCA 256; BC200909170; (2009) 16 Crim LN 156 [2642].

[8-s 18.50]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 18

Gross criminal negligence arising from giving the deceased a drug for the purposes of euthanasia was considered in Justins v R [2010] NSWCCA 242; BC201008007, where Simpson J raised the question of whether manslaughter was available where the accused was intending to bring about the death of the deceased. If the victim consents to the act which causes death, the accused may still be convicted of manslaughter on the basis of gross negligence, although consent is a relevant consideration: R v Cato [1976] 1 All ER 260; [1976] 1 WLR 110. Where it is alleged that the accused is guilty of manslaughter by reason of an omission, it must be proved that the accused owned a personal legal duty of care to the victim and failed to carry out that duty to such a high degree that it could be viewed as “wicked” negligence: R v Taktak (1988) 14 NSWLR 226; 34 A Crim R 334. A legal duty of care is something more than a mere moral obligation. It arises from a duty imposed by statute, or by the relationship of the person to the deceased (as with a parent and child) or because the accused has undertaken that duty by depriving any other person from caring for the deceased: R v Taktak, above. The duty “must be one connected with life so that the ordinary consequences of neglecting it would be death”: R v Pocock (1851) 5 Cox CC 172. If the accused’s negligent act was the proximate cause of death then it is not a defence that the deceased was himself negligent and so contributed to the accident: R v Longbottom (1849) 3 Cox CC 439; R v Hennigan [1971] 3 All ER 133. In R v Moore [2015] NSWCCA 316; BC201512362; 23(1) Crim LN 9 [3626], the majority of the court held that the legislature did not intend for a contravention of the duty in s 20 Occupational Health and Safety Act 2000 to give rise to liability for manslaughter, but that, subject to certain facts being established by the prosecution, it would be open to conclude that the accused owed a common law duty of care towards the deceased. [8-s 18.55] Involuntary manslaughter by unlawful and dangerous act Manslaughter is committed where the accused causes the death of a person by an act which is both unlawful and dangerous. It is not necessary that the accused was aware that the act was dangerous, provided that a reasonable person would have appreciated that the act was one, which in the circumstances, exposed others to the risk of serious injury: R v Wilson (1992) 174 CLR 313; 107 ALR 257, approving R v Holzer [1968] VR 481 and disapproving R v Church [1966] 1 QB 59; R v Larkin [1943] 1 All ER 217 and Director of Public Prosecutions v Newbury [1977] AC 500. The High Court held that the proper test is “an unlawful and dangerous act carrying with it an appreciable risk of serious injury” whereas for manslaughter by criminal negligence the test is “a high risk that death or grievous bodily harm would follow”. A “reasonable person in the position of the accused” is a consideration of the circumstances in which the accused finds himself or herself including “the physical features of the situation and of the action of the accused man involved” but does not include “the ephemeral emotional and mental conditions of the accused man”: R v Wills [1983] 2 VR 201 at 212. See generally R v Besim (2004) 148 A Crim R 28; [2004] VSC 169; BC200404073 where the cases are reviewed. Any relevant knowledge of the accused that would bear upon the question of whether the act was dangerous is to be attributed to the reasonable man: R v Dawson (1985) 81 Cr App Rep 150. The age of the accused, as a child, is a relevant factor to take into account, but not any particular attributes of the accused as a child: Director of Public Prosecutions v TY (No 2) (2006) 14 VR 430; 167 A Crim R 596; [2006] VSC 494; BC200610446. The reasonable man is to be “imbued with the qualities of age, experience and knowledge of the accused”: R v Edwards [2008] SASC 303; BC200809979. The act to be unlawful must be a breach of the criminal law and it is not sufficient that it amounts to no more than a tort: R v Lamb (1967) 51 Cr App R 417; Pemble v R (1971) 124 CLR 107; [1971] ALR 762. An act which constitutes a breach of the Motor Traffic Regulations is not by that reason alone an unlawful act for the purposes on this basis of manslaughter: R v Pullman (1991) 25 NSWLR 89 where it was held that the unlawful act must be one which is unlawful otherwise than by reason of the fact that it infringes a statutory prohibition. R v Pullman was

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CRIMES ACT 1900 (NSW) — PART 3

[8-s 18.65]

approved by a majority of the Court of Criminal Appeal in R v Borkowski (2009) 52 MVR 528; 195 A Crim R 1; [2009] NSWCCA 102; BC200902544. If the death is the direct and immediate result of the unlawful and dangerous act it does not matter that the act was not directed at the deceased: R v Mitchell [1983] 1 QB 741. The objective test for dangerousness was stressed in Director of Public Prosecutions v Newbury [1977] AC 500 and confirmed in R v Coomer (1989) 40 A Crim R 417. The only intent required is an intent to do the act which is unlawful and dangerous: Director of Public Prosecutions v Newbury [1977] AC 500. As it must be a voluntary, intentional act intoxication is relevant: R v Martin (1984) 51 ALR 540; 16 A Crim R 87. An unlawful and dangerous act manslaughter cannot be based upon the mere supply of a prohibited drug to the deceased, because the supply itself is not dangerous even if the supplier knows that the recipient intends to ingest the drug and even though the supplier might know that it would be dangerous for the recipient to ingest the drug: Burns v R (2012) 290 ALR 713; [2012] HCA 35; BC201206985; 19(11) Crim LN [3138]. In that case it was held, applying R v Kennedy (No 2) [2008] 1 AC 269; [2007] 4 All ER 1083; [2007] 3 WLR 612; [2007] UKHL 38, that it was the deceased’s voluntary act in ingesting the drug and, in the circumstances of the case, it was his voluntary act and not that of the supplier that caused his death. It should be noted that there was insufficient evidence that the supplier had injected the deceased and the High Court was not dealing with such a case. The principles which apply in relation to manslaughter arising from a common purpose to commit an unlawful and dangerous act were considered in R v Chai [2000] NSWCCA 320; BC200005097; (2000) 7 Crim LN 69 [1190] where the importance of establishing the scope and nature of the common enterprise between the participants was stressed. There is no different or lesser test for manslaughter by unlawful and dangerous act where the accused is alleged to have been a participant in a common purpose than where the accused is alleged to be the principal in the first degree: R v Rees [2001] NSWCCA 23; BC200100279; (2001) 8 Crim LN 11 [1248]. [8-s 18.60] Involuntary manslaughter by an assault with the intention to injure Although it was held in Mamote-Kulang of Tamagot v R (1963) 111 CLR 62 that a person would be liable for manslaughter if death was by a battery or unlawful application of force to the deceased with an intention to inflict some injury, this head of manslaughter no longer exists in the common law of Australia: R v Wilson (1992) 174 CLR 313; 107 ALR 257, disapproving R v Holzer [1968] VR 481 on this point. [8-s 18.62] Verdict of manslaughter A jury does not have to be unanimous in its finding as to the basis for a verdict of manslaughter provided it is unanimous that the accused is guilty of manslaughter: R v Cramp (1999) 30 MVR 9; 110 A Crim R 198; [1999] NSWCCA 324; BC9908058; (1999) 6 Crim LN 94 [1084]. A trial judge has a discretion to question the jury as to the basis for its verdict but generally he or she should refrain from doing so unless there are exceptional circumstances: R v Isaacs (1997) 41 NSWLR 374; 4 Crim LN 17 [670]. [8-s 18.65] Fact of death follows—

“Death” is defined in s 33 of the Human Tissue Act 1983 as

33 For the purposes of the law of New South Wales, a person has died when there has occurred: (a) irreversible cessation of all function of the person’s brain; or (b) irreversible cessation of circulation of blood in the person’s body. The fact of death can be proved by direct evidence or by circumstantial evidence, but if circumstantial it should be so compelling as to convince a jury that on no rational hypothesis could it be other than murder: R v Onufrejczyk [1955] 1 QB 388; R v Varley [1973] 2 NSWLR 427; Plomp v R (1963) 110 CLR 234; [1964] ALR 267. The definition of “death” in s 33 of the Human Tissue Act 1983 does not change the definition of life for the purposes of the common law born alive rule, nor should the born alive rule be

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Crimes

s 18

[8-s 18.65]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 18

adapted so as to be consistent with the statutory definition of “death”: R v Iby (2005) 63 NSWLR 278; 45 MVR 1; [2005] NSWCCA 178; BC200502847 at [71], [77]–[79]. See s 20 Crimes Act 1900 at [8-s 20] for a statutory modification of the born alive rule which applies only to a trial for murder of a child. [8-s 18.70] Attempt murder Notwithstanding the provisions of s 344A, such a conviction is made under ss 27-30 and not s 19A, and thus the maximum penalty available for attempted murder is 25 years: see R v White [1910] 2 KB 124. [8-s 18.75] Intoxication As to the use which may be made of evidence of intoxication for the purpose of manslaughter where a person is acquitted of murder as a result of intoxication (the murder having been alleged to be committed after 16 August 1996), see s 428E Crimes Act at [8-s 428E]. PROOF MATERIAL ON SECTION 18 For the text of s 18, see [8-s 18] behind the “8 – Crimes Act” guide card in Vol 1. MURDER [8-s 18.80] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did murder [name of deceased victim]. [8-s 18.85] Elements of offence The elements of the offence are — (1) The victim died; (2) the act or omission of the accused caused the death of the victim [8-s 18.15]; (3) the act of the accused was without lawful cause or excuse; and (4) the act or omission causing death was done by the accused: (i) with the intention [6-500] to kill or do grievous bodily harm to some person [8-s 18.10]; (ii) foreseeing that it was probable that the death of a person would result from the act or omission [8-s 18.5]; or (iii) in an attempt by the accused or some accomplice with him/her to commit, or during or immediately after the commission of by the accused or some accomplice with him/her, a serious indictable offence [8-s 4] punishable by imprisonment for life or 25 years [8-s 18.20]. [8-s 18.90]

Alternative verdicts

[8-s 18.95] Manslaughter

The definition of murder is contained in s 18(1)(a). Section 18(1)(b) provides that every other punishable homicide shall be taken to be manslaughter. A homicide which would otherwise amount to murder may also be reduced to voluntary manslaughter by reason of provocation [8-s 23], substantial impairment by abnormality of mind [8-s 23A] or excessive self-defence [8-s 421].

[8-s 18.100] Dangerous driving occasioning death A jury may find the accused guilty of an offence of dangerous driving occasioning death: see s 52AA(4) at [8-s 52AA].

[8-s 18.105] Dangerous navigation occasioning death A jury may find the accused guilty of an offence of dangerous navigation occasioning death: see s 52BA(4) at [8-s 52BA].

[8-s 18.110] Infanticide On a trial for murder in connection with the death of a child, the jury may, in certain circumstances, find the accused guilty of infanticide: see s 22A at [8-s 22A]. There is no

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s 18

CRIMES ACT 1900 (NSW) — PART 3

[8-s 18.170]

prohibition on the Crown including counts for less serious offences arising from the same set of facts as constitute the murder even though those counts are additional and not alternatives: R v McGarritty (NSWCCA, Grove J, Studdert J, Blanch J, 60556/93, 10 June 1994, unreported, BC9405228); R v Jacobs (2004) 151 A Crim R 452; [2004] NSWCCA 462; BC200408895. [8-s 18.115]

Special findings

[8-s 18.120] Verdict of contributing to death On a trial for child murder, if the jury find an accused, being a woman delivered of such child, not guilty of murder, the jury may find a verdict of contributing to death of child during, at or after birth: see s 21 at [8–s 21]. [8-s 18.125] Verdict of concealment of birth On a trial for the murder of a child, the jury may acquit the accused of the offence charged and find the accused guilty of an offence under s 85. See s 22 at [8– s 22].

s 17A s 19A s 23 s 23A s 421 Pt 11A

Other relevant provisions

Date of death — abrogation of “year and a day” rule for offences committed on or after 17 March 1991 [8-s 17A] Penalty [8-s 19A] Provocation [8-s 23.1] Substantial impairment by abnormality of mind [8-s 23A] Excessive self-defence [8-s 421] Intoxication [8-ss 428A–428I] — MANSLAUGHTER

[8-s 18.135] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] did unlawfully kill [name of deceased victim]. [8-s 18.140]

Elements of offence

The elements of the offence are —

[8-s 18.145] Elements of offence of involuntary manslaughter (1) The victim died [8-s 18.65]; and (2) that death was caused by the act or omission of the accused [8-s 18.15]; and (3) the act or omission was: (i) unlawful and dangerous [8-s 18.55]; or (ii) negligent to the criminal standard [8-s 18.50].

[8-s 18.150] Elements of offence of voluntary manslaughter A homicide which would otherwise amount to murder may also be reduced to voluntary manslaughter by reason of provocation [8-s 23], substantial impairment by abnormality of mind [8-s 23A] or excessive self-defence [8-s 421]. See generally [8-s 18.25]. [8-s 18.155]

Alternative verdict

[8-s 18.160] Dangerous driving occasioning death A jury may find the accused guilty of an offence of dangerous driving occasioning death: see s 52AA(4) at [8-s 52AA]. [8-s 18.165] Dangerous navigation occasioning death A jury may find the accused guilty of an offence of dangerous navigation occasioning death: see s 52BA(4) at [8-s 52BA]. [8-s 18.170]

Special findings

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Crimes

[8-s 18.130]

[8-s 18.175]

s 18

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

[8-s 18.175] Verdict of concealment of birth

On a trial for manslaughter of a child, the jury may acquit the accused of the offence charged and find the accused guilty of an offence under s 85. See s 22 at [8-s 22]. [8-s 18.180]

s 17A s s s s

23 23A 24 421 19

Other relevant provisions

Date of death — abrogation of “year and a day” rule for offences committed on or after 17 March 1991 [8-s 17A] Provocation [8-s 23.1] Substantial impairment by abnormality of mind [8-s 23A] Penalty [8-s 24] Excessive self-defence [8-s 421] [s 19 rep Act 218 of 1989 s 3 and Sch 1(3), opn 12 Jan 1990]

[8-s 19A] Punishment for murder 19A (1) A person who commits the crime of murder is liable to imprisonment for life. [subs (1) am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000]

(2) A person sentenced to imprisonment for life for the crime of murder is to serve that sentence for the term of the person’s natural life. [subs (2) am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000]

(3) Nothing in this section affects the operation of section 21(1) of the Crimes (Sentencing Procedure) Act 1999 (which authorises the passing of a lesser sentence than imprisonment for life). [subs (3) am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000; Act 56 of 2001 s 3 and Sch 2.15, opn 17 July 2001]

(4) This section applies to murder committed before or after the commencement of this section. (5) However, this section does not apply where committal proceedings (or proceedings by way of ex officio indictment) for the murder were instituted against the convicted person before the commencement of this section. In such a case, section 19 as in force before that commencement continues to apply. (6) Nothing in this section affects the prerogative of mercy. [s 19A insrt Act 218 of 1989 s 3 and Sch 1[4]]

COMMENTARY ON SECTION 19A Sentencing for murder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Standard non-parole period provisions . . . . . . . . . . . . . . . . . . . . . . . . . Murder of police officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Personal violence offence/domestic violence offence . . . . . . . . . . . . . Provisional sentencing for child offenders . . . . . . . . . . . . . . . . . . . . . .

[8-s 19A.1] [8-s 19A.5] [8-s 19A.10] [8-s 19A.15] [8-s 19A.20]

[8-s 19A.1] Sentencing for murder A life sentence for murder is mandatory under s 61(1) of the Crimes (Sentencing Procedure) Act where the court is satisfied that “the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence”: see [5-s 61] and the annotations to the section. The relationship between sentences for murder and manslaughter was considered in R v Hoerler (2004) 147 A Crim R 520; [2004] NSWCCA 184; BC200404316; (2004) 11 Crim LN 76

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CRIMES ACT 1900 (NSW) — PART 3

[8-s 19A.5]

[1729] where it was held that the degree of overlap between sentences for murder and manslaughter could not be stated in terms limiting it to most exception circumstances or to that effect. The criminal culpability for a particular offence of manslaughter may be greater than that for a particular offence of murder. The tariff for sentences for murder by stabbing were considered in R v Baker (NSWCCA, Gleeson CJ, Smart J, Studdert J, 23 May 1994, unreported, BC9402549). The culpability for murder is not reduced by reason only of the fact that the conviction was based upon felony murder: R v Mills (NSWCCA, Gleeson CJ, Cole JA, Sperling J, 3 April 1995, unreported, BC9504475); (1995) 2 Crim LN 29 [381]. Nor is there any prima facie presumption that murder by reckless indifference is less culpable than other categories of murder and, therefore, should receive a lesser sentence: R v Ainsworth (1994) 76 A Crim R 127. The dismemberment of the body after the murder is a relevant consideration in determining the objective seriousness of the murder, especially where it was more than was required to transport the body from the scene: see Richardson v R [2013] NSWCCA 218; BC201313312; 20(10) Crim LN [3297] where a number of cases are referred to. The relevance to the objective seriousness for an offence of murder by the presence of pre-mediation and an intent to kill was considered in Park v R [2019] NSWCCA 105; BC201904666; 26(6) Crim LN [4150] where a number of cases dealing with sentencing for the offence of murder are considered. The case emphasises the discretionary nature of a finding on the objective seriousness of an offence by the sentencing judge. A victim impact statement in relation to the effect of the death of the deceased upon the deceased’s family can never be relevant to sentencing for murder and it would be inappropriate to impose a harsher sentence upon an offender because the value of the life lost is perceived to be greater in one case than in another: R v Previtera (1997) 94 A Crim R 76; BC9702102; (1997) 4 Crim LN 31 [691]. It is also erroneous for a sentencing judge to refer to the grief of the relatives of the deceased: R v Dang [1999] NSWCCA 42; BC9901567; (1999) 6 Crim LN 27 [986]. The fact that the death of the deceased left five children without a mother was a relevant matter to take into account as to the harm suffered by the children where the accused knew that fact when he killed the deceased: R v Lewis [2001] NSWCCA 448; BC200106902; (2001) 8 Crim LN 99 [1369]. [8-s 19A.5] Standard non-parole period provisions Where a murder is committed on or after 1 February 2003, the offence is subject to the provisions of Div 1A of Pt 4 (ss 54A–54D) of the Crimes (Sentencing Procedure) Act 1999 at [5-s 54A] and following. Where the victim of murder was a police officer, emergency services worker, correctional officer, judicial officer, council law enforcement officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim’s occupation or voluntary work, the standard non-parole period is 25 years: item 1A in the Table following s 54D at [5-s 54D]. Where the victim was a child under 18 years of age, the standard non-parole period is 25 years: item 1B in the Table following 54D. In other cases of murder, the standard non-parole period is 20 years: item 1 in the Table following 54D. Div 1A of Pt 4 does not apply to imprisonment for life or for any other indeterminate period nor to detention under the Mental Health (Forensic Provisions) Act 1990: s 54D(1) at [5-s 54D]. The application of the standard non-parole period provisions in sentencing for murder were considered in Apps v R [2006] NSWCCA 290; BC200607306; (2006) 13(9) Crim LN 85 [2107] where it was held that an intention to kill, although a relevant consideration, did not itself establish that an offence was within the mid range of seriousness. In R v Hillsley (2006) 164 A Crim R 252; [2006] NSWCCA 312; BC200607731; (2006) 13(9) Crim LN 91 [2115] it was held that a finding that the offender did not act with the intention to kill does not always mitigate the offence to a significant degree.

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Crimes

s 19A

[8-s 19A.10]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 19A

[8-s 19A.10] Murder of police officers A mandatory sentence of life imprisonment is to be imposed where a person is convicted of murdering a police officer in the circumstances contained in s 19B at [8-s 19B], where the offence is committed after 23 June 2011. [8-s 19A.15] Personal violence offence/domestic violence offence This offence (or an offence of attempting to commit this offence) is a “personal violence offence” as defined in s 4 of the Crimes (Domestic and Personal Violence) Act 2007 at [8-5015] and, when committed by a person against another person with whom the offender has or has had a domestic relationship, is a “domestic violence offence” as defined in s 11 of that Act at [8-5240]. [8-s 19A.20] Provisional sentencing for child offenders See ss 60A–60I of the Crimes (Sentencing Procedure) Act 1999 at [5-s 60A] and following for provisions permitting the provisional sentencing of children for murder.

[8-s 19B] Mandatory life sentences for murder of police officers 19B (1) A court is to impose a sentence of imprisonment for life for the murder of a police officer if the murder was committed: (a) while the police officer was executing his or her duty, or (b) as a consequence of, or in retaliation for, actions undertaken by that or any other police officer in the execution of his or her duty, and if the person convicted of the murder: (c) knew or ought reasonably to have known that the person killed was a police officer, and (d) intended to kill the police officer or was engaged in criminal activity that risked serious harm to police officers. (2) A person sentenced to imprisonment for life under this section is to serve the sentence for the term of the person’s natural life. (3) This section does not apply to a person convicted of murder: (a) if the person was under the age of 18 years at the time the murder was committed, or (b) if the person had a significant cognitive impairment at that time (not being a temporary self-induced impairment). (4) If this section requires a person to be sentenced to imprisonment for life, nothing in section 21 (or any other provision) of the Crimes (Sentencing Procedure) Act 1999 or in any other Act or law authorises a court to impose a lesser or alternative sentence. (5) Nothing in this section affects the obligation of a court to impose a sentence of imprisonment for life on a person convicted of murder in accordance with section 61 of the Crimes (Sentencing Procedure) Act 1999. (6) Nothing in this section affects the prerogative of mercy. (7) This section applies to offences committed after the commencement of this section. [s 19B insrt Act 20 of 2011 s 3, opn 23 June 2011]

[8-s 20] Child murder — when child deemed born alive 20 On the trial of a person for the murder of a child, such child shall be held to have been born alive if it has breathed, and has been wholly born into the world whether it has had an independent circulation or not.

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s 22A

CRIMES ACT 1900 (NSW) — PART 3

COMMENTARY ON SECTION 20 Child murder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 22A]

[8-s 20.1]

[8-s 20.1] Child murder As to murder, see [8-s 18] and the annotations. The section appears to restate the common law which is set out in R v Hutty [1953] VLR 338 at 339; [1953] ALR 689. It is not murder to kill an unborn foetus as there is no human being: R v Tait [1990] 1 QB 290; [1989] 3 All ER 682. However, it will be murder if the child dies after birth from injuries inflicted before birth: R v West (1848) 175 ER 329; R v Senior (1832) 1 Mood CC 346. As to the availability of murder or manslaughter where unlawful injury is deliberately inflicted upon a child in utero, see Attorney-General’s Reference (No 3 of 1994) [1996] 2 All ER 10; (1996) 3 Crim LN 53 [599]. Section 20 Crimes Act 1900 is a specific provision confined in its application to a trial for murder of a child; there is no warrant for applying this modification of the common law to other crimes: R v Iby (2005) 63 NSWLR 278; 45 MVR 1; [2005] NSWCCA 178; BC200502847 at [53].

21 Whosoever, being a woman delivered of a child is indicted for its murder, shall, if the jury acquit her of the murder, and specially find that she has in any manner wilfully contributed to the death of such child, whether during delivery, or at or after its birth, or has wilfully caused any violence, the mark of which has been found on its body, be liable to imprisonment for ten years. [s 21 am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000]

[8-s 22] Trial for child murder — verdict of concealment of birth 22 Where, on the trial of a person for the murder or manslaughter of a child, the jury are not satisfied that the person is guilty thereof, but are satisfied that the person is guilty of an offence within section 85, they may acquit the person of the offence charged and find the person guilty of an offence under the said section, and the person shall be liable to punishment accordingly. [s 22 am Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998]

[8-s 22A] Infanticide 22A (1) Where a woman by any wilful act or omission causes the death of her child, being a child under the age of twelve months, but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child, then, notwithstanding that the circumstances were such that but for this section the offence would have amounted to murder, she shall be guilty of infanticide, and may for such offence be dealt with and punished as if she had been guilty of the offence of manslaughter of such child. (2) Where upon the trial of a woman for the murder of her child, being a child under the age of twelve months, the jury are of opinion that she by any wilful act or omission caused its death, but that at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to such child or by reason of the effect of lactation consequent upon the birth of the child, then the jury may, notwithstanding that the circumstances were such that but for the

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Crimes

[8-s 21] Child murder by mother — verdict of contributing to death etc

[8-s 22A]

s 22A

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

provisions of this section they might have returned a verdict of murder, return in lieu thereof a verdict of infanticide, and the woman may be dealt with and punished as if she had been guilty of the offence of manslaughter of the said child. (3) Nothing in this section shall affect the power of the jury upon an indictment for the murder of a child to return a verdict of manslaughter or a verdict of not guilty on the ground of insanity, or a verdict of concealment of birth. [s 22A insrt Act 31 of 1951] Editor’s note: For proof material on s 22A, see [27-15,200] behind the “27 — Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 22A Infanticide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Penalty for manslaughter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 22A.1] [8-s 22A.5] [8-s 22A.10] [8-s 22A.15]

[8-s 22A.1] Infanticide It has been said that a woman should not be prosecuted for murder where the evidence indicates infanticide: R v Hutty [1953] VLR 338; ALR 689. As to “causes the death of her child” see causation at [8-s 18.15]. The word “wilful” is not of fixed meaning but in criminal offences connotes intention and knowledge and usually purpose: Iannella v French (1968) 119 CLR 84 at 94-5; [1968] ALR 385; BC6800610, see also R v Gardenal-Williams [1989] TasR 62; (1989) 43 A Crim R 29 at 35. [8-s 22A.5] Penalty for manslaughter

See s 24 at [8-s 24].

PROOF MATERIAL ON SECTION 22A For the text of s 22A, see [8-s 22A] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 22A.10] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales caused the death of her infant child [name of child if known], then being under the age of twelve months, to wit [state age of child in months or weeks] by [describe act or omission causing or contributing to death] whilst [name of accused] was suffering from the effect of [either “giving birth” or “lactation consequent upon giving birth”] to [name of victim], such as to disturb the balance of her mind. [8-s 22A.15] Elements of offence The elements of the offence are — (1) The accused had within the twelve months preceding the commission of the

offence given birth to the victim; (2) the victim died [8-s 20]; (3) the wilful [8-s 22A.1] act or omission of the accused caused the death of the

victim [8-s 18.15]; (4) the accused at the time of the act or omission was suffering from the effect of

giving birth to the victim or from the effect of lactation consequent upon the birth of the victim; and (5) either of the effects in element (4) was sufficient to and did disturb the balance of her mind.

[8-s 23] Trial for murder — partial defence of extreme provocation 23 (1) If, on the trial of a person for murder, it appears that the act causing death was in response to extreme provocation and, but for this section and the provocation, the

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CRIMES ACT 1900 (NSW) — PART 3

[8-s 23.1]

jury would have found the accused guilty of murder, the jury is to acquit the accused of murder and find the accused guilty of manslaughter. (2) An act is done in response to extreme provocation if and only if: (a) the act of the accused that causes death was in response to conduct of the deceased towards or affecting the accused, and (b) the conduct of the deceased was a serious indictable offence, and (c) the conduct of the deceased caused the accused to lose self-control, and (d) the conduct of the deceased could have caused an ordinary person to lose self-control to the extent of intending to kill or inflict grievous bodily harm on the deceased. (3) Conduct of the deceased does not constitute extreme provocation if: (a) the conduct was only a non-violent sexual advance to the accused, or (b) the accused incited the conduct in order to provide an excuse to use violence against the deceased. (4) Conduct of the deceased may constitute extreme provocation even if the conduct did not occur immediately before the act causing death. (5) For the purpose of determining whether an act causing death was in response to extreme provocation, evidence of self-induced intoxication of the accused (within the meaning of Part 11A) cannot be taken into account. (6) For the purpose of determining whether an act causing death was in response to extreme provocation, provocation is not negatived merely because the act causing death was done with intent to kill or inflict grievous bodily harm. (7) If, on the trial of a person for murder, there is any evidence that the act causing death was in response to extreme provocation, the onus is on the prosecution to prove beyond reasonable doubt that the act causing death was not in response to extreme provocation. (8) This section does not exclude or limit any defence to a charge of murder. (9) The substitution of this section by the Crimes Amendment (Provocation) Act 2014 does not apply to the trial of a person for murder that was allegedly committed before the commencement of that Act. (10) In this section: act includes an omission to act. [s 23 subst Act 13 of 2014 Sch 1, opn 13 June 2014]

COMMENTARY ON SECTION 23 Partial defence of extreme provocation . . . . . . . . . . . . . . . . . . . . . . . . . Provocation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Penalty for manslaughter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 23.1] [8-s 23.3] [8-s 23.5]

[8-s 23.1] Partial defence of extreme provocation Section 23, as enacted in 2014, does not apply to an accused on trial for a murder that was allegedly committed before the commencement of the provision on 13 June 2014: s 23(9). See [8A-REP s 23] for the law which preceded the 2014 amendments. The 2014 amendments constitute the government’s response to the Legislative Council Select Committee or the Partial Defence of Provocation which “unanimously recommended retaining, but significantly restricting, the partial defence” (Attorney General, second reading speech, Crimes Amendment (Provocation) Bill 2014, Legislative Assembly, 8 May 2014).

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Crimes

s 23

[8-s 23.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 23

In the second reading speech, the Attorney General described s 23(2) as “setting out a four-stage test” through which “extreme provocation is established”. “Serious indictable offence”, referred to in s 23(2)(b), means an indictable offence punishable by 5 years’ imprisonment or more: s 4(1) at [8-s 4]. In the second reading speech, the Attorney General stated that the threshold in s 23(2)(a) and (b): (i) Reflected “the view that, in contemporary society, there is an expectation that people otherwise faced with offensive, insulting or upsetting conduct should not contemplate homicide or inflicting really serious injury”. (ii) Also provides that “merely leaving a relationship or infidelity will never provide a foundation for the partial defence because every member of the community has the right to exercise his or her personal autonomy in this way. (iii) Means that “victims of domestic violence will be able to rely upon the partial defence in appropriate cases”, where the conduct was a serious indictable offence. The Attorney General stated that s 23(2)(d) “further tightens the test by requiring members of the jury to apply a purely objective test”. The previous subjective aspect of the test as contained in repealed s 23(2)(b) (“could have induced an ordinary person in the position of the accused”) has been removed. The Attorney General stated that this change “will simplify the jury’s task and provide for a greater focus on ordinary community standards”. The Attorney General observed that it was “difficult to see how any non-violent sexual advance could satisfy” the requirements of s 23(2), but that s 23(3)(a) had been included “for abundant caution” and it “sends a clear message that the partial defence does not extend so far”. The Attorney General noted that s 23(4) maintained the previous law under repealed s 23(2) that the provocative conduct does not need to occur immediately before the act causing death, and observed that “this will provide protection for victims of long-term abuse in slow burn situations”. As s 23(7) makes clear, where there is any evidence that the act causing death was in response to extreme provocation (as explained in s 23(2)), the onus is on the prosecution to prove beyond reasonable doubt that the act causing death was not in response to extreme provocation. In the second reading speech, the Attorney General observed that there was no intention to alter the common law that it was “only where there is reasonable evidence of partial and full defences” that a trial judge must “explain the relevant law and direct the jury to consider it in reaching its verdict”. The accused continues to have an evidentiary onus of raising the issue of extreme provocation on the material before the jury: Johnson v R (1976) 136 CLR 619; 11 ALR 23; 51 ALJR 57; BC7600083. [8-s 23.3] Provocation (a) Provocative conduct The conduct must be unlawful and amount to a “serious indictable offence” which is an indictable offence punishable by 5 years imprisonment or more, see [8-s 4]. The cumulative effect of the deceased’s conduct must be considered: Parker v R (1963) 111 CLR 610; [1963] ALR 524; (1963) 37 ALJR 3; BC6300630, and the whole of the conduct at the relevant time is important as acts which considered individually may not amount to provocation might do so when taken in combination: Moffa v R (1977) 138 CLR 601; 13 ALR 225; 51 ALJR 403; BC7700025. The provocative conduct can arise over a long period of abusive and provocative conduct: R v Chhay (1994) 72 A Crim R 1; (1995) 19 Crim LJ 37; BC9405321. See also s 23(4). Psychiatric evidence as to the battered wife syndrome and its relationship to duress was considered in Osland v R (1998) 197 CLR 316; 159 ALR 170; 73 ALJR 173; BC9806597. It may be relevant in explaining why the accused did not remove herself from the provocative situation and the effect of the provocative conduct upon the accused.

The provocative conduct must be such as could have induced an ordinary person to lose self-control to the extent of intending to kill or inflict grievous bodily harm: s 23(2)(d). It should be noted that the words “in the position of the

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CRIMES ACT 1900 (NSW) — PART 3

[8-s 23.3]

accused” in the repealed section have been removed. The present test was intended to be purely objective so that none of the accused’s personal characteristics are to be taken into account. This is a significant change from the common law and the High Court’s interpretation of the repealed section; cf Stingel v R (1990) 171 CLR 312; 97 ALR 1; BC9002893. This means that the jury cannot take into account the accused’s personal characteristics in determining the degree to which the accused was provoked or the significance of the deceased’s conduct to the accused. It should be noted the test is whether an ordinary person could have been provoked to the required degree and not whether such a person would have been provoked; see Heron v R (2003) 140 A Crim R 317; 197 ALR 81; [2003] HCA 17; BC200301502. The ordinary person is not a juror so that the jury should not be instructed to put himself or herself in to the shoes of the accused: Stingel, above. The conduct of the deceased must be “towards or affecting” the accused. These words were in the repealed section. Notwithstanding the phrase “affecting the accused” it has been held that there must be a “provocative incident” between the accused and the deceased, so that provocation will not arise from what the accused is told about the deceased: R v Quartly (1986) 11 NSWLR 332; 22 A Crim R 252. In R v Davis (1998) 100 A Crim R 573; BC9802213; 5(5) Crim LN [853] the accused sought to rely upon what he was told by the victim of an alleged sexual assault by the deceased and the effects of the assault upon her. Quartley was applied so that provocation was not left to the jury. However the correctness of Quartly has been doubted by judges of the High Court in refusing special leave: Davis v R (1998) 73 ALJR 139; 20 Leg Rep C 19c; BC9807420; 6(1) Crim LN [944]. The provocative conduct may not necessarily be conduct of the deceased if it is conduct in the presence of the deceased committed by a person so closely associated with the deceased that a reasonable jury may attribute the conduct to the deceased: Tumanako v R (1992) 64 A Crim R 149; (1993) 17 Crim LJ 110, applying R v Kenney [1983] 2 VR 470. There is no requirement that the killing be proportional to the degree of provocation offered or that an ordinary person would kill in the manner that the accused killed the deceased: Green v R (1997) 191 CLR 334; 148 ALR 659; 72 ALJR 19; BC9705819. (b) Loss of self-control The conduct of the deceased must actually cause the accused to lose self-control and the killing must occur while the loss of self-control is still extant and before the accused has been able to regain self-control: Masciantonio v R (1995) 183 CLR 58; 129 ALR 575; 69 ALJR 598; BC9506409. There must be more than “anger, loss of temper or building resentment” and there must be a loss of self-control to the point where reason has been temporarily suspended: R v Peisley (1990) 54 A Crim R 42; (1992) 16 Crim LJ 197; BC9001601. (c) Leaving provocation to jury The judge is required to leave provocation to the jury where there is evidence capable of amounting to provocation whether or not it is relied upon by the defence: Parker v R (1964) 111 CLR 665; [1964] AC 1369; [1964] ALR 1153; BC6400540. This is where the evidence is sufficient to raise the possibility that the accused was provoked: Johnson v R (1976) 136 CLR 619; 11 ALR 23; (1977) 51 ALJR 57; BC7600083. The trial should exercise caution before declining to leave provocation to the jury in a case where it is sought to rely on a defence of provocation or failing to do so in a case where, even though provocation is not raised by the accused, there is material in the evidence which might arguably be thought to give rise to a defence of

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Crimes

s 23

[8-s 23.3]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 23

provocation; Stingel v R, above. The correctness of the trial judge leaving provocation to the jury was considered by the High Court in Lindsay v R (2015) 146 ALD 456; 319 ALR 207; [2015] HCA 16; BC201503399; 22(6) Crim LN [3532] where the court stressed the issues for the jury which arose from the evidence should not be undertaken by the appellate court. (d) Provocation at committal The issue of provocation ought not to be treated in any different way to any other issue that may arise at trial. Accordingly it is an issue that ought to be considered by the committing magistrate on the question of whether the defendant should be committed for trial on a charge of murder or manslaughter: Kolalich v DPP (1991) 173 CLR 222; 103 ALR 630; 66 ALJR 25; BC9102610. However Brennan J held that it would be an exceptional case where the issue of provocation would not be left for a jury where there is otherwise evidence of an intention to kill. [8-s 23.5] Penalty for manslaughter

See s 24 at [8-s 24].

[8-s 23A] Substantial impairment by abnormality of mind 23A (1) A person who would otherwise be guilty of murder is not to be convicted of murder if: (a) at the time of the acts or omissions causing the death concerned, the person’s capacity to understand events, or to judge whether the person’s actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. (2) For the purposes of subsection (1)(b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible. (3) If a person was intoxicated at the time of the acts or omissions causing the death concerned, and the intoxication was self-induced intoxication (within the meaning of section 428A), the effects of that self-induced intoxication are to be disregarded for the purpose of determining whether the person is not liable to be convicted of murder by virtue of this section. (4) The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section. (5) A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder is to be convicted of manslaughter instead. (6) The fact that a person is not liable to be convicted of murder in respect of a death by virtue of this section does not affect the question of whether any other person is liable to be convicted of murder in respect of that death. (7) If, on the trial of a person for murder, the person contends: (a) that the person is entitled to be acquitted on the ground that the person was mentally ill at the time of the acts or omissions causing the death concerned, or (b) that the person is not liable to be convicted of murder by virtue of this section, evidence may be offered by the prosecution tending to prove the other of those contentions, and the Court may give directions as to the stage of the proceedings at which that evidence may be offered. (8) In this section:

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s 23A

CRIMES ACT 1900 (NSW) — PART 3

[8-s 23A.10]

underlying condition means a pre-existing mental or physiological condition, other than a condition of a transitory kind. [s 23A subst Act 106 of 1997 s 3 and Sch 1[1], opn 3 Apr 1998]

[8-s 23A.1] [8-s 23A.5] [8-s 23A.10] [8-s 23A.15]

[8-s 23A.1] Abnormality of mind “Abnormality of the mind” means “a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. It appears to us to be wide enough to cover the mind’s activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgment as to whether an act is right or wrong, but as to the ability to exercise will power to control physical acts in accordance with that rational judgment”: R v Byrne [1960] 2 QB 396 per Lord Parker CJ at 403. “Disabling passions of an ephemeral kind are not to count”: R v Purdy [1982] 2 NSWLR 964; (1982) 7 A Crim R 122 per Glass JA at 966; Tumanako v R (1992) 64 A Crim R 149; (1993) 17 Crim LJ 110, nor is a temporary alcohol-induced state of irresponsibility: R v Jones (1986) 22 A Crim R 42. The effects of self induced intoxication are irrelevant: s 23A(3) see also R v Ryan (1995) 90 A Crim R 191; 2 Crim LN 78 [482] where the issue of intoxication and diminished responsibility is extensively discussed. The principles underlying diminished responsibility in a case arising from the use of alcohol and drugs were considered in R v De Souza (1997) 41 NSWLR 656; 95 A Crim R 1; 4 Crim LN 42 [705] where it was held that abnormal behaviour arising from the use of steroids was not within the scope of the section. It does not matter whether the abnormality arose from inherited or environmental causes: R v McGarvie (1986) 5 NSWLR 270. The impairment of the accused’s mental responsibility must be substantial and although it may be less than total it must be more than trivial: R v Lloyd [1967] 1 QB 175; R v Trotter (1993) 35 NSWLR 428; 68 A Crim R 536; BC9303711. It must be so substantial as to warrant the reduction of the crime from murder to manslaughter: s 23A(1)(b) and see Ignjatic v R (1993) 68 A Crim R 333. Whether the impairment is of that nature is a matter for the jury and not medical experts: s 23A(2). It requires the jury to form a view as to both the extent of the mental impairment of the accused and the nature of the killing, such as to reach a moral judgment as to whether the accused should not be convicted as a murderer by reason of his mental impairment. As to a trial judge directing a jury to acquit on murder but convict of manslaughter on the basis of diminished responsibility, see R v Vickers (1975) 61 Cr App R 48 and R v Morgan; Ex parte A-G (Qld) [1987] 2 Qd R 627; (1986) 24 A Crim R 342. The defence would be available where the Crown relies upon felony murder: R v Thompson (1988) 36 A Crim R 223. As to the defence of insanity, see at [17-2480.1]. [8-s 23A.5] Penalty for manslaughter See generally at [8-s 24.30]; see also Veen v R (1979) 143 CLR 458; 23 ALR 281 and Veen v R (No 2) (1988) 164 CLR 465; 77 ALR 385, in relation to diminished responsibility and dangerousness. Factors to be taken into account on sentence, where a jury acquits of murder and convicts of manslaughter by reason of substantial impairment, were considered in Tarrant v R [2018] NSWCCA 21; BC201800944 at [74]–[80] and R v Tarrant [2018] NSWSC 774; BC201804245 at [156]–[171]. [8-s 23A.10] Evidence of psychiatrists There is no requirement that the defence be supported by medical evidence and there need not be evidence bearing directly upon the question of whether mental responsibility was substantially impaired: R v Purdy [1982] 2 NSWLR 964 at 966; (1982) 7 A Crim R 122 at 125. However the aetiology of the abnormality of mind is a matter

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Crimes

COMMENTARY ON SECTION 23A Abnormality of mind . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Penalty for manslaughter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Evidence of psychiatrists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Notification of evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 23A.10]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 23A

which must be determined by medical evidence: R v Purdy, above; Tumanako v R (1992) 64 A Crim R 149; (1993) 17 Crim LJ 110. In relation to diminished responsibility under the previous section it was held that there should not be a too rigid approach to the proof of the three elements of the defence in a case where the abnormality arises from inherent causes: see Tumanako, above. It is not open for a psychiatrist to give evidence as to an opinion as to whether there is substantial impairment in accordance with the section, see s 23A(2). The jury may reject the medical evidence but only where there is other evidence which displaces or throws doubt upon it, or where the medical evidence is not unanimous: Taylor v R (1978) 45 FLR 343; 22 ALR 599; Hall v R (1988) 36 A Crim R 368; Tumanako v R, above. Where there was no evidence to prove facts upon which was based an opinion by a psychiatrist that the accused was suffering from a delusion, and had a defence of diminished responsibility, the opinion of the psychiatrist was inadmissible: Perry v R (1990) 49 A Crim R 243, applying Ramsay v Watson (1961) 108 CLR 642. However as to the admissibility of statements made to a psychiatrist by the accused as to hearing voices and persecutions, even where no such evidence was given by the accused, see R v Pangallo (1989) 51 SASR 254; 44 A Crim R 462. It has been held that expert medical evidence is not of great assistance in determining whether the impairment is substantial, and it is a matter of commonsense for the tribunal of fact: R v Trotter (1993) 35 NSWLR 428; 68 A Crim R 536; BC9303711. [8-s 23A.15] Notification of evidence Notice must be given of an intention to adduce evidence of a substantial mental impairment, see at [2-s 151].

[8-s 24] Manslaughter — punishment 24 Whosoever commits the crime of manslaughter shall be liable to imprisonment for 25 years: Provided that, in any case, if the Judge is of the opinion that, having regard to all the circumstances, a nominal punishment would be sufficient, the Judge may discharge the jury from giving any verdict, and such discharge shall operate as an acquittal. [s 24 am Act 218 of 1989 s 3 and Sch 1(5); Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998; am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000]

COMMENTARY ON SECTION 24 Manslaughter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Compellability of spouse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Personal violence offence/domestic violence offence . . . . . . . . . . . . . Application of the proviso . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sentence for manslaughter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 24.1] Manslaughter

[8-s 24.1] [8-s 24.5] [8-s 24.10] [8-s 24.15] [8-s 24.30]

See [8-s 18].

[8-s 24.5] Compellability of spouse Where the offence was committed upon a child under the age of 18 years, the spouse of the accused is a compellable witness: see at [2-s 279]. [8-s 24.10] Personal violence offence/domestic violence offence This offence (or an offence of attempting to commit this offence) is a “personal violence offence” as defined in s 4 of the Crimes (Domestic and Personal Violence) Act 2007 at [8-5015] and, when committed by a person against another person with whom the offender has or has had a domestic relationship, is a “domestic violence offence” as defined in s 11 of that Act at [8-5240]. [8-s 24.15] Application of the proviso applied in R v Brown (1982) 79 FLR 148.

The proviso to the section was considered and

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s 24

CRIMES ACT 1900 (NSW) — PART 3

[8-s 24.30]

[8-s 24.30] Sentence for manslaughter It has been said that there is a very wide range of circumstances to which this offence applies and therefore little assistance can be gained from considering the sentences passed for the offence in other cases where the circumstances can be so different: R v Schelberger (NSWCCA, Yeldham, Grove and McInerney JJ, 2 June 1988, unreported, BC8801878). However the courts have stressed the seriousness of taking human life notwithstanding the degree of compassion that may often attend the particular circumstances surrounding it: R v Hill (1981) 3 A Crim R 397. The importance of denunciation in sentencing for manslaughter has been stressed: R v Macdonald (NSWCCA, Gleeson CJ, Kirby P and Hunt CJ, 12 December 1995, unreported, BC9501664); 3(1) Crim LN [529]. “The fundamental consideration is that the sentence imposed for this particular offence of manslaughter must be commensurate with the seriousness of the crime in the sense that it should, having regard to all the proved circumstances of the offence, accord with the general moral sense of the community”: R v Foulstone (NSWCCA, Hunt J, Wood J and Finlay J, 18 July 1990, unreported, BC9002230). The relationship between sentences for murder and manslaughter was considered in R v Hoerler (2004) 147 A Crim R 520; [2004] NSWCCA 184; BC200404316; (2004) 11 Crim LN 76 [1729] where it was held that the overlap in sentences imposed for murder and manslaughter could not be stated in terms that suggest that only in most exceptional cases would a sentence for manslaughter be more than sentences imposed for murder. Save in exceptional cases, a trial judge should refrain from asking the jury the basis upon which the jury convicted the accused of manslaughter: R v Isaacs (1997) 41 NSWLR 374; 4 Crim LN 17 [670]. The pattern of sentencing for manslaughter since 2000 was considered in Scott v R [2011] NSWCCA 221; BC201107783; 18(11) Crim LN [2990], where it was held that on the material available to the court there was no significant change in sentencing practice for the offence over the period of more than a decade since the commission of the offence and sentencing for the offence. The relevant considerations in sentencing for manslaughter by reason of provocation were considered in R v Alexander (1994) 78 A Crim R 141. It does not necessarily follow that manslaughter based upon provocation is more serious than manslaughter by an unlawful and dangerous act and each case must depend upon its own circumstances: R v Isaacs, above. The court can take into account the circumstances surrounding the manslaughter including acts by the accused after the death of the victim: R v Vella (NSWCCA, Mahoney, Grove and Sperling JJ, 15 December 1995, unreported); (1996) 3(1) Crim LN [529]. In sentencing for manslaughter by diminished responsibility the court must take into account that there has been a felonious taking of human life and while the mental condition of the accused substantially diminishes the responsibility for that act it does not negate it: R v Blacklidge (NSWCCA, Gleeson CJ, Grove and Ireland JJ, 12 December 1995, unreported, BC9501665); (1996) 3(1) Crim LN [531]. Sentencing for manslaughter by excessive self-defence was considered in Stewart v R [2009] NSWCCA 152; BC200904561; (2009) 16(7) Crim LN [2581]. The effect and impact of the death of the deceased upon friends and relatives is not a matter which is relevant to sentencing: R v Previtera (1997) 94 A Crim R 76; BC9702102; (1997) 4 Crim LN 31 [691] and R v Dang [1999] NSWCCA 42; BC9901567; (1999) 4(4) Crim LN [691] where the judge erroneously referred to the grief of the relatives. The punishment for manslaughter arising from dangerous driving was considered in R v Cameron (2005) 157 A Crim R 70; [2005] NSWCCA 359; BC200508945; (2006) 13(1) Crim LN [1984] where it was held that it was unproductive to consider what the penalty might be for an aggravated offence under s 52A and that it is a markedly more serious offence than one arising

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Crimes

The history of the statutory qualification concerning the penalty for manslaughter was considered in SBF v R (2009) 53 MVR 438; 198 A Crim R 219; [2009] NSWCCA 231; BC200908291 at [109]–[115].

[8-s 24.30]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 24

under that provision. Sentencing for motor vehicle manslaughter generally was considered in R v Borkowski (2009) 52 MVR 528; 195 A Crim R 1; [2009] NSWCCA 102; BC200902544 where a Crown appeal was dismissed on discretionary grounds in a case involving street racing. A review of sentences for this type of manslaughter was considered in Spark v R [2012] NSWCCA 140; BC201204954; 19(8) Crim LN [3102] where the heaviest sentence given for such an offence was held not to be excessive. The punishment for manslaughter by an unlawful and dangerous act arising from a single punch or blow (including a head butt) was considered in R v Carroll (2010) 267 ALR 57; [2010] NSWCCA 55; BC201001882 at [56]–[64] and Donaczy v R [2010] NSWCCA 143; BC201004642 at [47]–[54]. In R v Loveridge [2014] NSWCCA 120; BC201405292; 21(7) Crim LN [3405] the court reviewed cases of manslaughter caused by a single punch and the relevant principles to be applied, when allowing a Crown appeal against a sentence in a notorious case. It was stressed that there was no range of appropriate sentence for a particular type of manslaughter or where the death occurred in particular circumstances. The seriousness of manslaughter arising from an attack upon an elderly woman in a public street was considered in R v Wood [2014] NSWCCA 184; BC201407793; 21(10) Crim LN [3447] where it was stressed that general deterrence was a significant issue in sentencing for gratuitous and unprovoked violence on public streets and that violence against the elderly will not be tolerated. The need for a deterrent sentence for manslaughter arising from “alcohol fuelled violence” was stressed in R v West [2011] NSWCCA 91; 4(3) Crim LN [670]. The appropriate sentence for accessory after the fact to manslaughter by participating in the disposal of the body was considered in TT v R [2014] NSWCCA 206; BC201408396; 21(11) Crim LN [3461].

25

[s 25 rep Act 83 of 1992 s 3 and Sch 1, opn 29 Jan 1993]

[8-s 25A] Assault causing death 25A (1) A person is guilty of an offence under this subsection if: (a) the person assaults another person by intentionally hitting the other person with any part of the person’s body or with an object held by the person, and (b) the assault is not authorised or excused by law, and (c) the assault causes the death of the other person. Maximum penalty: Imprisonment for 20 years. (2) A person who is of or above the age of 18 years is guilty of an offence under this subsection if the person commits an offence under subsection (1) when the person is intoxicated. Maximum penalty: Imprisonment for 25 years. (3) For the purposes of this section, an assault causes the death of a person whether the person is killed as a result of the injuries received directly from the assault or from hitting the ground or an object as a consequence of the assault. (4) In proceedings for an offence under subsection (1) or (2), it is not necessary to prove that the death was reasonably foreseeable. (5) It is a defence in proceedings for an offence under subsection (2): (a) if the intoxication of the accused was not self-induced (within the meaning of Part 11A), or (b) if the accused had a significant cognitive impairment at the time the offence was alleged to have been committed (not being a temporary self-induced impairment).

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CRIMES ACT 1900 (NSW) — PART 3

[8-s 25A.15]

(6) In proceedings for an offence under subsection (2): (a) evidence may be given of the presence and concentration of any alcohol, drug or other substance in the accused’s breath, blood or urine at the time of the alleged offence as determined by an analysis carried out in accordance with Division 4 of Part 10 of the Law Enforcement (Powers and Responsibilities) Act 2002, and (b) the accused is conclusively presumed to be intoxicated by alcohol if the prosecution proves in accordance with an analysis carried out in accordance with that Division that there was present in the accused’s breath or blood a concentration of 0.15 grams or more of alcohol in 210 litres of breath or 100 millilitres of blood. (7) If on the trial of a person for murder or manslaughter the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence under subsection (1) or (2), the jury may acquit the person of murder or manslaughter and find the person guilty of an offence under subsection (1) or (2). The person is liable to punishment accordingly. (8) If on the trial of a person for an offence under subsection (2) the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence under subsection (1), the jury may acquit the person of the offence under subsection (2) and find the person guilty of an offence under subsection (1). The person is liable to punishment accordingly. (9) Section 18 does not apply to an offence under subsection (1) or (2). (10) In this section, cognitive impairment includes an intellectual disability, a developmental disorder (including an autistic spectrum disorder), a neurological disorder, dementia, a mental illness or a brain injury. [s 25A insrt Act 2 of 2014 Sch 1[2], opn 31 Jan 2014]

COMMENTARY ON SECTION 25A Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alcohol testing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . “Intoxicated” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assault causing death . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assault causing death while intoxicated . . . . . . . . . . . . . . . . . . . . . Elements of the offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assault causing death . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assault causing death while intoxicated . . . . . . . . . . . . . . . . . . . . .

[8-s 25A.5] [8-s 25A.10] [8-s 25A.15] [8-s 25A.20] [8-s 25A.25] [8-s 25A.30] [8-s 25A.35] [8-s 25A.40] [8-s 25A.45]

[8-s 25A.5] Intoxication “Intoxication” and “self-induced intoxication” have the same meanings as in s 428A of the Crimes Act 1900 at [8-s 428A]: s 4(1) at [8-s 4] and s 25A(5)(a). [8-s 25A.10] Alcohol testing See Div 4 of Pt 10 (ss 138D–138H) of the Law Enforcement (Powers and Responsibilities) Act 2002 at [21-s 138D]ff for police powers for testing accused persons for intoxication when arrested for an offence alleged under s 25A(2), or for any other offence that involves the assault of another person, if the police officer believes that the person would be liable to be charged with an offence under s 25A(2) if the injured person dies. [8-s 25A.15] “Intoxicated” The directions to be given to a jury concerning the meaning of the word “intoxicated” in s 25A(2) were considered in R v Johnson (No 4) [2017] NSWSC 609; BC201703781.

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Crimes

s 25A

[8-s 25A.20]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 25A

PROOF MATERIAL ON SECTION 25A [8-s 25A.20] Form of indictment [8-s 25A.25] Assault causing death That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales assaulted [name of person], by intentionally hitting him/her with [name of accused]’s [part of accused’s body] and/or [object held by the accused] thereby causing the death of [name of person]. [8-s 25A.30] Assault causing death while intoxicated That [name of accused], a person of or above the age of 18 years, on [date of alleged offence] at [locality/suburb] in the State of New South Wales while intoxicated assaulted another person, [name of person], by intentionally hitting him/her with his/her [part of accused’s body] and/or [object held by the accused] causing the death of [name of person]. [8-s 25A.35] Elements of the offences [8-s 25A.40] Assault causing death The elements of the offence under s 25A(1) are— (1) The accused assaults a person by intentionally hitting that person with any part of the accused’s body or with an object held by the accused, and; (2) the assault is not authorised or excused by law, and; (3) the assault causes the death of the other person. [8-s 25A.45] Assault causing death while intoxicated (1) The accused is intoxicated, and (2) assaults a person by intentionally hitting that person with any part of the accused’s body or with an object held by the accused, and; (3) the assault is not authorised or excused by law, and; (4) the assault causes the death of the other person. (5) The accused is of or over the age of 18 years.

[8-s 25B] Assault causing death when intoxicated — mandatory minimum sentence 25B (1) A court is required to impose a sentence of imprisonment of not less than 8 years on a person guilty of an offence under section 25A(2). Any non-parole period for the sentence is also required to be not less than 8 years. (2) If this section requires a person to be sentenced to a minimum period of imprisonment, nothing in section 21 (or any other provision) of the Crimes (Sentencing Procedure) Act 1999 or in any other Act or law authorises a court to impose a lesser or no sentence (or to impose a lesser non-parole period). (3) Nothing in this section (apart from subsection (2)) affects the provisions of the Crimes (Sentencing Procedure) Act 1999 or any other Act or law relating to the sentencing of offenders. (4) Nothing in this section affects the prerogative of mercy. [s 25B insrt Act 2 of 2014 Sch 1[2], opn 31 Jan 2014]

[8-s 25C] Supply of drugs causing death 25C (1) A person is guilty of an offence under this section if: (a) the person supplies a prohibited drug to another person for financial or material gain, and

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CRIMES ACT 1900 (NSW) — PART 3

[8-s 26.1]

(b) the drug is self-administered by another person (whether or not the person to whom the drug was supplied), and (c) the self-administration of the drug causes or substantially causes the death of that other person. Maximum penalty: Imprisonment for 20 years. (2) In proceedings for an offence under this section, it is necessary to prove that the accused knew, or ought reasonably to have known, that supplying the prohibited drug would expose another person (whether or not the person to whom the drug was supplied) to a significant risk of death as a result of the self-administration of the drug. (3) A person does not commit an offence under this section for supplying a prohibited drug if the person is authorised to supply the drug under the Poisons and Therapeutic Goods Act 1966. (4) Proceedings for an offence under this section may only be instituted by or with the approval of the Director of Public Prosecutions. (5) Section 18 does not apply to an offence under this section. (6) In this section: prohibited drug means any substance specified in Schedule 1 to the Drug Misuse and Trafficking Act 1985, but does not include a prohibited plant within the meaning of that Act. [s 25C insrt Act 94 of 2018 Sch 2 item 2.1, opn 28 Nov 2018]

DIVISION 2 — CONSPIRACY TO MURDER [Div heading insrt Act 53 of 2000 s 3 and Sch 3.3, opn 29 June 2000]

[8-s 26] Conspiring to commit murder 26

Whosoever: conspires and agrees to murder any person, whether a subject of Her Majesty or not, and whether within the Queen’s dominions or not, or solicits, encourages, persuades, or endeavours to persuade, or proposes to, any person to commit any such murder, shall be liable to imprisonment for 25 years. [s 26 am Act 218 of 1989 s 3 and Sch 1(6); am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000] Editor’s note: For proof material on s 26, see [27-15,250] behind the “27 — Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 26 Conspiracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Murder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Propose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Existence of victim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Encourage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Solicit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Standard non-parole period provisions . . . . . . . . . . . . . . . . . . . . . . . . . . Personal violence offence/domestic violence offence . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Conspiracy to murder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Solicit to murder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Necessary averments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[8-s 26.1] [8-s 26.5] [8-s 26.10] [8-s 26.15] [8-s 26.20] [8-s 26.25] [8-s 26.30] [8-s 26.35] [8-s 26.40] [8-s 26.45] [8-s 26.50] [8-s 26.55]

Crimes

s 26

[8-s 26.1]

s 26

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Conspiracy to murder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Solicit to murder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 26.60] [8-s 26.65] [8-s 26.70]

[8-s 26.1] Conspiracy As to conspiracy generally, see Criminal Responsibility at [6-200] and following. As to the averments in an indictment for conspiracy see at [2-Sch 3] cl 21. [8-s 26.5] Murder

See [8-s 18].

[8-s 26.10] Propose The term “propose” is an ordinary English word: see R v Stanford (NSWCCA, 19 September 1990, unreported), where the definition in the Macquarie Dictionary as “to put forward or suggest a matter as something to be done” was referred to with approval. The meaning of the words used by the accused is a matter for the jury, having regard to the language used, the context in which the words were used and the person to whom they were addressed: R v Diamond (1920) 84 JP 211. [8-s 26.15] Existence of victim It is not necessary that the intended victim of the murder is in existence at the time of the soliciting to murder, it is sufficient that the victim is capable of being murdered at the time when the act of murder is to be committed. It was also held that if there is such a person then in existence, it is immaterial that the person was not in existence at the date of the incitement: R v Shephard [1919] 2 KB 125; [1918-19] All ER Rep 374. [8-s 26.20] Encourage Encouragement may be made by the publication of an article in a newspaper although not addressed to any particular person: R v Most (1881) 7 QBD 244: R v Antonelli (1905) 70 JP 4. [8-s 26.25] Solicit There must be some communication shown between the accused and the person solicited: R v Krause (1902) 18 TLR 238; 66 JP 121. An accused may be convicted of attempting to solicit to murder even if the communication did not reach the person to whom it was sought to persuade: R v Ransford (1874) 31 LTNS 488. There is no defence of withdrawal or abandonment on a charge of solicitation to murder: R v Wright (NSWCCA, Grove, Ireland and Levine JJ, 8 July 1997, unreported, BC9702913); (1997) 4 Crim LN 51 [724]. [8-s 26.30] Standard non-parole period provisions Where an offence under s 26 Crimes Act 1900 is committed on or after 1 February 2003, the offence is subject to the provisions of Div 1A of Pt 4 (ss 54A–54D) of the Crimes (Sentencing Procedure Act) 1999 at [5-s 54A] and following. A standard non-parole period of 10 years is prescribed: Table following s 54D at [5-s 54D]. Division 1A of Pt 4 does not apply to apply to detention under the Mental Health (Forensic Provisions) Act 1990: s 54D(1)(b) at [5-s 54D]. [8-s 26.35] Personal violence offence/domestic violence offence This offence (or an offence of attempting to commit this offence) is a “personal violence offence” as defined in s 4 of the Crimes (Domestic and Personal Violence) Act 2007 at [8-5015] and, when committed by a person against another person with whom the offender has or has had a domestic relationship, is a “domestic violence offence” as defined in s 11 of that Act at [8-5240]. PROOF MATERIAL ON SECTION 26 For the text of s 26, see [8-s 26] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 26.40] Form of indictment [8-s 26.45] Conspiracy to murder That [name of accused] on [date of alleged offence] at [locality/suburb] did conspire (“amongst themselves” if all conspirators are named, or as otherwise appropriate eg “with John Smith and persons unknown”) to murder [name of intended victim].

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s 27

[8-s 27.1]

CRIMES ACT 1900 (NSW) — PART 3

[8-s 26.50] Solicit to murder That [name of accused] on [date of alleged offence] at [locality/suburb] did solicit [name person whom the accused approached to carry out the murder] to murder [name of intended victim]. [8-s 26.55] Necessary averments Indictment for Conspiracy Schedule 3 cl 21 of the Criminal Procedure Act [2-cl 21] provides that on an indictment for conspiracy it is not necessary to state any overt act. [8-s 26.60] Elements of offence

The elements of the offence are —

[8-s 26.65] Conspiracy to murder (1) There was a conspiracy [6-200] between two or more persons, one of whom

was the accused; and (2) the object of the conspiracy [6-210] was to murder a person [8-s 18]. [8-s 26.70] Solicit to murder (1) The accused intended [6-500] that the victim be murdered [8-s 18.1]; and (2) that the accused sought to solicit [8-s 26.25], encourage [8-s 26.20], persuade, endeavour to persuade, or propose [8-s 26.10] to any person to commit that murder.

[8-s 27] Acts done to the person with intent to murder 27

Whosoever: administers to, or causes to be taken by, any person any poison, or other destructive thing, or by any means wounds, or causes grievous bodily harm to any person, with intent in any such case to commit murder, shall be liable to imprisonment for 25 years. [s 27 am Act 218 of 1989 s 3 and Sch 1(7); am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000] Editor’s note: For proof material on s 27, see [27-15,300] behind the “27 — Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 27 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Compellability of spouse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Personal violence offence/domestic violence offence . . . . . . . . . . . . . Intent to murder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Standard non-parole period provisions . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Administer poison with intent to murder . . . . . . . . . . . . . . . . . . . . . Wound or cause grievous bodily harm with intent to murder . . Necessary averments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Administer poison with intent to murder . . . . . . . . . . . . . . . . . . . . . Wound or cause grievous bodily harm with intent to murder . . Alternative verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 27.1] Definitions [8-s 4.1].

[8-s 27.1] [8-s 27.5] [8-s 27.10] [8-s 27.15] [8-s 27.20] [8-s 27.25] [8-s 27.30] [8-s 27.35] [8-s 27.40] [8-s 27.45] [8-s 27.50] [8-s 27.55] [8-s 27.60] [8-s 27.65]

As to “wounds”, see [8-s 35]. As to “grievous bodily harm” see s 4 at

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Crimes

DIVISION 3 — ATTEMPTS TO MURDER [Div heading insrt Act 53 of 2000 s 3 and Sch 3.3, opn 29 June 2000]

[8-s 27.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 27

As to “poison” in Basto v R (1954) 91 CLR 628; BC5400650, the High Court approved a jury direction in the following terms: poison as being a substance which if taken in sufficient quantity would be deleterious and harmful to human life or human health and well-being. It was not necessary for the Crown to prove that the dose administered was sufficient to bring about death; it was enough if the substance was of a nature to do so if administered in sufficient quantity . . . If the thing administered is a recognised poison, the offence may be committed though the quantity given is so small as to be incapable of doing harm: R v Turner (1910) 4 Cr App Rep 203. In R v Hollis (1873) 12 Cox CC 463, it was held that if the drug administered induces miscarriage although there is no other evidence of its nature, this is sufficient evidence of it being a “noxious thing”. As to “administered” — manual delivery of the poison is not necessary, it is sufficient that the accused prepared the poison and then intentionally left it in a place where the intended victim would be likely to find and take it: R v Harley (1830) 4 C P 369; R v Dale (1852) 6 Cox CC 14. It may be that “administration” requires that the poison be swallowed: see R v Harley, above; cf R v Dale, above. [8-s 27.5] Compellability of spouse Where the offence was committed upon a child under the age of 18 years, the spouse of the accused is a compellable witness: see at [2-s 279]. [8-s 27.10] Personal violence offence/domestic violence offence This offence (or an offence of attempting to commit this offence) is a “personal violence offence” as defined in s 4 of the Crimes (Domestic and Personal Violence) Act 2007 at [8-5015] and, when committed by a person against another person with whom the offender has or has had a domestic relationship, is a “domestic violence offence” as defined in s 11 of that Act at [8-5240]. [8-s 27.15] Intent to murder “Intent to murder” means an intent to kill, and an intent to do grievous bodily harm is not sufficient: R v Spartels [1953] VLR 194; ALR 554; Knight v R (1992) 175 CLR 495; 109 ALR 225; BC9202674, where it was emphasised that the issue of the presence of the particular intent is a question for the jury. The intent may be gathered from either the nature of the act itself or from the expression and conduct of the accused: R v Cruse (1838) 8 C P 541; R v Jones (1839) 9 C P 258. [8-s 27.20] Intoxication An offence under this section which is alleged to have been committed after 16 August 1996 is an offence of specific intent for the purpose of Pt 11A Crimes Act 1900 relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. [8-s 27.25] Standard non-parole period provisions Where an offence under s 27 Crimes Act 1900 is committed on or after 1 February 2003, the offence is subject to the provisions of Div 1A of Pt 4 (ss 54A–54D) of the Crimes (Sentencing Procedure Act) 1999 at [5-s 54A] and following. A standard non-parole period of 10 years is prescribed: Table following s 54D at [5-s 54D]. Division 1A of Pt 4 does not apply to apply to detention under the Mental Health (Forensic Provisions) Act 1990: s 54D(1)(b) at [5-s 54D]. PROOF MATERIAL ON SECTION 27 For the text of s 27, see [8-s 27] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 27.30] Form of indictment [8-s 27.35] Administer poison with intent to murder That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did administer/cause to be administered a poison [state name of poison, using pharmacological rather than proprietary name if available]/a destructive substance [name substance] to [name of victim] with intent to murder the said [name of victim].

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s 28

CRIMES ACT 1900 (NSW) — PART 3

[8-s 28.1]

[8-s 27.40] Wound or cause grievous bodily harm with intent to murder That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did wound/cause grievous bodily harm to [name of victim] with intent to murder the said [name of victim]. [8-s 27.45] Necessary averments The High Court in Basto v R (1954) 91 CLR 628 noted that the identification of the type of poison is a matter of evidence only, and therefore an indictment which fails to specify the poison administered is not for that reason bad or irregular. However, in R v Powles (1831) 4 C & P 571, an indictment that failed to aver that the thing administered was poisonous or deleterious was held to be bad. [8-s 27.50] Elements of offence

The elements of the offence are—

[8-s 27.55] Administer poison with intent to murder (1) The accused with intent [6-500] to murder [8-s 18.1][8-s 27.15]; (2) administered, or caused to be taken, poison [8-s 18.1][8-s 27.15] or another destructive substance to the victim.

[8-s 27.65] Alternative verdict There cannot be a conviction for common assault upon an indictment laid under this section: R v Stokes (1925) Cr App R 71.

[8-s 28] Acts done to property with intent to murder 28

Whosoever: sets fire to any vessel, or any chattel therein, or any part of her tackle apparel or furniture, or casts away or destroys any vessel, or by the explosion of gunpowder, or other explosive substance, destroys, or damages any building, or places, or throws, any matter or thing upon or across a railway, or removes, or displaces any sleeper, or other thing belonging to a railway, with intent in any such case to commit murder, shall be liable to imprisonment for 25 years. [s 28 am Act 218 of 1989 s 3 and Sch 1(8), opn 12 Jan 1990] Editor’s note: For proof material on s 28, see -15,350] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 28 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Standard non-parole period provisions . . . . . . . . . . . . . . . . . . . . . . . . . . Personal violence offence/domestic violence offence . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 28.1] [8-s 28.5] [8-s 28.10] [8-s 28.15] [8-s 28.20] [8-s 28.25]

[8-s 28.1] Definitions As to “intent to murder”, see [8-s 27.15]. As to “property”, see [8-s 4]. As to “railway”, see [8-s 4]. The definition includes tramway, and also includes all stations, buildings, structures and equipment belonging to or associated with a railway or tramway.

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Crimes

[8-s 27.60] Wound or cause grievous bodily harm with intent to murder (1) The accused with the intent [6-500] to murder [8-s 18.1][8-s 27.15]; (2) wounded [8-s 35.5] the victim; or (3) caused grievous bodily harm [8-s 4.1] to the victim.

[8-s 28.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 28

As to “casts away or destroys any vessel” — where a ship is only run shore or stranded upon a rock and is afterwards salvaged in a condition capable of being refitted, it has been held not to be a casting away or destroying: De Londo’s Case (1765) 2 Eas PC 1098. “Explosive substance” — A petrol bomb has been held to be an explosive substance: R v Howars [1993] Crim L R 213 applying R v Bouch (1983) 76 Cr App R 11. [8-s 28.5] Intoxication An offence under this section which is alleged to have been committed after 16 August 1996 is an offence of specific intent for the purpose of Pt 11A Crimes Act 1900 relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. [8-s 28.10] Standard non-parole period provisions Where an offence under s 28 Crimes Act 1900 is committed on or after 1 February 2003, the offence is subject to the provisions of Div 1A of Pt 4 (ss 54A–54D) of the Crimes (Sentencing Procedure Act) 1999 at [5-s 54A] and following. A standard non-parole period of 10 years is prescribed: Table following s 54D at [5-s 54D]. Division 1A of Pt 4 does not apply to apply to detention under the Mental Health (Forensic Provisions) Act 1990: s 54D(1)(b) at [5-s 54D]. [8-s 28.15] Personal violence offence/domestic violence offence This offence (or an offence of attempting to commit this offence) is a “personal violence offence” as defined in s 4 of the Crimes (Domestic and Personal Violence) Act 2007 at [8-5015] and, when committed by a person against another person with whom the offender has or has had a domestic relationship, is a “domestic violence offence” as defined in s 11 of that Act at [8-5240]. PROOF MATERIAL ON SECTION 28 For the text of s 28, see [8-s 28] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 28.20] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] did [state act relied upon to found charge and give description of property concerned eg “did by use of an explosive destroy a motor vessel known as ‘The Minnow’”] with the intent to murder [state name of intended victim]. [8-s 28.25] Elements of offence The elements of the offence are — (1) The accused with intent [6-500] to murder [8-s 18.1][8-s 27.15]; (2) set fire to a vessel, any part of a vessel’s tackle apparel or furniture or any chattel on or in a vessel; (3) cast away or destroyed a vessel [8-s 28.1]; (4) by use of any explosive [8-s 28.1], destroyed or damaged any building; (5) placed or threw any matter or thing across a railway [8-s 28.1]; or (6) removed or displaced any sleeper or other thing belonging to a railway [8-s 28.1].

[8-s 29] Certain other attempts to murder 29

Whosoever: attempts to administer to, or cause to be taken by, any person any poison, or other destructive thing, or shoots at, or in any manner attempts to discharge any kind of loaded arms at any person, or attempts to drown, suffocate, or strangle any person, with intent in any such case to commit murder, shall, whether any bodily injury is effected or not, be liable to imprisonment for 25 years. [s 29 am Act 218 of 1989 s 3 and Sch 1(9), opn 12 Jan 1990] Editor’s note: For proof material on s 29, see [27-15,400] behind the “27 — Informations and Indictments” guide card in Vol 4.

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CRIMES ACT 1900 (NSW) — PART 3

COMMENTARY ON SECTION 29 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Attempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Compellability of spouse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Personal violence offence/domestic violence offence . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Standard non-parole period provisions . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 29.25]

[8-s 29.1] [8-s 29.5] [8-s 29.10] [8-s 29.15] [8-s 29.20] [8-s 29.25] [8-s 29.30] [8-s 29.35]

[8-s 29.1] Definitions As to “loaded arms” see s 4 at [8-s 4]. As to poison, see [8-s 27.1]. As to suffocate or strangle, see [8-s 37.1]. An attempt to strangle requires that a step be taken which is directly connected with the act of choking or throttling and which is reasonably regarded as having no other purpose than the completion of an act of strangulation: R v Haley (1959) 76 WN (NSW) 550. As to “shoots at” — in South Australia, this expression has been held to mean “shoots to hit”: R v Marshall (1987) 49 SASR 133; BC8700288. As to “attempt to discharge”— In order to constitute an attempt to discharge loaded arms, some act must be done; merely presenting a weapon at a person is not sufficient: R v Lewis (1833) 9 C P 523. A person who fires a loaded pistol into a crowd, not aimed, with intent generally to grievous bodily harm, and who hits someone may be convicted of shooting the victim with intent to do grievous bodily harm to that victim: R v Fretwell (1864) L C 443. The English courts have held that where an accused pulled the trigger of a revolver loaded in one chamber, when that chamber was not next to the hammer and the revolver did not go off, and the jury found at the time of the pulling of the trigger the revolver was not in a position to be discharged, that revolver was a loaded weapon, and the accused can be rightly convicted of attempting to discharge it; R v Wright (1879) 2 SCRNS 110 and R v Jackson (1890) 17 Cox CC 104. In the Queensland case of R v Tracey (1895) 6 QLJ 272, it was held that a revolver loaded in some of its chambers and capable of being discharged if the trigger was drawn a sufficient number of times was a loaded arm. [8-s 29.5] Attempt

See s 344A at [8-s 344A].

[8-s 29.10] Compellability of spouse Where the offence was committed upon a child under the age of 18 years, the spouse of the accused is a compellable witness: see at [2-s 279]. [8-s 29.15] Personal violence offence/domestic violence offence This offence (or an offence of attempting to commit this offence) is a “personal violence offence” as defined in s 4 of the Crimes (Domestic and Personal Violence) Act 2007 at [8-5015] and, when committed by a person against another person with whom the offender has or has had a domestic relationship, is a “domestic violence offence” as defined in s 11 of that Act at [8-5240]. [8-s 29.20] Intoxication An offence under this section which is alleged to have been committed after 16 August 1996 is an offence of specific intent for the purpose of Pt 11A Crimes Act 1900 relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. [8-s 29.25] Standard non-parole period provisions Where an offence under s 29 Crimes Act 1900 is committed on or after 1 February 2003, the offence is subject to the provisions of Div 1A of Pt 4 (ss 54A–54D) of the Crimes (Sentencing Procedure Act) 1999 at [5-s 54A] and following. A standard non-parole period of 10 years is prescribed: Table following s 54D at [5-s 54D]. Division 1A of Pt 4 does not apply to apply to detention under the Mental Health (Forensic Provisions) Act 1990: s 54D(1)(b) at [5-s 54D].

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Crimes

s 29

[8-s 29.30]

s 29

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

PROOF MATERIAL ON SECTION 29 For the text of s 29, see [8-s 29] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 29.30] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales [set out act relied upon to found charge eg “did shoot at”] [name of intended victim] with intent to murder [name of intended victim]. [8-s 29.35] Elements of offence The elements of the offence are — (1) The accused with intent [6-500] to murder [8-s 27.15]; (2) attempted [6-300] to administer to, or cause to be taken by, any person a poison [8-s 27.1], or other destructive thing; (3) shot at or attempted to discharge [8-s 29.1], in any manner, loaded arms [8-s 4] at any person; or (4) attempted [6-300] to drown, suffocate or strangle any person [8-s 37.10].

[8-s 30] Attempts to murder by other means 30 Whosoever, by any means other than those specified in sections 27 to 29 both inclusive, attempts to commit murder shall be liable to imprisonment for 25 years. [s 30 am Act 218 of 1989 s 3 and Sch 1(10); am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000] Editor’s note: For proof material on s 30, see [27-15,450] behind the “27 — Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 30 Scope of the section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Compellability of spouse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Personal violence offence/domestic violence offence . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Standard non-parole period provisions . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 30.1] [8-s 30.5] [8-s 30.10] [8-s 30.15] [8-s 30.20] [8-s 30.25] [8-s 30.30]

[8-s 30.1] Scope of the section “Other means” includes methods of attempting to commit murder which are different to those specified in ss 27 to 29. This section has no application to an attempt committed in any of the ways specified in those sections, even though such attempt would not, on some technical ground, be within those sections: R v Brown (1883) 10 QBD 381. An attempt to commit suicide is not an attempt to commit murder under this section: R v Burgess (1862) L C 258, and itself is no longer an offence: see s 31A. Section 31B[8-s 31B] specifically states that the survivor of a suicide pact may be guilty of an offence under s 31C. An indictment that alleged that the accused did attempt to set fire to his wife with intent to murder her was held to be a valid statement of a charge under this section even though it did not allege that the accused attempted to murder his wife: Park v R [2010] NSWCCA 151; BC201005731; 17(9) Crim LN 138 [2792]. [8-s 30.5] Compellability of spouse Where the offence was committed upon a child under the age of 18 years, the spouse of the accused is a compellable witness: see at [2-s 279]. [8-s 30.10] Personal violence offence/domestic violence offence This offence (or an offence of attempting to commit this offence) is a “personal violence offence” as defined in s 4 of the Crimes (Domestic and Personal Violence) Act 2007 at [8-5015] and, when committed by a person against another person with whom the offender has or has had a domestic relationship, is a “domestic violence offence” as defined in s 11 of that Act at [8-5240].

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s 31

[8-s 31.1]

CRIMES ACT 1900 (NSW) — PART 3

[8-s 30.15] Intoxication An offence under this section which is alleged to have been committed after 16 August 1996 is an offence of specific intent for the purpose of Pt 11A Crimes Act 1900 relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. [8-s 30.20] Standard non-parole period provisions Where an offence under s 30 Crimes Act 1900 is committed on or after 1 February 2003, the offence is subject to the provisions of Div 1A of Pt 4 (ss 54A–54D) of the Crimes (Sentencing Procedure Act) 1999 at [5-s 54A] and following. A standard non-parole period of 10 years is prescribed: Table following s 54D at [5-s 54D]. Division 1A of Pt 4 does not apply to apply to detention under the Mental Health (Forensic Provisions) Act 1990: s 54D(1)(b) at [5-s 54D]. PROOF MATERIAL ON SECTION 30 For the text of s 30, see [8-s 30] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 30.25] Form of indictment The form of indictment outlined in [27-15,400] should be adapted to suit the particular act (not being one covered in ss 27 –29) relied upon.

Crimes

[8-s 30.30] Elements of offence The elements of the offence are — (1) The accused with intent [6-500] to murder [8-s 27.15] the victim; (2) did some act (not mentioned in ss 27 –29) [8-s 30.1] or attempted [6-300] to do such an act.

DIVISION 4 — DOCUMENTS CONTAINING THREATS [Div heading insrt Act 53 of 2000 s 3 and Sch 3.3, opn 29 June 2000]

[8-s 31] Documents containing threats 31 (1) A person who intentionally or recklessly, and knowing its contents, sends or delivers, or directly or indirectly causes to be received, any document threatening to kill or inflict bodily harm on any person is liable to imprisonment for 10 years. [subs (1) am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000; Act 38 of 2007 s 3 and Sch 1[3], opn 15 Feb 2008]

(2) It is immaterial for the purposes of an offence under this section whether or not a document sent or delivered is actually received, and whether or not the threat contained in a document sent, delivered or received is actually communicated to the person concerned or to the recipient or intended recipient of the document (as relevant in the circumstances). [s 31 subst Act 83 of 1994 s 3 and Sch 1(3), opn 23 Dec 1994] Editor’s note: For proof material on s 31, see [27-15,500] behind the “27 — Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 31 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Personal violence offence/domestic violence offence . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 31.1] [8-s 31.5] [8-s 31.10] [8-s 31.15]

[8-s 31.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and at [2-Sch 1] Pt 1 cl 2. The maximum penalty which can be imposed is 2 years imprisonment see at [2-s 267].

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[8-s 31.5]

s 31

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

[8-s 31.5] Personal violence offence/domestic violence offence This offence (or an offence of attempting to commit this offence) is a “personal violence offence” as defined in s 4 of the Crimes (Domestic and Personal Violence) Act 2007 at [8-5015] and, when committed by a person against another person with whom the offender has or has had a domestic relationship, is a “domestic violence offence” as defined in s 11 of that Act at [8-5240]. PROOF MATERIAL ON SECTION 31 For the text of s 31, see [8-s 31] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 31.10] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales intentionally/recklessly sent to/delivered to/caused to be received by [name of recipient] a document threatening to kill/inflict bodily harm upon [name of person subject of threat], the said [restate name of accused], knowing the contents of that document. [8-s 31.15] Elements of offence The elements of the offence are — (1) The accused sent, delivered, or caused (either directly or indirectly) to be received, a document [29-45,200]; (2) which contained a threat to kill or inflict bodily harm; (3) where the accused knew [6-515] the contents of that document [29-45,200]; and (4) the act of the accused was done intentionally [6-500] or recklessly [8-s 4A.1].

DIVISION 5 — SUICIDE [Div heading insrt Act 53 of 2000 s 3 and Sch 3.3, opn 29 June 2000]

[8-s 31A] Suicide and attempt to commit suicide 31A The rule of law that it is a crime for a person to commit, or to attempt to commit, suicide is abrogated. COMMENTARY ON SECTION 31A Prevention of suicide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 31A.1] Prevention of suicide

[8-s 31A.1]

See s 574B at [8-s 574B].

[8-s 31B] Survivor of suicide pact 31B (1) The survivor of a suicide pact shall not be guilty of murder or manslaughter but may be guilty of an offence under section 31C. (2) In this section, suicide pact means a common agreement between 2 or more persons having for its object the death of all of them, whether or not each is to take his or her own life, but nothing done by a person who enters into a suicide pact shall be treated as being done by the person in pursuance of the pact unless it is done while the person has the settled intention of dying in pursuance of the pact. (3) The onus of proving the existence of a suicide pact shall lie with the accused person on the balance of probabilities.

[8-s 31C] Aiding etc suicide 31C (1) A person who aids or abets the suicide or attempted suicide of another person shall be liable to imprisonment for 10 years.

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s 31C

CRIMES ACT 1900 (NSW) — PART 3

[8-s 31C.35]

(2) Where: (a) a person incites or counsels another person to commit suicide, and (b) that other person commits, or attempts to commit, suicide as a consequence of that incitement or counsel, the firstmentioned person shall be liable to imprisonment for 5 years. [s 31C insrt Act 180 of 1983] Editor’s note: For proof material on s 31C, see [27-15,555] behind the “27 — Informations and Indictments” guide card.

[8-s 31C.1] [8-s 31C.5] [8-s 31C.10] [8-s 31C.15] [8-s 31C.20] [8-s 31C.25] [8-s 31C.30] [8-s 31C.35]

[8-s 31C.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and at [2-Sch 1] Pt 1 cl 2. The maximum penalty which can be imposed is 2 years imprisonment see at [2-s 267]. [8-s 31C.5] “Suicide” Suicide is self-killing or the taking of one’s own life: see Oxford English Dictionary, 2nd ed, Vol. 17, p 144. For self-destruction to be suicide, it must be intentional: R v Davis [1968] 1 QB 72. Suicide must be proved by evidence; it cannot be presumed: R v City of London Coroner; Ex parte Barber [1975] 1 WLR 1310. PROOF MATERIAL ON SECTION 31C For the text of s 31C, see [8-s 31C] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 31C.10] Form of indictment [8-s 31C.15] Aiding or abetting suicide or attempted suicide — s 31C(1) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, aided (or abetted) the suicide/attempted suicide of [name of person who suicided or attempted suicide]. [8-s 31C.20] Incites or counsels suicide — s 31C(2) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, incited/counselled [name of person who attempted suicide] to commit suicide and, in consequence of such incitement/counselling, that [name of person who suicided or attempted suicide] committed/attempted to commit suicide. [8-s 31C.25] Elements of offence

The elements of the offence are —

[8-s 31C.30] Aiding or abetting suicide or attempted suicide (1) The accused aided or abetted [6-110]; (2) the suicide or attempted suicide of another person [8-s 31C.5]. [8-s 31C.35] Incites or counsels suicide (1) The accused incited or counselled; (2) another person to commit suicide [8-s 31C.5]; and (3) in consequence of the incitement or counselling, that other person committed or attempted to commit suicide.

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Crimes

COMMENTARY ON SECTION 31C Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . “Suicide” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Aiding or abetting suicide or attempted suicide — s 31C(1) . . . Incites or counsels suicide — s 31C(2) . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Aiding or abetting suicide or attempted suicide . . . . . . . . . . . . . . Incites or counsels suicide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 32]

s 32

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

DIVISION 6 — ACTS CAUSING DANGER TO LIFE OR BODILY HARM [Div heading insrt Act 53 of 2000 s 3 and Sch 3.3, opn 29 June 2000]

[8-s 32] Impeding endeavours to escape shipwreck 32

Whosoever: intentionally or recklessly prevents or impedes any person on board of, or having quitted, any ship or vessel in distress, or wrecked, stranded, or cast on shore, in his or her endeavour to save his or her life, or intentionally or recklessly prevents or impedes any person in his or her endeavour to save the life of such first-mentioned person, shall be liable to imprisonment for 25 years. [s 32 am Act 218 of 1989 s 3 and Sch 1(11); Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998; am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000; Act 38 of 2007 s 3 and Sch 1[3], opn 15 Feb 2008] Editor’s note: for proof material on s 32, see [27-15,600] behind the “27 — Informations and Indictments” guide card in volume 4.

COMMENTARY ON SECTION 32 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Preventing shipwrecked person saving own life . . . . . . . . . . . . . . Preventing rescue of shipwrecked person . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Preventing shipwrecked person saving his/her life . . . . . . . . . . . . Preventing rescue of shipwrecked person . . . . . . . . . . . . . . . . . . . .

[8-s 32.1] [8-s 32.5] [8-s 32.10] [8-s 32.15] [8-s 32.20] [8-s 32.25] [8-s 32.30]

[8-s 32.1] Definitions As to “recklessly” see at [8-s 4A.1]. As to “vessel” see s 4 at [8-s 4]. As to “vessel in distress” see [8-s 57.5]. As to “stranded” — Stranding is said to occur when a ship is grounded other than in the “ordinary and natural course of navigation and management of the vessel”: Corcoran v Gurney (1853) 1 Ellis and Blackburn 456. PROOF MATERIAL ON SECTION 32 For the text of s 32, see [8-s 32] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 32.5] Form of indictment [8-s 32.10] Preventing shipwrecked person saving own life That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, did intentionally/recklessly prevent/impede [name of victim], a person who was on board of/having quitted, a ship/vessel which was in distress/wrecked/stranded/cast on shore, in his/her endeavour to save his/her life. [8-s 32.15] Preventing rescue of shipwrecked person That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, did intentionally/recklessly prevent/impede [name of rescuer] in his/her endeavour to save the life of [name of victim], a person who was on board of/having quitted a ship/vessel which was in distress/wrecked/stranded/cast on shore, endeavouring to save his/her life. [8-s 32.20] Elements of offence

The elements of the offence are —

[8-s 32.25] Preventing shipwrecked person saving his/her life (1) The accused prevented or impeded a person; (2) who was:

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s 33

[8-s 33.1]

CRIMES ACT 1900 (NSW) — PART 3

[8-s 32.30] Preventing rescue of shipwrecked person (1) The accused prevented or impeded a person; (2) who was endeavouring to save the life of another person; (3) who was: (i) on board of; or (ii) had quitted (left) a ship or vessel (see s 4 at [8-s 4]); (4) which was: (i) wrecked; (ii) stranded; or (iii) cast on shore (beached); (5) where the first-mentioned person was endeavouring to save the life of the second-mentioned person; and (6) the act of the accused was done intentionally [6-500] or recklessly [8-s 4A.1].

32A–32C

[ss 32A–32C rep Act 287 of 1987 Sch 1(3), opn 13 Jan 1988]

[8-s 33] Wounding or grievous bodily harm with intent 33 (1) Intent to cause grievous bodily harm A person who: (a) wounds any person, or (b) causes grievous bodily harm to any person, with intent to cause grievous bodily harm to that or any other person is guilty of an offence. Maximum penalty: Imprisonment for 25 years. (2) Intent to resist arrest A person who: (a) wounds any person, or (b) causes grievous bodily harm to any person, with intent to resist or prevent his or her (or another person’s) lawful arrest or detention is guilty of an offence. Maximum penalty: Imprisonment for 25 years. (3) Alternative verdict If on the trial of a person charged with an offence against this section the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against section 35, the jury may acquit the person of the offence charged and find the person guilty of an offence against section 35. The person is liable to punishment accordingly. [s 33 subst Act 38 of 2007 s 3 and Sch 1[4], opn 15 Feb 2008] Editor’s note: for proof material on s 33, see [27-15,650] behind the “27 — Informations and Indictments” guide card in volume 4.

COMMENTARY ON SECTION 33 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Relationship of wounding and grievous bodily harm . . . . . . . . . . . . .

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[8-s 33.1] [8-s 33.3]

Crimes

(i) on board of; or (ii) had quitted (left) a ship or vessel; (3) which was: (i) wrecked; (ii) stranded; or (iii) cast on shore (beached); (4) where that person was endeavouring to save his/her life; and (5) the act of the accused was done intentionally [6-500] or recklessly [8-s 4A.1].

[8-s 33.1]

s 33

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Intent to do grievous bodily harm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Compellability of spouse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Personal violence offence/domestic violence offence . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Wounding or grievous bodily harm with intent to cause grievous bodily harm — s 33(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Wounding or grievous bodily harm with intent to resist arrest — s 33(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Wounding or grievous bodily harm with intent to cause grievous bodily harm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Wounding or grievous bodily harm with intent to resist arrest . Alternative verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 33.5] [8-s 33.10] [8-s 33.15] [8-s 33.20] [8-s 33.25] [8-s 33.30] [8-s 33.35] [8-s 33.40] [8-s 33.45] [8-s 33.50] [8-s 33.55] [8-s 33.60]

[8-s 33.1] Definitions As to “wounds” see [8-s 35.5]. As to “grievous bodily harm” see at [8-s 4.1]. It has been held that for the purpose of a similar offence, the killing of a foetus can amount to the infliction of grievous bodily harm upon the mother: R v King (2003) 59 NSWLR 472; 139 A Crim R 132; [2003] NSWCCA 399; BC200308056; (2004) 11 Crim LN 93 [1626]. As to “loaded arms” see at [8-s 4]. As to “resist”, see [8-s 58.35]. As to powers of arrest see Pt 9 of the Law Enforcement (Powers and Responsibilities) Act at [21-s 99] and following. [8-s 33.3] Relationship of wounding and grievous bodily harm It is probable that the section establishes one offence whether the charge alleges a wounding or the infliction of grievous bodily harm and on a charge of wounding the court can take into account that grievous bodily harm was inflicted especially where the wounds themselves amounted to grievous bodily harm: Bourke v R [2010] NSWCCA 22; BC201000920; (2010) 17 Crim LN 37 [2690]. [8-s 33.5] Intent to do grievous bodily harm The intent may be a secondary rather than primary intent, as in R v Cox (1818) R R 362 where the prisoner was found guilty of an offence of cutting with intent to do grievous bodily harm when he cut the genitals of an infant with the main object of committing rape. In considering whether there was any intent to do grievous bodily harm, regard may be had to any weapon used or the means employed to inflict the harm: R v Wheeler (1844) 1 Cox CC 106; R v Williams and Dark [1908] QWN 33. In determining whether the intention existed it is erroneous to focus on a particular act of the accused occurring during a violent attack upon the victim and decide whether the intention existed at the time of that particular act rather than determining whether the intention existed throughout the whole incident: Sharp v R [2012] NSWCCA 134; BC201204615; 19(7) Crim LN [3086]. As to the infliction of grievous bodily harm with intent in a case of medical assault, where the allegation was that the doctor did not honestly believe that the patient had consented to the extent and nature of the surgery undertaken, see Reeves v R [2013] NSWCCA 34; BC201300682; 20(4) Crim LN [3194]. [8-s 33.10] Compellability of spouse Where the offence was committed upon a child under the age of 18 years, the spouse of the accused is a compellable witness: see at [2-s 279]. [8-s 33.15] Intoxication An offence under this section is an offence of specific intent for the purpose of Pt 11A Crimes Act 1900 relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. [8-s 33.20] Sentence The offence is subject to the provisions of Div 1A of Pt 4 (ss 54A–54D) of the Crimes (Sentencing Procedure Act) 1999 at [5-s 54A] and following. A standard non-parole period of 7 years is prescribed: Table following s 54D at [5-s 54D].

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s 33

CRIMES ACT 1900 (NSW) — PART 3

[8-s 33.60]

Where the offence resulted in the victim being in a vegetative state after being punched and stomped to the head it was well above the mid range of seriousness by reason of the injury inflicted: R v Jione [2007] NSWCCA 170; BC200704860; (2007) 14 Crim LN 101 [2259]. See also R v Mitchell, R v Gallagher (2007) 177 A Crim R 94; [2007] NSWCCA 296; BC200709042 where consideration was given to the nature of the injuries when sentencing for an offence of this nature. As to the evaluation of the seriousness of injuries inflicted depending upon whether the offence is one of wounding or the infliction of grievous bodily harm, see McCullough v R (2009) 194 A Crim R 439; [2009] NSWCCA 94; BC200902401; 16(5) Crim LN 64 [2545], approved in Wilkins v R [2009] NSWCCA 222; BC200908931. The decision was distinguished in Bourke v R (2010) 199 A Crim R 38; [2010] NSWCCA 22; BC201000920. McCullough was applied in Adams v R [2011] NSWCCA 47; BC201101502; 18(4) Crim LN 62 [2892] where on a charge of wounding with intent the judge took into account an injury amounting to grievous bodily harm unconnected with the wounding that was the subject of the charge.

PROOF MATERIAL ON SECTION 33 For the text of s 33, see [8-s 33] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 33.30] Form of indictment [8-s 33.35] Wounding or grievous bodily harm with intent to cause grievous bodily harm — s 33(1) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales wounded/caused grievous bodily harm to [name of victim] with intent to cause grievous bodily harm. [8-s 33.40] Wounding or grievous bodily harm with intent to resist arrest — s 33(2) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales wounded/caused grievous bodily harm to [name of victim] intending to resist/prevent the lawful arrest/detention of himself/herself or [state name of other person whose arrest or detention was sought to be resisted or prevented]. [8-s 33.45] Elements of offence

The elements of the offence are —

[8-s 33.50] Wounding or grievous bodily harm with intent to cause grievous bodily harm (1) The accused wounded [8-s 35.5] or caused grievous bodily harm [8-s 4.1] to the victim; (2) with intent [6-500] to cause grievous bodily harm [8-s 4.1][8-s 35.5]. [8-s 33.55] Wounding or grievous bodily harm with intent to resist arrest (1) The accused wounded [8-s 35.5] or caused grievous bodily harm [8-s 4.1] to the victim; (2) with intent [6-500] to resist or prevent the lawful arrest or detention of himself/herself or some other person [8-s 33.1]. [8-s 33.60] Alternative verdict If on the trial of a person charged with an offence against this section the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against s 35, the jury may acquit the person of the offence charged and find the person guilty of an offence against s 35. The person is liable to punishment accordingly: see s 33(3) at [8-s 33].

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Crimes

[8-s 33.25] Personal violence offence/domestic violence offence This offence (or an offence of attempting to commit this offence) is a “personal violence offence” as defined in s 4 of the Crimes (Domestic and Personal Violence) Act 2007 at [8-5015] and, when committed by a person against another person with whom the offender has or has had a domestic relationship, is a “domestic violence offence” as defined in s 11 of that Act at [8-5240].

[8-s 33A]

s 33A

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

[8-s 33A] Discharging firearm etc with intent 33A (1) Intent to cause grievous bodily harm A person who: (a) discharges any firearm or other loaded arms, or (b) attempts to discharge any firearm or other loaded arms, with intent to cause grievous bodily harm to any person is guilty of an offence. Maximum penalty: Imprisonment for 25 years. (2) Intent to resist arrest etc A person who: (a) discharges any firearm or other loaded arms, or (b) attempts to discharge any firearm or other loaded arms, with intent to resist or prevent his or her (or another person’s) lawful arrest or detention is guilty of an offence. Maximum penalty: Imprisonment for 25 years. [s 33A subst Act 38 of 2007 s 3 and Sch 1[5], opn 15 Feb 2008] Editor’s note: for proof material on s 33A, see [27-15,700] behind the “27 — Informations and Indictments” guide card in volume 4.

COMMENTARY ON SECTION 33A Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Compellability of spouse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Personal violence offence/domestic violence offence . . . . . . . . . . . . . Standard non-parole period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Discharge firearm etc with intent to cause grievous bodily harm — s 33A(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Discharge firearm etc with intent to resist arrest etc — s 33A(2) . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Discharge firearm etc with intent to cause grievous bodily harm . Discharge firearm etc with intent to resist arrest etc . . . . . . . . . .

[8-s 33A.1] [8-s 33A.5] [8-s 33A.10] [8-s 33A.15] [8-s 33A.20] [8-s 33A.25] [8-s [8-s [8-s [8-s [8-s

33A.30] 33A.35] 33A.40] 33A.45] 33A.50]

[8-s 33A.1] Definitions As to “reckless” see [8-s 4A]. As to “loaded arms” and “grievous bodily harm” see [8–s 4] and [8-s 4.1]. As to “lawful apprehension” see power of arrest at Pt 9 of the Law Enforcement (Powers and Responsibilities) Act at [21-s 99]. As to “resist” see [8-s 58.40]. [8-s 33A.5] Compellability of spouse Where the offence was committed upon a child under the age of 18 years, the spouse of the accused is a compellable witness: see at [2-279]. [8-s 33A.10] Intoxication An offence under this section is an offence of specific intent for the purpose of Pt 11A Crimes Act 1900 relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. [8-s 33A.15] Personal violence offence/domestic violence offence This offence (or an offence of attempting to commit this offence) is a “personal violence offence” as defined in s 4 of the Crimes (Domestic and Personal Violence) Act 2007 at [8-5015] and, when committed by a person against another person with whom the offender has or has had a domestic relationship, is a “domestic violence offence” as defined in s 11 of that Act at [8-5240]. [8-s 33A.20] Standard non-parole period A standard non-parole period of 9 years applies where an offence under s 33A(1) or s 33A(2) is committed on or after 21 August 2015: Sch 2 cl 69 Crimes (Sentencing Procedure) Act 1999 at [5-Sch 2].

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s 33B

CRIMES ACT 1900 (NSW) — PART 3

[8-s 33B.1]

PROOF MATERIAL ON SECTION 33A For the text of s 33A, see [8-s 33A] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 33A.25] Form of indictment [8-s 33A.30] Discharge firearm etc with intent to cause grievous bodily harm — s 33A(1) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales discharged/attempted to discharge a [type of firearm or other loaded arms] with intent to cause grievous bodily harm. [8-s 33A.35] Discharge firearm etc with intent to resist arrest etc — s 33A(2) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales discharged/attempted to discharge a [type of firearm or other loaded arms] with intent to resist/prevent the lawful arrest/detention of [name of person being arrested or detained]. [8-s 33A.40] Elements of offence

The elements of the offence are —

[8-s 33A.45] Discharge firearm etc with intent to cause grievous bodily harm (1) The accused discharged or attempted [6-300] to discharge any firearm or other

loaded arms [8-s 4]; [8-s 33A.50] Discharge firearm etc with intent to resist arrest etc (1) The accused discharged or attempted [6-300] to discharge any firearm or other

loaded arms [8-s 4]; (2) with intent [6-500] to resist or prevent the lawful arrest or detention [8-s 352]

of himself/herself or another person.

[8-s 33B] Use or possession of weapon to resist arrest etc 33B (1) Any person who: (a) uses, attempts to use, threatens to use or possesses an offensive weapon or instrument, or (b) threatens injury to any person or property, with intent to commit an indictable offence or with intent to prevent or hinder the lawful apprehension or detention either of himself or herself or any other person or to prevent or hinder a police officer from investigating any act or circumstance which reasonably calls for investigation by the officer is liable to imprisonment for 12 years. [subs (1) am Act 94 of 2006 s 4 and Sch 3[1], opn 1 Feb 2007]

(2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in the company of another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 15 years. [subs (2) insrt Act 84 of 2001 s 3 and Sch 1[2], opn 14 Dec 2001] [s 33B am Act 27 of 1989 s 3 and Sch 1(2); Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998; am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000] Editor’s note: for proof material on s 33B, see [27-15,750] behind the “27 — Informations and Indictments” guide card in volume 4.

COMMENTARY ON SECTION 33B Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[8-s 33B.1] [8-s 33B.3] [8-s 33B.5]

Crimes

(2) with intent [6-500] to cause grievous bodily harm [8-s 4.1][8-s 35.5].

[8-s 33B.1]

s 33B

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Use offensive weapon with intent to commit an indictable offence — s 33B(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Use offensive weapon with intent to prevent lawful apprehension — s 33B(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Use offensive weapon with intent to hinder investigation — s 33B(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Threaten injury with intent to commit an indictable offence — s 33B(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Threaten injury with intent to prevent lawful apprehension — s 33B(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Use offensive weapon with intent to hinder investigation — s 33B(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Aggravated offence — s 33B(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Use offensive weapon with intent . . . . . . . . . . . . . . . . . . . . . . . . . . . Threaten injury with intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Aggravated use of offensive weapon with intent . . . . . . . . . . . . . . Aggravated threaten injury with intent . . . . . . . . . . . . . . . . . . . . . . .

[8-s 33B.10] [8-s 33B.15] [8-s 33B.20] [8-s 33B.25] [8-s 33B.30] [8-s 33B.35] [8-s 33B.40] [8-s [8-s [8-s [8-s [8-s [8-s [8-s

33B.45] 33B.50] 33B.55] 33B.60] 33B.65] 33B.70] 33B.75]

[8-s 33B.1] Summary disposal An offence under s 33B(1) is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment. See at [2-s 260] and [2-Sch 1] Pt 1 cl 2. The maximum penalty which can be imposed is two years imprisonment, at [2-s 267]. [8-s 33B.3] Definitions As to “lawful apprehension” see power of arrest at [8-s 352]. As to “offensive weapon”, see [8-s 4.5]. A motor vehicle driven directly at a police officer may be an offensive weapon for the purposes of the section: R v Hamilton (1993) 66 A Crim R 575; 10 Petty SR 4551. It is not necessary for there to be any specific statement or act by the accused evincing an intention to inflict injury on the police officer in order that there be a threat within the section: R v Perez (NSWCCA, Gleeson CJ, Kirby P and Campbell J, 11 December 1991, unreported, BC9101351). [8-s 33B.5] Sentencing Offences against s 33B are regarded by the Court of Criminal Appeal as extremely serious and “it is incumbent on the court to show an appropriate measure of support for police officers who undertake a difficult dangerous and usually thankless task”: R v Hamilton (1993) 66 A Crim R 575; 10 Petty SR 4551. [8-s 33B.10] Intoxication An offence under this section which is alleged to have been committed after 16 August 1996 is an offence of specific intent for the purpose of Pt 11A Crimes Act 1900 relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. PROOF MATERIAL ON SECTION 33B For the text of s 33B, see [8-s 33B] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 33B.15] Form of indictment [8-s 33B.20] Use offensive weapon with intent to commit an indictable offence — s 33B(1)(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales used/attempted to use/threatened to use/possessed an offensive weapon/instrument with intent to commit an indictable offence.

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s 33B

CRIMES ACT 1900 (NSW) — PART 3

[8-s 33B.65]

[8-s 33B.25] Use offensive weapon with intent to prevent lawful apprehension — s 33B(1)(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales used/attempted to use/threatened to use/possessed an offensive weapon/instrument with intent to prevent the lawful apprehension/detention of himself/herself or [name of accused or person sought to be apprehended or detained]. [8-s 33B.30] Use offensive weapon with intent to hinder investigation — s 33B(1)(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales used/attempted to use/threatened to use/possessed an offensive weapon/instrument with intent to prevent/hinder a member of the police force from investigating any act or circumstance which reasonably called for investigation. [8-s 33B.35] Threaten injury with intent to commit an indictable offence — s 33B(1)(b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales threatened injury to [name of subject person]/[describe subject property] with intent to commit an indictable offence.

[8-s 33B.45] Use offensive weapon with intent to hinder investigation — s 33B(1)(b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales threatened injury to [name of subject person]/[describe subject property] with intent to prevent/hinder a member of the police force from investigating any act or circumstance which reasonably called for investigation. [8-s 33B.50] Aggravated offence — s 33B(2) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, while in company of another person/persons, [state relevant averment of simple offence above]. [8-s 33B.55] Elements of offence

The elements of the offence are—

[8-s 33B.60] Use offensive weapon with intent (1) The accused used or possessed an offensive weapon or instrument [8-s 4], or

attempted [6-300] or threatened to use such weapon or instrument; and (2) the accused did so with the intention [6-500] of: (i) committing an indictable offence [29-45,200]; (ii) preventing or hindering the lawful apprehension or detention of that person or another person; or (iii) preventing or hindering a member of the police force from investigating any act or circumstances which reasonably called for investigation by such member of the police force. [8-s 33B.65] Threaten injury with intent (1) The accused threatened injury to any person or property; and (2) the accused did so with the intention [6-500] of: (i) committing an indictable offence [29-45,200]; (ii) preventing or hindering the lawful apprehension or detention of that person or another person; or (iii) preventing or hindering a member of the police force from investigating any act or circumstances which reasonably called for investigation by such member of the police force.

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Crimes

[8-s 33B.40] Threaten injury with intent to prevent lawful apprehension — s 33B(1)(b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales threatened injury to [name of subject person]/[describe subject property] with intent to prevent the lawful apprehension/detention of himself/herself or [name of person sought to be apprehended or detained].

[8-s 33B.70]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 33B

[8-s 33B.70] Aggravated use of offensive weapon with intent (1) The accused was in company of another person or persons [8-s 97.10]; and (2) the accused used or possessed an offensive weapon or instrument [8-s 4], or attempted [6-300] or threatened to use such weapon or instrument; and (3) the accused did so with the intention [6-500] of: (i) committing an indictable offence [29-45,200]; (ii) preventing or hindering the lawful apprehension or detention of that person or another person; or (iii) preventing or hindering a member of the police force from investigating any act or circumstances which reasonably called for investigation by such member of the police force. [8-s 33B.75] Aggravated threaten injury with intent (1) The accused was in company of another person or persons [8-s 97.10]; and (2) the accused threatened injury to any person or property; and (3) the accused did so with the intention [6-500] of: (i) committing an indictable offence [29-45,200]; (ii) preventing or hindering the lawful apprehension or detention of that person or another person; or (iii) preventing or hindering a member of the police force from investigating any act or circumstances which reasonably called for investigation by such member of the police force.

34

[s 34 rep Act 38 of 2007 s 3 and Sch 1[6], opn 25 Feb 2008]

[8-s 35] Reckless grievous bodily harm or wounding 35 (1) Reckless grievous bodily harm — in company A person who, in the company of another person or persons: (a) causes grievous bodily harm to any person, and (b) is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence. Maximum penalty: Imprisonment for 14 years. [subs (1) subst Act 41 of 2012 Sch 1[1], opn 21 June 2012]

(2) Reckless grievous bodily harm A person who: (a) causes grievous bodily harm to any person, and (b) is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. [subs (2) subst Act 41 of 2012 Sch 1[1], opn 21 June 2012]

(3) Reckless wounding — in company A person who, in the company of another person or persons: (a) wounds any person, and (b) is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. [subs (3) subst Act 41 of 2012 Sch 1[1], opn 21 June 2012]

(4) Reckless wounding A person who: (a) wounds any person, and

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s 35

CRIMES ACT 1900 (NSW) — PART 3

[8-s 35.10]

(b) is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence. Maximum penalty: Imprisonment for 7 years. [subs (4) subst Act 41 of 2012 Sch 1[1], opn 21 June 2012]

(5) Alternative verdict If on the trial of a person charged with an offence against any subsection of this section the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against any other subsection of this section (that carries a lesser maximum penalty), the jury may acquit the person of the offence charged and find the person guilty of an offence against that other subsection. The person is liable to punishment accordingly. [s 35 subst Act 38 of 2007 s 3 and Sch 1[7], opn 27 Sep 2007]

COMMENTARY ON SECTION 35 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope of the offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Reckless grievous bodily harm – in company — s 35(1) . . . . . . Reckless grievous bodily harm — s 35(2) . . . . . . . . . . . . . . . . . . . Reckless wounding – in company — s 35(3) . . . . . . . . . . . . . . . . Reckless wounding — s 35(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Reckless grievous bodily harm – in company . . . . . . . . . . . . . . . . Reckless grievous bodily harm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Reckless wounding – in company . . . . . . . . . . . . . . . . . . . . . . . . . . . Reckless wounding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alternative verdicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 35.1] [8-s 35.5] [8-s 35.10] [8-s 35.15] [8-s 35.20] [8-s 35.25] [8-s 35.30] [8-s 35.35] [8-s 35.40] [8-s 35.45] [8-s 35.50] [8-s 35.55] [8-s 35.60] [8-s 35.65]

[8-s 35.1] Summary disposal An offence under s 35 is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment, see s 260(1) at [2-s 260] and [2-Sch 1] Pt 1 cl 2. The maximum penalty which can be imposed is 2 years imprisonment: see [2-s 267]. [8-s 35.5] Definitions As to “recklessly” see [8-s 4A]. It should be noted that the decision in Blackwell v R (2011) 208 A Crim R 392; [2011] NSWCCA 93; BC201102296 as to the nature of recklessness for the purpose of this offence no longer applies to the present offence which is in accord with the common law view of recklessness for the purpose of “malice”. As to “in company” see [8-s 59.5]. “Wounds” is an injury involving the breaking or cutting of the interior layer of the skin (dermis) and the breaking of the outer layer (epidermis) is not sufficient: R v Smith (1837) 8 C & P 173. An internal haemorrhage will not suffice. A wound may be inflicted by a fist and a split lip is sufficient: R v Shepherd [2003] NSWCCA 351; BC200307249. “Grievous bodily harm”: see [8-s 4.1]. As to “self-defence” see [8-s 58.15]. [8-s 35.10] Scope of the offence The nature of the offence of recklessly inflict grievous bodily harm was considered in Aubrey v R (2017) 343 ALR 538; 91 ALJR 601; [2017] HCA 18; BC201703306; 24(5) Crim LN [3828] where it was held that the section covered the situation where the accused was charged with an allegation that he transmitted a disease to the complainant. It was held that “inflicts” is not confined to the direct causing of harm by an application of force to the victim.

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Crimes

Editor’s note: for proof material on s 35, see [27-15,800] behind the “27 — Informations and Indictments” guide card in volume 4. For a historical version of this section please see [8A-REP s 35].

[8-s 35.15]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 35

PROOF MATERIAL ON SECTION 35 For the text of s 35, see [8-s 35] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 35.15] Form of indictment [8-s 35.20] Reckless grievous bodily harm – in company — s 35(1) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, while in company of a person/persons recklessly caused grievous bodily harm to [name of victim]. [8-s 35.25] Reckless grievous bodily harm — s 35(2) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales recklessly caused grievous bodily harm to [name of victim]. [8-s 35.30] Reckless wounding – in company — s 35(3) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, while in company of a person/persons recklessly wounded [name of victim]. [8-s 35.35] Reckless wounding — s 35(4) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales recklessly wounded [name of victim]. [8-s 35.40] Elements of offence

The elements of the offence are—

[8-s 35.45] Reckless grievous bodily harm – in company (1) The accused was in the company of another person or persons [8-s 97.10]; (2) the accused caused grievous bodily harm [8-s 4.1] to a person; and (3) the act was done recklessly [8-s 4A]. [8-s 35.50] Reckless grievous bodily harm (1) The accused caused grievous bodily harm [8-s 4.1] to a person; and (2) the act was done recklessly [8-s 4A]. [8-s 35.55] Reckless wounding – in company (1) The accused was in the company of another person or persons [8-s 97.10]; (2) the accused wounded [8-s 35.5] a person; and (3) the act was done recklessly [8-s 4A]. [8-s 35.60] Reckless wounding (1) The accused wounded [8-s 35.5] a person; and (2) the act was done recklessly [8-s 4A]. [8-s 35.65] Alternative verdicts There cannot be a conviction for common assault upon an indictment laid under this section only: R v Tierney (1885) 1 WN (NSW) 114a. There cannot be a conviction for assault occasioning actual bodily harm [8-s 59] unless the indictment contains a special count separately charging that offence: R v Jenkins (1877) Knox 295. Furthermore, if on the trial of a person charged with an offence against any subsection of this section the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against any other subsection of this section (that carries a lesser maximum penalty), the jury may acquit the person of the offence charged and find the person guilty of an offence against that other subsection. The person is liable to punishment accordingly: see s 35(5) at [8-s 35].

[8-s 35A] Causing dog to inflict grievous bodily harm or actual bodily harm 35A (1) Cause dog to inflict grievous bodily harm A person who: (a) has control of a dog, and

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s 35A

CRIMES ACT 1900 (NSW) — PART 3

[8-s 35A.5]

(b) does any act that causes the dog to inflict grievous bodily harm on another person, and (c) is reckless as to the injury that may be caused to a person by the act, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. [subs (1) subst Act 38 of 2007 s 3 and Sch 1[8], opn 15 Feb 2008]

(2) Cause dog to inflict actual bodily harm A person who: (a) has control of a dog, and (b) does any act that causes the dog to inflict actual bodily harm on another person, and (c) is reckless as to the injury that may be caused to a person by the act, is guilty of an offence. Maximum penalty: Imprisonment for 5 years. (3) Alternative finding If, on the trial of a person for an offence under subsection (1), it appears that grievous bodily harm was not inflicted on the other person but that actual bodily harm was inflicted, the person may be found not guilty of the offence charged but guilty of an offence under subsection (2) and be liable to punishment accordingly. (4) Doing an act includes omitting to do the act In this section, a reference to the doing of an act includes a reference to omitting to do the act. [s 35A insrt Act 23 of 1993 s 3 and Sch 1] Editor’s note: for proof material on s 35A, see [27-15,850] behind the “27 — Informations and Indictments” guide card in volume 4.

COMMENTARY ON SECTION 35A Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 35A.1] Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 35A.5] Destruction orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8 s 35A.10] Control order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 35A.15] Disqualification from owning a dog . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 35A.20] Personal violence offence/domestic violence offence . . . . . . . . . . . . . [8-s 35A.25] Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 35A.30] Cause dog to inflict grievous bodily harm — s 35A(1) . . . . . . . [8-s 35A.35] Cause dog to inflict actual bodily harm — s 35A(2) . . . . . . . . . . [8-s 35A.40] Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 35A.45] Cause dog to inflict grievous bodily harm . . . . . . . . . . . . . . . . . . . [8-s 35A.50] Cause dog to inflict actual bodily harm . . . . . . . . . . . . . . . . . . . . . . [8-s 35A.55] Alternative finding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 35A.60] [8-s 35A.1] Summary disposal An offence under s 35A(1) is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment, see s 260(1) at [2-s 260] and [2-Sch 1] Pt 1 cl 2. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. An offence under s 35A(2) is a Table 2 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment by the prosecutor, see s 260(2) at [2-s 260] and [2-Sch 1] Pt 1 cl 1. The maximum penalty which can be imposed is 2 years imprisonment, or a fine of 50 penalty units, or both: see at [2-s 268]. [8-s 35A.5] Definitions As to “recklessness” see at [8-s 4A]. “Grievous bodily harm”: see [8-s 4.1]. “Actual bodily harm” see [8-s 59.5].

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[subs (2) subst Act 38 of 2007 s 3 and Sch 1[8], opn 15 Feb 2008]

[8 s 35A.10]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 35A

[8 s 35A.10] Destruction orders A court dealing with an offence under s 35A may make an order for destruction of a dog under s 48 of the Companion Animals Act 1998: see [12–6730]. [8-s 35A.15] Control order A control order may be made by a court in proceedings for a s 35A offence: s 47 Companion Animals Act 1998 at [12-6725]. [8-s 35A.20] Disqualification from owning a dog A person who is convicted of a s 35A offence is permanently disqualified from owning a dog: s 23 Companion Animals Act 1998 at [12-6305]. [8-s 35A.25] Personal violence offence/domestic violence offence This offence (or an offence of attempting to commit this offence) is a “personal violence offence” as defined in s 4 of the Crimes (Domestic and Personal Violence) Act 2007 at [8-5015] and, when committed by a person against another person with whom the offender has or has had a domestic relationship, is a “domestic violence offence” as defined in s 11 of that Act at [8-5240]. PROOF MATERIAL ON SECTION 35A For the text of s 35A, see [8-s 35A] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 35A.30] Form of indictment [8-s 35A.35] Cause dog to inflict grievous bodily harm — s 35A(1) That [name of accused] on [date of alleged offence] at [locality/suburb], having control of a dog, did, reckless as to the injury that may be caused to a person, [describe act done or omitted by accused eg “ordered dog to attack”] which caused the dog to inflict grievous bodily harm upon [name of victim]. [8-s 35A.40] Cause dog to inflict actual bodily harm — s 35A(2) That [name of accused] on [date of alleged offence] at [locality/suburb], having control of a dog, did, reckless as to the injury that may be caused to a person, [describe act done or omitted by accused eg “ordered dog to attack”] which caused the dog to inflict actual bodily harm upon [name of victim]. [8-s 35A.45] Elements of offence

The elements of the offence are—

[8-s 35A.50] Cause dog to inflict grievous bodily harm (1) The accused had control of a dog; and (2) recklessly as to the injury that may be caused to a person [8-s 4A]; (3) did an act or omission [8-s 35A(4)]; (4) which caused the dog to inflict grievous bodily harm [8-s 4.1] upon another

person. [8-s 35A.55] Cause dog to inflict actual bodily harm (1) The accused had control of a dog; and (2) recklessly as to the injury that may be caused to a person [8-s 4A]; (3) did an act or omission [8-s 35A(4)]; (4) which caused the dog to inflict actual bodily harm [8-s 59.5] upon another

person. [8-s 35A.60] Alternative finding If, on the trial of a person for an offence under subs (1), it appears that grievous bodily harm was not inflicted on the other person but that actual bodily harm was inflicted, the person may be found not guilty of the offence charged but guilty of an offence under subs (2) and be liable to punishment accordingly: see s 35A(3) at [8-s 35A]

36

[s 36 rep Act 38 of 2007 s 3 an Sch 1[9], opn 15 Feb 2008]

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s 37

CRIMES ACT 1900 (NSW) — PART 3

[8-s 37.5]

[8-s 37] Choking, suffocation and strangulation 37 (1A) A person is guilty of an offence if the person intentionally chokes, suffocates or strangles another person without the other person’s consent. Maximum penalty: imprisonment for 5 years. (1) A person is guilty of an offence if the person: (a) intentionally chokes, suffocates or strangles another person so as to render the other person unconscious, insensible or incapable of resistance, and (b) is reckless as to rendering the other person unconscious, insensible or incapable of resistance. Maximum penalty: imprisonment for 10 years. (2) A person is guilty of an offence if the person: (a) chokes, suffocates or strangles another person so as to render the other person unconscious, insensible or incapable of resistance, and (b) does so with the intention of enabling himself or herself to commit, or assisting any other person to commit, another indictable offence. Maximum penalty: imprisonment for 25 years. (3) In this section: another indictable offence means an indictable offence other than an offence against this section. [s 37 subst Act 23 of 2014 Sch 1[1], opn 5 June 2014]

COMMENTARY ON SUBSTITUTED SECTION 37 2014 Amendments to s 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 37(1) offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 37(2) offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 37.1] [8-s 37.5] [8-s 37.10] [8-s 37.15] [8-s 37.20]

[8-s 37.1] 2014 Amendments to s 37 Section 37 was amended by the Crimes Amendment (Strangulation) Act 2014 to introduce an additional strangulation offence (s 37(1)) and to modernise the offence of strangulation previously contained in the section (s 37(2)). In the second reading speech (Legislative Assembly, 7 May 2014), the Attorney General said: Strangulation is a potentially fatal act, which causes significant physical and psychological trauma to victims. It is prevalent in domestic violence incidents. The use of strangulation in this context is a recognised indicator of the risk of further harm to victims of domestic violence, including homicide. The Director of Public Prosecutions raised concerns with the Government as to the adequacy of the current provision concerning strangulation in section 37 of the Crimes Act. He identified numerous cases of strangulation. Some of these were acts of intimidation while others were serious assaults resulting in unconsciousness. Time and again these cases were dealt with only as common assaults. This bill responds to those concerns. The 2014 Act repeals s 37 and replaces it with two separate strangulation offences. [8-s 37.5] Section 37(1) offences Section 37(1) provides for a new offence which does not require proof of an intention to commit another indictable offence, which now constitutes the aggravated offence in s 37(2). An offence under s 37(1) is a Table 1 offence: s 260(1) of the Criminal Procedure Act 1986 at [2-s 260] and [2-Sch 1]. The purpose and object of the new s 37(1) were explained by the Attorney General in the second reading speech in the following way:

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[subs (1A) insrt Act 83 of 2018 Sch 3 item 3.1, opn 1 Dec 2018]

[8-s 37.5]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 37

It is a new offence that will apply if a person intentionally chokes, suffocates or strangles another person so as to render the other person unconscious, insensible or incapable of resistance, and when the person is reckless as to rendering the other person unconscious, insensible or incapable of resistance. This offence therefore will apply to the offender who may not have an intention to kill but simply an intention to overpower. The phrase ‘incapable of resistance’ is part of the current strangulation provision. It is retained in the new provisions, and emphasises that actual unconsciousness is not a requisite element of the offence. This addresses the domestic violence scenario when a victim is placed in a state of such fear by the offender’s actions that he or she is incapable of resisting the offender. It avoids the evidentiary difficulty of proving a lack of consciousness when the only prosecution witness may be the person who was unconscious. The new provision under section 37(1)(a) requires an intentional act on behalf of the offender. This both reflects the seriousness of the offence and ensures that unintentional acts when transient or inadvertent suffocation may occur — for example, during a sporting activity such as wrestling or judo — are not covered. It is not intended to capture such behaviour when both participants have freely entered into the activity and the strangulation is an accidental and unintended incident of that activity. However, intention as to the outcome of the act of strangulation is not required under section 37(1)(b). The offence will be established where an offender is reckless as to whether or not a victim is rendered insensible, unconscious or incapable of resistance as a result of the offender’s actions. Any attempt to commit the offence under section 37(1) may be dealt with under section 344A of the Act, which provides that a person who attempts to commit an offence under the Act for which a penalty is provided is liable to the same penalty. This means that a person who attempts to choke the victim but is stopped in the act may be liable for prosecution and subject on conviction to the same maximum penalty as though the act had been completed. Importantly, unlike existing section 37, the proposed basic offence does not require proof of an intention to commit any other offence. The act of strangulation alone will be sufficient. [8-s 37.10] Section 37(2) offences Section 37(2) provides for a varied form of the old s 37 offence. The Attorney General said in the second reading speech: The second offence is in proposed section 37(2). It does not substantively change the existing offence under section 37 of the Act but simplifies that offence in a manner and with language consistent with the language of the new simple offence. Section 37(2) will apply if a person chokes, suffocates or strangles another person so as to render the other person insensible, unconscious or incapable of resistance, and does so with the intention of enabling himself or herself to commit, or assist any other person to commit, another indictable offence. As with the simple offence, an attempt to commit the offence, which is when someone tries but fails to choke, suffocate or strangle a victim to commit another indictable offence, is covered by the general attempt provision of section 344A of the Act. ... Two steps will be required for proof of the aggravated offence: the act of strangulation, and the intent to commit a separate offence. An example would be when an offender strangles a victim for the purpose of then sexually assaulting the victim. This definition reflects, but adds greater clarity to, the reference in the current section 37 to ‘an indictable offence’. It reflects the existing application of the offence. Recklessness as to the outcome of the strangulation is not expressly provided in the aggravated offence because the offence already incorporates a clear intention attached to the outcome of the strangulation, which is the commission of another indictable offence. The term “another indictable offence” used in s 37(2) is defined in s 37(3). An offence under s 37(2) is a strictly indictable offence.

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s 38

CRIMES ACT 1900 (NSW) — PART 3

[8-s 38.10]

An offence under s 37(2) is an offence of specific intent for the purpose of Pt 11A of the Crimes Act 1900 relating to intoxication: see s 428B of the Crimes Act 1900 ff at [8-s 428B]. PROOF MATERIAL ON SECTION 37 For the text of s 37, see [8-s 37] behind the “8 — Crimes Act” guidecard.

[8-s 37.20] Elements of offence The elements of the offence are— (1) The accused: (a) intentionally choked, suffocated or strangled another person and, (b) recklessly rendered that person unconscious, insensible or incapable of resistance. (2) The accused: (a) choked, suffocated or strangled another person, (b) so as to render that person unconscious, insensible or incapable of resistance, and (c) did so with the intention of enabling himself or herself to commit, or to assist any other person to commit, an indictable offence (other than offence under the section).

[8-s 38] Using intoxicating substance to commit an indictable offence 38 A person who: (a) administers an intoxicating substance to another person, or (b) causes another person to take an intoxicating substance, with intent to enable himself or herself, or to assist a third person, to commit an indictable offence is guilty of an offence. Maximum penalty: Imprisonment for 25 years. [s 38 subst Act 1 of 2008 s 3 and Sch 1, opn 28 Mar 2008] Editor’s note: for proof material on s 38, see [27-15,950] behind the “27 — Informations and Indictments” guide card in volume 4.

COMMENTARY ON SECTION 38 Personal violence offence/domestic violence offence . . . . . . . . . . . . . Cause to take . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 38.5] [8-s 38.10] [8-s 38.15] [8-s 38.20]

[8-s 38.5] Personal violence offence/domestic violence offence This offence (or an offence of attempting to commit this offence) is a “personal violence offence” as defined in s 4 of the Crimes (Domestic and Personal Violence) Act 2007 at [8-5015] and, when committed by a person against another person with whom the offender has or has had a domestic relationship, is a “domestic violence offence” as defined in s 11 of that Act at [8-5240]. [8-s 38.10] Cause to take The meaning of the phrase “cause to take” in s 38 was considered in Riley v R [2011] NSWCCA 238; BC201108764, where it was held, applying R v Wilhelm (2010)

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[8-s 37.15] Form of indictment (1) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales intentionally choked/suffocated/strangled [name of victim] and is reckless as to rendering her/him unconscious/insensible/incapable of resistance. (2) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales choked/suffocated/strangled [name of victim] so as to render him/her unconscious/insensible/incapable of resistance and did so with the intention of enabling himself/herself to commit/to assist [another person who is thus able to commit an indictable offence] to commit [state an indictable offence].

[8-s 38.10]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 38

77 NSWLR 1; 200 A Crim R 413; [2010] NSWSC 334; BC201002419, that a direction that “cause to take” meant “substantially influence” was a misdirection in law — “cause to take” covered a situation where a person in authority over another commands or directs them to take a substance. PROOF MATERIAL ON SECTION 38 For the text of s 38, see [8-s 38] behind the “8 — Crimes Act” guide card in Vol 1. [8-s 38.15] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did administer to/cause to be taken by [name of victim] an intoxicating substance, being [state type of intoxicating substance] with the intention of enabling himself/herself to commit [state an indictable offence]/with the intention of assisting [name of person if known] to commit [state an indictable offence]. [8-s 38.20] Elements of offence The elements of the offence are— (1) The accused: (i) administered [8-s 27.1] to the victim; or (ii) caused to be taken [8-s 39.7];

an intoxicating substance [8-s 4]; (2) by doing so the accused intended [6-500] to enable himself/herself to commit an indictable offence [29-45,200] or intended to assist another person to commit an indictable offence.

[8-s 38A] Spiking drink or food 38A (1) In this section: harm includes an impairment of the senses or understanding of a person that the person might reasonably be expected to object to in the circumstances. impair includes further impair. (2) A person: (a) who causes another person to be given or to consume drink or food: (i) containing an intoxicating substance that the other person is not aware it contains, or (ii) containing more of an intoxicating substance than the other person would reasonably expect it to contain, and (b) who intends a person to be harmed by the consumption of the drink or food, is guilty of an offence. Maximum penalty: Imprisonment for 2 years or 100 penalty units, or both. (3) For the purposes of this section, giving a person drink or food includes preparing the drink or food for the person or making it available for consumption by the person. (4) A person does not commit an offence against this section if the person has reasonable cause to believe that each person who was likely to consume the drink or food would not have objected to consuming the drink or food if the person had been aware of the presence and quantity of the intoxicating substance in the drink or food. (5) A person who uses an intoxicating substance in the course of any medical, dental or other health professional practice does not commit an offence against this section. (6) An offence against this section is a summary offence. [s 38A insrt Act 1 of 2008 s 3 and Sch 1, opn 28 Mar 2008] Editor’s note: for proof material on s 38A, see [27-15,960] behind the “27 — Informations and Indictments” guide card in volume 4.

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s 39

CRIMES ACT 1900 (NSW) — PART 3

[8-s 39]

PROOF MATERIAL ON SECTION 38A For the text of s 38A, see [8-s 38A] behind the “8 — Crimes Act” guide card in Vol 1. [8-s 38A.5] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did cause [name of victim] to be given/to consume drink/food containing an intoxicating substance, being [state type of intoxicating substance] knowing that [name of the victim] was not aware that the drink/food contained the intoxicating substance and with the intention of causing [him/her] to be harmed by the consumption of the food/drink. That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did cause [name of victim] to be given/to consume drink/food knowing that it contained more of an intoxicating substance, being [state type of intoxicating substance] than [name of the victim] would reasonably expect it to contain and with the intention of causing any person to be harmed by the consumption of the food/drink. [8-s 38A.10] Elements of offence The elements of the offence are— (1) The accused caused the victim: (i) to be given [8-s 38A(3)]; or (ii) to consume [8-s 39.7]

intoxicating substance [8-s 4]; or (ii) contained more of an intoxicating substance than the victim would reasonably expect it to contain. (3) the accused intended [6-500] any person to be harmed [8-38A] by the consumption of the drink or food. [8-s 38A.15] Statutory provision A person does not commit an offence against this section if the person had reasonable cause to believe that each person who was likely to consume the drink or food would not have objected to consuming the drink or food if the person had been aware of the presence and quantity of the intoxicating substance in the drink or food: see s 38A(4). A person who uses an intoxicating substance in the course of any medical, dental or other health professional practice does not commit the offence: s 38A(5).

[8-s 39] Using poison etc to endanger life or inflict grievous bodily harm 39 (1) A person is guilty of an offence if: (a) the person administers to another person, or causes another person to take, any poison, intoxicating substance or other destructive or noxious thing, and (b) the poison, intoxicating substance or other thing endangers the life of, or inflicts grievous bodily harm on, the other person, and (c) the person intends to injure, or is reckless about injuring, the other person. Maximum penalty: Imprisonment for 10 years. [subs (1) am Act 1 of 2008 s 3 and Sch 1, opn 28 Mar 2008]

(2) If on the trial of a person charged with an offence against this section the jury is not satisfied that the offence is proven but is satisfied that the person has committed an

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Crimes

drink or food. (2) The accused knew that the drink or food either: (i) contained: (a) an intoxicating substance [8-s 4]; and (b) the victim was not aware that the drink or food contained an

[8-s 39]

s 39

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

offence against section 41 or 41A, the jury may acquit the person of the offence charged and find the person guilty of an offence against section 41 or 41A. The person is liable to punishment accordingly. [s 39 subst Act 38 of 2007 s 3 and Sch 1[10], opn 15 Feb 2008] Editor’s note: for proof material on s 39, see [27-15,975] behind the “27 — Informations and Indictments” guide card in volume 4.

COMMENTARY ON SECTION 39 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Cause to be taken . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Poison or noxious thing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Compellability of spouse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Personal violence offence/domestic violence offence . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Necessary averments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alternative verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Administer poison etc with intent to injure or annoy . . . . . . . . . .

[8-s 39.1] [8-s 39.5] [8-s 39.7] [8-s 39.10] [8-s 39.15] [8-s 39.20] [8-s 39.25] [8-s 39.30] [8-s 39.35] [8-s 39.40] [8-s 39.45] [8-s 39.50]

[8-s 39.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act and is to be dealt with in a Local Court unless an election is made for trial on indictment, see [2-s 260] and [2-Sch 1] Pt 1 cl 2. The maximum penalty which can be imposed is 2 years imprisonment, see at [2-s 267]. [8-s 39.5] Definitions As to “reckless” see at [8-s 4A]. As to “grievous bodily harm” see at [8-s 4.1]. In R v Hennah (1877) 13 Cox CC 547 it was held that in order to constitute this offence the thing administered must be either a poison or a noxious thing. The court drew a distinction between things that are only noxious when given in excess and recognised poisons. An offence is committed even if the quantity of the poison is so small as to be incapable of doing any harm: R v Cramp (1880) 5 QBD 307. [8-s 39.7] Cause to be taken A person causes another to take a poison where that person is a position of command, influence or authority over the person who takes the poison: R v Wilhelm [2010] NSWSC 334; BC201002419; 17(5) Crim LN [2715], where it was held that it was not sufficient that the accused gave a mature woman the drug who then knowingly took the drug even though he may have encouraged or influenced her to take it. Wilhelm was approved and applied in Riley v R [2011] NSWCCA 238; BC201108764; 19(1) Crim LN [2997], where the court stressed the difference between a person being in a position of influence over another and a person simply influencing another. The court also referred to the decision in R v Burns (2011) 205 A Crim R 240; [2011] NSWCCA 56; BC201102135 on the issue of whether the act of the accused caused the harm inflicted. [8-s 39.10] Poison or noxious thing In R v Marcus [1981] 2 All ER 833 the English Court of Appeal held that in determining whether a substance was noxious, account must be taken of the substance itself, the effect of the dosage administered and the person to whom it was administered. In R v Cramp, above it was observed that unless a thing is noxious in the quantity administered, it is difficult to say logically that there has been a noxious thing administered as it is not noxious in the form in which it was taken, nor in the degree or quantity in which it has been taken or given. In R v Weatherall [1968] Crim LR 115, it was held, following R v Hennah, above, that where a husband had put two-thirds of a sleeping tablet (Tuinal) into a cup of tea and gave it to his wife to drink in order to make her sleep more soundly, there was not sufficient evidence of either the administration of a noxious thing or an intent to annoy or aggrieve.

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s 40

CRIMES ACT 1900 (NSW) — PART 3

[8-s 39.50]

[8-s 39.15] Compellability of spouse Where the offence was committed upon a child under the age of 18 years, the spouse of the accused is a compellable witness: see at [2-s 279]. [8-s 39.20] Sentencing Sentencing for offences under a similar section was considered in R v Blakeney (NSWCCA, Finlay, Newman JJ and Barr AJ, 15 December 1994, unreported, BC9403425); (1995) 2 Crim LN 4 [322]. [8-s 39.25] Personal violence offence/domestic violence offence This offence (or an offence of attempting to commit this offence) is a “personal violence offence” as defined in s 4 of the Crimes (Domestic and Personal Violence) Act 2007 at [8-5015] and, when committed by a person against another person with whom the offender has or has had a domestic relationship, is a “domestic violence offence” as defined in s 11 of that Act at [8-5240].

[8-s 39.30] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales with intent to injure/recklessly as to injuring [the name of the victim] administered to/caused to be administered to/caused to be taken by [name of victim] poison/a destructive thing/a noxious thing/an intoxicating substance, being [name substance used] and the thing administered/caused to be taken endangered the life of [name of victim]/inflicted upon [name of victim] grievous bodily harm. [8-s 39.35] Necessary averments The High Court in Basto v R (1954) 91 CLR 628; 28 ALJR 519; BC5400650 noted that the identification of the type of poison is a matter of evidence only, and therefore an indictment which fails to specify the poison administered is not for that reason bad or irregular. However, in R v Powles (1831) 4 C & P 571; [1999] VSC 268; BC9905362 an indictment that failed to aver that the thing administered was poisonous or destructive was held to be bad. [8-s 39.40] Elements of offence The elements of the offence are— (1) The accused: (i) administered [8-s 27.1]; (ii) caused to be administered to [8-s 27.1]; or (iii) caused to be taken by the victim [8-s 39.7]; (2) (i) a certain poison [8-s 27.1]; (ii) an intoxicating substance [8-s 4]; (iii) a destructive thing; or (iv) a noxious thing [8-s 39.10]; and (3) in so doing, either: (i) endangered the victim’s life; or (ii) inflicted grievous bodily harm [8-s 4.1] upon the victim; and (4) the act of the accused was done with intent [6-500] to injure the victim or reckless as to whether injury could be caused to the victim [8-s 4A]. [8-s 39.45] Alternative verdict [8-s 39.50] Administer poison etc with intent to injure or annoy On a trial for poisoning so as to endanger life, where the jury are not satisfied that the accused is guilty of an offence under s 39, but are satisfied that the accused is guilty of an offence under s 41, the jury may find the accused guilty of the latter offence: see s 40 at [8-s 40].

40

[s 40 rep Act 38 of 2007 s 3 and Sch 1[10], opn 15 Feb 2008]

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Crimes

PROOF MATERIAL ON SECTION 39 For the text of s 39, see [8-s 39] behind the “8 — Crimes Act” guide card in Vol 1.

[8-s 41]

s 41

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

[8-s 41] Using poison etc to injure or to cause distress or pain 41 A person is guilty of an offence if: (a) the person administers to another person, or causes another person to take, any poison, intoxicating substance or other destructive or noxious thing, and (b) the person intends to injure, or to cause distress or pain to, the other person. Maximum penalty: Imprisonment for 5 years. [s 41 subst Act 38 of 2007 s 3 and Sch 1[10], opn 15 Feb 2008; am Act 1 of 2008 s 3 and Sch 1, opn 28 Mar 2008] Editor’s note: for proof material on s 41, see [27-16,000] behind the “27 — Informations and Indictments” guide card in volume 4.

COMMENTARY ON SECTION 41 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Compellability of spouse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope of section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Personal violence offence/domestic violence offence . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Necessary averments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 41.1] [8-s 41.5] [8-s 41.10] [8-s 41.15] [8-s 41.20] [8-s 41.25] [8-s 41.30] [8-s 41.35] [8-s 41.40]

[8-s 41.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 1 cl 2. The maximum penalty which can be imposed is 2 years imprisonment, see [2-s 267]. [8-s 41.5] Compellability of spouse Where the offence was committed upon a child under the age of 18 years, the spouse of the accused is a compellable witness: see at [2-s 279]. [8-s 41.10] Scope of section In R v Marcus [1981] 2 All ER 833, the meaning of “noxious” in the equivalent English provisions was held not to be limited to injury to bodily health. In that case, evidence was led that the quantity of drug involved was potentially capable of causing injury to bodily health because of the danger to someone who carried out a normal but potentially hazardous operation whilst his or her faculties were impaired by that drug. [8-s 41.15] Sentence Consideration has been given to sentencing factors applicable to a s 41 offender suffering from Munchausen’s Syndrome by proxy: R v B (1993) 68 A Crim R 547. [8-s 41.20] Intoxication An offence under this section is an offence of specific intent for the purpose of Pt 11A Crimes Act 1900 relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. [8-s 41.25] Personal violence offence/domestic violence offence This offence (or an offence of attempting to commit this offence) is a “personal violence offence” as defined in s 4 of the Crimes (Domestic and Personal Violence) Act 2007 at [8-5015] and, when committed by a person against another person with whom the offender has or has had a domestic relationship, is a “domestic violence offence” as defined in s 11 of that Act at [8-5240].

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s 41A

CRIMES ACT 1900 (NSW) — PART 3

[8-s 41A.5]

PROOF MATERIAL ON SECTION 41 For the text of s 41, see [8-s 41] behind the “8 — Crimes Act” guide card in Vol 1. [8-s 41.30] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales with intent to injure/cause distress or pain to [name of victim] administered to/caused to be administered to/caused to be taken by [him/her] poison/an intoxicating substance/a destructive thing/a noxious thing, being [name of substance].

[8-s 41.40] Elements of offence The elements of the offence are— (1) The accused: (i) administered [8-s 27.1]; (ii) caused to be administered [8-s 27.1]; or (iii) caused to be taken by the victim [8-s 39.7]; (2) (i) a poison [8-s 27.1]; (ii) an intoxicating substance [8-s 4]; (iii) a destructive thing; or (iv) a noxious thing [8-s 39.10]; and (3) in so doing, the accused intended [6-500] to injure, or cause distress or pain to the victim.

[8-s 41A] Poisoning etc of water supply 41A A person is guilty of an offence if: (a) the person introduces any poison or other destructive or noxious thing into a supply of water, and (b) the person intends to injure any person or persons. Maximum penalty: Imprisonment for 5 years. [s 41A subst Act 38 of 2007 s 3 and Sch 1[10], opn 15 Feb 2008] Editor’s note: for proof material on s 41A, see [27-16,025] behind the “27 — Informations and Indictments” guide card in volume 4.

COMMENTARY ON SECTION 41A Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 41A.1] [8-s 41A.5] [8-s 41A.10] [8-s 41A.15] [8-s 41A.20]

[8-s 41A.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 1 cl 2. The maximum penalty which can be imposed is 2 years imprisonment, see at [2-s 267]. [8-s 41A.5] Definitions As to “water supply”, this term has been judicially considered in Attorney-General v West Gloustershire Water Co [1909] 1 Ch 636 where the term “supply” was held to include the locality at which the water is collected, the physical devices used to convey the water and the devices from which the water is drawn or used.

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Crimes

[8-s 41.35] Necessary averments The High Court in Basto v R (1954) 91 CLR 628; 28 ALJR 519; BC5400650 noted that the identification of the type of poison is a matter of evidence only, and, therefore, an indictment which fails to specify the poison administered is not for that reason bad or irregular. However, in R v Powles (1831) 4 C & P 571 an indictment that failed to aver that the thing administered was poisonous or destructive was held to be bad.

[8-s 41A.10]

s 41A

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

[8-s 41A.10] Intoxication An offence under this section is an offence of specific intent for the purpose of Pt 11A Crimes Act 1900 relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. PROOF MATERIAL ON SECTION 41A For the text of s 41A, see [8-s 41A] behind the “8 — Crimes Act” guide card in Vol 1. [8-s 41A.15] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales introduced a poison/a destructive/noxious thing being [name of substance] into the supply of water at [location of water supply] with intent to injure [name of victim if known/or any person]. [8-s 41A.20] Elements of offence The elements of the offence are— (1) The accused introduced either: (i) poison [8-s 27.1]; (ii) a destructive thing; or (iii) a noxious thing [8-s 39.10] (2) into a supply of water [8-s 41A.5]; and (3) the accused intended [6-500] to injure a person or persons.

[8-s 42] Injuries to child at time of birth 42 Whosoever, during or after the delivery of a child, intentionally or recklessly inflicts on such child, whether then wholly born or not, any grievous bodily harm, shall be liable to imprisonment for fourteen years. [s 42 am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000; Act 38 of 2007 s 3 and Sch 1[3], opn 15 Feb 2008] Editor’s note: for proof material on s 42, see [27-16,050] behind the “27 — Informations and Indictments” guide card in volume 4.

COMMENTARY ON SECTION 42 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Compellability of spouse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 42.1] [8-s 42.5] [8-s 42.10] [8-s 42.15]

[8-s 42.1] Definitions As to “reckless” see at [8-s 4A]. As to “grievous bodily harm” see at [8-s 4.1]. [8-s 42.5] Compellability of spouse Where the offence was committed upon a child under the age of 18 years, the spouse of the accused is a compellable witness: see at [2-s 279]. PROOF MATERIAL ON SECTION 42 For the text of s 42, see [8-s 42] behind the “8 — Crimes Act” guide card in Vol 1. [8-s 42.10] Form of indictment That on [date of alleged offence] at [locality/suburb] in the State of New South Wales, [name of accused], during/after the delivery of a child, intentionally/recklessly inflicted grievous bodily harm upon that child. [8-s 42.15] Elements of offence The elements of the offence are— (1) The child victim was, or was in the process of, being delivered of the natural mother; and (2) the accused caused grievous bodily harm [8-s 4.1] to the child victim; and (3) that harm was inflicted intentionally [6-500] or recklessly [8-s 4A.1].

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s 43A

[8-s 43A]

CRIMES ACT 1900 (NSW) — PART 3

[8-s 43] Abandoning or exposing a child under 7 years 43 A person who, without reasonable excuse, intentionally abandons or exposes a child under 7 years of age is guilty of an offence if it causes a danger of death or of serious injury to the child. Maximum penalty: Imprisonment for 5 years. [s 43 subst Act 41 of 2004 s 3 and Sch 1[1], opn 22 Oct 2004] Editor’s note: for proof material on s 43, see [27-16,075] behind the “27 — Informations and Indictments” guide card in volume 4.

COMMENTARY ON SECTION 43 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Without reasonable excuse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Compellability of spouse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 43.1] [8-s 43.5] [8-s 43.10] [8-s 43.15] [8-s 43.20]

[8-s 43.5] Without reasonable excuse What is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of “reasonable excuse” is an exception: Taikato v R (1996) 186 CLR 454 at 464; 139 ALR 386 at 392; [1996] HCA 28; BC9604824. “Reasonable excuse” is a broader concept than “lawful excuse”: Attorney-General (Cth) v Breckler (1999) 197 CLR 83 at 102–103; 163 ALR 576 at 581; [1999] HCA 28; BC9903188. [8-s 43.10] Compellability of spouse The provisions in s 279 Criminal Procedure Act 1986 at [2-s 279] concerning the compellability of a spouse to give evidence apply to a s 43 prosecution. PROOF MATERIAL ON SECTION 43 For the text of s 43, see [8-s 43] behind the “8 — Crimes Act” guide card in Vol 1. [8-s 43.15] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, intentionally and without reasonable excuse, abandoned/exposed [name of child], a child of [state age under 7 years], whereby the life of [name of child] was endangered/in circumstances which caused danger of serious injury to [name of child]. [8-s 43.20] Elements of offence The elements of the offence are— The accused: (1) Intentionally [6-500]; and (2) without reasonable excuse [8-s 43.5]; (3) abandoned or exposed a child; (4) in circumstances which caused a danger of death or a danger or of serious injury to the child; and (5) the child was under 7 years of age.

[8-s 43A] Failure of persons with parental responsibility to care for child 43A (1) In this section:

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Crimes

[8-s 43.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 1 cl 2. The maximum term of imprisonment which can be imposed by a Local Court is two years imprisonment: see at [2-s 267].

[8-s 43A]

s 43A

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

child means a child under 16 years of age. parental responsibility means the duties, powers, responsibilities and authority in respect of a child that, by law, parents have in relation to their children. (2) A person: (a) who has parental responsibility for a child, and (b) who, without reasonable excuse, intentionally or recklessly fails to provide the child with the necessities of life, is guilty of an offence if the failure causes a danger of death or of serious injury to the child. Maximum penalty: Imprisonment for 5 years. [Section 43A insrt Act 41 of 2004 s 3 and Sch 1[2], opn 22 Oct 2004] Editor’s note: for proof material on s 43A, see [27-16,085] behind the “27 — Informations and Indictments” guide card in volume 4.

COMMENTARY ON SECTION 43A Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Reasonable excuse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 43A.1] [8-s 43A.5] [8-s 43A.10] [8-s 43A.15]

[8-s 43A.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 1 cl 2. The maximum term of imprisonment which can be imposed by a Local Court is two years imprisonment: see at [2-s 267]. [8-s 43A.5] Reasonable excuse What is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of “reasonable excuse” is an exception: Taikato v R (1996) 186 CLR 454 at 464; 139 ALR 386 at 392; [1996] HCA 28; BC9604824. “Reasonable excuse” is a broader concept than “lawful excuse”: Attorney-General (Cth) v Breckler (1999) 197 CLR 83 at 102–103; 163 ALR 576 at 581; [1999] HCA 28; BC9903188. PROOF MATERIAL ON SECTION 43A For the text of s 43A, see [8-s 43A] behind the “8 — Crimes Act” guide card in Vol 1. [8-s 43A.10] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, being a person having parental responsibility for [name of child], intentionally/recklessly and without reasonable excuse, failed to provide [him/her] with the necessities of life, and the result of that failure caused a danger of death/a danger of serious injury to [name of child]. [8-s 43A.15] Elements of offence The elements of the offence are— (1) The accused had parental responsibility [8-s 43A(1)] for a child under the age of 16 [8-s 43A(1)]; and (2) without reasonable excuse [8-s 43A.5]: (3) (i) intentionally [6-500]; or (ii) recklessly [8-s 4A.1]; (4) failed to provide the child with the necessities of life; and (5) as a result of that failure, a danger of death or a danger of serious injury was caused to the child.

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s 44

CRIMES ACT 1900 (NSW) — PART 3

[8-s 44]

[8-s 43B] Failure to reduce or remove risk of child becoming victim of child abuse

adult means a person who is of or above the age of 18 years. child means a person who is under the age of 18 years. child abuse offence means: (a) murder or manslaughter of a child (including under section 22A), or (b) an offence under section 27, 29, 33, 35, 37, 38, 38A, 39, 41, 41A, 44, 45, 45A, 46, 59, 60E, 86 or 91J or Division 10, 10A, 10B or 15 of Part 3 where the alleged victim is a child, or (c) an offence under section 42, 43, 43A, 91G or 91H, or (d) an offence of attempting to commit an offence referred to in paragraphs (a)–(c). child-related work (and engage in child-related work), employer and worker have the same meanings as in the Child Protection (Working with Children) Act 2012. [s 43B insrt Act 33 of 2018 Sch 1[1], opn 31 Aug 2018]

[8-s 44] Failure of persons to provide necessities of life 44 (1) A person: (a) who is under a legal duty to provide another person with the necessities of life, and (b) who, without reasonable excuse, intentionally or recklessly fails to provide that person with the necessities of life, is guilty of an offence if the failure causes a danger of death or causes serious injury, or the likelihood of serious injury, to that person. Maximum penalty: Imprisonment for 5 years. (2) A person cannot be found guilty of both an offence against section 43A and an offence against this section in respect of the same act or omission. [s 44 subst Act 135 of 2010 Sch 9, opn 7 Dec 2010] Editor’s note: for proof material on s 44, see [27-16,100] behind the “27 — Informations and Indictments” guide card in volume 4.

843

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Crimes

43B (1) A person commits an offence if: (a) the person is an adult who carries out work for an organisation, whether as an employee, contractor, volunteer or otherwise (a position holder), and (b) the organisation is the employer of an adult worker who engages in child-related work, and (c) there is a serious risk that the adult worker will commit a child abuse offence against a child who is, or may come, under the care, supervision or authority of the organisation, and (d) the position holder knows that the risk exists, and (e) the position holder, by reason of the person’s position, has the power or responsibility to reduce or remove that risk, and (f) the position holder negligently fails to reduce or remove that risk. Maximum penalty: Imprisonment for 2 years. (2) In proceedings for an offence under this section, it is not necessary to prove that a child abuse offence has been committed. (3) In this section:

[8-s 44.1]

s 44

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

COMMENTARY ON SECTION 44 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Compellability of spouse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Personal violence offence/domestic violence offence . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Failure to provide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Failure to provide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 44.1] [8-s 44.5] [8-s 44.10] [8-s 44.15] [8-s 44.20] [8-s 44.25] [8-s 44.30] [8-s 44.35]

[8-s 44.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 1 cl 2. The maximum penalty which can be imposed is 2 years imprisonment, see [2-s 267]. [8-s 44.5] Definitions As to “reasonable excuse” see at [8-s 43.5]. As to recklessly see [8-s 4A.1]. “Likelihood” in tort law has been held to mean a real chance that is more than a remote possibility but less than a probability: Waugh v Kippen (1986) 160 CLR 156; 64 ALR 195; BC8601412. “Likely” in the phrase “likely to cause death” means a substantial or real chance rather than a mere possibility that death will be caused: Boughy v R (1986) 161 CLR 10; 65 ALR 209; BC8601432. [8-s 44.10] Compellability of spouse Where the offence was committed upon a child under the age of 18 years, the spouse of the accused is a compellable witness: see at [2-s 279]. [8-s 44.15] Personal violence offence/domestic violence offence This offence (or an offence of attempting to commit this offence) is a “personal violence offence” as defined in s 4 of the Crimes (Domestic and Personal Violence) Act 2007 at [8-5015] and, when committed by a person against another person with whom the offender has or has had a domestic relationship, is a “domestic violence offence” as defined in s 11 of that Act at [8-5240]. PROOF MATERIAL ON SECTION 44 For the text of s 44, see [8-s 44] behind the “8 — Crimes Act” guide card in Vol 1. [8-s 44.20] Form of indictment [8-s 44.25] Failure to provide That [name of accused], being a person under a legal duty to provide [name of victim] with the necessities of life, on [date of alleged offence] at [locality/suburb] in the State of New South Wales intentionally/recklessly and without reasonable excuse, failed to provide the same to [the victim], and by that failure caused a danger of death/serious injury/a likelihood of serious injury to [name of victim]. [8-s 44.30] Elements of offence

The elements of the offence are—

[8-s 44.35] Failure to provide (1) The accused was under a legal duty to provide the victim with the necessities of life; (2) without reasonable excuse [8-s 43A.5]; (3) (i) intentionally [6-500]; or (ii) recklessly [8-s 4A.1]; (4) failed to provide the victim with the necessities of life; and (5) by the failure caused: (i) a danger of death; (ii) serious injury; or (iii) the likelihood [8-s 44.5] of serious injury to the victim.

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s 45

CRIMES ACT 1900 (NSW) — PART 3

[8-s 45]

[8-s 45] Prohibition of female genital mutilation 45 (1) A person who: (a) excises, infibulates or otherwise mutilates the whole or any part of the labia majora or labia minora or clitoris of another person, or (b) aids, abets, counsels or procures a person to perform any of those acts on another person, is liable to imprisonment for 21 years. (2) [subs (2) rep Act 15 of 2014 Sch 1[3], opn 20 May 2014] (3) It is not an offence against this section to perform a surgical operation if that operation: (a) is necessary for the health of the person on whom it is performed and is performed by a medical practitioner, or (b) is performed on a person in labour or who has just given birth, and for medical purposes connected with that labour or birth, by a medical practitioner or authorised professional, or (c) is a sexual reassignment procedure and is performed by a medical practitioner. (4) In determining whether an operation is necessary for the health of a person only matters relevant to the medical welfare of the person are to be taken into account. (5) It is not a defence to a charge under this section that the person mutilated by or because of the acts alleged to have been committed consented to the acts. (6) This section applies only to acts occurring after the commencement of the section. (7) In this section: authorised professional means: (a) a registered midwife, or (b) a midwifery student, or (c) in relation to an operation performed in a place outside Australia — a person authorised to practise midwifery by a body established under the law of that place having functions similar to the functions of the Nursing and Midwifery Board of Australia, or (d) a medical student. [def subst Act 34 of 2010 Sch 2, opn 1 July 2010]

medical practitioner, in relation to an operation performed in a place outside Australia, includes a person authorised to practise medicine by a body established under the law of that place having functions similar to the Medical Board of Australia. [def subst Act 34 of 2010 Sch 2, opn 1 July 2010]

medical student means: (a) a person who is registered as a student within the meaning of the Health Practitioner Regulation National Law (NSW) in the medical profession, or (b) in relation to an operation performed in a place outside Australia — a person undergoing a course of training with a view to being authorised to be a medical practitioner in that place. [def subst Act 34 of 2010 Sch 2, opn 1 July 2010; am Act 50 of 2017 Sch 5.5[1], opn 8 Jan 2018]

midwifery student means:

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[subs (1) am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000; Act 15 of 2014 Sch 1[2], opn 20 May 2014]

[8-s 45]

s 45

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

(a) a person who is registered as a student within the meaning of the Health Practitioner Regulation National Law (NSW) in the midwifery profession, or (b) in relation to an operation performed in a place outside Australia — a person undergoing a course of training with a view to being authorised to be a midwife practitioner in that place. [def insrt Act 34 of 2010 Sch 2, opn 1 July 2010; am Act 50 of 2017 Sch 5.5[2], opn 8 Jan 2018]

sexual reassignment procedure means a surgical procedure to alter the genital appearance of a person to the appearance (as nearly as practicable) of the opposite sex to the sex of the person. [subs (7) am Act 45 of 2003 s 4 and Sch 2.1[1] and [2], opn 1 Aug 2004] [s 45 insrt Act 58 of 1994 s 3] Editor’s note: For proof material on s 45, see [27-16,115] behind the “27 — Informations and Indictments” guide card in volume 4.

COMMENTARY ON SECTION 45 Female genital mutilation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Female genital mutilation — s 45(1)(a) . . . . . . . . . . . . . . . . . . . . . . Aid, abet, counsel or procure female genital mutilation — s 45(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Female genital mutilation where one or more of the acts of the accused occurred outside New South Wales — s 45(2) . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Female genital mutilation — s 45(1)(a) . . . . . . . . . . . . . . . . . . . . . . Aid, abet, counsel or procure female genital mutilation — s 45(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Female genital mutilation where one or more of the acts of the accused occurred outside New South Wales — s 45(2) . . . .

[8-s 45.5] [8-s 45.10] [8-s 45.15] [8-s 45.20] [8-s 45.25] [8-s 45.30] [8-s 45.35] [8-s 45.40] [8-s 45.45] [8-s 45.50]

[8-s 45.5] Female genital mutilation The word “mutilates” in this provision requires an injury or damage which is more than superficial and which renders the body part in question imperfect or irreparably damaged in some fashion: A2 v R; Magennis v R; Vaziri v R [2018] NSWCCA 174 at [521]–[522]. [8-s 45.10] Sentence Factors relevant on sentence for offences of female genital mutilation under s 45 (as it stood prior to amendment in 2014) were considered in R v A2; R v Magennis; R v Vaziri (No 23) [2016] NSWSC 282; BC201601706 and R v A2; R v Magennis; R v Vaziri (No 24) [2016] NSWSC 737; BC201604468. PROOF MATERIAL ON SECTION 45 For the text of s 45, see [8-s 45] behind the “8 — Crimes Act” guide card in Vol 1. [8-s 45.15] Form of indictment [8-s 45.20] Female genital mutilation — s 45(1)(a) That [name of accused] on [date of offence] at [locality/suburb] in the State of New South Wales excised/infibulated/mutilated the labia majora/labia minora/clitoris of [name of victim]. [8-s 45.25] Aid, abet, counsel or procure female genital mutilation — s 45(1)(b) That [name of accused] on [date of offence] at [locality/suburb] in the State of New South Wales aided/abetted/counseled/procured [name of other person if known] to excise/infibulate/mutilate the labia majora/labia minora/clitoris of [name of victim].

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s 45A

CRIMES ACT 1900 (NSW) — PART 3

[8-s 45A]

[8-s 45.30] Female genital mutilation where one or more of the acts of the accused occurred outside New South Wales — s 45(2) That [name of accused] on [date of offence] at [place outside the State of New South Wales] excised/infibulated/mutilated the labia majora/labia minora/clitoris of [name of victim] a person who is ordinarily a resident of New South Wales. [8-s 45.35] Elements of offence

The elements of the offence are—

[8-s 45.45] Aid, abet, counsel or procure female genital mutilation — s 45(1)(b) (1) The accused: (i) aided; (ii) abetted; (iii) counseled; or (iv) procured (2) a person to: (i) excise; (ii) infibulate; or (iii) otherwise mutilate the labia majora, labia minora or clitoris of the victim. [8-s 45.50] Female genital mutilation where one or more of the acts of the accused occurred outside New South Wales — s 45(2) (1) The accused at a place outside New South Wales: (i) excised; (ii) infibulated; or (iii) otherwise mutilated

the labia majora, labia minora or clitoris of the victim; and (2) the victim was ordinarily resident in New South Wales.

[8-s 45A] Removing person from State for female genital mutilation 45A (1) A person is guilty of an offence if the person takes another person from the State, or arranges for another person to be taken from the State, with the intention of having female genital mutilation performed on the other person. Maximum penalty: imprisonment for 21 years. (2) In proceedings for an offence under subsection (1) and in the absence of proof to the contrary, it is to be presumed that the accused took another person, or arranged for another person to be taken, from the State with the intention of female genital mutilation being performed on the other person if it is proved that: (a) the accused took the person, or arranged for the person to be taken, from the State, and (b) female genital mutilation was performed on the person while outside the State. (3) It is not a defence to a charge under this section that the person taken from the State consented to being so taken. (4) In this section:

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[8-s 45.40] Female genital mutilation — s 45(1)(a) (1) The accused: (i) excised; (ii) infibulated; or (iii) otherwise mutilated the labia majora, labia minora or clitoris of the victim.

[8-s 45A]

s 45A

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

female genital mutilation means an act referred to in section 45(1)(a), the performance of which would be an offence against that section if performed in the State. [s 45A insrt Act 15 of 2014 Sch 1[4], opn 20 May 2014]

COMMENTARY ON SECTION 45A Female genital mutilation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 45A.5]

[8-s 45A.5] Female genital mutilation The word “mutilates” in this provision requires an injury or damage which is more than superficial and which renders the body part in question imperfect or irreparably damaged in some fashion: A2 v R; Magennis v R; Vaziri v R [2018] NSWCCA 174; BC201807084 at [521]–[522].

[8-s 46] Causing bodily injury by gunpowder etc 46 Whosoever intentionally or recklessly by the explosion of gunpowder or other substance, or the use of any corrosive fluid, or destructive matter, burns maims disfigures disables, or does grievous bodily harm to, any person, shall be liable to imprisonment for 25 years. [s 46 am Act 218 of 1989 s 3 and Sch 1(15); am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000; Act 38 of 2007 s 3 and Sch 1[3], opn 15 Feb 2008] Editor’s note: for proof material on s 46, see [27-16,125] behind the “27 — Informations and Indictments” guide card in volume 4.

COMMENTARY ON SECTION 46 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Compellability of spouse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Personal violence offence/domestic violence offence . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 46.1] [8-s 46.5] [8-s 46.10] [8-s 46.15] [8-s 46.20]

[8-s 46.1] Definitions As to “recklessly” see at [8-s 4A.1]. As to “grievous bodily harm” see at [8-s 4.1]. [8-s 46.5] Compellability of spouse Where the offence was committed upon a child under the age of 18 years, the spouse of the accused is a compellable witness: see at [2-s 279]. [8-s 46.10] Personal violence offence/domestic violence offence This offence (or an offence of attempting to commit this offence) is a “personal violence offence” as defined in s 4 of the Crimes (Domestic and Personal Violence) Act 2007 at [8-5015] and, when committed by a person against another person with whom the offender has or has had a domestic relationship, is a “domestic violence offence” as defined in s 11 of that Act at [8-5240]. PROOF MATERIAL ON SECTION 46 For the text of s 46, see [8-s 46] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 46.15] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, intentionally/recklessly by [describe the act and substance used in the commission of the offence] burned/maimed/disfigured/disabled/did grievous bodily harm to [name of victim]. [8-s 46.20] Elements of offence The elements of the offence are— (1) The accused intentionally [6-500] or recklessly [8-s 4A.1] (2) by either:

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s 47

[8-s 47.20]

CRIMES ACT 1900 (NSW) — PART 3

(i) the explosion of gunpowder or other substance; or (ii) the use of corrosive fluid or destructive matter; (3) burned, maimed, disfigured, disabled or did grievous bodily harm [8-s 4.1] to the victim.

[8-s 47] Using etc explosive substance or corrosive fluid etc 47

Whosoever: causes any gunpowder or other explosive substance to explode, or sends, or delivers to, or causes to be taken, or received by, any person, any explosive substance, or other dangerous or noxious thing, or puts or lays at any place, or casts or throws at, or upon, or otherwise applies to, any person, any corrosive fluid or any destructive or explosive substance (including petrol), with intent in any such case to burn maim disfigure disable, or do grievous bodily harm to, any person, shall, whether bodily injury is effected or not, be liable to imprisonment for 25 years.

Editor’s note: for proof material on s 47, see [27-16,150] behind the “27 — Informations and Indictments” guide card.

COMMENTARY ON SECTION 47 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Compellability of spouse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sentencing for offence of applying corrosive fluid with intent to burn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Personal violence offence/domestic violence offence . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 47.1] [8-s 47.5] [8-s 47.10] [8-s [8-s [8-s [8-s

47.15] 47.20] 47.25] 47.30]

[8-s 47.1] Definitions As to “grievous bodily harm” see at [8-s 4.1]. As to “explosive substance” see at [8-s 28.1]. [8-s 47.5] Compellability of spouse Where the offence was committed upon a child under the age of 18 years, the spouse of the accused is a compellable witness: see at [2-s 279]. [8-s 47.10] Intoxication An offence under this section which is alleged to have been committed after 16 August 1996 is an offence of specific intent for the purpose of Pt 11A Crimes Act 1900 relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. [8-s 47.15] Sentencing for offence of applying corrosive fluid with intent to burn The approach to sentencing for an acid attack offence under s 47 was considered in R v Dinh [2010] NSWCCA 74; BC201002663. [8-s 47.20] Personal violence offence/domestic violence offence This offence (or an offence of attempting to commit this offence) is a “personal violence offence” as defined in s 4 of the Crimes (Domestic and Personal Violence) Act 2007 at [8-5015] and, when committed by a person against another person with whom the offender has or has had a domestic relationship, is a “domestic violence offence” as defined in s 11 of that Act at [8-5240].

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[s 47 am Act 218 of 1989 s 3 and Sch 1(16); am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000; Act 38 of 2007 s 3 and Sch 1[12], opn 15 Feb 2008; Act 40 of 2017 Sch 1.5[1], opn 14 Aug 2017]

[8-s 47.25]

s 47

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

PROOF MATERIAL ON SECTION 47 For the text of s 47, see [8-s 47] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 47.25] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, did [describe the act and the substance used in the commission of the offence] with intent to [describe injury contemplated by act] to any person or [name of intended victim]. [8-s 47.30] Elements of offence The elements of the offence are— (1) The accused with the intention [6-500] to burn, maim, disfigure, disable or do grievous bodily harm [8-s 4.1] to any person: (2) (i) caused gunpowder or an explosive substance to explode; (ii) sent, delivered, caused to be taken or received any explosive substance, dangerous or noxious thing; or (iii) put or laid at any place or cast or threw at or upon or otherwise applied to any person, any corrosive fluid or destructive or explosive substance.

[8-s 48] Causing explosives to be placed in or near building, conveyance or public place 48 (1) A person who causes an explosive to be placed in or near: (a) a building, or (b) a vehicle, vessel, train or other conveyance, or (c) a public place, with the intention of causing bodily harm to any person, is guilty of an offence. Maximum penalty: Imprisonment for 14 years. (2) A person commits an offence under this section whether or not: (a) any explosion occurs, or (b) any bodily harm is caused. [s 48 subst Act 48 of 2004 s 3 and Sch 1[2], opn 12 Nov 2004] Editor’s note: for proof material on s 48, see [27-16,175] behind the “27 — Informations and Indictments” guide card in volume 4.

COMMENTARY ON SECTION 48 Personal violence offence/domestic violence offence . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 48.5] [8-s 48.10] [8-s 48.15]

[8-s 48.5] Personal violence offence/domestic violence offence This offence (or an offence of attempting to commit this offence) is a “personal violence offence” as defined in s 4 of the Crimes (Domestic and Personal Violence) Act 2007 at [8-5015] and, when committed by a person against another person with whom the offender has or has had a domestic relationship, is a “domestic violence offence” as defined in s 11 of that Act at [8-5240]. PROOF MATERIAL ON SECTION 48 For the text of s 48, see [8-s 48] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 48.10] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales caused an explosive to be placed in/near [describe the building, vehicle, vessel, train or other conveyance, or public place] with the intention of causing bodily harm to [name/s or description of person/s if known].

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s 49

CRIMES ACT 1900 (NSW) — PART 3

[8-s 49.20]

[8-s 48.15] Elements of offence The elements of the offence are— (1) The accused caused an explosive to be placed in or near a: (i) building; or (ii) vehicle, vessel, train or other conveyance; or (iii) public place; (2) with the intention [6-500] of causing bodily harm to any person.

[8-s 49] Setting trap etc

Editor’s note: a “gin” is “a trap or snare for game, etc” (macquariedictionary.com.au, 2011). For proof material on s 49, see [27-16,200] behind the “27 — Informations and Indictments” guide card.

COMMENTARY ON SECTION 49 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Compellability of spouse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Personal violence offence/domestic violence offence . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Set trap . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Permit trap to remain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Statutory defence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 49.1] [8-s 49.5] [8-s 49.10] [8-s 49.15] [8-s 49.20] [8-s 49.25] [8-s 49.30] [8-s 49.35] [8-s 49.40] [8-s 49.45]

[8-s 49.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act and is to be dealt with in a Local Court unless an election is made for trial on indictment, see [2-s 260] and [2-Sch 1] Pt 1 cl 2. The maximum penalty which can be imposed is 2 years imprisonment, see [2-s 267]. [8-s 49.5] Definitions As to “grievous bodily harm” see at [8-s 4.1]. As to “dwelling place” see at [8-s 4]. [8-s 49.10] Compellability of spouse Where the offence was committed upon a child under the age of 18 years, the spouse of the accused is a compellable witness: see at [2-s 279]. [8-s 49.15] Intoxication An offence under this section which is alleged to have been committed after 16 August 1996 is an offence of specific intent for the purpose of Pt 11A Crimes Act 1900 relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. [8-s 49.20] Personal violence offence/domestic violence offence This offence (or an offence of attempting to commit this offence) is a “personal violence offence” as defined in s 4 of the Crimes (Domestic and Personal Violence) Act 2007 at [8-5015] and, when committed by a person

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49 (1) Any person who: (a) places or sets, or causes to be placed or set, any trap, device or thing (whether its nature be electronic, electric, mechanical, chemical or otherwise) capable of destroying human life or inflicting grievous bodily harm on any person, or (b) knowingly permits any such trap, device or thing to continue to be placed or set, with intent to inflict grievous bodily harm shall be liable to imprisonment for five years. (2) Nothing in subsection (1) shall extend to any gin or trap, placed with the intention of destroying vermin, or to any trap, device or thing placed in a dwelling-house for the protection thereof.

[8-s 49.20]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 49

against another person with whom the offender has or has had a domestic relationship, is a “domestic violence offence” as defined in s 11 of that Act at [8-5240]. PROOF MATERIAL ON SECTION 49 For the text of s 49, see [8-s 49] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 49.25] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did place/set/cause to be placed/cause to be set/permit to remain in place/permit to be set, a trap/device/thing [describe the trap/devise/thing] capable of destroying human life/inflicting grievous bodily harm, with intent to inflict grievous bodily harm. [8-s 49.30] Elements of offence

The elements of the offence are—

[8-s 49.35] Set trap (1) The accused intended [6-500] to inflict grievous bodily harm [8-s 4.1]; and (2) placed, set, or caused to be placed or set, a trap, device or thing; and (3) that trap, device or thing was capable of: (i) destroying human life; or (ii) causing grievous bodily harm [8-s 4.1]. [8-s 49.40] Permit trap to remain (1) The accused knew that a trap, device or thing, capable of destroying human life or inflicting grievous bodily harm [8-s 4.1] was placed or set; and (2) the accused permitted such trap, device or thing to continue to be placed or set; (3) with the intention of inflicting grievous bodily harm [8-s 4.1]. [8-s 49.45] Statutory defence By virtue of subs (2), this section does not extend to any gin or trap placed with the intention of destroying vermin, or to any trap, device or thing placed in a dwelling-house [8-s 49.5] for the protection thereof.

[8-s 49A] Throwing rocks and other objects at vehicles and vessels 49A (1) A person is guilty of an offence if: (a) the person intentionally throws an object at, or drops an object on or towards, a vehicle or vessel that is on any road, railway or navigable waters, and (b) there is a person in the vehicle or vessel, and (c) the conduct risks the safety of any person. Maximum penalty: Imprisonment for 5 years. (2) This section extends to a vehicle or vessel that is stationary at the time that the object is thrown or dropped. (3) In the prosecution of an offence under this section, it is not necessary to prove: (a) that the accused was aware that his or her conduct risked the safety of any person, or (b) that the object made contact with the vehicle or vessel. (4) In this section: road means a road or road related area within the meaning of section 4(1) of the Road Transport Act 2013. throw includes propel. vehicle includes: (a) a motor vehicle, and

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s 51A

[8-s 51A]

CRIMES ACT 1900 (NSW) — PART 3

(b) a train or tram, and (c) a bicycle, and (d) a vehicle drawn by an animal or an animal ridden by a person. [subs (4) am Act 19 of 2013 Sch 4 item 4.8[1], opn 1 July 2013] [s 49A insrt Act 18 of 2008 s 3 and Sch 1, opn 23 May 2008] Editor’s note: for proof material on s 49A, see [27-16,212] behind the “27 — Informations and Indictments” guide card in volume 4.

COMMENTARY ON SECTION 49A Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Statutory provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 49A.5] [8-s 49A.10] [8-s 49A.15] [8-s 49A.20]

PROOF MATERIAL ON SECTION 49A For the text of s 49A, see [8-s 49A] behind the “8– Crimes Act” guide card in Vol 1. [8-s 49A.10] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did intentionally throw a [state type of object] at/drop a [state type of object] on/towards a [state type of vehicle or vessel] on a road/ railway/ navigable waters being [state where vehicle/vessel was] in circumstances where that conduct risked the safety of [name of victim] a person on that vehicle/vessel. [8-s 49A.15] Elements of offence The elements of the offence are— (1) The accused intentionally [6-500]: (i) threw an object at; or (ii) dropped an object on or towards a vehicle or vessel that was on a road/railway/navigable waters (2) There was a person in the vehicle or vessel. (3) The throwing or dropping of the object risked the safety of that person. [8-s 49A.20] Statutory provision In the prosecution of an offence under this section, it is not necessary to prove that the accused was aware that his or her conduct risked the safety of any person or that the object made contact with the vehicle or vessel: see s 49A at [8-s 49A(3)]

50–51

[ss 50–51 rep Act 287 of 1987 Sch 1[4], opn 13 Jan 1988]

[8-s 51A] Predatory driving 51A (1) The driver of a vehicle who, while in pursuit of or travelling near another vehicle: (a) engages in a course of conduct that causes or threatens an impact involving the other vehicle, and (b) intends by that course of conduct to cause a person in the other vehicle actual bodily harm, is guilty of an offence and liable to imprisonment for 5 years.

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Crimes

[8-s 49A.5] Summary disposal An offence under the section is a Table 2 offence under the Criminal Procedure Act 1986 and is to be dealt with in the Local Court unless an election is made for trial on indictment by the prosecutor: see s 260(2) at [8-s 260] and [2-Sch 1]. The maximum penalty for an offence dealt with summarily is imprisonment for 2 years or a fine of 50 penalty units or both: see s 268(2)(a) at [2-s 268].

[8-s 51A]

s 51A

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

(2) This section does not take away the liability of any person to be prosecuted for or found guilty of an offence under this Act or of any other offence, or affect the punishment that may be imposed for any such offence. However, a person who: (a) has been convicted or acquitted of an offence under this section cannot be prosecuted for any other offence under this Act on the same, or substantially the same, facts, or (b) has been convicted or acquitted of any other offence under this Act cannot be prosecuted for an offence under this section on the same, or substantially the same, facts. (3) In this section: impact involving a vehicle includes: (a) an impact with any other vehicle or with a person or object, or (b) the vehicle overturning or leaving a road. vehicle has the same meaning it has in section 52A. [s 51A insrt Act 75 of 1997 s 4 and Sch 2, opn 10 Oct 1997] Editor’s note: for proof material on s 51A, see [27-16,220] behind the “27 — Informations and Indictments” guide card in volume 4.

COMMENTARY ON SECTION 51A Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Statutory limits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 51A.1] [8-s 51A.5] [8-s 51A.10] [8-s 51A.15] [8-s 51A.20]

[8-s 51A.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 1 cl 2. The maximum penalty which can be imposed is 18 months imprisonment: see at [2-s 267]. [8-s 51A.5] Definitions

As to “actual bodily harm” see [8-s 59.5].

PROOF MATERIAL ON SECTION 51A For the text of s 51A, see [8-s 51A] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 51A.10] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, while in pursuit of/travelling near a vehicle namely [make and registered number of vehicle — if vehicle is registered outside New South Wales then state the origin of the registration plates], did engage in a course of conduct that caused/threatened an impact involving that vehicle with the intent to cause actual bodily harm to [name of person], being a person in that vehicle, by that course of conduct. [8-s 51A.15] Elements of offence The elements of the offence are— (1) The accused was in pursuit of or travelling near a vehicle [8-s 51A(3)]; and (2) the accused did engage in a course of conduct that caused or threatened an

impact [8-s 51A(3)] involving that vehicle; and (3) the accused had an intent to cause a person in that vehicle actual bodily harm

[8-s 59.5] by that course of conduct. [8-s 51A.20] Statutory limits No person convicted or acquitted of an offence under this section can be prosecuted for any other offence under the Crimes Act, nor can anyone convicted

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s 52A

CRIMES ACT 1900 (NSW) — PART 3

[8-s 52A]

or acquitted of any other offence under the Crimes Act be prosecuted for an offence under this section, on the same or substantially the same facts: see s 51A(2) at [8-s 51A(2)].

[8-s 51B] Police pursuits

[s 51B insrt Act 2 of 2010 Sch 1, opn 18 Mar 2010]

[8-s 52A] Dangerous driving: substantive matters 52A (1) Dangerous driving occasioning death A person is guilty of the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle: (a) under the influence of intoxicating liquor or of a drug, or (b) at a speed dangerous to another person or persons, or (c) in a manner dangerous to another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 10 years. (2) Aggravated dangerous driving occasioning death A person is guilty of the offence of aggravated dangerous driving occasioning death if the person commits the offence of dangerous driving occasioning death in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 14 years. (3) Dangerous driving occasioning grievous bodily harm A person is guilty of the offence of dangerous driving occasioning grievous bodily harm if the vehicle driven by the person is involved in an impact occasioning grievous bodily harm to another person and the driver was, at the time of the impact, driving the vehicle: (a) under the influence of intoxicating liquor or of a drug, or (b) at a speed dangerous to another person or persons, or (c) in a manner dangerous to another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 7 years. (4) Aggravated dangerous driving occasioning grievous bodily harm A person is guilty of the offence of aggravated dangerous driving occasioning grievous bodily harm if the person commits the offence of dangerous driving occasioning grievous bodily

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Crimes

51B (1) The driver of a vehicle: (a) who knows, ought reasonably to know or has reasonable grounds to suspect that police officers are in pursuit of the vehicle and that the driver is required to stop the vehicle, and (b) who does not stop the vehicle, and (c) who then drives the vehicle recklessly or at a speed or in a manner dangerous to others, is guilty of an offence. Maximum penalty: (a) in the case of a first offence — imprisonment for 3 years, or (b) in the case of an offence on a second or subsequent occasion — imprisonment for 5 years. (2) In this section, vehicle has the same meaning as it has in section 52A.

[8-s 52A]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 52A

harm in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 11 years. (5) When vehicle is involved in impact — generally For the purposes of this section, the circumstances in which a vehicle is involved in an impact occasioning the death of, or grievous bodily harm to, a person include if the death or harm is occasioned through any of the following: (a) the vehicle overturning or leaving a road while the person is being conveyed in or on that vehicle (whether as a passenger or otherwise), (b) an impact between any object and the vehicle while the person is being conveyed in or on that vehicle (whether as a passenger or otherwise), (c) an impact between the person and the vehicle, (d) the impact of the vehicle with another vehicle or an object in, on or near which the person is at the time of the impact, (e) an impact with anything on, or attached to, the vehicle, (f) an impact with anything that is in motion through falling from the vehicle, (g) the person falling from the vehicle, or being thrown or ejected from the vehicle, while being conveyed in or on the vehicle (whether as a passenger or otherwise), (h) an impact between any object (including the ground) and the person, as a consequence of the person (or any part of the person) being or protruding outside the vehicle, while the person is being conveyed in or on the vehicle (whether as a passenger or otherwise). [subs (5) am Act 16 of 1995 Sch 2; Act 11 of 2004 Sch 4, opn 24 Mar 2004]

(6) When vehicle is involved in causing other impacts For the purposes of this section, a vehicle is also involved in an impact occasioning the death of, or grievous bodily harm to, a person if: (a) the death or harm is occasioned through the vehicle causing an impact between other vehicles or between another vehicle and any object or person or causing another vehicle to overturn or leave a road, and (b) the prosecution proves that the vehicle caused the impact. (7) Circumstances of aggravation In this section, circumstances of aggravation means any circumstances at the time of the impact occasioning death or grievous bodily harm in which: (a) the prescribed concentration of alcohol was present in the accused’s breath or blood, or (b) the accused was driving the vehicle concerned on a road at a speed that exceeded, by more than 45 kilometres per hour, the speed limit (if any) applicable to that length of road, or (c) the accused was driving the vehicle to escape pursuit by a police officer, or (d) the accused’s ability to drive was very substantially impaired by the fact that the accused was under the influence of a drug (other than intoxicating liquor) or a combination of drugs (whether or not intoxicating liquor was part of that combination). [subs (7) am Act 135 of 1997 s 3 and Sch 1[1], opn 16 Jan 1998; Act 99 of 2007 s 4 and Sch 3.5[1], opn 25 Jan 2008]

(8) Defences It is a defence to any charge under this section if the death or grievous bodily harm occasioned by the impact was not in any way attributable (as relevant):

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s 52A

CRIMES ACT 1900 (NSW) — PART 3

[8-s 52A.1]

(a) to the fact that the person charged was under the influence of intoxicating liquor or of a drug or a combination of drugs, or (b) to the speed at which the vehicle was driven, or (c) to the manner in which the vehicle was driven. [subs (8) am Act 135 of 1997 s 3 and Sch 1[2], opn 16 Jan 1998]

(9) Definitions In this section: drug has the same meaning as it has in the Road Transport Act 2013. [def am Act 19 of 1999 s 4 and Sch 2.6 [1], opn 1 Dec 1999; Act 19 of 2013 Sch 4 item 4.8[2], opn 1 July 2013]

object includes an animal, building, structure, earthwork, embankment, gutter, stormwater channel, drain, bridge, culvert, median strip, post or tree. prescribed concentration of alcohol means a concentration of 0.15 grammes or more of alcohol in 210 litres of breath or 100 millilitres of blood. road means: (a) a road or road related area within the meaning of section 4(1) of the Road Transport Act 2013 (other than a road or road related area that is the subject of a declaration made under section 18(1)(b) of that Act relating to all of the provisions of that Act), or (b) any other place. [def subst Act 115 of 1997 s 4 and Sch 4.4[1], opn 29 June 1998; am Act 19 of 1999 s 4 and Sch 2.6 [2], opn 1 Dec 1999; Act 11 of 2005 s 247 and Sch 3.5[1], opn 30 Sep 2005; Act 19 of 2013 Sch 4 item 4.8[3], opn 1 July 2013]

vehicle means: (a) any motor car, motor carriage, motor cycle or other vehicle propelled wholly or partly by volatile spirit, steam, gas, oil, electricity, or by any other means other than human or animal power, or (b) a horse-drawn vehicle, whether or not it is adapted for road use, but does not mean a vehicle used on a railway or tramway. [s 52A subst Act 78 of 1994 s 3 and Sch 1, opn 23 Dec 1994] Editor’s note: For proof material on s 52A, see [27-16,250] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 52A Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope of the offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Manner or speed dangerous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mechanical defect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Statutory defence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Joint counts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Prior driving before the offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Driving under the influence of alcohol and a drug . . . . . . . . . . . . . . . Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dangerous driving under the influence — s 52A(1)(a) or (3)(a) .

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[8-s 52A.1] [8-s 52A.5] [8-s 52A.10] [8-s 52A.15] [8-s 52A.20] [8-s 52A.25] [8-s 52A.30] [8-s 52A.35] [8-s 52A.40] [8-s 52A.45] [8-s 52A.50] [8-s 52A.55] [8-s 52A.60]

Crimes

[def am Act 99 of 2007 s 4 and Sch 3.5[2], opn 25 Jan 2008]

[8-s 52A.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 52A

Dangerous driving at a speed dangerous — s 52A(1)(b) or (3)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 52A.65] Dangerous driving in manner dangerous — s 52A(1)(c) or (3)(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 52A.70] Aggravated form — s 52A(2), (4) and (7) . . . . . . . . . . . . . . . . . . . [8-s 52A.75] Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 52A.80] Dangerous driving occasioning death or grievous bodily harm . [8-s 52A.85] Aggravated dangerous driving occasioning death or grievous bodily harm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 52A.90] Statutory defence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 52A.95] Statutory limits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 52A.100] Alternative verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 52A.105] [8-s 52A.1] Summary disposal An offence under the section, other than an offence by which death is occasioned, is a Table 1 offence under the Criminal Procedure Act and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 1 cl 2. The maximum penalty which can be imposed by the Local Court is 2 years imprisonment: see at [2-s 267]. [8-s 52A.5] Scope of the offence The offence of dangerous driving replaced the offence of culpable driving which existed under a repealed s 52A. In substance the offences are very similar in the elements of the offences and, therefore, the law which related to culpable driving would apply substantially to the offence of dangerous driving. The nature of the offence of dangerous driving and its relationship to manslaughter was considered by the High Court in King v R (2012) 288 ALR 565; 86 ALJR 833; [2012] HCA 24; BC201204254; 19(7) Crim LN [3084]. It was held that the offence is not a species of criminal negligence. The question as to whether driving is dangerous does not depend upon the severity of a breach of duty of care to other road users but rather upon the degree of risk to the safety of others. The offence is one of strict liability and the prosecution is not required to prove any mens rea, however the defendant can raise an honest but reasonable mistake as to fact which once raised by evidence the prosecution must negative: Giorgianni v R (1985) 156 CLR 473; 58 ALR 641; BC8501134; Jiminez v R (1992) 173 CLR 572; 106 ALR 162; [1992] HCA 14; BC9202672 where the principles relating to an allegation that the driver fell asleep are discussed. As to involuntariness in driving cases generally see Edwards v Macrae (1991) 14 MVR 193; BC9101816. There is a presumption that the driving of the accused is a voluntary and conscious act and it is not necessary that the trial judge direct the jury on this element of the offence unless there is some question of sleep or influence of alcohol or drugs: R v Dunne (NSWCCA, 1 March 1993, unreported). There is an evidentiary onus upon the accused to raise the issue of the existence of an honest and reasonable belief that it was safe to drive: R v Helmling (NSWCCA, 11 November 1993, unreported). The offence is not restricted to driving occurring on a road, see definition of “road” in s 52A(9) and see R v B (1990) 12 MVR 540; BC9002109 in respect of the offence of culpable driving. As to “leaving a road” see R v Kinghorne (1982) 8 A Crim R 41, where it was held that similar words in a previous section had to be strictly applied. A child in utero who is injured in a manner described in s 52A and who is subsequently born, lives independently and then dies as a result of those injuries, is a “person” within the meaning of the section: R v F (1996) 40 NSWLR 245; 89 A Crim R 250; BC9604668. Where a child died as a result of being born prematurely because of injuries to the mother suffered in a vehicle accident, the death of the child was caused by the collision because it was a substantial cause of the child’s death: Whelan v R [2012] NSWCCA 147; BC201204946; 19(8) Crim LN [3096]. [8-s 52A.10] Definitions As to “grievous bodily harm” see at [8-s 4.1]. “Drug” see s 52A(9). “Drug” is defined in s 4 of the Road Transport Act 2013 at [13-s 4] as meaning:

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s 52A

CRIMES ACT 1900 (NSW) — PART 3

[8-s 52A.15]

[8-s 52A.15] Manner or speed dangerous Unlike the repealed offence of culpable driving and related driving offences under the Traffic Act, the present offence is not concerned with driving in a manner or speed dangerous to the public but with driving in a manner or speed dangerous to another person or persons. This change was intended to overcome the decision in R v S (1991) 22 NSWLR 548, in which it was held that the offence of culpable driving did not apply to the situation where there was no member of the public present or likely to be endangered by the driving. Although the law in relation to culpable driving has to be read with this amendment in mind, it would appear to be otherwise applicable to the offence of dangerous driving. See also [13-s 117.20]. After a consideration of the authorities, the following principles were held to apply in R v Hain (1966) 85 WN (Pt 1) (NSW) 7: 1. Provided that there is evidence to support a conviction in terms of the relevant section and the jury have been properly instructed as to the applicable law, it is for the jury to decide as a fact whether the manner of driving was dangerous to the public or not. 2. The test to be applied in determining whether the management and control of the vehicle constituted driving in a manner which was dangerous to the public is an objective standard fixed in relation to other users of the highway whether the potentiality in fact of danger to the public is realised by the driver of the motor vehicle or not. 3. “Manner of driving” includes all matters connected with the management and control of the vehicle when it is being driven. 4. An act or omission done or omitted to be done with reference to the management or control of the vehicle which is merely casual or transitory may, in an appropriate case, constitute “manner of driving”. 5. Hence inattention on the part of the driver of a motor vehicle which leads to some act or omission on his part in his management or control of the vehicle is of itself no defence to a charge that the vehicle was driven in a manner which was dangerous to the public. 6. The quality of being dangerous to the public does not depend upon death or grievous bodily harm being occasioned to some person, though such a result must be proved to have occurred during that driving to complete the offence under the relevant section. 7. It is not enough that an impact takes place between the vehicle driven by the accused and another vehicle at some point of time after the vehicle has been driven in a manner which is dangerous to the public — the impact must occur whilst the vehicle is being driven in a manner which is dangerous to the public; but the interval of time between the driving which is in breach of the section and the impact may in all the factual circumstances of the case be so short that the offending driving can be regarded as proceeding to the moment of impact. 8. The quality of the driving may be deduced from the resultant facts proved in evidence and accepted by the jury.

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Crimes

(a) alcohol, and (b) a prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985, not being a substance specified in the statutory rules as being excepted from this definition, and (c) any other substance prescribed by the statutory rules as a drug for the purposes of this definition. See also s 28 of the Road Transport (General) Regulation 2013 at [13-9460]. “Manner and speed dangerous”— as to “speed dangerous” see [13-s 117.20]. As to “manner dangerous” see [13-s 117.25]. “Overturning or leaving the road”— the overturning of a vehicle need not occur on a road, and para (a) of s 52A(5) refers both to cases where the vehicle overturns and where the vehicle leaves the road: R v B (1990) 12 MVR 540; BC9002109. “Leaving the road” must be strictly applied and given a narrow meaning: R v Kinghorne (1982) 8 A Crim R 41.

[8-s 52A.15]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 52A

The test to be applied is an objective one and driving “in a manner dangerous to the public” imports a definition of a degree of negligence in a criminal sense for the safety of other road users. That degree of negligence is less than is necessary for the Crown to prove manslaughter by gross criminal negligence: see R v Buttsworth [1983] 1 NSWLR 658, where the relevant authorities are discussed at length. There is no requirement upon the trial judge to direct a jury that the act of driving must be a voluntary and conscious act unless there is some question arising that the accused fell asleep or was under the influence of alcohol or drugs because otherwise it is presumed that the accused’s acts were voluntary and conscious: R v Dunne (NSWCCA, 26 March 1993, unreported). Driving at a time before the accident leading to the charge may be relevant to a determination of the manner of driving at the time of the accident, depending upon whether the two instances of driving are so related in time, distance and circumstance to allow an inference to arise that the manner of driving was of the same character on the second occasion as on the first: R v Shashati (2018) 85 MVR 194; [2018] NSWCCA 167; BC201806717; 25(9) Crim LN [4032] applying R v Scott (2003) 39 MVR 166; 141 A Crim R 323; [2003] VSCA 55; BC200302356. It was also held that the earlier driving might be relevant to an assessment of the moral culpability of the offender in determining the appropriate sentence, as are the circumstances surrounding the decision to drive. Where the driver is overtaking, he is obliged to assure himself before overtaking by taking such steps as are objectively reasonable in the circumstances, that he will be able to complete that manoeuvre with safety. The obligation is a continuing one, so that if conditions change during the course of the manoeuvre he must abandon it if he is no longer reasonably assured of completing it with safety: R v Goodman (NSWCCA, Hunt CJ at CL, Allen and Badgery-Parker JJ, 10 December 1991, unreported). The fact that a driver is adversely affected by alcohol is relevant to the question of whether the driving was in a manner dangerous, however the fact only that the driver has consumed alcohol is irrelevant unless the evidence goes so far as to show that the quantity consumed was such that the driving would have been affected: R v McBride [1962] 2 QB 167; R v Thorpe [1972] 1 WLR 342; [1972] 56 CR App R 93 but see R v Owens (1987) 30 A Crim R 59 and R v Woodward [1995] 2 Cr App R 388 where the evidence was held not to be of substantial weight. Although the resulting damage to the vehicle or injury to a person does not itself prove that the antecedent driving was dangerous, it can be taken into account in determining whether the vehicle was driven at excessive speed — a matter relevant to the issue of dangerousness: R v Christoff (2003) 38 MVR 218; 140 A Crim R 45; [2003] NSWCCA 52; BC200300946. “Drive” means to have the ability to control the accelerator and brake even though a passenger has taken control of the steering wheel: Williams v R (2012) 62 MVR 382; [2012] NSWCCA 286; BC201210453; 20(3) Crim LN [3184]. It may be necessary for a trial judge to direct the jury as to the distinction between negligence and dangerous driving and, where inattentiveness is the basis of the allegation, it will often be the case that the jury will not be properly directed if they are left to speculate as to the level of negligence which may be appropriate: R v Hopton (NSWCCA, Spigelman CJ, Abadee and Ireland JJ, 8 October 1998, unreported, BC9805510); 5(10) Crim LN [928]. The necessity of a trial judge to give appropriate directions as to the nature of driving in a manner dangerous and the task to be undertaken by the jury was stressed in R v Saunders (2002) 37 MVR 270; 133 A Crim R 104; [2002] NSWCCA 362; BC200205005; 9(8) Crim LN [1470], where it was held that the trial judge failed to direct the jury to focus upon what the accused actually did as distinct from the result of his driving. [8-s 52A.20] Mechanical defect A mechanical defect in a motorcar will provide a defence to a charge of culpable driving if it causes a sudden loss of control and is no way due to any fault on the part of the driver. The onus of proving there was no mechanical fault is on the prosecution once it is raised by the accused. However, where the driver knew or ought to have known of the

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s 52A

CRIMES ACT 1900 (NSW) — PART 3

[8-s 52A.45]

defect, he may still be found guilty of driving in a manner dangerous: R v Spurge [1961] 2 QB 205; 45 Cr App R 191; R v Atkinson (1970) 55 Cr App R 1. See also Giorgianni v R (1985) 156 CLR 473; 58 ALR 641; 2 MVR 97. [8-s 52A.25] Statutory defence Once the Crown has proved the elements, it is for the accused to prove that there was no causal connection between the manner of driving, or the fact of his being under the influence, and the death or grievous bodily harm occasioned by the impact: R v F [1957] SR(NSW) 543; 74 WN 211. The onus on the defence is on the balance of probabilities. [8-s 52A.30] Joint counts The one indictment can include a count of driving in a manner dangerous, with one of driving under the influence of alcohol, in relation to the one impact: R v Thompson [1976] 2 NSWLR 453.

[8-s 52A.40] Driving under the influence of alcohol and a drug It would seem that the one charge can allege that the defendant was driving both under the influence of alcohol and a drug, or under the influence of alcohol or a drug, notwithstanding that in the latter case the prosecution cannot say which was the situation. It appears that the section does not create two offences of driving under the influence but rather one offence, whether the driver is under the influence of either a drug or alcohol or both. Such an interpretation was placed on similar legislation in Dunsmore v Weber (1988) 8 MVR 133. The accused is presumed to have been driving under the influence of alcohol at the time of the impact where the accused has a prescribed concentration of alcohol of 0.15 or more determined by a blood analysis on a sample of blood taken within two hours of the impact, see s 52AA(1)–(3) at [8-s 52AA]. [8-s 52A.45] Sentence The general approach for sentencing for offences under this section was considered in R v Slattery (1996) 90 A Crim R 519; (1997) 4 Crim LN 6 [654], where it was held that proper regard should be paid to the increased maximum penalties and that existing sentencing patterns are to move sharply upward. In R v Musumeci (NSWCCA, Hunt CJ, McInerney and Hulme JJ, 30 October 1997, unreported, BC9705741); (1997) 4 Crim LN 86 [789] the principles for sentencing for this offence were summarised as follows: 1. The legislature has always placed a premium upon human life, and the taking of a human life by driving a motor vehicle dangerously is to be regarded as a crime of some seriousness: R v Murnin (NSWCCA, 16 August 1985, unreported) at 9. 2. The real substance of the offence is not just the dangerous driving; it is the dangerous driving in association with the taking of a human life: R v MacIntyre (1988) 38 A Crim R 135 at 139. 3. Such is the need for public deterrence in this type of case, the youth of any offender is given less weight as a subjective matter than in other types of cases: R v MacIntyre at 139. 4. The courts must tread warily in showing leniency for good character in such cases: R v MacIntyre at 139. 5. So far as youthful offenders of good character who are guilty of dangerous driving therefore, the sentence must be seen to have a reasonable proportionality to the objective circumstances of the crime, and persuasive subjective circumstances must not lead to inadequate weight being given to those objective circumstances: R v Rushby [1977] 1 NSWLR 594; R v Dodd (1991) 57 A Crim R 349.

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Crimes

[8-s 52A.35] Prior driving before the offence Evidence may be given of earlier conduct by the defendant provided there is sufficient nexus between the earlier driving and the driving giving rise to the charge: R v Horvath [1972] VR 533. Earlier driving was held to be admissible where the prosecution relied upon the accused’s intoxication, as evidence that the accused’s judgment and management of the vehicle were affected (R v Buchanan [1966] VR 9) where the driving occurred 35 to 40 minutes prior to the offence.

[8-s 52A.45]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 52A

6. Periodic detention has a strong element of leniency built into it and, as presently administered, it is usually no more punitive than a community service order: R v Hallocoglu (1992) 29 NSWLR 67; R v Burnett (1996) 85 A Crim R 76. 7. The statement made by this court in relation to the previous offence of culpable driving, that it cannot be said that a full time custodial sentence is required in every case (R v Hallocoglu at 77), continues to apply in relation to the new offence of dangerous driving: R v Panetta (1997) 2 MVR 332; BC9704859; (1997) 4 Crim LN 66. As that offence is committed even though the offender has had no more than a momentary or casual lapse of attention (Coventry v R (1938) 59 CLR 633), there must always be room for a non-custodial sentence (although that does not mean that a non-custodial sentence is ordinarily appropriate in such a case), but the case in which a sentence other than one involving full time custody is appropriate must be rarer for this new offence: R v Panetta at 18–19. In R v Jurisic (1998) 45 NSWLR 209; 101 A Crim R 259; (1998) 5 Crim LN 81 [919] a guideline judgment was handed down for the sentencing of offences of dangerous driving. The power of the court to make a guideline of this type was confirmed in R v Whyte [2002] NSWCCA 343; BC200204713; (2002) 9 Crim LN 64 [1465], in which case a new guideline was established as follows: A Typical Case A frequently recurring case of an offence under s 52A has the following characteristics: (i) Young offender. (ii) Of good character with no or limited prior convictions. (iii) Death or permanent injury to a single person. (iv) The victim is a stranger. (v) No or limited injury to the driver or the driver’s intimates. (vi) Genuine remorse. (vii) Plea of guilty of limited utilitarian value. Guideline with respect to custodial sentences A custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgment. Aggravating Factors (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) (ix) (x) (xi)

Extent and nature of the injuries inflicted. Number of people put at risk. Degree of speed. Degree of intoxication or of substance abuse. Erratic or aggressive driving. Competitive driving or showing off. Length of the journey during which others were exposed to risk. Ignoring of warnings. Escaping police pursuit. Degree of sleep deprivation. Failing to stop.

Items (i) to (xi) relate to the moral culpability of an offender. Guideline with respect to length of custodial sentence For offences against s 52A(1) and (3) for the typical case: Where the offender’s moral culpability is high, a full time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate

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s 52A

CRIMES ACT 1900 (NSW) — PART 3

[8-s 52A.45]

For the aggravated version of each offence under s 52A an appropriate increment is required. Other factors, such as the number of victims, will also require an appropriate increment.

The application of the Whyte guideline was considered in Hedges v R [2011] NSWCCA 263; BC201110712; 19(2) Crim LN [3018] where it was held that the sentencing judge had misapplied the guideline in a number of ways. As to a consideration of the worst case of an offence under the section, see R v Black (NSWCCA, Spigelman CJ, Sully and Ireland JJ, 23 July 1998, unreported, BC9805277); 5(9) Crim LN [909]. It was held to be an error to take into account the death of a foetus when sentencing for an offence involving the death of the mother: Hughes v R (2008) 49 MVR 420; 185 A Crim R 155; [2008] NSWCCA 48; BC200801360; 15(4) Crim LN [2377]. For the sentencing for aggravated dangerous driving, see R v Tadman (2001) 34 MVR 54; [2001] NSWCCA 225; BC200103013; 8(6) Crim LN [1310], where it was held that the sentencing judge had been in error in starting his considerations of the appropriate sentence at 3 years and then adding on aggravating factors to increase the sentence beyond that term. In R v Price [2004] NSWCCA 186; BC200405783; 11(9) Crim LN [1765] it was held that it would be unusual in sentencing for multiple offences of dangerous driving occasioning death that sentences for each offence could be totally concurrent as it would rarely be appropriate that the sentence for one offence could reflect the criminality involved in two or more offences. In R v Janceski (2005) 64 NSWLR 10; 223 ALR 580; [2005] NSWCCA 281; BC200506067; 12(8) Crim LN [1920] it was held that, where there were multiple victims, separate sentences should generally be imposed that are appropriate for only one victim and then made partly cumulative in order to represent the total criminality. It was an error for a judge to give concurrent sentences when two victims suffered serious injuries when a vehicle ran over their legs as they sat in the gutter beside one another: R v Read (2010) 55 MVR 280; [2010] NSWCCA 78; BC201002665; 17(5) Crim LN [2721]. The fact that the behaviour of the victim may have contributed in some way to the death or injury suffered is irrelevant: R v Errington (1999) 29 MVR 344; [1999] NSWCCA 18; BC9900968 where the passenger knew the driver was drunk: R v Berg (2004) 41 MVR 399; [2004] NSWCCA 300; BC200405646 where the passenger was not wearing a seatbelt; and R v Dutton [2005] NSWCCA 248; BC200505157 where the passenger had her arm out of the window. An offence involving death arising from the driver texting a message on a mobile phone and allowing his vehicle to cross to the wrong side of the road was considered a serious case of dangerous driving in WW v R [2012] NSWCCA 165; BC201206782; 19(9) Crim LN [3117]. Although s 10 Crimes (Sentencing Procedure) Act 1999 at [5-s 10] (formerly s 556A Crimes Act) can be applied to an offence of culpable driving, it would only be appropriate to do so in exceptional cases. Such a case would not include the case of a person of good character disregarding a vital road sign and thus causing the death of a person: R v Swift (NSWCCA, 11 April 1991, unreported); R v Heinrich (1992) 15 MVR 225; 61 A Crim R 212; BC9201926, distinguishing R v Harvey (NSWCCA, 3 October 1985, unreported). In relation to an offence occasioning death, the effect and impact of the death of the deceased upon friends and relatives is not a matter which is relevant to sentencing: R v Previtera (1997) 94 A Crim R 76; BC9702102; 4(4) Crim LN [691] and R v Dang [1999] NSWCCA 42; BC9901567; 6(3) Crim LN [986], where the judge erroneously referred to the grief of the deceased’s relatives. However, there was no error for a trial judge to acknowledge the impact of crime on victims and their families and the grief suffered as a result: R v Mansour (1999) 29 MVR 409; [1999] NSWCCA 180; BC9903730; 6(6) Crim LN [1029]. Although the court pays less regard to good character when sentencing for this offence, it does not disregard the offenders otherwise good character apart from his or her driving record: R v Ryan

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Crimes

The guideline focuses attention on the objective circumstances of the offence. The subjective circumstances of the offender will also require consideration.

[8-s 52A.45]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 52A

(2003) 39 MVR 395; 141 A Crim R 403; [2003] NSWCCA 202; BC200304841; 10(8) Crim LN [1578] where it was held that the sentencing judge erred when he stated that the offenders record disentitled him to “consideration on sentence by way of character whatsoever”. The significance of personal deterrence in sentencing for an offence under the section, even where the offender was remorseful and suffered self-punishment as a result of the effects of the offence, was stressed in R v AB (2011) 59 MVR 356; [2011] NSWCCA 229; BC201107942; 19(1) Crim LN [3000]. As to the relevance of the effects of the offence upon the offender, including shame and personal loss, see R v Koosmen (2004) 42 MVR 123; [2004] NSWCCA 359; BC200406852, applying R v Dhanhoa [2000] NSWCCA 257; BC200004701. It has been observed that the statistics do not indicate that sufficient regard is being given to the aggravated offence under s 52A(4) on the basis that penalties for offences under s 52A(3) are considerably higher than the aggravated offence even though the maximum penalty for the aggravated offence is greater: R v McMillan [2005] NSWCCA 28; BC200500727; 12(3) Crim LN [1854]. Where the matter of aggravation amounts to a high range PCA offence then the guideline judgement in Application by Attorney General (No 3 of 2002), Re (2004) 61 NSWLR 305; 147 A Crim R 546; [2004] NSWCCA 303; BC200405864 applies so that the reason for the offender’s drinking is an irrelevant consideration: R v Doyle [2006] NSWCCA 118; BC200602231; 13(4) Crim LN [2043]. A full time custodial sentence is usually required for an aggravated offence occasioning grievous bodily harm: R v Carruthers (2008) 50 MVR 29; 182 A Crim R 481; [2008] NSWCCA 59; BC200801973; 15(4) Crim LN [2378] where a Crown appeal against a sentence of periodic detention was upheld in a case involving a reading of 0.22. It was not double punishment to sentence an offender for leaving the scene of an accident and also to take into account as an aggravating factor in an offence of dangerous driving, under s 52A, that he left the scene of the accident: Shumack v R [2008] NSWCCA 311; BC200811198; 16(2) Crim LN 25 [2504] because in the latter case the failure to stop is a consideration in determining whether the offender abandoned responsibility; that is his moral culpability for the driving offence. [8-s 52A.50] Disqualification The purpose of imposing a disqualification period for an offence under the section was considered in R v Veatufunga (2007) 47 MVR 324; [2007] NSWCCA 54; BC200701041; (2006) 13 Crim LN 41 [2191] where it was held to be an aid to the protection of the public and to reflect personal and general deterrence so that it was inappropriate in some cases to only disqualify the offender for the period while in custody serving the sentence. PROOF MATERIAL ON SECTION 52A For the text of s 52A, see [8-s 52A] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 52A.55] Form of indictment [8-s 52A.60] Dangerous driving under the influence — s 52A(1)(a) or (3)(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, did drive a motor vehicle namely [state make and registered number of vehicle — if vehicle is registered outside New South Wales then state the origin of the registration plates] whilst under the influence of intoxicating liquor/a drug known as [name drug], whereby the vehicle was involved in an impact as a result of which the death of [name of victim] was occasioned/grievous bodily harm was occasioned to [name of victim]. [8-s 52A.65] Dangerous driving at a speed dangerous — s 52A(1)(b) or (3)(b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, did drive a motor vehicle namely [state make and registered number of vehicle — if vehicle is registered outside New South Wales then state the origin of the registration plates] at a speed dangerous to another person or persons, whereby the vehicle was involved in an impact as a result of which the death of [name of victim] was occasioned/grievous bodily harm was occasioned to [name of victim].

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s 52A

CRIMES ACT 1900 (NSW) — PART 3

[8-s 52A.95]

[8-s 52A.75] Aggravated form — s 52A(2), (4) and (7) (a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales [follow relevant simple averment above] and where the prescribed concentration of alcohol was present in his/her blood. (b) That [name of accused] on [name of accused] at [locality/suburb] in the State of New South Wales [follow relevant simple averment above] and the said [name of accused] was driving the vehicle on a road at a speed that exceeded, by more than 45 kilometres per hour, the speed limit applicable to that length of road. (c) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales [follow relevant simple averment above] and when he/she was driving the vehicle in an attempt to escape pursuit by a police officer. (d) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales [follow relevant simple averment above] and when his/her ability to drive was very substantially impaired by the fact that he/she was under the influence of a drug/a combination of drugs [name of drug/drugs]. [8-s 52A.80] Elements of offence

The elements of the offence are —

[8-s 52A.85] Dangerous driving occasioning death or grievous bodily harm (1) Death or grievous bodily harm [8–s 4.1] was occasioned to any person; (2) through any of the means specified in subss (5)(a)–(h), or (6); (3) provided that at the time the vehicle was driven by another person (the accused): (i) under the influence of intoxicating liquor [8-s 52A.40]; (ii) under the influence of a drug [8-s 52A.40][8-s 52A.10]; (iii) at a speed dangerous [8-s 52A.15] to another person or persons; or (iv) in a manner dangerous [8-s 52A.15] to another person or persons. [8-s 52A.90] Aggravated dangerous driving occasioning death or grievous bodily harm (1) Death or grievous bodily harm [8–s 4.1] was occasioned to any person; (2) through any of the means specified in subss (5)(a)–(h), or (6); (3) provided that at the time the vehicle was driven by another person (the accused): (i) under the influence of intoxicating liquor [8-s 52A.40]; (ii) under the influence of a drug [8-s 52A.40][8-s 52A.10]; (iii) at a speed dangerous [8-s 52A.15] to another person or persons; or (iv) in a manner dangerous [8-s 52A.15] to another person or persons; and (4) either: (i) the prescribed concentration of alcohol [8-s 52A(9)] was present in the accused’s blood; (ii) the accused was driving the vehicle [8-s 52A(9)] concerned on a road at a speed that exceeded, by more than 45 kilometres per hour, the speed limit (if any) applicable to that length of road; (iii) the accused was driving the vehicle to escape pursuit by a police officer; or (iv) the accused was driving under the influence of a drug (other than intoxicating liquor)/a combination of drugs [8-s 52A.40][8-s 52A.10] which thereby very substantially impaired his/her ability to drive. [8-s 52A.95] Statutory defence Once the Crown has proved the elements of the offence, the defence can prove that the death or grievous bodily harm occasioned by the impact was not in any

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Crimes

[8-s 52A.70] Dangerous driving in manner dangerous — s 52A(1)(c) or (3)(c) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, did drive a motor vehicle namely [state make and registered number of vehicle — if vehicle is registered outside New South Wales then state the origin of the registration plates] in a manner dangerous to another person or persons, whereby the vehicle was involved in an impact as a result of which the death of [name of victim] was occasioned/grievous bodily harm was occasioned to [name of victim].

[8-s 52A.95]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 52A

way attributable (as relevant) to the fact of being under the influence or the manner or speed of driving: see s 52A(8) at [8-s 52A] and [8-s 52A.25]. [8-s 52A.100] Statutory limits No person convicted or acquitted of an offence under this section can be prosecuted for murder or manslaughter under the Crimes Act, nor can anyone convicted or acquitted of murder or manslaughter or any other offence under the Crimes Act be prosecuted for an offence under this section on the same or substantially the same facts: see s 52AA(6) at [8-s 52AA]. [8-s 52A.105] Alternative verdict If the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under s 52A(1) or (3), it may find that the accused is guilty of the offence under s 52A(1) or (3): see s 52AA(5) at [8-s 52AA].

[8-s 52AA] Dangerous driving: procedural matters 52AA (1) Presumption as to intoxication For the purposes of section 52A, the accused is conclusively presumed to be under the influence of liquor if the prosecution proves that the prescribed concentration of alcohol was present in the accused’s breath or blood at the time of the impact occasioning death or grievous bodily harm. [subs (1) am Act 99 of 2007 s 4 and Sch 3.5[3], opn 25 Jan 2008]

(2) Evidence of intoxication — alcohol For the purposes of section 52A, evidence may be given of the concentration of alcohol present in the accused’s blood at the time of the impact occasioning death or grievous bodily harm as determined by a blood analysis carried out in accordance with Part 4 of Schedule 3 to the Road Transport Act 2013. [subs (2) subst Act 19 of 2013 Sch 4 item 4.8[4], opn 1 July 2013; am Act 61 of 2015 Sch 1[1], opn 24 Nov 2015]

(3) Time of intoxication A concentration of alcohol determined by the means referred to in subsection (2) is taken to be the concentration of alcohol in the accused’s blood at the time of the impact occasioning death or grievous bodily harm: (a) if the blood sample that was analysed was taken within 2 hours after the impact, and (b) unless the accused proves that the concentration of alcohol in the accused’s blood at the time of the impact was less than the prescribed concentration of alcohol. (3A) Evidence of intoxication — drugs For the purposes of section 52A, evidence may be given of the concentration of a drug (other than alcohol) present in the accused’s blood or urine at the time of the impact occasioning death or grievous bodily harm as determined by a blood or urine analysis carried out in accordance with Part 4 of Schedule 3 to the Road Transport Act 2013. [subs (3A) subst Act 19 of 2013 Sch 4 item 4.8[5], opn 1 July 2013; am Act 61 of 2015 Sch 1[1], opn 24 Nov 2015]

(3B) Time of intoxication A concentration of a drug (other than alcohol) determined by the means referred to in subsection (3A) is taken to be the concentration of the drug in the accused’s blood or urine at the time of the impact occasioning death or grievous bodily harm: (a) if the blood or urine sample that was analysed was taken within 4 hours after the impact, and

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s 52AA

CRIMES ACT 1900 (NSW) — PART 3

[8-s 52AA.5]

(b) unless the accused proves that there was no such drug in the accused’s blood or urine at the time of the impact. (4) Alternative verdicts If on the trial of a person who is indicted for murder or manslaughter or for an offence under section 53 or 54 the jury is satisfied that the person is guilty of an offence under section 52A, it may find the accused guilty of the offence under section 52A, and the accused is liable to punishment accordingly. (5) Question of aggravation If on the trial of a person for an offence under section 52A(2) or (4) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 52A(1) or (3), it may find that the accused is guilty of the offence under section 52A(1) or (3), and the accused is liable to punishment accordingly. (6) Double jeopardy This section does not take away the liability of any person to be prosecuted for or found guilty of murder, manslaughter or any other offence or affect the punishment that may be imposed for any such offence. However, a person who: (a) has been convicted or acquitted of an offence under section 52A cannot be prosecuted for murder or manslaughter or for any other offence under this Act on the same, or substantially the same, facts, or (b) has been convicted or acquitted of murder or manslaughter or of any other offence under this Act cannot be prosecuted for an offence under section 52A on the same, or substantially the same, facts. (7) Definitions In this section: prescribed concentration of alcohol means a concentration of 0.15 grammes or more of alcohol in 210 litres of breath or 100 millilitres of blood. [def am Act 99 of 2007 s 4 and Sch 3.5[4], opn 25 Jan 2008]

road [def rep Act 61 of 2015 Sch 1[2], opn 24 Nov 2015] [subs (7) am Act 19 of 2013 Sch 4 item 4.8[6], opn 1 July 2013] [s 52AA insrt Act 78 of 1994 s 3 and Sch 1]

COMMENTARY ON SECTION 52AA Double jeopardy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Road transport legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 52AA.1] [8-s 52AA.5]

[8-s 52AA.1] Double jeopardy Where an accused was acquitted by a jury on a charge of culpable driving, he could raise the defence of autrefois acquit to a charge of negligent driving in circumstances where the only issue before the jury was whether the accused was inattentive and no issue was raised as to the quality of that driving: Johnson v DPP (1996) 2 NSWCR 83; (NSWSC, Hidden J, 26 June 1996, unreported); 3 Crim LN 44 [587]. The scope of the section was considered in R v Holton (2004) 41 MVR 89; [2004] NSWCCA 214; BC200404030; (2004) 11 Crim LN 76 [1747], 11 Crim LN 92, where it was held that an order convicting the accused upon arraignment for an offence under s 52A did not bar proceedings for murder on the basis that the conviction was either not final or was not perfected and could be vacated to allow the trial for murder to proceed. The word “convicted” in the section should be read as meaning “finally convicted”. [8-s 52AA.5] Road transport legislation Road Transport guide card.

See the Road Transport Act 2013 under the 13 —

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Crimes

[subs (3B) insrt Act 79 of 2006 s 4 and Sch 2.1[3], opn 15 Dec 2006]

[8-s 52AB]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 52AB

[8-s 52AB] Offence of failing to stop and assist after vehicle impact causing death or grievous bodily harm 52AB (1) A person is guilty of an offence if: (a) a vehicle being driven by the person is involved in an impact occasioning the death of another person, and (b) the person knows, or ought reasonably to know, that the vehicle has been involved in an impact occasioning the death of, or grievous bodily harm to, another person, and (c) the person fails to stop and give any assistance that may be necessary and that it is in his or her power to give. Maximum penalty: imprisonment for 10 years. (2) A person is guilty of an offence if: (a) a vehicle being driven by the person is involved in an impact occasioning grievous bodily harm to another person, and (b) the person knows, or ought reasonably to know, that the vehicle has been involved in an impact occasioning the death of, or grievous bodily harm to, another person, and (c) the person fails to stop and give any assistance that may be necessary and that it is in his or her power to give. Maximum penalty: imprisonment for 7 years. (3) The provisions of section 52A(5) and (6) (which prescribe circumstances in which a vehicle is taken to be involved in an impact) apply for the purposes of this section in the same way as they apply for the purposes of section 52A. (4) In this section, vehicle has the same meaning as it has in section 52A. [s 52AB insrt Act 74 of 2005 s 3 and Sch 1, opn 13 Feb 2006]

COMMENTARY ON SECTION 52AB Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 52AB.5]

[8-s 52AB.5] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in the Local Court unless an election is made for trial on indictment: see s 260 at [2-s 260]. The maximum penalty for an offence dealt with summarily is imprisonment for 2 years: see s 267 at [2-s 267]. The objective seriousness of an offence under the section was considered in R v Pullen (2018) 87 MVR 47; [2018] NSWCCA 264; BC201811154; 26(1) Crim LN [4071] where the significance of the driver’s knowledge of causing injury to another person was considered. It was held that on the facts of the case it was not open to the judge to find that the objective seriousness of the offence was “well below the mid-range”. The importance of general deterrence and denunciation in imposing a sentence for this offence was emphasised.

[8-s 52B] Dangerous navigation: substantive matters 52B (1) Dangerous navigation occasioning death A person is guilty of the offence of dangerous navigation occasioning death if the vessel navigated by the person is involved in an impact occasioning the death of another person and the person navigating the vessel was, at the time of the impact, navigating the vessel: (a) under the influence of intoxicating liquor or of a drug, or (b) at a speed dangerous to another person or persons, or

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s 52B

CRIMES ACT 1900 (NSW) — PART 3

[8-s 52B]

(c) in a manner dangerous to another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 10 years. (2) Aggravated dangerous navigation occasioning death A person is guilty of the offence of aggravated dangerous navigation occasioning death if the person commits the offence of dangerous navigation occasioning death in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 14 years. (3) Dangerous navigation causing grievous bodily harm A person is guilty of the offence of dangerous navigation causing grievous bodily harm if the vessel navigated by the person is involved in an impact occasioning grievous bodily harm to another person and the person navigating the vessel was, at the time of the impact, navigating the vessel: (a) under the influence of intoxicating liquor or of a drug, or (b) at a speed dangerous to another person or persons, or (c) in a manner dangerous to another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 7 years. [subs (3) am Act 27 of 2003 s 3 and Sch 3[1], opn 8 July 2003]

(4) Aggravated dangerous navigation occasioning grievous bodily harm A person is guilty of the offence of aggravated dangerous navigation occasioning grievous bodily harm if the person commits the offence of dangerous navigation occasioning grievous bodily harm in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 11 years. (5) When vessel is involved in impact — generally For the purposes of this section, the circumstances in which a vessel is involved in an impact occasioning the death of, or grievous bodily harm to, a person include if the death or harm is occasioned through any of the following: (a) the vessel overturning or running aground while the person is being conveyed in or on the vessel (whether as a passenger or otherwise), (b) an impact between any object and the vessel while the person is being conveyed in or on that vessel (whether as a passenger or otherwise), (c) an impact between the person and the vessel, (d) the impact of the vessel with another vessel or an object in, on or near which the person is at the time of the impact, (e) an impact with anything on, or attached to, the vessel, (f) an impact with anything that was in motion through falling from the vessel, (g) the person falling from the vessel, or being thrown or ejected from the vessel, while being conveyed in or on the vessel (whether as a passenger or otherwise), (h) an impact between any object (including the water and the ground) and the person, as a consequence of the person (or any part of the person) being or protruding outside the vessel, while the person is being conveyed in or on the vessel (whether as a passenger or otherwise). [subs (5) am Act 11 of 2004 Sch 4, opn 24 Mar 2004]

(6) When vessel is involved in causing other impacts For the purposes of this section, a vessel is also involved in an impact occasioning the death of, or grievous

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Crimes

[subs (1) am Act 27 of 2003 s 3 and Sch 3[1], opn 8 July 2003]

[8-s 52B]

s 52B

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

bodily harm to, a person if the death or harm is occasioned through the vessel causing an impact between other vessels or between another vessel and any object or person or causing another vessel to overturn or run aground. (7) Circumstances of aggravation In this section, circumstances of aggravation means any circumstances at the time of the impact occasioning death or grievous bodily harm in which: (a) the prescribed concentration of alcohol was present in the accused’s breath or blood, or (b) the accused was navigating the vessel at a speed that exceeds the speed limit (if any) applicable to the person navigating the vessel, or to the navigable waters, on which the vessel was navigated at the time of the impact, or (c) the accused was navigating the vessel in an attempt to escape pursuit by a police officer, or (d) the accused’s ability to navigate was very substantially impaired by the fact that the accused was under the influence of a drug (other than intoxicating liquor) or a combination of drugs (whether or not intoxicating liquor was part of that combination). [subs (7) am Act 135 of 1997 s 3 and Sch 1[3], opn 16 Jan 1998]

(8) Defences It is a defence to any charge under this section if the death or grievous bodily harm occasioned by the impact was not in any way attributable (as relevant): (a) to the fact that the person charged was under the influence of intoxicating liquor or of a drug or a combination of drugs, or (b) to the speed at which the vessel was navigated, or (c) to the manner in which the vessel was navigated. [subs (8) am Act 135 of 1997 s 3 and Sch 1[4], opn 16 Jan 1998]

(9) Definitions In this section: drug has the same meaning as it has in the Road Transport Act 2013. [def am Act 19 of 1999 s 4 and Sch 2.6 [4], opn 1 Dec 1999; Act 19 of 2013 Sch 4 item 4.8[7], opn 1 July 2013]

object includes a pier, wharf, jetty, pontoon, buoy, breakwater, bridge, support, mooring post or platform, navigation aid, retaining wall, marina, boatshed, slipway or swimming enclosure. prescribed concentration of alcohol means a concentration of 0.15 grams or more of alcohol in 210 litres of breath or 100 millilitres of blood. vessel means a vessel within the meaning of the Marine Safety Act 1998. [def am Act 4 of 2005 s 4 and Sch 2.1[1], opn 13 May 2005] [s 52B subst Act 6 of 1996 s 3 and Sch 1.2, opn 16 Aug 1996] Editor’s note: For proof material on s 52B, see [27-16,270] behind the “27 — Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 52B Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dangerous navigation under the influence — s 52B(1)(a) or (3)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[8-s 52B.1] [8-s 52B.5] [8-s 52B.10] [8-s 52B.15]

s 52B

CRIMES ACT 1900 (NSW) — PART 3

Dangerous navigation at a speed dangerous — s 52B(1)(b) or (3)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dangerous navigation in a manner dangerous — s 52B(1)(c) or (3)(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Aggravated form — s 52B(2) and (7) . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dangerous navigation occasioning death or grievous bodily harm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Aggravated dangerous navigation occasioning death or grievous bodily harm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Statutory defence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Statutory limits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alternative verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 52B.25]

[8-s 52B.20] [8-s 52B.25] [8-s 52B.30] [8-s 52B.35] [8-s 52B.40] [8-s [8-s [8-s [8-s

52B.45] 52B.50] 52B.55] 52B.60]

[8-s 52B.5] Definitions As to “grievous bodily harm” see [8-s 4.1]. As to manner or speed dangerous to the public see [13-30,505.20]–[13-30,505.25] and [8-s 52A.15]. As to “drug” see s 52B(9), “Drug” is defined in s 4 of the Road Transport Act 2013 at [13-s 4] as meaning: (a) alcohol, and (b) a prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985, not being a substance specified in the statutory rules as being excepted from this definition, and (c) any other substance prescribed by the statutory rules as a drug for the purposes of this definition. See also s 28 of the Road Transport (General) Regulation 2013 at [13-9460]. PROOF MATERIAL ON SECTION 52B For the text of s 52B, see [8-s 52B] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 52B.10] Form of indictment [8-s 52B.15] Dangerous navigation under the influence — s 52B(1)(a) or (3)(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did navigate a vessel namely [state make and registered number of vessel] whilst under the influence of intoxicating liquor/a drug known as [name drug] whereby the vessel was involved in an impact as a result of which the death of [name of victim] was occasioned/grievous bodily harm was occasioned to [name of victim]. [8-s 52B.20] Dangerous navigation at a speed dangerous — s 52B(1)(b) or (3)(b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales navigated a vessel namely [state make and registered number of vessel] at a speed dangerous to another person or persons whereby the vessel was involved in an impact as a result of which the death of [name of victim] was occasioned/grievous bodily harm was occasioned to [name of victim]. [8-s 52B.25] Dangerous navigation in a manner dangerous — s 52B(1)(c) or (3)(c) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales navigated a vessel namely [state make and registered number of vessel] in a manner dangerous to another person or persons whereby the vessel was involved in an impact as a result of which the death of [name of victim] was occasioned/grievous bodily harm was occasioned to [name of victim].

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Crimes

[8-s 52B.1] Summary disposal An offence under the section, other than where death was occasioned, is a Table 1 offence under the Criminal Procedure Act and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 1 cl 2. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267].

[8-s 52B.30]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 52B

[8-s 52B.30] Aggravated form — s 52B(2) and (7) (a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales [follow relevant simple averment above] and where the prescribed concentration of alcohol was present in his/her blood. (b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales [follow relevant simple averment above] and the said [name of accused] was navigating the vessel at a speed that exceeded the speed limit applicable to him/her/that exceeded the speed limit applicable to the navigable waters on which the vessel was navigated at the time of the impact. (c) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales [follow relevant simple averment above] and when he/she was navigating the vessel in an attempt to escape pursuit by a police officer. (d) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales [follow relevant simple averment above] and when his/her ability to navigate was very substantially impaired by the fact that he/she was under the influence of a drug/a combination of drugs. [8-s 52B.35] Elements of offence

The elements of the offence are —

[8-s 52B.40] Dangerous navigation occasioning death or grievous bodily harm (1) Death [8-s 18.15] or grievous bodily harm [8-s 4.1] was occasioned to any person; (2) through any of the means specified in subss (5)(a)–(f), or (6); (3) provided that at the time the vessel [8-s 52B(9)] was navigated by the accused: (i) under the influence of intoxicating liquor [8-s 52BA]; (ii) under the influence of a drug [8-s 52B(9)][8-s 52B.5]; (iii) at a speed dangerous to another person or persons; or (iv) in a manner dangerous to another person or persons. [8-s 52B.45] Aggravated dangerous navigation occasioning death or grievous bodily harm (1) Death [8-s 18.15] or grievous bodily harm [8-s 4.1] was occasioned to any person; (2) through any of the means specified in subss (5)(a)–(f), or (6); (3) provided that at the time the vessel [8-s 52B(9)] was navigated by the accused: (i) under the influence of intoxicating liquor [8-s 52BA]; (ii) under the influence of a drug [8-s 52B(9)][8-s 52B.5]; (iii) at a speed dangerous to another person or persons; or (iv) in a manner dangerous to another person or persons; and where (4) either: (i) the prescribed concentration of alcohol [8-s 52B(9)] was present in the accused’s blood; (ii) the accused was navigating the vessel [8-s 52B(9)] concerned on navigable waters at a speed that exceeded the speed limit applicable to him/her/to those navigable waters; (iii) the accused was navigating the vessel to attempt to escape pursuit by a police officer; or (iv) the accused was under the influence of a drug (other than intoxicating liquor)/a combination of drugs [8-s 52B(9)][8-s 52B.5] which thereby very substantially impaired his/her ability to navigate. [8-s 52B.50] Statutory defence Once the Crown has proved the elements of the offence, the defence can prove that the death or grievous bodily harm occasioned by the impact was not in any way attributable (as relevant) to the fact of being under the influence or the manner or speed of navigating: see s 52B(8) at [8-s 52B]. [8-s 52B.55] Statutory limits No person convicted or acquitted of an offence under this section can be prosecuted for murder or manslaughter or for any other offence under the Crimes

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s 52BA

CRIMES ACT 1900 (NSW) — PART 3

[8-s 52BA]

Act, nor can anyone convicted or acquitted of murder or manslaughter or any other offence under the Crimes Act be prosecuted for an offence under this section, on the same or substantially the same facts: see s 52BA(6) at [8-s 52BA]. [8-s 52B.60] Alternative verdict If a jury is not satisfied that the accused is guilty of an offence in its aggravated form it may still find the accused guilty of an offence of dangerous navigation under s 52B(1) or (3): see s 52BA(4) at [8-s 52BA].

[8-s 52BA] Dangerous navigation: procedural matters 52BA (1) Presumption as to intoxication For the purposes of section 52B, the accused is conclusively presumed to be under the influence of liquor if the prosecution proves that the prescribed concentration of alcohol was present in the accused’s breath or blood at the time of the impact occasioning death or grievous bodily harm. (2) Evidence of intoxication For the purposes of section 52B, evidence may be given of the concentration of alcohol present in the accused’s blood at the time of the impact occasioning death or grievous bodily harm as determined by a blood analysis carried out in accordance with Schedule 1 to the Marine Safety Act 1998. (3) Time of intoxication A concentration of alcohol determined by the means referred to in subsection (2) is taken to be the concentration of alcohol in the accused’s blood at the time of the impact occasioning death or grievous bodily harm: (a) if the blood sample that was analysed was taken within 2 hours after the impact, and (b) unless the accused proves that the concentration of alcohol in the accused’s blood at that time was less than the prescribed concentration of alcohol. (4) Alternative verdicts If on the trial of a person who is indicted for murder or manslaughter or for an offence under section 54 the jury is satisfied that the person is guilty of an offence under section 52B, it may find the accused guilty of the offence under section 52B, and the accused is liable to punishment accordingly. (5) Question of aggravation If on the trial of a person for an offence under section 52B(2) or (4) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 52B(1) or (3), it may find that the accused is guilty of the offence under section 52B(1) or (3), and the accused is liable to punishment accordingly. (6) Double jeopardy This section does not take away the liability of any person to be prosecuted for or found guilty of murder, manslaughter or any other offence or affect the punishment that may be imposed for any such offence. However, a person who: (a) has been convicted or acquitted of an offence under section 52B cannot be prosecuted for murder or manslaughter or for any other offence under this Act on the same, or substantially the same, facts, or (b) has been convicted or acquitted of murder or manslaughter or of any other offence under this Act cannot be prosecuted for an offence under section 52B on the same, or substantially the same, facts. (7) Definition In this section: prescribed concentration of alcohol means a concentration of 0.15 grams or more of alcohol in 210 litres of breath or 100 millilitres of blood. [s 52BA insrt Act 6 of 1996 s 3 and Sch 1.2, opn 16 Aug 1996]

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Crimes

[subs (2) am Act 4 of 2005 s 4 and Sch 2.1[2], opn 13 May 2005]

[8-s 53]

s 53

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

[8-s 53] Injuries by furious driving etc 53 Whosoever, being at the time on horseback, or in charge of any carriage or other vehicle, by wanton or furious riding, or driving, or racing, or other misconduct, or by wilful neglect, does or causes to be done to any person any bodily harm, shall be liable to imprisonment for two years. Editor’s note: For proof material on s 53, see [27-16,300] behind the “27 — Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 53 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 53.1] [8-s 53.5] [8-s 53.10] [8-s 53.15]

[8-s 53.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act and is to be dealt with in a Local Court unless an election is made for trial on indictment, see [2-s 260] and [2-Sch 1] Pt 1 cl 2. The maximum penalty which can be imposed is 12 months imprisonment: see at [2-s 268]. [8-s 53.5] Definitions “Bodily harm” means actual bodily harm for which see [8-s 59.5]. In R v Bolton (Cooper DCJ, District Court of NSW, 14 May 1981, unreported), it was held that, having regard to its statutory context, the word “wanton” in s 53 “must have within it an element approaching recklessness and without proper regard to consequences” and the jury was directed “that wanton conduct means conduct which has an unrestrained disregard of the consequences of the act so far as the lives or safety of other persons are concerned”. The meaning of the words “wanton” and “furious” in s 53 were also considered in Aslan v R (2015) 21 DCLR (NSW) 101; [2015] NSWDC 185; BC201540261 at [39]–[40]. “Misconduct” semble means intentional misconduct as all other behaviour in the section is intentional. “Wilful neglect” requires the accused to be conscious of his breach of the necessary standard of care: Re Munton v West [1927] 1 Ch 262; see also R v Sheppard [1981] AC 394; [1980] 3 All ER 899. PROOF MATERIAL ON SECTION 53 For the text of s 53, see [8-s 53] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 53.10] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, whilst mounted on horseback/whilst in charge of a carriage/any other vehicle by wanton/furious riding/driving/racing/by other misconduct/by wilful neglect, did/caused to be done bodily harm to [name of victim]. [8-s 53.15] Elements of offence The elements of the offence are — (1) The accused, while on horseback, or in charge of a carriage or vehicle; (2) (i) wantonly or furiously rode, drove or raced; (ii) by some other misconduct; or (iii) by wilful neglect [8–s 53.5]; (3) did or caused bodily harm [8–s 53.5] to a person.

[8-s 54] Causing grievous bodily harm 54 Whosoever by any unlawful or negligent act, or omission, causes grievous bodily harm to any person, shall be liable to imprisonment for two years. Editor’s note: For proof material on s 54, see [27-16,325] behind the “27 — Informations and Indictments” guide card in Vol 4.

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s 55

[8-s 55]

CRIMES ACT 1900 (NSW) — PART 3

COMMENTARY ON SECTION 54 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Unlawful act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 54.1] [8-s 54.5] [8-s 54.10] [8-s 54.15] [8-s 54.20]

[8-s 54.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 1 cl 2. The maximum penalty which can be imposed is 12 months imprisonment: see at [2-s 268].

[8-s 54.10] Unlawful act In R v Pullman (1991) 25 NSWLR 89 it was held that “unlawful” for the purposes of this section has the same meaning as in the common law crime of manslaughter by unlawful and dangerous act. It was also held that the act upon which this offence is based is one which is unlawful otherwise than by reason of the fact that it infringes some statutory prohibition (including any regulation), and specifically that an act which constitutes a breach of the Motor Traffic Regulations is not, for that reason alone, an unlawful act for the purposes of manslaughter and this section. PROOF MATERIAL ON SECTION 54 For the text of s 54, see [8-s 54] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 54.15] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, did cause by a negligent act/omission/by an unlawful act/omission grievous bodily harm to [name of victim]. [8-s 54.20] Elements of offence The elements of the offence are — (1) The accused caused grievous bodily harm [8–s 4.1] to the victim; (2) by either: (i) an unlawful act or omission [8–s 54.10]; or (ii) a negligent act [8–s 54.5] or omission.

DIVISION 7 — POSSESSING OR MAKING EXPLOSIVE ETC WITH INTENT TO INJURE THE PERSON [Div heading insrt Act 53 of 2000 s 3 and Sch 3.3, opn 29 June 2000]

[8-s 55] Possessing or making explosives or other things with intent to injure 55 Whosoever knowingly has in his or her possession, or makes, or manufactures, any gunpowder, explosive substance, or dangerous or noxious thing, or any machine, engine, instrument, or thing: (a) with intent by means thereof to injure, or otherwise commit a serious indictable offence against the person of any one, or

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[8-s 54.5] Definitions As to “grievous bodily harm” see [8-s 4.1]. “Negligent act” — the negligence required is that for a conviction of manslaughter: R v D [1984] 3 NSWLR 29. Criminal negligence is of a very high standard going beyond a mere matter of compensation and “showed such disregard for the life and safety of others as to amount to a crime”: R v Bateman [1925] All ER 45; (1925) 19 Cr App R 8; see Andrews v DPP [1937] AC 576; 2 All ER 552.

[8-s 55]

s 55

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

(b) for the purpose of enabling another person to injure, or otherwise commit a serious indictable offence against the person of any one, shall be liable to imprisonment for 10 years. [s 55 am Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998; am Act 94 of 1999 s 5 and Sch 3[27] and [70], opn 1 Jan 2000; Act 48 of 2004 s 3 and Sch 1[3], opn 12 Nov 2004] Editor’s note: For proof material on s 55, see [27-16,350] behind the “27 — Informations and Indictments” guide card.

COMMENTARY ON SECTION 55 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Possessing explosives etc with intent by means thereof to injure — s 55(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Possessing explosives etc for the purpose of enabling another person to injure — s 55(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 55.1] [8-s 55.5] [8-s 55.10] [8-s 55.15] [8-s 55.20] [8-s 55.25] [8-s 55.30]

[8-s 55.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Part 1 clause 2. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 55.5] Definitions [8-s 4].

As to “possession” see [8-s 7]. As to “serious indictable offence” see

[8-s 55.10] Intoxication An offence under this section which is alleged to have been committed after 16 August 1996 is an offence of specific intent for the purpose of Pt 11A Crimes Act 1900 relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. PROOF MATERIAL ON SECTION 55 For the text of s 55, see [8-s 55] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 55.15] Form of indictment [8-s 55.20] Possessing explosives etc with intent by means thereof to injure — s 55(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, did knowingly possess/make/manufacture [name explosive, engine or other device or thing] with intent, by means thereof, to [state injury or serious indictable offence against the person; eg to rob] to [name of victim]. [8-s 55.25] Possessing explosives etc for the purpose of enabling another person to injure — s 55(b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, did knowingly possess/make/manufacture [name explosive, engine or other device or thing] for the purpose of enabling [name of person] to [state injury or serious indictable offence against the person; eg to rob] to [name of victim]. [8-s 55.30] Elements of offence The elements of the offence are— (1) The accused knowingly possessed [8-s 7], made or manufactured: (i) gunpowder; (ii) an explosive substance; (iii) a dangerous or noxious thing; (iv) a machine; (v) engine; (vi) instrument; or

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s 56

CRIMES ACT 1900 (NSW) — PART 3

[8-s 56.10]

(vii) thing; and (2) The accused intended [6-500] by means of that substance or thing to either: (i) injure a person or to commit a serious indictable offence [8-s 4] against the person of another; or (ii) enable some other person to injure or to commit a serious indictable offence [8-s 4] against any person.

DIVISION 8 — ASSAULTS [Div heading subst Act 45 of 2002 s 3 and Sch 1[1], opn 15 July 2002]

[8-s 56] Obstructing member of the clergy in discharge of his or her duties Whosoever: by threats or force prevents, or endeavours to prevent, any member of the clergy, or other person duly authorised in that behalf, from officiating in a place of divine worship, or from the performance of his or her duty in the lawful burial of the dead in a burial-place, or strikes, or offers any violence to, any member of the clergy, or minister engaged in, or to the knowledge of the offender about to engage in, any of the duties aforesaid, or going to perform the same, shall be liable to imprisonment for two years. [s 56 am Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998] Editor’s note: For proof material on s 56, see [27-16,375] behind the “27 — Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 56 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of the offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Prevent member of the clergy from execution of duty . . . . . . . . Assault member of the clergy in execution of duty . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Prevent member of the clergy in execution of duty . . . . . . . . . . . Assault member of the clergy in execution of duty . . . . . . . . . . .

[8-s 56.1] [8-s 56.5] [8-s 56.10] [8-s 56.15] [8-s 56.20] [8-s 56.25] [8-s 56.30] [8-s 56.35] [8-s 56.40]

[8-s 56.1] Summary disposal An offence under the section is a Table 2 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment by the prosecutor, see s 260(2) at [2-s 260] and [2-Sch 1] Pt 1 cl 1. The maximum penalty which can be imposed is 24 months imprisonment, or a fine of 50 penalty units, or both: see at [2-s 268]. [8-s 56.5] Elements of the offence The elements of the offence are: (a) that the person obstructed is a member of the clergy or other duly authorised person officiating in a place of divine worship or performing a lawful burial in a burial-place; and (b) that the defendant obstructed the member of the clergy or other duly authorised person before or during the performance of the duties stated. [8-s 56.10] Definitions “Obstruction” is defined in the terms of the section as (i) threats, endeavours to prevent or offering any violence; and/or (ii) preventing by force or striking as to

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56

[8-s 56.10]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 56

disturbances of religious worship: see R v Darling (1884) 5 LR (NSW) 405; 1 WN 74; Abrahams v Cavey [1968] 1 QB 479. As to rights of persons to enter a church see Long v Rawlins (1874) 4 QSCR 86. As to “a place of divine worship” see s 4 at [8-s 4]. It can include a church tower (R v Wheller (1829) 3 C P 585) and a vestry: R v Evans [1842] Carrington and Marshman 298. As to building or structure defined generally, see Hildebrandt v Stephen [1964] NSWR 740: “a structure with some form of roof and support for that roof”. PROOF MATERIAL ON SECTION 56 For the text of s 56, see [8-s 56] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 56.15] Form of indictment [8-s 56.20] Prevent member of the clergy from execution of duty That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, did by threat/force, prevent/endeavour to prevent [name of victim] a member of the clergy/minister/a person duly authorised as a member of the clergy from officiating in a place of divine worship/from the performance of his/her duty in the lawful burial of the dead in a burial place. [8-s 56.25] Assault member of the clergy in execution of duty That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, did strike/offer violence to [name of victim], a member of the clergy/minister/a person duly authorised as a member of the clergy who was engaged in/to the knowledge of the said [name of accused] about to engage in/going to engage in, officiating in a place of divine worship/performing or going to perform his/her duty in the lawful burial of the dead in a burial place. [8-s 56.30] Elements of offence

The elements of the offence are —

[8-s 56.35] Prevent member of the clergy in execution of duty (1) The victim was a member of the clergy or other duly authorised person; and (2) the victim was officiating in a place of divine worship [8-s 4] or performing a lawful burial in a burial place; and (3) the accused prevented or obstructed [8–s 56.10] the victim in the execution of such duty. [8-s 56.40] Assault member of the clergy in execution of duty (1) The accused obstructed [8–s 56.10] and assaulted [8–s 58.5] a person; and (2) the victim of the assault was a member of the clergy or other duly authorised person; and (3) the victim was officiating in a place of divine worship [8-s 4] or performing a lawful burial in a burial place; and (4) that the obstruction occurred before or during the performance of the duties stated.

[8-s 57] Assault on persons preserving wreck 57 Whosoever wounds, strikes, or assaults, any person while in the execution of his or her duty concerning the preservation of a vessel in distress, or any vessel or effects, stranded, or cast on shore, or lying under water, with intent to obstruct him or her, or thereby in fact obstructing him or her in the execution of such duty, shall be liable to imprisonment for seven years. [s 57 am Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998; am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000] Editor’s note: For proof material on s 57, see [27-16,400] behind the “27 — Informations and Indictments” guide card in Vol 4.

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s 57

CRIMES ACT 1900 (NSW) — PART 3

COMMENTARY ON SECTION 57 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of the offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Vessel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Contents of vessel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 57.35]

[8-s 57.1] [8-s 57.5] [8-s 57.10] [8-s 57.15] [8-s 57.20] [8-s 57.25] [8-s 57.30] [8-s 57.35]

[8-s 57.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act and is to be dealt with in a Local Court unless an election is made for trial on indictment, see [2-s 260] and [2-Sch 1] Part 1 clause 2. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267].

[8-s 57.10] Definitions As to “Vessel” see s 4 at [8-s 4] and see also s 3 of the Navigation Act 1901 (NSW) wherein “ship” is defined as meaning every description of vessel used in navigation not propelled by oars. “Vessel in distress” is usually defined as a ship in peril of the sea and requiring immediate assistance: see Halsbury’s Laws of England 4th ed, Vol 1, para 333. “Stranded” is defined as “a grounding different from that which ordinarily and usually occurs to vessels navigating tide rivers and harbours” as per Parke B in Wells v Hopwood (1832) 3 Barnewall and Adolphus 20. As to “assault” see [8-s 58.5]. As to “obstruction” see [8-s 56.5] and [8-s 58.45]. As to “wounds” see [8-s 35]. [8-s 57.15] Intoxication An offence under this section which is alleged to have been committed after 16 August 1996, to the extent that an element of the offence under this section requires a person to intend to cause the specific result necessary for the offence, is an offence of specific intent for the purpose of Pt 11A Crimes Act 1900 relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. PROOF MATERIAL ON SECTION 57 For the text of s 57, see [8-s 57] behind the “8 — Crimes Act” guide card in Vol 1. [8-s 57.20] Form of indictment [8-s 57.25] Vessel That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, did wound/strike/assault [name of victim], a person engaged in the execution of a duty concerning the preservation of a vessel, [name of vessel], that was in distress/stranded/cast ashore or lying under water with intent to obstruct him/her in the execution of that duty/ thereby obstructed him/her in the execution of that duty. [8-s 57.30] Contents of vessel That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, did wound/strike/assault [name of victim], a person engaged in the execution of a duty concerning the preservation of effects which were stranded/cast ashore or lying under water with intent to obstruct [name of victim] in the execution of such duty/ and did in fact obstruct [name of victim] in the execution of such duty. [8-s 57.35] Elements of offence The elements of the offence are— (1) The person obstructed was engaged in a duty of preservation of a vessel or effects; and

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[8-s 57.5] Elements of the offence The elements of the offence are: (a) that the person obstructed was engaged in a duty of preservation of a vessel; and (b) that the vessel was in distress or the said vessel or its effects were stranded, cast on shore or lying under water; (c) that the defendant wounded, struck or assaulted the said person; and (d) that the defendant intended thereby to obstruct or did in fact obstruct the said person in the execution of his duty.

[8-s 57.35]

s 57

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

(2) the vessel was in distress [8-s 57.10] or the said vessel or effects were stranded [8-s 32.1], cast on shore or lying under water; and (3) the accused wounded [8-s 35.5], struck or assaulted [8-s 58.5] the person obstructed; and (4) the accused intended [6-500] thereby to obstruct or did in fact obstruct the victim in the execution of that duty.

[8-s 58] Assault with intent to commit a serious indictable offence on certain officers 58

Whosoever: assaults any person with intent to commit a serious indictable offence, or assaults, resists, or wilfully obstructs any officer while in the execution of his or her duty, such officer being a constable, or other peace officer, custom-house officer, prison officer, sheriff’s officer, or bailiff, or any person acting in aid of such officer, or assaults any person, with intent to resist or prevent the lawful apprehension or detainer of any person for any offence, shall be liable to imprisonment for 5 years. [s 58 am Act 77 of 1967 s 5; Act 81 of 1988 s 3 and Sch 4(1); Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998; Act 94 of 1999 s 5 and Sch 3[28], opn 1 Jan 2000; Act 121 of 2001 s 4 and Sch 2.72[5], opn 7 July 2003] Editor’s note: For proof material on s 58, see [27-16,425] behind the “27 — Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 58 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Related acts amounting to one offence . . . . . . . . . . . . . . . . . . . . . . . . . Assault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Lawful correction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Self defence — statutory test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Self defence — common law principles . . . . . . . . . . . . . . . . . . . . . . . . Defence of other persons — common law principles . . . . . . . . . . . . Defence of property — common law principles . . . . . . . . . . . . . . . . . Self-defence evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . “Lawful arrest and execution of civil process” . . . . . . . . . . . . . . . . . . Resist . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Wilful obstruction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Acting in execution of duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Personal violence offence/domestic violence offence . . . . . . . . . . . . . Compellability of spouse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assault with intent to commit a serious indictable offence . . . . Assault on certain officers in execution of duty . . . . . . . . . . . . . . Assault on person acting in aid of officer in execution of duty . Assault to prevent arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assault with intent to commit a serious indictable offence . . . . Assault certain officers in execution of duty . . . . . . . . . . . . . . . . . Assault on person acting in aid of officer in execution of duty . Assault with intent to resist arrest . . . . . . . . . . . . . . . . . . . . . . . . . . .

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s 58

CRIMES ACT 1900 (NSW) — PART 3

[8-s 58.5]

[8-s 58.1] Summary disposal An offence under the section is a Table 2 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment by the prosecutor, see s 260(2) at [2-s 260] and [2-Sch 1] Pt 1 cl 1. The maximum penalty which can be imposed is 2 years imprisonment, or a fine of 50 penalty units, or both: see at [2-s 268].

[8-s 58.5] Assault Although the expression “assault” generally includes a battery, assault and battery are separate crimes: R v Taylor and Little [1992] 1 All ER 299; QB 645. An assault is any act which intentionally or recklessly causes another person to apprehend immediate and unlawful violence: R v Venna [1976] QB 421; R v McNamara [1954] VLR 137; ALR 291; R v Knight (1988) 35 A Crim R 314; BC8801495. It can be an assault where A puts B in fear of C: Macpherson v Beath (1975) 12 SASR 174. An assault can be committed without touching another person: R v Rolfe (1952) 36 Cr App Rep 4. There must be an act, and an omission cannot amount to an assault: Fagan v Metropolitan Police Cmr [1969] 1 QB 439 at 444. The act must be a hostile one: Fairclough v Whipp [1951] 2 All ER 834; Director of Public Prosecutions v Rogers [1953] 2 All ER 644. Causing a noxious substance to be taken by another person is not an assault: R v Walkden (1845) 1 Cox CC 282; R v Lambert (1976) 65 Cr App Rep 12, nor is the infliction of a disease: R v Clarence (1888) 22 QBD 23. It is an assault to point a toy pistol at another person intending that the other will believe it is real: R v Everingham (1949) 66 WN (NSW) 122. There can be an assault even though the intended victim is not put in fear: Brady v Schatzel [1911] St R Qd 206 but cf Ryan v Kuhl [1979] VR 315. But there is no assault where the intended victim is unaware of the accused’s act: Pemble v R (1971) 124 CLR 107; [1971] ALR 762; BC7100090. An assault can be committed recklessly where the accused foresees the likelihood of inflicting injury or fear, and ignores the risk: Vallance v R (1961) 108 CLR 56; [1963] ALR 461; BC6100460. The accused must foresee that his conduct might induce fear and mere inadvertence to the risk is not sufficient: Macpherson v Brown (1975) 12 SASR 184. In a fight between two men the word “reckless” could be given its normal meaning as being not caring whether harm occurred or not: R v Williams (1990) 50 A Crim R 213 at 222–3; BC9001891. It is not sufficient that the threat raises an apprehension that violence may be inflicted on another at some future time, so that threats of a general nature made on the telephone were held not to amount to an assault: R v Knight (1988) 35 A Crim R 314; BC8801495, where dicta in Barton v Armstrong [1969] 2 NSWR 451 that the word “immediate” could include future conduct was doubted. As to assault by words generally, see Masters v Watt (1992) 10 Petty SR 4507; R v Wilson [1955] 1 All ER 744. There can be an assault where the fear is of relatively immediate violence of a continuing nature during an unlawful imprisonment: Zanker v Vartzokas (1988) 34 A Crim R 11; BC8800305. It was an assault where the accused looked through a window intending to frighten the victim: Smith v Superintendent of Woking Police Station (1983) 76 Cr App R 234. There can be an assault where the threat is made upon non-compliance with a condition which the accused had no right to impose: Police v Greaves [1964] NZLR 295, where police officers were threatened that they would be stabbed if they came any closer to the accused, and Rosza v Samuels [1969] SASR 205. Battery is the intentional or reckless application of force to the person of another: Fagan v Metropolitan Police Cmr [1969] 1 QB 439 at 444; R v Venna [1976] QB 421. The application of force must be direct: R v Salisbury [1976] VR 452; Commissioner of Police v Wilson [1984] AC 242. It must be made in “an angry, revengeful, rude, insolent or hostile manner” and it is not necessarily a battery to make contact with another for some purpose in which the person being touched has or could have an interest or benefit of his own, if none of the other features of battery

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[8-s 58.2] Related acts amounting to one offence A series of acts which may technically constitute separate assaults may constitute an offence of assault, without there being latent duplicity or ambiguity, where they are so closely related as to amount to a single activity or incident: Director of Public Prosecutions (DPP) (NSW) v Wililo [2012] NSWSC 713; BC201204764 at [30]; 19(7) Crim LN [3088]; Mikic v Local Court of NSW [2013] NSWSC 334; BC201301852 at [15]–[23].

[8-s 58.5]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 58

are present: R v Phillips [1971] ALR 740; (1971) 45 ALJR 467 at 471; Boughey v R (1986) 161 CLR 10 at 26; 65 ALR 609; BC8601432. It can be a battery merely to touch a person’s clothing while they are being worn by the person: R v Thomas (1985) 81 Cr App R 331. A battery can be a continuous act so that an unintentional battery can become a crime where the accused intentionally maintains the physical force to the person: Fagan v Metropolitan Police Cmr, above at 445, where the accused unintentionally drove on to the foot of the victim but then refused to remove the car. Spitting on another person is a battery: Director of Public Prosecutions v JWH (NSWSC, Hulme J, 17 October 1997, unreported, BC9705937). The term assault includes the concept of want of consent and an assault with consent is no assault at all: R v Bonora (1994) 35 NSWLR 74; BC9403132. Consent procured by fraud is no consent: Wooley v Fitzgerald [1969] Tas SR 65. It is not necessary for the prosecution to call the victim in order to prove lack of consent: R v Wilson [1985] 2 Qd R 420. The issue of consent given to a medical practitioner to perform surgery was considered in Reeves v R [2013] NSWCCA 34; BC201300682; 20(4) Crim LN [3193], where it was held that the Crown must prove that the complainant has not consented to the nature and extent of the procedure and the doctor does not honestly believe that the complainant has so consented. This decision was upheld by the High Court in Reeves v R (2013) 304 ALR 251; 88 ALJR 215; [2013] HCA 57; BC20135811; 21(2) Crim LN [3331] where it was held that the nature of consent to a medical procedure that is required to negative battery is that the patient consents to the procedure having been advised in broad terms as to its nature. There is no requirement that the patient be informed of the possible consequences of the procedure or alternative treatments. Physical contact which is an inevitable part of the exigencies of everyday life does not amount to an assault either because of implied consent or because there is an exception to assault embracing all physical contact which is generally acceptable as part in the conduct of daily life: Collins v Wilcock (1984) 1 WLR 1172; Re F [1990] 2 AC 1 at 72; Department of Health and Community Services (NT) v JWB (Marion’s case) (1992) 175 CLR 218 at 233; 106 ALR 385; [1992] HCA 15. Those who enter into a consensual fight are guilty of assault if they intend to inflict bodily harm: R v Coney (1882) 8 QBD 534; Attorney-General’s Reference No 6 of 1980 [1981] QB 715; R v Raabe (1984) 14 A Crim R 381 but cf Pallante v Stadiums Pty Ltd (No 1) [1976] 3 VR 331, where it was held that there was no assault in a professional boxing match. The rationale for punishing consensual assaults where harm is intentionally inflicted is that some harms involve public and not just private interests: Marion’s Case, above, at 233. As to assault by a football player on another player; see R v Carr (NSWCCA, Lee CJ at CL, Allen and Badgery-Parker JJ, 17 October 1990, unreported, BC9001863) and also R v Stanley (NSWCCA, 7 April 1995, unreported); (1995) 2 Crim LN 22 [364], in which it was held that a person does not consent to being injured in the course of a game by any act which is not done in legitimate pursuit of the objects of the game or which did not occur during the course of play in accordance with the rules and usages of the game. A victim’s consent to sadomasochistic acts being performed upon him is not a defence to a charge of assault: R v Brown [1994] 1 AC 212; R v Lardner (NSWCCA, 10 September 1998, unreported, BC9804715); (1998) 5 Crim LN 69 [900]. However, it has been held that whether consent can be relevant in a case of the infliction of actual harm depends upon the particular circumstances of the case and whether the act of the accused should be considered in the public interest as being criminal: R v Wilson [1996] 3 WLR 125; (1996) 3 Crim LN 61 [609]. As to consent to medical treatment, see Marion’s Case, above, at CLR 232–5. Where a suspended dentist continued to treat patients who believed that the dentist was not suspended, it was held that the treatment did not constitute assault; although fraud vitiated consent to an act which would otherwise be an assault where it had induced a mistaken belief as to the identity of the person doing the act or the nature or quality of the act, a mistake as to identity did not extend to a belief as to a person’s professional qualifications and attributes: R v Richardson (1998) 3 WLR 1292.

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s 58

CRIMES ACT 1900 (NSW) — PART 3

[8-s 58.10] Lawful correction

[8-s 58.20]

See at [8-s 61AA].

[8-s 58.20] Self defence — common law principles The following common law principles operate in cases where Div 3 of Pt 11 (ss 418–423) have no application. Self defence is not properly to be regarded as a defence but is a matter which the prosecution must negative beyond reasonable doubt: Zecevic v DPP (Vic) (1987) 162 CLR 645 at 657; 71 ALR 641; BC8701784. It should be listed with all the other issues which the Crown has to establish and be expressed so as to emphasise at all times that the onus lies upon the prosecution to eliminate any reasonable possibility that the accused was acting in self defence: R v Dziduch (1990) 47 A Crim R 378 at 380-1; BC9002651. The question to be asked is whether the accused believed upon reasonable grounds that it was necessary in self defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, he is entitled to an acquittal: Zecevic, above, at 661. The Crown must establish that the accused did not believe on reasonable grounds that it was necessary in self defence to do what he did, by showing either that the accused had no such belief or that there were no reasonable grounds for that belief, and if it fails to establish either of those matters beyond reasonable doubt the accused is entitled to be acquitted: R v Dziduch, above at 379-80. It is the belief of the accused, based upon the circumstances as the accused perceived them to be, which has to be reasonable and not the belief of the hypothetical person in the position of the accused: R v Hawes (1994) 35 NSWLR 294 at 396; BC9403264. Self defence under the Home Invasion (Occupants Protection) Act 1998 was considered in R v Munro (2001) 51 NSWLR 540; [2001] NSWCCA 187; BC200102436; (2001) 8 Crim LN 41 [1291], where it was held that the act did not extend the rights of an occupier at common law. The imminence of any threat is an important factual consideration in a determination whether self defence arose for consideration by a jury on the evidence and whether, as a reasonable hypothesis, the accused could have believed on reasonable grounds that it was necessary in self defence to to what he did: R v PRFN [2000] NSWCCA 230; BC200003392; (2000) 7 Crim LN 47 [1164]. As to murder, manslaughter and self defence, see Zecevic, above, at 661–3. Where the accused who is relying upon self defence was the original aggressor, it will be for the jury to consider whether the original aggression had ceased so as to have enabled the accused to form a belief, upon reasonable grounds, that his actions were necessary to self defence and for this purpose, it will be relevant to consider the extent to which the accused declined further conflict and quit the use of force or retreated from it, these being matters which may bear upon the

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[8-s 58.15] Self defence — statutory test Division 3 of Pt 11 (ss 418–423) at [8-s 418] and following makes provision with respect to self defence where proceedings for the alleged offence (other than committal proceedings) were instituted on or after 22 February 2002: s 423 at [8-s 423]. Section 418 states when self defence is available and s 419 relates to onus of proof. Self defence is not available if death was inflicted to protect property or to prevent criminal trespass or to remove a criminal trespasser only: s 420 at [8-s 420]. Section 421 relates to the alternative verdict of manslaughter where death is inflicted by excessive self defence. Section 422 relates to self defence as a response to lawful conduct. The Home Invasion (Occupants Protection) Act 1998 and the Workplace (Occupants Protection) Act 2001 were repealed on 22 February 2002 by s 4 of the Crimes Amendment (Self Defence) Act 2001. Section 4(2) of that Act provides that “[t]he repeal of those Acts does not reverse the declared public policy of the state that its citizens have a right to enjoy safety from attack within dwelling-houses from intruders, or from suspected offenders while present at a workplace”. Self defence under the Home Invasion (Occupants Protection) Act 1998 was considered in R v Munro (2001) 51 NSWLR 540; [2001] NSWCCA 187; BC200102436; (2001) 8 Crim LN 41 [1291], where it was held that the Act did not extend the rights of an occupier at common law.

[8-s 58.20]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 58

nature of the occasion and the use which the accused made of it: Zecevic, above, where it was also held that there is no longer any rule that the accused must have retreated as far as possible before attempting to defend himself. There is no rule of law that the use of excessive force (by use of a weapon or otherwise) establishes that the accused did not act in self defence: R v Lean and Aland (1993) 66 A Crim R 296. The relevant principles are those in Zecevic, above. The issue of self defence can arise even if the actions of the victim in threatening or using force to the accused were lawful: R v Thomas (1992) 65 A Crim R 269; BC9203127. No issue of self defence arises where the accused voluntarily engages in a fight: R v Nguyen (1995) 36 NSWLR 397; BC9504480; (1995) 2 Crim LN 30 [386]. Self defence will arise only rarely where force is used to resist a lawful arrest: R v Walker (NSWCCA, Gleeson CJ, Allen J and Barr AJ, 20 November 1995, unreported, BC9501896); (1995) 2 Crim LN 87 [500]. The state of intoxication of the accused is a relevant matter when considering the question of self defence as to the appreciation that the accused had of the gravity of the threat which he faced and as to the reasonableness of the response to that danger: R v Conlon (1993) 69 A Crim R 92. As to model directions where self defence is raised in trials for murder and manslaughter, see R v Jones (1995) 78 A Crim R 504; (1995) 2 Crim LN 19 [354]. [8-s 58.25] Defence of other persons — common law principles The following common law principles operate in cases where Div 3 of Pt 11 (ss 418–423) have no application. A person may use force to protect another person from an unlawful assault being committed or threatened to be committed by a third person. The principles are the same as those applying to self defence: Saler v Klingbiel [1945] SASR 171; R v Spartels [1953] VLR 194 at 196; ALR 554; Goss v Nicholas [1960] Tas SR 133; Morgan v Colman (1981) 27 SASR 334. See [8-s 58.15] as to self defence. The assisting person need not be related to the assisted person: Gillies, Criminal Law, 2nd ed, p 308. [8-s 58.30] Defence of property — common law principles The following common law principles operate in cases where Div 3 of Pt 11 (ss 418–423) have no application. A person is justified in using reasonable force in defence of his property eg removing a trespasser or preventing his entry; restraining another from taking or destroying his goods: Weaver v Bush (1798) 8 Term Rep 78; Harrison v Duke of Rutland [1893] 1 QB 142 (CA); R v Hussey (1924) 18 Cr App R 121 (CCA); Robinson v Balmain New Ferry Co Ltd [1910] AC 295 (PC). No more force may be used than is necessary for the purpose: Greenbury v Lyon [1957] QSR 433; Mitchell v Norman [1965] Qd R 587. Misadventure is a defence to assault where the act alleged was a mere accident: Fowler v Lanning [1959] 1 QB 426; [1959] 1 All ER 290; Stanley v Powell [1891] 1 QB 86. [8-s 58.35] Self-defence evidence Where the victim had made statements asserting that he had killed three other persons, that evidence was admissible on the issue of self-defence even though the accused had not heard the statements or known of them at the time of the incident giving rise to the charge: R v Cakovski (2004) 149 A Crim R 21; [2004] NSWCCA 280; BC200405297; (2004) 11 Crim LN 94 [1770]. [8-s 58.40] “Lawful arrest and execution of civil process” A person may use reasonable force to effect a lawful arrest. Under certain circumstances it may be a defence to the charge that the accused was using only such force as was necessary to serve civil process: Harrison v Hodgson [1830] 10 B Cr 445. Serving process by thrusting a document into a fold of a man’s coat is not necessarily an assault: Rose v Kempthorne (1910) 103 LT 730; 22 Cox CC 356. As to “arrest” see [8-s 352]. [8-s 58.45] Resist There is a view that something more than mere obstruction is necessary: R v Appelby (1940) 28 Cr App R 1 at 5. Resistance implies the use of force to oppose “some course of action which the person resisted is attempting to pursue”: R v Galvin (No 2) [1961] VR 740 at 749. The action pursued by the officer (or any person acting, in aid of such officer) must be lawful:

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s 58

CRIMES ACT 1900 (NSW) — PART 3

[8-s 58.65]

see generally Davis v Lisle [1936] 2 KB 434 and compare with Donnelly v Jackman [1970] 1 WLR 562; 1 All ER 987. If it is not however, the resistance may not constitute an offence unless it is more than is necessary for the purposes of justifiable resistance: R v Ryan (1890) 11 LR (NSW) 171; McLiney v Minister [1911] VLR 347; 17 ALR 336; McLachlan v Mesics (1966) 40 ALJR 204; in the Ravnjak, Appeal of (1973) 3 DCR(NSW) 166. The use of more force than is necessary would then constitute an assault. See also [8-s 546C.5].

[8-s 58.55] Acting in execution of duty One of the requirements of the section is that the assault, resistance or wilful obstruction must occur whilst the officer is engaged in the due execution of his duty. Upon an indictment for assaulting an officer in the execution of his duty it is not necessary to prove that the defendant knew that the complainant was an officer on duty; R v Reynhoudt (1962) 107 CLR 381; [1962] ALR 483; BC6200250. For resisting attempts to arrest in the belief that the officer is not acting in lawful execution of duty see Pounder v Police [1971] NZLR 1080; R v Fennell [1971] 1 QB 428; [1970] 3 All ER 215. For when an officer is “off-duty” and intervenes in a breach of the peace, see Horne v Coleman (1929) 46 WN (NSW) 30. It has been held that a police officer calling out to a person to stop and then pursuing him was acting in the execution of his duty even though he had not decided to arrest the person at that stage: Director of Public Prosecutions v Puskar (1992) 10 Petty SR 4521; BC9201759. See also [8-s 546C.15]. A police officer acts in the execution of his duty from the moment he embarks upon a lawful task connected with his functions as a police officer and continues to act in the execution of that duty as long as he is engaged in the task provided he does not do anything outside the ambit of his duty so as to cease to be acting therein: R v K (1993) 118 ALR 596. It is not necessary that there be a conviction upon a charge brought in direct relationship to the circumstances in which the resistance to arrest is alleged to have occurred: Weekes v Lahood (1992) 10 Petty SR 4501; (NSWSC, Grove J, 31 July 1992, unreported, BC9201717). See generally Howard, “Assaulting Policemen in the Execution of Their Duty” (1963) 79 LQR 247. The legislative history and the current s 6 of the Police Act 1990 extends the duty of a police officer beyond the prevention and investigation of crime so as to include actions reasonably necessary for the protection of persons from injury or death, and property from damage, regardless of whether the need for those services arises from any criminal act: Director of Public Prosecutions v Gribble (2005) 151 A Crim R 256; [2004] NSWSC 926; BC200406696 at [23]–[24]; (2004) 11 Crim LN 106 [1785]. [8-s 58.57] Sentence When sentencing for an offence of assault under this section it is not permissible to take into account the infliction of injuries that would amount to actual bodily harm: McIntyre v R [2009] NSWCCA 305; BC200911594; (2010) 17 Crim LN 28 [2684]. [8-s 58.60] Personal violence offence/domestic violence offence This offence (or an offence of attempting to commit this offence) is a “personal violence offence” as defined in s 4 of the Crimes (Domestic and Personal Violence) Act 2007 at [8-5015] and, when committed by a person against another person with whom the offender has or has had a domestic relationship, is a “domestic violence offence” as defined in s 11 of that Act at [8-5240]. [8-s 58.65] Compellability of spouse Where the offence is committed upon a child under the age of 18 years, the spouse of the accused is compellable to give evidence at the hearing of the offence: see at [2-s 279].

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[8-s 58.50] Wilful obstruction “Wilful obstruction” implies acts on the part of the defendant which may fall short of assault but which interfere with the lawful execution of the duties of an officer eg officers in the course of making inquiries, causing a crowd to gather, failure to obey a lawful request. See generally Davis v Lisle [1936] 2 KB 434; Hinchliffe v Sheldon [1955] 1 WLR 1207; 3 All ER 406. As to what amounts to “wilful obstruction” see Ingleton v Dibble [1972] 1 All ER 275; Willmott v Attack [1976] 3 WLR 753; Lewis v Cox [1985] 1 QB 509.

[8-s 58.70]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 58

[8-s 58.70] Intoxication An offence under this section which is alleged to have been committed after 16 August 1996, to the extent that an element of the offence under this section requires a person to intend to cause the specific result necessary for the offence, is an offence of specific intent for the purpose of Pt 11A Crimes Act 1900 relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. PROOF MATERIAL ON SECTION 58 For the text of s 58, see [8-s 58] behind the “8 — Crimes Act” guide card in Vol 1. [8-s 58.75] Form of indictment [8-s 58.80] Assault with intent to commit a serious indictable offence That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, assaulted [name of victim] with intent to commit the serious indictable offence of [state serious indictable offence to be committed]. [8-s 58.85] Assault on certain officers in execution of duty That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, did assault/resist/wilfully obstruct [name of victim and offıce held eg “a constable of police”] while in the execution of his/her duty. [8-s 58.90] Assault on person acting in aid of officer in execution of duty That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, did assault/resist/wilfully obstruct [name of victim] who was acting in aid of [name of offıcer and offıce held eg “a constable of police”] while in the execution of [the offıcer’s] duty. [8-s 58.95] Assault to prevent arrest That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, did assault [name of victim] with intent to prevent the lawful apprehension/detention of [state person to be apprehended/detained]. [8-s 58.100] Elements of offence

The elements of the offence are—

[8-s 58.105] Assault with intent to commit a serious indictable offence (1) The accused assaulted [8-s 58.5] the victim; and (2) did so with intent [6-500] to commit a serious indictable offence [8-s 4]. [8-s 58.110] Assault certain officers in execution of duty (1) The accused assaulted [8-s 58.5], resisted [8-s 58.45] or wilfully obstructed [8-s 58.50] the victim; and (2) the victim was a constable, other peace officer, customs house officer, sheriff’s officer, prison officer or bailiff; and (3) the assault occurred while the victim was acting in the execution of his/her duty [8-s 58.55]. [8-s 58.115] Assault on person acting in aid of officer in execution of duty (1) The accused assaulted [8-s 58.5], resisted [8-s 58.45] or wilfully obstructed [8-s 58.50] the victim; and (2) the victim was acting in aid of a constable, other peace officer, customs house officer, sheriff’s officer, prison officer or bailiff; and (3) the assault occurred while the constable, other peace officer, customs house officer, sheriff’s officer, prison officer or bailiff was acting in the execution of his/her duty [8-s 58.55]. [8-s 58.120] Assault with intent to resist arrest (1) The accused assaulted [8-s 58.5] the victim; and

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s 59

[8-s 59.5]

CRIMES ACT 1900 (NSW) — PART 3

(2) did so with the intention [6-500] of resisting [8-s 58.45] or preventing the lawful apprehension or detention of any person.

[8-s 59] Assault occasioning actual bodily harm 59 (1) Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years. (2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in the company of another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 7 years. [subs (2) insrt Act 84 of 2001 s 3 and Sch 1[4], opn 14 Dec 2001] [s 59 am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000]

COMMENTARY ON SECTION 59 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mens rea of the offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Compellability of spouse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Personal violence offence/domestic violence offence . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assault occasioning actual bodily harm — s 59(1) . . . . . . . . . . . Assault occasioning actual bodily harm while in company — s 59(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Necessary averments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assault occasioning actual bodily harm . . . . . . . . . . . . . . . . . . . . . . Assault occasioning actual bodily harm while in company . . . .

[8-s 59.1] [8-s 59.5] [8-s 59.10] [8-s 59.15] [8-s 59.20] [8-s 59.25] [8-s 59.30] [8-s 59.35] [8-s [8-s [8-s [8-s [8-s

59.40] 59.45] 59.50] 59.55] 59.60]

[8-s 59.1] Summary disposal An offence under the section is a Table 2 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment by the prosecutor, see s 260(2) at [2-s 260] and [2-Sch 1] Pt 1 cl 1. The maximum penalty which can be imposed is 2 years imprisonment, or a fine of 50 penalty units, or both: see at [2-s 268]. [8-s 59.5] Definitions As to “assault” see [8-s 58.5]. As to “in company” see generally [8-s 97.10]. In Markou v R [2012] NSWCCA 64; BC201203093; 19(6) Crim LN [3070] it was stressed that for the purpose of the offence it is not sufficient to amount to being “in company” that the accused is together with another person. Rather, the accused and the other person must share the relevant common purpose for the commission of the offence: there must be an expressed or implied agreement between them to achieve a common result. A mere coincidence of common actions is insufficient. As to “actual bodily harm”, the term “bodily harm” is to be given its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the victim, but such hurt or injury need not be permanent but must be more than merely transient and trifling: R v Donovan [1934] 2 KB 498 at 509; R v Brown [1993] 2 WLR 556 at 559. The phrase “actual bodily harm” is capable of including psychiatric injury but does not include emotions such as fear or panic nor states of mind that were not themselves evidence of some identifiable clinical condition: R v Chan-Fook [1994] 1 WLR 691 at 696; R v Lardner (NSWCCA, 10 September 1998, unreported, BC9804715); 5(9) Crim LN [900]. See generally McIntyre v R (2009) 198 A Crim R 549; [2009] NSWCCA 305; BC200911594 at [44].

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Editor’s note: For proof material on s 59, see [27-16,450] behind the “27 – Informations and Indictments” guide card in Vol 4.

[8-s 59.10]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 59

[8-s 59.10] Mens rea of the offence In order to establish the offence it is not necessary for the prosecution to prove a specific intent to cause actual bodily harm: Coulter v R (1987) 61 ALJR 537. It is sufficient if the accused intentionally or recklessly assaults the victim and actual bodily harm results: R v Williams (1990) 50 A Crim R 213 at 220-2; BC9001891. As to self defence, see at [8-s 58.15]. [8-s 59.15] Compellability of spouse Where the offence is committed upon a child under the age of 18 years, the spouse of the accused is compellable to give evidence at the hearing of the offence: see at [2-s 279]. [8-s 59.20] Sentencing A judge sentencing for an offence under this section must be careful not to take into account the extent of the injuries which would justify an offence under s 35 (malicious infliction of grievous bodily harm). The difference between the injuries for the two offences is one of degree but the difference must be maintained in determining the facts for sentencing. Nor should the judge take into account that the offence was done maliciously which is not an ingredient of the offence but is an ingredient of the more serious offence: R v Overall (1993) 71 A Crim R 170. The Crown should not put forward in the facts an account of injuries that would warrant a finding that grievous bodily harm was inflicted upon the victim and the sentencing judge must recognise the distinction between grievous bodily harm and actual bodily harm especially where the offender has pleaded not guilty to the more serious offence: R v Youkana [2005] NSWCCA 231; BC200504601. [8-s 59.25] Personal violence offence/domestic violence offence This offence (or an offence of attempting to commit this offence) is a “personal violence offence” as defined in s 4 of the Crimes (Domestic and Personal Violence) Act 2007 at [8-5015] and, when committed by a person against another person with whom the offender has or has had a domestic relationship, is a “domestic violence offence” as defined in s 11 of that Act at [8-5240]. PROOF MATERIAL ON SECTION 59 For the text of s 59, see [8-s 59] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 59.30] Form of indictment [8-s 59.35] Assault occasioning actual bodily harm — s 59(1) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, assaulted [name of victim], thereby occasioning to him/her actual bodily harm. [8-s 59.40] Assault occasioning actual bodily harm while in company — s 59(2) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, while in company of another person or persons, assaulted [name of victim], thereby occasioning to him/her actual bodily harm. [8-s 59.45] Necessary averments assault, see [27-16,475.1]. [8-s 59.50] Elements of offence

As to what is the necessary averment for the element of The elements of the offence are —

[8-s 59.55] Assault occasioning actual bodily harm (1) That the accused assaulted [8-s 58.5] the victim; and (2) as a consequence of that assault, the victim suffered actual bodily harm [8-s

59.5]. [8-s 59.60] Assault occasioning actual bodily harm while in company (1) That the accused was in company with another person or persons; and (2) that the accused assaulted [8-s 58.5] the victim; and

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s 59A

CRIMES ACT 1900 (NSW) — PART 3

[8-s 59A.25]

(3) as a consequence of that assault, the victim suffered actual bodily harm

[8-s 59.5].

[8-s 59A] Assault during public disorder 59A (1) A person who assaults any person during a large-scale public disorder, although not occasioning actual bodily harm, is liable to imprisonment for 5 years. (2) A person who assaults any person during a large-scale public disorder, and by the assault occasions actual bodily harm, is liable to imprisonment for 7 years. (3) [subs (3) rep Act 61 of 2006 s 3 and Sch 1[2], opn 15 Dec 2006] (4) [subs (4) rep Act 97 of 2007 s 3 and Sch 1.2, opn 14 Dec 2007] [s 59A insrt Act 119 of 2005, s 4 and Sch 2[1], opn 15 Dec 2005; am Act 61 of 2006 s 3 and Sch 1[2], opn 15 Dec 2006; Act 97 of 2007 s 3 and Sch 1.2, opn 14 Dec 2007]

[8-s 59A.1] [8-s 59A.5] [8-s 59A.10] [8-s 59A.15] [8-s [8-s [8-s [8-s

59A.20] 59A.25] 59A.30] 59A.35]

[8-s 59A.40]

[8-s 59A.1] Definitions As to “assaults” see [8-s 58.5]. As to “public disorder” see [8-s 4]. There is no statutory definition of “large-scale public disorder”. As to “actual bodily harm” see [8-s 59.5]. [8-s 59A.5] Summary disposal An offence under the section is a Table 2 offence under the Criminal Procedure Act 1986 and is to be dealt with in the Local Court unless an election is made for trial on indictment by the prosecutor: see s 260(2) at [2-s 260] and [2-Sch 1]. The maximum penalty for an offence dealt with summarily is imprisonment for 2 years or a fine of 50 penalty units or both: see s 268(2)(a) at [2-s 268]. PROOF MATERIAL ON SECTION 59A For the text of s 59A, see [8-s 59A] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 59A.10] Form of indictment [8-s 59A.15] Assault during public disorder — s 59A(1) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did, during a large-scale public disorder, assault [name of victim]. [8-s 59A.20] Assault during public disorder occasioning actual bodily harm — s 59A(2) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did, during a large-scale public disorder, assault [name of victim], thereby occasioning to him/her actual bodily harm. [8-s 59A.25] Necessary averments assault, see [27-16,475.1].

As to what is the necessary averment for the element of

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COMMENTARY ON SECTION 59A Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assault during public disorder — s 59A(1) . . . . . . . . . . . . . . . . . . Assault during public disorder occasioning actual bodily harm — s 59A(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Necessary averments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assault during public disorder — s 59A(1) . . . . . . . . . . . . . . . . . . Assault during public disorder occasioning actual bodily harm — s 59A(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 59A.30]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 59A

[8-s 59A.30] Elements of offence [8-s 59A.35] Assault during public disorder — s 59A(1) The elements of the offence are— (1) That the accused assaulted [8-s 58.5] the victim; and (2) the assault occurred during a large-scale public disorder [8-s 59A(3)]. [8-s 59A.40] Assault during public disorder occasioning actual bodily harm — s 59A(2) The elements of the offence are— (1) That the accused assaulted [8-s 58.5] the victim; and (2) the assault occurred during a large-scale public disorder [8-s 59A(3)]; and (3) as a consequence of that assault, the victim suffered actual bodily harm [8-s

59.5]. DIVISION 8A — ASSAULTS AND OTHER ACTIONS AGAINST POLICE AND OTHER LAW ENFORCEMENT OFFICERS [Div heading insrt Act 45 of 2002 s 3 and Sch 1[2], opn 15 July 2002]

[8-s 60AA] Meaning of “law enforcement officer” 60AA

In this Division:

law enforcement officer means: (a) a police officer, or (b) a Commissioner or Assistant Commissioner of the Independent Commission Against Corruption, or (c) an officer of the Independent Commission Against Corruption, within the meaning of the Independent Commission Against Corruption Act 1988, who performs investigation functions, or (d) a Commissioner or Assistant Commissioner of the Law Enforcement Conduct Commission, within the meaning of the Law Enforcement Conduct Commission Act 2016, or (e) any other officer of the Law Enforcement Conduct Commission, within the meaning of the Law Enforcement Conduct Commission Act 2016, who performs investigation or confiscation functions, or (f) the Commissioner for the New South Wales Crime Commission or an Assistant Commissioner for that Commission, or (g) a member of staff of the New South Wales Crime Commission, within the meaning of the Crime Commission Act 2012, who performs investigation or confiscation functions, or (h) the Commissioner of Corrective Services, or (i) governors of correctional centres, correctional officers and community corrections officers, within the meaning of the Crimes (Administration of Sentences) Act 1999, or (j) an officer of the Department of Juvenile Justice who works with children who have, or are alleged to have, committed offences and who is employed at or works from a community centre or children’s detention centre, or (k) an officer of the Department of Juvenile Justice who is involved in the conduct of youth justice conferences, or (l) a Crown Prosecutor or an Acting Crown Prosecutor, or (m) an Australian legal practitioner who is employed as a member of staff of the Director of Public Prosecutions, or

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s 60

CRIMES ACT 1900 (NSW) — PART 3

[8-s 60]

(n) a sheriff’s officer, or (o) a recognised law enforcement officer within the meaning of the Police Act 1990, or (p) a special constable within the meaning of section 82L of the Police Act 1990, or (q) an officer of an approved charitable organisation, within the meaning of the Prevention of Cruelty to Animals Act 1979, who performs investigation, confiscation or other law enforcement functions. [def am Act 87 of 2018 Sch 1 item 1.8[1], opn 28 Nov 2018] [s 60AA insrt Act 45 of 2002 s 3 and Sch 1[2], opn 15 July 2002; am Act 130 of 2002 s 3 and Sch 4[1], opn 13 Jan 2003; Act 120 of 2006 s 3 and Sch 3.6[2], opn 4 Dec 2006; Act 66 of 2012 Sch 5.1, opn 5 Oct 2012; Act 56 of 2013 Sch 3 item 3.1, opn 1 Dec 2014; Act 61 of 2016 Sch 6.7, opn 1 July 2017; Act 65 of 2016 Sch 3.1, opn 7 Aug 2017; Act 44 of 2017 Sch 1.4, opn 25 Sep 2017]

[8-s 60] Assault and other actions against police officers

[subs (1) am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000; Act 61 of 2006 s 3 and Sch 1[3], opn 15 Dec 2006]

(1A) A person who, during a public disorder, assaults, throws a missile at, stalks, harasses or intimidates a police officer while in the execution of the officer’s duty, although no actual bodily harm is occasioned to the officer, is liable to imprisonment for 7 years. [subs (1A) insrt Act 61 of 2006 s 3 and Sch 1[4], opn 15 Dec 2006]

(2) A person who assaults a police officer while in the execution of the officer’s duty, and by the assault occasions actual bodily harm, is liable to imprisonment for 7 years. [subs (2) am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000]

(2A) A person who, during a public disorder, assaults a police officer while in the execution of the officer’s duty, and by the assault occasions actual bodily harm, is liable to imprisonment for 9 years. [subs (2A) insrt Act 61 of 2006 s 3 and Sch 1[5], opn 15 Dec 2006]

(3) A person who by any means: (a) wounds or causes grievous bodily harm to a police officer while in the execution of the officer’s duty, and (b) is reckless as to causing actual bodily harm to that officer or any other person, is liable to imprisonment for 12 years. [subs (3) subst Act 41 of 2012 Sch 1[2], opn 21 June 2012]

(3A) A person who by any means during a public disorder: (a) wounds or causes grievous bodily harm to a police officer while in the execution of the officer’s duty, and (b) is reckless as to causing actual bodily harm to that officer or any other person, is liable to imprisonment for 14 years. [subs (3A) subst Act 41 of 2012 Sch 1[2], opn 21 June 2012]

(4) For the purposes of this section, an action is taken to be carried out in relation to a police officer while in the execution of the officer’s duty, even though the police officer is not on duty at the time, if it is carried out:

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60 (1) A person who assaults, throws a missile at, stalks, harasses or intimidates a police officer while in the execution of the officer’s duty, although no actual bodily harm is occasioned to the officer, is liable to imprisonment for 5 years.

[8-s 60]

s 60

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

(a) as a consequence of, or in retaliation for, actions undertaken by that police officer in the execution of the officer’s duty, or (b) because the officer is a police officer. [subs (4) subst Act 45 of 2002 s 3 and Sch 1[3], opn 15 July 2002] [s 60 insrt Act 80 of 1997 s 3 and Sch 1, opn 10 July 1997] Editor’s note: For proof material on s 60, see [27-16,460] behind the “27 – Informations and Indictments” guide card in Vol 4. For a historical version of this section please see [8A-REP s 60].

COMMENTARY ON SECTION 60 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Execution of duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Standard non-parole period provisions . . . . . . . . . . . . . . . . . . . . . . . . . . Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assault police officer not occasioning actual bodily harm — s 60(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assault police officer not occasioning actual bodily harm during public disorder — s 60(1A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assault police officer occasioning actual bodily harm — s 60(2) . Assault police officer occasioning actual bodily harm during public disorder — s 60(2A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Wound or inflict grievous bodily harm to a police officer — s 60(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Wound or inflict grievous bodily harm to a police officer during public disorder — s 60(3A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assault not occasioning actual bodily harm . . . . . . . . . . . . . . . . . . Assault not occasioning actual bodily harm during public disorder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assault occasioning actual bodily harm . . . . . . . . . . . . . . . . . . . . . . Assault occasioning actual bodily harm during public disorder . Wound/inflict grievous bodily harm . . . . . . . . . . . . . . . . . . . . . . . . . Wound/inflict grievous bodily harm during public disorder . . . .

[8-s 60.1] [8-s 60.5] [8-s 60.10] [8-s 60.15] [8-s 60.20] [8-s 60.25] [8-s 60.30] [8-s 60.35] [8-s 60.40] [8-s 60.45] [8-s 60.50] [8-s 60.55] [8-s 60.60] [8-s 60.65] [8-s [8-s [8-s [8-s [8-s

60.70] 60.75] 60.80] 60.85] 60.90]

[8-s 60.1] Summary disposal An offence under s 60(2) is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment, see s 260(1) at [2-s 260] and [2-Sch 1] Pt 1 cl 2. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. An offence under s 60(1) is a Table 2 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment by the prosecutor, see s 260(2) at [2-s 260] and [2-Sch 1] Pt 1 cl 1. The maximum penalty which can be imposed is 2 years imprisonment, or a fine of 50 penalty units, or both: see at [2-s 268]. An offence under s 60(1A) is a Table 2 offence and is to be dealt with in the Local Court unless an election is made for trial on indictment by the prosecutor see s 260(2) at [2-s 260] and [2-Sch 1]. The maximum penalty for an offence dealt with summarily is imprisonment for 2 years: see s 268(1A) at [2-s 268]. An offence under s 60(2A) is a Table 1 offence and is to be dealt with in the Local Court unless an election is made for trial on indictment see s 260(2) at [2-s 260] and [2-Sch 1]. The maximum penalty for an offence dealt with summarily is imprisonment for 2 years: see s 267(2) at [2-s 267]. [8-s 60.5] Definitions As to “assault” see [8-s 58.5]. As to “actual bodily harm” see [8-s 59.5]. As to “grievous bodily harm” see [8-s 4].

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CRIMES ACT 1900 (NSW) — PART 3

[8-s 60.30]

In Director of Public Prosecutions (DPP) (NSW) v Best [2016] NSWSC 261; BC201601623 at [50]–[51], it was held that the commission of the offence of intimidating a police officer in s 60(1) requires proof that a person deliberately engaged in conduct (be it by words, deeds or both), intending or designing to intimidate a police officer in the execution of the officer’s duty, and that such conduct in fact had that effect — whether that is done in the presence of the officer or communicated to the officer by some other means is a question of fact and not determinative of itself; it is not necessary for the prosecution to establish that the conduct was carried out in the presence of the relevant officer. “Intimidate” for the purposes of s 60(1) requires proof of actual intimidation and means “to render timid, to inspire with fear, to overawe, to cow or to force to or deter from some action by threats or violence or by inducing fear”: Meller v Low (2000) 48 NSWLR 517; [2000] NSWSC 75; BC200000487; (2000) 7 Crim LN 13 [1118]. It is sufficient for the offence if the prosecution proves that the acts or words of the accused actually caused the officer to experience fear or apprehension for his or her personal safety: R v Manton (2002) 132 A Crim R 249; [2002] NSWCCA 316; BC200204539; (2002) 9 Crim LN 62 [1461]. It has been held that evidence that would amount to intimidation would also amount to harassment so that there would be a plea in bar available to a conviction of an offence of harassment where the defendant had been convicted of an offence of intimidation arising from the same acts and circumstances: Director of Public Prosecutions v Vella (2005) 156 A Crim R 113; [2005] NSWSC 897; BC200506556. As to “recklessly” see at [8-s 4A.1]. As to “wounds”, see [8-35.5]. [8-s 60.10] Execution of duty 546C.15].

See the authorities referred to at [8-s 58.55] and [8-s

[8-s 60.15] Standard non-parole period provisions Where an offence under s 60(2) or s 60(3) Crimes Act is committed on or after 1 February 2003, the offence is subject to the provisions of Div 1A of Pt 4 (ss 54A–54D) of the Crimes (Sentencing Procedure) Act 1999 at [5-s 54A] and following. A standard non-parole period for a s 60(2) offence is three years and for a s 60(3) offence five years: Table following s 54D at [5-s 54D]. Division 1A of Pt 4 does not apply to apply to detention under the Mental Health (Forensic Provisions) Act 1990 nor where the offence is dealt with summarily: s 54D(1)(b) and (2) at [5-s 54D]. The relevance of the standard non-parole period for a s 60(3) offence was considered in Winn v R [2007] NSWCCA 44; BC200700958. [8-s 60.20] Sentence The Attorney General sought a sentencing guideline under s 37 of the Crimes (Sentencing Procedure) Act 1999 in respect of this offence, see Attorney-General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 2 of 2002) (2002) 137 A Crim R 196; [2002] NSWCCA 515; BC200208038 but the court declined to deliver a guideline judgment. PROOF MATERIAL ON SECTION 60 For the text of s 60, see [8-s 60] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 60.25] Form of indictment [8-s 60.30] Assault police officer not occasioning actual bodily harm — s 60(1) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did assault/throw a missile at/stalk/harass/intimidate [name of victim], a police officer acting in the execution of his/her duty.

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s 60

[8-s 60.35]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 60

[8-s 60.35] Assault police officer not occasioning actual bodily harm during public disorder — s 60(1A) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did, during a public disorder, assault/throw a missile at/stalk/harass/intimidate [name of victim], a police officer acting in the execution of his/her duty. [8-s 60.40] Assault police officer occasioning actual bodily harm — s 60(2) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, did assault [name of victim], a police officer acting in the execution of his/her duty, and by the assault did occasion actual bodily harm. [8-s 60.45] Assault police officer occasioning actual bodily harm during public disorder — s 60(2A) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, did during a public disorder, assault [name of victim], a police officer acting in the execution of his/her duty, and by the assault did occasion actual bodily harm. [8-s 60.50] Wound or inflict grievous bodily harm to a police officer — s 60(3) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, recklessly did wound/inflict grievous bodily harm on [name of victim], a police officer acting in the execution of his/her duty. [8-s 60.55] Wound or inflict grievous bodily harm to a police officer during public disorder — s 60(3A) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, recklessly did, during a public disorder, wound/inflict grievous bodily harm on [name of victim], a police officer acting in the execution of his/her duty. [8-s 60.60] Elements of offence

The elements of the offence are—

[8-s 60.65] Assault not occasioning actual bodily harm (1) The victim was a police officer; and (2) the victim was acting in the execution of his/her duty (s 60(4) at [8-s 60] and

see [8-s 58.45]); and (3) the accused assaulted [8-s 58.5], threw a missile at, stalked, harassed or

intimidated [8-s 60.5] the victim. [8-s 60.70] Assault not occasioning actual bodily harm during public disorder (1) The victim was a police officer; and (2) the victim was acting in the execution of his/her duty (s 60(4) at [8-s 60] and

see [8-s 58.45]); and (3) during a public disorder [8-s 4]; (4) the accused assaulted [8-s 58.5], threw a missile at, stalked, harassed or

intimidated [8-s 60.5] the victim. [8-s 60.75] Assault occasioning actual bodily harm (1) The victim was a police officer; and (2) the victim was acting in the execution of his/her duty (s 60(4) at [8-s 60] and

see [8-s 58.45]); and (3) the accused assaulted [8-s 58.5] the victim; and (4) by this assault the accused occasioned actual bodily harm [8-s 59.5] to the

victim. [8-s 60.80] Assault occasioning actual bodily harm during public disorder (1) The victim was a police officer; and (2) the victim was acting in the execution of his/her duty (s 60(4) at [8-s 60] and

see [8-s 58.45]; and (3) during a public disorder [8-s 4];

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s 60A

CRIMES ACT 1900 (NSW) — PART 3

[8-s 60A]

(4) the accused assaulted [8-s 58.5] the victim; and (5) by this assault the accused occasioned actual bodily harm [8-s 59.5] to the

victim. [8-s 60.85] Wound/inflict grievous bodily harm (1) The accused either: (i) wounded [8-s 35.5] or (ii) inflicted grievous bodily harm [8-s 4] on the victim and (2) the victim was a police officer; and (3) the victim was acting in the execution of his/her duty (s 60(4) at [8-s 60] and

[8-s 58.5]; and (4) the act of the accused was done recklessly [8-s 4A.5].

and [8-s 58.5]); and (5) the act of the accused was done recklessly [8-s 4A.5].

[8-s 60A] Assault and other actions against law enforcement officers (other than police officers) 60A (1) A person who assaults, throws a missile at, stalks, harasses or intimidates a law enforcement officer (other than a police officer) while in the execution of the officer’s duty, although no actual bodily harm is occasioned to the officer, is liable to imprisonment for 5 years. [subs (1) am Act 61 of 2006 s 3 and Sch 1[7], opn 15 Dec 2006]

(2) A person who assaults a law enforcement officer (other than a police officer) while in the execution of the officer’s duty, and by the assault occasions actual bodily harm, is liable to imprisonment for 7 years. (3) A person who by any means: (a) wounds or causes grievous bodily harm to a law enforcement officer (other than a police officer) while in the execution of the officer’s duty, and (b) is reckless as to causing actual bodily harm to that officer or any other person, is liable to imprisonment for 12 years. [subs (3) subst Act 41 of 2012 Sch 1[3], opn 21 June 2012]

(4) For the purposes of this section, an action is taken to be carried out in relation to a law enforcement officer while in the execution of the officer’s duty, even though the officer is not on duty at the time, if it is carried out: (a) as a consequence of, or in retaliation for, actions undertaken by that officer in the execution of the officer’s duty, or (b) because the officer is a law enforcement officer. [s 60A insrt Act 45 of 2002 s 3 and Sch 1[4], opn 15 July 2002] Editor’s note: For a historical version of this section please see [8A-REP s 60A].

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[8-s 60.90] Wound/inflict grievous bodily harm during public disorder (1) During a public disorder [8-s 4] (2) the accused either: (i) wounded [8-s 35.5] or (ii) inflicted grievous bodily harm [8-s 4] upon, the victim, and (3) the victim was a police officer; (4) and the victim was acting in the execution of his/her duty (s 60(4) at [8-s 60]

[8-s 60A.1]

s 60A

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

COMMENTARY ON SECTION 60A Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 60A(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 60A(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 60A(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 60A(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 60A(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 60A(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 60A.1] [8-s 60A.5] [8-s 60A.10] [8-s 60A.15] [8-s 60A.20] [8-s 60A.25] [8-s 60A.30] [8-s 60A.35] [8-s 60A.40] [8-s 60A.45]

[8-s 60A.1] Summary disposal An offence under s 60A(2) is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment, see s 260(1) at [2-s 260] and [2-Sch 1] Pt 1 cl 2. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. An offence under s 60A(1) is a Table 2 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment by the prosecutor, see s 260(2) at [2-s 260] and [2-Sch 1] Pt 1 cl 1. The maximum penalty which can be imposed is 2 years imprisonment, or a fine of 50 penalty units, or both: see at [2-s 268]. [8-s 60A.5] Definitions As to “assault” see [8-s 58.5]. As to “actual bodily harm” see [8-s 59.5]. As to “grievous bodily harm” see [8-s 4.1]. As to “intimidate” see [8-s 60.5]. As to “law enforcement officer” see [8-s 60AA]. As to “recklessly” see at [8-s 4A.1]. As to “wounds”, see [8-35.5]. As to “execution of the officer’s duty”, see [8-s 58.55] and [8-s 546C.15]. PROOF MATERIAL ON SECTION 60A For the text of s 60A, see [8-s 60A] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 60A.10] Form of indictment [8-s 60A.15] Section 60A(1) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did assault/throw a missile at/stalk/harass/intimidate [name of victim] a law enforcement officer, not being a police officer, while in the execution of the officer’s duty. [8-s 60A.20] Section 60A(2) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did assault [name of victim], a law enforcement officer, not being a police officer, while in the execution of the officer’s duty and by the assault occasioned actual bodily harm. [8-s 60A.25] Section 60A(3) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales recklessly did wound/inflict grievous bodily harm on [name of victim] a law enforcement officer, not being a police officer, while in the execution of the officer’s duty. [8-s 60A.30] Elements of offence

The elements of the offence are:

[8-s 60A.35] Section 60A(1) (1) The accused assaulted [8-s 58.5], threw a missile at, stalked, harassed or

intimidated [8-s 60.5] the victim; and

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s 60B

CRIMES ACT 1900 (NSW) — PART 3

[8-s 60B]

(2) The victim was a law enforcement officer (other than a police officer)

[8-s 60AA]; and (3) The victim was acting in the execution of his/her duty [8-s 60A(4)]. [8-s 60A.40] Section 60A(2) (1) The accused assaulted [8-s 58.5] the victim; and (2) By this assault actual bodily harm [8-s 59.5] was occasioned; and (3) The victim was a law enforcement officer (other than a police officer)

[8-s 60AA]; and (4) The victim was acting in the execution of his/her duty [8-s 60A(4)]. [8-s 60A.45] Section 60A(3) (1) The accused either (i) wounded [8-s 35.5]; or (ii) inflicted grievous bodily harm [8-s 4] upon the victim; and (2) the act of the accused was done recklessly [8-s 4A.1]; and (3) The victim was a law enforcement officer (other than a police officer)

[8-s 60AA]; and

[8-s 60B] Actions against third parties connected with law enforcement officers 60B (1) A person who assaults, stalks, harasses or intimidates any person with whom a law enforcement officer has a domestic relationship, with the intention of causing the law enforcement officer to fear physical or mental harm: (a) as a consequence of, or in retaliation for, actions undertaken by the law enforcement officer in the execution of the officer’s duty, or (b) because the law enforcement officer is a law enforcement officer, is liable to imprisonment for 5 years. (2) A person who obtains personal information about a person with whom a law enforcement officer has a domestic relationship, with the intention of using or permitting the use of the information to cause the officer to fear physical or mental harm: (a) as a consequence of, or in retaliation for, actions undertaken by the law enforcement officer in the execution of the officer’s duty, or (b) because the law enforcement officer is a law enforcement officer, is liable to imprisonment for 5 years. [subs (2) am Act 61 of 2006 s 3 and Sch 1[8], opn 15 Dec 2006]

(3) For the purposes of this section, causing a law enforcement officer to fear physical or mental harm includes causing the officer to fear physical or mental harm to another person with whom he or she has a domestic relationship. (4) For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person. (5) For the purposes of this section, the prosecution is not required to prove that the person alleged to have been assaulted, stalked, harassed or intimidated, or the law enforcement officer, actually feared physical or mental harm.

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(4) The victim was acting in the execution of his/her duty [8-s 60A(4)].

[8-s 60B]

s 60B

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

(6) In this section, domestic relationship has the same meaning as in the Crimes (Domestic and Personal Violence) Act 2007. [subs (6) subst Act 73 of 2006 s 3 and Sch 2[4], opn 12 Mar 2007; am Act 38 of 2007 s 103 and Sch 2.7[1], opn 10 Mar 2008]

COMMENTARY ON SECTION 60B Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 60B(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 60B(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 60B(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 60B(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 60B.1] [8-s 60B.5] [8-s 60B.10] [8-s 60B.15] [8-s 60B.20] [8-s 60B.25] [8-s 60B.30] [8-s 60B.35]

[8-s 60B.1] Summary disposal An offence under the section is a Table 2 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment by the prosecutor, see s 260(2) at [2-s 260] and [2-Sch 1] Pt 1 cl 1. The maximum penalty which can be imposed is 2 years imprisonment, or a fine of 50 penalty units, or both: see at [2-s 268]. [8-s 60B.5] Definitions As to “assault” see [8-s 58.5]. As to “intimidate” see [8-s 60.5]. As to “law enforcement officer” see [8-s 60AA]. As to “domestic relationship” see at see s 5 of the Crimes (Domestic and Personal Violence) Act 2007 at [8-5020]. As to “execution of the officer’s duty”, see [8-s 58.55] and [8-s 546C.15]. PROOF MATERIAL ON SECTION 60B For the text of s 60B, see [8-s 60B] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 60B.10] Form of indictment [8-s 60B.15] Section 60B(1) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales assaulted/stalked/harassed/intimidated [name of victim], being a person with whom [name of offıcer], a [state type of law enforcement offıcer], had a domestic relationship, with the intention of causing [name of offıcer] to fear physical or mental harm as a consequence of, or in retaliation for, actions undertaken by [name of offıcer] in the execution of his or her duty/ because he or she was a law enforcement officer. [8-s 60B.20] Section 60B(2) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales obtained personal information about [name of victim], being a person with whom [name of offıcer], a [state type of law enforcement offıcer], had a domestic relationship, with the intention of using/permitting the use of the information to cause [name of offıcer] to fear physical or mental harm as a consequence of, or in retaliation for, actions undertaken by [name of offıcer] in the execution of his or her duty/ because he or she was a law enforcement officer. [8-s 60B.25] Elements of offence

The elements of the offence are:

[8-s 60B.30] Section 60B(1) (1) The accused assaulted [8-s 58.5] /stalked/harassed/intimidated [8-s 60.5]; (2) any person with whom a law enforcement officer [8-s 60AA] had a domestic

relationship [8-5020]; (3) with the intention (s 60(4) at [8-s 60]) of causing the law enforcement officer

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s 60C

[8-s 60C.10]

CRIMES ACT 1900 (NSW) — PART 3

[8-s 60AA] to fear physical or mental harm (s 60B(3) at [8-s 60B]); (i) as a consequence of, or in retaliation for, actions undertaken by the law enforcement officer in the execution of the officer’s duty [8-s 58.55]; or (ii) because the law enforcement officer was a law enforcement officer. [8-s 60B.35] Section 60B(2) (1) The accused obtained personal information; (2) about a person with whom a law enforcement officer [8-s 60AA] had a

domestic relationship [8-5020]; (3) with the intention (s 60(4) at [8-s 60]) of using or permitting the use of the

information to cause the officer to fear physical or mental harm (s 60B(3) at [8-s 60B]);

[8-s 60C] Obtaining of personal information about law enforcement officers 60C A person who obtains personal information about a law enforcement officer, with the intention of using or permitting the use of the information for the purpose of assaulting, stalking, harassing, intimidating, or otherwise harming, the officer: (a) as a consequence of, or in retaliation for, actions undertaken by the law enforcement officer in the execution of the officer’s duty, or (b) because the officer is a law enforcement officer, is liable to imprisonment for 5 years. [s 60C insrt Act 45 of 2002 s 3 and Sch 1[4], opn 15 July 2002; am Act 61 of 2006 s 3 and Sch 1[9], opn 15 Dec 2006]

COMMENTARY ON SECTION 60C Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 60C.1] [8-s 60C.5] [8-s 60C.10] [8-s 60C.15]

[8-s 60C.1] Summary disposal An offence under the section is a Table 2 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment by the prosecutor, see s 260(2) at [2-s 260] and [2-Sch 1] Pt 1 cl 1. The maximum penalty which can be imposed is 2 years imprisonment, or a fine of 50 penalty units, or both: see at [2-s 268]. [8-s 60C.5] Definitions As to “assault” see [8-s 58.5]. As to “intimidate” see [8-s 60.5]. As to “law enforcement officer” see [8-s 60AA]. PROOF MATERIAL ON SECTION 60C For the text of s 60C, see [8-s 60C] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 60C.10] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales obtained personal information about [name of

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(i) as a consequence of, or in retaliation for, actions undertaken by the law enforcement officer in the execution of the officer’s duty [8-s 58.55]; or (ii) because the law enforcement officer was a law enforcement officer. (Note: The prosecution is not required to prove that the person alleged to have been assaulted, stalked, harassed or intimidated, or the law enforcement officer, actually feared physical or mental harm: see s 60B(5) at [8-s 60B].)

[8-s 60C.10]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 60C

victim], a law enforcement officer, with the intention of using or permitting the use of the information for the purpose of assaulting, stalking, harassing, intimidating or otherwise harming [name of victim] as a consequence of, or in retaliation for, actions undertaken by [name of victim] in the execution of his or her duty/ because he or she was a law enforcement officer. [8-s 60C.15] Elements of offence The elements of the offence are: (1) The accused obtained personal information; (2) The victim was a law enforcement officer [8-s 60AA]; (3) With the intention [6-500] of using or permitting the use of the information for

the purpose of assaulting [8-s 58.5], stalking, harassing, intimidating [8-s 60.5] or otherwise harming the officer; (4)

(i) As a consequence of, or in retaliation for, actions undertaken by the law enforcement officer in the execution of the officer’s duty; or (ii) Because the law enforcement officer was a law enforcement officer.

DIVISION 8B — ASSAULTS ETC AT SCHOOLS [Div 8B insrt Act 135 of 2002 s 3 and Sch 1, opn 10 Feb 2003]

[8-s 60D] Definitions 60D (1) In this Division: member of staff of a school includes a person who performs voluntary work for the school. school means: (a) an infants school, primary school or secondary school (however described), and (b) a child care facility for children under school age. school premises includes parks and other community premises that are used by a school (but only while they are being used for the purposes of the school). school student includes a child attending a child care facility. (2) For the purposes of this Division, a school student or member of staff of a school is taken to be attending a school: (a) while the student or member of staff is on school premises for the purposes of school work or duty (even if not engaged in school work or duty at the time), or (b) while the student or member of staff is on school premises for the purposes of before school or after school child care, or (c) while entering or leaving school premises in connection with school work or duty or before school or after school care.

[8-s 60E] Assaults etc at schools 60E (1) A person who assaults, stalks, harasses or intimidates any school student or member of staff of a school while the student or member of staff is attending a school, although no actual bodily harm is occasioned, is liable to imprisonment for 5 years. (2) A person who assaults a school student or member of staff of a school while the student or member of staff is attending a school and by the assault occasions actual bodily harm, is liable to imprisonment for 7 years.

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s 60E

CRIMES ACT 1900 (NSW) — PART 3

[8-s 60E.15]

(3) A person who by any means: (a) wounds or causes grievous bodily harm to a school student or member of staff of a school while the student or member of staff is attending a school, and (b) is reckless as to causing actual bodily harm to that student or member of staff or any other person, is liable to imprisonment for 12 years. [subs (3) subst Act 41 of 2012 Sch 1[4], opn 21 June 2012]

(4) A person who enters school premises with intent to commit an offence under another provision of this section is liable to imprisonment for 5 years. (5) Nothing in subsection (1) applies to any reasonable disciplinary action taken by a member of staff of a school against a school student. COMMENTARY ON SECTION 60E Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 60E(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 60E(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 60E(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 60E(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 60E(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 60E(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 60E(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 60E(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 60E.1] [8-s 60E.5] [8-s 60E.10] [8-s 60E.15] [8-s 60E.20] [8-s 60E.25] [8-s 60E.30] [8-s 60E.35] [8-s 60E.40] [8-s 60E.45] [8-s 60E.50] [8-s 60E.55]

[8-s 60E.1] Summary disposal An offence under s 60E(2) is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment, see s 260(1) at [2-s 260] and [2-Sch 1] Pt 1 cl 2. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. An offence under ss 60E(1) or (4) is a Table 2 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment by the prosecutor, see s 260(2) at [2-s 260] and [2-Sch 1] Pt 1 cl 1. The maximum penalty which can be imposed is 2 years imprisonment, or a fine of 50 penalty units, or both: see at [2-s 268]. [8-s 60E.5] Definitions As to “assault” see [8-s 58.5]. As to “actual bodily harm” see [8-s 59.5]. As to “grievous bodily harm” see [8-s 4.1]. As to “intimidate” see [8-s 60.5]. As to “law enforcement officer” see [8-s 60AA]. As to “recklessly” see at [8-s 4A.1]. As to “wounds”, see [8-35.5]. PROOF MATERIAL ON SECTION 60E For the text of s 60E, see [8-s 60E] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 60E.10] Form of indictment [8-s 60E.15] Section 60E(1) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales assaulted/stalked/harassed/intimidated [name of victim], being a school student/member of staff of [name of school] while [name of victim] was attending that school.

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Editor’s note: For a historical version of this section please see [8A-REP s 60E].

[8-s 60E.20]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 60E

[8-s 60E.20] Section 60E(2) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales assaulted [name of victim], being a school student/member of staff of [name of school] while [name of victim] was attending that school and by that assault occasioned actual bodily harm. [8-s 60E.25] Section 60E(3) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales recklessly did wound [name of victim]/ inflict grievous bodily harm on [name of victim], being a school student/member of staff of [name of school] while [name of victim] was attending that school. [8-s 60E.30] Section 60E(4) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales entered the school premises [name of school] with intent to [follow averments above]. [8-s 60E.35] Elements of offence

The elements of the offence are:

[8-s 60E.40] Section 60E(1) (1) The accused assaulted [8-s 58.5] /stalked/harassed/intimidated [8-s 60.5]; (2) Any school student or member of staff of a school [8-s 60D]; (3) While the student or member of staff was attending a school [8-s 60D]. (Note: Nothing in this section applies to any reasonable disciplinary action taken by a member of staff of a school against a school student: see s 60E(5) at [8-s 60E(5)].) [8-s 60E.45] Section 60E(2) (1) The accused assaulted [8-s 58.5] (2) Any school student or member of staff of a school [8-s 60D]; (3) While the student or member of staff was attending a school [8-s 60D]; (4) And by the assault occasioned actual bodily harm [8-s 59.5]. [8-s 60E.50] Section 60E(3) (1) The accused either (i) wounded [8-s 35.5] or (ii) inflicted grievous bodily harm upon [8-s 4] the victim; and (2) the victim was a school student or member of staff of a school [8-s 60D]; and (3) the victim was attending a school [8-s 60D]; and (4) the act of the accused was done recklessly [8-s 4A.1] [8-s 60E.55] Section 60E(4) (1) The accused entered school premises [8-s 60D]; (2) With the intent [6-500] to (follow elements above).

DIVISION 9 — COMMON ASSAULTS [Div heading insrt Act 53 of 2000 s 3 and Sch 3.3, opn 29 June 2000]

[8-s 61] Common assault prosecuted by indictment 61 Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years. [s 61 am Act 50 of 1974 s 5] Editor’s note: For proof material on s 61, see [27-16,475] behind the “27 – Informations and Indictments” guide card in Vol 4.

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s 61

CRIMES ACT 1900 (NSW) — PART 3

COMMENTARY ON SECTION 61 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Compellability of spouse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Personal violence offence/domestic violence offence . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Necessary averments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Element of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 61.30]

[8-s 61.1] [8-s 61.5] [8-s 61.7] [8-s 61.10] [8-s 61.15] [8-s 61.20] [8-s 61.25] [8-s 61.30]

[8-s 61.1] Summary disposal An offence under the section is a Table 2 offence under the Criminal Procedure Act and is to be dealt with in a Local Court unless an election is made for trial on indictment, see [2-s 260] and [2-Sch 1] Pt 1 cl 1. The maximum penalty which can be imposed is 24 months imprisonment or a fine of 50 penalty units or both: [2-s 268] of the Criminal Procedure Act. The offence of common assault may be prosecuted on indictment. The fact that the maximum penalty is imprisonment for 2 years does not render it a summary offence: R v Fisher (2002) 54 NSWLR 467; [2002] NSWCCA 188; BC200202699; (2002) 9 Crim LN 39 [1430]. As to “assault” see [8-s 58.5].

[8-s 61.7] Sentence When sentencing for an offence of assault under this section it is not permissible to take into account the infliction of injuries that would amount to actual bodily harm: R v Abboud [2005] NSWCCA 251; BC200505225; McIntyre v R [2009] NSWCCA 305; BC200911594; (2010) 17 Crim LN 28 [2684]. [8-s 61.10] Compellability of spouse Where the offence was committed upon a child under the age of 18 years, the spouse of the accused is compellable to give evidence at the hearing of the offence: see at [2-s 279]. [8-s 61.15] Personal violence offence/domestic violence offence This offence (or an offence of attempting to commit this offence) is a “personal violence offence” as defined in s 4 of the Crimes (Domestic and Personal Violence) Act 2007 at [8-5015] and, when committed by a person against another person with whom the offender has or has had a domestic relationship, is a “domestic violence offence” as defined in s 11 of that Act at [8-5240]. PROOF MATERIAL ON SECTION 61 For the text of s 61, see [8-s 61] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 61.20] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, did assault [name of victim] (and did then beat or otherwise ill-treat [name of victim]). [8-s 61.25] Necessary averments In R v Dhillon (CCA(NSW), 26 April 1989, unreported, BC8902251) it was held that the use of the expression “. . . did then beat or otherwise ill-treat . . .” did not affect an accused in an unduly prejudicial manner, and that an averment in these terms was not bad. It was said that the use of this expression in that case was prudent as it enabled it to be known with certainty that what the Crown intended to do was to indict and arraign the accused upon a charge of assault. Where an indictment is drafted in this way, it is unnecessary for the prosecution to prove an actual battery: Sako v Anthony (SC(NSW), 8 March 1991, unreported, BC9102654). [8-s 61.30] Element of offence The element of the offence is — (1) The accused assaulted [8-s 58.5] the victim.

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Crimes

[8-s 61.5] Definitions

[8-s 61AA]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 61AA

DIVISION 9A — DEFENCE OF LAWFUL CORRECTION [Div insrt Act 89 of 2001 s 3 and Sch 1[1], opn 5 Dec 2002]

[8-s 61AA] Defence of lawful correction 61AA (1) In criminal proceedings brought against a person arising out of the application of physical force to a child, it is a defence that the force was applied for the purpose of the punishment of the child, but only if: (a) the physical force was applied by the parent of the child or by a person acting for a parent of the child, and (b) the application of that physical force was reasonable having regard to the age, health, maturity or other characteristics of the child, the nature of the alleged misbehaviour or other circumstances. (2) The application of physical force, unless that force could reasonably be considered trivial or negligible in all the circumstances, is not reasonable if the force is applied: (a) to any part of the head or neck of the child, or (b) to any other part of the body of the child in such a way as to be likely to cause harm to the child that lasts for more than a short period. (3) Subsection (2) does not limit the circumstances in which the application of physical force is not reasonable. (4) This section does not derogate from or affect any defence at common law (other than to modify the defence of lawful correction). (5) Nothing in this section alters the common law concerning the management, control or restraint of a child by means of physical contact or force for purposes other than punishment. (6) In this section: child means a person under 18 years of age. de facto spouse [def rep Act 19 of 2010 Sch 3.27, opn 19 May 2010]

parent of a child means a person having all the duties, powers, responsibilities and authority in respect of the child which, by law, parents have in relation to their children. person acting for a parent of a child means a person: (a) who: (i) is a step-parent of the child, a de facto partner of a parent of the child, a relative (by blood or marriage) of a parent of the child or a person to whom the parent has entrusted the care and management of the child, and (ii) is authorised by a parent of the child to use physical force to punish the child, or (b) who, in the case of a child who is an Aboriginal or Torres Strait Islander (within the meaning of the Children and Young Persons (Care and Protection) Act 1998), is recognised by the Aboriginal or Torres Strait Islander community to which the child belongs as being an appropriate person to exercise special responsibilities in relation to the child.

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s 61H

[8-s 61H]

CRIMES ACT 1900 (NSW) — PART 3

Note. “De facto partner” is defined in section 21C of the Interpretation Act 1987. [def am Act 19 of 2010 Sch 3.27, opn 19 May 2010]

(7) This section does not apply to proceedings arising out of an application of physical force to a child if the application of that force occurred before the commencement of this section. (8) The Attorney General is to review this section to determine whether its provisions continue to be appropriate for securing the policy objectives of the section. The review is to be undertaken as soon as possible after the period of 3 years from the commencement of this section. A report on the outcome of the review is to be tabled in each House of Parliament within 6 months after the end of the period of 3 years. [8-s 61AA.1] [8-s 61AA.5]

[8-s 61AA.1] Defence of lawful correction Where the defence under s 61AA is raised in a prosecution for an offence involving the application of physical force to a child, the correct approach for the court is to first determine whether the offence charged is otherwise established beyond reasonable doubt and, if it is, to determine whether the s 61AA defence is established by the defendant on the balance of probabilities applying s 141(2) of the Evidence Act 1995 (at [3-s 141]): Director of Public Prosecutions v FD [2017] NSWSC 679; BC201704149 at [10]–[15]. [8-s 61AA.5] Application of the section It was determined in Director of Public Prosecutions (DPP) v FD [2017] NSWSC 679; BC201704149; 24(7) Crim LN [3855] that a magistrate erred in holding that it was for the prosecution to prove that the defence was not made out, whereas the onus is upon the defendant to prove the defence. No reference was made in the judgment to s 417A of the Act or to statements of authority that generally it is for the prosecution to negative a defence unless the statute makes it clear that it is otherwise.

DIVISION 10 — SEXUAL OFFENCES AGAINST ADULTS AND CHILDREN [Div heading insrt Act 53 of 2000 s 3 and Sch 3.3, opn 29 June 2000; subst Act 33 of 2018 Sch 1[2], opn 1 Dec 2018] 61A–61G [ss 61A–61G rep Act 198 of 1989 s 3 and Sch 1[2], opn 17 Mar 1991]

Subdivision 1 — Interpretation [Subdiv 1 heading insrt Act 33 of 2018 Sch 1[3], opn 1 Dec 2018]

[8-s 61H] Definitions 61H (1) In this Division: cognitive impairment — see section 61HD. sexual act — see section 61HC. sexual intercourse — see section 61HA. sexual touching — see section 61HB. [subs (1) am Act 2 of 1992 s 3 and Sch 1 opn 3 May 1992; am Act 9 of 2003 s 3 and Sch 1[1] opn 13 June 2003; subst Act 33 of 2018 Sch 1[4], opn 1 Dec 2018]

(1A) [subs (1A) insrt Act 74 of 2008 s 3 and Sch 1, opn 1 Dec 2008; rep Act 33 of 2018 Sch 1[4], opn 1 Dec 2018]

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Crimes

COMMENTARY ON SECTION 61AA Defence of lawful correction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application of the section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 61H]

s 61H

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

(2) For the purposes of this Division, a person is under the authority of another person if the person is in the care, or under the supervision or authority, of the other person. [subs (2) am Act 9 of 2003 s 3 and Sch 1[1] opn 13 June 2003]

(3) For the purposes of this Act, a person who incites another person to carry out sexual touching or a sexual act, as referred to in a provision of Subdivision 3, 4, 6, 7 or 11, is taken to commit an offence on the other person. [subs (3) subst Act 23 of 1995 Sch 1, opn 1 July 1995; Act 33 of 2018 Sch 1[5], opn 1 Dec 2018] [s 61H insrt Act 198 of 1989 s 3 and Sch 1(3), opn 17 Mar 1991]

COMMENTARY ON SECTION 61H Scheme of the offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sexual intercourse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Person under the authority of another . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 61H.1] [8-s 61H.5] [8-s 61H.10]

[8-s 61H.1] Scheme of the offences The policy and effect of similar legislation on which the current provisions were based was considered in R v Smith [1982] 2 NSWLR 569; 8 A Crim R 131. The section was amended by the Criminal Legislation (Amendment) Act 1992 and the relevant part of Sch 11 of that Act was as follows: a provision, applying the new definition of “sexual intercourse” to sexual assault offences which occurred after 14 July 1981. The explanatory note indicates that the section was amended to overcome the difficulty of a witness indicating the degree of penetration and confusion as to whether penetration of the genitalia other than the vagina was sufficient, see R v Randall (1991) 53 A Crim R 380. As to the position regarding transsexuals see R v Harris (1988) 17 NSWLR 158. [8-s 61H.5] Sexual intercourse For the purposes of s 61H(1)(b), penetration of the lips is sufficient to amount to sexual intercourse: R v Preval [1984] 3 NSWLR 647. Cunnilingus does not require proof of any penetration and consists of licking or sucking of the genitalia: R v Randall (1991) 53 A Crim R 380. The definition of sexual intercourse under the section contains no element of sexual gratification although the absence of such an intent would be highly relevant to the question of sentence: R v Dunn (NSWCCA, Carruthers J, 15 April 1992, unreported). [8-s 61H.10] Person under the authority of another A person who is employed by another may be under that person’s authority where that person had the right to control or command the other: R v DH (NSWCCA, Newman, James and Hidden JJ, 14 July 1997, unreported, BC9703242); 4(7) Crim LN [725] where it was held that it was unnecessary for the Crown to prove a causal connection between the existence of the position of authority and the occurrence of the sexual intercourse. The scope of this aggravating feature was considered in R v Howes (2000) 2 VR 141; 116 A Crim R 249; [2000] VSCA 159; BC200005738; 7(10) Crim LN [1211] where it was held that a teacher was in a position of authority within the terms of the provision at the end of the school day or while the school is in recess over a holiday period. The court held that the question was whether such a relationship existed of the kind covered by the words of the provision and not whether the accused was actually exercising or exploiting his position of advantage at the time of the commission of the offence. Howes was followed in Kennedy v R [2017] NSWCCA 193; BC201706271; 24(10) Crim LN [3900] in a case where the complainant and her mother had moved premises and no longer lived with the accused, it was open to find that the accused by reason of his relationship with the mother was still in a position of authority over the complainant.

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s 61HC

CRIMES ACT 1900 (NSW) — PART 3

[8-s 61HC]

In KSC v R [2012] NSWCCA 179; BC201210760; 20(2) Crim LN [3169]s 61H(2) was considered in relation to the directions and assistance to be given by a trial judge to a jury in understanding the scope of the section. It was held that it was not necessary for the trial judge to provide the jury with a dictionary to understand the words “care”, “supervision” or “authority”.

[8-s 61HA] Meaning of “sexual intercourse”

[s 61HA insrt Act 66 of 2007 s 3 and Sch 1[1], opn 1 Jan 2008; subst Act 33 of 2018 Sch 1[6], opn 1 Dec 2018]

[8-s 61HB] Meaning of “sexual touching” 61HB (1) For the purposes of this Division, sexual touching means a person touching another person: (a) with any part of the body or with anything else, or (b) through anything, including anything worn by the person doing the touching or by the person being touched, in circumstances where a reasonable person would consider the touching to be sexual. (2) The matters to be taken into account in deciding whether a reasonable person would consider touching to be sexual include: (a) whether the area of the body touched or doing the touching is the person’s genital area or anal area or (in the case of a female person, or transgender or intersex person identifying as female) the person’s breasts, whether or not the breasts are sexually developed, or (b) whether the person doing the touching does so for the purpose of obtaining sexual arousal or sexual gratification, or (c) whether any other aspect of the touching (including the circumstances in which it is done) makes it sexual. (3) Touching done for genuine medical or hygienic purposes is not sexual touching. [s 61HB insrt Act 33 of 2018 Sch 1[6], opn 1 Dec 2018]

[8-s 61HC] Meaning of “sexual act” 61HC (1) For the purposes of this Division, sexual act means an act (other than sexual touching) carried out in circumstances where a reasonable person would consider the act to be sexual. (2) The matters to be taken into account in deciding whether a reasonable person would consider an act to be sexual include:

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Crimes

61HA For the purposes of this Division, sexual intercourse means: (a) sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by: (i) any part of the body of another person, or (ii) any object manipulated by another person, except where the penetration is carried out for proper medical purposes, or (b) sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or (c) cunnilingus, or (d) the continuation of sexual intercourse as defined in paragraph (a), (b) or (c).

[8-s 61HC]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 61HC

(a) whether the area of the body involved in the act is a person’s genital area or anal area or (in the case of a female person, or transgender or intersex person identifying as female) the person’s breasts, whether or not the breasts are sexually developed, or (b) whether the person carrying out the act does so for the purpose of obtaining sexual arousal or sexual gratification, or (c) whether any other aspect of the act (including the circumstances in which it is carried out) makes it sexual. (3) An act carried out for genuine medical or hygienic purposes is not a sexual act. [s 61HC insrt Act 33 of 2018 Sch 1[6], opn 1 Dec 2018]

[8-s 61HD] Meaning of “cognitive impairment” 61HD For the purposes of this Division, a person has a cognitive impairment if the person has: (a) an intellectual disability, or (b) a developmental disorder (including an autistic spectrum disorder), or (c) a neurological disorder, or (d) dementia, or (e) a severe mental illness, or (f) a brain injury, that results in the person requiring supervision or social habilitation in connection with daily life activities. [s 61HD insrt Act 33 of 2018 Sch 1[6], opn 1 Dec 2018]

[8-s 61HE] Consent in relation to sexual offences 61HE (1) Offences to which section applies This section applies for the purposes of the offences, or attempts to commit the offences, under sections 61I, 61J, 61JA, 61KC, 61KD, 61KE and 61KF. (2) Meaning of “consent” A person consents to a sexual activity if the person freely and voluntarily agrees to the sexual activity. (3) Knowledge about consent A person who without the consent of the other person (the alleged victim) engages in a sexual activity with or towards the alleged victim, incites the alleged victim to engage in a sexual activity or incites a third person to engage in a sexual activity with or towards the alleged victim, knows that the alleged victim does not consent to the sexual activity if: (a) the person knows that the alleged victim does not consent to the sexual activity, or (b) the person is reckless as to whether the alleged victim consents to the sexual activity, or (c) the person has no reasonable grounds for believing that the alleged victim consents to the sexual activity. (4) For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case: (a) including any steps taken by the person to ascertain whether the alleged victim consents to the sexual activity, but (b) not including any self-induced intoxication of the person.

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CRIMES ACT 1900 (NSW) — PART 3

[8-s 61I]

(5) Negation of consent A person does not consent to a sexual activity: (a) if the person does not have the capacity to consent to the sexual activity, including because of age or cognitive incapacity, or (b) if the person does not have the opportunity to consent to the sexual activity because the person is unconscious or asleep, or (c) if the person consents to the sexual activity because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person), or (d) if the person consents to the sexual activity because the person is unlawfully detained. (6) A person who consents to a sexual activity with or from another person under any of the following mistaken beliefs does not consent to the sexual activity: (a) a mistaken belief as to the identity of the other person, (b) a mistaken belief that the other person is married to the person, (c) a mistaken belief that the sexual activity is for health or hygienic purposes, (d) any other mistaken belief about the nature of the activity induced by fraudulent means. (7) For the purposes of subsection (3), the other person knows that the person does not consent to the sexual activity if the other person knows the person consents to the sexual activity under such a mistaken belief. (8) The grounds on which it may be established that a person does not consent to a sexual activity include: (a) if the person consents to the sexual activity while substantially intoxicated by alcohol or any drug, or (b) if the person consents to the sexual activity because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force, or (c) if the person consents to the sexual activity because of the abuse of a position of authority or trust. (9) A person who does not offer actual physical resistance to a sexual activity is not, by reason only of that fact, to be regarded as consenting to the sexual activity. (10) This section does not limit the grounds on which it may be established that a person does not consent to a sexual activity. (11) In this section: sexual activity means sexual intercourse, sexual touching or a sexual act. [s 61HE insrt Act 33 of 2018 Sch 1[6], opn 1 Dec 2018]

Subdivision 2 — Sexual assault and assault with intent to have sexual intercourse [Subdiv 2 heading insrt Act 33 of 2018 Sch 1[6], opn 1 Dec 2018]

[8-s 61I] Sexual assault 61I Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years. [s 61I insrt Act 198 of 1989 s 3 and Sch 1(3), opn 17 Mar 1991] Editor’s note: For proof material on s 61I, see [27-16,600] behind the “27 – Informations and Indictments” guide card in Vol 4.

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Crimes

s 61I

[8-s 61I.1]

s 61I

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

COMMENTARY ON SECTION 61I Sexual intercourse without consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mental element of the offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Duplicity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Referral to child protection agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Complaint evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Corroboration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Attempts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Restrictions on disclosure of evidence . . . . . . . . . . . . . . . . . . . . . . . . . . Compellability of spouse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Reading of depositions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Evidence of other sexual activity by or with the complainant . . . . . Evidence of recall induced by hypnosis and other techniques . . . . . Evidence of medical examination of complainant . . . . . . . . . . . . . . . . Personal violence offence/domestic violence offence . . . . . . . . . . . . . Incapacity of minors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Effect of marriage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Standard non-parole period provisions . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alternative verdicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 61I.1] [8-s 61I.5] [8-s 61I.7] [8-s 61I.8] [8-s 61I.10] [8-s 61I.15] [8-s 61I.20] [8-s 61I.25] [8-s 61I.30] [8-s 61I.35] [8-s 61I.40] [8-s 61I.45] [8-s 61I.48] [8-s 61I.50] [8-s 61I.55] [8-s 61I.60] [8-s 61I.65] [8-s 61I.70] [8-s 61I.75] [8-s 61I.80] [8-s 61I.85]

[8-s 61I.1] Sexual intercourse without consent As to “sexual intercourse”, see at [8-s 61H.5]. The Crown must prove that the complainant, being aware that it was an act of a sexual nature, did not consent to the physical act of the accused, and it is irrelevant that the complainant failed to appreciate that the act was morally or criminally wrong: R v Beserick (1993) 30 NSWLR 510; 66 A Crim R 419. However, the complainant will not consent to the act if the complainant lacks the capacity or opportunity to consent, the consent is obtained through unlawful detention or threats of force or terror or because of a mistaken belief as to the identity of the other person, that the complainant is married to the other person, or that the sexual intercourse is for a medical or hygienic purpose: s 61HA at [8-s 61HA]. The nature of an offence under the section and the manner in which the Crown can prove the various elements was considered in R v XHR [2012] NSWCCA 247; BC201209166; 20(1) Crim LN [3154], where the court quashed a directed acquittal at a trial on an allegation that a massage therapist had digitally penetrated his client (the complainant) without consent. [8-s 61I.5] Mental element of the offence As to what constitutes lack of consent see s 61HA at [8-s 61HA]. Although the accused must know that the complainant is not consenting it is sufficient if he or she is reckless as to that consent or he or she has no reasonable grounds for believing that the complainant consents. For the purposes of this offence, the accused is reckless where he or she has intercourse not caring whether the complainant consents or not: Murray v R (1987) 11 NSWLR 12; 30 A Crim R 315; BC8701238. It is sufficient if the accused is aware that the complainant might not be consenting or possibly was not consenting: R v Zorad [1979] 2 NSWLR 764; R v Hemsley (1988) 36 A Crim R 334; BC8801458. Where the accused denies that the act of intercourse took place at all, it is unnecessary for the trial judge to give any direction concerning recklessness as that issue has no relevance: Murray v R, above. A conscious advertence to the possibility of non-consent is not necessary on the part of the accused. If the accused fails to advert at all to the question of consent, treating it as an irrelevant factor, this would amount either to knowledge or recklessness of the lack of consent: R v Henning (NSWCCA, Gleeson CJ, Campbell and Mathews JJ, 11 May 1990, unreported, BC9002977); R v Kitchener (1993) 29 NSWLR 696; R v Tolmie (1995) 37 NSWLR 660; BC9505467; 2 Crim LN 72[471]. This meaning of recklessness in relation to lack of consent was approved in Banditt v R (2005) 224 CLR 262; 223 ALR 633; [2005] HCA 80; BC200510778; (2005) 13 Crim LN 137

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s 61I

CRIMES ACT 1900 (NSW) — PART 3

[8-s 61I.15]

[1981]. The trial judge must make it clear to the jury that the question of recklessness is not determined by an objective standard but that the jury must focus on the mind of the accused: R v O’Meagher (1997) 101 A Crim R 196; 4 Crim LN 16 [668]. [8-s 61I.7] Duplicity The Crown should give sufficient particulars of the offence so that the accused knows the case that he or she has to meet and this includes material to indicate when and where the offence is alleged to have occurred: S v R (1989) 168 CLR 266; 89 ALR 321; 45 A Crim R 221; BC8902699. The Crown can be required to particularise which act of conduct of the accused is relied upon as the act of intercourse which is alleged in the count in the indictment and there is no statutory warrant for aggregating in the one count a number of acts of intercourse: R v Khouzame (1999) 108 A Crim R 170; [1999] NSWCCA 173; BC9903729; (1999) 6 Crim LN 55 [1027].

[8-s 61I.10] Complaint evidence Under the Evidence Act complaint evidence is admissible under s 66 as first person hearsay provided that at the time of the complaint the facts asserted in the complaint were “fresh in the memory” of the complainant, that is generally that the complaint will have occurred within weeks or days of the alleged sexual offence to which the complaint relates: Graham v R (1998) 195 CLR 606; 157 ALR 404; BC9804990; 5 Crim LN 67 [898]; R v Gillard (1999) 105 A Crim R 479; [1999] NSWCCA 21; BC9900620. Complaint evidence is admissible as being fresh in the memory where the complaint encompassed conduct which commenced 6 months earlier but continued up to the time of the complaint as a pattern of behaviour: R v Le [2000] NSWCCA 49; BC200001004; (2000) 7 Crim LN 12 [1117]. If admitted under that section the principle purpose for its admission is as evidence of the truth of what was stated in the complaint: Papakosmas v R (1999) 196 CLR 297; 164 ALR 548; [1999] HCA 37; BC9904591; (1999) 6 Crim LN 61 [1032] where it was held that evidence of complaint is not restricted to sexual assault offences. Evidence admitted under this section will only incidentally and indirectly support the complainant’s credibility. In this regard the position under the Evidence Act should be contrasted with the position at common law which insisted that the evidence of complaint was relevant only as to the credit of the complainant. Where evidence is admitted under this section it would be rare that its use by the jury would be limited to credibility under s 136 of the Evidence Act; see Papakosmas above, and in particular McHugh J. The other basis upon which complaint evidence can be admitted, where it is not fresh, is to rebut any suggestion that the complainant’s evidence is fabricated, reconstructed or the result of suggestion, see Evidence Act s 108(3): R v Dwyer [1999] NSWCCA 47; BC9901059; (1999) 6 Crim LN 26 [982]. Evidence can be admitted under this section in evidence-in-chief where it is clear that the complainant’s evidence is to be impugned in any of these ways: R v BD (1997) 94 A Crim R 131; 4 Crim LN 43 [707]. However it has been held that a mere denial by the accused of the incident giving rise to the charge will not automatically mean that leave can be sought by the Crown or should be granted by the court: R v Whitmore (1999) 109 A Crim R 51; [1999] NSWCCA 247; BC9905094; (1999) 6 Crim LN 65 [1038]. In Graham v R, above, it was made clear that, before leave could be given for the admission of complaint evidence under this section, the trial judge had to address the question of the effect of the evidence upon the witness’s credibility and, in particular, its capacity to redress the attack made upon the complainant’s evidence. Evidence of the distressed condition of the complainant at the time of the complaint is admissible. As to warnings to the jury where there has been delay in complaint see s 294 of the Criminal Procedure Act at [2-s 294] and the annotations. [8-s 61I.15] Corroboration Corroboration is no longer required in respect of any witness as the common law rule requiring that certain witnesses should be corroborated has been abolished

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Crimes

[8-s 61I.8] Referral to child protection agency The court has power to refer a person convicted of an offence where the child is under the authority of the offender to appropriate child protection agency: see [8-s 80AA]

[8-s 61I.15]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 61I

see at [3-s 164]. However a warning is generally required where the evidence of the complainant is the only evidence in the prosecution case and that evidence is not supported by any other evidence, see at [2-s 161.45] as to the directions and warnings to be given in a sexual assault trial. [8-s 61I.20] Attempts An attempt to commit an offence under the section carries the same penalty as if the completed offence was committed, s 61P at [8-s 61P]. If the Crown seeks to rely upon an attempt this should be opened to the jury or at least be made clear prior to addresses at which time the judge can rule on whether there is any injustice to the accused by reason of the late raising of the matter. The trial judge should indicate to the jury the basis upon which a verdict of attempt can be entered: R v Pureau (1990) 19 NSWLR 372. [8-s 61I.25] Restrictions on disclosure of evidence As the offence is a prescribed sexual offence under s 3 of the Criminal Procedure Act, proceedings may be held in camera, see at [2-s 291]. The court may make a suppression order or non-publication order upon a number of grounds, including the avoidance of undue distress or embarrassment to a party to, or witness in, criminal proceedings involving offences of a sexual nature (including an act of indecency): s 8 Court Suppression and Non-publication Orders Act 2010 at [29-9130]. Section 578A of the Crimes Act 1900 at [8-s 578A] prohibits the publication of any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant. There are also restrictions on the disclosure of sexual assault communications under Part 5 of the Criminal Procedure Act, see at [2-s 290] and following. [8-s 61I.30] Compellability of spouse Where the offence was committed upon a child under the age of 18 years, the spouse of the accused is compellable to give evidence at the hearing of the offence: see at [2-s 279]. [8-s 61I.35] Reading of depositions In certain cases depositions of evidence may be read in committal proceedings: see at [2-s 288]. [8-s 61I.40] Evidence of other sexual activity by or with the complainant Evidence of the sexual reputation of the complainant is inadmissible and there are restrictions on the admissibility of evidence relating to the complainant’s sexual experience, see at [2-s 293]. However evidence of other sexual activity between the complainant and the accused may be admissible as an exception under s 293(4) or as evidence of relationship, see at [3-s 97.10] and generally (1997) 4 Crim LN 22 [679]. [8-s 61I.45] Evidence of recall induced by hypnosis and other techniques The admissibility of evidence of sexual offences recalled under hypnosis has been considered in R v Jenkyns (1993) 32 NSWLR 712 where it was held that the evidence was admissible but the onus is upon the party seeking to admit it to show that it is sufficiently reliable to provide a prima facie reason to admit it and for that purpose certain guidelines on admissibility should be met: ie the subject matter should not be recalled for the first time under hypnosis; the substance of the original recollection should have been recorded; and the hypnosis should have taken place in an appropriate manner: see also R v Jamal (1993) 69 A Crim R 544 and R v Haywood (1994) 73 A Crim R 41. The same rules apply in respect of recall by EMDR (eye movement desensitisation and reprocessing): R v Tillot (1995) 38 NSWLR 1; 2 Crim LN 71 [469], where it was held that it did not matter whether the technique of inducing recall was used for therapeutic purposes or not, the rules for admissibility were the same. See paragraph 27 of the Prosecution Guidelines of the NSW DPP at [28-25,135] with respect to evidence obtained by hypnosis or EMDR. [8-s 61I.48] Evidence of medical examination of complainant Evidence of the medical examination of the complainant that is neutral, in that it neither supports nor detracts from the complaint should not normally require the attendance of the medical practitioner as a witness: R

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s 61I

CRIMES ACT 1900 (NSW) — PART 3

[8-s 61I.65]

v Dann [2000] NSWCCA 185; BC200002589; R v ELD [2004] NSWCCA 219; BC200404881. Such evidence is admissible in order that the jury should not speculate about the matter but should not be allowed to be given in a form that appears to bolster the evidence of the complainant: R v Skaf [2004] NSWCCA 74; BC200401711 (withdrawn at request of the court); R v Gulliford (2004) 148 A Crim R 558; [2004] NSWCCA 338; BC200406455. Where a doctor expressed the opinion that sexual assault occurred, such opinion being substantially dependent upon the history given, it was held that the opinion was not admissible: R v Davis [2004] NSWCCA 298; BC200406330; (2004) 11 Crim LN 96 [1771]. [8-s 61I.50] Personal violence offence/domestic violence offence This offence (or an offence of attempting to commit this offence) is a “personal violence offence” as defined in s 4 of the Crimes (Domestic and Personal Violence) Act 2007 at [8-5015] and, when committed by a person against another person with whom the offender has or has had a domestic relationship, is a “domestic violence offence” as defined in s 11 of that Act at [8-5240]. [8-s 61I.55] Incapacity of minors There is no longer any presumption that a child is incapable of having sexual intercourse with another person, see s 61S at [8-s 61S].

[8-s 61I.65] Sentence Non-consensual sexual intercourse is itself an extreme form of violence and will be treated seriously by the courts: R v Hartikainen (NSWCCA, Gleeson CJ, Meagher JA, Newman J, 8 June 1993, unreported, BC9301848). It would be an unusual conviction under s 61I that did not result in a sentence of full time imprisonment: R v Crisologo (1997) 99 A Crim R 178; (1998) 5 Crim LN 1 [792]. The use of a weapon such as a knife will result in a substantial increase in sentence: R v Horvath (NSWCCA, 6 February 1986, unreported, BC8601273). It is an aggravating factor where the offence occurs in the home of the victim: R v Weatherspoon (NSWCCA, 4 December 1992, unreported); R v Boatswain (NSWCCA, 15 December 1993, unreported). A sexual assault occurring as domestic violence is no less serious than an offence committed by a stranger: SC v R [2019] NSWCCA 25; BC201900783; 26(3) Crim LN [4103]. It was stated that “comparisons between cases for the purposes of deciding whether a category of particular conduct is worse than another category by reference to a generic description is an arid exercise which is inimical to the process of sentencing”. Domestic violence offences commonly involve a significant breach of trust and the complainant may be particularly vulnerable. The fact that the parties have been married has no relevance other than that an emotional crisis may be caused by the breakdown of a marriage: R v Hunter (NSWCCA, 12 August 1992, unreported); R v B (NSWCCA, 7 December 1994, unreported); (1995) 2 Crim LN 16 [350]; R v O’Grady (NSWCCA, Gleeson CJ, Hunt CJ and Sully J, 13 May 1997, unreported, BC9703122); (1997) 4 Crim LN 36 [696]. The fact that the complainant and the offender have had a previous sexual relationship cannot be taken into account as a mitigating factor: R v Grech (NSWCCA 11 December 1998, unreported). However the fact that the offender and the victim had been involved in a sexual relationship was a relevant matter in an assessment of the seriousness of the offence having regard to the added trauma to the victim of an offence committed by a stranger: NM v R [2012] NSWCCA 215; BC201208029; 19(11) Crim LN [3143], referring to Bellchambers v R [2011] NSWCCA 131; BC201104171, where the sexual relationship had continued after the offences, and R v Hendricks [2011] NSWCCA 203; BC201106989, where the relationship was relevant to the question of the concurrency of sentences. The nature of the sexual penetration is a relevant consideration and may be important but it is not the sole consideration in determining the seriousness of the offence which depends upon all the circumstances surrounding the sexual assault: Simpson v R [2014] NSWCCA 23; BC201401108; 21(4) Crim LN [3359], where it was stressed that there is no support for the proposition that digital penetration is by itself less serious than other forms of forced penetration, referring to Doe v R [2013] NSWCCA 248; BC201314493. See also R v King [2009] NSWCCA 117; BC200903121.

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Crimes

[8-s 61I.60] Effect of marriage The fact that the offender is married to the complainant is no bar to a prosecution for the offence or an attempt to commit the offence: see s 61T at [8-s 61T].

[8-s 61I.65]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 61I

The fact that the offender was himself sexually abused as a child and that history of child abuse has contributed to the commission of the offence can be taken into account as a matter of mitigation: R v AGR (NSWCCA, Mason P, Grove and James JJ, 24 July 1998, unreported, BC9803670); (1998) 5 Crim LN 63 [892]. [8-s 61I.70] Standard non-parole period provisions Where an offence under s 61I Crimes Act 1900 is committed on or after 1 February 2003, the offence is subject to the provisions of Div 1A of Pt 4 (ss 54A–54D) of the Crimes (Sentencing Procedure Act) 1999 at [5-s 54A] and following. A standard non-parole period of seven years is prescribed: Table following s 54D at [5-s 54D]. Division 1A of Pt 4 does not apply to detention under the Mental Health (Forensic Provisions) Act 1990: s 54D(1)(b) at [5-s 54D]. PROOF MATERIAL ON SECTION 61I For the text of s 61I, see [8-s 61I] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 61I.75] Form of indictment That the accused [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did have sexual intercourse with [name of victim] without the consent of [name of victim], knowing she was not consenting. [8-s 61I.80] Elements of offence The elements of the offence are — (1) The accused had sexual intercourse [8-s 61H] with the victim; and (2) that sexual intercourse [8-s 61H] occurred without the consent of the victim [8-s 61R]; and (3) the accused knew or was reckless [8-s 61R] to the lack of consent of the victim to the sexual intercourse [8-s 61I.5]. [8-s 61I.85] Alternative verdicts If the jury is not satisfied that an accused is guilty of an offence under this section, that jury may convict the accused of an offence under s 66C(3) or (4), s 78A or s 78B: see s 61 Q at [8–s 61Q]. The jury cannot convict the accused of a common assault as such an offence is not a common law alternative to an offence under this section: R v Cameron [1983] 2 NSWLR 66.

[8-s 61J] Aggravated sexual assault 61J (1) Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years. (2) In this section, circumstances of aggravation means circumstances in which: (a) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or (b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or (b1) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict grievous bodily harm or wounding on the alleged victim or any other person who is present or nearby, or (c) the alleged offender is in the company of another person or persons, or (d) the alleged victim is under the age of 16 years, or

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s 61J

CRIMES ACT 1900 (NSW) — PART 3

[8-s 61J.1]

(e) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (f) the alleged victim has a serious physical disability, or (g) the alleged victim has a cognitive impairment, or (h) the alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence, or (i) the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence. [subs (2) am Act 38 of 2007 s 3 and Sch 1[3], opn 15 Feb 2008; Act 74 of 2008 s 3 and Sch 1, opn 1 Dec 2008; Act 105 of 2008 s 3 and Sch 1, opn 1 Jan 2009; Act 87 of 2018 Sch 1 item 1.8[2], opn 28 Nov 2018]

(3) In this section, building has the same meaning as it does in Division 4 of Part 4. [subs (3) insrt Act 105 of 2008 s 3 and Sch 1, opn 1 Jan 2009; am Act 99 of 2009 Sch 2, opn 22 Feb 2010] [s 61J insrt Act 198 of 1989 s 3 and Sch 1[3], opn 17 Mar 1991]

COMMENTARY ON SECTION 61J Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Circumstances of aggravation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mens rea of the offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Complaint evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Corroboration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Attempts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Compellability of spouse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Evidence of medical examination of complainant . . . . . . . . . . . . . . . . Reading of depositions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Evidence of other sexual activity by or with the complainant . . . . . Personal violence offence/domestic violence offence . . . . . . . . . . . . . Incapacity of minors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Restrictions on disclosure of evidence . . . . . . . . . . . . . . . . . . . . . . . . . . Effect of marriage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Standard non-parole period provisions . . . . . . . . . . . . . . . . . . . . . . . . . . Referral to child protection agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alternative verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 61J.1] [8-s 61J.2] [8-s 61J.5] [8-s 61J.10] [8-s 61J.15] [8-s 61J.20] [8-s 61J.25] [8-s 61J.28] [8-s 61J.30] [8-s 61J.35] [8-s 61J.40] [8-s 61J.45] [8-s 61J.50] [8-s 61J.55] [8-s 61J.60] [8-s 61J.65] [8-s 61J.70] [8-s 61J.75] [8-s 61J.80]

[8-s 61J.1] Definitions As to “sexual intercourse” see s 61H at [8-s 61H]. As to “person under authority” see s 61H(2) and [8-s 61H.10]. “Immediately before or after” — Whether the matter of aggravation occurred “immediately before or after” the sexual intercourse is a matter of fact, the precise ambit of the words depending upon the facts and circumstances of the individual case, and even in borderline cases there is little to be gained by the trial judge instructing the jury in terms other than those used by the section and there may be a danger in doing so: R v Attard (NSWCCA, 20 April 1993, unreported, BC9301923). “In company of another person” — the meaning of the phrase in this section was extensively considered in FP v R [2012] NSWCCA 182; BC201206278; 19(9) Crim LN [3114] where it was held that the accused was in company with the offender even though not in the room at the time of the commission of the offence but where she had been present immediately before and immediately after the offence. It was held, at [126], that the jury were required to find the following matters proved to make out that allegation:

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Crimes

Editor’s note: For proof material on s 61J, see [27-16,650] behind the “27 — Informations and Indictments” guide card in Vol 4.

[8-s 61J.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 61J

1. that the alleged co-offender . . . had sexual intercourse with the complainant without her consent, knowing that she was not consenting; 2. that the [accused] applicant shared a common purpose that this would occur; and 3. that the [accused] applicant was physically present when it occurred, such presence being sufficiently proximate if (a) it afforded encouragement to the alleged co-offender or (b) it operated to intimidate or coerce the complainant. “Offensive weapon or instrument” — A weapon is offensive if it is used in an offensive manner at the time of the commission of the offence regardless of its purpose otherwise: R v RJS (1993) 31 NSWLR 649. As to “recklessly” see at [8-s 4A.5]. As to “actual bodily harm”, see at [8-s 59.5]. [8-s 61J.2] Circumstances of aggravation It is sufficient if the prosecution alleges and proves at least one particular circumstance of aggravation, but the sentencing court is entitled to take into account other circumstances of aggravation proved by the evidence. See R v Li (NSWCCA, Abadee and Studdert JJ, 9 July 1997, unreported, BC9703285); (1997) 4 Crim LN 46 [715]. Any circumstance of aggravation would have to be proved by the prosecution beyond reasonable doubt. An allegation in an indictment that an offence was committed in a circumstance of aggravation should be in the form of words used to specify the matter of aggravation, so it was an error for an indictment to allege that the circumstance of aggravation was “that X occasioned actual bodily harm to [the complainant]” whereas the relevant circumstance of aggravation was that “X intentionally or recklessly inflicts actual bodily harm” so that there was a miscarriage of justice where the jury were directed in terms of the indictment and not in terms of the offence as set out in the section: MM v R [2018] NSWCCA 158; BC201806669; 25(8) Crim LN [4011]. [8-s 61J.5] Mens rea of the offence [8-s 61J.10] Complaint evidence [8-s 61J.15] Corroboration [8-s 61J.20] Attempts

See at [8-s 61I.5]. See at [8-s 61I.10].

See at [8-s 61I.15].

See at [8-s 61I.20].

[8-s 61J.25] Compellability of spouse Where the offence was committed upon a child under the age of 18 years, the spouse of the accused is a compellable to give evidence at the hearing of the offence: see at [2-s 279]. [8-s 61J.28] Evidence of medical examination of complainant As to the relevance of neutral evidence arising from an emanation of the complainant see at [8-s 61I.48]. [8-s 61J.30] Reading of depositions In certain cases depositions of evidence may be read in committal proceedings: see at [2-s 288]. [8-s 61J.35] Evidence of other sexual activity by or with the complainant Evidence of the sexual reputation of the complainant is inadmissible and there are restrictions on the admissibility of evidence relating to the complainant’s sexual experience, see at [2-s 293]. However evidence of other sexual activity between the complainant and the accused may be admissible as an exception under s 293(4) or as evidence of relationship, see at [3-s 97.10] and generally (1997) 4 Crim LN 22 [679]. [8-s 61J.40] Personal violence offence/domestic violence offence This offence (or an offence of attempting to commit this offence) is a “personal violence offence” as defined in s 4 of the Crimes (Domestic and Personal Violence) Act 2007 at [8-5015] and, when committed by a person against another person with whom the offender has or has had a domestic relationship, is a “domestic violence offence” as defined in s 11 of that Act at [8-5240].

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s 61J

CRIMES ACT 1900 (NSW) — PART 3

[27-16,660.1]

[8-s 61J.45] Incapacity of minors There is no longer any presumption that a child is incapable of having sexual intercourse with another person, see s 61S at [8-s 61S]. [8-s 61J.50] Restrictions on disclosure of evidence As the offence is a prescribed sexual offence under s 3 of the Criminal Procedure Act, proceedings may be held in camera, see at [2-s 291]. The court may make a suppression order or non-publication order upon a number of grounds, including the avoidance of undue distress or embarrassment to a party to, or witness in, criminal proceedings involving offences of a sexual nature (including an act of indecency): s 8 Court Suppression and Non-publication Orders Act 2010 at [29-9130]. Section 578A of the Crimes Act 1900 at [8-s 578A] prohibits the publication of any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant. There are also restrictions on the disclosure of sexual assault communications under Pt 5 of the Criminal Procedure Act, see at [2-s 290] and following.

[8-s 61J.60] Standard non-parole period provisions Where an offence under s 61J Crimes Act 1900 is committed on or after 1 February 2003, the offence is subject to the provisions of Div 1A of Pt 4 (ss 54A–54D) of the Crimes (Sentencing Procedure Act) 1999 at [5-s 54A] and following. A standard non-parole period of 10 years is prescribed: Table following s 54D at [5-s 54D]. Division 1A of Pt 4 does not apply to detention under the Mental Health (Forensic Provisions) Act 1990: s 54D(1)(b) at [5-s 54D]. [8-s 61J.65] Referral to child protection agency The court has power to refer a person convicted of an offence where the child is under the authority of the offender to appropriate child protection agency: see [8-s 80AA]. PROOF MATERIAL ON SECTION 61J For the text of s 61J, see s 61J behind the “8 – Crimes Act” guide card in Vol 1. [8-s 61J.70] Form of indictment That the accused [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did have sexual intercourse with [name of victim], without the consent of [name of victim], knowing she was not consenting and/when [outline the circumstance or circumstances of aggravation alleged]. [8-s 61J.75] Elements of offence The elements of the offence are — (1) The accused had sexual intercourse [8-s 61H] with the victim; and (2) that sexual intercourse [8-s 61H] occurred without the consent of the victim [8-s 61R]; and (3) the accused knew or was reckless [8-s 61R] to the lack of consent of the victim to the sexual intercourse [8-s 61I.5]; and (4) that the sexual intercourse [8-s 61H] occurred in a circumstance or circumstances of aggravation. [8-s 61J.80] Alternative verdict

If a jury is not satisfied on the question of the existence of a circumstance of aggravation, that jury may convict the accused of an offence under s 61I: see s 61Q(1) at [8-s 61Q]. [27-16,660.1]

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Crimes

[8-s 61J.55] Effect of marriage The fact that the offender is married to the complainant is no bar to a prosecution for the offence or an attempt to commit the offence: see s 61T at [8-s 61T].

[27-16,660.5]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 61J

If a jury is not satisfied that the accused is guilty of an offence under this section, but is satisfied on the evidence that the accused is guilty of an offence under ss 66A, 66C, 78A or 78B, then that jury may find the accused not guilty of the offence charged, but guilty of the latter offence: see s 61Q at [8-s 61Q]. [27-16,660.5]

[8-s 61JA] Aggravated sexual assault in company 61JA (1) A person: (a) who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse, and (b) who is in the company of another person or persons, and (c) who: (i) at the time of, or immediately before or after, the commission of the offence, intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or (ii) at the time of, or immediately before or after, the commission of the offence, threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or (iii) deprives the alleged victim of his or her liberty for a period before or after the commission of the offence, is liable to imprisonment for life. [subs (1) am Act 38 of 2007 s 3 and Sch 1[3], opn 15 Feb 2008]

(2) A person sentenced to imprisonment for life for an offence under this section is to serve that sentence for the term of the person’s natural life. (3) Nothing in this section affects the operation of section 21 of the Crimes (Sentencing Procedure) Act 1999 (which authorises the passing of a lesser sentence than imprisonment for life). (4) Nothing in this section affects the prerogative of mercy. [s 61JA insrt Act 62 of 2001 s 3 and Sch 1[2], opn 1 Oct 2001] Editor’s note: For proof material on s 61JA, see [27-16,670] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 61JA Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Standard non-parole period provisions . . . . . . . . . . . . . . . . . . . . . . . . . . Compellability of spouse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Reading of depositions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Restrictions on disclosure of evidence . . . . . . . . . . . . . . . . . . . . . . . . . . Evidence of other sexual activity by or with the complainant . . . . . Standard non-parole period provisions . . . . . . . . . . . . . . . . . . . . . . . . . . Referral to child protection agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Personal violence offence/domestic violence offence . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inflict actual bodily harm — s 61JA(1)(c)(i) . . . . . . . . . . . . . . . . . Threaten to inflict actual bodily harm — s 61JA(1)(c)(ii) . . . . . Deprive victim of his/her liberty — s 61JA(1)(c)(iii) . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[8-s 61JA.1] [8-s 61JA.5] [8-s 61JA.10] [8-s 61JA.15] [8-s 61JA.20] [8-s 61JA.25] [8-s 61JA.30] [8-s 61JA.35] [8-s 61JA.40] [8-s 61JA.45] [8-s 61JA.50] [8-s 61JA.55] [8-s 61JA.60] [8-s 61JA.65]

s 61JA

CRIMES ACT 1900 (NSW) — PART 3

Inflict actual bodily harm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Threaten to inflict actual bodily harm . . . . . . . . . . . . . . . . . . . . . . . Deprive victim of his/her liberty . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alternative verdicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 61JA.30] [8-s [8-s [8-s [8-s

61JA.70] 61JA.75] 61JA.80] 61JA.85]

[8-s 61JA.1] Definitions As to “sexual intercourse”, see s 61H at [8-s 61H]. As to “in the company of another person or persons”, see [8-s 61J.1]. As to “immediately before or after”, see [8-s 61J.1]. As to “recklessly” see at [8-s 4A.1]. As to “actual bodily harm”, see [8-s 59.5]. As to “offensive weapon”, see s 4 at [8-s 4].

[8-s 61JA.10] Compellability of spouse Where the offence was committed upon a child under the age of 18 years, the spouse of the accused is compellable to give evidence at the hearing of the offence: see at [2-s 279]. [8-s 61JA.15] Reading of depositions In certain cases depositions of evidence may be read in committal proceedings: see at [2-s 288]. [8-s 61JA.20] Restrictions on disclosure of evidence As the offence is a prescribed sexual offence under s 3 of the Criminal Procedure Act, proceedings may be held in camera, see at [2-s 291]. The court may make a suppression order or non-publication order upon a number of grounds, including the avoidance of undue distress or embarrassment to a party to, or witness in, criminal proceedings involving offences of a sexual nature (including an act of indecency): s 8 Court Suppression and Non-publication Orders Act 2010 at [29-9130]. Section 578A of the Crimes Act 1900 at [8-s 578A] prohibits the publication of any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant. There are also restrictions on the disclosure of sexual assault communications under Part 5 of the Criminal Procedure Act, see at [2-s 290] and following. [8-s 61JA.25] Evidence of other sexual activity by or with the complainant Evidence of the sexual reputation of the complainant is inadmissible and there are restrictions on the admissibility of evidence relating to the complainant’s sexual experience, see at [2-s 293]. However evidence of other sexual activity between the complainant and the accused may be admissible as an exception under s 293(4) or as evidence of relationship, see at [3-s 97.10] and generally (1997) 4 Crim LN 22 [679]. [8-s 61JA.30] Standard non-parole period provisions Where an offence under s 61JA Crimes Act 1900 is committed on or after 1 February 2003, the offence is subject to the provisions of Div 1A of Pt 4 (ss 54A–54D) of the Crimes (Sentencing Procedure Act) 1999 at [5-s 54A] and following. A standard non-parole period of 15 years is prescribed: Table following s 54D at [5-s 54D]. Division 1A of Pt 4 does not apply to imprisonment for life or for another indeterminate period nor to detention under the Mental Health (Forensic Provisions) Act 1990: s 54D(1) at [5-s 54D].

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Crimes

[8-s 61JA.5] Standard non-parole period provisions Where an offence under s 61JA Crimes Act 1900 is committed on or after 1 February 2003, the offence is subject to the provisions of Div 1A of Pt 4 (ss 54A–54D) of the Crimes (Sentencing Procedure Act) 1999 at [5-s 54A] and following. A standard non-parole period of 15 years is prescribed: Table following s 54D at [5-s 54D]. Division 1A of Pt 4 does not apply to imprisonment for life or for another indeterminate period nor to detention under the Mental Health (Forensic Provisions) Act 1990: s 54D(1) at [5-s 54D].

[8-s 61JA.35]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 61JA

[8-s 61JA.35] Referral to child protection agency The court has power to refer a person convicted of an offence where the child is under the authority of the offender to appropriate child protection agency: see [8-s 80AA]. [8-s 61JA.40] Personal violence offence/domestic violence offence This offence (or an offence of attempting to commit this offence) is a “personal violence offence” as defined in s 4 of the Crimes (Domestic and Personal Violence) Act 2007 at [8-5015] and, when committed by a person against another person with whom the offender has or has had a domestic relationship, is a “domestic violence offence” as defined in s 11 of that Act at [8-5240]. PROOF MATERIAL ON SECTION 61JA For the text of s 61JA, see [8-s 61JA] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 61JA.45] Form of indictment [8-s 61JA.50] Inflict actual bodily harm — s 61JA(1)(c)(i) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales while in company with another person or persons had sexual intercourse with [name of victim], without his/her consent and knowing that he/she was not consenting and immediately before/at the time of/immediately after the sexual intercourse intentionally/recklessly inflicted actual bodily harm on him/her. Or, if the person on whom the accused is alleged to have inflicted actual bodily harm is different from the person on whom the sexual intercourse component of the offence is alleged to have been committed: That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales while in company with another person or persons had sexual intercourse with [name of victim], without his/her consent of [name of victim], knowing that he/she was not consenting and immediately before/at the time of/immediately after the sexual intercourse intentionally/recklessly inflicted actual bodily harm on [name of 2nd victim] who was present/nearby. [8-s 61JA.55] Threaten to inflict actual bodily harm — s 61JA(1)(c)(ii) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales while in company with another person or persons had sexual intercourse with [name of victim], without the consent of [name of victim], knowing that he/she was not consenting and immediately before/at the time of/immediately after the sexual intercourse threatened to inflict actual bodily harm on him/her by means of an offensive weapon/instrument being [description of weapon]. Or, if the person who the accused is alleged to have threatened to inflict actual bodily harm is different from the person on whom the sexual intercourse component of the offence is alleged to have been committed: That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales while in company with another person or persons had sexual intercourse with [name of victim], without the consent of [name of victim], knowing that he/she was not consenting and immediately before/at the time of/immediately after the sexual intercourse threatened to inflict actual bodily harm on [name of 2nd victim] who was present/nearby by means of an offensive weapon/instrument being [description of weapon]. [8-s 61JA.60] Deprive victim of his/her liberty — s 61JA(1)(c)(iii) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales while in company with another person or persons had sexual intercourse with [name of victim] without the consent of [name of victim], knowing he/she was not consenting and for a period before/after sexual intercourse deprived [name of victim] of his/her liberty. [8-s 61JA.65] Elements of offence

The elements of the offence are —

[8-s 61JA.70] Inflict actual bodily harm (1) The accused had sexual intercourse [8-s 61H] with the victim; and

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s 61K

CRIMES ACT 1900 (NSW) — PART 3

[8-s 61K]

(2) that sexual intercourse occurred without the consent of the victim [8-s

61R]; and (3) the accused knew or was reckless [8-s 61R] to the lack of consent of the victim

to the sexual intercourse [8-s 61I.5]; and (4) the accused was in the company of another person or persons[8-s 97.10]; and (5) immediately before, at the time of, or immediately after [8-s 98.5] the sexual

intercourse, the accused inflicted actual bodily harm [8-s 59.5] upon that person or any other person who was present or nearby; and (6) this infliction of actual bodily harm was done maliciously [8-s 5]. [8-s 61JA.75] Threaten to inflict actual bodily harm (1) The accused had sexual intercourse [8-s 61H] with the victim; and (2) that sexual intercourse occurred without the consent of the victim [8-s

61R]; and (3) the accused knew or was reckless [8-s 61R] to the lack of consent of the victim

to the sexual intercourse [8-s 61I.5]; and intercourse the accused threatened to inflict [8-s 61K.5] actual bodily harm [8-s 59.5] upon that person or any other person who was present or nearby; and (6) that threat was made by means of an offensive weapon or instrument [8-s 61K.5]. [8-s 61JA.80] Deprive victim of his/her liberty (1) The accused had sexual intercourse [8-s 61H] with the victim; and (2) that sexual intercourse occurred without the consent of the victim [8-s

61R]; and (3) the accused knew or was reckless [8-s 61R] to the lack of consent of the victim

to the sexual intercourse [8-s 61I.5]; and (4) the accused was in the company of another person or persons [8-s 97.10]; and (5) for a period before or after the sexual intercourse the accused deprived the

victim of his/her liberty. [8-s 61JA.85] Alternative verdicts If a jury is not satisfied that the accused is guilty of an offence under this section, but is satisfied on the evidence that the accused is guilty of an offence under ss 61I, 61J, 66A, or s 66C, then that jury may find the accused not guilty of the offence charged, but guilty of the latter offence: see s 61Q at [8-s 61Q].

[8-s 61K] Assault with intent to have sexual intercourse 61K Any person who, with intent to have sexual intercourse with another person: (a) intentionally or recklessly inflicts actual bodily harm on the other person or a third person who is present or nearby, or (b) threatens to inflict actual bodily harm on the other person or a third person who is present or nearby by means of an offensive weapon or instrument, is liable to imprisonment for 20 years. [s 61K insrt Act 198 of 1989 s 3 and Sch 1(3); am Act 38 of 2007 s 3 and Sch 1[3], opn 15 Feb 2008] Editor’s note: For proof material on s 61K, see [27-16,700] behind the “27 – Informations and Indictments” guide card in Vol 4.

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Crimes

(4) the accused was in the company of another person or persons [8-s 97.10]; and (5) immediately before, at the time of, or immediately [8-s 98.5] after the sexual

[8-s 61K.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 61K

COMMENTARY ON SECTION 61K Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 61K.1] “By means of an offensive weapon” . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 61K.5] Complaint evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 61K.10] Corroboration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 61K.15] Attempts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 61K.20] Compellability of spouse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 61K.25] Reading of depositions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 61K.30] Evidence of other sexual activity by or with the complainant . . . . . [8-s 61K.35] Evidence of medical examination of complainant . . . . . . . . . . . . . . . . [8-s 61K.40] Incapacity of minors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 61K.45] Restrictions on disclosure of evidence . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 61K.50] Effect of marriage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 61K.55] Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 61K.60] Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 61K.65] Referral to child protection agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 61K.70] Personal violence offence/domestic violence offence . . . . . . . . . . . . . [8-s 61K.75] Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 61K.80] Inflicting actual bodily harm — s 61K(a) . . . . . . . . . . . . . . . . . . . . [8-s 61K.85] Threaten to inflict actual bodily harm — s 61K(b) . . . . . . . . . . . [8-s 61K.90] Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 61K.95] Inflicting actual bodily harm with intent . . . . . . . . . . . . . . . . . . . . . [8-s 61K.100] Threaten to inflict actual bodily harm with intent . . . . . . . . . . . . . [8-s 61K.105] [8-s 61K.1] Definitions As to “sexual intercourse” see at [8-s 61H]. As to “recklessly” see [8-s 4A]. As to “actual bodily harm” see at [8-s 59.5]. As to “offensive weapon” see at [8-s 4]. [8-s 61K.5] “By means of an offensive weapon” These words modify the words “to inflict” and not “threaten” in s 61K and, therefore, there needs to be no actual weapon produced to constitute the threat: R v Tout (1987) 11 NSWLR 251. [8-s 61K.10] Complaint evidence [8-s 61K.15] Corroboration [8-s 61K.20] Attempts

See at [8-s 61I.10].

See at [8-s 61I.15].

See at [8-s 61I.20].

[8-s 61K.25] Compellability of spouse Where the offence was committed upon a child under the age of 18 years, the spouse of the accused is compellable to give evidence at the hearing of the offence: see at [2-s 279]. [8-s 61K.30] Reading of depositions In certain cases depositions of evidence may be read in committal proceedings: see at [2-s 288]. [8-s 61K.35] Evidence of other sexual activity by or with the complainant Evidence of the sexual reputation of the complainant is inadmissible and there are restrictions on the admissibility of evidence relating to the complainant’s sexual experience, see at [2-s 293]. However evidence of other sexual activity between the complainant and the accused may be admissible as an exception under s 293(4) or as evidence of relationship, see at [3-s 97.10] and generally (1997) 4 Crim LN 22 [679]. [8-s 61K.40] Evidence of medical examination of complainant As to the relevance of neutral evidence arising from an emanation of the complainant see at [8-s 61I.48]. [8-s 61K.45] Incapacity of minors There is no longer any presumption that a child is incapable of having sexual intercourse with another person, see s 61S at [8-s 61S].

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s 61K

CRIMES ACT 1900 (NSW) — PART 3

[8-s 61K.90]

[8-s 61K.50] Restrictions on disclosure of evidence As the offence is a prescribed sexual offence under s 3 of the Criminal Procedure Act, proceedings may be held in camera, see at [2-s 291]. The court may make a suppression order or non-publication order upon a number of grounds, including the avoidance of undue distress or embarrassment to a party to, or witness in, criminal proceedings involving offences of a sexual nature (including an act of indecency): s 8 Court Suppression and Non-publication Orders Act 2010 at [29-9130]. Section 578A of the Crimes Act 1900 at [8-s 578A] prohibits the publication of any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant. There are also restrictions on the disclosure of sexual assault communications under Part 5 of the Criminal Procedure Act, see at [2-s 290] and following. [8-s 61K.55] Effect of marriage The fact that the offender is married to the complainant is no bar to a prosecution for the offence or an attempt to commit the offence: see s 61T at [8-s 61T].

[8-s 61K.65] Intoxication An offence under this section which is alleged to have been committed after 16 August 1996 is an offence of specific intent for the purpose of Pt 11A Crimes Act 1900 relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. [8-s 61K.70] Referral to child protection agency The court has power to refer a person convicted of an offence where the child is under the authority of the offender to appropriate child protection agency: see [8-s 80AA]. [8-s 61K.75] Personal violence offence/domestic violence offence This offence (or an offence of attempting to commit this offence) is a “personal violence offence” as defined in s 4 of the Crimes (Domestic and Personal Violence) Act 2007 at [8-5015] and, when committed by a person against another person with whom the offender has or has had a domestic relationship, is a “domestic violence offence” as defined in s 11 of that Act at [8-5240]. PROOF MATERIAL ON SECTION 61K For the text of s 61K, see [8-s 61K] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 61K.80] Form of indictment [8-s 61K.85] Inflicting actual bodily harm — s 61K(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did, with intent to have sexual intercourse with [name of victim], intentionally/recklessly inflict actual bodily harm on him/her. Or, if the person who the accused intended to have sexual intercourse with is different from the person on whom the actual bodily harm was inflicted: That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did, with intent to have sexual intercourse with [name of person], intentionally/recklessly inflict actual bodily harm on [name of victim] who was present/nearby. [8-s 61K.90] Threaten to inflict actual bodily harm — s 61K(b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did, with intent to have sexual intercourse with [name of victim], threaten to inflict actual bodily harm on him/her with an offensive weapon/instrument being [description of weapon]. Or, if the person who the accused intended to have sexual intercourse with is different from the person on whom the accused threatened to inflict actual bodily harm:

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[8-s 61K.60] Sentence Where a person is convicted of an offence under this section and an offence under s 61I or s 61J and the convictions arose substantially out of the one set of circumstances, the sentencing court must take that into consideration: s 61U.

[8-s 61K.90]

s 61K

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did, with intent to have sexual intercourse with [name of person], threaten to inflict actual bodily harm with an offensive weapon/instrument being [description of weapon] on [name of victim] who was present/nearby. [8-s 61K.95] Elements of offence

The elements of the offence are —

[8-s 61K.100] Inflicting actual bodily harm with intent (1) The accused intended [6-500] to have sexual intercourse [8-s 61H] with some

person; and (2) at that time, the accused intentionally or recklessly [8-s 4A.1] inflicted actual

bodily harm [8-s 59.5] upon that person or another person who was present or nearby. [8-s 61K.105] Threaten to inflict actual bodily harm with intent (1) The accused intended [6-500] to have sexual intercourse [8-s 61H] with some

person; and (2) the accused threatened to inflict [8-s 61K.5] actual bodily harm [8-s 59.5] upon

that person or another person who was present or nearby; and (3) that threat was made by means of offensive weapon or instrument [8-s 61K.5].

[8-s 61KA] Offender married to victim 61KA The fact that a person is married to a person: (a) upon whom an offence under section 61I, 61J, 61JA or 61K is alleged to have been committed is no bar to the firstmentioned person being convicted of the offence, or (b) upon whom an offence under any of those sections is alleged to have been attempted is no bar to the firstmentioned person being convicted of the attempt. [s 61T insrt Act 198 of 1989 s 3 and Sch 1[3], opn 17 Mar 1991; am Act 62 of 2001 s 3 and Sch 1[7], opn 1 Oct 2001; renum as s 61KA Act 33 of 2018 Sch 1[10], opn 1 Dec 2018]

COMMENTARY ON SECTION 61KA Referral to child protection agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 61KA.1]

[8-s 61KA.1] Referral to child protection agency The court has power to refer a person convicted of an offence where the child is under the authority of the offender to appropriate child protection agency: see [8-s 80AA]

[8-s 61KB] Circumstances of certain sexual offences to be considered in passing sentence 61KB Where a person is convicted of: (a) both an offence under section 61I and an offence under section 61K, or (b) both an offence under section 61J and an offence under section 61K, or (c) both an offence under section 61JA and an offence under section 61K, whether at the same time or at different times, the Judge passing sentence on the person in respect of the two convictions or the later of the two convictions is required, if it appears that the two offences arose substantially out of the one set of circumstances, to take that fact into account in passing sentence. [s 61U insrt Act 198 of 1989 s 3 and Sch 1[3], opn 17 Mar 1991; am Act 62 of 2001 s 3 and Sch 1[8], opn 1 Oct 2001; renum as s 61KB Act 33 of 2018 Sch 1[10], opn 1 Dec 2018]

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s 61M

CRIMES ACT 1900 (NSW) — PART 3

COMMENTARY ON SECTION 61KB Referral to child protection agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 61M.10]

[8-s 61KB.1]

[8-s 61KB.1] Referral to child protection agency The court has power to refer a person convicted of an offence where the child is under the authority of the offender to appropriate child protection agency: see [8-s 80AA]

[8-s 61L] Indecent assault 61L

[s 61L rep Act 33 of 2018 Sch 1[7], opn 1 Dec 2018]

Editor’s note: for annotations on repealed s 61L see [8A-REP s 61L].

PROOF MATERIAL ON SECTION 61L For the text of s 61L, see [8–s 61L] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 61L.5] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did assault [name of victim] and that he/she [name of accused] immediately before/at the time of/immediately after such assault did commit an act of indecency on/in the presence of [name of victim].

[8-s 61L.15] Elements of offence The elements of the offence are — (1) The accused assaulted [8-s 61L.10] the victim; and (2) that assault was accompanied by an act of indecency [8-s 61N.5] on or in the

presence of the victim which occurred before, after or at the time of the assault. The Crown need not prove a separate assault if the act of indecency was committed on the victim, however see [8-s 61N.5]. [8-s 61L.20] Statutory defence The consent of the complainant is no defence to a charge under this section if the complainant was under the age of 16 years at the time the offence is alleged to have been committed: see s 77 at [8-s 77]. Prior to s 77(2) being repealed, in certain circumstances, a defence was available to the accused if in fact the complainant did consent and the complainant was aged between 14 and 16 years. This continues to apply as a defence for offences committed before its repeal: see repealed s 77(2) at [8A-REP s 77.5] and Crimes Amendment (Sexual Offences) Act 2003 No 9 s 3 and Sch 1[49].

[8-s 61M] Aggravated indecent assault 61M [s 61M insrt Act 198 of 1989 s 3 and Sch 1[3], opn 17 Mar 1991; rep Act 33 of 2018 Sch 1[7], opn 1 Dec 2018] Editor’s note: for annotations on repealed s 61M see [8A-REP s 61M].

PROOF MATERIAL ON SECTION 61M For the text of s 61M, see [8-s 61M] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 61M.5] Form of indictment [8-s 61M.10] Offender in company — s 61M(1) and (3)(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales while in company with another person/persons did assault [name of victim] and immediately before/at the time of/immediately after that assault committed an act of indecency on/in the presence of [name of victim].

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Crimes

[8-s 61L.10] Necessary averments It is not necessary to state the mode of the indecent assault: see Sch 3 cl 14 of the Criminal Procedure Act 1986 at [2-Sch 3].

[8-s 61M.15]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 61M

[8-s 61M.15] Other circumstances of aggravation (relating to type of victim) — s 61M(1) and (3)(b)–(e) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did assault [name of victim] and immediately before/at the time of/immediately after that assault committed an act of indecency on/in the presence of [name of victim], he/she being then under the age of 16 years/being a person under the authority of [name of accused]/being a person with a serious physical/intellectual disability. [8-s 61M.20] Child under 16 years — s 61M(2) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did assault [name of victim] and immediately before/at the time of/immediately after such assault committed an act of indecency on/in the presence of [name of victim], a child then under the age of 16 years, namely [x] years. [8-s 61M.25] Necessary averments It is not necessary to state the mode of the indecent assault: see Sch 3 cl 14 of the Criminal Procedure Act 1986 at [2-Sch 3]. [8-s 61M.30] Elements of offence The elements of the offence are — (1) The accused assaulted [8-s 61L.10] the victim; and (2) that assault was accompanied by an act of indecency [8-s 61N.5] on or in the presence of the victim which occurred before, after or at the time of the assault; and (3) the assault occurred in a circumstance or circumstances of aggravation alleged. The Crown need not prove a separate assault if the act of indecency was committed on the victim — however see [8-s 61N.5]. [8-s 61M.35] Statutory defence With respect to s 61M(2), the prosecution need not prove that the complainant was not consenting as the consent of the complainant is no defence to a charge under this section: see s 77 at [8-s 77]. The consent of the complainant is no defence to a charge under s 61M(1) if the complainant was under the age of 16 years at the time the offence is alleged to have been committed: see s 77 at [8-s 77]. Prior to s 77(2) being repealed, in certain circumstances, a defence was available to the accused if in fact the complainant did consent and the complainant was aged between 14 and 16 years. This continues to apply as a defence for offences committed before its repeal: see repealed s 77(2) at [8A-REP s 77.5] and Crimes Amendment (Sexual Offences) Act 2003 No 9 s 3 and Sch 1[49]. [8-s 61M.40] Alternative verdict If the jury is not satisfied of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under s 61L it may find the accused guilty of the latter offence: see s 61Q(1) at [8-s 61Q].

[8-s 61N] Act of indecency 61N [s 61N insrt Act 198 of 1989 s 3 and Sch 1[3]; Act 2 of 1992 s 3 and Sch 1, opn 3 May 1995; rep Act 33 of 2018 Sch 1[7], opn 1 Dec 2018] Editor’s note: for annotations on repealed s 61N see [8A-REP s 61N].

PROOF MATERIAL ON SECTION 61N For the text of s 61N, see [8-s 61N] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 61N.5] Form of indictment [8-s 61N.10] Committing act of indecency with/towards person under 16 years — s 61N(1) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales committed an act of indecency with/towards [name of victim], a person under the age of 16 years, namely [x] years.

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s 61O

CRIMES ACT 1900 (NSW) — PART 3

[8-s 61O.15]

[8-s 61N.15] Inciting person under 16 years to act of indecency with/towards accused or another person — s 61N(1) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales incited [name of child], being a person under the age of 16 years, namely [x] years, to commit an act of indecency with/towards [name of accused/name of third party]. [8-s 61N.20] Committing act of indecency with/towards person of/above 16 years — s 61N(2) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did commit an act of indecency with/towards [name of victim], a person of, or above, the age of 16 years, namely [x] years. [8-s 61N.25] Inciting person of/above 16 years to act of indecency with/towards accused or another person — s 61N(2) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did incite [name of child], being a person of, or above, the age of 16 years, namely [x] years, to commit an act of indecency with/towards [name of accused/name of third party]. The elements of the offence are —

[8-s 61N.35] Committing act of indecency (1) The accused committed an act of indecency [8-s 61N.5] with/towards the victim; and (2) the victim was under the age of 16 years (s 61N(1))/of, or above, the age of 16 years (s 61N(2)). In relation to a charge under s 61N(1) the prosecution need not prove that the complainant was not consenting as the consent of the complainant is no defence to a charge under this section: see s 77 at [8-s 77]. [8-s 61N.40] Inciting act of indecency (1) The accused incited a person under the age of 16 years (s 61N(1))/of, or above, the age of 16 years (s 61N(2)), to an act of indecency [8-s 61N.1]; and (2) the act of indecency s 5 involved either the accused or a third person. In relation to a charge under s 61N(1) the prosecution need not prove that the complainant was not consenting as the consent of the complainant is no defence to a charge under this section: see s 77 at [8-s 77].

[8-s 61O] Aggravated act of indecency 61O [s 61O insrt Act 198 of 1989 s 3 and Sch 1[3], opn 17 Mar 1991; rep Act 33 of 2018 Sch 1[7], opn 1 Dec 2018] Editor’s note: for annotations on repealed s 61O see [8A-REP s 61O].

PROOF MATERIAL ON SECTION 61O For the text of s 61O, see [8-s 61O] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 61O.5] Form of indictment [8-s 61O.10] Committing act of indecency with/towards person under 16 years in company — s 61O(1) and (3)(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, while in company of another person or persons, committed an act of indecency with/towards [name of victim], a person under the age of 16 years, namely [x] years. [8-s 61O.15] Committing other aggravated act of indecency with/towards person under 16 years — s 61O(1) and (3)(b)–(d) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales committed an act of indecency with/towards [name of victim], a person then under the age of 16 years, namely [x] years and who was under the authority of [name of accused]/who had a serious physical disability/intellectual disability.

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Crimes

[8-s 61N.30] Elements of offence

[8-s 61O.20]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 61O

[8-s 61O.20] Inciting person under 16 years to act of indecency with/towards accused or another person, in company — s 61O(1) and (3)(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, while in company with another person or persons, incited [name of child], being a person then under the age of 16 years, namely [x] years, to commit an act of indecency with/towards [name of accused/name of third party]. [8-s 61O.25] Inciting person under 16 years to act of indecency with/towards accused or another person, in other cirumstances of aggravation — s 61O(1) and (3)(b)–(d) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales incited [name of child], being a person under the age of 16 years, namely [x] years and who was under the authority of [name of accused]/who had a serious physical disability/intellectual disability, to commit an act of indecency with/towards [name of accused/name of third party]. [8-s 61O.30] Committing act of indecency with/towards person of/above 16 years in company — s 61O(1A) and (3)(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, while in company of another person or persons, committed an act of indecency with/towards [name of victim], a person of, or above, the age of 16 years, namely [x] years. [8-s 61O.35] Committing other aggraveted act of indecency with/towards person of/above 16 years — s 61O(1A) and (3)(b)–(d) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales committed an act of indecency with/towards [name of victim], a person then of, or above, the age of 16 years, namely [x] years and who was under the authority of [name of accused]/who had a serious physical disability/intellectual disability. [8-s 61O.40] Inciting person of/above 16 years to act of indecency with/towards accused or another person, in company — s 61O(1A) and (3)(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, while in company with another person or persons, incited [name of child], being a person of, or above, the age of 16 years, namely [x] years, to commit an act of indecency with/towards [name of accused/name of third party]. [8-s 61O.45] Inciting person of/above 16 years to act of indecency with/towards accused or another person, in other cirumstances of aggravation — s 61O(1A) and (3)(b)–(d) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales incited [name of child], being a person then of, or above, the age of 16 years, namely [x] years and who was under the authority of [name of accused]/who had a serious physical disability/intellectual disability, to commit an act of indecency with/towards [name of accused/name of third party]. [8-s 61O.50] Committing act of indecency with/towards person under 10 years — s 61O(2) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales committed an act of indecency with/towards [name of victim], a child then under the age of ten years, namely [x] years. [8-s 61O.55] Inciting person under 10 years to an act of indecency with/towards accused or another person — s 61O(2) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales incited [name of child], a child then under the age of ten years, namely [x] years, to commit an act of indecency with/towards [name of accused/name of third party]. [8-s 61O.60] Committing act of indecency with/towards person under 16 years for the purposes of child abuse material — s 61O(2A) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, did commit an act of indecency with/towards [name of victim], a person then under the age of 16 years, namely [x] years, knowing the act was being filmed for the purposes of the production of child abuse material.

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s 61KC

CRIMES ACT 1900 (NSW) — PART 3

[8-s 61KC]

[8-s 61O.65] Inciting act of indecency with/towards person under 16 years for the purposes of child abuse material – s 61O(2A) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, did incite [name of victim], a person then under the age of 16 years, namely [x] years, to an act of indecency with/towards [name of accused/name of third party], knowing the act was being filmed for the purposes of the production of child abuse material. [8-s 61O.70] Elements of offence

The elements of the offence are —

[8-s 61O.75] Committing aggravated act of indecency (1) The accused committed an act of indecency [8-s 61N.5] with or towards the victim; and (2) either: (i) the victim was under the age of 10 years; or (ii) the victim was under the age of 16 years (s 61O(1))/of, or above, the age of 16 years (s 61O(1A)) and the act of indecency [8-s 61N.5] occurred in a circumstance or circumstances of aggravation. In relation to a charge under s 61O(1) or (2) the prosecution need not prove that the complainant was not consenting as the consent of the complainant is no defence to a charge under this section: see s 77 at [8–s 77].

the age of 16 years (s 61O(1A)), to an act of indecency [8-s 61N.5]; and (2) the act of indecency [8-s 61N.5] involved either the accused or a third person;

and (3) either: (i) the victim was under the age of 10 years; or (ii) the act of indecency [8-s 61N.5] occurred in a circumstance or circumstances of aggravation. In relation to a charge under s 61O(1) or (2) the prosecution need not prove that the complainant was not consenting as the consent of the complainant is no defence to a charge under this section: see s 77 at [8–s 77]. [8-s 61O.85] Act of indecency with/towards person under 16 years for the purposes of child abuse material (1) The accused: (a) committed an act of indecency [8-s 61N.5] with or towards the victim; or (b) incited a person under the age of 16 years to an act of indecency with or towards the accused or another person; and (2) the accused knew [6-515] that the act of indecency [8-s 61N.5] was being

filmed (s 61O(4)(b)) for the purposes of the production of child abuse material (s 61O(4)(a)). [8-s 61O.90] Alternative verdict If a jury is not satisfied as to the question of aggravation, they may find the accused guilty of an offence under s 61N: see s 61Q at [8-s 61Q]. If a jury is not satisfied that the accused is guilty of the offence charged under s 61O(2A) they may find the accused guilty of an offence under s 61O(2) or s 61N: see s 61Q(6) at [8-s 61Q].

Subdivision 3 — Sexual touching [Subdiv 3 insrt Act 33 of 2018 Sch 1[7], opn 1 Dec 2018]

[8-s 61KC] Sexual touching 61KC

Any person (the alleged offender) who without the consent of another

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Crimes

[8-s 61O.80] Inciting act of indecency in circumstances of aggravation (1) The accused incited a person under the age of 16 years (s 61O(1))/of, or above,

[8-s 61KC]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 61KC

person (the alleged victim) and knowing that the alleged victim does not consent intentionally: (a) sexually touches the alleged victim, or (b) incites the alleged victim to sexually touch the alleged offender, or (c) incites a third person to sexually touch the alleged victim, or (d) incites the alleged victim to sexually touch a third person, is guilty of an offence. Maximum penalty: Imprisonment for 5 years.

[8-s 61KD] Aggravated sexual touching 61KD (1) Any person (the alleged offender) who without the consent of another person (the alleged victim) and knowing that the alleged victim does not consent and in circumstances of aggravation intentionally: (a) sexually touches the alleged victim, or (b) incites the alleged victim to sexually touch the alleged offender, or (c) incites a third person to sexually touch the alleged victim, or (d) incites the alleged victim to sexually touch a third person, is guilty of an offence. Maximum penalty: Imprisonment for 7 years. (2) In this section, circumstances of aggravation means circumstances in which: (a) the alleged offender is in the company of another person or persons, or (b) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (c) the alleged victim has a serious physical disability, or (d) the alleged victim has a cognitive impairment. Subdivision 4 — Sexual act [Subdiv 4 insrt Act 33 of 2018 Sch 1[7], opn 1 Dec 2018]

[8-s 61KE] Sexual act 61KE Any person (the alleged offender) who without the consent of another person (the alleged victim) and knowing that the alleged victim does not consent intentionally: (a) carries out a sexual act with or towards the alleged victim, or (b) incites the alleged victim to carry out a sexual act with or towards the alleged offender, or (c) incites a third person to carry out a sexual act with or towards the alleged victim, or (d) incites the alleged victim to carry out a sexual act with or towards a third person, is guilty of an offence. Maximum penalty: Imprisonment for 18 months.

[8-s 61KF] Aggravated sexual act 61KF (1) Any person (the alleged offender) who without the consent of another person (the alleged victim) and knowing that the alleged victim does not consent and in circumstances of aggravation intentionally:

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s 66A

CRIMES ACT 1900 (NSW) — PART 3

[8-s 66A]

(a) carries out a sexual act with or towards the alleged victim, or (b) incites the alleged victim to carry out a sexual act with or towards the alleged offender, or (c) incites a third person to carry out a sexual act with or towards the alleged victim, or (d) incites the alleged victim to carry out a sexual act with or towards a third person, is guilty of an offence. Maximum penalty: Imprisonment for 3 years. (2) In this section, circumstances of aggravation means circumstances in which: (a) the alleged offender is in the company of another person or persons, or (b) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (c) the alleged victim has a serious physical disability, or (d) the alleged victim has a cognitive impairment.

61P [s 61P insrt Act 198 of 1989 s 3 and Sch 1[3] opn 17 Mar 1991; am Act 62 of 2001 s 3 and Sch 1[3], opn 1 Oct 2001; rep Act 33 of 2018 Sch 1[8], opn 1 Dec 2018] Editor’s note: for annotations on repealed s 61P see [8A-REP s 61P].

PROOF MATERIAL ON SECTION 61P For the text of s 61P, see [8-s 61P] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 61P.5] Form of indictment The form of indictment outlined under s 61I–61O should be adapted to allege that the accused “did attempt to . . .” as appropriate. [8-s 61P.10] Elements of offence The elements of the offence are — (1) The accused intended [6-500] to commit the relevant offence [see elements

outlined above]; and (2) attempted [6-300] to commit that offence.

61R [s 61R rep Act 66 of 2007 s 3 and Sch 1[2], opn 1 Jan 2008] 62 [s 62 rep Act 9 of 2003 s 3 and Sch 1[5] opn 13 June 2003] 64–66 [s 64 renum Act 9 of 2003 s 3 and Sch 1[7] opn 13 June 2003] [s 65 rep Act 42 of 1981 s 4 and Sch 1(7) opn 14 July 1981] [s 65A rep Act 66 of 2007 s 3 and Sch 1[3], opn 1 Jan 2008] [s 66 rep Act 9 of 2003 s 3 and Sch 1[8], opn 13 June 2003]

Subdivision 5 — Children — sexual assault [Subdiv 5 heading insrt Act 33 of 2018 Sch 1[11], opn 1 Dec 2018]

[8-s 66A] Sexual intercourse — child under 10 66A (1) Any person who has sexual intercourse with a child who is under the age of 10 years is guilty of an offence. Maximum penalty: imprisonment for life. (2) A person sentenced to imprisonment for life for an offence under this section is to serve that sentence for the term of the person’s natural life.

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Crimes

[8-s 61P] Attempt to commit offence under sections 61I–61O

[8-s 66A]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 66A

(3) Nothing in this section affects the operation of section 21 of the Crimes (Sentencing Procedure) Act 1999 (which authorises the passing of a lesser sentence than imprisonment for life). (4) Nothing in this section affects the prerogative of mercy. [s 66A subst Act 13 of 2015 Sch 1[1], opn 29 June 2015] Editor’s note: Please see [8A-REP s 66A] for a prior version of this section.

COMMENTARY ON SECTION 66A Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Complaint evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Corroboration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Restrictions on disclosure of evidence . . . . . . . . . . . . . . . . . . . . . . . . . . Compellability of spouse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Reading of deposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Evidence of other sexual activity by or with the complainant . . . . . Incapacity of minors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Referral to child protection agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Personal violence offence/domestic violence offence . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 66A.1] [8-s 66A.5] [8-s 66A.10] [8-s 66A.15] [8-s 66A.20] [8-s 66A.25] [8-s 66A.30] [8-s 66A.35] [8-s 66A.40] [8-s 66A.45] [8-s 66A.50] [8-s 66A.55] [8-s 66A.60]

[8-s 66A.1] Definitions As to “sexual intercourse” see s 61H at [2-s 61H]. As to “in company with another person” see [8-s 61J.1]. As to “recklessly” see [8-s 4A]. As to “under the authority of another person” see [8-s 61H.10]. As to “offensive weapon” see [8-s 4]. As to “actual bodily harm” see [8-s 59.5]. [8-s 66A.5] Complaint evidence [8-s 66A.10] Corroboration

See at [8-s 61I.10].

See at [8-s 61I.15].

[8-s 66A.15] Restrictions on disclosure of evidence As the offence is a prescribed sexual offence under s 3 of the Criminal Procedure Act, proceedings may be held in camera, see at [2-s 291]. The court may make a suppression order or non-publication order upon a number of grounds, including the avoidance of undue distress or embarrassment to a party to, or witness in, criminal proceedings involving offences of a sexual nature (including an act of indecency): s 8 Court Suppression and Non-publication Orders Act 2010 at [29-9130]. Section 578A of the Crimes Act 1900 at [8-s 578A] prohibits the publication of any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant. There are also restrictions on the disclosure of sexual assault communications under Part 5 of the Criminal Procedure Act, see at [2-s 290] and following. [8-s 66A.20] Compellability of spouse Where the offence was committed upon a child under the age of 18 years, the spouse of the accused is compellable to give evidence at the hearing of the offence: see at [2-s 279]. [8-s 66A.25] Reading of deposition In certain cases depositions of evidence may be read in committal proceedings: see at [2-s 288]. [8-s 66A.30] Evidence of other sexual activity by or with the complainant Evidence of the sexual reputation of the complainant is inadmissible and there are restrictions on the admissibility of evidence relating to the complainant’s sexual experience, see at [2-s 293]. However evidence

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s 66A

CRIMES ACT 1900 (NSW) — PART 3

[8-s 66A.50]

of other sexual activity between the complainant and the accused may be admissible as an exception under s 293(4) or as evidence of relationship, see at [3-s 97.10] and generally (1997) 4 Crim LN 22 [679]. [8-s 66A.35] Incapacity of minors There is no longer any presumption that a child is incapable of having sexual intercourse with another person, see s 61S at [8-s 61S]. [8-s 66A.40] Sentence Life imprisonment applies to any offence of sexual intercourse with a child under 10 committed on or after 29 June 2015. The offence is subject to the provisions of Div 1A of Pt 4 (ss 54A–54D) of the Crimes (Sentencing Procedure Act) 1999 at [5-s 54A] and following. Sentencing for an offence under the section was generally considered in R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434; BC200409021. The question has arisen as to whether one type of sexual penetration should be considered as more serious than another, and in particular whether digital penetration should be considered as less serious than penile penetration: see R v Hibberd [2009] NSWCCA 20; BC200901464; (2009) 16(4) Crim LN 52 [2534]. In R v King [2009] NSWCCA 117; BC200903121 it was stated at [36]:

The importance of making an assessment of the objective nature of the offence was stressed in R v Woods [2009] NSWCCA 55; BC200903214; (2009) 16(5) Crim LN 69 [2552] where it was held that the judge was in error in taking into account the absence of aggravating factors as mitigating the seriousness of the offence, for example by taking into account that the victim co-operated with the offender and the absence of a struggle or resistance as a matter of mitigation. It is not a mitigating factor that the child consented as notions of consent are irrelevant: R v Nelson [2016] NSWCCA 130; BC201605494. Nor was it relevant the complainant gave evidence that she enjoyed the sexual intercourse and at times initiated the sexual conduct: CT v R [2017] NSWCCA 15; BC201700968; 24(3) Crim LN [3812]. It should not be assumed without evidence to the contrary that there is no significant damage occasioned to a child complainant who is old enough to appreciate the significance of the act of intercourse but to the contrary it should be assumed that there is a real risk of some harm of more than a transitory nature: R v King, above. Where the offences occurred a considerable time before the offender is to be sentenced the court should attempt to fashion a sentence that might have been imposed at a time close to the date of the offences both in relation to the head sentence and non-parole period and attempt to ensure that the offender is not prejudiced by a change in the law over the period: PH v R [2009] NSWCCA 161; BC200905526, applying AJB v R (2007) 169 A Crim R 32; [2007] NSWCCA 51; BC200701206. A standard non-parole period of 15 years is prescribed: Table following s 54D at [5-s 54D]. Division 1A of Pt 4 does not apply to detention under the Mental Health (Forensic Provisions) Act 1990: s 54D(1)(b) at [5-s 54D]. [8-s 66A.45] Referral to child protection agency The court has power to refer a person convicted of an offence where the child is under the authority of the offender to appropriate child protection agency: see [8-s 80AA] [8-s 66A.50] Personal violence offence/domestic violence offence This offence (or an offence of attempting to commit this offence) is a “personal violence offence” as defined in s 4 of the Crimes (Domestic and Personal Violence) Act 2007 at [8-5015] and, when committed by a person against another person with whom the offender has or has had a domestic relationship, is a “domestic violence offence” as defined in s 11 of that Act at [8-5240].

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Crimes

What is to be considered is the type of penetration in all the circumstances surrounding the offending. The type of penetration is simply one factor and by itself does not indicate how serious the particular offence is.

[8-s 66A.55]

s 66A

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

PROOF MATERIAL ON SECTION 66A(1) For the text of s 66A(1), see [8-s 66A] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 66A.55] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did have sexual intercourse with [name of victim] a child then under the age of 10 years, namely [x] years. [8-s 66A.60] Elements of offence The elements of the offence are — (1) the accused had sexual intercourse [8-s 61H] with the victim; and (2) the victim was under the age of 10 years. The prosecution need not prove that the complainant was not consenting as the consent of the complainant is no defence to a charge under this section: see s 77 at [8-s 77].

[8-s 66B] Attempting, or assaulting with intent, to have sexual intercourse with child under 10 66B Any person who attempts to have sexual intercourse with a child who is under the age of 10 years, or assaults a child who is under the age of 10 years with intent to have sexual intercourse, shall be liable to imprisonment for 25 years. [s 66B am Act 90 of 2002 s 3 and Sch 2[2], opn 1 Feb 2003; Act 33 of 2018 Sch 1[12], [13], opn 1 Dec 2018] Editor’s note: For proof material on s 66B, see [27-17,000] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 66B Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Complaint evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Corroboration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Restrictions on disclosure of evidence . . . . . . . . . . . . . . . . . . . . . . . . . . Reading of deposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Evidence of other sexual activity by or with the complainant . . . . . Compellability of spouse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Defence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Incapacity of minors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Referral to child protection agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Personal violence offence/domestic violence offence . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Attempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assault with intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Attempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assault with intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 66B.1] [8-s 66B.5] [8-s 66B.10] [8-s 66B.15] [8-s 66B.20] [8-s 66B.25] [8-s 66B.30] [8-s 66B.35] [8-s 66B.40] [8-s 66B.45] [8-s 66B.55] [8-s 66B.60] [8-s 66B.65] [8-s 66B.70] [8-s 66B.75] [8-s 66B.80] [8-s 66B.85] [8-s 66B.90] [8-s 66B.95]

[8-s 66B.1] Definitions As to “sexual intercourse” see s 61H at [2-s 61H]. As to “attempts” see [8-s 344A]. As to “assaults” see [8-s 58.5]. [8-s 66B.5] Consent

Consent is no defence to a charge under this section: see s 77 at [8-s 77].

[8-s 66B.10] Complaint evidence [8-s 66B.15] Corroboration

See at [8-s 61I.10].

See at [8-s 61I.15].

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s 66B

CRIMES ACT 1900 (NSW) — PART 3

[8-s 66B.75]

[8-s 66B.20] Restrictions on disclosure of evidence As the offence is a prescribed sexual offence under s 3 of the Criminal Procedure Act, proceedings may be held in camera, see at [2-s 291]. The court may make a suppression order or non-publication order upon a number of grounds, including the avoidance of undue distress or embarrassment to a party to, or witness in, criminal proceedings involving offences of a sexual nature (including an act of indecency): s 8 Court Suppression and Non-publication Orders Act 2010 at [29-9130]. Section 578A of the Crimes Act 1900 at [8-s 578A] prohibits the publication of any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant. There are also restrictions on the disclosure of sexual assault communications under Part 5 of the Criminal Procedure Act, see at [2-s 290] and following.

[8-s 66B.30] Evidence of other sexual activity by or with the complainant Evidence of the sexual reputation of the complainant is inadmissible and there are restrictions on the admissibility of evidence relating to the complainant’s sexual experience, see at [2-s 293]. However evidence of other sexual activity between the complainant and the accused may be admissible as an exception under s 293(4) or as evidence of relationship, see at [3-s 97.10] and generally (1997) 4 Crim LN 22 [679]. [8-s 66B.35] Compellability of spouse Where the offence was committed upon a child under the age of 18 years, the spouse of the accused is compellable to give evidence at the hearing of the offence: see at [2-s 279]. [8-s 66B.40] Defence A defence is provided in certain circumstances where the child is over 14 years: see s 77(2) at [8-s 77]. [8-s 66B.45] Incapacity of minors There is no longer any presumption that a child is incapable of having sexual intercourse with another person, see s 61S at [8-s 61S]. [8-s 66B.55] Intoxication An offence under this section which is alleged to have been committed after 16 August 1996, to the extent that an element of the offence under this section requires a person to intend to cause the specific result necessary for the offence, is an offence of specific intent for the purpose of Pt 11A Crimes Act 1900 relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. [8-s 66B.60] Referral to child protection agency The court has power to refer a person convicted of an offence where the child is under the authority of the offender to appropriate child protection agency: see [8-s 80AA] [8-s 66B.65] Personal violence offence/domestic violence offence This offence (or an offence of attempting to commit this offence) is a “personal violence offence” as defined in s 4 of the Crimes (Domestic and Personal Violence) Act 2007 at [8-5015] and, when committed by a person against another person with whom the offender has or has had a domestic relationship, is a “domestic violence offence” as defined in s 11 of that Act at [8-5240]. PROOF MATERIAL ON SECTION 66B For the text of s 66B, see [8-s 66B] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 66B.70] Form of indictment [8-s 66B.75] Attempt That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did attempt to have sexual intercourse with [name of victim], a child then under the age of 10 years, namely [x] years.

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Crimes

[8-s 66B.25] Reading of deposition In certain cases depositions of evidence may be read in committal proceedings: see at [2-s 288].

[8-s 66B.80]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 66B

[8-s 66B.80] Assault with intent That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did assault [name of victim], a child then under the age of 10 years, namely [x] years, with intent to have sexual intercourse. [8-s 66B.85] Elements of offence

The elements of the offence are —

[8-s 66B.90] Attempt (1) The accused attempted [6-300] to have sexual intercourse [8-s 61H] with the

victim; and (2) the victim was under the age of 10 years. The prosecution need not prove that the complainant was not consenting, as the consent of the complainant is no defence to a charge under this section: see s 77 at [8–s 77]. [8-s 66B.95] Assault with intent (1) The accused assaulted [8-s 58.5] the victim; and (2) the victim was under the age of 10 years; and (3) in so doing the accused intended [6-500] to have sexual intercourse [8-s 61H]

with the victim. The prosecution need not prove that the complainant was not consenting, as the consent of the complainant is no defence to a charge under this section: see s 77 at [8-s 77].

[8-s 66C] Sexual intercourse — child between 10 and 16 66C (1) Child between 10 and 14 Any person who has sexual intercourse with a child who is of or above the age of 10 years and under the age of 14 years is liable to imprisonment for 16 years. [subs (1) am Act 33 of 2018 Sch 1[14], opn 1 Dec 2018]

(2) Child between 10 and 14 — aggravated offence Any person who has sexual intercourse with a child who is of or above the age of 10 years and under the age of 14 years in circumstances of aggravation is liable to imprisonment for 20 years. [subs (2) am Act 33 of 2018 Sch 1[14], opn 1 Dec 2018]

(3) Child between 14 and 16 Any person who has sexual intercourse with a child who is of or above the age of 14 years and under the age of 16 years is liable to imprisonment for 10 years. [subs (3) am Act 33 of 2018 Sch 1[14], opn 1 Dec 2018]

(4) Child between 14 and 16 — aggravated offence Any person who has sexual intercourse with a child who is of or above the age of 14 years and under the age of 16 years in circumstances of aggravation is liable to imprisonment for 12 years. [subs (4) am Act 33 of 2018 Sch 1[14], opn 1 Dec 2018]

(5) In this section, circumstances of aggravation means circumstances in which: (a) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or (b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or (c) the alleged offender is in the company of another person or persons, or (d) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or

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s 66C

CRIMES ACT 1900 (NSW) — PART 3

[8-s 66C.1]

(e) the alleged victim has a serious physical disability, or (f) the alleged victim has a cognitive impairment, or (g) the alleged offender took advantage of the alleged victim being under the influence of alcohol or a drug in order to commit the offence, or (h) the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence, or (i) the alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence. [subs (5) am Act 38 of 2007 s 3 and Sch 1[3], opn 15 Feb 2008; Act 74 of 2008 s 3 and Sch 1, opn 1 Dec 2008; Act 105 of 2008 s 3 and Sch 1, opn 1 Jan 2009; Act 27 of 2009 Sch 1, opn 19 May 2009] [s 66C subst Act 9 of 2003 s 3 and Sch 1[9] opn 13 June 2003]

COMMENTARY ON SECTION 66C Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Circumstances of aggravation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope of the offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Complaint evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Corroboration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Restrictions on disclosure of evidence . . . . . . . . . . . . . . . . . . . . . . . . . . Reading of deposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Evidence of other sexual activity by or with the complainant . . . . . Incapacity of minors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Compellability of spouse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Referral to child protection agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Personal violence offence/domestic violence offence . . . . . . . . . . . . . Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Child between 10 and 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Child between 10 and 14 — aggravated offence . . . . . . . . . . . . . . Child between 14 and 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Child between 14 and 16 — aggravated offence . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Child between 10 and 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Child between 10 and 14 — aggravated offence . . . . . . . . . . . . . . Child between 14 and 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Child between 14 and 16 — aggravated offence . . . . . . . . . . . . . . Alternative verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 66C.1] [8-s 66C.3] [8-s 66C.5] [8-s 66C.10] [8-s 66C.15] [8-s 66C.20] [8-s 66C.25] [8-s 66C.30] [8-s 66C.35] [8-s 66C.40] [8-s 66C.45] [8-s 66C.50] [8-s 66C.55] [8-s 66C.60] [8-s 66C.65] [8-s 66C.70] [8-s 66C.75] [8-s 66C.80] [8-s 66C.85] [8-s 66C.90] [8-s 66C.95] [8-s 66C.100] [8-s 66C.105] [8-s 66C.110] [8-s 66C.115]

[8-s 66C.1] Summary disposal An offence under s 66C(3), as in force after the commencement of Sch 1[9] to the Crimes Amendment (Sexual Offences) Act 2003 No 9, is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in the Local Court unless an election is made for trial on indictment: see s 260(2) at [2-s 260] and [2-Sch 1], Pt 1, cl 1. The maximum penalty for an offence dealt with summarily is imprisonment for 2 years: see s 267(2) at [2-s 267]. An offence under s 66C(1), as in force before the commencement of Sch 1[9] to the Crimes Amendment (Sexual Offences) Act 2003 No 9, is a Table 1 offence and is to be dealt with in the Local Court unless an election is made for trial on indictment: see s 260(2) at [s-s 260] and [2-Sch 1], Pt 1, cl 1. The maximum penalty for an offence dealt with summarily is imprisonment for 2 years: see s 267(2) at [2-s 267].

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Editor’s note: For proof material on s 66C, see [27-17,025] behind the “27 – Informations and Indictments” guide card in Vol 4.

[8-s 66C.3]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 66C

[8-s 66C.3] Definitions As to sexual intercourse, see definition at [8-s 61H]. As to “in company with another person” see [8-s 61J.1]. As to “recklessly” see [8-s 4A]. As to “under the authority of another person” see [8-s 61H.10]. As to “offensive weapon” see [8-s 4]. As to “actual bodily harm” see [8-s 59.5]. [8-s 66C.5] Circumstances of aggravation See at [8-s 61M.2]. As to under authority of a person, see s 61H(2) and [8-s 61H.10]. As to “in the company of another person” see [8-s 61J.1]. As to “maliciously” see at [8-s 5]. As to “actual bodily harm” see at [8-s 59.5]. [8-s 66C.10] Scope of the offence The common law defence of honest and reasonable mistake of fact concerning the age of the complainant is available with respect to a s 66C(3) offence: CTM v R (2008) 247 ALR 1; 82 ALJR 978; [2008] HCA 25; BC200804276; (2008) 15 Crim LN 74 [2401]. The consent of the child is no defence: s 77 at [8-s 77]. [8-s 66C.15] Complaint evidence [8-s 66C.20] Corroboration

See at [8-s 61I.10].

See at [8-s 61I.15].

[8-s 66C.25] Restrictions on disclosure of evidence As the offence is a prescribed sexual offence under s 3 of the Criminal Procedure Act, proceedings may be held in camera, see at [2-s 291]. The court may make a suppression order or non-publication order upon a number of grounds, including the avoidance of undue distress or embarrassment to a party to, or witness in, criminal proceedings involving offences of a sexual nature (including an act of indecency): s 8 Court Suppression and Non-publication Orders Act 2010 at [29-9130]. Section 578A of the Crimes Act 1900 at [8-s 578A] prohibits the publication of any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant. [8-s 66C.30] Reading of deposition In certain cases depositions of evidence may be read in committal proceedings: see at [2-s 288]. [8-s 66C.35] Evidence of other sexual activity by or with the complainant Evidence of the sexual reputation of the complainant is inadmissible and there are restrictions on the admissibility of evidence relating to the complainant’s sexual experience, see at [2-s 293] of the Criminal Procedure Act. However evidence of other sexual activity between the complainant and the accused may be admissible as an exception under s 293(4) or as evidence of relationship, see s 97 of the Evidence Act at [3-s 97.10] and generally (1997) 4 Crim LN 22 [679]. [8-s 66C.40] Incapacity of minors There is no longer any presumption that a child is incapable of having sexual intercourse with another person, see s 61S at [8-s 61S]. [8-s 66C.45] Compellability of spouse Where the offence was committed upon a child under the age of 18 years, the spouse of the accused is compellable to give evidence at the hearing of the offence: see [s 279] at [2-s 279]. [8-s 66C.50] Referral to child protection agency The court has power to refer a person convicted of an offence where the child is under the authority of the offender to appropriate child protection agency: see [8-s 80AA] [8-s 66C.55] Personal violence offence/domestic violence offence This offence (or an offence of attempting to commit this offence) is a “personal violence offence” as defined in s 4 of the Crimes (Domestic and Personal Violence) Act 2007 at [8-5015] and, when committed by a person against another person with whom the offender has or has had a domestic relationship, is a “domestic violence offence” as defined in s 11 of that Act at [8-5240]. [8-s 66C.60] Sentencing It is not a breach of the De Simoni principle for a judge, when sentencing for an offence under this section, to take into account whether the complainant was

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s 66C

CRIMES ACT 1900 (NSW) — PART 3

[8-s 66C.105]

actually consenting and the circumstances of the offending when assessing the objective seriousness of the offence even though it is a more serious offence to have intercourse with a child without consent under s 61J: Wakeling v R [2016] NSWCCA 33; BC201601309; 23(3) Crim LN [3658]. It is required that the judge consider the whole circumstances of the offence in order to determine its objective seriousness. PROOF MATERIAL ON SECTION 66C For the text of s 66C, see [8-s 66C] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 66C.65] Form of indictment [8-s 66C.70] Child between 10 and 14 That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales had sexual intercourse with [name of victim] a child then of/above the age of 10 years and under the age of 14 years, namely [x] years.

[8-s 66C.80] Child between 14 and 16 That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales had sexual intercourse with [name of victim] a child then of/above the age of 14 years and under the age of 16 years, namely [x] years. [8-s 66C.85] Child between 14 and 16 — aggravated offence That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales had sexual intercourse with [name of victim] a child then of/above the age of 14 years and under the age of 16 years, namely [x] years, in circumstances of aggravation, namely (outline circumstances of aggravation according to subsection 5). [8-s 66C.90] Elements of offence

The elements of the offence are —

[8-s 66C.95] Child between 10 and 14 (1) The accused had sexual intercourse [8-s 61H] with the victim; and (2) the victim was then of or above the age of 10 years and under the age of 14

years. The prosecution need not prove that the complainant was not consenting as the consent of the complainant is no defence to a charge under this section: see s 77 at [8-s 77]. [8-s 66C.100] Child between 10 and 14 — aggravated offence (1) The accused had sexual intercourse [8-s 61H] with the victim; and (2) the victim was then of or above the age of 10 years and under the age of 14

years; and (3) this occurred in circumstances of aggravation: see s 66C(5) at [8-s

66C][8-s 61M.2]. The prosecution need not prove that the complainant was not consenting as the consent of the complainant is no defence to a charge under this section: see s 77 at [8-s 77]. [8-s 66C.105] Child between 14 and 16 (1) The accused had sexual intercourse [8-s 61H] with the victim; and (2) the victim was then of or above the age of 14 years and under the age of 16

years. The prosecution need not prove that the complainant was not consenting as the consent of the complainant is no defence to a charge under this section: see s 77 at [8-s 77].

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Crimes

[8-s 66C.75] Child between 10 and 14 — aggravated offence That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales had sexual intercourse with [name of victim] a child then of/above the age of 10 years and under the age of 14 years, namely [x] years, in circumstances of aggravation, namely (outline circumstances of aggravation according to subsection 5).

[8-s 66C.110]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 66C

[8-s 66C.110] Child between 14 and 16 — aggravated offence (1) The accused had sexual intercourse [8-s 61H] with the victim; and (2) the victim was then of or above the age of 14 years and under the age of 16

years; and (3) this occurred in circumstances of aggravation: see s 66C(5) at [8-s

66C][8-s 61 M.2]. The prosecution need not prove that the complainant was not consenting as the consent of the complainant is no defence to a charge under this section: see s 77 at [8-s 77]. [8-s 66C.115] Alternative verdict Where a jury is not satisfied that the accused is guilty of the offence charged under s 66C(2) or 66C(4), but is satisfied that the accused is guilty of an offence under s 66C(1) or 66C(3), it may find the accused not guilty of the former offence but guilty of the latter offence: see s 66E(1A) at [8-s 66E]. Where a jury is not satisfied that the accused is guilty of the offence charged under s 66C(1) or 66C(2), but is satisfied that the accused is guilty of an offence under s 66C(3) or 66C(4) it may find the accused not guilty of the former offence but guilty of the latter offence: see s 66E(1B) at [8-s 66E]. Where a jury is not satisfied that the accused is guilty of the offence charged under s 66C, but is satisfied that the accused is guilty of an offence under s 66D, it may find the accused not guilty of the former offence but guilty of the latter offence: see s 66E(4) at [8-s 66E].

[8-s 66D] Assault with intent to have sexual intercourse — child between 10 and 16 66D Any person who assaults a child who is of or above the age of 10 years and under the age of 16 years with intent to commit an offence under section 66C on the child is liable to the penalty provided for the commission of that offence. [s 66D insrt Act 149 of 1985 s 5 and Sch 2(5), opn 23 Mar 1986; subst Act 33 of 2018 Sch 1[15], opn 1 Dec 2018] Editor’s note: For proof material on s 66D, see [27-17,100] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 66D Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope of the offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Complaint evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Corroboration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Restrictions on disclosure of evidence . . . . . . . . . . . . . . . . . . . . . . . . . . Reading of deposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Evidence of other sexual activity by or with the complainant . . . . . Incapacity of minors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Compellability of spouse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Defence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Referral to child protection agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Personal violence offence/domestic violence offence . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Attempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assault with intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[8-s 66D.1] [8-s 66D.5] [8-s 66D.10] [8-s 66D.15] [8-s 66D.20] [8-s 66D.25] [8-s 66D.30] [8-s 66D.35] [8-s 66D.40] [8-s 66D.45] [8-s 66D.50] [8-s 66D.55] [8-s 66D.60] [8-s 66D.65] [8-s 66D.70] [8-s 66D.75] [8-s 66D.80] [8-s 66D.85]

s 66D

CRIMES ACT 1900 (NSW) — PART 3

Attempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assault with intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 66D.55] [8-s 66D.90] [8-s 66D.95]

[8-s 66D.1] Summary disposal Where the person against whom the offence was committed was at the time of the commission of the offence of or above the age of 14 years, an offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Part 1 cl 1. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 66D.5] Definitions As to “attempts” see [8-s 344A]. As to “assaults” see [8-s 58.5]. [8-s 66D.10] Scope of the offence The offence under the section is one of absolute liability so far as knowledge of the age of the child is concerned, therefore the common law defence of mistake of age does not apply following the repeal of s 77(2) on 13 June 2003: CTM v R (2007) 171 A Crim R 371; [2007] NSWCCA 131; BC200703907; 14 Crim LN 68 [2219]. The consent of the child is no defence see s 77. [8-s 66D.15] Complaint evidence

See at [8-s 61I.15].

[8-s 66D.25] Restrictions on disclosure of evidence As the offence is a prescribed sexual offence under s 3 of the Criminal Procedure Act 1986, proceedings may be held in camera, see at [2-s 291]. The court may make a suppression order or non-publication order upon a number of grounds, including the avoidance of undue distress or embarrassment to a party to, or witness in, criminal proceedings involving offences of a sexual nature (including an act of indecency): s 8 Court Suppression and Non-publication Orders Act 2010 at [29-9130]. Section 578A of the Crimes Act 1900 at [8-s 578A] prohibits the publication of any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant. There are also restrictions on the disclosure of sexual assault communications under Part 5 of the Criminal Procedure Act 1986, see at [2-s 290] and following. [8-s 66D.30] Reading of deposition In certain cases depositions of evidence may be read in committal proceedings: see at [2-s 288]. [8-s 66D.35] Evidence of other sexual activity by or with the complainant Evidence of the sexual reputation of the complainant is inadmissible and there are restrictions on the admissibility of evidence relating to the complainant’s sexual experience, see at [2-s 293]. However evidence of other sexual activity between the complainant and the accused may be admissible as an exception under s 293(4) or as evidence of relationship, see at [3-s 97.10] and generally (1997) 4 Crim LN 22 [679]. [8-s 66D.40] Incapacity of minors There is no longer any presumption that a child is incapable of having sexual intercourse with another person, see s 61S at [8-s 61S]. [8-s 66D.45] Compellability of spouse Where the offence was committed upon a child under the age of 18 years, the spouse of the accused is compellable to give evidence at the hearing of the offence: see at [2-s 279]. [8-s 66D.50] Defence A defence is provided in certain circumstances where the child is over 14 years: see s 77(2) at [8-s 77]. [8-s 66D.55] Intoxication An offence under this section which is alleged to have been committed after 16 August 1996, to the extent that an element of the offence under this section

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Crimes

[8-s 66D.20] Corroboration

See at [8-s 61I.10].

[8-s 66D.55]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 66D

requires a person to intend to cause the specific result necessary for the offence, is an offence of specific intent for the purpose of Pt 11A Crimes Act 1900 relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. [8-s 66D.60] Referral to child protection agency The court has power to refer a person convicted of an offence where the child is under the authority of the offender to appropriate child protection agency: see [8-s 80AA] [8-s 66D.65] Personal violence offence/domestic violence offence This offence (or an offence of attempting to commit this offence) is a “personal violence offence” as defined in s 4 of the Crimes (Domestic and Personal Violence) Act 2007 at [8-5015] and, when committed by a person against another person with whom the offender has or has had a domestic relationship, is a “domestic violence offence” as defined in s 11 of that Act at [8-5240]. PROOF MATERIAL ON SECTION 66D For the text of s 66D, see [8-s 66D] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 66D.70] Form of indictment [8-s 66D.75] Attempt That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales attempted to have sexual intercourse with [name of victim], a child then between the age of 10 years and 16 years, namely [x] years. [8-s 66D.80] Assault with intent That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales assaulted [name of victim], a child then between the age of 10 years and 16 years, namely [x] years, with intent to have sexual intercourse. [8-s 66D.85] Elements of offence

The elements of the offence are —

[8-s 66D.90] Attempt (1) The accused attempted [6-300] to have sexual intercourse [8-s 61H] with the

victim; and (2) the victim was between the age of 10 and 16 years. The prosecution need not prove that the complainant was not consenting, as the consent of the complainant is no defence to a charge under this section: see s 77 at [8-s 77]. [8-s 66D.95] Assault with intent (1) The accused assaulted [8-s 58.5] the victim; and (2) the victim was between the age of 10 and 16 years; and (3) in so doing, the accused intended [6-500] to have sexual intercourse [8-s 61H]

with the victim. The prosecution need not prove that the complainant was not consenting, as the consent of the complainant is no defence to a charge under this section: see s 77 at [8-s 77].

Subdivision 6 — Children — sexual touching [Subdiv 6 insrt Act 33 of 2018 Sch 1[16], opn 1 Dec 2018]

[8-s 66DA] Sexual touching — child under 10 66DA Any person who intentionally: (a) sexually touches a child who is under the age of 10 years, or (b) incites a child who is under the age of 10 years to sexually touch the person, or (c) incites a child who is under the age of 10 years to sexually touch another person, or

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s 66DD

CRIMES ACT 1900 (NSW) — PART 3

[8-s 66DD]

(d) incites another person to sexually touch a child who is under the age of 10 years, is guilty of an offence. Maximum penalty: Imprisonment for 16 years.

[8-s 66DB] Sexual touching — child between 10 and 16

Subdivision 7 — Children — sexual act [Subdiv 7 insrt Act 33 of 2018 Sch 1[16], opn 1 Dec 2018]

[8-s 66DC] Sexual act — child under 10 66DC Any person who intentionally: (a) carries out a sexual act with or towards a child who is under the age of 10 years, or (b) incites a child who is under the age of 10 years to carry out a sexual act with or towards the person, or (c) incites a child who is under the age of 10 years to carry out a sexual act with or towards another person, or (d) incites another person to carry out a sexual act with or towards a child who is under the age of 10 years, is guilty of an offence. Maximum penalty: Imprisonment for 7 years.

[8-s 66DD] Sexual act — child between 10 and 16 66DD Any person who intentionally: (a) carries out a sexual act with or towards a child who is of or above the age of 10 years and under the age of 16 years, or (b) incites a child who is of or above the age of 10 years and under the age of 16 years to carry out a sexual act with or towards the person, or (c) incites a child who is of or above the age of 10 years and under the age of 16 years to carry out a sexual act with or towards another person, or (d) incites another person to carry out a sexual act with or towards a child who is of or above the age of 10 years and under the age of 16 years, is guilty of an offence. Maximum penalty: Imprisonment for 2 years.

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Crimes

66DB Any person who intentionally: (a) sexually touches a child who is of or above the age of 10 years and under the age of 16 years, or (b) incites a child who is of or above the age of 10 years and under the age of 16 years to sexually touch the person, or (c) incites a child who is of or above the age of 10 years and under the age of 16 years to sexually touch another person, or (d) incites another person to sexually touch a child who is of or above the age of 10 years and under the age of 16 years, is guilty of an offence. Maximum penalty: Imprisonment for 10 years.

[8-s 66DE]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 66DE

[8-s 66DE] Aggravated sexual act — child between 10 and 16 66DE (1) Any person who in circumstances of aggravation intentionally: (a) carries out a sexual act with or towards a child who is of or above the age of 10 years and under the age of 16 years, or (b) incites a child who is of or above the age of 10 years and under the age of 16 years to carry out a sexual act with or towards the person, or (c) incites a child who is of or above the age of 10 years and under the age of 16 years to carry out a sexual act with or towards another person, or (d) incites another person to carry out a sexual act with or towards a child who is of or above the age of 10 years and under the age of 16 years, is guilty of an offence. Maximum penalty: Imprisonment for 5 years. (2) In this section, circumstances of aggravation means circumstances in which: (a) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or (b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or (c) the alleged offender is in the company of another person or persons, or (d) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (e) the alleged victim has a serious physical disability, or (f) the alleged victim has a cognitive impairment, or (g) the alleged offender took advantage of the alleged victim being under the influence of alcohol or a drug in order to commit the offence, or (h) the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence, or (i) the alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence.

[8-s 66DF] Sexual act for production of child abuse material — child under 16 66DF Any person who intentionally: (a) carries out a sexual act with or towards a child who is under the age of 16 years, or (b) incites a child who is under the age of 16 years to carry out a sexual act with or towards the person, or (c) incites a child who is under the age of 16 years to carry out a sexual act with or towards another person, or (d) incites another person to carry out a sexual act with or towards a child who is under the age of 16 years, and who knows that the sexual act is being filmed for the purposes of the production of child abuse material, is guilty of an offence. Maximum penalty: Imprisonment for 10 years.

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s 66EA

CRIMES ACT 1900 (NSW) — PART 3

[8-s 66EA]

[8-s 66E] Alternative verdicts 66E [s 66E subst Act 105 of 2008 s 3 and Sch 1, opn 1 Jan 2009; am Act 13 of 2015 Sch 1[2]–[3], opn 29 June 2015; rep Act 33 of 2018 Sch 1[18], opn 1 Dec 2018] Editor’s note: Please see [8A-REP s 66E] for a prior version of this section. Editor’s note: for annotations on repealed s 66E see [8A-REP s 66E].

PROOF MATERIAL ON SECTION 66E For the text of s 66E, see [8-s 66E] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 66E.5] Alternative verdicts If on the trial of a person for an offence under s 66A(1) or (2) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under s 66B, 66C(1), (2), (3) or (4) or 66D, it may find the accused guilty of one of the latter offences: see s 66E(1) at [8-s 66E]. If on the trial of a person for an offence under s 66A(2) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under s 66A(1), it may find the accused guilty of the latter offence: see s 66E(2) at [8-s 66E].

Subdivision 8 — Children — persistent sexual abuse

[8-s 66EA] Persistent sexual abuse of a child 66EA (1) An adult who maintains an unlawful sexual relationship with a child is guilty of an offence. Maximum penalty: Imprisonment for life. (2) An unlawful sexual relationship is a relationship in which an adult engages in 2 or more unlawful sexual acts with or towards a child over any period. (3) It is immaterial that any of those unlawful sexual acts occurred outside New South Wales, so long as at least one of the unlawful sexual acts occurred in New South Wales. (4) In proceedings for an offence under this section, the prosecution: (a) is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence, and (b) is required to allege the particulars of the period of time over which the unlawful sexual relationship existed. (5) In order for the accused to be convicted of an offence under this section: (a) the jury must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed, and (b) the jury is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence, and (c) the members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship. (6) In proceedings for an offence under this section, the judge must inform the jury of the requirements of subsection (5). (7) This section extends to a relationship that existed wholly or partly before the commencement of the relevant amendments, or the predecessor offence, if the acts engaged in by the accused were unlawful sexual acts during the period in which the relationship existed.

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Crimes

[Subdiv 8 heading insrt Act 33 of 2018 Sch 1[19], opn 1 Dec 2018]

[8-s 66EA]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 66EA

(8) A court, when imposing a sentence for an offence under this section constituted by an unlawful sexual relationship that existed wholly or partly before the commencement of the relevant amendments, must take into account (but is not limited by) the maximum penalty for the unlawful sexual acts engaged in by the accused during the period in which the unlawful sexual relationship existed. (9) A person who has been convicted or acquitted of an unlawful sexual act in relation to a child cannot be convicted of an offence under this section in relation to the same child if the unlawful sexual act of which the person has been convicted or acquitted is one of the unlawful sexual acts that are alleged to constitute the unlawful sexual relationship. (10) A person who has been convicted or acquitted of an offence under this section for having an unlawful sexual relationship with a child cannot be convicted of an unlawful sexual act in relation to the same child if the occasion on which the unlawful sexual act is alleged to have occurred is during the period over which the unlawful sexual relationship was alleged to have existed. This subsection does not prevent an alternative verdict under subsection (13). (11) A person who has been convicted or acquitted of a predecessor offence in relation to a child cannot be convicted of an offence under this section of having an unlawful sexual relationship with the same child if the period of the alleged unlawful sexual relationship includes any part of the period during which the person was alleged to have committed the predecessor offence. (12) For the purposes of subsections (9)–(11), a person ceases to be regarded as having been convicted for an offence if the conviction is quashed or set aside. (13) If on the trial of a person charged with an offence under this section the jury is not satisfied that the offence is proven but is satisfied that the person has, in respect of any of the occasions relied on as evidence of the commission of the offence under this section, committed an unlawful sexual act, the jury may acquit the person of the offence charged and find the person guilty of that unlawful sexual act. The person is liable to punishment accordingly. (14) Proceedings for an offence under this section may only be instituted by or with the approval of the Director of Public Prosecutions. (15) In this section: adult means a person who is of or above the age of 18 years. child means a person who is under the age of 16 years. predecessor offence means this section before its substitution by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018. relevant amendments means the substitution of this section by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018. unlawful sexual act means any act that constitutes, or would constitute (if particulars of the time and place at which the act took place were sufficiently particularised), any of the following offences: (a) an offence under section 61I, 61J, 61JA, 61K, 61KC, 61KD, 61KE, 61KF, 66A, 66B, 66C, 66D, 66DA, 66DB, 66DC, 66DD, 66DE, 66DF, 66F or 80A, (b) an offence under a provision of this Act set out in Column 1 of Schedule 1A,

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s 66EB

CRIMES ACT 1900 (NSW) — PART 3

[8-s 66EB]

(c) an offence of attempting to commit an offence referred to in paragraph (a) or (b), (d) an offence under a previous enactment that is substantially similar to an offence referred to in paragraphs (a)–(c), (e) an offence under the law of a place outside New South Wales that would, if it had been committed in New South Wales, be an offence referred to in paragraphs (a)–(d). [s 66EA subst Act 33 of 2018 Sch 1[20], opn 1 Dec 2018]

PROOF MATERIAL ON SECTION 66EA For the text of s 66EA, see [8-s 66EA] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 66EA.5] Form of indictment That [name of accused] between [period of alleged offence] at [locality/suburb] in the State of New South Wales/and [specify other state or territory] on at least three separate occasions being [state relevant dates] did [name sexual offence] with [name of victim], a child then under the age of 18 years, namely [x] years.

[8-s 66EA.15] Elements of offence The elements of the offence are — (1) the accused engaged in conduct constituting a sexual offence; (2) on three or more separate occasions occurring on separate days during a period;

and (3) the victim was a child under the age of 18 years. The prosecution need not prove that the complainant was not consenting, as the consent of the complainant is no defence to a charge under the section: see s 77 at [8-s 77]. [8-s 66EA.20] Alternative Verdict Where a jury is not satisfied that the accused is guilty of the offence charged under s 66EA but is satisfied that the accused is guilty of a sexual offence in respect of any of the occasions relied on as evidence, it may find the accused not guilty of the former offence but guilty of that sexual offence: see s 66EA(10) at [8-s 66EA]. [8-s 66EA.25] Statutory Limits A person convicted or acquitted of an offence under this section cannot be convicted of a sexual offence in relation to the same child during the same period alleged under this section: see s 66EA(8) at [8-s 66EA]. A person convicted or acquitted of a sexual offence cannot be convicted of an offence under this section in relation to the same child if any of the occasions relied on as evidence include the occasion of that sexual offence: see s 66EA(9) at [8-s 66EA]. [8-s 66EA.30] Restrictions on prosecution Proceedings for an offence under this section may only be instituted by or with the approval of the Director of Public Prosecutions: s 66EA(11) at [8-s 66EA].

Subdivision 9 — Children — procurement and grooming [Subdiv 9 heading insrt Act 33 of 2018 Sch 1[21], opn 1 Dec 2018]

[8-s 66EB] Procuring or grooming child under 16 for unlawful sexual activity 66EB (1) Definitions In this section:

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Crimes

[8-s 66EA.10] Necessary averments A charge of an offence against this section must specify with reasonable particularity the period during which the offence occurred, and must describe the nature of the separate offences alleged to have been committed by the accused during the period: s 66EA(5) at [8-s 66EA].

[8-s 66EB]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 66EB

adult person means a person who is of or over the age of 18 years. child means a person who is under the age of 16 years. conduct includes: (a) communicating in person or by telephone, the internet or other means, or (b) providing any computer image, video or publication. unlawful sexual activity means an act that constitutes an offence under this Division or Division 10A, 15 or 15A (or, in the case of an act occurring outside this State, that would constitute such an offence if it occurred in this State). [def am Act 105 of 2008 s 3 and Sch 1, opn 1 Jan 2009]

(2) Procuring children An adult person who intentionally procures a child for unlawful sexual activity with that or any other person is guilty of an offence. Maximum penalty: (a) in the case of a child who is under the age of 14 years — imprisonment for 15 years, or (b) in any other case — imprisonment for 12 years. (2A) Meeting child following grooming An adult person: (a) who intentionally meets a child, or travels with the intention of meeting a child, whom the adult person has groomed for sexual purposes, and (b) who does so with the intention of procuring the child for unlawful sexual activity with that adult person or any other person, is guilty of an offence. Maximum penalty: (a) in the case of a child who is under the age of 14 years — imprisonment for 15 years, or (b) in any other case — imprisonment for 12 years. [subs (2A) insrt Act 105 of 2008 s 3 and Sch 1, opn 1 Jan 2009]

(2B) For the purposes of subsection (2A), a child has been groomed for sexual purposes by an adult person if, on one or more previous occasions, the adult person has engaged in conduct that exposed the child to indecent material. [subs (2B) insrt Act 105 of 2008 s 3 and Sch 1, opn 1 Jan 2009]

(3) Grooming children An adult person: (a) who engages in any conduct that exposes a child to indecent material or provides a child with an intoxicating substance or with any financial or other material benefit, and (b) who does so with the intention of making it easier to procure the child for unlawful sexual activity with that or any other person, is guilty of an offence. Maximum penalty: (a) in the case of a child who is under the age of 14 years — imprisonment for 12 years, or (b) in any other case — imprisonment for 10 years. [subs (3) am Act 33 of 2018 Sch 1[22], opn 1 Dec 2018]

(4) Unlawful sexual activity need not be particularised In any proceedings for an offence against this section, it is necessary to prove that the child was or was to be procured for unlawful sexual activity, but it is not necessary to specify or to prove any particular unlawful sexual activity.

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s 66EB

CRIMES ACT 1900 (NSW) — PART 3

[8-s 66EB.10]

(5) Fictitious children A reference in this section to a child includes a reference to a person who pretends to be a child if the accused believed that the person was a child. In that case, a reference in this section: (a) to unlawful sexual activity includes a reference to anything that would be unlawful sexual activity if the person were a child, and (b) to the age of the child is a reference to the age that the accused believed the person to be. (6) Charge for aggravated offence The higher maximum penalty under subsection (2), (2A) or (3) in the case of a child under the age of 14 years does not apply unless the age of the child is set out in the charge for the offence. [subs (6) am Act 105 of 2008 s 3 and Sch 1, opn 1 Jan 2009]

(7) Defence It is a defence in proceedings for an offence against this section if the accused reasonably believed that the other person was not a child. (8) Alternative verdict If on the trial of a person charged with an offence against subsection (2) or (2A) the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against subsection (3), the jury may acquit the person of the offence charged and find the person guilty of an offence against subsection (3). The person is liable to punishment accordingly.

COMMENTARY ON SECTION 66EB Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Meaning of “procure” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Procuring children — s 66EB(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Meeting child following grooming — s 66EB(2A) . . . . . . . . . . . Grooming children — s 66EB(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Procuring children — s 66EB(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Meeting child following grooming — s 66EB(2A) . . . . . . . . . . . Grooming children — s 66EB(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . Statutory defence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alternative verdicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Crimes

[subs (8) am Act 105 of 2008 s 3 and Sch 1, opn 1 Jan 2009] [s 66EB insrt Act 74 of 2007 s 3 and Sch 1[1], opn 18 Jan 2008]

[8-s 66EB.5] [8-s 66EB.7] [8-s 66EB.10] [8-s 66EB.15] [8-s 66EB.20] [8-s 66EB.25] [8-s 66EB.30] [8-s 66EB.35] [8-s 66EB.40] [8-s 66EB.45] [8-s 66EB.50] [8-s 66EB.55] [8-s 66EB.60]

[8-s 66EB.5] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in the Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1], Pt 1, cl 2. The minimum penalty which can be imposed is two years’ imprisonment: see at [2-s 267]. [8-s 66EB.7] Sentence The approach to sentencing for an offence under s 66EB was considered in ZA v R [2018] NSWCCA 116; BC201804738 where a father was sentenced for procuring his 12 year old daughter to marry a man under Islamic law and to have sexual relations with the man. [8-s 66EB.10] Meaning of “procure” The meaning of “procure” in s 66EB was considered in ZA v R [2018] NSWCCA 116; BC201804738 where it was held that, in its statutory context, the term means “to cause or bring about”.

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[8-s 66EB.15]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 66EB

PROOF MATERIAL ON SECTION 66EB For the text of s 66EB, see [8-s 66EB] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 66EB.15] Form of indictment [8-s 66EB.20] Procuring children — s 66EB(2) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did intentionally procure [name of victim] a child then under the age of 16 years, namely [x] years, for unlawful sexual activity being [name activity if known]. [8-s 66EB.25] Meeting child following grooming — s 66EB(2A) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did intentionally meet/travel with the intention of meeting [name of victim] a child then under the age of 16 years, namely [x] years, after grooming the child by [detail grooming] with the intention of procuring the child for unlawful sexual activity [name activity if known] with himself/herself/[name of third party]. [8-s 66EB.30] Grooming children — s 66EB(3) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did expose [name of victim], a child then under the age of 16 years, namely [x] years, to indecent material being [nature of material]/did provide the child with an intoxicating substance being [type of substance], with the intention of making it easier to procure the child for unlawful sexual activity being [name activity if known] with himself/herself/[name of third party]. [8-s 66EB.35] Elements of offence

The elements of the offence are —

[8-s 66EB.40] Procuring children — s 66EB(2) The accused: (1) intentionally [6-500] procured the victim for unlawful sexual activity (8-s

66EB(1); and (2) the victim was under the age of 16 years. [8-s 66EB.45] Meeting child following grooming — s 66EB(2A) The accused: (1) exposed the victim to indecent material; (2) after (1) intentionally [6-500] meeting or travelling to meet the victim; (3) with the intention [6-500] of procuring the victim for unlawful sexual activity

[8-s 66EB]; and (4) the victim was under the age of 16 years. [8-s 66EB.50] Grooming children — s 66EB(3) (1) The accused: (a) exposed the victim to indecent material; or (b) provided the victim with an intoxicating substance [8-s 4]. (2) with the intention [6-500] of making it easier to procure the victim for unlawful

sexual activity (8-s 66EB(1)); and (3) the victim was under the age of 16 years. The prosecution need not prove that the complainant was not consenting as the consent of the complainant is no defence to a charge under this section: see s 77 at [8-s 77]. [8-s 66EB.55] Statutory defence It is a defence in proceedings for an offence under this section if the accused reasonably believed that the victim was not a child: see s 66EB(7) at [8-s 66EB]. [8-s 66EB.60] Alternative verdicts If on the trial of a person for an offence under s 66EB (2) or (2A) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that

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s 66F

CRIMES ACT 1900 (NSW) — PART 3

[8-s 66F]

the accused is guilty of an offence under s 66EB(3), it may find the accused guilty of the latter offence: see s 66EB(8) at [8-s 66EB].

[8-s 66EC] Grooming a person for unlawful sexual activity with a child under the person’s authority

child means a person who is under the age of 16 years. unlawful sexual activity means an act that constitutes an offence under this Division or Division 10A, 15 or 15A (or, in the case of an act occurring outside this State, that would constitute such an offence if it occurred in this State). (2) An adult person: (a) who provides a person (other than a child) with any financial or other material benefit, and (b) who does so with the intention of making it easier to procure a child who is under the authority of the person for unlawful sexual activity with the adult person or any other person, is guilty of an offence. Maximum penalty: (a) in the case of a child who is under the age of 14 years — imprisonment for 6 years, or (b) in any other case — imprisonment for 5 years. (3) Proceedings for an offence under this section may only be instituted by or with the approval of the Director of Public Prosecutions. [s 66EC insrt Act 33 of 2018 Sch 1[23], opn 1 Dec 2018]

Subdivision 10 — Sexual offences — cognitive impairment [Subdiv 10 heading insrt Act 33 of 2018 Sch 1[24], opn 1 Dec 2018]

[8-s 66F] Sexual offences — cognitive impairment 66F (1) Meaning of “person responsible for care” For the purposes of this section, a person is responsible for the care of a person who has a cognitive impairment if the person provides care to that person: (a) at a facility at which persons with a cognitive impairment are detained, reside or attend, or (b) at the home of that person in the course of a program under which any such facility or other government or community organisation provides care to persons with a cognitive impairment. The care of a person with a cognitive impairment includes voluntary care, health professional care, education, home care and supervision. (2) Sexual intercourse: person responsible for care A person: (a) who has sexual intercourse with a person who has a cognitive impairment, and (b) who is responsible for the care of that person (whether generally or at the time of the sexual intercourse), is guilty of an offence. Maximum penalty: imprisonment for 10 years.

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Crimes

66EC (1) In this section: adult person means a person who is of or above the age of 18 years.

[8-s 66F]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 66F

(3) Sexual intercourse: taking advantage of impairment A person who has sexual intercourse with a person who has a cognitive impairment, with the intention of taking advantage of that person’s cognitive impairment, is guilty of an offence. Maximum penalty: imprisonment for 8 years. (4) [subs (4) rep Act 33 of 2018 Sch 1[25], opn 1 Dec 2018] (5) Consent not a defence for sexual intercourse The consent of a person who has a cognitive impairment is not a defence to a charge for an offence under subsection (2) or (3) (or under section 344A in connection with such an offence). [subs (5) subst Act 33 of 2018 Sch 1[26], opn 1 Dec 2018]

(6) Consent not a defence for sexual touching or sexual act The consent of a person who has a cognitive impairment is not a defence to a charge for an offence under section 61KC, 61KD, 61KE or 61KF (or under section 344A in connection with such an offence) if: (a) the accused was responsible for the care of that person (whether generally or at the time of the conduct constituting the offence), or (b) the accused engaged in the conduct constituting the offence with the intention of taking advantage of that person’s cognitive impairment. [subs (6) subst Act 33 of 2018 Sch 1[26], opn 1 Dec 2018]

(7) Defences It is a defence to a charge for an offence under subsection (2) or (3) (or under section 344A in connection with such an offence) or an offence referred to in subsection (6) in which the prosecution relies on the operation of that subsection: (a) if, at the time of the conduct constituting the offence: (i) the accused did not know the person to whom the charge relates had a cognitive impairment, or (ii) the accused was married to the person to whom the charge relates or was the de facto partner of that person, or (b) if the act constituting the offence was carried out for any proper medical or hygienic purpose. [subs (7) am Act 67 of 2012 Sch 1[1], opn 24 Sep 2012; subst Act 33 of 2018 Sch 1[26], opn 1 Dec 2018]

(8) Approval of Attorney General for prosecution A prosecution for any of the following offences may not be commenced without the approval of the Attorney General: (a) an offence under subsection (2) or (3) (or under section 344A in connection with such an offence), (b) an offence referred to in subsection (6) in which the prosecution relies on the operation of that subsection. [subs (8) subst Act 33 of 2018 Sch 1[26], opn 1 Dec 2018] [s 66F subst Act 74 of 2008 s 3 and Sch 1, opn 1 Dec 2008] Editor’s note: For proof material on s 66F, see [27-17,150] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 66F [8-s 66F.5] For commentary on repealed s 66F, as it was before 1 December 2008, please refer to [8-REP s 66F.1]–[8-REP s 66F.50] in the sub-guidecard entitled “8A – Crimes Act: Repealed Legislation”, volume 1.

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s 66F

CRIMES ACT 1900 (NSW) — PART 3

[8-s 66F.50]

PROOF MATERIAL ON SECTION 66F For the text of s 66F, see [8-s 66F] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 66F.10] Form of indictment [8-s 66F.15] Conduct by person in authority — s 66F(2) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales had sexual intercourse with [name of victim], a person with an intellectual disability, knowing that he/she was a person with an intellectual disability, and while he/she was in the authority of the said [name of accused] in connection with [name of facility or service for persons who have intellectual disabilities]. [8-s 66F.20] Taking advantage of vulnerability — s 66F(3) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, had sexual intercourse with [name of victim], a person with an intellectual disability, [name of the accused] knowing that [name of victim] was a person with an intellectual disability and with the intention of taking advantage of his/her vulnerability to sexual exploitation.

[8-s 66F.30] Elements of offence

The elements of the offence are —

[8-s 66F.35] Conduct by person in authority (1) The accused had sexual intercourse [8-s 61H] with the victim; and (2) the victim was a person with an intellectual disability [8-s 66F(1)]; and (3) the accused knew that the victim was a person with an intellectual disability;

and (4) the accused was in a position of authority in relation to the victim in a facility

or program providing services for people with intellectual disabilities. The prosecution need not prove that the complainant was not consenting, as the consent of the complainant is no defence to a charge under this section: see s 77 at [8-s 77]. [8-s 66F.40] Taking advantage of vulnerability (1) The accused had sexual intercourse [8-s 61H] with the victim; and (2) the victim was a person with an intellectual disability [8-s 66F(1)]; and (3) the accused knew that the victim was a person with an intellectual disability;

and (4) the accused intended [6-500] to take advantage of the vulnerability of the

victim to sexual exploitation. The prosecution need not prove that the complainant was not consenting, as the consent of the complainant is no defence to a charge under this section: see s 77 at [8-s 77]. [8-s 66F.45] Attempt to commit offence under this section (1) The accused intended [6-500] to commit the relevant offence (elements

outlined above); and (2) attempted [6-300] to commit that offence. The prosecution need not prove that the complainant was not consenting, as the consent of the complainant is no defence to a charge under this section: see s 77 at [8-s 77]. [8-s 66F.50] Approval or sanction of proceedings Section 66F(6) provides that no prosecution under s 66F shall be commenced without the approval of the Attorney General. The

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Crimes

[8-s 66F.25] Attempt to commit offence under this section — s 66F(4) That [name of accused] on [date of alleged offence] as [locality/suburb] in the State of New South Wales, attempted to have sexual intercourse with [name of victim], a person with an intellectual disability, [name of the accused] knowing that [name of victim] was a person with an intellectual disability and with the intention of taking advantage of his/her vulnerability to sexual exploitation.

[8-s 66F.50]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 66F

Director of Public Prosecutions is authorised by the Attorney General to consent to the prosecution of this offence: see s 11(2) of the Director of Public Prosecutions Act 1986 at [29-10,245].

67–72A [ss 67–68 rep Act 149 of 1985 s 5 and Sch 2, opn 23 Mar 1986] [s 69 renum Act 9 of 2003 s 3 and Sch 1[7], opn 13 June 2003] [s 70 renum Act 9 of 2003 s 3 and Sch 1[7], opn 13 June 2003] [ss 71–72 rep Act 149 of 1985 s 5 and Sch 2, opn 23 Mar 1986] [s 72A rep Act 184 of 1987 s 3 and Sch 2(8), opn 21 Feb 1988] Subdivision 11 — Sexual offences — young person under special care [Subdiv 11 insrt Act 33 of 2018 Sch 1[27], opn 1 Dec 2018]

[8-s 72B] Definitions 72B

In this Subdivision:

authorised carer has the same meaning as in the Children and Young Persons (Care and Protection) Act 1998. member of the teaching staff of a school means: (a) a teacher at the school, or (b) the principal or a deputy principal at the school, or (c) any other person employed at the school who has students at the school under his or her care or authority. young person means a person who is of or above the age of 16 years and under the age of 18 years.

[8-s 73] Sexual intercourse — young person between 16 and 18 under special care 73 (1) Any person who has sexual intercourse with a young person who: (a) is under his or her special care, and (b) is of or above the age of 16 years and under the age of 17 years, is liable to imprisonment for 8 years. [subs (1) am Act 33 of 2018 Sch 1[28], opn 1 Dec 2018]

(2) Any person who has sexual intercourse with a young person who: (a) is under his or her special care, and (b) is of or above the age of 17 years and under the age of 18 years, is liable to imprisonment for 4 years. [subs (2) am Act 33 of 2018 Sch 1[28], opn 1 Dec 2018]

(3) For the purposes of this section, a young person (the victim) is under the special care of another person (the offender) if, and only if: (a) the offender is the step-parent, guardian or authorised carer of the victim or the de facto partner of a parent, guardian or authorised carer of the victim, or (b) the offender is a member of the teaching staff of the school at which the victim is a student, or (c) the offender has an established personal relationship with the victim in connection with the provision of religious, sporting, musical or other instruction to the victim, or (d) the offender is a custodial officer of an institution of which the victim is an inmate, or

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s 73

CRIMES ACT 1900 (NSW) — PART 3

[8-s 73.30]

(e) the offender is a health professional and the victim is a patient of the health professional. [subs (3) am Act 67 of 2012 Sch 1[2], opn 24 Sep 2012; Act 4 of 2018 Sch 1.4[1], opn 21 Mar 2018; Act 33 of 2018 Sch 1[29], [30], opn 1 Dec 2018]

(4) [subs (4) rep Act 33 of 2018 Sch 1[31], opn 1 Dec 2018] (5) A person does not commit an offence under this section if the person and the young person to whom the charge relates were, at the time the offence is alleged to have been committed, married to each other. [subs (5) am Act 33 of 2018 Sch 1[32], opn 1 Dec 2018]

COMMENTARY ON SECTION 73 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Complaint evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Corroboration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Restrictions on disclosure of evidence . . . . . . . . . . . . . . . . . . . . . . . . . . Referral to child protection agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Victim between 16 and 17 years (s 73(1)) . . . . . . . . . . . . . . . . . . . Victim between 17 and 18 years (s 73(2)) . . . . . . . . . . . . . . . . . . . Attempts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 73.1] [8-s 73.5] [8-s 73.10] [8-s 73.15] [8-s 73.20] [8-s 73.25] [8-s 73.30] [8-s 73.35] [8-s 73.40] [8-s 73.45] [8-s 73.50]

[8-s 73.1] Definitions As to sexual intercourse, see definition at [8-s 61H]. Section 73(3)(a) was amended to include the de facto partners of various types of persons to overcome any doubt as to the correctness of JAD v R [2012] NSWCCA 73; BC201202978; 19(6) Crim LN [3071], which decision applies to offences committed before the amendment. The words “foster parent” have been interpreted to include a de facto partner of the child’s mother: JAD v R [2012] NSWCCA 73; BC201202978; 19(6) Crim LN [3071]. [8-s 73.5] Consent

Consent is no defence to a charge under this section: see s 77 at [8-s 77].

[8-s 73.10] Complaint evidence [8-s 73.15] Corroboration

See at [8-s 61I.10].

See at [8-s 61I.15].

[8-s 73.20] Restrictions on disclosure of evidence By reason of s 290 of the Criminal Procedure Act, proceedings may be held in camera under s 291 of that Act, see at [2-s 291]. The court may make a suppression order or non-publication order upon a number of grounds, including the avoidance of undue distress or embarrassment to a party to, or witness in, criminal proceedings involving offences of a sexual nature (including an act of indecency): s 8 Court Suppression and Non-publication Orders Act 2010 at [29-9130]. Section 578A of the Crimes Act 1900 at [8-s 578A] prohibits the publication of any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant. [8-s 73.25] Referral to child protection agency The court has power to refer a person convicted of an offence where the child is under the authority of the offender to appropriate child protection agency: see [8-s 80AA] PROOF MATERIAL ON SECTION 73 For the text of s 73, see [8-s 73] behind the “8 – Crimes Act” guide card in Vol 1.

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Crimes

(6) [subs (6) insrt Act 4 of 2018 Sch 1.4[2], opn 21 Mar 2018; rep Act 33 of 2018 Sch 1[33], opn 1 Dec 2018] [s 73 subst Act 9 of 2003 s 3 and Sch 1[12], opn 13 June 2003]

[8-s 73.30]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 73

[8-s 73.30] Form of indictment [8-s 73.35] Victim between 16 and 17 years (s 73(1)) That [name of accused] on [date of alleged offence] at locality/suburb in the State of New South Wales had sexual intercourse with [name of victim], he/she being then under the special care of [name of accused] and then of/above the age of 16 years and under the age of 17 years, namely [x] years. [8-s 73.40] Victim between 17 and 18 years (s 73(2)) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales had sexual intercourse with [name of victim], he/she being then under the special care of [name of accused] and then of/above the age of 17 years and under the age of 18 years, namely [x] years. [8-s 73.45] Attempts That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales attempted to have sexual intercourse with [name of victim], he/she being then under the special care of [name of accused] and then of/above the age of 16/17 years and under the age of 17/18 years, namely [x] years. [8-s 73.50] Elements of offence The elements of the offence are: (1) The accused attempted to have or had sexual intercourse [8-s 61H] with the

victim; (2) The victim was then under the special care of the accused [8-s 73]; and (3) (3) The victim was then: (i) Of or above the age of 16 years and under the age of 17 years; or (ii) Of or above the age of 17 years and under the age of 18 years. The prosecution need not prove that the complainant was not consenting, as the consent of the complainant is no defence to a charge under this section: see s 77 at [8-s 77].

[8-s 73A] Sexual touching — young person between 16 and 18 under special care 73A (1) Any person who intentionally: (a) sexually touches a young person under the person’s special care, or (b) incites a young person under the person’s special care to sexually touch the person, or (c) incites a young person under the person’s special care to sexually touch another person, or (d) incites another person to sexually touch a young person under the first person’s special care, is guilty of an offence. Maximum penalty: (a) in the case of a young person who is of or above the age of 16 years and under the age of 17 years — imprisonment for 4 years, or (b) in the case of a young person who is of or above the age of 17 years and under the age of 18 years — imprisonment for 2 years. (2) A person does not commit an offence under this section if the person and the young person to whom the charge relates were, at the time the offence is alleged to have been committed, married to each other. (3) For the purposes of this section, a young person (the victim) is under the special care of another person (the offender) if, and only if: (a) the offender is the parent, grandparent, step-parent, guardian or authorised carer of the victim or the de facto partner of a parent, guardian or authorised carer of the victim, or

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s 78A

CRIMES ACT 1900 (NSW) — PART 3

[8-s 78A.15]

(b) the offender is a member of the teaching staff of the school at which the victim is a student, or (c) the offender has an established personal relationship with the victim in connection with the provision of religious, sporting, musical or other instruction to the victim, or (d) the offender is a custodial officer of an institution of which the victim is an inmate, or (e) the offender is a health professional and the victim is a patient of the health professional. [s 73A insrt Act 33 of 2018 Sch 1[34], opn 1 Dec 2018]

74–76A [ss 74–75 rep Act 9 of 2003 s 3 and Sch 1[12], opn 13 June 2003] [ss 76–76A rep Act 42 of 1981 s 4 and Sch 1[8], opn 14 July 1981] 77A–78 [77–78 renum as s 80AE Sch 1[9], opn 1 Dec 2018] [s 77A rep Act 94 of 1999 s 5 and Sch 3[10], opn 1 Jan 2000] [s 78 rep Act 2 of 1992 Sch 1[5], opn 3 May 1992] Subdivision 12 — Incest

[8-s 78A] Incest 78A (1) Any person who has sexual intercourse with a close family member who is of or above the age of 16 years is liable to imprisonment for 8 years. (2) For the purposes of this section, a close family member is a parent, son, daughter, sibling (including a half-brother or half-sister), grandparent or grandchild, being such a family member from birth. [s 78A subst Act 9 of 2003 s 3 and Sch 1[15], opn 13 June 2003] Editor’s note: For proof material on current s 78A, see [27-17,300] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 78A Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Complaint evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Corroboration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Defence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sanction of Attorney-General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Restrictions on disclosure of evidence . . . . . . . . . . . . . . . . . . . . . . . . . . Referral to child protection agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Statutory defence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Approval or sanction of proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 78A.1] Definitions [8-s 78A.5] Consent

[8-s 78A.1] [8-s 78A.5] [8-s 78A.10] [8-s 78A.15] [8-s 78A.20] [8-s 78A.25] [8-s 78A.30] [8-s 78A.35] [8-s 78A.40] [8-s 78A.45] [8-s 78A.50] [8-s 78A.55]

As to sexual intercourse, see definition at [8-s 61H]. Consent is no defence: see [8-s 78C].

[8-s 78A.10] Complaint evidence [8-s 78A.15] Corroboration

See at [8-s 61I.10].

See at [8-s 61I.15].

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Crimes

[Subdiv 12 heading insrt Act 33 of 2018 Sch 1[35], opn 1 Dec 2018]

[8-s 78A.20]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 78A

[8-s 78A.20] Defence It is a defence where the person charged is not aware of the relationship of the complainant with the accused: [8-s 78C]. [8-s 78A.25] Sanction of Attorney-General

See [8-s 78F].

[8-s 78A.30] Restrictions on disclosure of evidence By reason of s 290 of the Criminal Procedure Act, proceedings may be held in camera under s 291 of that Act, see at [2-s 291]. The court may make a suppression order or non-publication order upon a number of grounds, including the avoidance of undue distress or embarrassment to a party to, or witness in, criminal proceedings involving offences of a sexual nature (including an act of indecency): s 8 Court Suppression and Non-publication Orders Act 2010 at [29-9130]. Section 578A of the Crimes Act 1900 at [8-s 578A] prohibits the publication of any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant. [8-s 78A.35] Referral to child protection agency The court has power to refer a person convicted of an offence where the child is under the authority of the offender to appropriate child protection agency: see [8-s 80AA] PROOF MATERIAL ON SECTION 78A For the text of s 78A, see [8-s 78A] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 78A.40] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales had sexual intercourse with [name of victim] he/she being a close family member, namely the mother /father /son /daughter /sibling /grandmother /grandfather/granddaughter/grandson of [name of accused], and he/she then being of/above the age of 16 years namely [x] years. [8-s 78A.45] Elements of offence The elements of the offence are — (1) The accused had sexual intercourse [8-s 61H] with another person; and (2) That person was a close family member as defined in the section [8-s 78A(2)]; and (3) That person was of or above the age of 16 years. The prosecution need not prove that the complainant was not consenting, as the consent of the complainant is no defence to a charge under this section: see s 78C(2) at [8-s 78C]. [8-s 78A.50] Statutory defence Section 78C(1) provides that it is a sufficient defence to a charge under this section that the accused did not know that the person with whom the offence is alleged to have been committed was related to him/her as alleged in the charge: see s 78C at [8-s 78C]. [8-s 78A.55] Approval or sanction of proceedings Section 78F(1) provides that no prosecution under s 78A shall be commenced without the sanction of the Attorney-General: see [8-s 78F]. The Director of Public Prosecutions is authorised by the Attorney-General to consent to the prosecution of this offence: see s 11(2) of the Director of Public Prosecutions Act 1986 at [29-10,245].

[8-s 78B] Incest attempts 78B Any person who attempts to commit an offence under section 78A is liable to imprisonment for two years. [s 78B am Act 9 of 2003 s 3 and Sch 1[16], opn 13 June 2003] Editor’s note: For proof material on s 78B, see [27-17,350] behind the “27 – Informations and Indictments” guide card in Vol 4.

958

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s 78B

CRIMES ACT 1900 (NSW) — PART 3

COMMENTARY ON SECTION 78B Attempts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Restrictions on disclosure of evidence . . . . . . . . . . . . . . . . . . . . . . . . . . Referral to child protection agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Statutory defence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Approval or sanction of proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 78B.1] [8-s 78B.5] [8-s 78B.10] [8-s 78B.15] [8-s 78B.20] [8-s 78B.25] [8-s 78B.30]

See [8-s 344A].

[8-s 78B.5] Restrictions on disclosure of evidence As the offence is a prescribed sexual offence under s 3 of the Criminal Procedure Act, proceedings may be held in camera, see at [2-s 291]. The court may make a suppression order or non-publication order upon a number of grounds, including the avoidance of undue distress or embarrassment to a party to, or witness in, criminal proceedings involving offences of a sexual nature (including an act of indecency): s 8 Court Suppression and Non-publication Orders Act 2010 at [29-9130]. Section 578A of the Crimes Act 1900 at [8-s 578A] prohibits the publication of any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant. There are also restrictions on the disclosure of sexual assault communications under Part 5 of the Criminal Procedure Act, see at [2-s 290] and following. [8-s 78B.10] Referral to child protection agency The court has power to refer a person convicted of an offence where the child is under the authority of the offender to appropriate child protection agency: see [8-s 80AA] PROOF MATERIAL ON SECTION 78B For the text of s 78B, see [8-s 78B] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 78B.15] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales attempted to have sexual intercourse with [name of victim] he/she being a close family member, namely the mother /father /son /daughter /sibling /grandmother /grandfather/granddaughter/grandson of [name of accused], and he/she then being of/above the age of 16 years namely [x] years. [8-s 78B.20] Elements of offence The elements of the offence are — (1) (1) The accused intended [6-500] to commit an offence under s 78A (see

[27-17,305]); and (2) (2) The accused attempted [6-300] to commit that offence. The prosecution need not prove that the complainant was not consenting, as the consent of the complainant is no defence to a charge under this section: see s 78C at [8-s 78C]. [8-s 78B.25] Statutory defence Section 78C(1) provides that it is a sufficient defence to a charge under this section that the accused did not know that the person with whom the offence is alleged to have been committed was related to him/her as alleged in the charge: see s 78C at [8-s 78C]. [8-s 78B.30] Approval or sanction of proceedings Section 78F(1) provides that no prosecution under s 78B shall be commenced without the sanction of the Attorney General: see s 78F at [8-s 78F]. The Director of Public Prosecutions is authorised by the Attorney General to consent to the prosecution of this offence: see s 11(2) of the Director of Public Prosecutions Act 1986 at [29-10,245].

959

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Crimes

[8-s 78B.1] Attempts

[8-s 78B.30]

[8-s 78C]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 78C

[8-s 78C] Defences 78C (1) It shall be a sufficient defence to a charge under section 78A or section 78B that the person charged did not know that the person with whom the offence is alleged to have been committed was related to him or her, as alleged. (2) It shall be no defence to a charge under section 78A or section 78B that the person with whom the offence is alleged to have been committed consented thereto. COMMENTARY ON SECTION 78C Referral to child protection agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 78C.1]

[8-s 78C.1] Referral to child protection agency The court has power to refer a person convicted of an offence where the child is under the authority of the offender to appropriate child protection agency: see [8-s 80AA]

78D–78E [s 78D rep Act 9 of 2003 s 3 and Sch 1[17], opn 13 June 2003] [s 78E renum Act 9 of 2003 s 3 and Sch 1[7], opn 13 June 2003]

[8-s 78F] Sanction of Attorney-General 78F (1) No prosecution for an offence under sections 78A or 78B shall be commenced without the sanction of the Attorney-General. (2) [subs (2) rep Act 43 of 2000 Sch 1[4], opn 31 July 2000] COMMENTARY ON SECTION 78F Sanction of Attorney General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Referral to child protection agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 78F.1] [8-s 78F.5]

[8-s 78F.1] Sanction of Attorney General The Director of Public Prosecutions is authorised by the Attorney General to consent to the prosecution of these offences: see s 11(2) of the Director of Public Prosecutions Act at [29-10,245]. [8-s 78F.5] Referral to child protection agency The court has power to refer a person convicted of an offence where the child is under the authority of the offender to appropriate child protection agency: see [8-s 80AA]

78G–78T [s 78G rep Act 9 of 2003 s 3 and Sch 1[18], opn 13 June 2003] [ss 78H–78I rep Act 90 of 2002 s 3 and Sch 2[3], opn 1 Feb 2003] [ss 78J–78L rep Act 9 of 2003 s 3 and Sch 1[18], opn 13 June 2003] [s 78M rep Act 184 of 1987 s 3 and Sch 2(10), opn 21 Feb 1988] [ss 78N–78R rep Act 9 of 2003 s 3 and Sch 1[18], opn 13 June 2003] [s 78S rep Act 184 of 1987 s 3 and Sch 3[3], opn 21 Feb 1988] [78T renum Act 9 of 2003 s 3 and Sch 1[7], opn 13 June 2003] Subdivision 13 — Bestiality [Subdiv 13 heading insrt Act 33 of 2018 Sch 1[36], opn 1 Dec 2018]

[8-s 79] Bestiality 79 Any person who commits an act of bestiality with any animal shall be liable to imprisonment for fourteen years. [s 79 am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000] Editor’s note: For proof material on s 79, see [27-17,750] behind the “27 – Informations and Indictments” guide card in Vol 4.

960

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s 80

[8-s 80.1]

CRIMES ACT 1900 (NSW) — PART 3

COMMENTARY ON SECTION 79 Bestiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Restrictions on disclosure of evidence . . . . . . . . . . . . . . . . . . . . . . . . . . Referral to child protection agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Element of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 79.1] [8-s 79.5] [8-s 79.10] [8-s 79.15] [8-s 79.20]

[8-s 79.1] Bestiality Bestiality at common law was committing an act of sexual penetration by or with an animal or bird: R v Bourne (1952) 36 Cr App Rep 125. The offence can be committed by either a man or a woman: R v Packer [1932] VLR 225.

[8-s 79.10] Referral to child protection agency The court has power to refer a person convicted of an offence where the child is under the authority of the offender to appropriate child protection agency: see [8-s 80AA] PROOF MATERIAL ON SECTION 79 For the text of s 79, see [8-s 79] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 79.15] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did commit an act of bestiality with an animal, to wit [name type of animal]. [8-s 79.20] Element of offence The element of the offence is — (1) That the accused committed an act of bestiality, that is, he/she did carnally know an animal.

[8-s 80] Attempt to commit bestiality 80 Any person who attempts to commit an act of bestiality with any animal shall be liable to imprisonment for five years. [s 80 am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000] Editor’s note: For proof material on current s 80, see [27-17,800] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 80 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Restrictions on disclosure of evidence . . . . . . . . . . . . . . . . . . . . . . . . . . Referral to child protection agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Element of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 80.1] [8-s 80.5] [8-s 80.10] [8-s 80.15] [8-s 80.20] [8-s 80.25]

[8-s 80.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act and is to be dealt with in a Local Court unless an election is made for trial

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Crimes

[8-s 79.5] Restrictions on disclosure of evidence As the offence is a prescribed sexual offence under s 3 of the Criminal Procedure Act, proceedings may be held in camera, see at [2-s 291]. The court may make a suppression order or non-publication order upon a number of grounds, including the avoidance of undue distress or embarrassment to a party to, or witness in, criminal proceedings involving offences of a sexual nature (including an act of indecency): s 8 Court Suppression and Non-publication Orders Act 2010 at [29-9130]. There are also restrictions on the disclosure of sexual assault communications under Pt 5 of the Criminal Procedure Act, see at [2-s 290] and following.

[8-s 80.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 80

on indictment, see at [2-s 260] and [2-Sch 1] Pt 1 cl 2. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 80.5] Definitions

As to bestiality see at [8-s 79.1]. As to attempt see [8-s 344A].

[8-s 80.10] Restrictions on disclosure of evidence As the offence is a prescribed sexual offence under s 3 of the Criminal Procedure Act, proceedings may be held in camera, see at [2-s 291]. The court may make a suppression order or non-publication order upon a number of grounds, including the avoidance of undue distress or embarrassment to a party to, or witness in, criminal proceedings involving offences of a sexual nature (including an act of indecency): s 8 Court Suppression and Non-publication Orders Act 2010 at [29-9130]. There are also restrictions on the disclosure of sexual assault communications under Pt 5 of the Criminal Procedure Act, see at [2-s 290] and following. [8-s 80.15] Referral to child protection agency The court has power to refer a person convicted of an offence where the child is under the authority of the offender to appropriate child protection agency: see [8-s 80AA] PROOF MATERIAL ON SECTION 80 For the text of s 80, see [8-s 80] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 80.20] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, did attempt to commit an act of bestiality upon [name type of animal]. [8-s 80.25] Element of offence The element of the offence is — (1) The accused attempted [6-300] to commit an act of bestiality.

Subdivision 14 — Sexual assault by forced self-manipulation [Subdiv 14 heading insrt Act 33 of 2018 Sch 1[37], opn 1 Dec 2018]

[8-s 80A] Sexual assault by forced self-manipulation 80A (1) In this section: circumstances of aggravation means circumstances in which: (a) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or (b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or (c) the alleged offender is in the company of another person or persons, or (d) the alleged victim is under the age of 16 years, or (e) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (f) the alleged victim has a serious physical disability, or (g) the alleged victim has a cognitive impairment. [def insrt Act 11 of 2004 Sch 4, opn 24 Mar 2004; am Act 38 of 2007 s 3 and Sch 1[3], opn 15 Feb 2008; Act 74 of 2008 s 3 and Sch 1, opn 1 Dec 2008]

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s 80A

CRIMES ACT 1900 (NSW) — PART 3

[8-s 80A.10]

self-manipulation means the penetration of the vagina (including a surgically constructed vagina) or anus of any person by an object manipulated by the person, except where the penetration is carried out for proper medical or other proper purposes. threat means: (a) a threat of physical force, or (b) intimidatory or coercive conduct, or other threat, which does not involve a threat of physical force. (2) Any person who compels another person to engage in self-manipulation, by means of a threat that the other person could not reasonably be expected to resist, is liable to imprisonment for 14 years. [subs (2) subst Act 11 of 2004 Sch 4, opn 24 Mar 2004]

(2A) Any person who compels another person to engage in self-manipulation: (a) by means of a threat that the other person could not reasonably be expected to resist, and (b) in circumstances of aggravation, is liable to imprisonment for 20 years. (3) A person does not commit an offence under this section unless the person knows that the other person engages in the self-manipulation as a result of the threat. [s 80A insrt Act 198 of 1989 s 3 and Sch 1[6], opn 17 Mar 1991] Editor’s note: For proof material on current s 80A, see [27-17,850] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 80A Complaint evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Corroboration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Compellability of spouse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Reading of depositions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Evidence of other sexual activity by or with the complainant . . . . . Restrictions on disclosure of evidence . . . . . . . . . . . . . . . . . . . . . . . . . . Referral to child protection agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Personal violence offence/domestic violence offence . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Simple form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Aggravated form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Simple form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Aggravated form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 80A.1] Complaint evidence

[8-s 80A.1] [8-s 80A.2] [8-s 80A.5] [8-s 80A.10] [8-s 80A.15] [8-s 80A.20] [8-s 80A.25] [8-s 80A.30] [8-s 80A.35] [8-s 80A.40] [8-s 80A.45] [8-s 80A.50] [8-s 80A.55] [8-s 80A.60] [8-s 80A.65]

See at [8-s 61I.10].

[8-s 80A.2] Definitions As to “in company with another person” see [8-s 61J.1]. As to “recklessly” see [8-s 4A]. As to “under the authority of another person” see [8-s 61H.10]. As to “offensive weapon” see [8-s 4]. As to “actual bodily harm” see [8-s 59.5]. [8-s 80A.5] Corroboration

See at [8-s 61I.15].

[8-s 80A.10] Compellability of spouse Where the offence was committed upon a child under the age of 18 years, the spouse of the accused is compellable to give evidence at the hearing of the offence: see at [2-s 279].

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Crimes

[subs (2A) insrt Act 11 of 2004 Sch 4, opn 24 Mar 2004]

[8-s 80A.15]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 80A

[8-s 80A.15] Reading of depositions In certain cases depositions of evidence may be read in committal proceedings: see at [2-s 288]. [8-s 80A.20] Evidence of other sexual activity by or with the complainant Evidence of the sexual reputation of the complainant is inadmissible and there are restrictions on the admissibility of evidence relating to the complainant’s sexual experience, see at [2-s 293]. However evidence of other sexual activity between the complainant and the accused may be admissible as an exception under s 293(4) or as evidence of relationship, see at [3-s 97.10] and generally (1997) 4 Crim LN 22 [679]. [8-s 80A.25] Restrictions on disclosure of evidence As the offence is a prescribed sexual offence under s 3 of the Criminal Procedure Act, proceedings may be held in camera, see at [2-s 291]. The court may make a suppression order or non-publication order upon a number of grounds, including the avoidance of undue distress or embarrassment to a party to, or witness in, criminal proceedings involving offences of a sexual nature (including an act of indecency): s 8 Court Suppression and Non-publication Orders Act 2010 at [29-9130]. Section 578A of the Crimes Act 1900 at [8-s 578A] prohibits the publication of any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant. There are also restrictions on the disclosure of sexual assault communications under Pt 5 of the Criminal Procedure Act, see at [2-s 290] and following. [8-s 80A.30] Referral to child protection agency The court has power to refer a person convicted of an offence where the child is under the authority of the offender to appropriate child protection agency: see [8-s 80AA] [8-s 80A.35] Personal violence offence/domestic violence offence This offence (or an offence of attempting to commit this offence) is a “personal violence offence” as defined in s 4 of the Crimes (Domestic and Personal Violence) Act 2007 at [8-5015] and, when committed by a person against another person with whom the offender has or has had a domestic relationship, is a “domestic violence offence” as defined in s 11 of that Act at [8-5240]. PROOF MATERIAL ON SECTION 80A For the text of s 80A, see [8-s 80A] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 80A.40] Form of indictment [8-s 80A.45] Simple form That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, compelled [name of victim], by means of threat, to engage in self-manipulation, in circumstances where he/she could not reasonably have been expected to resist that threat, and knowing that he/she engaged in that self-manipulation as a result of that threat. [8-s 80A.50] Aggravated form That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales while in the company of another person/other persons (if applicable) compelled, by means of threat, [name of victim], a child under 16 years, namely [x] year /a person under his/her authority/a person with a serious physical/intellectual disability, to engage in self-manipulation, in circumstances where he/she could not reasonably have been expected to resist that threat, and knowing that he/she engaged in that self-manipulation as a result of that threat, and at the time/immediately before/immediately after the commission of the offence, intentionally/recklessly inflicted actual bodily harm/threatened to inflict actual bodily harm by means of an offensive weapon/instrument being [description of weapon] on him/her. Or, if the person on whom the accused is alleged to have inflicted actual bodily harm, or threatened to inflict actual bodily harm, is different from the person upon whom the offence is alleged to have been committed:

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s 80AA

CRIMES ACT 1900 (NSW) — PART 3

[8-s 80AA.1]

That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales while in the company of another person/other persons (if applicable) compelled, by means of threat, [name of victim], a child under 16 years, namely [x] years/a person under his/her authority/a person with a serious physical/intellectual disability, to engage in self-manipulation, in circumstances where he/she could not reasonably have been expected to resist that threat, and knowing that he/she engaged in that self-manipulation as a result of that threat, and at the time/immediately before/immediately after the commission of the offence, intentionally/recklessly inflicted actual bodily harm/threatened to inflict actual bodily harm by means of an offensive weapon/instrument being [description of weapon] on [name of 2nd victim] who was present/nearby. [8-s 80A.55] Elements of offence

The elements of the offence are —

[8-s 80A.60] Simple form (1) That the accused compelled, by means of threat [8-s 80A(1)], the victim to

engage in self-manipulation [8-s 80A(1)]; and (2) the victim engaged in self-manipulation; and (3) the victim engaged in self-manipulation as a result of the threat. [8-s 80A.65] Aggravated form (1) That the accused compelled, by means of threat [8-s 80A(1)], the victim to

Subdivision 15 — Miscellaneous [Subdiv 15 heading insrt Act 33 of 2018 Sch 1[38], opn 1 Dec 2018]

[8-s 80AA] Referral to child protection agency 80AA On conviction of a person for an offence under this Division, the court may refer the matter to an appropriate child protection agency if the person against whom or with whom the offence was committed is under the authority of the offender. [s 80AA insrt Act 9 of 2003 s 3 and Sch 1[19], opn 13 June 2003]

COMMENTARY ON SECTION 80AA Referral to child protection agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 80AA.1]

[8-s 80AA.1] Referral to child protection agency The court has power to refer a person convicted of an offence where the child is under the authority of the offender to appropriate child protection agency: see [8-s 80AA]

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Crimes

engage in self-manipulation [8-s 80A(1)]; and (2) the victim engaged in self-manipulation; and (3) the victim engaged in self-manipulation as a result of the threat; and (a) at the time of, immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly [8-s 4A.1] inflicts actual bodily harm on the alleged victim or any other person who is present or nearby; or (b) at the time of, immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon/instrument; or (c) the alleged offender is in the company of another person or persons; or (d) the alleged victim is under the age of 16 years; or (e) the alleged victim is under the authority of the alleged offender; or (f) the alleged victim has a serious physical disability; or (g) the alleged victim has a serious intellectual disability.

[8-s 80AB]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 80AB

[8-s 80AB] Alternative verdicts 80AB (1) Question of aggravation If on the trial of a person for an offence under section 61J, 61KD or 61KF the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 61I, 61KC or 61KE, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. [subs (1) am Act 33 of 2018 Sch 1[39], [40], opn 1 Dec 2018]

(1A) Question of aggravation in company If on the trial of a person for an offence under section 61JA the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 61I or 61J, it may find the person not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. [subs (1A) insrt Act 62 of 2001 s 3 and Sch 1[4], opn 1 Oct 2001]

(2) Question of consent regarding alleged victim under 16 If on the trial of a person for an offence under section 61I the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 66C(3) or 66C(4), it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. [subs (2) am Act 9 of 2003 s 3 and Sch 1[2], opn 13 June 2003]

(3) Question of consent or authority regarding alleged victim under 16 If on the trial of a person for an offence under section 61J or 61JA the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 66A or 66C, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. [subs (3) am Act 62 of 2001 s 3 and Sch 1[5], opn 1 Oct 2001; am Act 9 of 2003 s 3 and Sch 1[3], opn 13 June 2003]

(4) Question of consent regarding incest If on the trial of a person for an offence under section 61I or 61J the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 78A or 78B, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. [s 61Q insrt Act 198 of 1989 s 3 and Sch 1[3], opn 17 Mar 1991]

(5) Question of consent regarding cognitive impairment If on the trial of a person for an offence under section 61I, 61J or 61JA, the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 66F, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. [subs (5) insrt Act 74 of 2008 s 3 and Sch 1, opn 1 Dec 2008]

(6) Question of whether offence committed for purposes of production of child abuse material If on the trial of a person for an offence under section 66DF the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 66DC or 66DD, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. [subs (6) insrt Act 105 of 2008 s 3 and Sch 1, opn 1 Jan 2009; am Act 9 of 2010 Sch 1, opn 17 Sep 2010; Act 33 of 2018 Sch 1[41], [42], opn 1 Dec 2018]

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s 80AB

[8-s 80AB.5]

CRIMES ACT 1900 (NSW) — PART 3

(7) If on the trial of a person for an offence under section 66A the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 66B, 66C(1), (2), (3) or (4) or 66D, it may find the accused not guilty of the offence charged but guilty of an offence under section 66B, 66C(1), (2), (3) or (4) or 66D. The accused is liable to punishment accordingly. [subs (1) am Act 13 of 2015 Sch 1[2], opn 29 June 2015; renum as subs (7) Act 33 of 2018 Sch 1[18], opn 1 Dec 2018]

(8) If on the trial of a person for an offence under section 66C(2) or (4) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 66C(1) or (3), it may find the accused not guilty of the offence charged but guilty of an offence under section 66C(1) or (3). The accused is liable to punishment accordingly. [subs (3) renum as subs (8) Act 33 of 2018 Sch 1[18], opn 1 Dec 2018]

[subs (4) renum as subs (9) Act 33 of 2018 Sch 1[18], opn 1 Dec 2018]

(10) If on the trial of a person for an offence under section 66C the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 66D, it may find the accused not guilty of the offence charged but guilty of an offence under section 66D. The accused is liable to punishment accordingly. [subs (5) renum as subs (10) Act 33 of 2018 Sch 1[18], opn 1 Dec 2018]

(11) If on the trial of a person for an offence under section 66A, 66B, 66C or 66D the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 66DA or 66DB, it may find the accused not guilty of the offence charged but guilty of an offence under section 66DA or 66DB. The accused is liable to punishment accordingly. [subs (6) am and renum as subs (11) Act 33 of 2018 Sch 1[17], [18], opn 1 Dec 2018] [s 61Q renum as s 80AB Act 33 of 2018 Sch 1[9], opn 1 Dec 2018]

COMMENTARY ON SECTION 80AB Alternative verdicts available . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Referral to child protection agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 80AB.1] [8-s 80AB.5]

[8-s 80AB.1] Alternative verdicts available The alternative verdicts open to the jury are not restricted to those mentioned in the section and the jury are entitled to find any lesser offence which is necessarily proved toward establishing the offence charged: R v Beserick (1993) 30 NSWLR 510; 66 A Crim R 419 applying R v Cameron [1983] 2 NSWLR 66 and overruling R v Smith (GWJ) [1982] 2 NSWLR 490. Where the section provides for an alternative verdict, such a verdict is available even though an information for such an offence would be statute-barred: R v Van Dyk [2000] NSWCCA 67; BC200001101; (2000) 7 Crim LN 19 [1131]. [8-s 80AB.5] Referral to child protection agency The court has power to refer a person convicted of an offence where the child is under the authority of the offender to appropriate child protection agency: see [8-s 80AA]

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(9) If on the trial of a person for an offence under section 66C(1) or (2) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 66C(3) or (4), it may find the accused not guilty of the offence charged but guilty of an offence under section 66C(3) or (4). The accused is liable to punishment accordingly.

[8-s 80AC]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 80AC

[8-s 80AC] Offenders who are minors 80AC (1) For the purposes of any offence, a person is not, by reason only of age, to be presumed incapable of having sexual intercourse with another person or of having an intent to have sexual intercourse with another person. [subs (1) am Act 85 of 1997 s 3 and Sch 1.2[1], opn 30 Mar 1998]

(2) Subsection (1) does not affect the operation of any law relating to the age at which a child can be convicted of an offence. [s 61S insrt Act 198 of 1989 s 3 and Sch 1[3], opn 17 Mar 1991; renum as s 80AC Act 33 of 2018 Sch 1[9], opn 1 Dec 2018]

COMMENTARY ON SECTION 80AC Referral to child protection agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 80AC.1]

[8-s 80AC.1] Referral to child protection agency The court has power to refer a person convicted of an offence where the child is under the authority of the offender to appropriate child protection agency: see [8-s 80AA]

[8-s 80AD] Common law offences of rape and attempted rape abolished 80AD (1) The common law offences of rape and attempted rape are abolished. (2) Parts 1A, 1 and 19 of Schedule 11 make provision with respect to rape and other former sexual offences. [subs (2) insrt Act 9 of 2003 s 3 and Sch 1[6], opn 13 June 2003; am Act 27 of 2003 s 3 and Sch 3[2], opn 8 July 2003; Act 38 of 2007 s 3 and Sch 2[4], opn 27 Sep 2007] [s 63 renum as s 80AD Act 33 of 2018 Sch 1[9], opn 1 Dec 2018]

COMMENTARY ON SECTION 80AD Referral to child protection agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 80AD.1]

[8-s 80AD.1] Referral to child protection agency The court has power to refer a person convicted of an offence where the child is under the authority of the offender to appropriate child protection agency: see [8-s 80AA]

[8-s 80AE] Consent no defence in certain cases 80AE (1) The consent of the child or other person to whom the charge relates shall be no defence to a charge under section 61E(1A), (2) or (2A), 61M(2), 61N(1), 61O(1), (2) or (2A), 66A, 66B, 66C, 66D, 66DA, 66DB, 66DC, 66DD, 66DE, 66DF, 66EA, 66EB, 66EC, 67, 68, 71, 72, 72A, 73, 73A, 74 or 76A or, if the child to whom the charge relates was under the age of 16 years at the time the offence is alleged to have been committed, to a charge under section 61E(1), 61L, 61M(1) or 76. [subs (1) am Act 184 of 1987 s 3 and Sch 2(9); Act 198 of 1989 s 3 and Sch 1[5], opn 17 Mar 1991; Act 23 of 1995 Sch 1; Act 131 of 1998 s 3 and Sch 1[3], opn 15 Jan 1999; Act 9 of 2003 s 3 and Sch 1[13], opn 13 June 2003; Act 74 of 2007 s 3 and Sch 1[2], opn 18 Jan 2008; Act 74 of 2008 s 3 and Sch 1 opn 1 Dec 2008; Act 105 of 2008 s 3 and Sch 1, opn 1 Jan 2009; Act 13 of 2015 Sch 1[4], opn 29 June 2015; Act 33 of 2018 Sch 1[43]–[45], opn 1 Dec 2018]

(2) [subs (2) rep Act 9 of 2003 s 3 and Sch 1[14], opn 13 June 2003] [s 77 subst Act 149 of 1985 s 5 and Sch 2[15], opn 23 Mar 1986; renum as s 80AE Act 33 of 2018 Sch 1[9], opn 1 Dec 2018]

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s 80AG

CRIMES ACT 1900 (NSW) — PART 3

COMMENTARY ON SECTION 80AE Referral to child protection agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 80AG]

[8-s 80AE.1]

[8-s 80AE.1] Referral to child protection agency The court has power to refer a person convicted of an offence where the child is under the authority of the offender to appropriate child protection agency: see [8-s 80AA]

80AF (1) This section applies if: (a) it is uncertain as to when during a period conduct is alleged to have occurred, and (b) the victim of the alleged conduct was for the whole of that period a child, and (c) there was no time during that period that the alleged conduct, if proven, would not have constituted a sexual offence, and (d) because of a change in the law or a change in the age of the child during that period, the alleged conduct, if proven, would have constituted more than one sexual offence during that period. (2) In such a case, a person may be prosecuted in respect of the conduct under any of those sexual offences (except one that has a higher maximum penalty than any one or more of the other offences) regardless of when during that period the conduct actually occurred. [subs (2) subst Act 10 of 2019 Sch 1.6[1], opn 26 Sep 2019]

(2A) In prosecuting an offence referred to in subsection (2)— (a) any requirement to establish that the offence charged was in force is satisfied if the prosecution can establish that the offence was in force at some time during that period, and (b) any requirement to establish that the victim was of a particular age is satisfied if the prosecution can establish that the victim was of that age at some time during that period. [subs (2A) insrt Act 10 of 2019 Sch 1.6[1], opn 26 Sep 2019]

(3) In this section: child means a person who is under the age of 16 years. sexual offence means the following offences regardless of when the offence occurred: (a) an offence under a provision of this Division or Division 10A, 10B, 15 or 15A, (b) an offence under a provision of this Act set out in Column 1 of Schedule 1A, (c) an offence (whether under section 344A or otherwise) of attempting to commit any offence referred to in paragraph (a) or (b), (d) an offence under a previous enactment that is substantially similar to an offence referred to in paragraphs (a)–(c). [s 80AF insrt Act 33 of 2018 Sch 1[46], opn 1 Dec 2018]

[8-s 80AG] Defence of similar age 80AG (1) It is a defence to a prosecution for an offence under section 66C(3),

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[8-s 80AF] Uncertainty about time when sexual offence against child occurred

[8-s 80AG]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 80AG

66DB, 66DD, 73 or 73A if the alleged victim is of or above the age of 14 years and the age difference between the alleged victim and the accused person is no more than 2 years. (2) In any criminal proceedings in which the application of this section is raised, the prosecution has the onus of proving, beyond reasonable doubt, that the alleged victim was less than 14 years of age or that the difference in age between the alleged victim and the accused person is more than 2 years. [s 80AG insrt Act 33 of 2018 Sch 1[46], opn 1 Dec 2018]

DIVISION 10A — SEXUAL SERVITUDE [Div insrt Act 99 of 2001 s 3 and Sch 1, opn 22 Mar 2002]

[8-s 80B] Meaning of “sexual servitude” 80B (1) For the purposes of this Division, sexual servitude is the condition of a person who provides sexual services and who, because of the use of force or threats: (a) is not free to cease providing sexual services, or (b) is not free to leave the place or area where the person provides sexual services. (2) In this section: sexual service means the commercial use or display of the body of the person providing the service for the sexual arousal or sexual gratification of others. threat (a) (b) (c)

means: a threat of force, or a threat to cause a person’s deportation, or a threat of any other detrimental action unless there are reasonable grounds for the threat of that action in connection with the provision of sexual services by a person.

[8-s 80C] Meaning of “circumstances of aggravation” 80C In this Division, circumstances of aggravation means circumstances involving either or both of the following: (a) the alleged victim is under the age of 18 years, (b) the alleged victim has a cognitive impairment (within the meaning of Division 10). [s 80C am Act 74 of 2008 s 3 and Sch 1, opn 1 Dec 2008]

[8-s 80D] Causing sexual servitude 80D (1) A person: (a) who causes another person to enter into or remain in sexual servitude, and (b) who intends to cause, or is reckless as to causing, that sexual servitude, is guilty of an offence. Maximum penalty: Imprisonment for 15 years. (2) A person is guilty of an offence against this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. Maximum penalty: Imprisonment for 20 years. [subs (2) am Act 105 of 2008 s 3 and Sch 1, opn 1 Jan 2009]

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s 80E

[8-s 80E]

CRIMES ACT 1900 (NSW) — PART 3

COMMENTARY ON SECTION 80D Personal violence offence/domestic violence offence . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 80D(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 80D(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 80D(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 80D(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 80D.5] [8-s 80D.10] [8-s 80D.15] [8-s 80D.20] [8-s 80D.25] [8-s 80D.30] [8-s 80D.35]

[8-s 80D.5] Personal violence offence/domestic violence offence This offence (or an offence of attempting to commit this offence) is a “personal violence offence” as defined in s 4 of the Crimes (Domestic and Personal Violence) Act 2007 at [8-5015] and, when committed by a person against another person with whom the offender has or has had a domestic relationship, is a “domestic violence offence” as defined in s 11 of that Act at [8-5240]. PROOF MATERIAL ON SECTION 80D For the text of s 80D, see [8-s 80D] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 80D.10] Form of indictment

[8-s 80D.20] Section 80D(2) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales caused [name of victim] to enter into/remain in sexual servitude and intended to cause or was reckless as to causing that sexual servitude and [name of victim] was under the age of 18 years, namely [X years]/ and [name of victim] had a serious intellectual disability. [8-s 80D.25] Elements of offence

The elements of the offence are:

[8-s 80D.30] Section 80D(1) (1) The accused caused another person to enter into or remain in sexual servitude

[8-s 80B]; and (2) The accused intended to cause or was reckless as to causing that sexual

servitude. [8-s 80D.35] Section 80D(2) (1) The accused caused another person to enter into or remain in sexual servitude

[8-s 80B]; and (2) The accused intended to cause or was reckless as to causing that sexual

servitude; and (3)

(i) The victim was under the age of 18 years; or (ii) The victim had a serious intellectual disability.

[8-s 80E] Conduct of business involving sexual servitude 80E (1) A person: (a) who conducts any business that involves the sexual servitude of other persons, and (b) who knows about, or is reckless as to, that sexual servitude, is guilty of an offence. Maximum penalty: Imprisonment for 15 years.

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[8-s 80D.15] Section 80D(1) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales caused [name of victim] to enter into/remain in sexual servitude and intended to cause or was reckless as to causing that sexual servitude.

[8-s 80E]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 80E

(2) A person commits an offence against this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. Maximum penalty: Imprisonment for 19 years. (3) For the purposes of this section, conducting a business includes: (a) taking any part in the management of the business, or (b) exercising control or direction over the business, or (c) providing finance for the business. PROOF MATERIAL ON SECTION 80E For the text of s 80E, see [8-s 80E] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 80E.5] Form of indictment [8-s 80E.10] Section 80E(1) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales conducted a business that involved the sexual servitude of other people and knew about or was reckless as to that sexual servitude. [8-s 80E.15] Section 80E(2) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales conducted a business that involved the sexual servitude of other persons and knew about or was reckless as to that sexual servitude and [name of victim], being one of these persons, was under the age of 18 years namely [X years]/had a serious intellectual disability. [8-s 80E.20] Elements of offence

The elements of the offence are:

[8-s 80E.25] Section 80E(1) (1) The accused conducted a business [8-s 80E(3)]; (2) That involved the sexual servitude of other persons [8-s 80B]; and (3) The accused knew about or was reckless as to that sexual servitude. [8-s 80E.30] Section 80E(2) (1) The accused conducted a business [8-s 80E(3)]; (2) That involved the sexual servitude of other persons [8-s 80B]; and (3) The accused knew about or was reckless as to that sexual servitude; and (4) (i) The victim was under the age of 18 years; or (ii) The victim had a serious intellectual disability. [8-s 80E.35] Alternative verdict If on the trial of a person for an offence under s 80D(2) or s 80E(2) the jury is not satisfied that the accused is guilty of the offence charged but is satisfied on the evidence that the accused is guilty of an offence under s 80D(1) or s 80E(1) respectively, it may find the accused not guilty of the offence charged but guilty of the latter offence: see s 80F at [8-s 80F].

[8-s 80F] Alternative verdicts 80F If on the trial of a person for an offence under section 80D(2) or 80E(2) the jury is not satisfied that the accused is guilty of the offence charged but is satisfied on the evidence that the accused is guilty of an offence under section 80D(1) or 80E(1), respectively, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly.

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s 81C

CRIMES ACT 1900 (NSW) — PART 3

[8-s 81C.5]

DIVISION 10B — INCITEMENT TO COMMIT SEXUAL OFFENCE [Div 10B insrt Act 105 of 2008 s 3 and Sch 1, opn 1 Jan 2009]

80G (1) A person who incites the commission of an offence under Division 10, 10A or 15A is guilty of an offence and is liable to the penalty provided for the commission of the offence. (2) For the person to be guilty, the person must intend that the offence incited be committed. (3) A person may be found guilty even if committing the offence incited is impossible. (4) Any defences, procedures, limitations or qualifying provisions that apply to the offence incited also apply to an offence under this section. (5) It is not an offence to incite the commission of the following offences: (a) an offence under section 61KC, 61KD, 61KE, 61KF, 66DA, 66DB, 66DC, 66DD, 66DE, 66DF or 73A that is constituted by inciting another person to sexual touching or a sexual act within the meaning of Division 10, (b) an offence under section 66EB, 66EC, 78B or 80 or an offence under section 344A of attempting to commit an offence under Division 10, 10A or 15. [subs (5) am Act 33 of 2018 Sch 1[47], opn 1 Dec 2018]

81–81B

[ss 81–81B rep Act 7 of 1984 s 3 and Sch 1[8], opn 8 June 1984]

DIVISION 11 — MISCONDUCT WITH REGARD TO CORPSES [Div heading insrt Act 53 of 2000 s 3 and Sch 3.3, opn 29 June 2000]

[8-s 81C] Misconduct with regard to corpses 81C Any person who: (a) indecently interferes with any dead human body, or (b) improperly interferes with, or offers any indignity to, any dead human body or human remains (whether buried or not), shall be liable to imprisonment for two years. [s 81C insrt Act 50 of 1974 s 5, opn 2 Aug 1974] Editor’s note: For proof material on s 81C, see [27-17,900] behind the “27 – Informations and Indictments” guide card.

COMMENTARY ON SECTION 81C Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Indecently interfere with corpse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Offer indignity or improperly interfere . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 81C.1] [8-s 81C.5] [8-s 81C.10] [8-s 81C.15] [8-s 81C.20] [8-s 81C.25]

[8-s 81C.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 1 cl 2. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 81C.5] Definitions The term “indecent” should be construed in its ordinary and popular meaning. Indecency is to be judged in the light of time, place and circumstances: R v Dunn [1973] 2 NZLR 481.

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Crimes

[8-s 80G] Incitement to commit sexual offence

[8-s 81C.5]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 81C

“Interference with dead body”: It is not open to an accused charged with an offence of indecently interfering with a dead human body to argue that, by reason of drunkenness, he did not know that the body was dead and therefore could not have the mens rea essential to establish guilt. Knowledge that a body is dead is not a specific element of the offence; all that is required is mens rea in the widest sense, and the inference that a guilty mind exists may be drawn from evidence of a general criminal intention: R v Ladue (1965) 51 WWR 175; [1965] 4 Can Crim R 264. PROOF MATERIAL ON SECTION 81C For the text of s 81C, see [8-s 81C] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 81C.10] Form of indictment [8-s 81C.15] Indecently interfere with corpse That [name of accused] on [date of alleged offence] at [locality/suburb] did indecently interfere with a dead human body. [8-s 81C.20] Offer indignity or improperly interfere That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did improperly interfere with/offer indignity to a dead human body/human remains. [8-s 81C.25] Elements of offence The elements of the offence are — (1) The accused indecently interfered with a dead human body; or (2) the accused improperly interfered with or offered indignity to a dead human body or human remains.

DIVISION 12 — TERMINATION OF PREGNANCIES BY UNQUALIFIED PERSONS [Div heading insrt Act 53 of 2000 s 3 and Sch 3.3, opn 29 June 2000] [Div 12 subst Act 11 of 2019 Sch 2.1[2], opn 2 Oct 2019]

[8-s 82] Termination of pregnancy performed by unqualified person 82 (1) An unqualified person who performs a termination on another person commits an offence. Maximum penalty — 7 years imprisonment. (2) An unqualified person who assists in the performance of a termination on another person commits an offence. Maximum penalty — 7 years imprisonment. (3) A reference in subsection (2) to assisting in the performance of a termination includes— (a) supplying, or procuring the supply of, a termination drug for use in a termination, and (b) administering a termination drug. Note. Section 12 of the Abortion Law Reform Act 2019 provides that a person who consents to, assists in, or performs a termination on themselves does not commit an offence.

(4) Proceedings for an offence under this section may only be instituted by, or with the approval of, the Director of Public Prosecutions. (5) In this section— medical practitioner means a person registered under the Health Practitioner Regulation National Law to practise in the medical profession, other than as a student.

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s 83

[8-s 83]

CRIMES ACT 1900 (NSW) — PART 3

perform includes attempt to perform. termination means an intentional termination of a pregnancy in any way, including, for example, by— (a) administering a drug, or (b) using an instrument or other thing. unqualified person means— (a) in relation to performing a termination on another person — a person who is not a medical practitioner, or (b) in relation to assisting in the performance of a termination on another person — a person who is not authorised under section 8 of the Abortion Law Reform Act 2019 to assist in the performance of the termination. [8-s 82.1] [8-s 82.5] [8-s 82.10] [8-s 82.15]

[8-s 82.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 1 cl 2. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 82.5] Intoxication An offence under this section which is alleged to have been committed after 16 August 1996 is an offence of specific intent for the purpose of Pt 11A Crimes Act 1900 relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. PROOF MATERIAL ON SECTION 82 For the text of s 82, see [8-s 82] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 82.10] Form of indictment That [name of accused] on the State of [date of alleged offence] at [locality/suburb] in the State of New South Wales, being a woman with child, unlawfully administered to herself a drug/noxious thing [name drug or noxious thing]/unlawfully used an instrument/other means [describe what was used] with intent to procure her miscarriage. [8-s 82.15] Elements of offence The elements of the offence are — (1) The accused was pregnant; and (2) unlawfully either: (i) administered [8-s 27.1] to herself a drug or noxious thing [8-s 27.1][8-s 39.10]; or (ii) used an instrument or other means; and (3) intended [6-500] to procure her miscarriage.

[8-s 83] Administering drugs etc to woman with intent 83

Whosoever: unlawfully administers to, or causes to be taken by, any woman, whether with child or not, any drug or noxious thing, or unlawfully uses any instrument or other means, with intent in any such case to procure her miscarriage,

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Crimes

COMMENTARY ON SECTION 82 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 83]

s 83

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

shall be liable to imprisonment for ten years. [s 83 am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000] Editor’s note: For proof material on s 83, see [27-18,000] behind the “27 – Informations and Indictments” guide card.

COMMENTARY ON SECTION 83 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Unlawful abortion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Administer drug . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Use instrument or other means . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 83.1] [8-s 83.5] [8-s 83.10] [8-s 83.15] [8-s 83.20] [8-s 83.25] [8-s 83.30]

[8-s 83.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 1 cl 2. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 83.5] Unlawful abortion

See authorities cited at [8-s 84.5].

[8-s 83.10] Intoxication An offence under this section which is alleged to have been committed after 16 August 1996 is an offence of specific intent for the purpose of Pt 11A Crimes Act 1900 relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. PROOF MATERIAL ON SECTION 83 For the text of s 83, see [8-s 83] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 83.15] Form of indictment [8-s 83.20] Administer drug That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales unlawfully administered to/caused to be taken by [name of victim] a drug/noxious thing, namely [state name of drug or noxious thing, using if possible the pharmacological name not the proprietary name] with intent to procure her miscarriage. [8-s 83.25] Use instrument or other means That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales unlawfully used an instrument/did by [specify the means used] on [name of victim], with intent to procure her miscarriage. [8-s 83.30] Elements of offence The elements of the offence are — (1) The accused unlawfully either: (i) administered to [8-s 27.1] or caused to be taken by a woman, a drug or noxious thing [8-s 27.1][8-s 39.10]; or (ii) used an instrument or other means upon a woman; and (2) the accused intended [6-500] to procure the miscarriage of that woman

(whether pregnant or not).

[8-s 84] Procuring drugs etc 84 Whosoever unlawfully supplies or procures any drug or noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used with intent to procure the miscarriage of any woman, whether with child or not, shall be liable to imprisonment for five years. [s 84 am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000] Editor’s note: For proof material on s 84, see [27-18,050] behind the “27 – Informations and Indictments” guide card.

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s 85

[8-s 85]

CRIMES ACT 1900 (NSW) — PART 3

COMMENTARY ON SECTION 84 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Unlawful abortion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Procuring drugs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Procuring instrument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 84.1] [8-s 84.5] [8-s 84.10] [8-s 84.15] [8-s 84.20] [8-s 84.25]

[8-s 84.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 1 cl 2. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267].

PROOF MATERIAL ON SECTION 84 For the text of s 84, see [8-s 84] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 84.10] Form of indictment [8-s 84.15] Procuring drugs That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales supplied/procured a drug/noxious thing, namely [name drug/noxious thing], knowing the same was intended to be unlawfully used to procure the miscarriage of any woman. [8-s 84.20] Procuring instrument That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales supplied/procured an instrument/thing, namely [name instrument/thing], knowing the same was intended to be unlawfully used to procure the miscarriage of any woman. [8-s 84.25] Elements of offence The elements of the offence are — (1) That the accused unlawfully either supplied or procured: (i) a drug; (ii) a noxious thing [8-s 27.1]; or (iii) an instrument; (2) knowing that it was intended [6-500] to be used with intent to procure the

miscarriage of a woman, whether pregnant or not. DIVISION 13 — CONCEALING BIRTH OF A CHILD [Div heading insrt Act 53 of 2000 s 3 and Sch 3.3, opn 29 June 2000]

[8-s 85] Concealment of birth 85 (1) Whosoever by any disposition of the dead body of a child, whether the child died before or after or during its birth, wilfully conceals or attempts to conceal the birth of the child, shall be liable to imprisonment for two years.

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Crimes

[8-s 84.5] Unlawful abortion An abortion may be lawful if the person performing the abortion, or the woman upon whom it is performed, has an honest belief on reasonable grounds that what was done was necessary to preserve the woman involved from serious danger to her life or physical or mental health which the continuance of the pregnancy would entail, not merely the normal danger of pregnancy and childbirth: CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47; BC9505543 at 59-60, 80, considering and applying R v Davidson [1969] VR 667, R v Wald (1971) 3 DCR (NSW) 25 and K v Minister for Youth and Community Services [1982] 1 NSWLR 311; (1982) 8 Fam LR 756.

[8-s 85]

s 85

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

(2) It shall be a sufficient defence to any charge under this section if the accused person shall satisfy the court or jury that the dead body in respect of which the disposition took place had issued from the body of its mother before the expiration of the twenty-eighth week of pregnancy. Editor’s note: For proof material on s 85, see [27-18,100] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 85 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 85.1] [8-s 85.5] [8-s 85.10]

[8-s 85.1] Summary disposal Where the person charged is the mother of the child and is not charged with any other persons the offence is a Table 1 offence under the Criminal Procedure Act and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 1 clause 2. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. PROOF MATERIAL ON SECTION 85 For the text of s 85, see [8-s 85] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 85.5] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, by disposition of the dead body of a child, did wilfully conceal/attempt to conceal the birth of that child. [8-s 85.10] Elements of offence The elements of the offence are — (1) That the accused disposed of the dead body; and (2) in so doing, wilfully concealed or attempted [6-300] to conceal the dead body;

and (3) the dead body was that of a child; and (4) the child died [8-s 18.65] before, after or during its birth.

DIVISION 14 — KIDNAPPING [Div 14 heading subst Act 117 of 2001 s 3 and Sch 3[1], opn 21 Dec 2001]

[8-s 86] Kidnapping 86 (1) Basic offence A person who takes or detains a person, without the person’s consent: (a) with the intention of holding the person to ransom, or (a1) with the intention of committing a serious indictable offence, or (b) with the intention of obtaining any other advantage, is liable to imprisonment for 14 years. [subs (1) am Act 67 of 2012 Sch 1[3], opn 24 Sep 2012]

(2) Aggravated offence A person is guilty of an offence under this subsection if: (a) the person commits an offence under subsection (1) in the company of another person or persons, or (b) the person commits an offence under subsection (1) and at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim.

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CRIMES ACT 1900 (NSW) — PART 3

[8-s 86.1]

A person convicted of an offence under this subsection is liable to imprisonment for 20 years. (3) Specially aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1): (a) in the company of another person or persons, and (b) at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim. A person convicted of an offence under this subsection is liable to imprisonment for 25 years. (4) Alternative verdicts If on the trial of a person for an offence under subsection (2) or (3) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of a lesser offence under this section, it may find the accused not guilty of the offence charged but guilty of the lesser offence, and the accused is liable to punishment accordingly. (5) A person who takes or detains a child is to be treated as acting without the consent of the child. (6) A person who takes or detains a child does not commit an offence under this section if: (a) the person is the parent of the child or is acting with the consent of a parent of the child, and (b) the person is not acting in contravention of any order of a court relating to the child. (7) In this section: child means a child under the age of 16 years. detaining a person includes causing the person to remain where he or she is. parent of a child means a person who has, in relation to the child, all the duties, powers, responsibilities and authority that, by law, parents have in relation to their children. taking a person includes causing the person to accompany a person and causing the person to be taken. [s 86 insrt Act 84 of 2001 s 3 and Sch 1[5], opn 14 Dec 2001; renum Act 117 of 2001 s 3 and Sch 3[2], opn 21 Dec 2001] Editor’s note: For proof material on s 86, see [27-18,150] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 86 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Nature of the offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Claim of right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Honest and reasonable mistake of fact . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Restrictions on disclosure of evidence . . . . . . . . . . . . . . . . . . . . . . . . . . Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Personal violence offence/domestic violence offence . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Basic offence — s 86(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Aggravated offence (committed in company) — s 86(2)(a) . . . .

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[8-s 86.1] [8-s 86.2] [8-s 86.3] [8-s 86.4] [8-s 86.5] [8-s 86.10] [8-s 86.15] [8-s 86.20] [8-s 86.25] [8-s 86.30] [8-s 86.35]

Crimes

s 86

[8-s 86.1]

s 86

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Aggravated offence (actual bodily harm occasioned) — s 86(2)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Specially aggravated offence — s 86(3) . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Basic offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Aggravated offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Specially aggravated offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Statutory defence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alternative verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s [8-s [8-s [8-s [8-s [8-s [8-s [8-s

86.40] 86.45] 86.50] 86.55] 86.60] 86.65] 86.70] 86.75]

[8-s 86.1] Definitions Basic offence As to “any other advantage”, the words are not limited to the obtaining of some monetary payment or some similar concession from a third party but “extend to a situation where the object of the detention is to force the detainee to do something for the detainer”: R v Robson [1978] 1 NSWLR 73. The “advantage” obtained can consist of a psychological satisfaction or gratification derived by the offender: R v Rose [2003] NSWCCA 411; BC200308558, where it was held that the scope of the section is determined on a case by case basis. The word “advantage” has a wide scope: R v Robson [1978] 1 NSWLR 73 and R v Collet NSWCCA, 7 June 1979, unreported, where the advantage was for the person detained to do something for the person detaining. As to a “serious indictable offence” see [8-s 4]. “Detaining” was considered in Homsi v R [2011] NSWCCA 164; BC201105612 where the issue was one of whether the person was detained by reason of the conduct of the accused or for some other reason, such as concern for her children. It was held that the Crown had to prove that the conduct of the accused materially contributed to the detention of the victim. The scope of what will amount to a “detaining” was considered in Baradi v R [2018] NSWCCA 143; BC201806073; 25(8) Crim LN [4014] where it was held that this element of the offence was made out by the accused taking a mobile phone from the complainant, saying “Come on, get up”. It was held that this conduct amounted in law to a “detaining” because it caused the complainant to remain where she was, this being an act of control exercised by the accused over the complainant. In relation to the elements of taking and detaining it has been held that the prosecution must prove that the accused acted knowing that the complainant was not consenting to going with him or at least that the accused was reckless to that fact, and the necessary intention is to detain the complainant irrespective of whether she was willing to be with the accused or not: R v DMC (2002) 137 A Crim R 246; [2002] NSWCCA 513; BC200208037. The mental element of an offence in relation to lack of consent was considered in Castle v R [2016] NSWCCA 148; BC201606383; 23(9) Crim LN [3740], where the trial judge had directed the jury on recklessness as to lack of consent. It was held that inadvertent recklessness, that is where the accused fails to consider whether or not the complainant was consenting, was not a sufficient mental element for the offence. There were no clear words in the section indicating that the presumption of mens rea had been displaced. Recklessness for the purposes of the section is that the accused realised that there was a possibility that the victim was not consenting but went ahead whether or not the victim was consenting. Aggravated offence As to “in company”, see [8-s 97.10]. As to “actual bodily harm”, see [8-s 59.5]. As to “at the time of, or immediately before or after”, see [8-s 98.5]. [8-s 86.2] Nature of the offence The history of kidnapping was considered inDavis v R [2006] NSWCCA 392; BC200610292; 14(1) Crim LN [2152] where it was held that the section does not create two offences, one of taking and one of detaining, but only one offence that can be committed in two ways.

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s 86

CRIMES ACT 1900 (NSW) — PART 3

[8-s 86.30]

[8-s 86.3] Claim of right There is no claim of right arising from detaining a person in order to secure the repayment of money: Williams v R (2006) 160 A Crim R 151; [2006] NSWCCA 26; BC200600879. [8-s 86.4] Honest and reasonable mistake of fact Where the accused was charged with an offence in relation to a child under 16 he told police that the child “looked like 17 or 18” and that he had no reason to believe that the child was under 16. At the trial the defence sought a direction to the jury on the common law defence of an honest and reasonable mistake of fact in relation to the child’s age. A question arose as to whether the defence had been made out: Ibrahim v R [2014] NSWCCA 160; BC201406502; 21(9) Crim LN [3430] where the crown concession at trial that the defence had been raised was doubted as the accused did not have a belief as to the age of the child and on all the evidence had not formed a positive belief that the child was over 16 years. Therefore the defence did not apply.

[8-s 86.10] Restrictions on disclosure of evidence As the offence is a prescribed sexual offence under s 3 of the Criminal Procedure Act, proceedings may be held in camera, see at [2-s 291]. The court may make a suppression order or non-publication order upon a number of grounds, including the avoidance of undue distress or embarrassment to a party to, or witness in, criminal proceedings involving offences of a sexual nature (including an act of indecency): s 8 Court Suppression and Non-publication Orders Act 2010 at [29-9130]. Section 578A of the Crimes Act 1900 at [8-s 578A] prohibits the publication of any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant. There are also restrictions on the disclosure of sexual assault communications under Pt 5 of the Criminal Procedure Act, see at [2-s 290] and following. [8-s 86.15] Sentence The gravamen of the offence is the unlawful detention of a person and there can be a number of factors relevant to determining the seriousness of the offence and the purpose of the detention is only one factor and is not decisive: R v Newell [2004] NSWCCA 183; BC200403547; 11(6) Crim LN [1709] where it was held that serious offences under the section are not restricted to cases of kidnapping for ransom. See also Chaplin v R (2006) 160 A Crim R 85; [2006] NSWCCA 40; BC200600882 and Allen v R [2010] NSWCCA 47; BC201001303; 17(5) Crim LN [2719]. Sentences for kidnapping offences and the relevant principles when sentencing for the offence of aggravated kidnapping were considered in R v Speechley [2012] NSWCCA 130; BC2001204915; 19(7) Crim LN [3093]. The objective seriousness of an offence of kidnapping in the course of a domestic violence situation was considered in Diaz v R [2018] NSWCCA 33; BC201801665; 25(4) Crim LN [3968] where R v Speechley above was considered. [8-s 86.20] Personal violence offence/domestic violence offence This offence (or an offence of attempting to commit this offence) is a “personal violence offence” as defined in s 4 of the Crimes (Domestic and Personal Violence) Act 2007 at [8-5015] and, when committed by a person against another person with whom the offender has or has had a domestic relationship, is a “domestic violence offence” as defined in s 11 of that Act at [8-5240]. PROOF MATERIAL ON SECTION 86 For the text of s 86, see [8-s 86] behind the “8 — Crimes Act” guide card in Vol 1. [8-s 86.25] Form of indictment [8-s 86.30] Basic offence — s 86(1) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales took/detained [name of victim] without his/her

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Crimes

[8-s 86.5] Intoxication An offence under this section is an offence of specific intent for the purpose of Pt 11A relating to intoxication: see s 428B ff at [8-s 428B].

[8-s 86.30]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 86

consent and with intent to hold him/her to ransom/with intention of committing a serious indictable offence, namely [specify offence]/with intent to obtain an advantage, namely [state advantage]. [8-s 86.35] Aggravated offence (committed in company) — s 86(2)(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, while in the company of another person/other persons, took/detained [name of victim] without his/her consent and with intent to hold him/her to ransom/with the intention of committing a serious indictable offence, namely [specify offence]/with intent to obtain an advantage, namely [state advantage]. [8-s 86.40] Aggravated offence (actual bodily harm occasioned) — s 86(2)(b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales took/detained [name of victim] without his/her consent and with intent to hold him/her to ransom/with the intention of committing a serious indictable offence, namely [specify offence]/with intent to obtain an advantage, namely [state advantage] and immediately before/at the time of/immediately after the taking/detaining actual bodily harm was occasioned to [name of victim]. [8-s 86.45] Specially aggravated offence — s 86(3) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales while in the company of another person/other persons took/detained [name of victim] without his/her consent and with intent to hold him/her to ransom/with the intention of committing a serious indictable offence, namely [specify offence]/with intent to obtain an advantage, namely [state advantage] and immediately before/at the time of/immediately after the taking/detaining actual bodily harm was occasioned to [name of victim]. [8-s 86.50] Elements of offence

The elements of the offence are—

[8-s 86.55] Basic offence (1) The accused took (s 86(7) at [8-s 86]) or detained (s 86(7) at [8-s 86]) the

victim; and (2) this was done without the consent of the victim; and (3) the accused did this with the intention [6-500] of: (i) holding the victim to ransom; (ii) committing a serious indictable offence ([8-s 4]); (iii) obtaining any other advantage ([8-s 86]). [8-s 86.60] Aggravated offence (1) The accused took (s 86(7) at [8-s 86]) or detained (s 86(7) at [8-s 86]) the

victim; and (2) this was done without the consent of the victim; and (3) the accused did this with the intention ([6-500]) of: (i) holding the victim to ransom; (ii) committing a serious indictable offence ([8-s 4]); (iii) obtaining any other advantage ([8-s 86]); and (4) either: (i) the accused was in the company of another person or other persons ([8-s 97.10]); or (ii) immediately before, at the time of, or immediately after the commission of the offence actual bodily harm ([8-s 59.5]) was occasioned to the victim. [8-s 86.65] Specially aggravated offence (1) The accused took (s 86(7) at [8-s 86]) or detained (s 86(7) at [8-s 86]) the

victim; and

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s 87

CRIMES ACT 1900 (NSW) — PART 3

[8-s 87.1]

(2) this was done without the consent of the victim; and (3) the accused did this with the intention [6-500] of: (i) holding the victim to ransom; (ii) committing a serious indictable offence ([8-s 4]); (iii) obtaining any other advantage ([8-s 86]) and; (4) the accused was in the company of another person or other persons ([8-s

97.10]); and (5) immediately before, at the time of, or immediately after the commission of the

offence actual bodily harm [8-s 59.5] was occasioned to the victim. [8-s 86.70] Statutory defence In the case of the kidnapping of a child (see s 86(5) at [8-s 86]), a person does not commit an offence under the section if the person is the parent of the child, or acting with the consent of the child’s parents, and the person is not acting in contravention of an order of the court relating to the child: see s 86(6) at [8-s 86].

[8-s 87] Child abduction 87 (1) A person who takes or detains a child with the intention of removing or keeping the child from the lawful control of any person having parental responsibility for the child, without the consent of that person, is liable to imprisonment for 10 years. (2) A person who takes or detains a child with the intention of stealing from the child is liable to imprisonment for 10 years. (3) In this section: child means a child under the age of 12 years. detaining a child includes causing the child to remain where he or she is. taking a child includes causing the child to accompany a person and causing the child to be taken. (4) In this section, a reference to a person who has parental responsibility for a child is a reference to: (a) a person who has, in relation to a child, all the duties, powers, responsibilities and authority that, by law, parents have in relation to their children, or (b) a person authorised to be the carer of the child under an Act relating to the care and protection of children. [s 87 subst Act 117 of 2001 s 3 and Sch 3[3], opn 21 Dec 2001] Editor’s note: For proof material on s 87, see [27-18,200] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 87 Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Restrictions on disclosure of evidence . . . . . . . . . . . . . . . . . . . . . . . . . . Personal violence offence/domestic violence offence . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intent to remove/keep child — s 87(1) . . . . . . . . . . . . . . . . . . . . . . Intent to steal — s 87(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[8-s 87.1] [8-s 87.5] [8-s 87.10] [8-s 87.15] [8-s 87.20] [8-s 87.25]

Crimes

[8-s 86.75] Alternative verdict If a jury is not satisfied that an accused is guilty of an offence in its aggravated or specially aggravated form, but is satisfied on the evidence that the accused is guilty of a lesser offence under the section, it may find the accused not guilty of the offence charged but guilty of the lesser offence: see s 86(4) at [8-s 86].

[8-s 87.1]

s 87

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intent to remove/keep child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intent to steal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 87.30] [8-s 87.35] [8-s 87.40]

[8-s 87.1] Intoxication An offence under this section is an offence of specific intent for the purpose of Pt 11A relating to intoxication: see s 428B ff at [8-s 428B]. [8-s 87.5] Restrictions on disclosure of evidence As the offence is a prescribed sexual offence under s 3 of the Criminal Procedure Act, proceedings may be held in camera, see at [2-s 291]. The court may make a suppression order or non-publication order upon a number of grounds, including the avoidance of undue distress or embarrassment to a party to, or witness in, criminal proceedings involving offences of a sexual nature (including an act of indecency): s 8 Court Suppression and Non-publication Orders Act 2010 at [29-9130]. Section 578A of the Crimes Act 1900 at [8-s 578A] prohibits the publication of any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant. There are also restrictions on the disclosure of sexual assault communications under Part 5 of the Criminal Procedure Act, see at [2-s 290] and following. [8-s 87.10] Personal violence offence/domestic violence offence This offence (or an offence of attempting to commit this offence) is a “personal violence offence” as defined in s 4 of the Crimes (Domestic and Personal Violence) Act 2007 at [8-5015] and, when committed by a person against another person with whom the offender has or has had a domestic relationship, is a “domestic violence offence” as defined in s 11 of that Act at [8-5240]. PROOF MATERIAL ON SECTION 87 For the text of s 87, see [8-s 87] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 87.15] Form of indictment [8-s 87.20] Intent to remove/keep child — s 87(1) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales took/detained [name of child], a child, with intent to remove/keep the child from the lawful control of [name of person] without his/her consent, he/she being a person having parental responsibility for the child. [8-s 87.25] Intent to steal — s 87(2) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales took/detained [name of child], a child, with intent to steal from the child. [8-s 87.30] Elements of offence

The elements of the offence are —

[8-s 87.35] Intent to remove/keep child (1) The accused took or detained a child [8-s 87(3)]; and (2) the accused did this with the intention [6-500] of removing or keeping the child

from the lawful control of a person having parental responsibility [8-s 87(4)] for the child; and (3) the accused did this without this person’s consent. [8-s 87.40] Intent to steal (1) The accused took or detained a child [8-s 87(3)]; and (2) the accused did this with the intention [6-500] of stealing [27-23,055] from the

child.

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s 91A

[8-s 91A.15]

CRIMES ACT 1900 (NSW) — PART 3

88–91 [ss 88–90 rep Act 117 of 2001 s 3 and Sch 3[3], opn 21 Dec 2001] [s 90A rep Act 84 of 2001 s 3 and Sch 1[6], opn 14 Dec 2001] [s 91 rep Act 117 of 2001 s 3 and Sch 3[3], opn 21 Dec 2001] DIVISION 14A — PROCURING FOR PROSTITUTION [Div 14A heading insrt Act 117 of 2001 s 3 and Sch 3[4], opn 21 Dec 2001]

[8-s 91A] Procuring etc 91A Whosoever procures, entices or leads away any person (not being a prostitute), whether with that person’s consent or not for purposes of prostitution, either within or without New South Wales, shall, notwithstanding that some one or more of the various acts constituting the offence may have been committed outside New South Wales, be liable to imprisonment for seven years. [s 91A am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000]

COMMENTARY ON SECTION 91A Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Restrictions on disclosure of evidence . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 91A.1] [8-s 91A.5] [8-s 91A.10] [8-s 91A.15] [8-s 91A.20]

[8-s 91A.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Part 1 clause 2. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 91A.5] Definitions As to “prostitution” see [11-010]. As to “procure”: the word has no special meaning and has been equated to “recruit”: R v Broadfoot [1976] 3 All ER 753. [8-s 91A.10] Restrictions on disclosure of evidence As the offence is a prescribed sexual offence under s 3 of the Criminal Procedure Act, proceedings may be held in camera, see at [2-s 291]. The court may make a suppression order or non-publication order upon a number of grounds, including the avoidance of undue distress or embarrassment to a party to, or witness in, criminal proceedings involving offences of a sexual nature (including an act of indecency): s 8 Court Suppression and Non-publication Orders Act 2010 at [29-9130]. Section 578A of the Crimes Act 1900 at [8-s 578A] prohibits the publication of any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant. There are also restrictions on the disclosure of sexual assault communications under Part 5 of the Criminal Procedure Act, see at [2-s 290] and following. PROOF MATERIAL ON SECTION 91A For the text of s 91A, see [8-s 91A] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 91A.15] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales procured/enticed/led away [name of victim] for the purposes of prostitution.

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Crimes

Editor’s note: For proof material on s 91A, see [27-18,450] behind the “27 – Informations and Indictments” guide card in Vol 4.

[8-s 91A.20]

s 91A

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

[8-s 91A.20] Elements of offence The elements of the offence are— (1) The accused procured [8-s 91A.5], enticed or led away the victim; and (2) the victim was not a prostitute; and (3) that procurement [8-s 91A.5] was for the purposes of prostitution [11-010].

[8-s 91B] Procuring person by drugs etc 91B Whosoever by means of any fraud, violence, threat, or abuse of authority, or by the use of any drug or intoxicating liquor, procures, entices, or leads away any person for purposes of prostitution, either within or without New South Wales, shall, notwithstanding that some one or more of the various acts constituting the offence may have been committed outside New South Wales, be liable to imprisonment for ten years. [s 91B am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000] Editor’s note: For proof material on s 91B, see [27-18,500] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 91B Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Restrictions on disclosure of evidence . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 91B.1] [8-s 91B.5] [8-s 91B.10] [8-s 91B.15] [8-s 91B.20]

[8-s 91B.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Part 1 clause 2. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 91B.5] Definitions As to “fraud” see [8-s 134.5]. As to “prostitution” see [11-010]. As to “procure” see [8-s 91A.5]. [8-s 91B.10] Restrictions on disclosure of evidence As the offence is a prescribed sexual offence under s 3 of the Criminal Procedure Act, proceedings may be held in camera, see at [2-s 291]. The court may make a suppression order or non-publication order upon a number of grounds, including the avoidance of undue distress or embarrassment to a party to, or witness in, criminal proceedings involving offences of a sexual nature (including an act of indecency): s 8 Court Suppression and Non-publication Orders Act 2010 at [29-9130]. Section 578A of the Crimes Act 1900 at [8-s 578A] prohibits the publication of any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant. There are also restrictions on the disclosure of sexual assault communications under Part 5 of the Criminal Procedure Act, see at [2-s 290] and following. PROOF MATERIAL ON SECTION 91B For the text of s 91B, see [8-s 91B] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 91B.15] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, by use of fraud/by use of violence/by threat/by abuse of authority/by use of a certain drug namely [name of drug]/by the use of intoxicating liquor, did procure/entice/lead away [name of victim] for the purposes of prostitution.

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s 91D

CRIMES ACT 1900 (NSW) — PART 3

[8-s 91D]

[8-s 91B.20] Elements of offence The elements of the offence are — (1) The accused procured [8-s 91A.5], enticed or led away the victim; and (2) the accused did so by means of fraud [8-s 134.5], violence, threat, or abuse of

authority, or by the use of a drug or intoxicating liquor; and (3) the victim was not a prostitute; and (4) that procurement [8-s 91A.5] was for the purposes of prostitution [11-010].

DIVISION 15 — CHILD PROSTITUTION [Div heading insrt Act 53 of 2000 s 3 and Sch 3.3, opn 29 June 2000; am Act 105 of 2008 s 3 and Sch 1, opn 1 Jan 2009]

91C For the purposes of this Division: act of child prostitution means any sexual service, whether or not involving an indecent act: (a) that is provided by a child for the payment of money or the provision of any other material thing (whether or not it is in fact paid or provided to the child or to any other person), and (b) that can reasonably be considered to be aimed at the sexual arousal or sexual gratification of a person or persons other than the child, and includes (but is not limited to) sexual activity between persons of different sexes or the same sex, comprising sexual intercourse (as defined in Division 10) for payment or masturbation committed by one person on another for payment, engaged in by a child. [def am Act 33 of 2018 Sch 1[48], opn 1 Dec 2018]

child means a person who is under the age of 18 years. material [def rep Act 105 of 2008 s 3 and Sch 1, opn 1 Jan 2009] [s 91C insrt Act 115 of 1988 s 3 and Sch 1(3); am Act 198 of 1989 s 3 and Sch 1[7], opn 17 Mar 1991; Act 95 of 2004 s 3 and Sch 1[1] and [2], opn 1 Jan 2005]

COMMENTARY ON SECTION 91C Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 91C.1]

[8-s 91C.1] Definitions As to “indecent” see [8-s 61L.10]. As to s 61H see [8-s 61H].

[8-s 91D] Promoting or engaging in acts of child prostitution 91D (1) Any person who: (a) by any means, causes or induces a child to participate in an act of child prostitution, or (b) participates as a client with a child in an act of child prostitution, is liable to imprisonment for 10 years or, if the child is under the age of 14 years, to imprisonment for 14 years. [s 91D am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000]

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Crimes

[8-s 91C] Definitions

[8-s 91D]

s 91D

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

(2) [subs (2) rep Act 9 of 2003 s 3 and Sch 1[20], opn 13 June 2003] (3) The consent of a child is not a defence to a charge relating to an offence under this section. [subs (3) am Act 9 of 2003 s 3 and Sch 1[21], opn 13 June 2003] [s 91D insrt Act 115 of 1988 s 3 and Sch 1(3)] Editor’s note: For proof material on s 91D, see [27-18,550] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 91D Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Restrictions on disclosure of evidence . . . . . . . . . . . . . . . . . . . . . . . . . . Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sections 91D and 91F . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Causing or inducing acts of child prostitution — s 91D(1)(a) . . Participating in acts of child prostitution — s 91D(1)(b) . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Statutory defence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 91D.5] Definitions

[8-s 91D.5] [8-s 91D.10] [8-s 91D.20] [8-s 91D.25] [8-s 91D.30] [8-s 91D.35] [8-s 91D.40] [8-s 91D.45] [8-s 91D.50]

As to “act of prostitution” and “child” see s 91C at [8-s 91C].

[8-s 91D.10] Restrictions on disclosure of evidence As the offence is a prescribed sexual offence under s 3 of the Criminal Procedure Act, proceedings may be held in camera, see at [2-s 291]. The court may make a suppression order or non-publication order upon a number of grounds, including the avoidance of undue distress or embarrassment to a party to, or witness in, criminal proceedings involving offences of a sexual nature (including an act of indecency): s 8 Court Suppression and Non-publication Orders Act 2010 at [29-9130]. Section 578A of the Crimes Act 1900 at [8-s 578A] prohibits the publication of any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant. There are also restrictions on the disclosure of sexual assault communications under Pt 5 of the Criminal Procedure Act, see at [2-s 290] and following. [8-s 91D.20] Sentencing The sentence for an offence under the section was considered in R v A [2003] NSWCCA 157; BC200303127; (2003) 10 Crim LN 46 [1563]. Factors relevant to an assessment of the objective seriousness of an offence under s 91D were considered in R v Darwich [2018] NSWCCA 46; BC201801979 at [77]ff. In R v Toma [2018] NSWCCA 45; BC201801975; 25(4) Crim LN [3971] the seriousness of an offence of participating in child prostitution was considered on a Crown appeal. It was held that the judge was in error in taking into account, apparently as a matter of mitigation, that the child was a willing participant when assessing that the offence was at the bottom of the range, especially having regard to the age of the child and the nature of the intercourse. [8-s 91D.25] Sections 91D and 91F Claims of duplicity and double punishment have been rejected where the offender was convicted of offences under both ss 91D and 91F: Glover v R [2016] NSWCCA 316; BC201611040. PROOF MATERIAL ON SECTION 91D For the text of s 91D, see [8-s 91D] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 91D.30] Form of indictment [8-s 91D.35] Causing or inducing acts of child prostitution — s 91D(1)(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did

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s 91E

CRIMES ACT 1900 (NSW) — PART 3

[8-s 91E.5]

cause/induce [name of child victim], a child under the age of 18 years, namely [x] years to participate in an act of child prostitution with [name of sexual client]. [8-s 91D.40] Participating in acts of child prostitution — s 91D(1)(b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did participate in an act of child prostitution with [name of child victim], a child under the age of 18 years, namely [x] years.

[8-s 91D.50] Statutory defence The consent of a child is not a defence to a charge relating to an offence under this section: see s 91D(3) at [8-s 91D]. However, prior to its repeal, s 91D(2) provided a statutory defence in certain circumstances where the child was over the age of 14 years and consented to the act, and the accused had reasonable cause to believe and did in fact believe that the child victim was over the age of 18 years. This continues to apply as a defence for offences committed before its repeal: see Crimes Amendment (Sexual Offences) Act 2003 No. 9 s 3 and Sch 1[50].

[8-s 91E] Obtaining benefit from child prostitution 91E (1) Any person who receives money or any other material benefit knowing that it is derived directly or indirectly from an act of child prostitution is liable to imprisonment for 10 years or, if the act of child prostitution involves a child under the age of 14 years, to imprisonment for 14 years. [subs (1) am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000; Act 105 of 2008 s 3 and Sch 1, opn 1 Jan 2009]

(2) A person is not guilty of an offence under this section if the person satisfies the court that the money or other material benefit concerned: (a) was received by the person for the lawful provision of goods or services, or (b) was paid or provided in accordance with a judgment or an order of a court or a legislative requirement, whether or not under New South Wales law. (3) The higher maximum penalty under this section in the case of an offence involving a child under the age of 14 years does not apply unless the age of the child is set out in the charge for the offence. [subs (3) insrt Act 105 of 2008 s 3 and Sch 1, opn 1 Jan 2009] [s 91E insrt Act 115 of 1988 s 3 and Sch 1(3), opn 12 Feb 1989] Editor’s note: For proof material on s 91E, see [27-18,600] behind the “27 – Informations and Indictments” guide card in Vol 4. Editor’s note: Please see [8A-REP s 91E] for a prior version of this section.

COMMENTARY ON SECTION 91E Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Restrictions on disclosure of evidence . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Statutory defence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[8-s 91E.5] [8-s 91E.10] [8-s 91E.15] [8-s 91E.20] [8-s 91E.25]

Crimes

[8-s 91D.45] Elements of offence The elements of the offence are — (1) The accused either: (i) caused or induced the child victim to participate in an act of child prostitution [8-s 91C]; or (ii) participated as a client with the child victim in an act of child prostitution [8-s 91C]; and (2) the child victim was under the age of 18 years [8-s 91C].

[8-s 91E.5]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

[8-s 91E.5] Definitions

s 91E

As to “act of child prostitution” and “child” see s 91C at [8-s 91C].

[8-s 91E.10] Restrictions on disclosure of evidence As the offence is a prescribed sexual offence under s 3 of the Criminal Procedure Act, proceedings may be held in camera, see at [2-s 291]. The court may make a suppression order or non-publication order upon a number of grounds, including the avoidance of undue distress or embarrassment to a party to, or witness in, criminal proceedings involving offences of a sexual nature (including an act of indecency): s 8 Court Suppression and Non-publication Orders Act 2010 at [29-9130]. Section 578A of the Crimes Act 1900 at [8-s 578A] prohibits the publication of any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant. There are also restrictions on the disclosure of sexual assault communications under Pt 5 of the Criminal Procedure Act, see at [2-s 290] and following. PROOF MATERIAL ON SECTION 91E For the text of s 91E, see [8-s 91E] behind the “9 – Crimes Act” guide card in Vol 1. [8-s 91E.15] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales received certain money/a material benefit, namely [describe benefit alleged], knowing that such money/material benefit was derived from an act of child prostitution. [8-s 91E.20] Elements of offence The elements of the offence are — (1) The accused received money or some other material benefit; and (2) the accused knew that that money or benefit was derived from an act of child

prostitution [8-s 91C]. [8-s 91E.25] Statutory defence Section 91E(2) provides a defence where the accused received the money or material benefit for the lawful provision of goods or services, or where the money or the material benefit was paid or provided in accordance with a judgment, order of a court or legislative requirement.

[8-s 91F] Premises not to be used for child prostitution 91F (1) Any person who is capable of exercising lawful control over premises at which a child participates in an act of child prostitution is liable to imprisonment for 7 years. [subs (1) am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000]

(2) For the purposes of this section, each person: (a) who is an owner, lessee, licensee or occupier of premises, (b) who is concerned in the management of premises or in controlling the entry of persons to, or their movement within, premises, is to be considered as capable of exercising lawful control over the premises, whether or not any other person is capable of exercising lawful control over the premises. (3) A person is not guilty of an offence under this section relating to an act of child prostitution if the person satisfies the court: (a) that the person did not know about the act, or (b) that the person did not know that a child was participating in the act or, for any other reason, did not know that the act was an act of child prostitution, or

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s 91F

CRIMES ACT 1900 (NSW) — PART 3

[8-s 91F.30]

(c) that the person used all due diligence to prevent the child from participating in the act. [s 91F insrt Act 115 of 1988 s 3 and Sch 1(3), opn 12 Feb 1989] Editor’s note: For proof material on s 91F, see [27-18,650] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 91F Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Restrictions on disclosure of evidence . . . . . . . . . . . . . . . . . . . . . . . . . . Sections 91D and 91F . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Statutory defence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

As to “act of child prostitution” and “child” see s 91C at [8-s 91C].

[8-s 91F.10] Restrictions on disclosure of evidence As the offence is a prescribed sexual offence under s 3 of the Criminal Procedure Act, proceedings may be held in camera, see at [2-s 291]. The court may make a suppression order or non-publication order upon a number of grounds, including the avoidance of undue distress or embarrassment to a party to, or witness in, criminal proceedings involving offences of a sexual nature (including an act of indecency): s 8 Court Suppression and Non-publication Orders Act 2010 at [29-9130]. Section 578A of the Crimes Act 1900 at [8-s 578A] prohibits the publication of any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant. There are also restrictions on the disclosure of sexual assault communications under Pt 5 of the Criminal Procedure Act, see at [2-s 290] and following. [8-s 91F.15] Sections 91D and 91F Claims of duplicity and double punishment have been rejected where the offender was convicted of offences under both ss 91D and 91F: Glover v R [2016] NSWCCA 316; BC201611040. PROOF MATERIAL ON SECTION 91F For the text of s 91F, see [8-s 91F] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 91F.20] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales was a person capable of exercising lawful control over certain premises [state name and location of premises] in which [name of child victim], a child under the age of 18 years, namely [x] years, participated in an act of child prostitution. [8-s 91F.25] Elements of offence The elements of the offence are — (1) The accused was a person capable of exercising lawful control of certain

premises as the owner, lessee, licensee or occupier of those premises [8-s 91F(2)]; and (2) the child victim participated in an act of child prostitution [8-s 91C] on those premises; and (3) the child victim was under the age of 18 years [8-s 91C]. [8-s 91F.30] Statutory defence Section 91F(3) provides a statutory defence in certain circumstances where the accused either did not know or was not able to prevent the proscribed act from occurring.

991

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Crimes

[8-s 91F.5] Definitions

[8-s 91F.5] [8-s 91F.10] [8-s 91F.15] [8-s 91F.20] [8-s 91F.25] [8-s 91F.30]

[8-s 91FA]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 91FA

DIVISION 15A — CHILD ABUSE MATERIAL [Heading insrt Act 105 of 2008 s 3 and Sch 1, opn 1 Jan 2009; subst Act 9 of 2010 Sch 1, opn 17 Sep 2010]

[8-s 91FA] Definitions 91FA For the purposes of this Division: child means a person who is under the age of 16 years. child abuse material — see section 91FB. [def insrt Act 9 of 2010 Sch 1, opn 17 Sep 2010]

data includes: (a) information in any form, or (b) any program (or part of a program). [def insrt Act 9 of 2010 Sch 1, opn 17 Sep 2010]

material includes any film, printed matter, data or any other thing of any kind (including any computer image or other depiction). [def am Act 9 of 2010 Sch 1, opn 17 Sep 2010]

young person means a person who is of or above the age of 16 years and under the age of 18 years. [def insrt Act 33 of 2018 Sch 1[49], opn 1 Dec 2018] [s 91FA insrt Act 105 of 2008 s 3 and Sch 1, opn 1 Jan 2009]

[8-s 91FB] Child abuse material — meaning 91FB (1) In this Division: child abuse material means material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances, offensive: (a) a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or (b) a person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or (c) a person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or (d) the private parts of a person who is, appears to be or is implied to be, a child. (2) The matters to be taken into account in deciding whether reasonable persons would regard particular material as being, in all the circumstances, offensive, include: (a) the standards of morality, decency and propriety generally accepted by reasonable adults, and (b) the literary, artistic or educational merit (if any) of the material, and (c) the journalistic merit (if any) of the material, being the merit of the material as a record or report of a matter of public interest, and (d) the general character of the material (including whether it is of a medical, legal or scientific character). (3) Material that depicts a person or the private parts of a person includes material that depicts a representation of a person or the private parts of a person (including material that has been altered or manipulated to make a person appear to be a child or to otherwise create a depiction referred to in subsection (1)).

992

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s 91G

CRIMES ACT 1900 (NSW) — PART 3

[8-s 91G]

(4) The private parts of a person are: (a) a person’s genital area or anal area, whether bare or covered by underwear or (b) the breasts of a female person, or transgender or intersex person identifying as female, whether or not the breasts are sexually developed. [s 91FB insrt Act 9 of 2010 Sch 1, opn 17 Sep 2010; am Act 29 of 2018 Sch 1 item 1.4[1], [2], opn 21 June 2018]

[8-s 91FB.1]

[8-s 91FB.1] Definitions The term “breast” was considered in Turner v R [2017] NSWCCA 304; BC201710691; 25(1) Crim LN [3924] where it was held that the term “connotes a visible degree of sexual development” so that the filming of the chest of a pre-pubescent girl did not fall within the section. It was also held that “private parts” did not extend to depictions of the clothed area of the child, even where the clothing was the child’s underwear. The definition of “private parts” in ss 91FB, 91I and 91N were amended by the Justice Legislation Amendment Act (No 2) 2018 to overcome the decision in Turner v R to include breasts whether or not they are sexually developed. As to a discussion of the differences between the present offence and repealed offence involving “pornographic purposes”, see NW v R [2014] NSWCCA 217; BC201408698.

[8-s 91G] Children not to be used for production of child abuse material 91G (1) Any person who: (a) uses a child who is under the age of 14 years for the production of child abuse material, or (b) causes or procures a child of that age to be so used, or (c) having the care of a child of that age, consents to the child being so used or allows the child to be so used, is guilty of an offence. Maximum penalty: imprisonment for 14 years. [subs (1) am Act 9 of 2010 Sch 1, opn 17 Sep 2010]

(2) Any person who: (a) uses a child who is of or above the age of 14 years for the production of child abuse material, or (b) causes or procures a child of that age to be so used, or (c) having the care of a child of that age, consents to the child being so used or allows the child to be so used, is guilty of an offence. Maximum penalty: imprisonment for 10 years. [subs (2) am Act 9 of 2010 Sch 1, opn 17 Sep 2010]

(3) [subs (3) rep Act 9 of 2010 Sch 1, opn 17 Sep 2010] (4) For the purposes of this section, a person may have the care of a child without necessarily being entitled by law to have the custody of the child.

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Crimes

COMMENTARY ON SECTION 91FB Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 91G]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 91G

(5) Where on the trial of a person for an offence under subsection (1) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under subsection (2), it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. (6) Proceedings for an offence under this section against a child or young person may only be instituted by or with the approval of the Director of Public Prosecutions. [subs (6) insrt Act 33 of 2018 Sch 1[50], opn 1 Dec 2018] [s 91G subst Act 95 of 2004 s 3 and Sch 1[3], opn 1 Jan 2005] Editor’s note: For proof material on s 91G, see [27-18,700] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 91G Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Restrictions on disclosure of evidence . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Using a child for the production of child abuse material — s 91G(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Causing or procuring a child to be used for the production of child abuse material — s 91G(1)(b) . . . . . . . . . . . . . . . . . . . . . . Having the care of a child, consenting to or allowing child to be used for the production of child abuse material — s 91G(1)(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Using a child for the production of child abuse material — s 91G(2)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Causing or procuring a child to be used for the production of child abuse material — s 91G(2)(b) . . . . . . . . . . . . . . . . . . . . . . Having the care of a child, consenting to or allowing child to be used for the production of child abuse material — s 91G(2)(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 91G.5] Definitions see [8-s 91A.5].

[8-s 91G.5] [8-s 91G.10] [8-s 91G.15] [8-s 91G.20] [8-s 91G.25]

[8-s 91G.30] [8-s 91G.35] [8-s 91G.40] [8-s 91G.45] [8-s 91G.50]

[8-s 91G.55] [8-s 91G.60]

As to “child” and “material” see s 91C at [8-s 91C]. As to “procure”

[8-s 91G.10] Restrictions on disclosure of evidence As the offence is a prescribed sexual offence under s 3 of the Criminal Procedure Act, proceedings may be held in camera, see at [2-s 291]. The court may make a suppression order or non-publication order upon a number of grounds, including the avoidance of undue distress or embarrassment to a party to, or witness in, criminal proceedings involving offences of a sexual nature (including an act of indecency): s 8 Court Suppression and Non-publication Orders Act 2010 at [29-9130]. Section 578A of the Crimes Act 1900 at [8-s 578A] prohibits the publication of any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant. There are also restrictions on the disclosure of sexual assault communications under Part 5 of the Criminal Procedure Act, see at [2-s 290] and following.

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s 91G

CRIMES ACT 1900 (NSW) — PART 3

[8-s 91G.60]

PROOF MATERIAL ON SECTION 91G(1) For the text of s 91G(1), see [8-s 91G] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 91G.15] Form of indictment [8-s 91G.20] Using a child for the production of child abuse material — s 91G(1)(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales used [name of child victim], a child under 14 years, namely [x] years, for the production of child abuse material, namely [type of material]. [8-s 91G.25] Causing or procuring a child to be used for the production of child abuse material — s 91G(1)(b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales caused/procured [name of child victim], a child under 14 years, namely [x] years, to be used or the production of child abuse material, namely [type of material].

[8-s 91G.35] Elements of offence The elements of the offence are — (1) The accused: (i) used a child for the production of child abuse material (see s 91FB) [8-s 91G(3)]; or (ii) caused or procured [8-s 91A.5] a child to be used or the production of child abuse material (see s 91FB) [8-s 91G(3)]; or (iii) having the care of a child [8-s 91G(4)], consented to or allowed that child to be used or the production of child abuse material (see s 91FB) [8-s 91G(3)]; and (2) the child was under the age of 14 years. PROOF MATERIAL ON SECTION 91G(2) For the text of s 91G(2), see [8-s 91G] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 91G.40] Form of indictment [8-s 91G.45] Using a child for the production of child abuse material — s 91G(2)(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales used [name of child victim], a child above 14 years, namely [x] years, for the production of child abuse material, namely [type of material]. [8-s 91G.50] Causing or procuring a child to be used for the production of child abuse material — s 91G(2)(b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales caused/procured [name of child victim], a child above 14 years, namely [x] years, to be used for the production of child abuse material, namely [type of material]. [8-s 91G.55] Having the care of a child, consenting to or allowing child to be used for the production of child abuse material — s 91G(2)(c) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, having the care of [name of child victim], a child above 14 years, namely [x] years, consented to/allowed [name of child victim] to be used for the production of child abuse material, namely [type of material]. [8-s 91G.60] Elements of offence The elements of the offence are — (1) The accused: (i) used a child for the production of child abuse material (see s 91FB) [8-s 91G(3)]; or

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Crimes

[8-s 91G.30] Having the care of a child, consenting to or allowing child to be used for the production of child abuse material — s 91G(1)(c) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales having the care of [name of child victim], a child under 14 years, namely [x] years, consented to/allowed [name of child victim] to be used or the production of child abuse material, namely [type of material].

[8-s 91G.60]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 91G

(ii) caused or procured [8-s 91A.5] a child to be used for the production of child abuse material (see s 91FB) [8-s 91G(3)]; or (iii) having the care of a child [8-s 91G(4)], consented to or allowed that child to be used for the production of child abuse material (see s 91FB) [8-s 91G(3)]; and (2) the child was above the age of 14 years but under the age of 18 years [8-s 91C].

[8-s 91H] Production, dissemination or possession of child abuse material 91H (1) In this section: disseminate child abuse material, includes: (a) send, supply, exhibit, transmit or communicate it to another person, or (b) make it available for access by another person, or (c) enter into any agreement or arrangement to do so. possess child abuse material includes, in relation to material in the form of data, being in possession or control of data (within the meaning of section 308F(2)). produce child abuse material includes: (a) film, photograph, print or otherwise make child abuse material, or (b) alter or manipulate any image for the purpose of making child abuse material, or (c) enter into any agreement or arrangement to do so. (2) A person who produces, disseminates or possesses child abuse material is guilty of an offence. Maximum penalty: imprisonment for 10 years. (3) Proceedings for an offence under this section against a child or young person may only be instituted by or with the approval of the Director of Public Prosecutions. [subs (3) insrt Act 33 of 2018 Sch 1[51], opn 1 Dec 2018] [s 91H subst Act 9 of 2010 Sch 1, opn 17 Sep 2010]

COMMENTARY ON SECTION 91H Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Construction of s 91H . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Statutory defences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 91H.1] [8-s 91H.5] [8-s 91H.10] [8-s 91H.15] [8-s 91H.20]

[8-s 91H.1] Sentencing The approach to sentencing for possession of child abuse material contrary to s 91H(2) was considered in R v Porte [2015] NSWCCA 174; BC201505867; 22(8) Crim LN [3569]; see also R v De Leeuw [2015] NSWCCA 183; BC201506248; 22(8) Crim LN [3580] where reference is made to other general propositions obtained from statements by other appellate courts throughout Australia. General observations were made (at [51]–[81]) concerning sentencing for a combination of offences under s 91H(2) and offences of using a carriage service to access child pornography material contrary to s 474.19(1)(a)(i) Criminal Code (Cth) (see [18-s 474.19]). In R v Hutchinson [2018] NSWCCA 152; BC201807221; 25(9) Crim LN [4033] a list of the matters relevant to an assessment of the objective seriousness of the offence, and based on Minehan v R (2010) 201 A Crim R 243; [2010] NSWCCA 140; BC201004713, was set out as follows: 1. Whether actual children were used in the creation of the material.

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CRIMES ACT 1900 (NSW) — PART 3

[8-s 91H.20]

2. The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed. 3. The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material. 4. The number of images or items of material — in a case of possession, the significance lying more in the number of different children depicted. 5. In a case of possession, the offender’s purpose, whether for his/her own use or for sale or dissemination. In this regard, care is needed to avoid any infringement of the principle in R v De Simoni (1981) 147 CLR 383. 6. In a case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted. 7. Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination/transmission. 8. The proximity of the offender’s activities to those responsible for bringing the material into existence. 9. The degree of planning, organisation, sophistication [and/or deception] employed by the offender in acquiring, storing, disseminating or transmitting the material. 10. The age of any person with whom the offender was in communication in connection with the acquisition or dissemination of the material relative to the age of the offender. 11. Whether the offender acted alone or in a collaborative network of like-minded persons. 12. Any risk of the material being seen or acquired by vulnerable persons, particularly children. 13. Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted. 14. Any other matter in s 21A(2) or (3) Crimes (Sentencing Procedure) Act (for State offences) or s 16A Crimes Act 1914 (for Commonwealth offences) bearing upon the objective seriousness of the offence. It was noted that individual cases can always identify other matters relevant to an assessment of the objective seriousness and the list is not exhaustive. [8-s 91H.5] Construction of s 91H In Director of Public Prosecutions (DPP) (NSW) v Hughes [2017] NSWSC 492; BC201704458 consideration was given at [77] ff to the elements of offences under s 91H of the Act. PROOF MATERIAL ON SECTION 91H(2) For the text of s 91H(2), see [8-s 91H] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 91H.10] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did produce/disseminate/possess child abuse material being [describe the nature of the material] by [describe mode of production, dissemination, or possession]. [8-s 91H.15] Elements of offence The elements of the offence are— (1) The accused either (i) produced [8-s 91H(1)]; or (ii) disseminated [8-s 91H(1)]; or (iii) possessed [8-s 91H(1)] (2) child abuse material [8-s 91FB]. [8-s 91H.20] Statutory defences Innocent acts It is a defence to a prosecution under the section to prove: (1) that the defendant did not know and could not reasonably be expected to have known that he/she had produced, disseminated or produced the child abuse material: see s 91HA(1) (at [8-s 91HA]); or

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Crimes

s 91H

[8-s 91H.20]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 91H

(2) where the offence is possession of child abuse material, that the material came into possession unsolicited and as soon as the defendant became aware of the material, he or she took reasonable steps to get rid of it: see s 91HA(2). Public benefit It is defence where the conduct engaged in was for the public benefit and did not extend beyond what was of public benefit: (see s 91HA(4) as to “public benefit”). Law enforcement officers It is a defence where the defendant was a law enforcement officer acting in the course of his or her duties and the conduct was reasonable for the purposes of performing the duty: see s 91HA(6). Classified material It is a defence where the material has been classified other than as refused classification: see s 91HA(7). Approved research It is a defence where the conduct was necessary for, or of assistance in, conducting approved scientific, medical or education research: see s 91HA(8).

[8-s 91HAA] Exception 91HAA A person does not commit an offence under section 91H of possessing child abuse material if: (a) the possession of the material occurred when the accused person was under the age of 18 years, and (b) a reasonable person would consider the possession of the material by the accused person as acceptable having regard to each of the following (to the extent relevant): (i) the nature and content of the material, (ii) the circumstances in which the material was produced and came into the possession of the accused person, (iii) the age, intellectual capacity, vulnerability or other relevant circumstances of the child depicted in the material, (iv) the age, intellectual capacity, vulnerability or other relevant circumstances of the accused person at the time the accused person first came into possession of the material and at the time that the accused person’s possession of the material first came to the attention of a police officer, (v) the relationship between the accused person and the child depicted in the material. [s 91HAA insrt Act 33 of 2018 Sch 1[52], opn 1 Dec 2018]

[8-s 91HA] Defences 91HA (1) Innocent production, dissemination or possession It is a defence in proceedings for an offence against section 91H that the defendant did not know, and could not reasonably be expected to have known, that he or she produced, disseminated or possessed (as the case requires) child abuse material. (2) It is a defence in proceedings for an offence against section 91H not involving the production or dissemination of child abuse material that the material concerned came into the defendant’s possession unsolicited and the defendant, as soon as he or she became aware of its nature, took reasonable steps to get rid of it.

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CRIMES ACT 1900 (NSW) — PART 3

[8-s 91HA]

(3) Public benefit It is a defence in proceedings for an offence against section 91H that the conduct engaged in by the defendant: (a) was of public benefit, and (b) did not extend beyond what was of public benefit. (4) Conduct is of public benefit if, and only if, the conduct is necessary for or of assistance in: (a) enforcing or administering a law of the State, or of another State, a Territory or the Commonwealth, or (b) monitoring compliance with, or investigating a contravention of, a law of the State, or of another State, a Territory or the Commonwealth, or (c) the administration of justice. (5) The question of whether a person’s conduct is of public benefit is a question of fact and the person’s motives for engaging in the conduct are irrelevant. (6) Law enforcement officers It is a defence in proceedings for an offence against section 91H that: (a) the defendant was, at the time of the offence, a law enforcement officer acting in the course of his or her duties, and (b) the conduct of the defendant was reasonable in the circumstances for the purpose of performing that duty. (7) Classified material It is a defence in proceedings for an offence against section 91H that the material concerned was classified (whether before or after the commission of the alleged offence) under the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth, other than as refused classification (RC). (8) Approved research It is a defence in proceedings for an offence against section 91G or 91H that the conduct engaged in by the defendant: (a) was necessary for or of assistance in conducting scientific, medical or educational research that has been approved by the Attorney General in writing for the purposes of this section, and (b) did not contravene any conditions of that approval. (9) Person producing, disseminating or possessing depictions of himself or herself It is a defence in proceedings for an offence against section 91H of possessing child abuse material if the only person depicted in the material is the accused person. [subs (9) insrt Act 33 of 2018 Sch 1[53], opn 1 Dec 2018]

(10) It is a defence in proceedings for an offence against section 91H of producing or disseminating child abuse material if: (a) the production or dissemination of the material occurred when the accused person was under the age of 18 years, and (b) the only person depicted in the material is the accused person. [subs (10) insrt Act 33 of 2018 Sch 1[53], opn 1 Dec 2018]

(11) Material that depicts a person other than the accused person is taken, for the purposes of this section, to depict only the accused person if the material would no longer be child abuse material were the depiction of the accused person to be removed. [subs (11) insrt Act 33 of 2018 Sch 1[53], opn 1 Dec 2018]

(12) The onus of proving under subsection (9) or (10) that material depicts the accused person and no other person lies with the accused person on the balance of probabilities. [subs (12) insrt Act 33 of 2018 Sch 1[53], opn 1 Dec 2018] [s 91HA insrt Act 9 of 2010 Sch 1, opn 17 Sep 2010]

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Crimes

s 91HA

[8-s 91I]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 91I

DIVISION 15B — VOYEURISM AND RELATED OFFENCES [Div 15B insrt Act 105 of 2008 s 3 and Sch 1, opn 1 Jan 2009]

[8-s 91I] Definitions 91I (1) In this Division: building includes a vehicle, vessel, tent or temporary structure. private parts means: (a) a person’s genital area or anal area, whether bare or covered by underwear, or (b) the breasts of a female person, or transgender or intersex person identifying as female, whether or not the breasts are sexually developed. [def subst Act 29 of 2017 Sch 1[1], opn 25 Aug 2017; am Act 29 of 2018 Sch 1 item 1.4[3], opn 21 June 2018]

(2) For the purposes of this Division, a person is engaged in a private act if: (a) the person is in a state of undress, using the toilet, showering or bathing, engaged in a sexual act of a kind not ordinarily done in public, or engaged in any other like activity, and (b) the circumstances are such that a reasonable person would reasonably expect to be afforded privacy. (3) For the purposes of this Division, a person films another person, or another person’s private parts, if the person causes one or more images (whether still or moving) of the other person or the other person’s private parts to be recorded or transmitted for the purpose of enabling the person or a third person to observe those images (whether during the filming or later).

[8-s 91J] Voyeurism 91J (1) General offence A person who, for the purpose of obtaining sexual arousal or sexual gratification, observes a person who is engaged in a private act: (a) without the consent of the person being observed to being observed for that purpose, and (b) knowing that the person being observed does not consent to being observed for that purpose, is guilty of an offence. Maximum penalty: 100 penalty units or imprisonment for 2 years, or both. (2) An offence against subsection (1) is a summary offence. (3) Aggravated offence A person who, for the purpose of obtaining sexual arousal or sexual gratification, observes a person who is engaged in a private act: (a) without the consent of the person being observed to being observed for that purpose, and (b) knowing that the person being observed does not consent to being observed for that purpose, and (c) in circumstances of aggravation, is guilty of an offence. Maximum penalty: imprisonment for 5 years. (4) In this section, circumstances of aggravation means circumstances in which: (a) the person whom the offender observed was a child under the age of 16 years, or

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s 91J

CRIMES ACT 1900 (NSW) — PART 3

[8-s 91J.40]

(b) the offender constructed or adapted the fabric of any building for the purpose of facilitating the commission of the offence. (5) Alternative verdict If on the trial of a person charged with an offence against subsection (3) the trier of fact is not satisfied that the offence is proven but is satisfied that the person has committed an offence against subsection (1), the trier of fact may acquit the person of the offence charged and find the person guilty of an offence against subsection (1). The person is liable to punishment accordingly. (6) Attempts A person who attempts to commit an offence under subsection (1) or (3) is liable to the penalty provided for the commission of the offence. PROOF MATERIAL ON SECTION 91J For the text of s 91J, see [8-s 91J] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 91J.5] Form of indictment

[8-s 91J.15] Aggravated offence — victim child under 16 years — s 91J(3) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did, for the purpose of obtaining sexual arousal or sexual gratification, observe [name of victim], a child then under the age of 16 years, namely [x] years, who was engaged in a private act, without the consent of the child, knowing that he/she did not consent to being observed for that purpose. [8-s 91J.20] Aggravated offence — construction or adaption of building to facilitate offence — s 91J(3) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did, for the purpose of obtaining sexual arousal or sexual gratification, observe [name of victim] who was engaged in a private act, without the consent of [name of victim], knowing that [name of victim] did not consent to being observed for that purpose, and further, did construct/adapt the fabric of a building for the purpose of facilitating the observation. [8-s 91J.25] Elements of offence [8-s 91J.30] General offence — s 91J(1) The accused: (1) for the purpose of obtaining sexual arousal or sexual gratification; (2) observed the victim engaged in a private act; (3) the observation was made without the consent of the victim; and (4) the accused knew [6-500] that the victim did not consent to being observed for that purpose. [8-s 91J.35] Aggravated offence — s 91J(3) The accused: (1) for the purpose of obtaining sexual arousal or sexual gratification; (2) observed the victim engaged in a private act; (3) the observation was made without the consent of the victim; (4) the accused knew [6-500] that the victim did not consent to being observed for that purpose; and (a) the victim was a child under the age of 16 years; or (b) the accused constructed or adapted the fabric of a building for the purpose of facilitating the commission of the offence. [8-s 91J.40] Attempts A person who attempts to commit an offence under the section is liable to the same penalty provided for the commission of the offence: see s 91J(6) at [8-s 91J].

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Crimes

[8-s 91J.10] General offence — s 91J(1) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did, for the purpose of obtaining sexual arousal or sexual gratification, observe [name of victim] who was engaged in a private act, without the consent of [name of victim], knowing that he/she did not consent to being observed for that purpose.

[8-s 91J.45]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 91J

[8-s 91J.45] Alternative verdicts If on the trial of a person for an offence under section 91J(3) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 91J(1), it may find the accused guilty of the latter offence: see s 91J(5) at [8-s 91J(5)].

[8-s 91K] Filming a person engaged in private act 91K (1) General offence A person who, for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, films another person who is engaged in a private act: (a) without the consent of the person being filmed to being filmed for that purpose, and (b) knowing that the person being filmed does not consent to being filmed for that purpose, is guilty of an offence. Maximum penalty: 100 penalty units or imprisonment for 2 years, or both. (2) An offence against subsection (1) is a summary offence. (3) Aggravated offence A person who, for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, films another person who is engaged in a private act: (a) without the consent of the person being filmed to being filmed for that purpose, and (b) knowing that the person being filmed does not consent to being filmed for that purpose, and (c) in circumstances of aggravation, is guilty of an offence. Maximum penalty: imprisonment for 5 years. (4) In this section, circumstances of aggravation means circumstances in which: (a) the person whom the offender filmed was a child under the age of 16 years, or (b) the offender constructed or adapted the fabric of any building for the purpose of facilitating the commission of the offence. (5) Alternative verdict If on the trial of a person charged with an offence against subsection (3) the trier of fact is not satisfied that the offence is proven but is satisfied that the person has committed an offence against subsection (1), the trier of fact may acquit the person of the offence charged and find the person guilty of an offence against subsection (1). The person is liable to punishment accordingly. (6) Attempts A person who attempts to commit an offence under subsection (1) or (3) is liable to the penalty provided for the commission of the offence. COMMENTARY ON SECTION 91K Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . General offence — s 91K(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Aggravated offence — victim child under 16 years — s 91K(3)

[8-s 91K.1] [8-s 91K.5] [8-s 91K.10]

.......................................................

[8-s 91K.15]

Aggravated offence — construction or adaption of building to facilitate offence — s 91K(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 91K.20] [8-s 91K.25]

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s 91K

CRIMES ACT 1900 (NSW) — PART 3

General offence — s 91J(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Aggravated offence — s 91J(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Attempts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alternative verdicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 91K.35] [8-s [8-s [8-s [8-s

91K.30] 91K.35] 91K.40] 91K.45]

[8-s 91K.1] Sentencing The approach to sentencing for an offence under s 91K(3) was considered in R v Stoupe [2015] NSWCCA 175; BC201505960 at [75]–[79], where a child care worker surreptitiously filmed an 8 year old girl in the female toilet at the child care centre where he worked and she was in care. PROOF MATERIAL ON SECTION 91K For the text of s 91K, see [8-s 91K] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 91K.5] Form of indictment

[8-s 91K.15] Aggravated offence — victim child under 16 years — s 91K(3) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did, for the purpose of obtaining/enabling another person to obtain sexual arousal or sexual gratification, film [name of victim], a child then under the age of 16 years, namely [x] years, engaged in a private act, without the consent of the child, knowing that he/she did not consent to being filmed for that purpose. [8-s 91K.20] Aggravated offence — construction or adaption of building to facilitate offence — s 91K(3) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did, for the purpose of obtaining/enabling another person to obtain sexual arousal or sexual gratification, film [name of victim] engaged in a private act, without the consent of [name of victim], knowing that he/she did not consent to being observed for that purpose, and further, did construct/adapt the fabric of a building for the purpose of facilitating the commission of the offence. [8-s 91K.25] Elements of offence [8-s 91K.30] General offence — s 91J(1) The accused: (1) for the purpose of obtaining sexual arousal or sexual gratification for himself or enabling another person to obtain sexual arousal or sexual gratification; (2) filmed the victim engaged in a private act; (3) the filming was done without the consent of the victim; and (4) the accused knew [6-500] that the victim did not consent to being filmed for that purpose. [8-s 91K.35] Aggravated offence — s 91J(3) The accused: (1) for the purpose of obtaining sexual arousal or sexual gratification for himself or enabling another person to obtain sexual arousal or sexual gratification; (2) filmed the victim engaged in a private act; (3) the filming was done without the consent of the victim; (4) the accused knew [6-500] that the victim did not consent to being filmed for that purpose; and (a) the victim was a child under the age of 16 years; or (b) the accused constructed or adapted the fabric of a building for the purpose of facilitating the commission of the offence.

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Crimes

[8-s 91K.10] General offence — s 91K(1) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did, for the purpose of obtaining/enabling another person to obtain sexual arousal or sexual gratification, film [name of victim] engaged in a private act, without the consent of [name of victim], knowing that he/she did not consent to being filmed for that purpose.

[8-s 91K.40]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 91K

[8-s 91K.40] Attempts A person who attempts to commit an offence under the section is liable to the same penalty provided for the commission of the offence: see s 91K(6) at [8-s 91K]. [8-s 91K.45] Alternative verdicts If on the trial of a person for an offence under section 91K(3) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 91K(1), it may find the accused guilty of the latter offence: see s 91K(5) at [8-s 91K].

[8-s 91L] Filming a person’s private parts 91L (1) General offence A person who, for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, films another person’s private parts, in circumstances in which a reasonable person would reasonably expect the person’s private parts could not be filmed: (a) without the consent of the person being filmed to being filmed for that purpose, and (b) knowing that the person being filmed does not consent to being filmed for that purpose, is guilty of an offence. Maximum penalty: 100 penalty units or imprisonment for 2 years, or both. (2) An offence against subsection (1) is a summary offence. (3) Aggravated offence A person who, for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, films another person’s private parts, in circumstances in which a reasonable person would expect that his or her private parts could not be filmed: (a) without the consent of the person being filmed to being filmed for that purpose, and (b) knowing that the person being filmed does not consent to being filmed for that purpose, and (c) in circumstances of aggravation, is guilty of an offence. Maximum penalty: imprisonment for 5 years. (4) In this section, circumstances of aggravation means circumstances in which: (a) the person whom the offender filmed was a child under the age of 16 years, or (b) the offender constructed or adapted the fabric of any building for the purpose of facilitating the commission of the offence. (5) Alternative verdict If on the trial of a person charged with an offence against subsection (3) the trier of fact is not satisfied that the offence is proven but is satisfied that the person has committed an offence against subsection (1), the trier of fact may acquit the person of the offence charged and find the person guilty of an offence against subsection (1). The person is liable to punishment accordingly. (6) Attempts A person who attempts to commit an offence under subsection (1) or (3) is liable to the penalty provided for the commission of the offence. (7) Double jeopardy A person cannot be convicted of both an offence against this section and an offence against section 91K in respect of conduct occurring on the same occasion.

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s 91L

CRIMES ACT 1900 (NSW) — PART 3

[8-s 91L.45]

PROOF MATERIAL ON SECTION 91L For the text of s 91L, see [8-s 91L] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 91L.5] Form of indictment [8-s 91L.10] General offence — s 91L(1) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did, for the purpose of obtaining/enabling another person to obtain sexual arousal or sexual gratification, film the private parts of [name of victim], in circumstances in which a reasonable person would reasonably expect such filming could not be done, without the consent of [name of victim], knowing that he/she did not consent to being filmed for that purpose.

[8-s 91L.20] Aggravated offence — construction or adaption of building to facilitate offence — s 91L(3) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did, for the purpose of obtaining/enabling another person to obtain sexual arousal or sexual gratification, film the private parts of [name of victim], in circumstances in which a reasonable person would expect that such filming could not be done, without the consent of [name of victim], knowing that he/she did not consent to being filmed for that purpose, and further, did construct/adapt the fabric of a building for the purpose of facilitating the filming. [8-s 91L.25] Elements of offence [8-s 91L.30] General offence — s 91L(1) The accused: (1) for the purpose of obtaining sexual arousal or sexual gratification for himself or enabling another person to obtain sexual arousal or sexual gratification; (2) filmed the private parts of the victim; (3) the filming was done in circumstances in which a reasonable person would reasonably expect the victim’s private parts could not be filmed; (4) the filming was done without the consent of the victim; and (5) the accused knew [6-500] that the victim did not consent to being filmed for that purpose. [8-s 91L.35] Aggravated offence — s 91L(3) The accused: (1) for the purpose of obtaining sexual arousal or sexual gratification for himself or enabling another person to obtain sexual arousal or sexual gratification; (2) filmed the private parts of the victim; (3) the filming was done in circumstances in which a reasonable person would expect the victim’s private parts could not be filmed; (4) the filming was done without the consent of the victim; (5) the accused knew [6-500] that the victim did not consent to being filmed for that purpose; and (a) the victim was a child under the age of 16 years; or (b) the accused constructed or adapted the fabric of a building for the purpose of facilitating the commission of the offence. [8-s 91L.40] Attempts A person who attempts to commit an offence under the section is liable to the same penalty provided for the commission of the offence: see s 91L(6) at [8-s 91L]. [8-s 91L.45] Alternative verdicts If on the trial of a person for an offence under section 91L(3) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 91L(1), it may find the accused guilty of the latter offence: see s 91L(5) at [8-s 91L].

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Crimes

[8-s 91L.15] Aggravated offence — victim child under 16 years — s 91L(3) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did, for the purpose of obtaining/enabling another person to obtain sexual arousal or sexual gratification, film the private parts of [name of victim], a child then under the age of 16 years, in circumstances in which a reasonable person would expect that such filming could not be done, without the consent of the child, knowing that he/she did not consent to being filmed for that purpose.

[8-s 91L.50]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 91L

[8-s 91L.50] Double jeopardy A person cannot be convicted of both an offence under this section and an offence under section 91K in respect of conduct occurring on the same occasion: see s 91L(7) at [8-s 91L].

[8-s 91M] Installing device to facilitate observation or filming 91M (1) Offence A person who, with the intention of enabling that person or any other person to commit an offence against section 91J, 91K or 91L, installs any device, or constructs or adapts the fabric of any building, for the purpose of facilitating the observation or filming of another person, is guilty of an offence. Maximum penalty: 100 penalty units or imprisonment for 2 years, or both. (2) An offence against this section is a summary offence. (3) Alternative verdict If on the trial of a person charged with an offence against section 91J, 91K or 91L the trier of fact is not satisfied that the offence is proven but is satisfied that the person has committed an offence against this section, the trier of fact may acquit the person of the offence charged and find the person guilty of an offence against this section. The person is liable to punishment accordingly. PROOF MATERIAL ON SECTION 91M For the text of s 91M, see [8-s 91M] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 91M.5] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did, for the purpose of enabling himself/herself/another person to commit an offence under section 91J/91K/91L of the Crimes Act 1900, namely [describe offence], install a device or construct/adapt the fabric of a building for the purpose of facilitating the observation/filming of [name of victim]. [8-s 91M.10] Elements of offence The elements of the offence are — The accused: (1) for the purpose of enabling himself/herself or another person to commit an offence under section 91J, 91K or 91L of the Crimes Act 1900; (a) installed a device; or (b) constructed or adapted the fabric of a building; (2) for the purpose of facilitating the observation or filming of the victim. [8-s 91M.15] Alternative verdicts If on the trial of a person for an offence under section 91J, 91K or 91L the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under this section, it may find the accused guilty of the latter offence: see s 91M(3) at [8-s 91M].

DIVISION 15C — RECORDING AND DISTRIBUTING INTIMATE IMAGES [Div 15C insrt Act 29 of 2017 Sch 1[2], opn 25 Aug 2017]

[8-s 91N] Definitions 91N (1) In this Division: distribute includes: (a) send, supply, exhibit, transmit or communicate to another person, or (b) make available for viewing or access by another person, whether in person or by electronic, digital or any other means.

1006

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s 91O

CRIMES ACT 1900 (NSW) — PART 3

[8-s 91O]

engaged in a private act means: (a) in a state of undress, or (b) using the toilet, showering or bathing, or (c) engaged in a sexual act of a kind not ordinarily done in public, or (d) engaged in any other like activity. image means a still or moving image, whether or not altered.

[def am Act 29 of 2018 Sch 1 item 1.4[4], opn 21 June 2018]

record an image means record, take or capture an image, by any means. (2) A person may be regarded as having distributed an image to another person whether or not the other person views or accesses the image.

[8-s 91O] Meaning of consent in intimate image offences 91O (1) This section applies to all offences under this Division. (2) A person consents to the recording of an intimate image if the person freely and voluntarily agrees to the recording of the intimate image. (3) A person consents to the distribution of an intimate image if the person freely and voluntarily agrees to the distribution of the intimate image. (4) A person who consents to the recording or distribution of an image on a particular occasion is not, by reason only of that fact, to be regarded as having consented to the recording or distribution of that image or any other image on another occasion. (5) A person who consents to the distribution of an image to a particular person or in a particular way is not, by reason only of that fact, to be regarded as having consented to the distribution of that image or any other image to another person or in another way. (6) A person who distributes an image of himself or herself is not, by reason only of that fact, to be regarded as having consented to any other distribution of the image. (7) A person does not consent to the recording or distribution of an intimate image: (a) if the person is under the age of 16 years or does not otherwise have the capacity to consent, including because of cognitive incapacity, or (b) if the person does not have the opportunity to consent because the person is unconscious or asleep, or (c) if the person consents because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person), or (d) if the person consents because the person is unlawfully detained.

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intimate image means: (a) an image of a person’s private parts, or of a person engaged in a private act, in circumstances in which a reasonable person would reasonably expect to be afforded privacy, or (b) an image that has been altered to appear to show a person’s private parts, or a person engaged in a private act, in circumstances in which a reasonable person would reasonably expect to be afforded privacy. private parts means: (a) a person’s genital area or anal area, whether bare or covered by underwear, or (b) the breasts of a female person, or transgender or intersex person identifying as female, whether or not the breasts are sexually developed.

[8-s 91O]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 91O

(8) This section does not limit the grounds on which it may be established that a person does not consent to the recording or distribution of an intimate image.

[8-s 91P] Record intimate image without consent 91P (1) A person who intentionally records an intimate image of another person: (a) without the consent of the person, and (b) knowing the person did not consent to the recording or being reckless as to whether the person consented to the recording, is guilty of an offence. Maximum penalty: 100 penalty units or imprisonment for 3 years, or both. (2) A prosecution of a person under the age of 16 years for an offence against this section is not to be commenced without the approval of the Director of Public Prosecutions.

[8-s 91Q] Distribute intimate image without consent 91Q (1) A person who intentionally distributes an intimate image of another person: (a) without the consent of the person, and (b) knowing the person did not consent to the distribution or being reckless as to whether the person consented to the distribution, is guilty of an offence. Maximum penalty: 100 penalty units or imprisonment for 3 years, or both. (2) A prosecution of a person under the age of 16 years for an offence against this section is not to be commenced without the approval of the Director of Public Prosecutions.

[8-s 91R] Threaten to record or distribute intimate image 91R (1) A person who threatens to record an intimate image of another person: (a) without the consent of the other person, and (b) intending to cause that other person to fear that the threat will be carried out, is guilty of an offence. Maximum penalty: 100 penalty units or imprisonment for 3 years, or both. (2) A person who threatens to distribute an intimate image of another person: (a) without the consent of the other person, and (b) intending to cause that other person to fear that the threat will be carried out, is guilty of an offence. Maximum penalty: 100 penalty units or imprisonment for 3 years, or both. (3) A threat may be made by any conduct, and may be explicit or implicit and conditional or unconditional. (4) A person may threaten to distribute an image whether or not the image exists. (5) In proceedings for an offence against this section, the prosecution is not required to prove that the person alleged to have been threatened actually feared that the threat would be carried out. (6) A prosecution of a person under the age of 16 years for an offence against this section is not to be commenced without the approval of the Director of Public Prosecutions.

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s 92

CRIMES ACT 1900 (NSW) — PART 3

[8-s 92]

[8-s 91S] Court may order rectification 91S (1) A court that finds a person guilty of an offence against section 91P or 91Q may order the person to take reasonable actions to remove, retract, recover, delete or destroy any intimate image recorded or distributed by the person in contravention of the section within a period specified by the court. (2) A person who, without reasonable excuse, contravenes an order made under this section is guilty of an offence. Maximum penalty: 50 penalty units or imprisonment for 2 years, or both. (3) An offence against this section is a summary offence.

91T (1) A person does not commit an offence against section 91P or 91Q if: (a) the conduct alleged to constitute the offence was done for a genuine medical or scientific purpose, or (b) the conduct alleged to constitute the offence was done by a law enforcement officer for a genuine law enforcement purpose, or (c) the conduct alleged to constitute the offence was required by a court or otherwise reasonably necessary to be done for the purpose of legal proceedings, or (d) a reasonable person would consider the conduct of the accused person acceptable, having regard to each of the following (to the extent relevant): (i) the nature and content of the image, (ii) the circumstances in which the image was recorded or distributed, (iii) the age, intellectual capacity, vulnerability or other relevant circumstances of the person depicted in the image, (iv) the degree to which the accused person’s actions affect the privacy of the person depicted in the image, (v) the relationship between the accused person and the person depicted in the image. (2) In this section: law enforcement officer means a police officer or other person who exercises law enforcement functions under a law of this State, another State, a Territory or the Commonwealth. DIVISION 16 — BIGAMY [Div heading insrt Act 53 of 2000 s 3 and Sch 3.3, opn 29 June 2000]

[8-s 92] Bigamy 92 Whosoever, being married, marries another person during the life of the former spouse (including husband or wife), shall be liable to imprisonment for seven years: Provided that no person shall be convicted under this section whose spouse (including husband or wife) has at the time of such second marriage been continually absent from such person for the space of seven years, or, if domiciled in New South Wales at the time of the first marriage, has been continually absent from New South Wales for the space

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[8-s 91T] Exceptions

[8-s 92]

s 92

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

of five years then last past, and was, on reasonable grounds, believed by the accused at the time of the second marriage not to be living, of which facts the proof shall lie on the accused. Editorial note. See Marriage Act 1961 (Commonwealth), section 94. [s 92 am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000; Act 28 of 2018 Sch 1 item 1.12, opn 15 June 2018]

COMMENTARY ON SECTION 92 Commonwealth offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 92.1] [8-s 92.5]

[8-s 92.1] Commonwealth offence Although this section is a current part of the Crimes Act 1900 and hence part of the law of NSW, s 94 of the Marriage Act 1961 creates a Commonwealth offence of bigamy and s 94(8) of that Act expressly excludes the operation of State legislation. [8-s 92.5] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 1 clause 2. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267].

[8-s 93] Participator in bigamy 93 Whosoever, whether married or unmarried, marries the spouse (including husband or wife) of any person not continually so absent, as in the proviso to section 92 mentioned, knowing him or her to be married, and the former wife or husband to be alive, shall be liable to imprisonment for five years. Editorial note. See Marriage Act 1961 (Commonwealth), section 94. [s 93 am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000; Act 28 of 2018 Sch 1 item 1.12, opn 15 June 2018]

COMMENTARY ON SECTION 93 Commonwealth offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 93.1] [8-s 93.5]

[8-s 93.1] Commonwealth offence Although this section is a current part of the Crimes Act 1900 and hence part of the law of New South Wales, s 94 of the Marriage Act 1961 (Cth) creates a Commonwealth offence of bigamy and s 94(8) of that Act expressly excludes the operation of State legislation. [8-s 93.5] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 1 clause 2. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267].

PART 3A — OFFENCES RELATING TO PUBLIC ORDER [Pt 3A insrt Act 81 of 1988 s 3 and Sch 1(2), opn 19 Feb 1989]

DIVISION 1 — RIOT AND AFFRAY [Div 1 insrt and renum Act 38 of 2007 s 3 and Sch 2[6], opn 27 Sep 2007]

[8-s 93A] Definition 93A

In this Division:

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s 93B

CRIMES ACT 1900 (NSW) — PART 3A

[8-s 93B.15]

violence means any violent conduct, so that: (a) except for the purposes of section 93C, it includes violent conduct towards property as well as violent conduct towards persons, and (b) it is not restricted to conduct causing or intended to cause injury or damage but includes any other violent conduct (for example, throwing at or towards a person a missile of a kind capable of causing injury which does not hit or falls short). [s 93A am Act 38 of 2007 s 3 and Sch 2[14], opn 27 Sep 2007]

[8-s 93B] Riot 93B (1) Where 12 or more persons who are present together use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety, each of the persons using unlawful violence for the common purpose is guilty of riot and liable to imprisonment for 15 years. (2) It is immaterial whether or not the 12 or more persons use or threaten unlawful violence simultaneously. (3) The common purpose may be inferred from conduct. (4) No person of reasonable firmness need actually be, or be likely to be, present at the scene. (5) Riot may be committed in private as well as in public places. Editor’s note: For proof material on s 93B, see [27-20,000] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 93B Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mens rea of the offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sentencing principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Necessary averments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 93B.1] [8-s 93B.5] [8-s 93B.10] [8-s 93B.15] [8-s 93B.20] [8-s 93B.25] [8-s 93B.30]

[8-s 93B.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 3 cl 10. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 93B.5] Definitions As to “violence” see s 93A at [8-s 93A]. The phrase “present together” in the section should be given its ordinary meaning; the concept was really directed to people being in the same place as each other, and the Crown was not required to prove that the persons were in close proximity to one another or close enough to assist each other if necessary: Parhizkar v R [2014] NSWCCA 240; BC201409191; 21(11) Crim LN [3458]. [8-s 93B.10] Mens rea of the offence

See s 93D(1) at [8-s 93D].

[8-s 93B.15] Sentencing principles As to the proper approach on sentence for riot, see R v McCormack [1981] VR 104 and R v Maher (2005) 154 A Crim R 457; [2005] NSWCCA 16; BC200500715; (2005) 12 Crim LN 24 [1835], in which McCormack was considered.

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Crimes

[subs (1) am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000; Act 119 of 2005, s 4 and Sch 2[2], opn 15 Dec 2005]

[8-s 93B.20]

s 93B

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

PROOF MATERIAL ON SECTION 93B For the text of s 93B, see [8-s 93B] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 93B.20] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, together with [name of other rioters — if names not known, aver “and other persons not known”] being [x or at least 12]* in number assembled together and used unlawful violence for a common purpose, namely [describe briefly the facts relied upon eg to obtain the release of Joe Green from police custody] such as to cause a person of reasonable firmness then being present at the scene to fear for his/her personal safety. [8-s 93B.25] Necessary averments *The wording of this section requires that in order to constitute a riot there must be 12 or more persons. It would appear necessary to aver that in fact there were at least that number of persons participating in the riot. [8-s 93B.30] Elements of offence The elements of the offence are — (1) 12 or more persons were present together; and (2) used or threatened to use unlawful violence [8-s 93A] for a common purpose;

and (3) their conduct taken together was such that it would cause a person of

reasonable firmness present at the scene to fear for his/her personal safety; and (4) the accused was one of those present who used unlawful violence [8-s 93A] for

a common purpose — see R v Hawi (No 18) [2011] NSWSC 1664.

[8-s 93C] Affray 93C (1) A person who uses or threatens unlawful violence towards another and whose conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety is guilty of affray and liable to imprisonment for 10 years. [subs (1) am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000; Act 119 of 2005, s 4 and Sch 2[3], opn 15 Dec 2005]

(2) If 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subsection (1). (3) For the purposes of this section, a threat cannot be made by the use of words alone. (4) No person of reasonable firmness need actually be, or be likely to be, present at the scene. (5) Affray may be committed in private as well as in public places. Editor’s note: For proof material on s 93C, see [27-20,050] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 93C Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Offence of affray . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sentencing for affray . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 93C.1] [8-s 93C.5] [8-s 93C.10] [8-s 93C.15] [8-s 93C.20] [8-s 93C.25]

[8-s 93C.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act and is to be dealt with in a Local Court unless an election is made for trial

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s 93F

CRIMES ACT 1900 (NSW) — PART 3A

[8-s 93F]

on indictment, see at [2-s 260] and [2-Sch 1] Pt 3 cl 10. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 93C.5] Definitions

As to “violence” see s 93A at [8-s 93A].

[8-s 93C.10] Offence of affray The nature and elements of the offence of affray under s 93C were considered in Colosimo v DPP (2005) 64 NSWLR 645; 155 A Crim R 573; [2005] NSWSC 854; BC200506397; Colosimo v DPP [2006] NSWCA 293; BC200609029 (on appeal). The elements of affray for a principal in the second degree or a participant in a joint criminal enterprise were considered in Mann v R [2016] NSWCCA 10; BC201600815, where it was held that to establish the appellant’s involvement in an affray, through pre-concert or as principal in the second degree, the prosecution was required to prove either encouragement of the participants to fight or readiness to assist in the fight.

PROOF MATERIAL ON SECTION 93C For the text of s 93C, see [8-s 93C] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 93C.20] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales used/threatened unlawful violence towards [name of intended victim] by conduct that would cause a person of reasonable firmness present at the scene to fear for his/her personal safety. [8-s 93C.25] Elements of offence The elements of the offence are — (1) The accused used or threatened to use unlawful violence [8-s 93A] towards

another person; and (2) the conduct of the accused was such as would cause a person of reasonable

firmness present at the scene to fear for his/her personal safety.

[8-s 93D] Mental element under sections 93B and 93C 93D (1) A person is guilty of riot only if the person intends to use violence or is aware that his or her conduct may be violent. (2) A person is guilty of affray only if the person intends to use or threaten violence or is aware that his or her conduct may be violent or threaten violence. (3) Subsection (1) does not affect the determination for the purposes of riot of the number of persons who use or threaten violence. 93E [s 93E rep Act 38 of 2007 s 3 and Sch 2[6], opn 27 Sep 2007] DIVISION 2 — EXPLOSIVES AND FIREARMS OFFENCES [Div 2 insrt and renum Act 38 of 2007 s 3 and Sch 2[7], opn 27 Sep 2007]

[8-s 93F] Interpretation 93F (1) In this Division:

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Crimes

[8-s 93C.15] Sentencing for affray In determining an appropriate sentence for an offence of affray contrary to s 93C, an offender’s conduct is to be considered in the context of the conduct of a co-offender. The level of violence used and the scale of the affray are relevant. An offender, however, may only be sentenced for that part of his conduct and the conduct of the co-offender which gave rise to the offence of affray, and not that conduct which resulted in some other offence being committed by him or by the co-offender: Stevens v R [2007] NSWCCA 152; BC200704397 at [25].

[8-s 93F]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 93F

firearm, imitation firearm, pistol and prohibited firearm have the same meanings as in the Firearms Act 1996. [def am Act 40 of 2010 Sch 3.8[2], opn 9 July 2010]

unregistered firearm means a firearm that is not registered under the Firearms Act 1996, but does not include any such firearm that is not required to be registered under that Act. [subs (1) am Act 38 of 2007 s 3 and Sch 2[14], opn 27 Sep 2007; Act 92 of 2010 Sch 3, opn 4 Feb 2011]

(2) For the purposes of this Division, a person who is in a vehicle or vessel in a public place is taken to be in that place. [subs (2) am Act 38 of 2007 s 3 and Sch 2[14], opn 27 Sep 2007]

(3) In subsection (2), vehicle includes a caravan or anything else constructed to be drawn by a vehicle or animal. COMMENTARY ON SECTION 93F Definition of firearm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 93F.1] Definition of firearm

[8-s 93F.1]

See at [14-015].

[8-s 93FA] Possession, supply or making of explosives 93FA (1) A person who possesses an explosive in a public place is guilty of an offence. Maximum penalty: Imprisonment for 5 years. (2) A person who possesses, supplies or makes an explosive, under circumstances that give rise to a reasonable suspicion that the person did not possess, supply or make the explosive for a lawful purpose, is guilty of an offence. Maximum penalty: Imprisonment for 3 years or 50 penalty units, or both. [subs (2) subst Act 57 of 2007 s 3 and Sch 3[2], opn 7 Dec 2007]

(3) [subs (3) rep Act 42 of 2012 Sch 1.5, opn 6 July 2012] (4) A person is not guilty of an offence against subsection (1) or (2) for possessing or making an explosive if the person satisfies the court that he or she had a reasonable excuse for doing so or did so for a lawful purpose. [s 93FA insrt Act 48 of 2004 s 3 and Sch 1[5], opn 12 Nov 2004]

PROOF MATERIAL ON SECTION 93FA(1) For the text of s 93FA(1), see [8-s 93FA] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 93FA.5] Form of indictment That [name of accused] on [date of alleged offence] at [name/description of public place] at [locality/suburb] in the State of New South Wales had explosives in his/her possession. [8-s 93FA.10] Elements of offence The elements of the offence are — (1) The accused had explosives in his/her possession [8-s 7.1]; (2) in a public place [8-s 8] and [8-s 93G.15]. [8-s 93FA.15] Statutory defences A person is not guilty of an offence under the section if the person satisfies the court that he or she had a reasonable excuse for possessing the explosive in a public place or a lawful purpose for possessing the explosive in a public place: see s 93FA(4) at [8-s 93FA].

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s 93FB

CRIMES ACT 1900 (NSW) — PART 3A

[8-s 93FB]

PROOF MATERIAL ON SECTION 93FA(2) For the text of s 93FA(2), see [8-s 93FA] behind the “8 — Crimes Act” guide card in Vol 1. [8-s 93FA.20] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales made/supplied/had in his/her possession an explosive, in circumstances that give rise to a reasonable suspicion that he/she did not possess/supply/make the explosive for a lawful purpose. [8-s 93FA.25] Elements of offence The elements of the offence are— (1) The accused: (i) made; or (ii) supplied; or (iii) had in his/her possession [8–s 7.1];

an explosive;

[8-s 93FA.30] Statutory defences A person is not guilty of an offence under the section if the person satisfies the court that he or she had a reasonable excuse for possessing or making the explosive or a lawful purpose for possessing or making the explosive: see s 93FA(4) at [8-s 93FA].

[8-s 93FB] Possession of dangerous articles other than firearms 93FB (1) A person who, in a public place, possesses: (a) anything (not being a firearm within the meaning of the Firearms Act 1996) capable of discharging by any means: (i) any irritant matter in liquid, powder, gas or chemical form or any dense smoke, or (ii) any substance capable of causing bodily harm, or (b) a fuse capable of use with an explosive or a detonator, or (c) a detonator, or (d) a distress signal, or distress flare, that operates by emitting a bright light, is liable, on conviction before the Local Court, to imprisonment for 2 years, or a fine of 50 penalty units, or both. [subs (1) am Act 54 of 1998 s 3 and Sch 2.6, opn 30 June 1998; Act 121 of 2001 s 4 and Sch 2.72[45], opn 7 July 2003; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009; Act 59 of 2014 Sch 1 item 1.1[3], opn 23 Oct 2014]

(2) A person is not guilty of an offence under this section for possessing anything referred to in subsection (1) if the person satisfies the court that he or she had a reasonable excuse for possessing it or possessed it for a lawful purpose. (3) A person is not guilty of an offence under this section for possessing anything referred to in subsection (1)(a) if the person satisfies the court that he or she possessed it for the purpose of self-defence and that it was reasonable in the circumstances to possess it for that purpose. [subs (3) insrt Act 17 of 1994 s 3, opn 16 May 1994]

(4) In considering a defence under subsection (3), the court must have regard to its reasonableness in all the circumstances of the case, including: (a) the immediacy of the perceived threat to the person charged, and

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Crimes

(2) in such circumstances as to give rise to a reasonable suspicion [8-s 527C.10] that he/she: (i) did not make the explosive for a lawful purpose; or (ii) did not supply the explosive for a lawful purpose; or (iii) did not have the explosive in his/her possession [8-s 7.1] for a lawful purpose.

[8-s 93FB]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 93FB

(b) the circumstances, such as the time and location, in which the thing was possessed, and (c) the type of thing possessed, and (d) the age, characteristics and experiences of the person charged. [subs (4) insrt Act 17 of 1994 s 3, opn 16 May 1994] [s 93FB (formerly s 545E) renum Act 48 of 2004 s 3 and Sch 1[9], opn 12 Nov 2004]

PROOF MATERIAL ON SECTION 93FB For the text of s 93FB, see [8-s 93FB] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 93FB.5] Form of charge [8-s 93FB.10] Possessing thing capable of discharge — s 93FB(1)(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales had in his/her possession a thing in a public place, not being a firearm, capable of discharging an irritant matter in liquid/powder/gas/chemical form/dense smoke/a substance capable of causing bodily harm. [8-s 93FB.15] Possessing fuse — s 93FB(1)(b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales had in his/her possession a fuse capable of use with an explosive/detonator in a public place. [8-s 93FB.20] Possessing detonator — s 93FB(1)(c) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales had in his/her possession a detonator in a public place. [8-s 93FB.25] Elements of offence

The elements of the offence are —

[8-s 93FB.30] Possessing thing capable of discharge (1) The accused had in his/her possession [8-s 159.20]; (2) in a public place; (3) a thing capable of discharging: (i) an irritant matter in liquid, powder, gas or chemical form; (ii) dense smoke; or (iii) a substance capable of causing bodily harm; (4) and not being a firearm within the meaning of the Firearms Act 1996. [8-s 93FB.35] Possessing fuse (1) The accused had in his/her possession [8-s 159.20]; (2) in a public place; (3) a fuse capable of use with an explosive or detonator. [8-s 93FB.40] Possessing detonator (1) The accused had in his/her possession [8-s 159.20]; (2) in a public place; (3) a detonator.

[8-s 93G] Causing danger with firearm or spear gun 93G (1) Any person who: (a) possesses a loaded firearm or loaded spear gun: (i) in a public place, or (ii) in any other place so as to endanger the life of any other person, or (b) fires a firearm or spear gun in or near a public place, or

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s 93G

CRIMES ACT 1900 (NSW) — PART 3A

[8-s 93G.10]

(c) carries or fires a firearm or spear gun in a manner likely to injure, or endanger the safety of, himself or herself or any other person or any property, or with disregard for the safety of himself or herself or any other person, is liable to imprisonment for 10 years. (2) For the purposes of this section: (a) a firearm is to be regarded as being loaded if there is ammunition: (i) in its chamber or barrel, or (ii) in any magazine or other device which is in such a position that the ammunition can be fitted into its chamber or barrel by operation of some other part of the firearm, and (b) a spear gun is to be regarded as being loaded if a spear, or an instrument or thing similar to a spear, is fitted to it. (3) A person is not guilty of an offence under this section for possessing or doing anything referred to in subsection (1) if the person satisfies the court that he or she had a reasonable excuse for possessing it or doing it or possessed it or did it for a lawful purpose.

COMMENTARY ON SECTION 93G Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . “Likely to injure” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Public place . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . “So as to endanger life” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Personal violence offence/domestic violence offence . . . . . . . . . . . . . Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Possessing loaded firearm etc — s 93G(1)(a) . . . . . . . . . . . . . . . . Firing firearm etc — s 93G(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . Endangering person or property — s 93(1)(c) . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Statutory defence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 93G.1] [8-s 93G.5] [8-s 93G.10] [8-s 93G.15] [8-s 93G.20] [8-s 93G.25] [8-s 93G.30] [8-s 93G.35] [8-s 93G.40] [8-s 93G.45] [8-s 93G.50] [8-s 93G.55] [8-s 93G.60]

[8-s 93G.1] Summary disposal An offence under the section is a Table 2 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment by the prosecutor, see s 260(2) at [2-s 260] and [2-Sch 1] Pt 4 cl 6. The maximum penalty which can be imposed is 2 years imprisonment, or a fine of 50 penalty units, or both: see at [2-s 268]. [8-s 93G.5] Definitions As to possession see s 7 at [8-s 7]. As to “firearm” see s 93F and [14-015]. As to “public place” see s 8 at [8-s 8]. [8-s 93G.10] “Likely to injure” The normal meaning of the word “likely” is “probable” and not “possible”, although its meaning has to be derived from its context: Boughey v R (1986) 161 CLR 10; 65 ALR 609; BC8601432, where it was said that a jury ought not to be told that it meant “more likely than not”, “a more than 50%” or “odds on” chance. The word should be taken in its normal everyday meaning as “a notion of substantial, real and not remote chance”: R v Winningham (NSWCCA, Studdert, Sully and James JJ, 60486/94, 10 May 1995, unreported); (1995) 2 Crim LN 36 [394].

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Crimes

Editor’s note: For proof material on s 93G, see [27-21,000] behind the “27 – Informations and Indictments” guide card.

[8-s 93G.15]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 93G

[8-s 93G.15] Public place Section 93F(2) at [8-s 93F] provides that, for the purposes of Part 3B, a person who is in a vehicle or vessel in a public place is taken to be in that place. This 2003 amendment overcomes the decision in Hardman v Minehan (2003) 57 NSWLR 390; [2003] NSWCA 130; BC200304274; (2003) 10 Crim LN 57 [1575] which had held that, for the purposes of an offence under s 93G(1)(a)(i), a person who was in possession of a loaded firearm inside a motor vehicle standing in a public place was not in possession of a firearm in a public place. The decision in Hardman was distinguished in R v Kanaan [2003] NSWCCA 396; BC200308057; (2004) 11 Crim LN 93 [1625] in relation to an offence under s 93G(1)(b) in respect of the discharge of a firearm from a motor vehicle in a public street. [8-s 93G.20] “So as to endanger life” For the purposes of s 93G(1)(a)(ii) there is no necessity for the Crown to prove that the accused intended to endanger life; R v Piltz (2004) 59 NSWLR 538; [2004] NSWCCA 34; BC200400649; (2004) 11 Crim LN 13 [1654]. [8-s 93G.25] Personal violence offence/domestic violence offence This offence (or an offence of attempting to commit this offence) is a “personal violence offence” as defined in s 4 of the Crimes (Domestic and Personal Violence) Act 2007 at [8-5015] and, when committed by a person against another person with whom the offender has or has had a domestic relationship, is a “domestic violence offence” as defined in s 11 of that Act at [8-5240]. [8-s 93G.30] Sentence A relevant consideration in sentencing for an offence under the section is the purpose for which the firearm was taken into possession by the offender so that it was a relevant factor going to the offender’s moral culpability that the weapon was not to be used for a criminal purpose but in order for protection of the offender and his family: Sumrein v R [2019] NSWCCA 83; BC201903096; 26(5) Crim LN [4137]. PROOF MATERIAL ON SECTION 93G For the text of s 93G, see [8-s 93G] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 93G.35] Form of indictment [8-s 93G.40] Possessing loaded firearm etc — s 93G(1)(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales possessed a loaded firearm/loaded speargun in a public place, namely [describe public place]/possessed a loaded firearm/loaded speargun at [describe other place] so as to endanger the life of another person. [8-s 93G.45] Firing firearm etc — s 93G(1)(b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales fired a firearm/speargun in or near a public place, namely [describe public place]. [8-s 93G.50] Endangering person or property — s 93(1)(c) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales carried/fired a firearm/speargun in a manner likely to injure/endanger the safety of [name of person/description of property endangered]/carried/fired a firearm/speargun with disregard for the safety of [name of accused/other person]. [8-s 93G.55] Elements of offence The elements of the offence are — (1) The accused either: (i) possessed [8-s 7] a loaded [8-s 93G(2)] firearm [14-015] or loaded [8-s 93G(2)] speargun in a public place [8-s 8]; or (ii) possessed [8-s 7] a loaded firearm [14-015] or loaded speargun in any other place so as to endanger the life of any other person; or (2) the accused fired a firearm [14-015] or speargun in or near a public place

[8-s 8]; or (3) the accused carried or fired a firearm [14-015] or speargun in a manner likely

[8-s 93G.10] to injure any person (including the accused) or in a manner likely

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s 93GA

CRIMES ACT 1900 (NSW) — PART 3A

[8-s 93GA.5]

to endanger the safety of any person or any property [8-s 4] or with disregard for the safety of any person (including the accused). [8-s 93G.60] Statutory defence Section 93G(3) provides for a defence to an offence in s 93G(1) if the accused satisfies the court that the accused had a reasonable excuse [11-125.25] for possessing the object or doing the act alleged, or possessed the object or did the act for a lawful purpose.

[8-s 93GA] Firing at dwelling-houses or buildings 93GA (1) A person who fires a firearm at a dwelling-house or other building with reckless disregard for the safety of any person is liable to imprisonment for 14 years. (1A) A person who, during a public disorder, fires a firearm at a dwelling-house or other building with reckless disregard for the safety of any person is liable to imprisonment for 16 years. (1B) A person who, in the course of an organised criminal activity, fires a firearm at a dwelling-house or other building with reckless disregard for the safety of any person is liable to imprisonment for 16 years. [subs (1B) insrt Act 3 of 2012 Sch 1[1], opn 9 Apr 2012]

(2) In the prosecution of an offence under this section, it is not necessary to prove that a person was actually placed in danger by the firing of the firearm. (3) If, on the trial of a person for an offence under this section, the jury is not satisfied that the accused is guilty of the offence but is satisfied on the evidence that the person is guilty of an offence under section 93G or 93H, it may find the person not guilty of the offence charged but guilty of an offence under section 93G or 93H, and the accused is liable to punishment accordingly. (4) If, on the trial of a person for an offence under subsection (1A) or (1B), the jury is not satisfied that the accused is guilty of the offence but is satisfied on the evidence that the person is guilty of an offence under subsection (1), it may find the person not guilty of the offence charged but guilty of an offence under subsection (1), and the accused is liable to punishment accordingly. [subs (4) insrt Act 3 of 2012 Sch 1[2], opn 9 Apr 2012] [s 93GA insrt Act 92 of 2003 s 3 and Sch 1[2], opn 15 Dec 2003]

COMMENTARY ON SECTION 93GA Personal violence offence/domestic violence offence . . . . . . . . . . . . . Standard non-parole period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Firing at dwelling house or other building with reckless disregard for safety — s 93GA(1) . . . . . . . . . . . . . . . . . . . . . . . Firing at dwelling house or other building with reckless disregard for safety during public disorder— s 93GA(1A) . Firing at dwelling house or other building with reckless disregard for safety in the course of organised criminal activity — s 93GA(1B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Firing at dwelling house or other building with reckless disregard for safety — s 93GA(1) . . . . . . . . . . . . . . . . . . . . . . .

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[8-s 93GA.5] [8-s 93GA.10] [8-s 93GA.15] [8-s 93GA.20] [8-s 93GA.25] [8-s 93GA.30] [8-s 93GA.35] [8-s 93GA.40]

Crimes

[subs (1A) insrt Act 61 of 2006 s 3 and Sch 1[10], opn 15 Dec 2006]

[8-s 93GA.5]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 93GA

Firing at dwelling house or other building with reckless disregard for safety during public disorder— s 93GA(1A) . [8-s 93GA.45] Firing at dwelling house or other building with reckless disregard for safety in the course of organised criminal activity — s 93GA(1B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 93GA.50] [8-s 93GA.5] Personal violence offence/domestic violence offence This offence (or an offence of attempting to commit this offence) is a “personal violence offence” as defined in s 4 of the Crimes (Domestic and Personal Violence) Act 2007 at [8-5015] and, when committed by a person against another person with whom the offender has or has had a domestic relationship, is a “domestic violence offence” as defined in s 11 of that Act at [8-5240]. [8-s 93GA.10] Standard non-parole period Where an offence is committed on or after 21 August 2015, a standard non-parole period applies to the following offences (see cl 69 at [5-Sch 2]): • s 93GA(1) offence — standard non parole period of 5 years; • s 93GA(1A) offence — standard non-parole period of 6 years; and • s 93GA(1B) offence — standard non-parole period of 6 years. PROOF MATERIAL ON SECTION 93GA For the text of s 93GA, see [8-s 93GA] behind the “8 — Crimes Act” guide card in Vol 1. [8-s 93GA.15] Form of indictment [8-s 93GA.20] Firing at dwelling house or other building with reckless disregard for safety — s 93GA(1) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did fire a firearm at a dwelling house/building, namely [describe public place], with reckless disregard for the safety of another person. [8-s 93GA.25] Firing at dwelling house or other building with reckless disregard for safety during public disorder— s 93GA(1A) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did, during a public disorder, fire a firearm at a dwelling house/building, namely [describe public place], with reckless disregard for the safety of another person. [8-s 93GA.30] Firing at dwelling house or other building with reckless disregard for safety in the course of organised criminal activity — s 93GA(1B) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did, in the course of organised criminal activity namely [describe the activity], fire a firearm at a dwelling house/building, namely [describe public place], with reckless disregard for the safety of another person. [8-s 93GA.35] Elements of offence [8-s 93GA.40] Firing at dwelling house or other building with reckless disregard for safety — s 93GA(1) The elements of the offence are — (1) the accused fired a firearm [14-015]; (2) at a dwelling house or other building; (3) with reckless disregard [6-505] for the safety of another person. [8-s 93GA.45] Firing at dwelling house or other building with reckless disregard for safety during public disorder— s 93GA(1A) The elements of the offence are — (1) the accused, during a public disorder [8-s 4]; (2) fired a firearm [14-015]; (3) at a dwelling house or other building;

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s 93H

CRIMES ACT 1900 (NSW) — PART 3A

[8-s 93H.1]

(4) with reckless disregard [6-505] for the safety of another person; Proof of actual danger not required. Section 93GA(2) provides that in the prosecution of an offence under the section, it is not necessary to prove that a person was actually placed in danger by the firing of the firearm. Alternative verdict A conviction for an offence under s 93G or s 93H is an alternative verdict to a charge under this section: see s 93GA(3). [8-s 93GA.50] Firing at dwelling house or other building with reckless disregard for safety in the course of organised criminal activity — s 93GA(1B) The elements of the offence are— (1) the accused, in the course of organised criminal activity; (2) fired a firearm [14-015]; (3) at a dwelling house or other building; (4) with reckless disregard [6-505] for the safety of another person.

[8-s 93H] Trespassing with or dangerous use of firearm or spear gun 93H (1) A person who, possessing a firearm, imitation firearm, spear gun or imitation spear gun, enters any building or land (other than a road), unless the person: (a) is the owner or occupier of the building or land or has the permission of the owner or occupier, or (b) does so with a reasonable excuse, or (c) does so for a lawful purpose, is liable to imprisonment for 5 years. (2) A person who fires a firearm or spear gun in or into any building or on or on to any land, unless the person: (a) is the owner or occupier of the building or land or has the permission of the owner or occupier, or (b) does so with a reasonable excuse, or (c) does so for a lawful purpose, is liable to imprisonment for 10 years. (3) The onus of proving the matters referred to in subsection (1)(a), (b) and (c) and subsection (2)(a), (b) and (c) lies with the defendant. [s 93H subst Act 13 of 1992 s 7 and Sch 5, opn 1 May 1992] Editor’s note: For proof material on s 93H, see [27-21,050] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 93H Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Entering — s 93H(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Firing — s 93H(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Entering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[8-s 93H.1] [8-s 93H.5] [8-s 93H.10] [8-s 93H.15] [8-s 93H.20] [8-s 93H.25] [8-s 93H.30]

Crimes

Alternative verdict A conviction for an offence under s 93G or s 93H is an alternative verdict to a charge under this section: see s 93GA(3). On a trial for an offence under s 93GA(1A) or (1B) the jury can convict the accused of an offence under s 93GA(1): see s 93GA(4).

[8-s 93H.1]

s 93H

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Firing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Statutory defence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 93H.35] [8-s 93H.40]

[8-s 93H.1] Summary disposal An offence under the section is a Table 2 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment by the prosecutor, see s 260(2) at [2-s 260] and [2-Sch 1] Pt 4 cl 6. The maximum penalty which can be imposed is 2 years imprisonment, or a fine of 50 penalty units, or both: see at [2-s 268]. [8-s 93H.5] Definitions [14-015].

As to possession see s 7 at [8-s 7]. As to “firearm” see s 93F and

PROOF MATERIAL ON SECTION 93H For the text of s 93H, see [8-s 93H] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 93H.10] Form of indictment [8-s 93H.15] Entering — s 93H(1) The [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, while in the possession of a firearm/imitation firearm/speargun/imitation speargun did enter a building/land situate at [describe location of land or building]. [8-s 93H.20] Firing — s 93H(2) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, did fire a firearm/speargun in/into a building/on/onto land situated at [describe location of land or building]. [8-s 93H.25] Elements of offence

The elements of the offence are —

[8-s 93H.30] Entering (1) The accused was in the possession [8-s 7] of a: (i) firearm [14-015]; (ii) imitation firearm; (iii) speargun; or (iv) imitation speargun; and (2) the accused entered any building or land (not being a road). [8-s 93H.35] Firing (1) The accused fired: (i) in or into a builing; or (ii) on or onto land. [8-s 93H.40] Statutory defence Section 93H(3) provides a statutory defence to the offences created under ss 93H(1) and 93H(2) if either: (1) The accused at that time was: (i) the owner; (ii) occupier; or (iii) a person with permission of the owner or occupier to enter or fire on that land or building; or (2) the accused entered or fired on the land or building with reasonable excuse [11-125.25] or for a lawful purpose.

[8-s 93I] Possession of unregistered firearm in public place 93I (1) A person who: (a) possesses an unregistered firearm in a public place, and

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s 93K

CRIMES ACT 1900 (NSW) — PART 3A

[8-s 93K]

(b) is not authorised under the Firearms Act 1996 to possess the firearm, is liable to imprisonment for 10 years. (2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 14 years. (3) For the purposes of subsection (2), an offence under subsection (1) is committed in circumstances of aggravation if the offence involves the possession: (a) of more than one unregistered firearm, or (b) of an unregistered firearm that is a pistol, or (c) of an unregistered firearm that is a prohibited firearm. [s 93I insrt Act 92 of 2003 s 3 and Sch 1[3], opn 15 Dec 2003]

DIVISION 3 — CONTAMINATION OF GOODS [Div 3 insrt and renum Act 38 of 2007 s 3 and Sch 2[8], [9], opn 27 Sep 2007]

[8-s 93J] Definitions of “contaminate” and “goods” 93J (1) In this Division: contaminate goods includes: (a) interfere with the goods, or (b) making it appear that the goods have been contaminated or interfered with. goods includes any substance or article: (a) whether or not for human consumption, and (b) whether natural or manufactured, and (c) whether or not incorporated or mixed with other goods. [subs (1) am Act 38 of 2007 s 3 and Sch 2[14], opn 27 Sep 2007]

(2) In this Division, a reference to economic loss caused through public awareness of the contamination of goods includes a reference to economic loss caused through: (a) members of the public not purchasing or using those goods or similar goods, or (b) steps taken to avoid public alarm or anxiety about those goods or similar goods. [subs (2) am Act 38 of 2007 s 3 and Sch 2[14], opn 27 Sep 2007]

[8-s 93K] Contaminating goods with intent to cause public alarm or economic loss 93K (a) (b) is liable

A person who contaminates goods with the intention of: causing public alarm or anxiety, or causing economic loss through public awareness of the contamination, to imprisonment for 10 years.

Editor’s note: For proof material on s 93K, see [27-21,200] behind the “27 – Informations and Indictments” guide card in Vol 4.

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COMMENTARY ON SECTION 93I Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 93I.1] [8-s 93I.1] Summary disposal An offence under the section is a Table 2 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment by the prosecutor, see s 260(2) at [2-s 260] and [2-Sch 1] Pt 4 cl 6. The maximum penalty which can be imposed is 2 years imprisonment, or a fine of 50 penalty units, or both: see at [2-s 268].

[8-s 93K.1]

s 93K

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

COMMENTARY ON SECTION 93K Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Geographical location of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 93K.1] [8-s 93K.5] [8-s 93K.10] [8-s 93K.15] [8-s 93K.20]

[8-s 93K.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 3 cl 10A. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 93K.5] Definitions As to “contaminates goods”, sees 93J(1) at [8-s 93J]. As to “economic loss through public awareness of the contamination”, see s 93J(2) at [8-s 93J]. [8-s 93K.10] Geographical location of offence There are special provisions relating to jurisdiction in respect of an offence under this section in s 93P at [8-s 93P]. PROOF MATERIAL ON SECTION 93K For the text of s 93K, see [8-s 93K] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 93K.15] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales contaminated goods [describe the goods] with intent to cause public alarm or anxiety/cause economic loss through public awareness of the contamination. [8-s 93K.20] Elements of offence The elements of the offence are — (1) The accused contaminated [8-s 93J] goods [8-s 93J]; and (2) the accused intended to: (i) cause public alarm or anxiety; or (ii) cause economic loss through public awareness of the contamination [8-s 93J].

[8-s 93L] Threatening to contaminate goods with intent to cause public alarm or economic loss 93L (1) A person who makes a threat 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 contamination, is liable to imprisonment for 10 years. (2) For the purposes of this section, a threat may be made by any act, and may be explicit or implicit and conditional or unconditional. Editor’s note: For proof material on s 93L, see [27-21,250] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 93L Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Geographical location of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[8-s 93L.1] [8-s 93L.5] [8-s 93L.10] [8-s 93L.15] [8-s 93L.20]

s 93M

CRIMES ACT 1900 (NSW) — PART 3A

[8-s 93M.1]

[8-s 93L.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 3 cl 10A. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 93L.5] Definitions As to “contaminate” and “goods”, see s 93J(1) at [8-s 93J]. As to “economic loss through public awareness of the contamination”, see s 93J(2) at [8-s 93J]. [8-s 93L.10] Geographical location of offence There are special provisions relating to jurisdiction in respect of an offence under this section in s 93P at [8-s 93P]. PROOF MATERIAL ON SECTION 93L For the text of s 93L, see [8-s 93L] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 93L.15] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales made a threat that goods [describe the goods] would be contaminated with intent to cause public alarm or anxiety/cause economic loss through public awareness of the contamination. [8-s 93L.20] Elements of offence The elements of the offence are — (1) That the accused made a threat [8-s 93L(2)] that goods [8-s 93J] would be

[8-s 93M] Making false statements concerning contamination of goods with intent to cause public alarm or economic loss 93M (1) A person who makes a statement that the person believes to be false: (a) with the intention of inducing the person to whom the statement is made or others to believe that goods have been contaminated, and (b) with the intention of thereby: (i) causing public alarm or anxiety, or (ii) causing economic loss through public awareness of the contamination, is liable to imprisonment for 10 years. (2) For the purposes of this section, making a statement includes conveying information by any means. Editor’s note: For proof material on s 93M, see [27-21,270] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 93M Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Geographical location of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 93M.1] [8-s 93M.5] [8-s 93M.10] [8-s 93M.15] [8-s 93M.20]

[8-s 93M.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 3 cl 10A. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267].

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Crimes

contaminated [8-s 93J]; and (2) the accused intended to: (i) cause public alarm or anxiety; or (ii) cause economic loss through public awareness of the contamination [8-s 93J].

[8-s 93M.5]

s 93M

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

[8-s 93M.5] Definitions As to “contaminate” and “goods”, see s 93J(1) at [8-s 93J]. As to “economic loss through public awareness of the contamination”, see s 93J(2) at [8-s 93J]. [8-s 93M.10] Geographical location of offence There are special provisions relating to jurisdiction in respect of an offence under this section in s 93P at [8-s 93P]. PROOF MATERIAL ON SECTION 93M For the text of s 93M, see [8-s 93M] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 93M.15] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales made a statement to [name of person], which he/she believed to be false, with intent to induce some person to believe that goods [describe goods] had been contaminated and with intent to cause public alarm or anxiety/cause economic loss through public awareness of the contamination. [8-s 93M.20] Elements of offence The elements of the offence are — (1) The accused made a statement [8-s 93M(2)]; and (2) the accused believed this statement to be false; and (3) the accused intended to induce the person to whom the statement was made or

others to believe that goods [8-s 93J] had been contaminated [8-s 93J]; and (4) the accused intended thereby to: (i) cause public alarm or anxiety; or (ii) cause economic loss through public awareness of the contamination [8-s 93J].

[8-s 93N] Aggravated circumstances — unwarranted demand 93N (1) A person is guilty of an offence against this section if the person commits an offence under section 93K, 93L or 93M in connection with an unwarranted demand by the person. An unwarranted demand is a demand that the person believes he or she does not have any reasonable grounds for making. [subs (1) am Act 38 of 2007 s 3 and Sch 2[15], opn 27 Sep 2007]

(2) A person convicted of an offence against this section is liable to imprisonment for 14 years. (3) If on the trial of a person for an offence against this section the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 93K, 93L or 93M, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. [subs (3) am Act 38 of 2007 s 3 and Sch 2[15], opn 27 Sep 2007] Editor’s note: For proof material on s 93N, see [27-21,300] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 93N Geographical location of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alternative verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 93N.1] [8-s 93N.5] [8-s 93N.10] [8-s 93N.15]

[8-s 93N.1] Geographical location of offence There are special provisions relating to jurisdiction in respect of an offence under this section in s 93P at [8-s 93P].

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s 93O

CRIMES ACT 1900 (NSW) — PART 3A

[8-s 93O.1]

PROOF MATERIAL ON SECTION 93N For the text of s 93N, see [8-s 93N] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 93N.5] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did [follow relevant simple averment above] and in connection with an unwarranted demand by [name of accused]. [8-s 93N.10] Elements of offence The elements of the offence are — (1) The accused did commit an offence under s 93K, 93L or 93M; and (2) this offence was in connection with an unwarranted demand by the accused

[8-s 93N(1)].

[8-s 93O] Aggravated circumstances — death or grievous bodily harm 93O (1) A person is guilty of an offence against this section if the person commits an offence against section 93K or 93L and: (a) the contamination of the goods causes the death of any person or grievous bodily harm to any person, or (b) the person intends by that contamination to cause such death or harm. [subs (1) am Act 38 of 2007 s 3 and Sch 2[16], opn 27 Sep 2007]

(2) A person convicted of an offence against this section is liable to imprisonment for 25 years. (3) If on the trial of a person for an offence against this section the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 93K or 93L, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. Editor’s note: For proof material on s 93O, see [27-21,350] behind the “27 – Informations and Indictments” guide card in Vol 4. [subs (3) am Act 38 of 2007 s 3 and Sch 2[16], opn 27 Sep 2007]

COMMENTARY ON SECTION 93O Geographical location of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Causing death/grievous bodily harm — s 93O(1)(a) . . . . . . . . . . Intending to cause death/grievous bodily harm — s 93O(1)(b) . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alternative verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 93O.1] [8-s 93O.5] [8-s 93O.10] [8-s 93O.15] [8-s 93O.20] [8-s 93O.25]

[8-s 93O.1] Geographical location of offence There are special provisions relating to jurisdiction in respect of an offence under this section in s 93P at [8-s 93P].

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[8-s 93N.15] Alternative verdict Where a jury is not satisfied that the accused is guilty of the offence charged under s 93N, but is satisfied on the evidence that the accused is guilty of an offence under s 93K, s 93L or s 93M, it may find the accused not guilty of the former offence but guilty of the latter offence: see s 93N(3) at [8-s 93N].

[8-s 93O.5]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 93O

PROOF MATERIAL ON SECTION 93O For the text of s 93O, see [8-s 93O] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 93O.5] Form of indictment [8-s 93O.10] Causing death/grievous bodily harm — s 93O(1)(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales contaminated goods, namely [describe goods]/made a threat that goods, namely, [describe goods], would be contaminated with intent to cause public alarm or anxiety/cause economic loss through public awareness of the contamination, and the contamination of the goods caused the death/grievous bodily harm of [name of victim]. [8-s 93O.15] Intending to cause death/grievous bodily harm — s 93O(1)(b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales contaminated goods, namely [describe goods]/made a threat that goods, namely, [describe goods], would be contaminated with intent to cause public alarm or anxiety/cause economic loss through public awareness of the contamination, and he/she intended by that contamination to cause the death/grievous bodily harm to [name of victim]. [8-s 93O.20] Elements of offence The elements of the offence are — (1) The accused: (i) contaminated goods [8-s 93J]; or (ii) made a threat [8-s 93L] that goods would be contaminated [8-s 93J]; and (2) the accused intended [6-500] to: (i) cause public alarm or anxiety; or (ii) cause economic loss through public awareness of the contamination [8-s 93J]; and (3) either: (i) that the contamination caused; or (ii) the accused intended by that contamination to cause

the death [8-s 18.65] of, or grievous bodily harm [8-s 4][8-s 4.1] to, the victim. [8-s 93O.25] Alternative verdict Where a jury is not satisfied that the accused is guilty of the offence charged under s 93O, but is satisfied on the evidence that the accused is guilty of an offence under s 93K or s 93L, it may find the accused not guilty of the former offence but guilty of the latter offence: see s 93O(3) at [8-s 93O].

[8-s 93P] Special provisions relating to geographical application of this Division 93P (1) A person commits an offence against a provision of this Division if: (a) the person does an act outside the State that constitutes the offence, and (b) (apart from this section) the act would have constituted the offence had it been done within this State, and (c) the offence involves intending to cause public alarm or anxiety, or economic loss, within the State. [subs (1) am Act 38 of 2007 s 3 and Sch 2[14], opn 27 Sep 2007]

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

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s 93Q

CRIMES ACT 1900 (NSW) — PART 3A

[8-s 93Q.10]

(3) If an offence against a provision of this Division involves intending to cause public alarm or anxiety, or economic loss, within the State, a geographical nexus between the State and any other element of the offence is not required. [subs (2) am Act 38 of 2007 s 3 and Sch 2[14], opn 27 Sep 2007]

(4) The other provisions of this Act, the provisions of other Acts and the common law, in so far as these are applicable, apply to an offence to which this section applies as if it had been committed within the State (for example, section 344A and the rules of law relating to attempts to commit offences apply to such an offence). (5) This section is in addition to and does not derogate from any other basis on which the courts of the State may exercise criminal jurisdiction. DIVISION 4 — BOMB AND OTHER HOAXES [Div 4 insrt and renum Act 38 of 2007 s 3 and Sch 2[10], [11], opn 27 Sep 2007]

93Q (1) A person who conveys information: (a) that the person knows to be false or misleading, and (b) that is likely to make the person to whom the information is conveyed fear for the safety of a person or of property, or both, is guilty of an offence. Maximum penalty: Imprisonment for 5 years. (2) This section extends to conveying information by any means including making a statement, sending a document, or transmitting an electronic or other message. (3) In this section, a reference to the safety of a person includes the safety of the person who conveys the information and the person to whom it is conveyed. Editor’s note: For proof material on s 93Q, see [27-21,400] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 93Q Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 93Q.1] [8-s 93Q.5] [8-s 93Q.10]

[8-s 93Q.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 3 cl 10B. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. PROOF MATERIAL ON SECTION 93Q For the text of s 93Q, see [8-s 93Q] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 93Q.5] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales [state how the information was conveyed eg “did write a letter”; detail information] to [name of person to whom the information was conveyed] that he/she knew to be false/misleading and that was likely to make [name of person to whom the information was conveyed] fear for the safety of himself/herself/[name of accused]/[name of other person if known]/(and) property [identify property if known]. [8-s 93Q.10] Elements of offence The elements of the offence are — (1) The accused conveyed information [8-s 93Q(2)] to a person; and

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[8-s 93Q] Conveying false information that a person or property is in danger

[8-s 93Q.10]

s 93Q

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

(2) the accused knew that this information was false or misleading; and (3) the accused knew that this information was likely to make the person to whom

it was conveyed fear for the safety of: (i) himself/herself, the accused or another person; and/or (ii) property [8-s 4].

[8-s 93R] Leaving or sending an article with intent to cause alarm 93R (1) A person: (a) who leaves in any place, or sends by any means, a substance or article, and (b) who intends to induce a false belief that the substance or article is likely to be a danger to the safety of a person or of property, or both, is guilty of an offence. Maximum penalty: Imprisonment for 5 years. (2) For the purposes of this section, a false belief that a substance or article is likely to be a danger includes a false belief that the substance or article is likely to explode, ignite, or contain, consist of or discharge a dangerous matter. Editor’s note: For proof material on s 93R, see [27-21,450] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 93R Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 93R.1] [8-s 93R.5] [8-s 93R.10]

[8-s 93R.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 3 cl 10B. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. PROOF MATERIAL ON SECTION 93R For the text of s 93R, see [8-s 93R] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 93R.5] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales left at [identify place]/sent by [identify means sent by][identify substance/article] with the intent to induce a false belief that such [substance/article] was likely to be a danger to the safety of a person [name of person if known]/(and) property [identify property if known]. [8-s 93R.10] Elements of offence (1) The accused: (i) left in any place; or (ii) sent by any means

The elements of the offence are —

a substance or article; and (2) intended [6-500] to induce a false belief that the substance or article was likely

to be a danger [8-s 93R(2)] to the safety of: (i) a person; and/or (ii) property [8-s 4].

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s 93T

CRIMES ACT 1900 (NSW) — PART 3A

[8-s 93T]

DIVISION 5 — CRIMINAL GROUPS [Div 5 insrt and renum Act 38 of 2007 s 3 and Sch 2[12], [13], opn 27 Sep 2007; am Act 3 of 2012 Sch 1[3], opn 9 Apr 2012]

[8-s 93S] Definitions

serious violence offence means an offence punishable by imprisonment for life or for a term of 10 years or more, where the conduct constituting the offence involves: (a) loss of a person’s life or serious risk of loss of a person’s life, or (b) serious injury to a person or serious risk of serious injury to a person, or (c) serious damage to property in circumstances endangering the safety of any person, or (d) perverting the course of justice (within the meaning of Part 7) in relation to any conduct that, if proved, would constitute a serious violence offence as referred to in paragraph (a), (b) or (c). [subs (1) am Act 38 of 2007 s 3 and Sch 2[14], opn 27 Sep 2007]

(2) A group of people is capable of being a criminal group for the purposes of this Division whether or not: (a) any of them are subordinates or employees of others, or (b) only some of the people involved in the group are involved in planning, organising or carrying out any particular activity, or (c) its membership changes from time to time.

[8-s 93T] Participation in criminal groups 93T (1) A person who participates in a criminal group is guilty of an offence if the person: (a) knows, or ought reasonably to know, that it is a criminal group, and (b) knows, or ought reasonably to know, that his or her participation in that group contributes to the occurrence of any criminal activity. Maximum penalty: Imprisonment for 5 years. [subs (1) subst Act 3 of 2012 Sch 1[4], opn 9 Apr 2012]

(1A) A person who participates in a criminal group by directing any of the activities of the group is guilty of an offence if the person:

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Crimes

93S (1) In this Division: criminal group means a group of 3 or more people who have as their objective or one of their objectives: (a) obtaining material benefits from conduct that constitutes a serious indictable offence, or (b) obtaining material benefits from conduct engaged in outside New South Wales (including outside Australia) that, if it occurred in New South Wales, would constitute a serious indictable offence, or (c) committing serious violence offences, or (d) engaging in conduct outside New South Wales (including outside Australia) that, if it occurred in New South Wales, would constitute a serious violence offence. law enforcement officer has the same meaning as it has in Division 8A of Part 3.

[8-s 93T]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 93T

(a) knows that it is a criminal group, and (b) knows, or is reckless as to whether, that participation contributes to the occurrence of any criminal activity. Maximum penalty: Imprisonment for 10 years. [subs (1A) insrt Act 3 of 2012 Sch 1[4], opn 9 Apr 2012]

(2) A person who assaults another person, intending by that action to participate in any criminal activity of a criminal group, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (3) A person who destroys or damages property belonging to another person, or threatens to destroy or damage property belonging to another person, intending by that action to participate in any criminal activity of a criminal group, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (4) A person who assaults a law enforcement officer while in the execution of the officer’s duty, intending by that action to participate in any criminal activity of a criminal group, is guilty of an offence. Maximum penalty: Imprisonment for 14 years. (4A) A person who participates in a criminal group whose activities are organised and on-going by directing any of the activities of the group is guilty of an offence if the person: (a) knows that it is a criminal group, and (b) knows, or is reckless as to whether, that participation contributes to the occurrence of any criminal activity. Maximum penalty: Imprisonment for 15 years. [subs (4A) insrt Act 3 of 2012 Sch 1[5], opn 9 Apr 2012]

(5) For the purposes of this section, an action is taken to be carried out in relation to a law enforcement officer while in the execution of the officer’s duty, even though the law enforcement officer is not on duty at the time, if it is carried out: (a) as a consequence of, or in retaliation for, actions undertaken by that law enforcement officer in the execution of the officer’s duty, or (b) because the officer is a law enforcement officer. COMMENTARY ON SECTION 93T Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope of section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Participation in a criminal group — s 93T(1) . . . . . . . . . . . . . . . . Assault with intention to participate in criminal activity of a criminal group — s 93T(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Property damage with intention to participate in criminal activity of a criminal group — s 93T(3) . . . . . . . . . . . . . . . . . . . . . . . . . Assault of law enforcement officer with intention to participate in criminal activity of a criminal group — s 93T(4) . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Participation in a criminal group — s 93T(1) . . . . . . . . . . . . . . . . Assault with intention to participate in criminal activity of a criminal group — s 93T(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Property damage with intention to participate in criminal activity of a criminal group — s 93T(3) . . . . . . . . . . . . . . . . . . . . . . . . .

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[8-s 93T.5] [8-s 93T.10] [8-s 93T.15] [8-s 93T.20] [8-s 93T.25] [8-s 93T.30] [8-s 93T.35] [8-s 93T.40] [8-s 93T.45] [8-s 93T.50] [8-s 93T.55]

s 93T

CRIMES ACT 1900 (NSW) — PART 3A

Assault of law enforcement officer with intention to participate in criminal activity of a criminal group — s 93T(4) . . . . . . . Alternative verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 93T.50]

[8-s 93T.60] [8-s 93T.65]

[8-s 93T.5] Summary disposal An offence under s 93T(1A), (2), (3) or (4A) is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in the Local Court unless an election is made for trial on indictment, see [2-s 260] and [2-Sch 1] Pt 3, cl 10C. The maximum penalty in the Local Court is 2 years imprisonment: see [2-s 267]. An offence under s 93T(1) is a Table 2 offence and is to be dealt with in the Local Court unless an election is made for trial on indictment, see [2-s 260] and [2-Sch 1] Pt 2A, cl 4D. The maximum penalty in the Local Court is 2 years imprisonment: see [2-s 268]. [8-s 93T.10] Scope of section The offences now contained in s 93T were introduced in recognition of the fact that crimes committed by gangs are a far greater threat to the safety and wellbeing of the community than most crimes committed by individuals acting alone: R v Tuki (No 4) [2013] NSWSC 1864 at [151]. PROOF MATERIAL ON SECTION 93T For the text of s 93T, see [8-s 93T] behind the “8 – Crimes Act” guide card in Vol 1.

[8-s 93T.20] Participation in a criminal group — s 93T(1) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did participate in a criminal group, knowing that he/she was participating in a criminal group/in circumstances where he/she was reckless as to whether his/her participation in that group contributed to the occurrence of any criminal activity. [8-s 93T.25] Assault with intention to participate in criminal activity of a criminal group — s 93T(2) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did assault [name of victim], with the intention of participating in the criminal activity of a criminal group. [8-s 93T.30] Property damage with intention to participate in criminal activity of a criminal group — s 93T(3) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did destroy/damage/threaten to destroy/damage the property of [name of owner] with the intention of participating in the criminal activity of a criminal group. [8-s 93T.35] Assault of law enforcement officer with intention to participate in criminal activity of a criminal group — s 93T(4) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did assault [name of victim], a police officer acting in the execution of his/her duty, with the intention of participating in the criminal activity of a criminal group. [8-s 93T.40] Elements of offence [8-s 93T.45] Participation in a criminal group — s 93T(1) The elements of the offence are — (1) The accused participated in a criminal group [8-s 93S(1)]; and (2) The accused either: (a) knew [6-515] that he/she was participating in a criminal group; or (b) was reckless [6-505] as to whether his or her participation in that group contributes to the occurrence of any criminal activity. [8-s 93T.50] Assault with intention to participate in criminal activity of a criminal group — s 93T(2) The elements of the offence are — (1) The accused assaulted [8-s 58.5] the victim; and

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Crimes

[8-s 93T.15] Form of indictment

[8-s 93T.50]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 93T

(2) In assaulting the victim, the accused intended [6-500] to participate in a

criminal activity of a criminal group [8-s 93S(1)]. [8-s 93T.55] Property damage with intention to participate in criminal activity of a criminal group — s 93T(3) The elements of the offence are — (1) The accused: (a) destroyed or damaged [8-s 195.5] property [8-s 4], [8-s 194]; (b) threatened to destroy or damage property; and (2) The property belonged to another person; and (3) The accused intended [6-500] by that act or threatened act to participate in a

criminal activity of a criminal group [8-s 93S(1). [8-s 93T.60] Assault of law enforcement officer with intention to participate in criminal activity of a criminal group — s 93T(4) The elements of the offence are — (1) The accused assaulted [8-s 58.5] the victim; and (2) In assaulting the victim, the accused intended [6-500] to participate in a

criminal activity of a criminal group [8-s 93S(1)]. (3) the victim was a law enforcement officer; and (4) the assault occurred while the victim was acting in the execution of his or her

duty [8-s 60(4)], [8-s 58.45]. [8-s 93T.65] Alternative verdict A conviction for an offence under s 93T(1) is an alternative verdict to a charge under ss 93T(2), (3) or (4): see s 93U.

[8-s 93TA] Receiving material benefit derived from criminal activities of criminal groups 93TA (1) A person who receives from a criminal group a material benefit that is derived from the criminal activities of the criminal group is guilty of an offence if the person: (a) knows that it is a criminal group, and (b) knows, or is reckless as to whether, the benefit is derived from criminal activities of the criminal group. Maximum penalty: Imprisonment for 5 years. (2) In this section, a material benefit derived from the criminal activities of a criminal group is a material benefit derived or realised, or substantially derived or realised, directly or indirectly, from the criminal activities of a group. [s 93TA insrt Act 3 of 2012 Sch 1[6], opn 9 Apr 2012]

COMMENTARY ON SECTION 93TA Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 93TA.5]

[8-s 93TA.5] Summary disposal An offence under s 93TA is a Table 2 offence under the Criminal Procedure Act 1986 and is to be dealt with in the Local Court unless an election is made for trial on indictment: see [2-s 260] and [2-Sch 1] Pt 2A, cl 4D. The maximum penalty in the local Court is 2 years imprisonment: see [2-s 268].

[8-s 93U] Alternative verdicts 93U (1) If, on the trial of a person for an offence under section 93T(1A), (2), (3), (4) or (4A), the jury is not satisfied that the accused is guilty of the offence charged but is

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s 93V

CRIMES ACT 1900 (NSW) — PART 3A

[8-s 93V.5]

satisfied that the accused is guilty of an offence under section 93T(1), it may find the accused not guilty of the offence charged but guilty of an offence under section 93T(1), and the accused is liable to punishment accordingly. [subs (1) am Act 3 of 2012 Sch 1[7], opn 9 Apr 2012]

(2) If, on the trial of a person for an offence under section 93T(1), (1A) or (4A), the jury is not satisfied that the accused is guilty of the offence charged but is satisfied that the accused is guilty of an offence under section 93TA, it may find the accused not guilty of the offence charged but guilty of an offence under section 93TA, and the accused is liable to punishment accordingly. [subs (2) insrt Act 3 of 2012 Sch 1[8], opn 9 Apr 2012] [s 93U am Act 38 of 2007 s 3 and Sch 2[17], opn 27 Sep 2007]

DIVISION 6 — UNLAWFUL GAMBLING [Div 6 insrt Act 38 of 2007 s 3 and Sch 2[18], opn 27 Sep 2007]

93V (1) A person who conducts an unlawful gambling operation is guilty of an offence. Maximum penalty: 1,000 penalty units or imprisonment for 7 years (or both). (2) For the purposes of subsection (1), an unlawful gambling operation means an operation involving at least 2 of the following elements (one of which must be paragraph (d)): (a) the keeping of at least 2 premises (whether or not either or both are gambling premises) that are used for the purposes of any form of gambling that is prohibited by or under the Unlawful Gambling Act 1998, (b) substantial planning and organisation in relation to matters connected with any such form of prohibited gambling (as evidenced by matters such as the number of persons, and the amount of money and gambling turnover, involved in the operation), (c) the use of sophisticated methods and technology (for example, telephone diverters, telecommunication devices, surveillance cameras and encrypted software programs) in connection with any such form of prohibited gambling or in avoiding detection of that gambling, (d) a substantial loss of potential revenue to the State that would be derived from lawful forms of gambling. (3) In any proceedings for an offence under this section, evidence that persons have been in regular attendance at premises suspected of being used for the purposes of any form of gambling that is prohibited by or under the Unlawful Gambling Act 1998 is relevant to the matters referred to in subsection (2)(a) or (b). (4) In this section: conduct includes organise or manage. gambling premises has the same meaning as in the Unlawful Gambling Act 1998. [s 344 renum Act 38 of 2007 s 3 and Sch 2[19], opn 27 Sep 2007]

PROOF MATERIAL ON SECTION 93V For the text of s 93V (old s 344), see [8-s 93V] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 93V.5] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales conducted an unlawful gambling operation.

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Crimes

[8-s 93V] Offence of conducting unlawful gambling operation

[8-s 93V.10]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 93V

[8-s 93V.10] Elements of offence The elements of the offence are — (1) The accused conducted [8-s 344]; (2) an unlawful gambling operation [8-s 344].

DIVISION 7 — CONSORTING [Div 7 insrt Act 3 of 2012 Sch 1[9], opn 9 Apr 2012]

[8-s 93W] Definitions 93W (1) In this Division: consort means consort in person or by any other means, including by electronic or other form of communication. convicted offender means a person who has been convicted of an indictable offence (disregarding any offence under section 93X). (2) For the purposes of this Division, an indictable offence includes an offence committed in another jurisdiction that would be an indictable offence if committed in this jurisdiction. [subs (2) insrt Act 50 of 2018 Sch 1[1], opn 28 Feb 2019]

[8-s 93X] Consorting 93X (1) A person (other than a person under the age of 14 years) who: (a) habitually consorts with convicted offenders, and (b) consorts with those convicted offenders after having been given an official warning in relation to each of those convicted offenders, is guilty of an offence. Maximum penalty: Imprisonment for 3 years, or a fine of 150 penalty units, or both. [subs (1) am Act 50 of 2018 Sch 1[2], opn 28 Feb 2019]

(2) A person does not habitually consort with convicted offenders unless: (a) the person consorts with at least 2 convicted offenders (whether on the same or separate occasions), and (b) the person consorts with each convicted offender on at least 2 occasions. (3) An official warning is a warning given by a police officer (orally or in writing) to the effect that: (a) a certain person is a convicted offender, and (b) habitually consorting with convicted offenders is an offence. [subs (3) subst Act 50 of 2018 Sch 1[3], opn 28 Feb 2019]

(4) An official warning ceases to have effect for the purposes of subsection (1): (a) if the warning is given to a person under the age of 18 years — 6 months after the warning is given, or (b) in any other case — 2 years after the warning is given. [subs (4) insrt Act 50 of 2018 Sch 1[3], opn 28 Feb 2019]

COMMENTARY ON SECTION 93X Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Consorting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[8-s 93X.5] [8-s 93X.10]

s 93Y

CRIMES ACT 1900 (NSW) — PART 3A

[8-s 93Y]

[8-s 93X.10] Consorting Section 93X was enacted in 2012 and the summary offence of consorting in s 546A of the Crimes Act was repealed at the same time. See s 93W for definitions of “consort” and “convicted offender”. Before the enactment of s 93X, it was said that the word “consorts” means “associates” or “keeps company” and denotes some acceptance of the association on the part of the defendant, although there was no need for the prosecution to prove any particular purpose of the consorting: Johanson v Dixon (1979) 143 CLR 376; 25 ALR 65; 53 ALJR 494; BC7900062. Earlier decisions concerning the meaning of “habitually consorts” (Auld v Purdy (1933) 50 WN (NSW) 218 and Barker v Harvey (1942) 60 WN (NSW) 32) must now be considered in light of the provisions in ss 93X(2) and (3), 93W and 93Y. Section 93Y provides that a form of consorting specified in the section is to be disregarded where the defendant establishes (on the balance of probabilities) that the consorting was reasonable in the circumstances. For a critical analysis of the history and operation of consorting laws in NSW (up to 2003), see A Steel “Consorting in New South Wales: Substantive Offence or Police Power?” (2003) 26 UNSW Law Journal 567. A challenge to the validity of s 93X was rejected by the High Court in Tajjour v New South Wales (2014) 254 CLR 508; 313 ALR 221; [2014] HCA 35; BC201408267. The proper construction and application of s 93X were considered in Forster v DPP [2017] NSWSC 458; BC201702770.

[8-s 93Y] Defence 93Y (1) The following forms of consorting are to be disregarded for the purposes of section 93X if the defendant satisfies the court that the consorting was reasonable in the circumstances: (a) consorting with family members, (b) consorting that occurs in the course of lawful employment or the lawful operation of a business, (c) consorting that occurs in the course of training or education, (d) consorting that occurs in the course of the provision of a health service or welfare service, (e) consorting that occurs in the course of the provision of legal advice, (f) consorting that occurs in lawful custody or in the course of complying with a court order. (g) consorting that occurs in the course of complying with: (i) an order granted by the Parole Authority, or (ii) a case plan, direction or recommendation by a member of staff of Corrective Services NSW, (h) consorting that occurs in the course of providing transitional, crisis or emergency accommodation. (2) In this section: family member includes, for a defendant who is an Aboriginal person or a Torres

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[8-s 93X.5] Summary disposal An offence under s 93X is a Table 2 offence under the Criminal Procedure Act 1986 and is to be dealt with in the Local Court unless an election is made for trial on indictment: see [2-s 260] and [2-Sch 1] Pt 2A, cl 4E. The maximum penalty in the Local Court is 2 years imprisonment: see [2-s 268].

[8-s 93Y]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 93Y

Strait Islander, a person who is or has been part of the extended family or kin of the defendant according to the indigenous kinship system of the defendant’s culture. health service means: (a) medical (including psychological), hospital, ambulance, paramedical, dental, community health or environmental health service, or (b) another service: (i) relating to the maintenance or improvement of the health, or the restoration to health, of persons or the prevention of disease in, or injury to, persons (whether provided as a public or private service), and (ii) that is of a class or description prescribed by the regulations. Parole Authority means the State Parole Authority constituted by section 183 of the Crimes (Administration of Sentences) Act 1999. welfare service means a service (whether provided as a public or private service) relating to the provision of: (a) housing, employment benefits, rental assistance or other financial assistance or family support, or (b) another community welfare service necessary for the promotion, protection, development and maintenance of the well-being of persons, including any rehabilitation, counselling, drug or alcohol service. [subs (2) insrt Act 50 of 2018 Sch 1[6], opn 28 Feb 2019] [s 93Y am Act 50 of 2018 Sch 1[4], [5], opn 28 Feb 2019]

DIVISION 8 — PUBLIC THREATS OR INCITEMENT OF VIOLENCE ON GROUNDS OF RACE, RELIGION, SEXUAL ORIENTATION, GENDER IDENTITY OR INTERSEX OR HIV/AIDS STATUS [Div 8 insrt Act 32 of 2018 Sch 1, opn 13 Aug 2018]

[8-s 93Z] Offence of publicly threatening or inciting violence on grounds of race, religion, sexual orientation, gender identity or intersex or HIV/AIDS status 93Z (1) A person who, by a public act, intentionally or recklessly threatens or incites violence towards another person or a group of persons on any of the following grounds is guilty of an offence: (a) the race of the other person or one or more of the members of the group, (b) that the other person has, or one or more of the members of the group have, a specific religious belief or affiliation, (c) the sexual orientation of the other person or one or more of the members of the group, (d) the gender identity of the other person or one or more of the members of the group, (e) that the other person is, or one or more of the members of the group are, of intersex status, (f) that the other person has, or one or more of the members of the group have, HIV or AIDS.

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s 93Z

CRIMES ACT 1900 (NSW) — PART 3A

[8-s 93Z]

gender identity means the gender related identity, appearance or mannerisms or other gender related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth. intersex status means the status of having physical, hormonal or genetic features that are: (a) neither wholly female nor wholly male, or (b) a combination of female and male, or (c) neither female nor male. public act includes: (a) any form of communication (including speaking, writing, displaying notices, playing of recorded material, broadcasting and communicating through social media and other electronic methods) to the public, and (b) any conduct (including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia) observable by the public, and (c) the distribution or dissemination of any matter to the public. For the avoidance of doubt, an act may be a public act even if it occurs on private land. race includes colour, nationality, descent and ethnic, ethno-religious or national origin. religious belief or affiliation means holding or not holding a religious belief or view. sexual orientation means a person’s sexual orientation towards: (a) persons of the same sex, or (b) persons of a different sex, or (c) persons of the same sex and persons of a different sex. violence includes violent conduct and violence towards a person or a group of persons includes violence towards property of the person or a member of the group, respectively.

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Crimes

Maximum penalty: (a) in the case of an individual — 100 penalty units or imprisonment for 3 years (or both), or (b) in the case of a corporation — 500 penalty units. (2) In determining whether an alleged offender has committed an offence against this section, it is irrelevant whether the alleged offender’s assumptions or beliefs about an attribute of another person or a member of a group of persons referred to in subsection (1)(a)–(f) were correct or incorrect at the time that the offence is alleged to have been committed. (3) In determining whether an alleged offender has committed an offence against this section of intentionally or recklessly inciting violence, it is irrelevant whether or not, in response to the alleged offender’s public act, any person formed a state of mind or carried out any act of violence. (4) A prosecution for an offence against this section is not to be commenced without the approval of the Director of Public Prosecutions. (5) In this section:

[8-s 94AA]

s 94AA

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

PART 4 — STEALING AND SIMILAR OFFENCES [Heading am Act 99 of 2009 Sch 2, opn 22 Feb 2010]

DIVISION 1 — GENERAL [Div 1 (formerly Pt 4, Div 1, subdiv 1) am Act 99 of 2009 Sch 2, opn 22 Feb 2010]

[8-s 94AA] Property previously stolen 94AA Where on the trial of a person for any offence which includes the stealing of any property it appears that the property was, at the time when it was taken by the accused, already out of the possession of the owner by reason of its having been previously stolen, the accused may be convicted of the offence charged notwithstanding that it is not proved that the taking by him or her amounted to an interference with the right to possession of, or a trespass against, the owner. [s 344 renum Act 38 of 2007 s 3 and Sch 2[20], opn 27 Sep 2007]

COMMENTARY ON SECTION 94AA Purpose of section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 94AA.1]

[8-s 94AA.1] Purpose of section At common law a person could not be convicted of stealing property which had already been stolen because there was no trespass against the person in possession of the stolen property.

DIVISION 2 — ROBBERY [Div 2 (formerly Pt 4, Div 1, subdiv 2) am Act 99 of 2009 Sch 2, opn 22 Feb 2010]

[8-s 94] Robbery or stealing from the person 94 Whosoever: (a) robs or assaults with intent to rob any person, or (b) steals any chattel, money, or valuable security from the person of another, shall, except where a greater punishment is provided by this Act, be liable to imprisonment for fourteen years. [s 94 am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000; Act 4 of 2018 Sch 1.4[3], [4], opn 2 July 2018] Editor’s note: For proof material on s 94, see [27-22,000] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 94 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Stealing from the person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Robbery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Claim of right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alternative verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Robbery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assault with intent to rob . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Stealing from the person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Necessary averments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[8-s 94.1] [8-s 94.2] [8-s 94.5] [8-s 94.10] [8-s 94.15] [8-s 94.20] [8-s 94.25] [8-s 94.30] [8-s 94.35] [8-s 94.40] [8-s 94.45] [8-s 94.50] [8-s 94.55]

[8-s 94.15]

CRIMES ACT 1900 (NSW) — PART 4

Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Robbery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assault with intent to rob . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Stealing from the person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s [8-s [8-s [8-s

94.60] 94.65] 94.70] 94.75]

[8-s 94.1] Summary disposal The offence under s 94 of robbery or assault with intent to rob any person may be dealt with summarily or on indictment: see Sch 1 of the Criminal Procedure Act 1986. The offence under s 94 of stealing any chattel, money or valuable security from the person of another, where the value of the property, matter or thing exceeds $5000, is a Table 1 offence: clause 3(b), Table 1, Schedule 1, Criminal Procedure Act 1986 at [2-Sch 1]. A Table 1 offence is to be dealt with summarily in the Local Court unless an election is made by the prosecutor or accused person to have the offence dealt with on indictment: s 260(1) Criminal Procedure Act 1986 at [2-s 260]. The maximum penalty which can be imposed summarily is two years imprisonment: s 267(2) at [2-s 267]. The offence under s 94 of stealing any chattel, money or valuable security from the person of another, where the value of the property, matter or thing does not exceed $5000, is a Table 2 offence: clause 3(b), Table 2, Schedule 1, Criminal Procedure Act 1986 at [2-Sch 1]. A Table 2 offence is to be dealt with summarily in the Local Court unless an election is made by the prosecutor to have the offence dealt with on indictment: s 260(2) at [2-s 260]. The maximum penalty which can be imposed summarily is imprisonment for 24 months or a fine of 50 penalty units or both, however, the maximum fine that a Local Court may impose if the value of the property, or amount of money concerned does not exceed $2000 is 20 penalty units: s 268(2)(b) at [2-s 268]. [8-s 94.2] Stealing from the person It is not necessary to prove the offence that the property be actually taken from the actual person of the victim and it is enough that the property is taken from the presence of the person: Delk v R (1999) 46 NSWLR 340; 106 A Crim R 240; [1999] NSWCCA 134; BC9902841; (1999) 6 Crim LN 53 [1022]. [8-s 94.5] Definitions As to “assault” see [8-s 58.5]. As to “steals” see [8-s 117]. As to “valuable security” see [8-s 4]. [8-s 94.10] Robbery To constitute the crime of robbery, three elements are necessary: (a) an intent to steal; (b) some degree of threat or force putting the person in fear; and (c) a taking from the person. The stealing can be from the presence of the person. For a history of the offence see Smith v Desmond [1965] AC 960. All elements of larceny must be proved including the intent to permanently deprive so that larceny by reason of s 154A is not sufficient: R v Salameh (1986) 26 A Crim R 353. The stealing need not be from the person of the victim provided that the goods are taken from the immediate control of the victim and in his or her presence (R v McNamara [1965] VR 372) but removal of the victim from the presence of the goods may permit a robbery to occur: Smith v Desmond, above. There was evidence to support a charge of robbery where a person minding premises, although not an employee, was forced to obtain the keys of the safe and withdraw money: R v Bellamy (NSWCCA, 15 February 1993, unreported, BC9301860). Snatching property from the victim may not amount to robbery unless a degree of force is needed to remove it: R v Mason (1820) 168 ER 876. The threat of violence must coincide with the theft of the property: R v Emery (1975) 11 SASR 169; R v Foster (1995) 78 A Crim R 517; 2 Crim LN 22 [365], where it was emphasised that the offence is not made out where the use of force occurs after the taking of the property. [8-s 94.15] Claim of right As to claim of right generally see at [8-s 117.35]. It is sufficient that the accused believed he was entitled to take the property and it does not matter that he did not believe he was entitled to take it in the manner he did: R v Langham (1984) 36 SASR 48; 12 A Crim R 391.

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Crimes

s 94

[8-s 94.15]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 94

The availability of a claim of right in an offence of assault with intent to rob was considered in R v Fuge (2001) 123 A Crim R 310; [2001] NSWCCA 208; BC200102871; (2001) 8 Crim LN 45 [1300]. However a claim of right is no defence to a conviction for assault, and the defendant can be convicted for that offence: R v Skivington (1967) 51 Cr App R 167. [8-s 94.20] Sentence “The offences of robbery whether armed or unarmed should be regarded in virtually all circumstances as an offence of utmost gravity which must carry a custodial sentence”: R v Murray (NSWCCA, Lee, Reynolds and Campbell JJ, 136/1986, 11 September 1986, unreported, BC8601280) applied in R v Readman (1990) 47 A Crim R 181; R v Valentini (1989) 46 A Crim R 23; R v Roberts (1994) 73 A Crim R 306. Wholly exceptional and unusual circumstances are required to justify any sentence other than a custodial sentence of some kind: R v Crotty (1993) 1 NSWCR 71 where the various factors in sentencing for armed robbery are reviewed. Specific and general deterrence must be provided by sentences for offences of bag snatching against elderly persons and other victims: R v Bradley (NSWCCA, Kirby ACJ, Badgery-Parker J, Loveday AJ, 060686/1992, 26 October 1993, unreported, BC9302270). Where the person attacked was injured the court took into account the injuries in sentencing for the bag snatching: R v Hall (NSWCCA,Gleeson CJ, Grove and Abadee JJ, 60326/1992, 28 September 1995, unreported, BC9501747); (1995) 2 Crim LN 82 [492]. “The court has said on many occasions that the range of sentences imposed for serious armed robbery offences should be much higher than those in fact imposed by sentencing judges. There has been little movement upwards and the time has more than come for far more deterrent sentences to be imposed for those offences of serious armed robbery”: R v Vu (NSWCCA, 11 November 1993, unreported). The distinction between stealing from the person and robbery for the purposes of sentence was considered in R v Young [2003] NSWCCA 276; BC200305724; (2003) 10 Crim LN 77 [1608] where the accused pleaded guilty to the former offence on an indictment for the latter. It was held that, despite the statement in R v Hua [2002] NSWCCA 384; BC200205679, that there should not be too much distinction between the two offences, the sentence should have reflected the difference in criminality involved in the plea. [8-s 94.25] Intoxication An offence under this section which is alleged to have been committed after 16 August 1996, to the extent that an element of the offence under this section requires a person to intend to cause the specific result necessary for the offence, is an offence of specific intent for the purpose of Pt 11A relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. [8-s 94.30] Alternative verdict A jury can return a verdict of larceny on a charge of robbery where the evidence could realistically support such a verdict, for example where there was some doubt as to whether an assault had taken place in relation to the stealing: Mifsud v R [2009] NSWCCA 313; BC200911592; (2010) 17 Crim LN 29 [2685]. PROOF MATERIAL ON SECTION 94 For the text of s 94, see [8-s 94] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 94.35] Form of indictment [8-s 94.40] Robbery That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did rob [name of victim] of [brief description of property], the property of [name of owner]. [8-s 94.45] Assault with intent to rob That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did assault [name of victim] with intent to rob [name of person to be robbed].

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s 95

CRIMES ACT 1900 (NSW) — PART 4

[8-s 95.1]

[8-s 94.50] Stealing from the person That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did steal a chattel/money/valuable security namely [brief description of property] being the property of [name of owner] from the person of [name of victim]. [8-s 94.55] Necessary averments It was held in Smith and Kirton v R (1990) 47 A Crim R 43; BC9002723 that the use of the words “assault and rob”, rather than “rob”, was surplusage, and should not be used as they may lead to injustice. The preferred form avers “rob” simpliciter. [8-s 94.60] Elements of offence

The elements of the offence are —

[8-s 94.65] Robbery (1) The accused with the intent [6-500] to steal [8-s 117.5][27-23,055]; (2) took property [8-s 4]; (3) from the victim’s immediate control or presence; (4) by the use of violence or by putting the victim in fear [8-s 94.10] [8-s 94.70] Assault with intent to rob (1) The accused assaulted [8-s 58.5] the victim; and (2) the accused intended [6-500] to steal [8-s 117.5][27-23,055] property [8-s 4] (i) the victim; or (ii) another person; (3) by the use of violence or by putting that person in fear [8-s 94.10]. [8-s 94.75] Stealing from the person (1) The accused stole [8-s 117.5][27-23,055] a chattel, money or valuable security

[8-s 4]; (2) from the person of the victim.

[8-s 95] Same in circumstances of aggravation 95 (1) Whosoever robs, or assaults with intent to rob, any person, or steals any chattel, money, or valuable security, from the person of another, in circumstances of aggravation, shall be liable to imprisonment for twenty years. [subs (1) am Act 84 of 1994 s 3 and Sch 1(3); am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000]

(2) In this section, circumstances of aggravation means circumstances that (immediately before, or at the time of, or immediately after the robbery, assault or larceny) involve any one or more of the following: (a) the alleged offender uses corporal violence on any person, (b) the alleged offender intentionally or recklessly inflicts actual bodily harm on any person, (c) the alleged offender deprives any person of his or her liberty. [subs (2) am Act 84 of 1994 s 3 and Sch 1(3); Act 38 of 2007 s 3 and Sch 1[3], opn 15 Feb 2008] Editor’s note: For proof material on s 95, see [27-22,050] behind the “27 – Informations and Indictments” guide card.

COMMENTARY ON SECTION 95 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Circumstances of aggravation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[8-s 95.1] [8-s 95.2] [8-s 95.5] [8-s 95.10]

Crimes

from:

[8-s 95.1]

s 95

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Robbery in circumstances of aggravation . . . . . . . . . . . . . . . . . . . . Assault with intent to rob in circumstances of aggravation . . . . Stealing from the person in circumstances of aggravation . . . . . Necessary averments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Robbery in circumstances of aggravation . . . . . . . . . . . . . . . . . . . . Assault with intent to rob in circumstances of aggravation . . . . Stealing from the person in circumstances of aggravation . . . . .

[8-s [8-s [8-s [8-s [8-s [8-s [8-s [8-s [8-s

95.15] 95.20] 95.25] 95.30] 95.35] 95.40] 95.45] 95.50] 95.55]

[8-s 95.1] Definitions As to “rob”, see [8-s 94.10]. As to “assaults”, see [8-s 58.5]. As to “steals”, see [8-s 117]. As to “valuable security”, see s 4 at [8-s 4]. As to “recklessly” see at [8-s 4A.1]. As to “actual bodily harm”, see at [8-s 59.5]. As to stealing from the person, see [8-s 94.2]. [8-s 95.2] Circumstances of aggravation It is sufficient if the prosecution alleges and proves at least one particular circumstance of aggravation, but the sentencing court is entitled to take into account other circumstances of aggravation proved by the evidence. See R v Li (NSWCCA, 9 July 1997, unreported, BC9703285); (1997) 4 Crim LN 46 [715]. Any circumstance of aggravation would have to be proved by the prosecution beyond reasonable doubt. [8-s 95.5] Intoxication An offence under this section is, to the extent that an element of the offence under this section requires a person to intend to cause the specific result necessary for the offence, an offence of specific intent for the purpose of Pt 11A relating to intoxication: see s 428B Crimes Act ff at [8–s 428B]. [8-s 95.10] Sentence For a case identified as being within the worst category of an offence under this section see Holohan v R [2012] NSWCCA 105; BC201203646; 19(7) Crim LN [3090] where there were severe injuries inflicted upon the victim by being struck a number of times to the head with a large rock. PROOF MATERIAL ON SECTION 95 For the text of s 95, see [8-s 95] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 95.15] Form of indictment [8-s 95.20] Robbery in circumstances of aggravation That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales robbed [name of victim] of [brief description of items] and immediately before/at the time of/immediately after the robbery, [describe aggravating circumstance]. [8-s 95.25] Assault with intent to rob in circumstances of aggravation That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales assaulted [name of victim] with intent to rob [name of intended victim] and immediately before/at the time of/immediately after the assault [describe aggravating circumstance]. [8-s 95.30] Stealing from the person in circumstances of aggravation That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales stole [brief description of property] from the person of [name of victim] and immediately before/at the time of/immediately after the stealing, [describe aggravating circumstances]. [8-s 95.35] Necessary averments It was held in Smith and Kirton v R (1990) 47 A Crim R 43; BC9002723 that the use of the words “assault and rob”, rather than “rob”, was surplusage, and should not be used as they may lead to injustice. The preferred form avers “rob” simpliciter.

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s 96

CRIMES ACT 1900 (NSW) — PART 4

[8-s 95.40] Elements of offence

[8-s 96.1]

The elements of the offence are —

[8-s 95.45] Robbery in circumstances of aggravation (1) The accused with the intent [6-500] to steal [8-s 117.5][27-23,055]; (2) took property [8-s 4]; (3) from the victim’s immediate control or presence; (4) by the use of violence or by putting the victim in fear[8-s 94.10]; and (5) in circumstances of aggravation which involved the accused immediately

before, at the time of or immediately after the robbery: (i) using corporal violence on any person; (ii) intentionally or recklessly [8-s 4A.1][8-s 5] inflicting actual bodily harm [8-s 59.5] to any person; or (iii) depriving any person of his or her liberty. [8-s 95.50] Assault with intent to rob in circumstances of aggravation (1) The accused assaulted [8-s 58.5] the victim; and (2) the accused intended [6-500] to steal [8-s 117.5][27-23,055] property [8-s 4]

from: (3) by the use of violence or the putting of that person in fear; and (4) in circumstances of aggravation which involved the accused immediately

before, at the time of or immediately after the assault: (i) using corporal violence on any person; or (ii) intentionally or recklessly [8-s 4A.1][8-s 5] inflicting actual bodily harm [8-s 59.5] to any person; or (iii) depriving any person of his or her liberty. [8-s 95.55] Stealing from the person in circumstances of aggravation (1) The accused stole [27-23,055] a chattel, money or valuable security [8-s 4]; (2) from the person of the victim; and (3) in circumstances of aggravation which involved the accused immediately

before, at the time of or immediately after the stealing: (i) using corporal violence on any person; (ii) intentionally or recklessly [8-s 4A.1][8-s 5] inflicting actual bodily harm s 5 to any person; or (iii) depriving any person of his or her liberty.

[8-s 96] Same (robbery) with wounding 96 Whosoever commits any offence under section 95, and thereby wounds or inflicts grievous bodily harm on any person, shall be liable to imprisonment for 25 years. [s 96 am Act 218 of 1989 s 3 and Sch 1(18); Act 84 of 1994 s 3 and Sch 1(4); am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000] Editor’s note: For proof material on s 96, see [27-22,100] behind the “27 – Informations and Indictments” guide card.

COMMENTARY ON SECTION 96 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mens rea of the offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[8-s 96.1] [8-s 96.5] [8-s 96.10] [8-s 96.15]

Crimes

(i) the victim; or (ii) another person;

[8-s 96.1]

s 96

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Robbery in circumstances of aggravation with wounding etc . . Assault with intent to rob in circumstances of aggravation with wounding etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Stealing from the person in circumstances of aggravation with wounding etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Necessary averments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Robbery in circumstances of aggravation with wounding etc . . Assault with intent to rob in circumstances of aggravation with wounding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Stealing from the person in circumstances of aggravation with wounding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 96.20] [8-s 96.25] [8-s [8-s [8-s [8-s

96.30] 96.35] 96.40] 96.45]

[8-s 96.50] [8-s 96.55]

[8-s 96.1] Definitions See generally [8-s 95.1]. As to “wounds”, see [8-s 35]. As to “grievous bodily harm”, see [8-s 4.1]. [8-s 96.5] Mens rea of the offence The necessary intention of the accused is that necessary for an offence under s 95 and it is not necessary to prove an intent to wound: R v Munro (1981) 4 A Crim R 67. [8-s 96.10] Intoxication An offence under this section which is alleged to have been committed after 16 August 1996, to the extent that an element of the offence under this section requires a person to intend to cause the specific result necessary for the offence, is an offence of specific intent for the purpose of Pt 11A relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. PROOF MATERIAL ON SECTION 96 For the text of s 96, see [8-s 96] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 96.15] Form of indictment [8-s 96.20] Robbery in circumstances of aggravation with wounding etc That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales robbed [name of person robbed] of [brief description of items] and immediately before/at the time of/immediately after the robbery [describe aggravating circumstance], and wounded/inflicted grievous bodily harm upon [name of person injured]. [8-s 96.25] Assault with intent to rob in circumstances of aggravation with wounding etc That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales assaulted [name of victim] with intent to rob [name of intended victim] and immediately before/at the time of/immediately after the assault [describe aggravating circumstance], and wounded/inflicted grievous bodily harm upon [name of person injured]. [8-s 96.30] Stealing from the person in circumstances of aggravation with wounding etc That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales stole [brief description of property] from the person of [name of victim] and immediately before/at the time of/immediately after the stealing [describe aggravating circumstance], and wounded/inflicted grievous bodily harm upon [name of person injured]. [8-s 96.35] Necessary averments It was held in Smith & Kirton v R (1990) 47 A Crim R 43; BC9002723 that the use of the words “assault and rob”, rather than “rob”, was surplusage, and should not be used as they may lead to injustice. The preferred form avers “rob” simpliciter. [8-s 96.40] Elements of offence

The elements of the offence are —

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s 97

CRIMES ACT 1900 (NSW) — PART 4

[8-s 97]

[8-s 96.45] Robbery in circumstances of aggravation with wounding etc (1) The accused with the intent [6-500] to steal s 5 [27-23,055]; (2) took property [8-s 4]; (3) from the victim’s immediate control or presence; (4) by the use of violence or by putting the victim in fear s 10; and (5) in circumstances of aggravation which involved the accused immediately

before, at the time of or immediately after the robbery: (i) using corporal violence on any person; or (ii) intentionally or recklessly [8-s 4A.1][8-s 5] inflicting actual bodily harm [8-s 59.5] to any person; or (iii) depriving any person of his or her liberty; and (7) the accused thereby wounded [8-s 35] or inflicted grievous bodily harm

[8-s 4.1] on some person. [8-s 96.50] Assault with intent to rob in circumstances of aggravation with wounding (1) The accused assaulted [8-s 58.5] the victim; (2) and the accused intended [6-500] to steal [8-s 117.5][27-23,055] property (i) the victim; or (ii) another person; (3) by the use of violence or the putting of that person in fear; and (4) in circumstances of aggravation which involved the accused immediately

before, at the time of or immediately after the assault: (i) using corporal violence on any person; (ii) intentionally or recklessly [8-s 4A.1][8-s 5] inflicting actual bodily harm [8-s 59.5] to any person; or (iii) depriving any person of his or her liberty; and (5) the accused thereby wounded [8-s 35] or inflicted grievous bodily harm

[8-s 4.1] on some person. [8-s 96.55] Stealing from the person in circumstances of aggravation with wounding (1) The accused stole[8-s 117.5][27-23,055] a chattel, money or valuable security

[8-s 4]; (2) from the person of the victim; and (3) in circumstances of aggravation which involved the accused immediately

before, at the time of or immediately after the stealing: (i) using of corporal violence on any person; (ii) intentionally or recklessly [8-s 4A.1][8-s 5] inflicting actual bodily harm [8-s 59.5] to any person; or (iii) depriving any person of his or her liberty; and (4) the accused thereby wounded [8-s 35] or inflicted grievous bodily harm

[8-s 4.1] on some person.

[8-s 97] Robbery etc or stopping a mail, being armed or in company 97 (1) Whosoever, being armed with an offensive weapon, or instrument, or being in company with another person, robs, or assaults with intent to rob, any person, or stops any mail, or vehicle, railway train, or person conveying a mail, with intent

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[8-s 4] from:

[8-s 97]

s 97

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

to rob, or search the same, shall be liable to imprisonment for twenty years. [subs (1) am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000]

(2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) when armed with a dangerous weapon. A person convicted of an offence under this subsection is liable to imprisonment for 25 years. [subs (2) insrt Act 84 of 1994 s 3 and Sch 1(5); am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000]

(3) Alternative verdict If on the trial of a person for an offence under subsection (2) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under subsection (1), it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. [subs (3) insrt Act 84 of 1994 s 3 and Sch 1(5), opn 23 Dec 1994] Editor’s note: For proof material on s 97, see [27-22,150] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 97 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Circumstance of aggravation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Armed robbery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Robbery in company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Claim of right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Robbery, being armed or in company — s 97(1) . . . . . . . . . . . . . Assault with intent to rob, being armed or in company — s 97(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Stopping mail or vehicle conveying mail with intent to rob or search — s 97(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Aggravated offence — s 97(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Robbery, being armed or in company . . . . . . . . . . . . . . . . . . . . . . . Assault with intent to rob, being armed or in company . . . . . . . Stopping a mail or vehicle conveying mail with intent to rob or search . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Aggravated offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alternative verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 97.1] [8-s 97.2] [8-s 97.5] [8-s 97.10] [8-s 97.15] [8-s 97.20] [8-s 97.25] [8-s 97.30] [8-s 97.35] [8-s 97.40] [8-s [8-s [8-s [8-s [8-s

97.45] 97.50] 97.55] 97.60] 97.65]

[8-s 97.70] [8-s 97.75] [8-s 97.80]

[8-s 97.1] Definitions As to “offensive weapon” see s 4 at [8-s 4]. As to “rob” see [8-s 94.1]. As to “assaults” see [8-s 58.5]. As to “railway” see s 4 at [8-s 4]. [8-s 97.2] Circumstance of aggravation It is sufficient if the prosecution alleges and proves at least one particular circumstance of aggravation, but the sentencing court is entitled to take into account other circumstances of aggravation proved by the evidence. See R v Li (NSWCCA, Abadee and Studdert JJ, 60610/1996, 9 July 1997, unreported, BC9703285); (1997) 4 Crim LN 46 [715]. Any circumstance of aggravation would have to be proved by the prosecution beyond reasonable doubt. As to “dangerous weapon” see s 4 at [8-s 4.10].

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s 97

CRIMES ACT 1900 (NSW) — PART 4

[8-s 97.20]

[8-s 97.10] Robbery in company Although it is not necessary that more than one person actually threaten or assault the person robbed, the constructive presence of more than one person is not sufficient, so that a person keeping watch is not in company: R v Joyce [1968] NZLR 1070. The other person may be present for the purpose of giving assistance if required: R v Galey [1985] 1 NZLR 230. The necessary mens rea for a person to be in company for the purposes of the offence was considered in R v Leoni [1999] NSWCCA 14; BC9900970; (1999) 6 Crim LN 23 [976] where it was held that the necessary intent is that the accused knew or expected that the victim would know of the presence of more than one person at the time of the robbery and the ability of more than one person to assist in the robbery if called upon to do so. The accused placed himself in the position in which he knew or expected that the victim would know of his presence and ability to assist in the robbery if called on to do so. [8-s 97.15] Claim of right

As to claim of right in armed robbery, see [8-s 94.10].

[8-s 97.20] Sentence See at [8-s 94.20]. As to the range of sentences for armed robbery, see R v Ellis (1993) 68 A Crim R 449, where it was held that heavy sentences were appropriate for persons who commit armed robbery offences to feed a drug habit. The court should see that objectively deterrent sentences are imposed on persons who use syringes apparently filled with blood to inflinct dread on their victims of the fear of AIDS and the sentence should reflect also that this type of weapon is used in most cases by persons who are associated with drug taking: R v Hodge (NSWCCA, Allen J, 2 November 1993, unreported, BC9302236); (1993-4) 1 NSWCR 61. In R v Henry (1999) 46 NSWLR 346; 106 A Crim R 149; [1999] NSWCCA 111; BC9902288; (1999) 6 Crim LN 29 [989] a guideline judgment was handed down for the sentencing of offences of armed robbery. The following guideline was made: (1) A category of case which is sufficiently common for the purposes of determining a guideline comprises the following elements: (i) young offender with no or little criminal history; (ii) weapon like a knife, capable of killing or inflicting serious injury; (iii) limited degree of planning; (iv) limited, if any, actual violence but a real threat thereof; (v) victim in a vulnerable position such as a shopkeeper or taxi driver; (vi) small amount taken; (vii) plea of guilty, the significance of which is limited by a strong Crown case. (2) A sentencing range is appropriate in relation to this offence because the seven identified characteristics do not exhaust the factors relevant to sentencing, and many of the characteristics contain within themselves an inherent variability. (3) Sentences for an offence of this character should generally fall between four and five years for the full term. Aggravating and mitigating factors will justify a sentence below or above the range which is itself a starting point. (4) A number of circumstances are particular to the offence of armed robbery, including:

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[8-s 97.5] Armed robbery “Armed with” connotes “in the possession of”, but it must be actual and not constructive possession: R v Yates (1963) 80 WN (NSW) 744; R v Farrar (1983) 78 FLR 10. Where armed robbery is the charge, the violence or threat may, but need not, involve the use of the offensive weapon with which the offender is armed: R v Foster (1995) 78 A Crim R 517; BC9505003; 2 Crim LN 22 [365]. It can be inferred from the fact that the weapon was found to be loaded when the accused was arrested a short time after the robbery that the weapon was loaded at the time of the robbery: R v Taha (2000) 120 A Crim R 161; [2000] NSWCCA 520; BC200007968; (2001) 8 Crim LN 13 [1252], where the principle of the retrospective operation of the presumption of continuance was applied. As to the admissibility of photographs of a bank robbery see R v Hennessy [2001] NSWCCA 36; BC200100544; (2001) 8 Crim LN 13 [1253].

[8-s 97.20]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 97

(a) nature of the weapon; (b) vulnerability of the victim; (c) position on a scale of impulsiveness/planning; (d) intensity of threat, or actual use, of force; (e) number of offenders; (f) amount taken, and (g) effect on victim/s. With respect to the relevance of drug addiction, the members of the Court in R v Henry, above, expressed several views: (1) Spigelman CJ (Newman and Hulme JJ agreeing) said that drug addiction is a circumstance relevant to the sentencing exercise, but is not itself a mitigating factor. The existence of a causal relationship between drug addiction and the commission of an offence should not automatically result in a lesser sentence. (2) Wood CJ at CL (Newman and Hulme JJ also agreeing) considered the general principles of deterrence and drug addiction and said drug addiction is not analogous to mental abnormality in respect of which the element of general deterrence may be given less weight. The relevant principles are as follows: (a) The need to acquire funds to support a drug habit is not an excuse to commit an armed robbery, and of itself is not a matter of mitigation. (b) The fact that an offence is motivated by such a need may be taken into account as a factor relevant to the objective criminality of the offence, insofar as it may throw light on matters such as: (i) the impulsivity of the offence and the extent of any planning for it; (ii) the existence or non-existence of any alternative reason that may have operated in aggravation of the offence; and (iii) the state of mind or capacity of the offender to exercise judgment. (c) It may also be relevant as a subjective circumstance, insofar as the origin or extent of the addiction, and any attempts to overcome it, might: (i) impact upon the prospects of recidivism/rehabilitation; (ii) suggest that the addiction was not a matter of personal choice but was attributable to some other event for which the offender was not primarily responsible; (iii) justify special consideration in the case of offenders judged to be at the “cross roads”. (3) Simpson J discussed general principles of rehabilitation and drug addiction. Her Honour said that, where a combination of the following two circumstances exist, then general deterrence and other sentencing objectives such as retribution, may yield to rehabilitation: (a) a background to the addiction that may explain the offender’s decision to use drugs, and diminish his or her moral culpability for that decision; (b) demonstrated progress towards rehabilitation. The guideline applies to the sentencing of children R v SDM (2001) 51 NSWLR 530; 127 A Crim R 318; [2001] NSWCCA 158; BC200102146; (2001) 8 Crim LN 29 [1279]. A guideline judgment is intended to be indicative of the range of the appropriate sentence and the reason for any departure from it should be articulated with some precision: R v Ceissman (2001) 160 FLR 252; 119 A Crim R 535; [2001] NSWCCA 73; BC200101613; (2001) 8 Crim LN 30 [1281]. The court has frequently stated the seriousness of a knife being used to commit an offence: R v Underhill (NSWCCA, Street CJ, Hunt and Campbell JJ, 9 May 1986, unreported, BC8601036). It has been held that the fact that a pocket knife was used to commit the robbery is not a matter of mitigation: R v Doorey [2000] NSWCCA 456; BC200006608; (2000) 7 Crim LN 94 [1226]. It has been held that a robbery committed with a functioning firearm, a pistol (even though not loaded), cannot be described as being “towards the lower end of the range of objective seriousness

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s 97

CRIMES ACT 1900 (NSW) — PART 4

[8-s 97.60]

for this type of offence” given the type of objects that fall within the definition of “dangerous weapon” for the purposes of the offence: R v Hetherington [2016] NSWCCA 165; BC201607030; 23(9) Crim LN [3743]. The guideline in Henry can give general assistance in relation to sentencing for the offence of attempted robbery in company: R v Stanley [2003] NSWCCA 233; BC200304770; (2003) 10 Crim LN 61 [1581]. The effects of the harm upon the victim of an armed robbery as an aggravating factor of the offence under s 21A(2)(g) was considered in R v Youkhana [2004] NSWCCA 412; BC200408415; (2005) 12 Crim LN 9 [1812] and R v Solomon (2005) 153 A Crim R 32; [2005] NSWCCA 158; BC200502528; (2005) 12 Crim LN 64 [1891] where it was held that generally the court cannot take into account the normal type of harm experienced by the victim as a matter of aggravation. It has been held that the range of sentences imposed for multiple armed robbery offences is too low: McIvor v R [2010] NSWCCA 7; BC201000443; (2010) 17 Crim LN 38 [2691]. Sentences for offences under s 97(2) were considered in Wilcox v R [2011] NSWCCA 42; 18(4) Crim LN 60 [2889] in which there is a schedule of cases for this offence.

PROOF MATERIAL ON SECTION 97 For the text of s 97, see [8-s 97] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 97.30] Form of indictment [8-s 97.35] Robbery, being armed or in company — s 97(1) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, being armed with an offensive weapon/instrument [describe weapon or instrument]/being in company with [name of co-accused or “persons unknown”], robbed [name of victim] of [describe property], the property of [name of owner]. [8-s 97.40] Assault with intent to rob, being armed or in company — s 97(1) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, being armed with an offensive weapon/instrument [describe weapon or instrument]/being in company with [name of co-accused or “persons unknown”] assaulted [name of victim] with intent to rob [name of person to be robbed]. [8-s 97.45] Stopping mail or vehicle conveying mail with intent to rob or search — s 97(1) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, being armed with an offensive weapon/instrument [describe weapon or instrument]/being in the company with [name of co-accused or “persons unknown”] stopped a mail/a certain vehicle [describe vehicle]/railway train/person then conveying a mail, with intent to search/rob the said mail/vehicle. [8-s 97.50] Aggravated offence — s 97(2) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did, when armed with a dangerous weapon, [follow relevant simple averment above]. [8-s 97.55] Elements of offence

The elements of the offence are —

[8-s 97.60] Robbery, being armed or in company (1) The accused with intent [6-500] to steal [8-s 117.5][27-23,055]; (2) took; (3) property [8-s 4];

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[8-s 97.25] Intoxication An offence under this section which is alleged to have been committed after 16 August 1996, to the extent that an element of the offence under this section requires a person to intend to cause the specific result necessary for the offence, is an offence of specific intent for the purpose of Pt 11A relating to intoxication: see s 428B Crimes Act ff at [8-s 428B].

[8-s 97.60]

s 97

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

(4) from the victim; (5) by the use of violence or by putting the victim in fear; and (6) the accused was either armed with an offensive weapon s 5 or instrument or

was in company [8-s 97.10]. [8-s 97.65] Assault with intent to rob, being armed or in company (1) The accused assaulted [8-s 58.5] the victim; and (2) the accused intended [6-500] to steal [8-s 117.5][27-23,055] property [8-s 4]

from: (i) the victim; or (ii) another person; (3) by the use of violence or by putting that person in fear; and (4) the accused was either armed with an offensive weapon [8-s 97.5] or instrument

or was in company [8-s 97.10]. [8-s 97.70] Stopping a mail or vehicle conveying mail with intent to rob or search (1) The accused stopped a mail or a vehicle conveying mail or railway [8-s 4] train

conveying mail or person conveying mail; and (2) the accused intended [6-500] to rob [8-s 94.1] or search that mail or vehicle

conveying mail or person conveying mail; and (3) the accused was either armed with an offensive weapon [8-s 97.5] or instrument

or was in company [8-s 97.10]. [8-s 97.75] Aggravated offence (1) The accused committed an offence outlined in s 97(1); (2) when armed with a dangerous weapon [8-s 4]. [8-s 97.80] Alternative verdict If on the trial of a person for an offence under subs (2) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under subs (1), it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly: see s 97(3) at [8-s 97].

[8-s 98] Robbery with arms etc and wounding 98 Whosoever, being armed with an offensive weapon, or instrument, or being in company with another person, robs, or assaults with intent to rob, any person, and immediately before, or at the time of, or immediately after, such robbery, or assault, wounds, or inflicts grievous bodily harm upon, such person, shall be liable to imprisonment for 25 years. [s 98 am Act 218 of 1989 s 3 and Sch 1(19); Act 84 of 1994 s 3 and Sch 1(6); am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000] Editor’s note: For proof material on s 98, see [27-22,200] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 98 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Time of wounding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mens rea of the offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Standard non-parole period provisions . . . . . . . . . . . . . . . . . . . . . . . . . .

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[8-s 98.1] [8-s 98.5] [8-s 98.10] [8-s 98.15] [8-s 98.20]

s 98

[8-s 98.25]

CRIMES ACT 1900 (NSW) — PART 4

Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Robbery with arms etc and wounding . . . . . . . . . . . . . . . . . . . . . . . Assault with intent to rob with arms etc and wounding . . . . . . . Necessary averments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Robbery with arms etc and wounding . . . . . . . . . . . . . . . . . . . . . . . Assault with intent to rob with arms etc and wounding . . . . . . .

[8-s [8-s [8-s [8-s [8-s [8-s [8-s

98.25] 98.30] 98.35] 98.40] 98.45] 98.50] 98.55]

[8-s 98.5] Time of wounding As to the relationship between the wounding and the robbery see Elliot and Hitchens (1983) 9 A Crim R 238, where it was held that whether the wounding was immediately before, or after the robbery was a matter of fact answered by a consideration of circumstances surrounding the robbery, but there must be a relationship both in fact and in time between the wounding and the robbery. The precise ambit of the words “immediately after” is to be determined in the light of the facts and circumstances of the particular case, and even in borderline cases there is little to be gained by the trial judge instructing the jury in terms other than those used by the section and there may be a danger in doing so: R v Attard (NSWCCA, Gleeson CJ, Priestley JA and Campbell J, 20 April 1993, unreported, BC9301923). [8-s 98.10] Mens rea of the offence No specific intent to wound must be proved; all that is necessary is that the act which caused the wounding was a voluntary act: Ryan v R (1967) 121 CLR 205; [1967] ALR 577; BC6700220. [8-s 98.15] Intoxication An offence under this section which is alleged to have been committed after 16 August 1996, to the extent that an element of the offence under this section requires a person to intend to cause the specific result necessary for the offence, is an offence of specific intent for the purpose of Pt 11A relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. The appropriate directions concerning intoxication at a trial for assault with intent to rob with wounding whilst in company under s 98 were considered in R v Makisi (2004) 151 A Crim R 245; [2004] NSWCCA 333; BC200406846; (2004) 11 Crim LN 103 [1781]. [8-s 98.20] Standard non-parole period provisions Where an offence under s 98 Crimes Act 1900 is committed on or after 1 February 2003, the offence is subject to the provisions of Div 1A of Pt 4 (ss 54A–54D) of the Crimes (Sentencing Procedure Act) 1999 at [5-s 54A] and following. A standard non-parole period of 7 years is prescribed: Table following s 54D at [5-s 54D]. Division 1A of Pt 4 does not apply to detention under the Mental Health (Forensic Provisions) Act 1990: s 54D(1)(b) at [5-s 54D]. The relationship between the guideline judgment for armed robbery offences in R v Henry (1999) 46 NSWLR 346; 106 A Crim R 149; [1999] NSWCCA 111; BC9902288 and the standard non-parole period provision applicable to this offence was considered in R v Henry [2007] NSWCCA 90; BC200702210; 14 Crim LN 59 [2210], where it was held that the guideline judgment had a reduced role to play because of the increased maximum penalty for this offence. However it was also held that where a court intended to impose a sentence for this offence that was below that set out in the guideline, this fact should cause the court to consider whether the sentence could properly reflect the increased seriousness of the offence under s 98. PROOF MATERIAL ON SECTION 98 For the text of s 98, see [8-s 98] behind the “8 – Crimes Act” guide card in Vol 1.

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[8-s 98.1] Definitions As to “robs” see [8-s 94.1]. As to “assaults” see [8-s 58.5]. As to “wounds” see [8-s 35]. As to “grievous bodily harm” see [8-s 4.1].

[8-s 98.25]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 98

[8-s 98.25] Form of indictment [8-s 98.30] Robbery with arms etc and wounding That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, being armed with an offensive weapon/instrument, [describe weapon or instrument]/being in company with [name of co-accused or “persons unknown”] robbed [name of victim] of [describe property], the property of [name of owner] and that the said [name of accused] immediately before/at the time of/immediately after that robbery, wounded/inflicted grievous bodily harm upon [name of victim]. [8-s 98.35] Assault with intent to rob with arms etc and wounding That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, being armed with an offensive weapon/instrument [describe weapon or instrument]/being in company with [name of co-accused or “persons unknown”] assaulted [name of victim] with intent to rob [him/her] and that the said [name of accused] immediately before/at the time of/immediately after that assault, wounded/inflicted grievous bodily harm upon [name of victim]. [8-s 98.40] Necessary averments The wording of this particular section suggests that the person wounded must be the same person that was robbed or assaulted (cf ss 95–97). [8-s 98.45] Elements of offence The elements of the offence are — [8-s 98.50] Robbery with arms etc and wounding (1) The accused was either armed with an offensive weapon or instrument [8-s 4] (2) (3) (4) (5) (6) (7)

or in company; and the accused with intent [6-500] to steal [8-s 117.5][27-23,055]; took; property [8-s 4]; from the victim; by the use of violence or the putting of the victim in fear; and the accused immediately before, or at the time of or immediately after [8-s 98.5] that robbery wounded [8-s 35] or inflicted grievous bodily harm [8-s 4.1] upon the victim.

[8-s 98.55] Assault with intent to rob with arms etc and wounding (1) The accused was either armed with an offensive weapon or instrument [8-s 4]

or was in company; and (2) assaulted [8-s 58.5] the victim; and (3) the accused intended [6-500] to steal [8-s 117.5][27-23,055] property [8-s 4]

from: (i) the victim; or (ii) another person; (4) by the use of violence or by putting that person in fear; and (5) the accused immediately before, or at the time of or immediately after

[8-s 98.5] that assault wounded [8-s 35] or inflicted grievous bodily harm [8-s 4.1] upon the victim. DIVISION 3 — DEMANDING PROPERTY WITH INTENT TO STEAL [Div 3 (formerly Pt 4, Div 1, subdiv 3) am Act 99 of 2009 Sch 2, opn 22 Feb 2010]

[8-s 99] Demanding property with intent to steal 99 (1) Whosoever, with menaces, or by force, demands any property from any person, with intent to steal the same, shall be liable to imprisonment for ten years. [s 99 am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000] Editor’s note: For proof material on s 99, see [27-22,250] behind the “27 – Informations and Indictments” guide card in Vol 4.

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s 99

[8-s 99.25]

CRIMES ACT 1900 (NSW) — PART 4

(2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in the company of another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 14 years. [subs (2) insrt Act 84 of 2001 s 3 and Sch 1[7], opn 14 Dec 2001]

(3) It is immaterial whether any such menace is of violence or injury by the offender or by any other person. [subs (3) insrt Act 38 of 2007 s 3 and Sch 1[15], opn 15 Feb 2008]

[8-s 99.1] [8-s 99.5] [8-s 99.10] [8-s 99.15] [8-s 99.20] [8-s 99.25] [8-s 99.30] [8-s 99.35] [8-s 99.40] [8-s [8-s [8-s [8-s

99.45] 99.50] 99.55] 99.60]

[8-s 99.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Part 2 clause 9. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 99.5] Definitions As to “property” see s 4 at [8-s 4]. As to “steal” see [8-s 117]. As to “in company with another person” see at [8-s 59.5]. [8-s 99.10] Menaces See s 105 at [8-s 105]. The test of whether the threat is a menace is whether it is “of such a nature and extent that the mind of an ordinary person of normal stability and courage might be influenced or made apprehensive so as to accede unwillingly to the demand”: R v Clear [1968] 2 WLR 122. However, evidence of the victim’s state of mind has been held to be admissible: Benasic v R (1987) 77 ALR 340. It is sufficient if the threat made is in respect of the property of the victim and not his or her person: Director of Public Prosecutions v K (1999) 49 NSWLR 226; [1999] NSWSC 1201; BC9908273; (2000) 7 Crim LN 7 [1107]. An implicit threat arising from the conduct of the accused in all the circumstances when the demand is made can amount to a menace for the purposes of the offence: Director of Public Prosecutions v Curby [2000] NSWSC 745; BC200004322; (2000) 7 Crim LN 63 [1183]. [8-s 99.15] Demand The making of a demand does not require actual communication to the demandee; the sending of a letter is enough: R v Treacy [1971] AC 537. [8-s 99.20] Intent to steal The demand must be made in such circumstances that if the property is obtained it would amount to stealing: R v Messeruy (1932) 49 WN 221. [8-s 99.25] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act and is to be dealt with in a Local Court unless an election is made for trial on indictment, see s 260 of that Act at [2-s 260] and Schedule 1 at [2-Sch 1]. The maximum penalty which can be imposed is 2 years imprisonment.

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Crimes

COMMENTARY ON SECTION 99 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Menaces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Demand . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intent to steal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Demanding property etc with intent to steal — s 99(1) . . . . . . . Demanding property etc with intent to steal, in company — s 99(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Demanding property etc with intent to steal . . . . . . . . . . . . . . . . . . Demanding property etc with intent to steal, in company . . . . .

[8-s 99.30]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 99

[8-s 99.30] Intoxication An offence under this section which is alleged to have been committed after 16 August 1996 is an offence of specific intent for the purpose of Pt 11A relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. PROOF MATERIAL ON SECTION 99 For the text of s 99, see [8-s 99] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 99.35] Form of indictment [8-s 99.40] Demanding property etc with intent to steal — s 99(1) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, with menaces/by force, demanded from [name of victim] [describe property] with intent to steal that property from [name of victim]. [8-s 99.45] Demanding property etc with intent to steal, in company — s 99(2) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, in the company of another person/other persons, with menaces/by force demanded from [name of victim] [describe property] with intent to steal that property from [name of victim]. [8-s 99.50] Elements of offence

The elements of the offence are —

[8-s 99.55] Demanding property etc with intent to steal (1) The accused demanded property [8-s 4][8-s 99.10] from the victim; and (2) that demand was accompanied by menaces [8-s 99.5] or by force; and (3) the accused intended [6-500] to steal [8-s 117.5][27-23,055] that property

[8-s 4]. [8-s 99.60] Demanding property etc with intent to steal, in company (1) The accused demanded property [8-s 4][8-s 99.10] from the victim; and (2) that demand was accompanied by menaces [8-s 99.5] or by force; and (3) the accused intended [6-500] to steal [8-s 117.5][27-23,055] that property

[8-s 4]; and (4) the accused was in the company of another person or other persons.

100–105

[ss 100–105 rep Act 38 of 2007 s 3 and Sch 1[16], opn 15 Feb 2008]

DIVISION 4 — SACRILEGE AND HOUSEBREAKING [Div 4 (formerly Pt 4, Div 1, subdiv 4) am Act 99 of 2009 Sch 2, opn 22 Feb 2010]

[8-s 105A] Definitions 105A (1) In sections 106–115A: building includes any place of Divine worship. [def insrt Act 38 of 2007 s 3 and Sch 1[17], opn 15 Feb 2008]

circumstances of aggravation means circumstances involving any one or more of the following: (a) the alleged offender is armed with an offensive weapon, or instrument, (b) the alleged offender is in the company of another person or persons, (c) the alleged offender uses corporal violence on any person, (d) the alleged offender intentionally or recklessly inflicts actual bodily harm on any person, (e) the alleged offender deprives any person of his or her liberty,

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s 105A

CRIMES ACT 1900 (NSW) — PART 4

[8-s 105A.1]

(f) the alleged offender knows that there is a person, or that there are persons, in the place where the offence is alleged to be committed. [def am Act 38 of 2007 s 3 and Sch 1[3], opn 15 Feb 2008]

circumstances of special aggravation means circumstances involving any or all of the following: (a) the alleged offender intentionally wounds or intentionally inflicts grievous bodily harm on any person, (b) the alleged offender inflicts grievous bodily harm on any person and is reckless as to causing actual bodily harm to that or any other person, (c) the alleged offender is armed with a dangerous weapon. [def subst Act 41 of 2012 Sch 1[5], opn 21 June 2012] [subs (1) am Act 23 of 1995 Sch 1, opn 1 July 1995]

(2) The matters referred to in: (a) paragraph (c), (d) or (e) of the definition of circumstances of aggravation, or (b) paragraph (a) or (b) of the definition of circumstances of special aggravation, can occur immediately before, or at the time of, or immediately after any of the elements of the offence concerned occurred. (2A) For the purposes of paragraph (f) of the definition of circumstances of aggravation, if there was a person, or there were persons, in the place in relation to which an offence is alleged to have been committed at the time it was committed, the defendant is presumed to have known that fact unless the defendant satisfies the court that he or she had reasonable grounds for believing that there was no one in the place. [subs (2A) insrt Act 23 of 1995 Sch 1, opn 1 July 1995]

(3) The definitions in subsection (1) are not mutually exclusive. [s 105A insrt Act 84 of 1994; s 3 and Sch 1(7), opn 23 Dec 1994] Editor’s note: For proof material on s 105A, see [27-22,550] behind the “27 – Informations and Indictments” guide card in Vol 4. For a historical version of this section please see [8A-REP s 105A].

COMMENTARY ON SECTION 105A Aggravated offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Forms of indictment for aggravated offences . . . . . . . . . . . . . . . . . . . . Being armed with an offensive weapon etc . . . . . . . . . . . . . . . . . . Being in company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Using corporal violence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inflicting actual bodily harm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Depriving a person of liberty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Knowing person is present . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Forms of indictment for specially aggravated offences . . . . . . . . . . . Wounding or inflicting grievous bodily harm . . . . . . . . . . . . . . . . . Being armed with a dangerous weapon . . . . . . . . . . . . . . . . . . . . . . Additional elements of aggravated offences . . . . . . . . . . . . . . . . . . . . . Aggravated offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Specially aggravated offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 105A.1] [8-s 105A.5] [8-s 105A.10] [8-s 105A.15] [8-s 105A.20] [8-s 105A.25] [8-s 105A.30] [8-s 105A.35] [8-s 105A.40] [8-s 105A.45] [8-s 105A.50] [8-s 105A.55] [8-s 105A.60] [8-s 105A.65] [8-s 105A.70]

[8-s 105A.1] Aggravated offences It is unnecessary for the prosecution to allege every aggravating circumstance to be relied upon in the indictment provided that the charge alleges that the offence was committed in circumstances of aggravation or special circumstances of aggravation. A sentencing court is entitled, therefore, to take into account matters of aggravation

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Crimes

[subs (2) am Act 41 of 2012 Sch 1[6], opn 21 June 2012]

[8-s 105A.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 105A

or special aggravation not specifically alleged in the indictment without infringing the principle in R v De Simoni: R v Li (NSWCCA, Abadee and Studdert JJ, 60610/1996, 9 July 1997, unreported, BC9703285); 4(6) Crim LN [715]. The scope of the aggravated circumstance under s 105A(1)(f) of persons being in the place where the offence was committed was considered in R v Rice (2004) 150 A Crim R 37; [2004] NSWCCA 384; BC200407654; 12(1) Crim LN [1806] where it was held that it was sufficient that a person at the time of the breaking was within a yard immediately outside the dwelling or on a patio attached to the house and it was not necessary that a person actually be inside the house for the circumstances of aggravation to apply. The same act can be relied upon to prove both an element of the offence charged and a matter of aggravation: R v O’Donoghue (2005) 151 A Crim R 597; [2005] NSWCCA 62; BC200500750; 12(3) Crim LN [1846] where the accused was charged with breaking and entering a dwelling and committing a serious indictable offence being assault occasioning actual bodily harm in circumstances of aggravation being the use of corporal violence. A circumstance of aggravation can be an element of the offence charged so that for an offence of aggravated break and enter where both the offence committed and the circumstance of aggravation was reckless wounding it was held that the charge was valid: Firbank v R [2011] NSWCCA 171; BC201111030; 20(3) Crim LN [3182]. [8-s 105A.5] Definitions As to “armed with an offensive weapon or instrument”, see “armed” in s 4 and “offensive weapon” at [8-s 4.5]. As to “in company with another person”, see at [8-s 97.10]. As to “recklessly”, see at [8-s 4A.1] and the annotations. As to “actual bodily harm”, see at [8-s 59.5]. As to “wounds”, see at [8-s 35.5]. As to “grievous bodily harm”, see at [8-s 4.1]. As to “dangerous weapon”, see at [8-s 4.15]. PROOF MATERIAL ON SECTION 105A For the text of s 105A, see [8-s 105A] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 105A.10] Forms of indictment for aggravated offences The following forms of indictment are applicable to aggravated offences under ss 109–113 at [8-s 109]–[8-s 113] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 105A.15] Being armed with an offensive weapon etc That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, being armed with an offensive weapon/instrument, did commit an aggravated offence namely [describe the aggravated offence committed]. [8-s 105A.20] Being in company That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, being in company with [name of co-accused or “persons unknown”], did commit an aggravated offence namely [describe the aggravated offence committed]. [8-s 105A.25] Using corporal violence That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did [describe the aggravated offence committed] and immediately before/at the time of/immediately after the [particular offence], [name of accused] did use corporal violence on [name of victim]. [8-s 105A.30] Inflicting actual bodily harm That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did [describe the aggravated offence committed] and immediately before/at the time of/immediately after the [particular offence], [name of accused] did intentionally/recklessly inflict grievous bodily harm on [name of victim].

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s 106–108

CRIMES ACT 1900 (NSW) — PART 4

[8-s 105A.70]

[8-s 105A.35] Depriving a person of liberty That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did [describe the aggravated offence committed] and immediately before/at the time of/immediately after the [particular offence], [name of accused] did deprive [name of victim] of his/her liberty. [8-s 105A.40] Knowing person is present That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did [describe the aggravated offence committed] knowing that a person/ persons was/were in the place where the offence was committed. [8-s 105A.45] Forms of indictment for specially aggravated offences The following forms of indictment are applicable to specially aggravated offences under ss 109–113 at [8-s 109]–[8-s 113] behind the “8 – Crimes Act” guide card in Vol 1.

[8-s 105A.55] Being armed with a dangerous weapon That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, being armed with a dangerous weapon, did [describe the specially aggravated offence committed]. [8-s 105A.60] Additional elements of aggravated offences [8-s 105A.65] Aggravated offences (1) The accused committed an offence outlined in ss 106–113; (2) in circumstances of aggravation involving: (i) the accused being armed with an offensive weapon, or instrument [8-s 4]; (ii) the accused being in the company of another person or persons; or (iii) the accused knowing that there was a person, or that there were persons, in the place where the offence was committed;

or immediately before, or at the time of or immediately after any of the elements of the offence concerned: (iv) the accused using corporal violence on any person; (v) the accused intentionally or recklessly [8-s 4A.1] inflicting actual bodily harm on any person; or (vi) the accused depriving any person of his or her liberty. [8-s 105A.70] Specially aggravated offences (1) The accused committed an offence outlined in ss 106–113; (2) in circumstances of special aggravation involving either or both of the

following: (i) immediately before, or at the time of or immediately after any of the elements of the offence concerned, the accused wounding [8-s 35] or intentionally or recklessly [8-s 4A.1] inflicting grievous bodily harm [8-s 4.1] on any person; and/or (ii) the accused being armed with a dangerous weapon [8-s 4].

106–108 [ss 106–107 rep Act 38 of 2007 s 3 and Sch 1[18], opn 15 Feb 2008] [s 108 rep Act 50 of 1974 s 6, opn 2 Aug 1974]

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Crimes

[8-s 105A.50] Wounding or inflicting grievous bodily harm That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did [describe the specially aggravated offence committed] and immediately before/at the time of/immediately after the [particular offence], [name of accused] did wound/inflict grievous bodily harm upon [name of victim].

[8-s 109]

s 109

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

[8-s 109] Breaking out of dwelling-house after committing, or entering with intent to commit, indictable offence 109 (1) Whosoever: enters the dwelling-house of another, with intent to commit a serious indictable offence therein, or, being in such dwelling-house commits any serious indictable offence therein, and in either case breaks out of the said dwelling-house shall be liable to imprisonment for fourteen years. [subs (1) am Act 94 of 1999 s 5 and Sch 3[30]–[31] and [70], opn 1 Jan 2000]

(2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 20 years. [subs (2) insrt Act 84 of 1994 s 3 and Sch 1(10); am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000]

(3) Specially aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (2) in circumstances of special aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 25 years. [subs (3) insrt Act 84 of 1994 s 3 and Sch 1(10); am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000] Editor’s note: For proof material on s 109, see [27-22,700] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 109 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alternative verdicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Enter dwelling-house with intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . Committing serious indictable offence in a dwelling-house and breaking out . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Aggravated and specially aggravated forms . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Enter dwelling house with intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . Committing serious indictable offence and breaking out . . . . . . . Aggravated offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Specially aggravated offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alternative verdicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Aggravated offence reduced to basic offence . . . . . . . . . . . . . . . . . Specially aggravated offence reduced to aggravated offence . . . Specially aggravated offence reduced to basic offence . . . . . . . .

[8-s 109.1] [8-s 109.5] [8-s 109.7] [8-s 109.10] [8-s 109.15] [8-s 109.20] [8-s 109.25] [8-s [8-s [8-s [8-s [8-s [8-s [8-s [8-s [8-s [8-s [8-s

109.30] 109.35] 109.40] 109.45] 109.50] 109.55] 109.60] 109.65] 109.70] 109.75] 109.80]

[8-s 109.1] Summary disposal Where (a) the serious indictable offence intended is stealing or intentionally or recklessly destroying or damaging property, or (b) the serious indictable offence alleged is stealing or intentionally or recklessly destroying or damaging property and the value of the property stolen or destroyed, or the value of the damage to the property, does not exceed $60,000, an offence under s 109(1) is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Part 2 cl 6. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267].

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s 109

CRIMES ACT 1900 (NSW) — PART 4

[8-s 109.50]

An offence under s 109(2) may be dealt with summarily if the serious indictable offence alleged is stealing or intentionally or recklessly destroying or damaging property, the value of the relevant property does not exceed $60,000 and the only circumstance of aggravation is that the alleged offender is in the company of another person or persons: Sch 1 Table 1 cl 8A at [2-Sch 1]. [8-s 109.5] Definitions As to “enters” see [8-s 111.5]. As to “dwelling-house”, see s 4 at [8-s 4] and annotations at [8-s 4.20]. As to “serious indictable offence” see [8-s 4]. As to “armed with an offensive weapon” see [8-s 97.5]. As to circumstances of aggravation and special aggravation see s 105A. [8-s 109.7] Alternative verdicts For alternative verdicts where circumstances of aggravation or special aggravation are charged see s 115A. [8-s 109.10] Intoxication An offence under this section which is alleged to have been committed after 16 August 1996, to the extent that an element of the offence under this section requires a person to intend to cause the specific result necessary for the offence, is an offence of specific intent for the purpose of Pt 11A Crimes Act 1900 relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. In respect of an aggravated form of the offence, see [8-s 105A.1].

PROOF MATERIAL ON SECTION 109 For the text of s 109, see [8-s 109] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 109.20] Form of indictment [8-s 109.25] Enter dwelling-house with intent That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, entered the dwelling-house of [name of victim] at [state location of premises] with intent to commit a serious indictable offence, namely [describe serious indictable offence] and then broke out of that dwelling-house. [8-s 109.30] Committing serious indictable offence in a dwelling-house and breaking out That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, being in a dwelling-house of [name of victim] at [state type of premises] committed a serious indictable offence namely [briefly describe serious indictable offence committed] and then broke out of that dwelling-house. [8-s 109.35] Aggravated and specially aggravated forms For an aggravated offence, create the form of indictment by combining [27-22,550] and either [27-22,700.1] or [27-22,700.5] as appropriate. For a specially aggravated offence, create the form of indictment by combining [27-22,555] and either [27-22,700.1] or [27-22,700.5] as appropriate. [8-s 109.40] Elements of offence

The elements of the offence are —

[8-s 109.45] Enter dwelling house with intent (1) The accused entered [8-s 111.5] the dwelling-house [8-s 4] of another; and (2) the accused intended [6-500] to commit a serious indictable offence [8-s 4]; and (3) the accused broke out of that dwelling-house [8-s 4]. [8-s 109.50] Committing serious indictable offence and breaking out (1) The accused was in the dwelling-house [8-s 4] of another; and (2) the accused committed a serious indictable offence [8-s 4] in the

dwelling-house; and (3) the accused broke out of that dwelling-house [8-s 4].

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Crimes

[8-s 109.15] Sentencing

[8-s 109.55]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 109

[8-s 109.55] Aggravated offence (1) The accused committed an offence outlined in [27-22,705.1] or [27-22,705.5] (2) in circumstances of aggravation [27-22,560]. [8-s 109.60] Specially aggravated offence (1) The accused committed an offence outlined in [27-22,705.1] or [27-22,705.5]. (2) in circumstances of special aggravation [27-22,560]. [8-s 109.65] Alternative verdicts [8-s 109.70] Aggravated offence reduced to basic offence If on the trial of a person for an offence under s 109(2) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under s 109(1), it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly: see s 115A(1) at [8-s 115A]. [8-s 109.75] Specially aggravated offence reduced to aggravated offence If on the trial of a person for an offence under s 109(3) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under s 109(2), it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly: see s 115A(2) at [8-s 115A]. [8-s 109.80] Specially aggravated offence reduced to basic offence If on the trial of a person for an offence under s 109(3) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under s 109(1), it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly: see s 115A(3) at [8-s 115A]. This subsection does not apply to an offence if the jury proceeds under subs (2) in relation to it.

[8-s 110] Breaking, entering and assaulting with intent to murder etc 110 Whosoever breaks and enters any dwelling-house, or any building appurtenant thereto, and while therein or on premises occupied therewith assaults with intent to murder any person, or inflicts grievous bodily harm upon any person, shall be liable to imprisonment for 25 years. [s 110 am Act 218 of 1989 s 3 and Sch 1(20); am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000] Editor’s note: For proof material on s 110, see [27-22,750] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 110 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mens rea of the offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 110.1] Definitions As to “breaks and enters” see [8-s 112.5]. As to “dwelling-house” see [8-s 109.1]. As to “assaults” see [8-s 58.5]. As to “intent to murder” see [8-s 27.1]. As to “grievous bodily harm” see [8-s 4.1].

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[8-s 110.1] [8-s 110.5] [8-s 110.10] [8-s 110.15] [8-s 110.20]

s 111

CRIMES ACT 1900 (NSW) — PART 4

[8-s 111.1]

[8-s 110.5] Mens rea of the offence It is not necessary to show an intent to do grievous bodily harm: R v Bowden (1981) 7 A Crim R 378. [8-s 110.10] Intoxication An offence under this section which is alleged to have been committed after 16 August 1996 is an offence of specific intent for the purpose of Pt 11A Crimes Act 1900 relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. PROOF MATERIAL ON SECTION 110 For the text of s 110, see [8-s 110] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 110.15] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, did break and enter a dwelling-house/building appurtenant to a dwelling-house situate at [describe location] and while therein/while on premises occupied therewith, did assault [name of person assaulted] with intent to murder [name of intended murder victim]/did inflict grievous bodily harm upon [name of victim]. [8-s 110.20] Elements of offence The elements of the offence are — (1) The accused broke and entered [8-s 112.5] a dwelling-house [8-s 4] or any

[8-s 111] Entering dwelling-house 111 (1) Whosoever enters any dwelling-house, with intent to commit a serious indictable offence therein, shall be liable to imprisonment for ten years. [subs (1) am Act 84 of 1994 s 3 and Sch 1(11); am Act 94 of 1999 s 5 and Sch 3[28] and [70], opn 1 Jan 2000]

(2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 14 years. [subs (2) insrt Act 84 of 1994 s 3 and Sch 1(11); am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000]

(3) Specially aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (2) in circumstances of special aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 20 years. [subs (3) insrt Act 84 of 1994 s 3 and Sch 1(11); am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000] [s 111 heading am Act 84 of 1994 s 3 and Sch 1(11)] Editor’s note: For proof material on s 111, see [27-22,800] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 111 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alternative verdicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Enter dwelling-house . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Aggravated and specially aggravated forms . . . . . . . . . . . . . . . . . .

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[8-s 111.1] [8-s 111.2] [8-s 111.5] [8-s 111.10] [8-s 111.15] [8-s 111.20] [8-s 111.25] [8-s 111.30]

Crimes

building appurtenant thereto; and (2) the accused, while therein or while on premises occupied therewith: either (i) assaulted [8-s 112.5] a person with intent [6-500] to murder [8-s 27.15] the intended victim; or (ii) inflicted grievous bodily harm [8-s 4.1] upon some person.

[8-s 111.1]

s 111

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Entering dwelling-house . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Aggravated offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Specially aggravated offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alternative verdicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Aggravated offence reduced to basic offence . . . . . . . . . . . . . . . . . Specially aggravated offence reduced to aggravated offence . . . Specially aggravated offence reduced to basic offence . . . . . . . .

[8-s [8-s [8-s [8-s [8-s [8-s [8-s [8-s

111.35] 111.40] 111.45] 111.50] 111.55] 111.60] 111.65] 111.70]

[8-s 111.1] Summary disposal Where the serious indictable offence intended is stealing or intentionally or recklessly destroying or damaging property, an offence under s 111(1) is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 2 cl 7. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. An offence under s 111(2) may be dealt with summarily if the serious indictable offence alleged is stealing or intentionally or recklessly destroying or damaging property, the value of the relevant property does not exceed $60,000 and the only circumstance of aggravation is that the alleged offender is in the company of another person or persons: Sch 1 Table 1 cl 8A at [2-Sch 1]. [8-s 111.2] Alternative verdicts For alternative verdicts where circumstances of aggravation or special aggravation are charged see s 115A. [8-s 111.5] Definitions As to “enter a building”, see generally observations on entry in R v Collins [1973] QB 100; [1972] 2 All ER 1105. It must be proved that the accused had an intent to enter a particular building, that is, there must be a specific intent and a general intent to enter buildings will not suffice: R v Jarrold (1863) Leigh Cave 301. The intent to commit an offence whilst therein must also be shown. See also [8-s 112.5]. As to “stealing” see [8-s 117]. As to “dwelling house” see [8-s 109.1] As to “serious indictable offence” see [8-s 4]. As to circumstances of aggravation and special aggravation see s 105A. [8-s 111.10] Intoxication An offence under this section which is alleged to have been committed after 16 August 1996 is an offence of specific intent for the purpose of Pt 11A Crimes Act 1900 relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. [8-s 111.15] Sentencing

In respect of an aggravated form of the offence, see [8-s 105A.1].

PROOF MATERIAL ON SECTION 111 For the text of s 111, see [8-s 111] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 111.20] Form of indictment [8-s 111.25] Enter dwelling-house That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, did enter the dwelling-house of [name of owner] at [location of premises] with intent to commit a serious indictable offence, namely to [identify serious indictable offence]. [8-s 111.30] Aggravated and specially aggravated forms For an aggravated offence, create the form of indictment by combining [27-22,550] and [27-22,800]. For a specially aggravated offence, create the form of indictment by combining [27-22,555] and [27-22,800]. [8-s 111.35] Elements of offence

The elements of the offence are —

[8-s 111.40] Entering dwelling-house (1) The accused entered [8-s 111.5] a dwelling-house [8-s 4]; and

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s 112

CRIMES ACT 1900 (NSW) — PART 4

[8-s 112]

(2) the accused intended [6-500] to commit the serious indictable offence [8-s 4]

alleged in that house. [8-s 111.45] Aggravated offence (1) The accused committed an offence outlined in [27-22,800.1]; (2) in circumstances of aggravation [27-22,560]. [8-s 111.50] Specially aggravated offence (1) The accused committed an offence outlined in [27-22,800.1]; (2) in circumstances of special aggravation [27-22,560]. [8-s 111.55] Alternative verdicts

[8-s 111.65] Specially aggravated offence reduced to aggravated offence If on the trial of a person for an offence under s 111(3), the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under s 111(2), it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly: see s 115A(2) at [8-s 115A]. [8-s 111.70] Specially aggravated offence reduced to basic offence If on the trial of a person for an offence under s 111(3) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under s 111(1), it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly: see s 115A(3) at [8-s 115A]. This subsection does not apply to an offence if the jury proceeds under subs (2) in relation to it.

[8-s 112] Breaking etc into any house etc and committing serious indictable offence 112 (1) A person who: (a) breaks and enters any dwelling-house or other building and commits any serious indictable offence therein, or (b) being in any dwelling-house or other building commits any serious indictable offence therein and breaks out of the dwelling-house or other building, is guilty of an offence and liable to imprisonment for 14 years. [subs (1) subst Act 38 of 2007 s 3 and Sch 1[19], opn 15 Feb 2008]

(2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 20 years. [subs (2) insrt Act 84 of 1994 s 3 and Sch 1(12); am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000]

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Crimes

[8-s 111.60] Aggravated offence reduced to basic offence If on the trial of a person for an offence under s 111(2) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under s 111(1), it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly: see s 115A(1) at [8-s 115A].

[8-s 112]

s 112

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

(3) Specially aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (2) in circumstances of special aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 25 years. [subs (3) insrt Act 84 of 1994 s 3 and Sch 1(12); am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000] [s 112 am Act 94 of 1999 s 5 and Sch 3[29], opn 1 Jan 2000] Editor’s note: For proof material on s 112, see [27-22,950] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 112 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alternative verdicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Specially aggravated offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Breaking out . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Claim of right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Standard non-parole period provisions . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Breaking, entering and committing serious indictable offence . . Being in dwelling-house etc, committing serious indictable offence and breaking out . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Aggravated and specially aggravated forms . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Breaking, entering and committing serious indictable offence . . Breaking, entering and committing serious indictable offence while armed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Aggravated offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Specially aggravated offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alternative verdicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Aggravated offence reduced to basic offence . . . . . . . . . . . . . . . . . Specially aggravated offence reduced to aggravated offence . . . Specially aggravated offence reduced to basic offence . . . . . . . .

[8-s 112.1] [8-s 112.2] [8-s 112.5] [8-s 112.7] [8-s 112.10] [8-s 112.15] [8-s 112.20] [8-s 112.25] [8-s 112.30] [8-s 112.35] [8-s [8-s [8-s [8-s

112.40] 112.45] 112.50] 112.55]

[8-s [8-s [8-s [8-s [8-s [8-s [8-s

112.60] 112.65] 112.70] 112.75] 112.80] 112.85] 112.90]

[8-s 112.1] Summary disposal Where the serious indictable offence alleged is stealing or intentionally or recklessly destroying or damaging property and the value of the property stolen or destroyed, or the value of the damage to the property, does not exceed $60,000, an offence under s 112(1) is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 2 cl 8. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. An offence under s 112(2) may be dealt with summarily if the serious indictable offence alleged is stealing or intentionally or recklessly destroying or damaging property, the value of the relevant property does not exceed $60,000 and the only circumstance of aggravation is that the alleged offender is in the company of another person or persons: Sch 1 Table 1 cl 8A at [2-Sch 1]. [8-s 112.2] Alternative verdicts For alternative verdicts where circumstances of aggravation or special aggravation are charged see s 115A. [8-s 112.5] Definitions As to “dwelling-house” see [8-s 109.1]. As to “serious indictable offence” see [8-s 4]. An attempt to have sexual intercourse without consent under s 61P of the Crimes Act was a “serious indictable offence” for the purposes of an offence under s 112, R v Gulliford (2004) 148 A Crim R 558; [2004] NSWCCA 338; BC200406445; (2004) 11 Crim LN 109 [1789]. As to “armed with an offensive weapon” see [8-s 97.5].

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CRIMES ACT 1900 (NSW) — PART 4

[8-s 112.25]

As to “breaks”: Breaking may be actual or constructive. Actual breaking is where the security of the house is infringed though there need not be any actual breaking of any object. It is not a breaking to further open a door or window which is partly open: R v Smith (1827) 1 Mood 178. The opening of an interior closed door is sufficient: R v Johnson (1786) 2 East PC 448. It will be a breaking to unlatch a window even if the window is open: R v Lackey [1954] Crim LR 57 but cf R v Galea (1989) 46 A Crim R 158. A constructive breaking occurs where entry is obtained by fraud, or threats, or by the use of a key which the person is not entitled to use. The test is whether a person entering the house believed he had no authority to enter: R v Chandler [1913] 1 KB 125. It was held in Singh v R [2019] NSWCCA 110; BC201904571; 26(6) Crim LN [4142] that a constructive breaking existed where the accused knocked on the door of V’s home and then rushed past him when he opened the door in order to steal property from the house. There is a review of the common law as to constructive breaking in the judgment of Leeming JA. A “break” does not occur where permission to enter the premises has been obtained “without artifice, trickery, or threat” and what the person entering intended to do in the premises was irrelevant: Ghamrawi v R [2017] NSWCCA 195; BC201707619; 24(11) Crim LN [3911] where it was held that the section uses the term “break” in the same manner as did the common law. As to “enters”: See generally observations on entry in R v Collins [1973] QB 100; [1972] 2 All ER 1105 and [8-s 111.5]. It is not necessary to prove that the accused was apprehended in the building or land connected therewith nor is it necessary to prove that the person so apprehending the accused was in the building or land with him. It must be proved however that the accused was in the building or land, or entering either: R v Lumsden [1951] 2 KB 513; [1951] 1 All ER 1101. As to circumstances of aggravation and special aggravation see s 105A. [8-s 112.7] Specially aggravated offence In Firbank v R [2011] NSWCCA 171; BC201111030; 20(3) Crim LN [3182] it was held that a charge alleging that the offence committed in the building was a reckless wounding and also alleging a special circumstance of aggravation being the same wounding was valid, applying R v O’Donoghue (2005) 151 A Crim R 597; [2005] NSWCCA 62; BC200500750. [8-s 112.10] Breaking out The offence is committed even though the accused was lawfully in the house: R v Wheeldon (1839) 8 Carrington & Payne 747. [8-s 112.15] Claim of right As to claim of right generally see at [8-s 117.35]. An honestly held belief of a right to the property stolen will be a defence to the charge of break enter and steal: Barker v R (1983) 153 CLR 338; 47 ALR 1; BC8300076 and R v Lopatta (1983) 35 SASR 101. [8-s 112.20] Sentencing In respect of an aggravated form of the offence, see [8-s 105A.1]. There is a guideline judgment in relation to the sentencing for break enter offences in Attorney-General’s Application (No 1); R v Ponfield (1999) 48 NSWLR 327; [1999] NSWCCA 435; BC9908231; 7(1) Crim LN 2 [1101] which is summarised at [8-s 113.15]. However, it has been held that since the insertion of s 21A into the Crimes (Sentencing Procedure) Act 1999 Ponfield has become of little utility: Mapp v R [2010] NSWCCA 269; BC201009500; 18(2) Crim LN [2858]. [8-s 112.25] Standard non-parole period provisions Where an offence under s 112(2) or s 112(3) Crimes Act 1900 is committed on or after 1 February 2003, the offence is subject to the provisions of Div 1A of Pt 4 (ss 54A–54D) of the Crimes (Sentencing Procedure Act) 1999 at [5-s 54A] and following. The standard non-parole period for an offence under s 112(2) is 5 years and for an offence under s 112(3), 7 years: Table following s 54D at [5-s 54D]. Division 1A of Pt 4 does not apply to detention under the Mental Health (Forensic Provisions) Act 1990: s 54D(1)(b) at [5-s 54D].

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Crimes

s 112

[8-s 112.30]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 112

PROOF MATERIAL ON SECTION 112 For the text of s 112, see [8-s 112] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 112.30] Form of indictment [8-s 112.35] Breaking, entering and committing serious indictable offence That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did break and enter a [state type of premises] [state owner of premises] at [state location of premises] and did commit a serious indictable offence therein namely [specify serious indictable offence committed]. [8-s 112.40] Being in dwelling-house etc, committing serious indictable offence and breaking out That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, being in a [state type of premises] [state owner of premises] at [state location of premises], did commit a serious indictable offence therein, namely [state serious indictable offence committed] and did break out of that [state type of premises]. [8-s 112.45] Aggravated and specially aggravated forms For an aggravated offence, create the form of indictment by combining [27-22,550] and either [27-22,850.1] or [27-22,850.5] as appropriate. For a specially aggravated offence, create the form of indictment by combining [27-22,555] and either [27-22,950.1] or [27-22,950.5] as appropriate. [8-s 112.50] Elements of offence

The elements of the offence are —

[8-s 112.55] Breaking, entering and committing serious indictable offence (1) That the accused broke and entered [8-s 112.5]: (i) a dwelling-house [8-s 4]; (ii) school-house; (iii) shop; (iv) warehouse; (v) counting-house; (vi) office; (vii) store; (viii) garage; (ix) pavilion; (x) factory; (xi) workshop; or (xii) building belonging to Her Majesty or any Government department or municipal or public authority; and (2) the accused committed a serious indictable offence [8-s 4] therein. [8-s 112.60] Breaking, entering and committing serious indictable offence while armed (1) That the accused was in a: (i) dwelling-house [8-s 4]; (ii) school-house; (iii) shop; (iv) warehouse; (v) counting-house; (vi) office; (vii) store; (viii) garage; (ix) pavilion; (x) factory; (xi) workshop; or

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s 113

CRIMES ACT 1900 (NSW) — PART 4

[8-s 113]

(xii) building belonging to Her Majesty or any Government department or municipal or public authority; and (2) the accused committed a serious indictable offence [8-s 4] therein; and (3) the accused broke out of the same. [8-s 112.65] Aggravated offence (1) The accused committed offence outlined in [27-22,855.1] or [27-22,855.5]; (2) in circumstances of aggravation [27-22,560]. [8-s 112.70] Specially aggravated offence (1) The accused committed an offence outlined in [27-22,955.1] or [27-22,955.5]; (2) in circumstances of special aggravation [27-22,560]. [8-s 112.75] Alternative verdicts

[8-s 112.85] Specially aggravated offence reduced to aggravated offence If on the trial of a person for an offence under s 112(3), the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under s 112(2), it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly: see s 115A(2) at [8-s 115A]. [8-s 112.90] Specially aggravated offence reduced to basic offence If on the trial of a person for an offence under s 112(3) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under s 112(1), it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly: see s 115A(3) at [8-s 115A]. This subsection does not apply to an offence if the jury proceeds under subs (2) in relation to it.

[8-s 113] Breaking etc into any house etc with intent to commit serious indictable offence 113 (1) A person who breaks and enters any dwelling-house or other building with intent to commit any serious indictable offence therein is guilty of an offence and liable to imprisonment for 10 years. [subs (1) subst Act 38 of 2007 s 3 and Sch 1[20], opn 15 Feb 2008]

(2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 14 years. [subs (2) insrt Act 84 of 1994 s 3 and Sch 1(13); am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000]

(3) Specially aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (2) in circumstances of special aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 20 years. [subs (3) insrt Act 84 of 1994 s 3 and Sch 1(13); am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000] [s 113 am Act 94 of 1999 s 5 and Sch 3[28], opn 1 Jan 2000] Editor’s note: For proof material on s 113, see [27-22,900] behind the “27 – Informations and Indictments” guide card in Vol 4.

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Crimes

[8-s 112.80] Aggravated offence reduced to basic offence If on the trial of a person for an offence under s 112(2) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under s 112(1), it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly: see s 115A(1) at [8-s 115A].

[8-s 113.1]

s 113

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

COMMENTARY ON SECTION 113 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alternative verdicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Breaking and entering into any house etc, with intent to commit serious indictable offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Aggravated and specially aggravated forms . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Breaking and entering into any house etc, with intent to commit serious indictable offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Aggravated offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Specially aggravated offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alternative verdicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Aggravated offence reduced to basic offence . . . . . . . . . . . . . . . . . Specially aggravated offence reduced to aggravated offence . . . Specially aggravated offence reduced to basic offence . . . . . . . .

[8-s 113.1] [8-s 113.2] [8-s 113.5] [8-s 113.10] [8-s 113.15] [8-s 113.20] [8-s 113.25] [8-s 113.30] [8-s 113.35] [8-s [8-s [8-s [8-s [8-s [8-s [8-s

113.40] 113.45] 113.50] 113.55] 113.60] 113.65] 113.70]

[8-s 113.1] Summary disposal Where the serious indictable offence intended is stealing or intentionally or recklessly destroying or damaging property, an offence under s 113(1) is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 2 cl 7. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. An offence under s 113(2) may be dealt with summarily if the serious indictable offence alleged is stealing or intentionally or recklessly destroying or damaging property, the value of the relevant property does not exceed $60,000 and the only circumstance of aggravation is that the alleged offender is in the company of another person or persons: Sch 1 Table 1 cl 8A at [2-Sch 1]. [8-s 113.2] Alternative verdicts For alternative verdicts where circumstances of aggravation or special aggravation are charged see s 115A. [8-s 113.5] Definitions As to “breaks and enters” see [8-s 112.5]. As to “dwelling-house” see [8-s 109.1]. As to “serious indictable offence” see [8-s 4]. As to “armed with an offensive weapon” see [8-s 97.5]. As to circumstances of aggravation and special aggravation see s 105A. [8-s 113.10] Intoxication An offence under this section which is alleged to have been committed after 16 August 1996 is an offence of specific intent for the purpose of Pt 11A Crimes Act 1900 relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. [8-s 113.15] Sentencing In respect of an aggravated form of the offence, see [8-s 105A.1]. The sentencing for the offence of break enter and steal was considered in Attorney-General’s Application (No 1); R v Ponfield (1999) 48 NSWLR 327; [1999] NSWCCA 435; BC9908231; 7(1) Crim LN 2 [1101] where the court declined to issue a guideline but stated the following at [48]: “A court should regard the seriousness of offence contrary to s 112(1) of the Crimes Act as enhanced and reflect that enhanced seriousness in the quantum of sentence if any of the following factors are present. Necessarily, if more than one such factor is present there is accumulative effect upon seriousness and the need for appropriate reflection. (i) The offence is committed whilst the offender is at conditional liberty on bail or on parole. (ii) The offence is the result of professional planning, organization and execution.

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s 113

CRIMES ACT 1900 (NSW) — PART 4

[8-s 113.60]

(iii) The offender has a prior record particularly for like offences. (iv) The offence is committed at premises of the elderly, the sick or the disabled. (v) The offence is accompanied by vandalism and by any other significant damage to property. (vi) The multiplicity of offence (reflected either in the charges or matters taken into account on a Form 1 pursuant to s 21 of the CP Act). In sentencing on multiple counts regard must be had to the criminality involved in each: Pearce v R. (vii) The offence is committed in a series of repeat incursions into the same premises. (viii) The value of the stolen property to the victim, whether that value is measured in terms of money or in terms of sentimental value. (ix) The offence was committed at a time when, absent specific knowledge on the part of the offender (a defined circumstance of aggravation — Crimes Act s 105A(1)(f)), it was likely that the premises would be occupied, particularly at night. (x) That actual trauma was suffered by the victim (other than as a result of corporal violence, infliction of actual bodily harm or deprivation of liberty - defined circumstances of aggravation: Crimes Act s 105A(1)(c), s 105A(1)(d) and s 105A(1)(e)). (xi) That force was used or threatened (other than by means of an offensive weapon, or instrument — a defined circumstance of aggravation Crimes Act s 105A(1)(a)).”

[8-s 113.20] Form of indictment [8-s 113.25] Breaking and entering into any house etc, with intent to commit serious indictable offence That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, did break and enter a [specify type of premises] the property of [name of victim] at [address of premises], with intent to commit a serious indictable offence inside those premises, namely [identify serious indictable offence intended]. [8-s 113.30] Aggravated and specially aggravated forms For an aggravated offence, create the form of indictment by combining [27-22,550] and [27-22,900]. For a specially aggravated offence, create the form of indictment by combining [27-22,555] and [27-22,900]. [8-s 113.35] Elements of offence

The elements of the offence are —

[8-s 113.40] Breaking and entering into any house etc, with intent to commit serious indictable offence (1) The accused broke and entered [8-s 112.5] a dwelling-house [8-s 4],

school-house, shop, warehouse, counting-house, office, store, garage, pavilion, factory, workshop or building belonging to Her Majesty or any Government department or municipal or public authority; and (2) that the accused intended [6-500] to commit a serious indictable offence [8-s 4] in those premises. [8-s 113.45] Aggravated offence (1) The accused committed an offence outlined in [27-22,900.1]; (2) in circumstances of aggravation [27-22,560]. [8-s 113.50] Specially aggravated offence (1) The accused committed an offence outlined in [27-22,900.1]; (2) in circumstances of special aggravation [27-22,560]. [8-s 113.55] Alternative verdicts [8-s 113.60] Aggravated offence reduced to basic offence If on the trial of a person for an offence under s 113(2) the jury is not satisfied that the accused is guilty of the offence charged, but

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Crimes

PROOF MATERIAL ON SECTION 113 For the text of s 113, see [8-s 113] behind the “8 – Crimes Act” guide card in Vol 1.

[8-s 113.60]

s 113

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

is satisfied on the evidence that the accused is guilty of an offence under s 113(1), it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly: see s 115A(1) at [8-s 115A]. [8-s 113.65] Specially aggravated offence reduced to aggravated offence If on the trial of a person for an offence under s 113(3), the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under s 113(2), it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly: see s 115A(2) at [8-s 115A]. [8-s 113.70] Specially aggravated offence reduced to basic offence If on the trial of a person for an offence under s 113(3) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under s 113(1), it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly: see s 115A(3) at [8-s 115A]. This subsection does not apply to an offence if the jury proceeds under subs (2) in relation to it.

[8-s 114] Being armed with intent to commit indictable offence 114 (1) Any person who: (a) is armed with any weapon, or instrument, with intent to commit an indictable offence, (b) has in his or her possession, without lawful excuse, any implement of housebreaking or safebreaking, or any implement capable of being used to enter or drive or enter and drive a conveyance, (c) has his or her face blackened or otherwise disguised, or has in his or her possession the means of blacking or otherwise disguising his or her face, with intent to commit an indictable offence, (d) enters or remains in or upon any part of a building or any land occupied or used in connection therewith with intent to commit an indictable offence in or upon the building, shall be liable to imprisonment for seven years. [subs (1) am Act 10 of 1924 s 9; Act 48 of 1966 s 2; Act 72 of 1979 s 4 and Sch 3; Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998; am Act 94 of 1999 s 5 and Sch 3[32]-[33] and [70], opn 1 Jan 2000; am Act 53 of 2000 s 3 and Sch 3.3, opn 29 June 2000]

(2) For the purposes of subsection (1)(b) conveyance means any cab, carriage, motor car, caravan, trailer, motor lorry, omnibus, motor or other bicycle, or any ship, or vessel, used in or intended for navigation, and drive shall be construed accordingly. [subs (2) am Act 26 of 2006 s 3 and Sch 1[2], opn 1 Sep 2006] [s 114 subst Act 50 of 1974 s 6; am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000]

COMMENTARY ON SECTION 114 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions — s 114(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions — s 114(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions — s 114(1)(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions — s 114(1)(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Armed with intent — s 114(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . Possess implements — s 114(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . . .

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[8-s 114.1] [8-s 114.5] [8-s 114.10] [8-s 114.15] [8-s 114.20] [8-s 114.25] [8-s 114.30] [8-s 114.35] [8-s 114.40]

s 114

[8-s 114.15]

CRIMES ACT 1900 (NSW) — PART 4

Blacken etc face with intent — s 114(1)(c) . . . . . . . . . . . . . . . . . . Enter or remain on property with intent — s 114(1)(d) . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Armed with intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Possess implements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Blacken etc face with intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Enter or remain on property with intent . . . . . . . . . . . . . . . . . . . . .

[8-s [8-s [8-s [8-s [8-s [8-s [8-s

114.45] 114.50] 114.55] 114.60] 114.65] 114.70] 114.75]

[8-s 114.5] Definitions — s 114(1)(a) As to “armed with” see [8-s 97.5]. As to “offensive weapon” see s 4 at [8-s 4]. An “indictable offence” is defined in s 21 of the Interpretation Act: see [29-45,200]. As to “enter” see [8-s 111.5]. [8-s 114.10] Definitions — s 114(1)(b) As to “possession”, see s 7 at [8-s 7]. “Possession” connotes an actual, physical possession and not a constructive one: R v Yates (1963) 80 WN (NSW) 744. Although such implements in the physical possession of one person may be held jointly with other persons, it would be difficult for a jury so to find if those others were wholly ignorant of the existence of the implement: R v Webley (1967) 111 Sol Jo 111 CA. The mere fact that a person was a passenger in a car containing such (implements) is not enough to constitute possession on his part:R v Lester; R v Byast (1955) 30 Cr App R 157 CCA; R v Harris [1961] Crim LR 256; see also R v Harran [1969] Crim LR 662. Where joint possession is alleged, it is necessary to establish joint control by the accused persons: R v Pierpont (1993) 71 A Crim R 187. It is not necessary to prove that the accused intended to use the implement himself: R v Ellames [1974] 3 All ER 130; 1 WLR 1391, CA. It is not necessary to prove that the implement is intended for use by the accused in any particular breaking: R v Ellames, above. “Implement of housebreaking”— It is unnecessary for the Crown to prove that the accused did intend to use the implement for housebreaking or that he had them in his possession for that purpose, as it is sufficient that the Crown proves that it was capable of being used for that purpose and then the onus is upon the accused to prove on the balance of probabilities that he was in possession of the implement for a lawful purpose: R v Reynolds (NSWCCA, Slattery CJ at CL, Reynolds and Carruthers JJ, 22 August 1986, unreported, BC8601306), where the implements were bolt cutters, a torch, screwdrivers and jemmy bars. The circumstances in which a particular implement has been found by the police are relevant to the question whether the implement is rightly to be categorised as a housebreaking implement: R v Pierpont (1993) 71 A Crim R 187. “Lawful excuse”. The accused may negate liability based on possession by establishing that the possession of implements was lawful: s 417 at [8-s 417]; see also R v Phillips [1973] 1 NSWLR 275. The burden of proof is based on the balance of probabilities: R v Patterson [1962] 2 QB 429. Evidence of other actions of the accused may be given to rebut the defence: R v Hodges [1957] 41 Cr App R 218. “Conveyance” is defined in subs (2). [8-s 114.15] Definitions — s 114(1)(c) As to “possession” see [8-s 7]. As to the distinction between felony and misdemeanour see ss 9 and 10 at [8-s 9] and [8-s 10].

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Crimes

[8-s 114.1] Summary disposal An offence under s 114(1)(a), (c) or (d) is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 2 cl 9. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. An offence under s 114(1)(b) is a Table 2 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment by the prosecutor, see s 260(2) at [2-s 260] and [2-Sch 1] Pt 2 cl 3A. The maximum penalty which can be imposed is 24 months imprisonment, or a fine of 50 penalty units, or both. However, the maximum fine that a Local Court may impose if the value of the property, amount of money or reward concerned does not exceed $2,000 is 20 penalty units: see at [2-s 268].

[8-s 114.20]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 114

[8-s 114.20] Definitions — s 114(1)(d) As to “enter” see [8-s 111.5]. As to the distinction between felony and misdemeanour see ss 9 and 10 at [8-s 9] and [8-s 10]. It is not necessary that the prosecution prove that the entry into the premises was unlawful itself provided that the accused had the necessary intent at the time he entered the premises: R v Dugan [1984] 2 NSWLR 554. [8-s 114.25] Intoxication An offence under s 114(1)(a), s 114(1)(c) or s 114(1)(d) which is alleged to have been committed after 16 August 1996, to the extent that an element of the offence under this section requires a person to intend to cause the specific result necessary for the offence, is an offence of specific intent for the purpose of Pt 11A Crimes Act 1900 relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. PROOF MATERIAL ON SECTION 114 For the text of s 114, see [8-s 114] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 114.30] Form of indictment [8-s 114.35] Armed with intent — s 114(1)(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales was armed with a weapon/instrument, namely [describe weapon or instrument] with intent to commit an indictable offence namely [describe indictable offence]. [8-s 114.40] Possess implements — s 114(1)(b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales had in his/her possession without lawful excuse, an implement capable of housebreaking/safebreaking/being used to enter (and)/drive a conveyance, namely [describe implement]. [8-s 114.45] Blacken etc face with intent — s 114(1)(c) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales had his/her face blackened/disguised/had the means in his/her possession of blackening/otherwise disguising his/her face, with intent to commit the indictable offence of [set out offence intended to be committed]. [8-s 114.50] Enter or remain on property with intent — s 114(1)(d) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales entered/remained in a building/on land [describe property] with intent to commit the indictable offence of [identify offence] in/upon that building. [8-s 114.55] Elements of offence

The elements of the offence are —

[8-s 114.60] Armed with intent (1) The accused was armed with a weapon [8-s 97.5] or instrument; and (2) the accused intended [6-500] to commit an indictable offence [29-45,200]. [8-s 114.65] Possess implements (1) The accused had in his or her possession [8-s 7] an implement capable of: (i) housebreaking [8-s 114.10]; (ii) safebreaking; or (iii) being used to enter and/or drive a conveyance [8-s 114(2)]. It is for the accused to prove that he or she had a lawful excuse for having the implement in possession [8-s 114.10]. [8-s 114.70] Blacken etc face with intent (1) The accused had his or her face blackened or disguised, or possessed [8-s 7] the

means to blacken or disguise his or her face; and (2) the accused intended [6-500] to commit an indictable offence or misdemeanour.

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s 115

CRIMES ACT 1900 (NSW) — PART 4

[8-s 115.15]

[8-s 114.75] Enter or remain on property with intent (1) The accused entered [8-s 111.5] or remained on any part of a building or land

occupied or used in connection therewith; and (2) the accused intended [6-500] to commit an indictable offence in or upon that

building.

[8-s 115] Being convicted offender armed with intent to commit indictable offence 115 Whosoever, having been convicted of any indictable offence, afterwards commits any offence mentioned in section 114, shall be liable to imprisonment for ten years. COMMENTARY ON SECTION 115 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope of section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Necessary averments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Procedure for indicting the accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 115.1] [8-s 115.5] [8-s 115.10] [8-s 115.15] [8-s 115.20] [8-s 115.25]

[8-s 115.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Part 2 cl 9. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 115.5] Scope of section The section creates a separate offence and the prior conviction must be averred in the charge: R v Smith and Bardini (NSWCCA, 11 September 1987, unreported). The procedure to be adopted in respect of the prosecution of an offence under this section was considered in R v Tillott (1991) 53 A Crim R 46; BC9102139, where after the accused was convicted at trial for an offence under s 114, the Crown reindicted the accused for an offence under s 115 alleging a previous conviction and then required the accused to plead guilty to the new indictment. It was held that there was no obligation upon the accused to plead guilty to the new indictment notwithstanding the jury’s earlier verdict. On a trial under the section, the Crown is obliged to prove both the offence under s 114 and the previous conviction (though not the commission of the previous felony itself). As to the form of the indictment where a previous conviction is alleged see s 25 of the Criminal Procedure Act 1986 at [2-s 25]. For the procedure to be followed when indicting under the section, see s 152 of the Criminal Procedure Act 1986 at [2-s 152]. PROOF MATERIAL ON SECTION 115 For the text of s 115, see [8-s 115] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 115.10] Form of indictment After setting out the offence alleged in s 114[27-22,950] add: and that [name of the accused] was at [state place of conviction] on [state date of conviction] convicted of the offence of [state the offence]. [8-s 115.15] Necessary averments It is unnecessary to describe the previous offence in any detail in the indictment: see s 25 Criminal Procedure Act 1986 at [2-s 25].

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Crimes

[s 115 am Act 94 of 1999 s 5 and Sch 3[34] and [70], opn 1 Jan 2000]

[8-s 115.20]

s 115

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

[8-s 115.20] Procedure for indicting the accused The accused should not be indicted for the offence under this section until he or she has been convicted of the subsequent offence and, when he or she has been so convicted, the indictment under s 115 should be presented: see s 152 Criminal Procedure Act 1986 at [2-s 152]. [8-s 115.25] Elements of offence The elements of the offence are — (1) The prosecution must prove both: (i) the subsequent offence [27-22,955]; and (ii) the fact of the earlier conviction [8-s 115.1].

[8-s 115A] Alternative verdicts 115A (1) Aggravated offence reduced to basic offence If on the trial of a person for an offence under section 106(2), 107(2), 109(2), 111(2), 112(2) or 113(2) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 106(1), 107(1), 109(1), 111(1), 112(1) or 113(1) as appropriate, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. (2) Specially aggravated offence reduced to aggravated offence If on the trial of a person for an offence under section 106(3), 107(3), 109(3), 111(3), 112(3) or 113(3) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 106(2), 107(2), 109(2), 111(2), 112(2) or 113(2) as appropriate, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. (3) Specially aggravated offence reduced to basic offence If on the trial of a person for an offence under section 106(3), 107(3), 109(3), 111(3), 112(3) or 113(3) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 106(1), 107(1), 109(1), 111(1), 112(1) or 113(1) as appropriate, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. This subsection does not apply to an offence if the jury proceeds under subsection (2) in relation to it. [s 115A insrt Act 84 of 1994 s 3 and Sch 1(14)]

COMMENTARY ON SECTION 115A Alternative verdicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 115A.5]

[8-s 115A.5] Alternative verdicts The operation and application of s 115A(1) was considered in Sheen v R [2011] NSWCCA 259; BC201109701 at [68]–[93].

DIVISION 5 — LARCENY [Div 5 (formerly Pt 4, Div 1, subdiv 5) am Act 99 of 2009 Sch 2, opn 22 Feb 2010]

[8-s 116] All larcenies to be of same nature 116 Every larceny, whatever the value of the property stolen, shall be deemed to be of the same nature, and shall be subject to the same incidents in all respects, as grand larceny was before the passing of the Act seventh and eighth George the Fourth, chapter twenty-nine.

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s 117

CRIMES ACT 1900 (NSW) — PART 4

[8-s 117.5]

[8-s 117] Punishment for larceny 117 Whosoever commits larceny, or any indictable offence by this Act made punishable like larceny, shall, except in the cases hereinafter otherwise provided for, be liable to imprisonment for five years. COMMENTARY ON SECTION 117 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Larceny . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ownership of property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Subject of larceny . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Taking and carrying away . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Larceny by finding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mens rea of stealing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Claim of right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Motor vehicles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Duplicity of counts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Count of receiving may be added . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Larceny by mistake . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Proof of property stolen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recent possession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alternative verdicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Special verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 117.1] [8-s 117.5] [8-s 117.10] [8-s 117.15] [8-s 117.20] [8-s 117.25] [8-s 117.30] [8-s 117.35] [8-s 117.40] [8-s 117.45] [8-s 117.50] [8-s 117.55] [8-s 117.60] [8-s 117.65] [8-s 117.70] [8-s 117.75] [8-s 117.80] [8-s 117.85]

[8-s 117.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act where the value of the property exceeds $5000, and a Table 2 offence under that Act where the value of the property does not exceed $5000, see at [2-s 260] and [2-Sch 1] Pt 2 cl 3(a). Where the offence is a Table 1 offence the maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. Where the offence is a Table 2 offence the maximum penalty that can be imposed is 2 years imprisonment or a fine of 50 penalty units or both, but where the property does not exceed $2000, the maximum fine is 20 penalty units see at [2-s 268]. [8-s 117.5] Larceny “At common law, larceny is committed by a person who, without the consent of the owner, fraudulently and without claim of right made in good faith, takes and carries away anything capable of being stolen with intent at the time of such taking permanently to deprive the owner thereof . . . Because larceny at common law requires a trespass — it is sometimes described as an offence against possession — a person lawfully in possession of something cannot be guilty of larceny of it”: Ilich v R (1986) 162 CLR 110; 69 ALR 231. As to the theft of property which has previously been stolen so that there is no trespass to the owner, see s 94AA at [8-s 94AA]. At common law the distinction between larceny by a trick and the statutory offences of obtaining property is based upon the intention of the person who parts with the goods or money, so that if the person intends to part with property in the object then the offence is obtaining but if the person intends merely to part with possession then the offence is larceny: R v Ward (1938) 38 SR (NSW) 308; 55 WN 80; Cain v Banks [1959] Qd R 234, but cf R v Crowley (1963) 82 WN (Pt 1) (NSW) 238 where the distinction was doubted. However, by reason of s 180 of the Crimes Act, the distinction does not exist in respect of offences of obtaining by false pretences and that offence applies even though only possession is obtained: R v Petronius-Kuff [1983] 3 NSWLR 178; (1978) 8 A Crim R 18; R v Crowley, above.

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Crimes

[s 117 am Act 50 of 1974 s 6; am Act 94 of 1999 s 5 and Sch 3[35] and [70], opn 1 Jan 2000]

[8-s 117.10]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 117

[8-s 117.10] Ownership of property Larceny is an offence against possession and not against ownership so that a person lawfully in possession cannot commit larceny: Ilich v R (1986) 162 CLR 110; 69 ALR 231; R v Davies [1970] VR 27. The owner of property can be guilty of larceny if he takes the property from the person in lawful possession of it: Rose v Matt [1951] 1 KB 810; R v Cameron (1924) 24 SR (NSW) 302. As to possession see at [8-s 7.1]. For the purposes of larceny, control not amounting to possession may be sufficient: Anic v R (1993) 68 A Crim R 313; Smith v Desmond [1965] AC 960, even where the intention is to control property unknowingly in the possession of the person: Hibbert v McKiernan [1948] 2 KB 142 (golf balls lost by members of the golf club). It is larceny for a person who has purchased property to take it from the possession of the vendor who had a lien over the property: R v Cameron (1924) 24 SR (NSW) 302. There can be constructive possession as in the case of an employer having possession through an employee: Williams v Phillips (1957) 41 Cr App R 5. If the taking of the property is innocent, then the later misappropriation of the property cannot amount to larceny or receiving: R v Steele (1952) 70 WN (NSW) 167; R v Davies [1970] VR 27. Where the prosecution alleges that the ownership of the goods stolen is unknown, it must produce evidence that there was no means of ascertaining ownership: Ellis v Lawson (1987) 33 A Crim R 69; BC8700835. See also [2-s 16.20]. [8-s 117.15] Subject of larceny A thing capable of being stolen is a specific moveable item: R v White (1904) 21 WN(NSW) 104. It must have some value, but a piece of paper is sufficient: R v Daley (1879) 12 SCR (NSW) 151. A cheque form can be stolen: Trumbich v Weston [1986] WAR 169. The property must be tangible and so it has been held not to include information: R v Lloyd [1985] 3 WLR 30, but does include gas: R v White (1853) 169 ER 696. Although a chose in action cannot be taken, a document evidencing the chose in action can be stolen: R v Potisk (1973) 6 SASR 389, but see s 134 as to the stealing of a valuable security. Wild animals are capable of being stolen only if they are in captivity and in the possession of some person: R v Gadd [1911] QWN 31 (where the property was bees). It is a question of law for the trial judge to determine whether the animal is wild by nature: R v Drinkwater (1981) 27 SASR 396. At common law real property and fixtures could not be the subject of larceny: Billing v Pill [1954] 1 QB 70 (where the property was a temporary building which it was held could be stolen), but see ss 139 and 154 as to the stealing of fixtures, s 140 as to stealing trees. Property which has been abandoned cannot be stolen: R v White (1912) 7 Cr App R 266; R v Woodman [1974] QB 754. Abandonment requires more than an intention to cease to retain possession: Hibbert v McKiernan [1948] 2 KB 142; Williams v Phillips (1957) 41 Cr App R 5. Abandonment occurs where the owner is indifferent to any asportation of the goods by any other person: Donoghue v Coombe (1987) 45 SASR 330, where the distinction between the belief that the owner cannot be found and a belief that the goods have been abandoned was emphasised. See also R v Thurborn (1848) 169 ER 293 at 296. Nor can a thing in which no person has any property be the subject of larceny: Doodeward v Spence (1908) 6 CLR 406 (a corpse can be the subject of larceny only if it is being retained for scientific study). A prohibited drug can be the subject of larceny even though the person may have no right to have possession of the drug: R v Waterhouse (1911) 11 SR (NSW) 217; Anic v R (1993) 68 A Crim R 313. [8-s 117.20] Taking and carrying away The taking must amount to a trespass against the person in possession of the property, although that person may not be the owner: Ilich v R (1986) 162 CLR 110; 69 ALR 231; R v Davies [1970] VR 27; Minigall v McCammon [1970] SASR 82 where taking was defined as a direct physical interference without lawful justification, but cf s 93J in respect of property previously stolen and out of possession of the true owner. There must be not only a taking but also a carrying away of the property but, provided there is an intention to permanently deprive the person in possession of the goods, the slightest movement of the property is sufficient: Wallis v Lane [1964] VR 293. There must be a positive act by the accused in relation to the property: R v Thomas (1953) 37 Cr App R 169. Larceny can be committed where the accused moves property already unlawfully moved by another where the

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CRIMES ACT 1900 (NSW) — PART 4

[8-s 117.30]

offence can be considered to be a continuing one: R v McDonald [1992] 2 Qd R 634, or when the property is moved by the agent of the accused: R v Pittman (1862) 172 ER 192. Where the accused has been unknowingly in custody of property and later takes or uses the property when he discovers it, he can be guilty of larceny of the property: R v Finlayson (1964) 3 SCR (NSW) 3; R v Venables (1908) 8 SR 612; (1908) 25 WN (NSW) 190; R v O’Brien (1921) 21 SR 136; R v Kindon (1957) 41 Cr App R 208; R v Buttle (1960) SR (NSW) 320; (1959) 77 WN (NSW) 154. The accused can be convicted of attempted stealing where there is no movement of the property: R v Bloxham (1943) 29 Cr App R 37. The taking must be without the consent of the owner: Croton v R (1967) 117 CLR 326, where it was held not to be larceny to take money from a bank account notwithstanding that the taking was unauthorised by the joint owner of the account. Where there is consent to the taking, even though the person giving the property is mistaken as to the recipient, there is no larceny: Kennison v Daire (1985) 38 SASR 404. It can be larceny to steal from a machine because in some situations there can be said to be no consent to the taking in the circumstances and, therefore, it is larceny to obtain cigarettes from a vending machine by the use of slugs: R v Hands (1887) 16 Cox CC 188, or to use a card to obtain money from an automatic teller machine where the accused knows that the account is closed: Kennison v Daire (1986) 160 CLR 129; 64 ALR 17; R v Evenett; Ex parte A-G (Qld) [1987] 2 Qd R 753; 24 A Crim R 330, where it was held there was no consent where the customer used the card in contravention of the conditions imposed on its use. The consent of the owner can be established by a licence given by the owner to deal with the goods in some way but a breach of the licence will result in a lack of consent: Humes v Townsend (1989) 4 WAR 196 and Kolosque v Miyazaki (NSWSC, Dowd J, 17 February 1995, unreported, BC9501931); (1995) 2 Crim LN 14 [344], where goods were taken from the shelf of a department store with no intention of paying for them. Where goods were handed to the defendant by a shop assistant employed by the owner without that person’s authorisation, it was held that there could still be a larceny because possession remained in the owner and there was no consent to the taking: Ellis v Lawson (1987) 33 A Crim R 69; BC8700835. [8-s 117.25] Larceny by finding A person who finds and takes lost property cannot be convicted of larceny by finding unless the person at the time of taking believes that the true owner can be found by taking reasonable steps but intends to keep the property from the true owner: R v MacDonald [1983] 1 NSWLR 729, where it was held that such a belief can be inferred from the facts relating to the finding. The intention to keep the goods from the true owner must exist at the time of the taking: Donoghue v Coombe (1987) 45 SASR 330, unless the initial taking was a trespass which continued up to the time the intention to steal was formed: Minigall v McCammon [1970] SASR 82, where the accused found and kept a wallet but did not form the intent to steal it until two days later when he looked inside it. [8-s 117.30] Mens rea of stealing There must be an intent to permanently deprive the owner of the property which intent must exist at the time of the taking, so that if the obtaining of the property is innocent a later intent to steal is insufficient: R v Matthews (1950) 34 Cr App R 55. If the accused takes the property without having decided whether to keep it or not, he does not commit larceny: R v Easom [1971] 2 QB 315, where the accused took a handbag to see whether there was anything worth stealing, but cf Sharp v McCormick [1986] VR 869, where it was held to be larceny where the accused took part of a motor vehicle intending to keep it if it fitted his own car. Changing the nature of the property may be sufficient: R v Smails (1957) 74 WN 150, where railway sleepers were split up. The change in the condition of the property must, however, be substantial and not that which would occur by reason of the normal use of the property: R v Bailey [1924] QWN 38, where it was held that where the accused had taken a car and used all the petrol he could not be convicted of stealing the car but only the petrol, and R v Duru [1973] 3 All ER 715 as to the change in nature of a cheque once it is honoured.

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Crimes

s 117

[8-s 117.30]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 117

An intention to return the property or (in the case of money) an equivalent amount of money to the owner is not a defence to a charge of larceny if the accused has appropriated the property for his own use or benefit or for that of another person: s 118 see at [8-s 118]. An intent to permanently deprive was held to exist where the accused took property from a store intending to return it to claim a refund: Lowe v Hooker [1987] Tas R 153; (1987) 35 A Crim R 90. There was no such intention where the accused took a handbag to see whether there was anything inside it worth stealing but always intending to return the handbag and the contents that he did not want: R v Easom [1971] 2 QB 315. However, an intent to permanently deprive will not be sufficient mens rea unless there is also some dishonesty or moral obloquy attached to the taking of the property: R v Weatherstone (NSWCCA, Street CJ, 20 August 1987, unreported, BC8701208); (1987) 8 Petty SR 3729 applying R v Smails (1957) 74 WN 150. Where the defendant stole goods intending to return them to the store in order to obtain a “refund”, there was evidence of an intention to permanently deprive the owner: Lowe v Hooker [1987] Tas R 153; (1987) 35 A Crim R 90. See also s 118. [8-s 117.35] Claim of right In R v Fuge (2001) 123 A Crim R 310; [2001] NSWCCA 208; BC200102871; (2001) 8 Crim LN 45 [1300], Wood CJ at CL reviewed the authorities in relation to a claim of right at [24] as follows: (a) The claim of right must be one that involves a belief as to the right to property or money in the hands of another: [R v] Langham (1984) 36 SASR 48; (b) The claim must be genuinely, ie honestly held, it not being to the point whether it was well founded in fact or law or not: [R v] Nundah (1916) 16 SR (NSW) 482; [R v] Bernhard [1938] 2 KB 264; [R v] Lopatta (1983) 35 SASR 101 at 107; Walden v Hensler [(1987) 163 CLR 561; 75 ALR 173]; and Langhamat 52-53; (c) While the belief does not have to be reasonable: Nundahat 485-490; Langhamat 49; and [R v] Kastratovic [(1985) 42 SASR 59] 19 A Crim R 28, a colourable pretence is insufficient: [R v] Dillon (1878) 1 SCR (NS) (NSW) 159 and [R v] Wade (1869) 11 Cox CC 549; (d) The belief must be one of a legal entitlement to the property and not simply a moral entitlement: Bernhard and Harris v Harrison [1963] Crim LR 497; (e) The existence of such a claim when genuinely held, may constitute an answer to a crime in which the means used to take the property involved an assault, or the use of arms; the relevant issue being whether the accused had a genuine belief in the legal right to the property rather than a belief in a legal right to employ the means in question to recover it: [R v] Love (1989) 17 NSWLR 608 at 615–616; [R v] Salvo [1980] VR 401; Langhamat 58; Kastratovicat 66; Barker [v R] (1983) 153 CLR 338 [47 ALR 1]; [R v] Williams (1986) 21 A Crim R 460; and see also [R v] Boden (1844) 1 Car & Kir 395; (f) The claim of right is not confined to the specific property or banknotes which were once held by the claimant, but can also extend to cases where what is taken is their equivalent in value, of which Langham and Lopatta provide examples; although that may be qualified when, for example, the property is taken ostensibly under a claim of right to hold them by way of safekeeping, or as security for a loan, yet the actual intention was to sell them: [R v] Lenard [(1992) 57 SASR 164] 58 A Crim R 123; (g) The claim of right must, however, extend to the entirety of the property or money taken. Such a claim does not provide any answer where the property or money taken intentionally goes beyond that to which the bona fide claim attaches: Astor v Hayes (1988) 38 A Crim R 219 at 222; (h) In the case of an offender charged as an accessory, what is relevant is the existence of a bona fide claim in the principal offender or offenders, since there can be no accessorial liability unless there has in fact been a foundational offence: [R v] Gregory LR 1 CCR 77 at 79; See [R v] Lun (1932) 32 SR (NSW) 363; [R v] Richards (1974) QB 776 and [R v] Howe [1987] AC 417 [[1987] 1 All ER 771], and unless the person charged as an accessory, knowing of the essential facts which made what was done a crime, intentionally aided, abetted, counselled or procured those acts: Giorgianni [v R] (1985)

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s 117

CRIMES ACT 1900 (NSW) — PART 4

[8-s 117.75]

156 CLR 473 [58 ALR 641]; [R v] Stokes and Difford (1990) 51 A Crim R 25 and [R v] Buckett [(1995) 132 ALR 669] 79 A Crim R 303; (i) It is for the Crown to negative a claim of right where it is sufficiently raised on the evidence, to the satisfaction of the jury: Lopattaat 108, Astor v Hayes (1988) 38 A Crim R 219, Lenard and Williamsat 475. The claim of right can be in respect of another person’s right to the property where the accused is assisting that person to recover the property: R v Sanders (1991) 57 SASR 102. [8-s 117.40] Motor vehicles As to stealing of motor vehicles see ss 154A and 154AA of the Crimes Act at [8-s 154A] and [8-s 154AA].

[8-s 117.50] Count of receiving may be added Section 384 Crimes Act, but such a count should be added where the evidence is as consistent with receiving as larceny: R v Seymour [1954] 1 WLR 678. In such a case, where the accused is convicted on one count only, there may be a verdict on either count or a special verdict under s 121 of the Crimes Act may be given. Sembles 121 applies to summary hearings: see Kassis v Katsantonis [1984] 3 NSWLR 330. [8-s 117.55] Larceny by mistake Larceny by a mistake was considered in Ilich v R (1986) 162 CLR 110; 69 ALR 231, where the accused received more money from the victim than either of them intended, but on later discovering the mistake kept the overpayment. It was held in that case that the accused’s actions did not amount to larceny because the accused acquired ownership at the time of the passing of the money and at a later time could not form the intention to deprive himself of the ownership of it. It was also held that, generally, when money passes into currency ownership goes with possession. Larceny by mistake will be made out only where consent is negatived by a fundamental mistake as to the identity of the recipient, the identity of the property, or the quantity of the goods handed over: R v Potisk (1973) 6 SASR 389; R v Brenner [1990] Tas R 131. [8-s 117.60] Proof of property stolen The prosecution is required to specify the property stolen in the charge with particularity, however it is unnecessary for the prosecution to prove that all the property stated was stolen by the accused: R v Radic (2001) 122 A Crim R 70; [2001] NSWCCA 174; BC200102791; (2001) 8 Crim LN 38 [1288], where it was held that the accused could not plead guilty to a charge if he denied having stolen any of the property specified. [8-s 117.65] Recent possession

As to recent possession, see at [8-s 188.25].

PROOF MATERIAL ON SECTION 117 For the text of s 117, see [8-s 117] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 117.70] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did steal [describe property taken], the property of [name of owner]. [8-s 117.75] Elements of offence The elements of the offence are — (1) The accused took and carried away [8-s 117.20] property [8-s 4]; and (2) that property belonged to another person [8-s 117.10]; and (3) the accused intended [6-500] to permanently deprive the owner of that property

[8-s 117.30]; and (4) the taking was done without the consent of the owner [8-s 117.20].

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[8-s 117.45] Duplicity of counts As to duplicity of counts in an information see R v Rye (1909) 2 Cr App R 155. An information alleging that property was taken between two dates is not bad for duplicity if the information alleges that the property was taken at the one time. Where property is taken at different times the prosecution is not required to elect upon which taking it will proceed: s 119 of the Crimes Act.

[8-s 117.80]

s 117

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

[8-s 117.80] Alternative verdicts Where on the trial of person for larceny, it appears that the accused took the subject property in such manner as to amount to an offence nominated under s 120, the jury may acquit that accused of the larceny charged, and find the accused guilty of that other offence: see s 120 at [8-s 120]. Where, upon the trial of a person for larceny, it appears that the accused has committed an offence of fraudulent appropriation, the jury may return a verdict accordingly: see s 124 at [8-s 124]. Where on the trial of a person for larceny, it appears that the property in question was taken, appropriated, or retained, under circumstances amounting to a minor indictable offence the jury may acquit the accused of the offence charged and find the accused guilty of the minor indictable offence: see s 123 at [8-s 123]. As to possible verdicts in the trial of any two or more persons charged with both larceny and receiving of that property: see s 122 at [8-s 122]. [8-s 117.85] Special verdict Where, on the trial of a person charged with a larceny-type offence and receiving of that property, the jury specifically find that he or she either stole, or unlawfully received such property and that were unable to say which of those offences was committed: see s 121 at [8-s 121].

[8-s 118] Intent to return property no defence 118 Where, on the trial of a person for larceny, it appears that the accused appropriated the property in question to the accused’s own use, or for the accused’s own benefit, or that of another, but intended eventually to restore the same, or in the case of money to return an equivalent amount, such person shall not by reason only thereof be entitled to acquittal. [s 118 am Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998]

COMMENTARY ON SECTION 118 Appropriation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 118.1]

[8-s 118.1] Appropriation If the accused acts in relation to the property so as to usurp the rights of the true owner or in a way inconsistent with the rights of the true owner there has been an appropriation: Foster v R (1967) 118 CLR 117; R v Morris [1983] 3 All ER 288.

[8-s 119] Verdict where several takings proved 119 Where, on the trial of a person for larceny, it appears that the property alleged in any count to have been stolen at one time, was taken at different times, the prosecutor shall not be required to elect upon which taking the prosecutor will proceed, unless the Judge so orders: Provided always that evidence shall not in any such case be given of any taking which occurred more than six months in point of time from any other of such takings. [s 119 am Act 2 of 1929 s 5; Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998]

[8-s 120] Trial for larceny — verdict of embezzlement etc 120 Where, on the trial of a person for larceny, it appears that the person took the property in such manner as to amount in law to the offence of embezzlement or fraudulent misappropriation, or the fraudulent application, or disposition, of property as a clerk, or servant, or person employed in the Public Service, or of obtaining property

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s 122

CRIMES ACT 1900 (NSW) — PART 4

[8-s 122]

by any false pretence or by any wilfully false promise, or partly by a false pretence and partly by a wilfully false promise, the jury may acquit the person of the larceny charged, and find the person guilty of such other offence, and the person shall be liable to punishment accordingly. [s 120 am Act 2 of 1929 s 6; Act 50 of 1974 s 6; Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998]

[8-s 121] Verdict of “larceny or receiving” 121 Where, on the trial of a person charged with larceny, or any offence which includes larceny, and, also, with having unlawfully received the property charged to have been stolen, knowing it to have been stolen, the jury find specially that the person either stole, or unlawfully received, such property, and that they are unable to say which of those offences was committed by the person, such person shall not by reason thereof be entitled to acquittal, but shall be liable to be sentenced for the larceny, or for the unlawful receiving, whichever of the two offences is subject to the lesser punishment.

COMMENTARY ON SECTION 121 Indictment for larceny and receiving . . . . . . . . . . . . . . . . . . . . . . . . . . . Special verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 121.1] [8-s 121.5]

[8-s 121.1] Indictment for larceny and receiving An indictment can contain alternative counts of stealing and receiving without the prosecutor being put to an election: see Sch 3, cl 7 of the Criminal Procedure Act at [2-Sch 3]. [8-s 121.5] Special verdict Where the jury has open to it a special verdict under s 121, the judge should see to it in his directions that the jury understand a verdict of not guilty is required on each of the counts for stealing and receiving: Saleam v R (1989) 16 NSWLR 14; 39 A Crim R 406 at 114–15; R v Clarke (1995) 78 A Crim R 226; BC9504366; 2 Crim LN 28 [379]. If the Crown seeks to rely upon the special verdict it should open on the availability of such a verdict or at least make it clear that such a verdict is available before the summing up of the trial judge: R v Walters (1992) 62 A Crim R 16; BC9201880 where it was held that the failure to do so will rarely result in prejudice to the accused. The special verdict is only available where the property charged is identical in both the charge of receiving and the charge of stealing: R v Clarke, above and R v Nguyen (NSWCCA, Hunt CJ, Ireland J and Bell AJ, 20 February 1997, unreported, BC9700251); (1997) 4 Crim LN 16 [669] where R v Clarke, above was upheld notwithstanding the decision of the High Court in Gilson v R (1991) 172 CLR 353; 100 ALR 729; BC9102625. In Gilson v R, above, the High Court considered the situation where there was no provision for a special verdict, but where the jury was satisfied that the accused either stole the property or received it, and held that in such a situation the jury were entitled to convict of the less serious offence, that normally being the one which carries the lesser penalty. Before the jury can give a verdict under the section they must unanimously agree firstly that the accused either stole the property or received it, and secondly that they are unable to say which of those offences were committed: R v Nguyen, above. Where a jury found special verdicts under s 121 but those verdicts were quashed on appeal, it was held that the Court of Criminal Appeal did not have power to order a new trial: R v Campbell [2004] NSWCCA 314; BC200406256; (2004) 11 Crim LN 93 [1768].

[8-s 122] Verdict where persons indicted for joint larceny or receiving 122

On the trial of any two, or more, persons charged with larceny, and also with

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[s 121 am Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998; am Act 94 of 1999 s 5 and Sch 3[21], opn 1 Jan 2000]

[8-s 122]

s 122

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

having unlawfully received property, the jury may find all, or any, of such persons guilty, either of stealing, or unlawfully receiving, the property, or part or parts thereof, or may find one, or more, of the said persons guilty of stealing, and the other, or others, of them guilty of unlawfully receiving the property, or part or parts thereof. [s 122 am Act 94 of 1999 s 5 and Sch 3[21], opn 1 Jan 2000]

[8-s 123] Verdict of minor indictable offence 123 Where, on the trial of a person for larceny, it appears that the property in question was taken, appropriated, or retained, under circumstances amounting to a minor indictable offence, the jury may acquit the person of the offence charged and find the person guilty of the minor indictable offence, and the person shall be liable to punishment accordingly. [s 123 am Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998; am Act 94 of 1999 s 5 and Sch 3[36]-[37], opn 1 Jan 2000]

COMMENTARY ON SECTION 123 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 123.1] Definitions

[8-s 123.1]

As to “serious indictable offence” see [8-s 4].

[8-s 124] Fraudulent appropriation 124 Where, upon the trial of a person for larceny, it appears: (a) that the person had fraudulently appropriated to his or her own use or that of another, the property in respect of which the person is indicted, although the person had not originally taken the property with any fraudulent intent, or (b) that the person had fraudulently retained the property in order to secure a reward for its restoration, the jury may return a verdict accordingly, and thereupon the person shall be liable to imprisonment for two years, or to a fine of 20 penalty units, or both. [s 124 subst Act 10 of 1924 s 9; am Act 50 of 1974 s 6; Act 112 of 1992 s 3 and Sch 1; Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998] Editor’s note: For proof material on s 124, see [27-23,100] behind the “27 – Informations and Indictments” guide card in Vol 4.

PROOF MATERIAL ON SECTION 124 For the text of s 124, see [8-s 124] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 124.5] Form of indictment This offence cannot be the subject of a separate charge, as s 124 creates an offence which is found by way of jury verdict upon a charge of larceny. [8-s 124.10] Elements of offence

The elements of the offence are —

[8-s 124.15] Fraudulent appropriation (1) The accused fraudulently [8-s 134.5] appropriated [8-s 118.1] to his/her own

use or to the use of another, property [8-s 4]; and (2) the accused was indicted in relation to the theft of that property. It is not

necessary to prove that the accused had originally taken the property with any fraudulent intent.

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s 125

CRIMES ACT 1900 (NSW) — PART 4

[8-s 125.15]

[8-s 124.20] Fraudulently retain (1) The accused fraudulently [8-s 134.5] retained property [8-s 4], in order to

secure a reward for its restoration; and (2) the accused was indicted in relation to the theft [8-s 117] of that property.

[8-s 125] Larceny by bailee 125 Whosoever, being a bailee of any property, fraudulently takes, or converts, the same, or any part thereof, or any property into or for which it has been converted, or exchanged, to his or her own use, or the use of any person other than the owner thereof, although he or she does not break bulk, or otherwise determine the bailment, shall be deemed to be guilty of larceny and liable to be indicted for that offence. The accused shall be taken to be a bailee within the meaning of this section, although he or she may not have contracted to restore, or deliver, the specific property received by him or her, or may only have contracted to restore, or deliver, the property specifically.

Editor’s note: For proof material on s 125, see [27-23,150] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 125 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of the offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Bailment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Conversion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intent to defraud . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 125.1] [8-s 125.5] [8-s 125.10] [8-s 125.15] [8-s 125.20] [8-s 125.25] [8-s 125.30] [8-s 125.35]

[8-s 125.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act where the value of the property exceeds $5000 and a Table 2 offence under that Act where the value of the property does not exceed $5000, see at [2-s 260] and [2-Sch 1] Part 2 clause 3. Where the offence is a Table 1 offence the maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. Where the offence is a Table 2 offence the maximum penalty that can be imposed is 24 months imprisonment or a fine of 50 penalty units or both, but where the property does not exceed $2000, the maximum fine is 20 penalty units: see at [2-s 268]. [8-s 125.5] Form of charge The accused can be charged with simple stealing and it is no longer necessary to specify that the accused stole the property as a bailee. [8-s 125.10] Elements of the offence (1) The accused was in possession of the property as a bailee and (2) he took or converted the property to his use or the use of another person and (3) he acted fraudulently. [8-s 125.15] Bailment There must be an actual bailment of the goods not obtained by fraud: R v Millard (1906) 23 SR (NSW) 38. Bailment implies three things: (1) delivery of a specific object from one person to another; (2) the object remains the property of the bailor; (3) the object, or something into which it is converted, should be returned to the bailor: Slattery v R (1905) 2 CLR 546.

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[s 125 am Act 50 of 1974 s 6; Act 48 of 1987 s 3 and Sch 4(4); Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998]

[8-s 125.15]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 125

In R v Bennie [1953] VLR 583 it was held there was no bailment where the accused sold a car, over which he had executed a bill of sale without the consent of the holder of the bill of sale, because there had been no delivery of the property to the victim. A stakeholder or other person, to whom money has been delivered, is not necessarily a bailee and whether he is or not depends upon the particular facts, especially the conditions upon which the money was transferred: R v Ward (1938) 38 SR (NSW) 308; 55 WN 80; Reece v Harris [1943] SASR 127; Slattery v R, above at 561. There is no bailment where ownership is transferred: R v Gilbert [1953] SASR 163, nor where mere custody and not possession is transferred: O’Toole v Samuels (1972) 3 SASR 30. As to a bailment of money see R v Ward (1938) 38 SR (NSW) 308; 55 WN 80. If the true position is a relationship of debtor and creditor, then the accused is not guilty under this section: Slattery v R, above. [8-s 125.20] Conversion The defendant converts the goods if he deals with them in a manner inconsistent with the rights of the true owner with the intention to deny the owner’s rights or to assert a right inconsistent with that of the owner. He must assume the full title of ownership or assert a right to pass the full title: Ilich v R (1986) 162 CLR 110 at 115-16; 69 ALR 231. A sale of the property contrary to the terms of the bailment is a conversion, as is an attempted sale: Rogers v Arnott [1960] 2 QB 244; R v Jackson (1864) 9 Cox CC 505. But query whether a pawning of the goods will be a conversion; it was held not to be in R v Wynn (1887) 16 Cox CC 231 if the bailee honestly intended to redeem the goods but cf R v Hann (1883) SALR 119. [8-s 125.25] Intent to defraud There is some doubt as to whether it is necessary for the prosecution to prove an intent to permanently deprive the owner of the property or whether it is sufficient that there merely be a dishonest breach of the bailment. The older English cases have held that the offence requires an intent analogous to larceny so that the bailee must intend to convert the goods permanently to his use: R v Wynn (1887) 16 Cox CC 231. However, in R v Hann (1883) SALR 119 it was held in respect of a provision in South Australia that it was unnecessary to prove an intent to permanently deprive. In Glenister v R [1980] 2 NSWLR 597; (1980) 3 A Crim R 210, it was held that “fraudulently” meant “dishonestly” and R v Hann, above was referred to with approval. PROOF MATERIAL ON SECTION 125 For the text of s 125, see [8-s 125] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 125.30] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did steal [describe property taken], the property of [name of owner]. It is generally the practice of the Crown to indicate that the charge of larceny is laid pursuant to s 125 by an annotation to that effect upon the backsheet of the indictment. [8-s 125.35] Elements of offence The elements of the offence are — (1) The accused was in the possession [8-s 7] of the property as a bailee; and (2) the accused took [8-s 117.5] or converted the property to his/her use or the use

of another person; and (3) the accused acted fraudulently [8-s 134.5].

[8-s 126] Stealing cattle or killing with intent to steal 126

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

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s 126

CRIMES ACT 1900 (NSW) — PART 4

[8-s 126.20]

shall be liable to imprisonment for fourteen years. [s 126 am Act 50 of 1974 s 6; am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000] Editor’s note: For proof material on s 126, see [27-23,200] behind the “27 – Informations and Indictments” guide card in Vol 4.

[8-s 126.1] [8-s 126.5] [8-s 126.10] [8-s 126.15] [8-s 126.20] [8-s 126.25] [8-s 126.30] [8-s 126.35] [8-s 126.40]

[8-s 126.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act where the value of the property exceeds $5000 and a Table 2 offence under that Act where the value of the property does not exceed $5000, see at [2-s 260] and [2-Sch 1] Part 2 clause 3. Where the offence is a Table 1 offence the maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. Where the offence is a Table 2 offence the maximum penalty that can be imposed is 24 months imprisonment or a fine of 50 penalty units or both, but where the property does not exceed $2000, the maximum fine is 20 penalty units: see at [2-s 268]. [8-s 126.5] Elements of the offence The elements of this offence are that the accused did (a) steal any cattle or, (b) wilfully kill any cattle with intent to steal the carcass, skin or other part thereof and (c) such cattle were the property of the person named in the indictment or of a person unknown. [8-s 126.10] Definitions As to “cattle” see s 4 at [8-s 4]. As to “stealing”, altering or tampering with brands of sheep with intent to appropriate them to the accused’s own use is evidence of stealing: R v Venables (1908) 8 SR 612; (1908) 25 WN (NSW) 190. Where possession was previously obtained wrongfully, but not feloniously, a subsequent attempt to fraudulently dispose of the animal by the accused may amount to larceny: R v Bailey (1907) 24 WN (NSW) 23. As to “wilfully kill . . . with intent” see R v Buttle (1960) SR (NSW) 320; (1959) 77 WN (NSW) 154 sheep joined accused’s flock on the highway without his knowledge that they were not his constituted larceny. As to “powers of entry of justices, inspectors and police to licensed slaughter-houses” see s 12 Cattle Slaughtering and Diseased Animals and Meat Act 1902 (NSW). As to “ownership of cattle” registration of an official brand is prima facie evidence of ownership. Brands, earmarks and eartags can be evidence of ownership of cattle: R v Hall (1903) 3 SR (NSW) 307; (1903) 20 WN (NSW) 74. [8-s 126.15] Intoxication An offence under this section which is alleged to have been committed after 16 August 1996, to the extent that an element of the offence under this section requires a person to intend to cause the specific result necessary for the offence, is an offence of specific intent for the purpose of Pt 11A Crimes Act 1900 relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. PROOF MATERIAL ON SECTION 126 For the text of s 126, see [8-s 126] behind the “8 – Crimes Act” guide card in Vol 1.

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COMMENTARY ON SECTION 126 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of the offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Stealing cattle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Killing cattle with intent to steal . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alternative verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 126.20]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 126

[8-s 126.20] Form of indictment [8-s 126.25] Stealing cattle That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales stole [describe cattle taken], the property of [name of owner]. [8-s 126.30] Killing cattle with intent to steal That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales wilfully killed [describe cattle] with intent to steal the carcass/skin/[part] of cattle the property of [name of owner]. It is generally the practice of the Crown to indicate that the charge of larceny is laid pursuant to s 126 by an annotation to that effect upon the backsheet of the indictment. [8-s 126.35] Elements of offence The elements of the offence are — (1) The accused either: (i) stole [8-s 117.5][27-23,055] any cattle [8-s 4]; or (ii) wilfully killed any cattle [8-s 4] with intent [6-500] to steal the carcass or other part thereof; and (2) that cattle was the property of another person [8-s 126.5]. [8-s 126.40] Alternative verdict Where it is uncertain that the accused stole the animal, there may be a conviction of stealing the carcass, skin or part of the animal, or of killing the animal with that intent: see s 128 at [8-s 128]. If the accused is charged with killing the animal there may be a conviction for theft: see s 129 at [8-s 129]. The accused may be convicted of an offence under s 131: see s 130 at [8-s 130].

[8-s 127] Stealing or killing cattle — uncertainty as to sex or age not to entitle to acquittal 127 Where, on the trial of a person for an offence under section 126 it appears that the person stole, or killed, an animal of the species described in the indictment, but it is uncertain on the evidence what was its sex, or age, such person shall not be entitled to acquittal by reason only of such uncertainty. [s 127 am Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998]

[8-s 128] Trial for stealing cattle — verdict of stealing skins 128 Where, on the trial of a person for stealing cattle, the jury are not satisfied that the person is guilty thereof, but are satisfied that the person is guilty of stealing the carcass, or skin, or part, of such cattle, or of killing the said cattle within section 126, they may acquit the person of the offence charged, and find the person guilty of such last-mentioned stealing, or killing, and the person shall be liable to punishment accordingly. [s 128 am Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998]

[8-s 129] Trial for killing cattle — verdict of stealing 129 Where, on the trial of a person for the offence of killing cattle within the meaning of section 126, the jury are not satisfied that the person is guilty thereof, but are satisfied that the person is guilty of stealing such cattle, they may acquit the person of the offence charged, and find the person guilty of such stealing, and the person shall be liable to punishment accordingly. [s 129 am Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998]

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s 131

[8-s 131.10]

CRIMES ACT 1900 (NSW) — PART 4

[8-s 130] Trial for stealing cattle — verdict of misdemeanour 130 Where, on the trial of a person for stealing cattle, the jury are not satisfied that the person is guilty thereof, but are satisfied that the person is guilty of an offence within section 131, they may acquit the person of the offence charged, and find the person guilty of an offence under the said last mentioned section, and the person shall be liable to punishment accordingly. [s 130 am Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998]

[8-s 131] Unlawfully using etc another person’s cattle Whosoever: takes and works, or otherwise uses, or takes for the purpose of working, or using, any cattle the property of another person without the consent of the owner, or person in lawful possession thereof, or takes any such cattle for the purpose of secreting the same, or obtaining a reward for the restoration or pretended finding thereof, or for any other fraudulent purpose, or fraudulently brands, or ear-marks, or defaces, or alters, the brands or ear-marks of any cattle the property of another person, shall be liable to imprisonment for three years. Editor’s note: For proof material on s 131, see [27-23,250] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 131 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ownership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Use or work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Taking and working etc cattle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Taking cattle to secrete etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Fraudulently branding etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alternative verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 131.1] [8-s 131.5] [8-s 131.10] [8-s 131.15] [8-s 131.20] [8-s 131.25] [8-s 131.30] [8-s 131.35] [8-s 131.40] [8-s 131.45]

[8-s 131.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act where the value of the property exceeds $5000 and a Table 2 offence under that Act where the value of the property does not exceed $5000, see at [2-s 260] and [2-Sch 1] Part 2 clause 3. Where the offence is a Table 1 offence the maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. Where the offence is a Table 2 offence the maximum penalty that can be imposed is 24 months imprisonment or a fine of 50 penalty units or both, but where the property does not exceed $2000, the maximum fine is 20 penalty units: see at [2-s 268]. [8-s 131.5] Definitions As to “consent”, fraud vitiates consent: Ex parte Walton (1885) 1 WN (NSW) 141. Use of any animal for a purpose other than that consented to may amount to an offence under this section: R v West (1880) 1 LR(NSW) 329. [8-s 131.10] Ownership As to “ownership” see definitions at [8-s 126.10]. Where ownership is difficult to determine due to a bona fide dispute between the parties: Ex parte McDonald (1880) 1 LR(NSW) 252; or due to a seizure under a claim of right: Ex parte Work (1887) 3 WN (NSW) 125 the offence will not be made out.

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131

[8-s 131.15]

s 131

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

[8-s 131.15] Use or work As to “use or work” the following have been held to constitute an offence: milking a cow (Ex parte Bowman (1866) 6 SCR (NSW) 15) shearing sheep (Emmerson v Clarke (1872) 3 QSCR 76) using another’s stallion for a stud: R v Taylor (1904) 21 WN (NSW) 43. PROOF MATERIAL ON SECTION 131 For the text of s 131, see [8-s 131] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 131.20] Form of indictment [8-s 131.25] Taking and working etc cattle That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, unlawfully took and worked/used/took for the purpose of working/using, [describe cattle], the property of [name of owner] without the consent of [name of owner]/without the consent of [name of custodian], the person in lawful possession of the said cattle. [8-s 131.30] Taking cattle to secrete etc That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, took for the purpose of secreting the same/obtaining a reward for the restoration or pretended finding of [describe cattle] the property of [name of owner] without the consent of [name of owner]/without the consent of [name of custodian], the person in lawful possession of the said cattle. [8-s 131.35] Fraudulently branding etc That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, fraudulently branded/earmarked/defaced/altered the brands/ear-marks of [describe cattle], the property of [name of owner]. [8-s 131.40] Elements of offence The elements of the offence are — (1) The accused either took to use or work [8-s 131.5], or purported to use or work

any cattle the property of another person without the consent of the owner or the person in lawful custody; or (2) took any cattle [8-s 4] for the purpose of secreting the same for a fraudulent [8-s 134.5] purpose; or (3) fraudulently [8-s 134.5] branded or earmarked, or defaced or altered the brands or earmarks of any cattle. [8-s 131.45] Alternative verdict On the trial of a person for cattle stealing, the jury may acquit an account of the offence charged, and find that accused guilty of an offence under this section: s 130 at [8-s 130].

[8-s 132] Stealing dogs 132 Whosoever, having been summarily convicted under this or any former Act, of any such offence as is hereinafter in this section mentioned, afterwards, steals any dog, or has unlawfully in his or her possession any stolen dog, or the skin of any stolen dog, knowing such dog to have been stolen, shall be liable to imprisonment for one year. [s 132 am Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998] Editor’s note: For proof material on s 132, see [27-23,300] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 132 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[8-s 132.1]

s 132

CRIMES ACT 1900 (NSW) — PART 4

Previous conviction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Steal dog . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Unlawfully possess stolen dog or skin . . . . . . . . . . . . . . . . . . . . . . . Necessary averments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Procedure for indicting the accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 132.35] [8-s 132.5] [8-s 132.10] [8-s 132.15] [8-s 132.20] [8-s 132.25] [8-s 132.30] [8-s 132.35]

[8-s 132.5] Previous conviction As to the form of an indictment charging a previous offence see at [2-s 25]. As to the arraignment on such an indictment see at [2-s 152]. PROOF MATERIAL ON SECTION 132 For the text of s 132, see [8-s 132] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 132.10] Form of indictment [8-s 132.15] Steal dog That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales stole a dog [describe dog] the property of [name of owner]. And it is further charged that before committing the said offence, namely on [date of alleged previous conviction] at [location of court] in the State aforesaid, the said [name of accused] was convicted of an offence punishable by summary conviction namely [describe conviction offence]. [8-s 132.20] Unlawfully possess stolen dog or skin That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales had unlawfully in his/her possession a stolen dog/the skin of a stolen dog [describe dog] the property of [name of owner], knowing the dog to be stolen. And it is further charged that before committing the said offence, namely on [date of alleged previous conviction] at [location of court] in the State aforesaid, the said [name of accused] was convicted of an offence punishable by summary conviction namely [describe conviction offence]. [8-s 132.25] Necessary averments It is unnecessary to describe the previous offence in any detail in the indictment: see s 152 Criminal Procedure Act 1986 at [2-s 152]. [8-s 132.30] Procedure for indicting the accused The accused should not be indicted for the offence under this section until he or she has been convicted of the subsequent offence and, when he or she has been so convicted, the indictment under s 132 should be presented: see s 152 Criminal Procedure Act 1986 at [2-s 152]. [8-s 132.35] Elements of offence (1) The accused had previously been summarily convicted of stealing a dog

[8-s 503] or skin thereof [8-s 504]; and (2) the accused:

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[8-s 132.1] Summary disposal An offence under s 132 is a Table 1 offence under the Criminal Procedure Act where the value of the dog or skin in respect of which the offence is charged exceeds $5000 (cl 3(c), Table 1, Schedule 1, Criminal Procedure Act at [2-Sch 1]) and a Table 2 offence where it does not exceed $5000 (cl 3(c), Table 2, Schedule 1 at [2-Sch 1]). The maximum term of imprisonment that a Local Court may impose for a s 132 offence which is dealt with as a Table 1 offence is imprisonment for one year, being the maximum term of imprisonment provided by law for the offence: s 267(2) Criminal Procedure Act at [2-s 267]. Instead of imposing a term of imprisonment, a Local Court may impose a fine note exceeding 100 penalty units if the offence is dealt with as a Table 1 offence: s 267(5) at [2-s 267]. Where the offence is a Table 2 offence, the maximum penalty that a Local Court may impose is imprisonment for 12 months or a fine of 50 penalty units, or both, but where the value of the dog or skin does not exceed $2000, the maximum fine is 20 penalty units: s 268(2)(b) at [2-s 268].

[8-s 132.35]

s 132

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

(i) stole [8-s 117.5][27-23,055] a dog; or (ii) unlawfully possessed [8-s 7] any stolen dog or skin, knowing the dog to be stolen.

[8-s 133] Taking money to restore dogs 133 Whosoever corruptly takes any money or reward, directly or indirectly, under pretence, or upon account, of aiding any person to recover any dog which has been stolen, or which is in the possession of any person other than its owner, shall be liable to imprisonment for one year. Editor’s note: For proof material on s 133, see [27-23,350] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 133 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 133.1] [8-s 133.5] [8-s 133.10] [8-s 133.15]

[8-s 133.1] Summary disposal An offence under s 133 is a Table 1 offence under the Criminal Procedure Act where the value of the money or reward in respect of which the offence is charged exceeds $5000 (cl 3(c), Table 1, Schedule 1, Criminal Procedure Act at [2-Sch 1]) and a Table 2 offence where it does not exceed $5000 (cl 3(c), Table 2, Schedule 1 at [2-Sch 1]). The maximum term of imprisonment that a Local Court may impose for a s 133 offence which is dealt with as a Table 1 offence is imprisonment for one year, being the maximum term of imprisonment provided by law for the offence: s 267(2) Criminal Procedure Act at [2-s 267]. Instead of imposing a term of imprisonment, a Local Court may impose a fine not exceeding 100 penalty units if the offence is dealt with as a Table 1 offence: s 267(5) at [2-s 267]. Where the offence is a Table 2 offence, the maximum penalty that a Local Court may impose is imprisonment for 12 months or a fine of 50 penalty units, or both, but where the value of the money or reward does not exceed $2000, the maximum fine is 20 penalty units: s 268(2)(b) at [2-s 268]. [8-s 133.5] Definitions “Receive money” means obtaining for personal use and mere physical possession of money as a messenger is insufficient: R v Worthington [1921] VLR 660. “Obtained corruptly” denotes that the person making the offer did so deliberately and with the intention that the person to whom it was addressed should enter into a corrupt bargain whether or not the offeror intended to follow it through: R v Smith [1960] 2 QB 423 at 428; [1960] 1 All ER 256 at 258. PROOF MATERIAL ON SECTION 133 For the text of s 133, see [8-s 133] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 133.10] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales corruptly took money/reward directly/indirectly under pretence/upon account of aiding [name of person] to recover a dog which had been stolen/was in the possession of [name of person], a person not being its owner. [8-s 133.15] Elements of offence The elements of the offence are — (1) The accused corruptly took any moeny or reward (directly or indirectly); (2) under pretence or upon account of aiding any person to recover any dog; and (3) this dog had been stolen or was in the possession of any person other than its

owner.

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s 134

CRIMES ACT 1900 (NSW) — PART 4

[8-s 134.25]

[8-s 134] Stealing, destroying etc valuable security 134 Whosoever steals, embezzles, or for any fraudulent purpose destroys, cancels, obliterates, or conceals, the whole or any part of any valuable security, shall be liable, as if he or she had stolen a chattel, to be punished as for larceny. [s 134 am Act 50 of 1974 s 6; Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998] Editor’s note: For proof material on s 134, see [27-23,400] behind the “27 – Informations and Indictments” guide card in Vol 4.

[8-s 134.1] [8-s 134.5] [8-s 134.10] [8-s 134.15] [8-s 134.20] [8-s 134.25]

[8-s 134.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act where the value of the property exceeds $5000 and a Table 2 offence under that Act where the value of the property does not exceed $5000, see at [2-s 260] and [2-Sch 1] Pt 2 cl 3. Where the offence is a Table 1 offence the maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. Where the offence is a Table 2 offence the maximum penalty that can be imposed is 12 months imprisonment or a fine of 50 penalty units or both, but where the property does not exceed $2000, the maximum fine is 20 penalty units: see at [2-s 268]. [8-s 134.5] Definitions As to stealing see [8-s 117]. As to “embezzles” see [8-s 157.10]. As to “valuable security” see s 4 at [8-s 4]. Fraudulently means “dishonestly” and is a subjective matter: Glenister v R [1980] 2 NSWLR 597; (1980) 3 A Crim R 210. [8-s 134.10] Civil remedies not affected by conviction evidence of the conviction is not admissible.

See s 138 of the Crimes Act, but

PROOF MATERIAL ON SECTION 134 For the text of s 134, see [8-s 134] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 134.15] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales stole/embezzled/for any fraudulent purpose destroyed/ cancelled/obliterated/concealed the whole/a part of a valuable security, the property of [name of owner]. [8-s 134.20] Elements of offence The elements of the offence are — (1) The accused either: (i) stole [8-s 117.5][27-23,055]; (ii) embezzled [8-s 157.10]; or (iii) for any fraudulent [8-s 134.5] purpose destroyed, cancelled, obliterated or concealed; (2) a valuable security [8-s 4] or part thereof. [8-s 134.25] Statutory proviso Pursuant to s 136, no person shall be convicted of an offence under s 134 in relation to an act done by that person, if he/she first disclosed that act on oath under certain compulsory process: see s 136 at [8-s 136].

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COMMENTARY ON SECTION 134 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Civil remedies not affected by conviction . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Statutory proviso . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 135]

s 135

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

[8-s 135] Stealing, destroying etc wills or codicils 135 Whosoever steals, or, for any fraudulent purpose destroys, cancels, obliterates, or conceals, the whole or any part of any will, codicil, or other testamentary instrument, either during the life of the testator, or after the testator’s death, or whether the same relates to real, or personal estate, or to both, shall be liable to imprisonment for seven years. [s 135 am Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998; am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000] Editor’s note: For proof material on s 135, see [27-23,450] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 135 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Statutory provisos . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 135.1] [8-s 135.5] [8-s 135.10] [8-s 135.15]

[8-s 135.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Part 2 clause 9. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. PROOF MATERIAL ON SECTION 135 For the text of s 135, see [8-s 135] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 135.5] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales stole/for a fraudulent purpose destroyed/ cancelled/obliterated/concealed the whole/a part of a will/codicil/testamentary instrument, namely [describe document including maker if known]. [8-s 135.10] Elements of offence The elements of the offence are — (1) The accused either: (i) stole [8-s 117.5][27-23,055]; or (ii) for any fraudulent [8-s 134.5] purpose destroyed, cancelled, obliterated or concealed; (2) the whole or any part of any will, codicil or other testamentary instrument. [8-s 135.15] Statutory provisos Pursuant to s 136, no person shall be convicted of an offence under s 135 in relation to an act done by that person, if he/she first disclosed that act on oath under certain compulsory process: see s 136 at [8-s 136].

[8-s 136] Proviso to sections 134 and 135 136 No person shall be convicted under section 134 or section 135 in respect of any act done by the person, if, before being charged with the offence, the person first disclosed such act on oath, under compulsory process, in a proceeding instituted in good faith by a party aggrieved, or under compulsory examination in some matter in bankruptcy, or insolvency, or under compulsory examination in some matter in the liquidation of a corporation. [s 136 am Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998]

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s 138

CRIMES ACT 1900 (NSW) — PART 4

[8-s 138.15]

[8-s 137] Civil remedies not affected by conviction 137 (1) Nothing in section 134 or in section 135, nor any proceeding, conviction, or judgment thereupon, shall affect any remedy at law, or in equity, which any party aggrieved would have had if this Act had not been passed. (2) No evidence of the conviction of any person under either of the said sections shall be admissible in any action, or suit, against the person. [subs (2) am Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998]

[8-s 138] Stealing, destroying etc records etc of any court or public office

[s 138 am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000; Act 38 of 2007 s 3 and Sch 1[3], opn 15 Feb 2008] Editor’s note: For proof material on s 138, see [27-23,500] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 138 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Steals or takes records etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Unlawfully cancels records etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Steals or takes records etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Unlawfully cancels records etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 138.1] [8-s 138.5] [8-s 138.10] [8-s 138.15] [8-s 138.20] [8-s 138.25] [8-s 138.30] [8-s 138.35]

[8-s 138.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 2 cl 9. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 138.5] Definitions As to “recklessly” see at [8-s 4A.1]. As to “steals” see annotations to s 117. As to “fraudulently” see at [8-s 134.5]. PROOF MATERIAL ON SECTION 138 For the text of s 138, see [8-s 138] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 138.10] Form of indictment [8-s 138.15] Steals or takes records etc That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, stole/for a fraudulent purpose took a certain (part of a) record/document/writing, namely [describe nature and previous location of record etc] being a record/document/writing relating to [type of court/public offıce], from its place of deposit/from [name of record-keeper etc], then having the lawful custody of the said record/document/writing.

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

[8-s 138.20]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 138

[8-s 138.20] Unlawfully cancels records etc That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales unlawfully and intentionally or recklessly cancelled/obliterated/injured/destroyed a certain (part of a) record/document/writing, namely [describe nature and previous location of record etc], being a record/document/writing relating to [type of court/public office] from its place of deposit/from [name of record-keeper etc], then having the lawful custody of the said records. [8-s 138.25] Elements of offence

The elements of the offence are —

[8-s 138.30] Steals or takes records etc (1) The accused stole [8-s 117.5][27-23,055], or for a fraudulent [8-s 134.5]

purpose took from its place of deposit for the time being, or from any person having the lawful custody thereof, the whole or any part of a record, document or writing [29-45,200]; and (2) that record, document or writing: (i) was of or belonged to any court; (ii) related to any matter or cause, civil or criminal, pending or terminated in any court; or (iii) related to the business of any office or employment under Her Majesty, and being in any public office. [8-s 138.35] Unlawfully cancels records etc (1) The accused unlawfully and intentionally or recklessly [8-s 4A.1] cancelled,

obliterated, injured or destroyed, the whole or any part of a record, document or writing [29-45,200]; and (2) that record, document or writing: (i) was of or belonged to any court; (ii) related to any matter or cause, civil or criminal pending or terminated in any court; or (iii) related to the business of any office or employment under Her Majesty, and being in any public office.

[8-s 139] Stealing etc metal, glass, wood etc fixed to house or land 139 Whosoever steals, or rips, cuts, severs, or breaks with intent to steal, any glass, or woodwork, belonging to any building, or any metal, or any utensil, or fixture, whether made of metal or other material, or of both respectively, fixed in, or to, any building, or anything made of metal, fixed in any land being private property, or used as a fence to any dwelling-house, garden, or area, or being in any square, or street, or in, or on, any place dedicated to public use or ornament, or in any burial-ground, shall be liable to be punished as for larceny. [s 139 am Act 50 of 1974 s 6; Act 53 of 1980 Sch 2(3)] Editor’s note: For proof material on s 139, see [27-23,550] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 139 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Stealing fixtures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[8-s 139.1] [8-s 139.5] [8-s 139.10] [8-s 139.15] [8-s 139.20]

s 140

CRIMES ACT 1900 (NSW) — PART 4

[8-s 140]

[8-s 139.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act where the value of the property exceeds $5000 and a Table 2 offence under that Act where the value of the property does not exceed $5000, see at [2-s 260] and [2-Sch 1] Pt 2 cl 3. Where the offence is a Table 1 offence the maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. Where the offence is a Table 2 offence the maximum penalty that can be imposed is 24 months imprisonment or a fine of 50 penalty units or both, but where the property does not exceed $2000, the maximum fine is 20 penalty units: see at [2-s 268]. [8-s 139.5] Stealing fixtures Where the accused stole property after it had been severed from the building he could not be convicted of this offence: R v Molloy [1921] 2 KB 364. [8-s 139.10] Intoxication An offence under this section which is alleged to have been committed after 16 August 1996, to the extent that an element of the offence under this section requires a person to intend to cause the specific result necessary for the offence, is an offence of specific intent for the purpose of Pt 11A Crimes Act 1900 relating to intoxication: see s 428B Crimes Act ff at [8-s 428B].

[8-s 139.15] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, stole/ripped/cut/severed/broke with intent to steal the same, [describe fixture], the property of [name of owner], then fixed to [describe the land, house or area] of the said owner [name of owner]. [8-s 139.20] Elements of offence The elements of the offence are — (1) The accused: (i) stole [8-s 117.5][27-23,055]; (ii) ripped, cut, severed or broke with intent to steal [8-s 117.30]; (2) any of the following: (i) any glass or woodwork, belonging to any building; or (ii) any metal, utensil or fixture, fixed in or to any building; or (iii) anything made of metal fixed in any land being private property, or used as a fence to any dwelling-house [8-s 4][8-s 109.5], garden or area, or being in any square or street, or in or on any place dedicated to public use or ornament, or in any burial ground.

[8-s 140] Stealing etc trees etc in pleasure-grounds etc 140

Whosoever: steals, or destroys or damages with intent to steal, the whole, or any part, of any tree, sapling, shrub, or plant, or any underwood, growing in any park, pleasure-ground, garden, orchard, or avenue, or in any ground belonging to any dwelling-house, where the value of the article stolen, or the amount of injury done, exceeds two dollars, or steals, or destroys or damages with intent to steal, the whole, or any part, of any tree, sapling, shrub, or plant, or any underwood respectively growing elsewhere than in any situation beforementioned, where the value of the article stolen, or the amount of injury done, exceeds ten dollars, shall be liable to be punished as for larceny. Editor’s note: For proof material on s 140, see [27-23,600] behind the “27 – Informations and Indictments” guide card in Vol 4.

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Crimes

PROOF MATERIAL ON SECTION 139 For the text of s 139, see [8-s 139] behind the “8 – Crimes Act” guide card in Vol 1.

[8-s 140.1]

s 140

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

COMMENTARY ON SECTION 140 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tree etc growing in park etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tree etc growing elsewhere . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 140.1] [8-s 140.5] [8-s 140.10] [8-s 140.15] [8-s 140.20] [8-s 140.25]

[8-s 140.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act where the value of the property exceeds $5000 and a Table 2 offence under that Act where the value of the property does not exceed $5000, see at [2-s 260] and [2-Sch 1] Pt 2 cl 3. Where the offence is a Table 1 offence the maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. Where the offence is a Table 2 offence the maximum penalty that can be imposed is 24 months imprisonment or a fine of 50 penalty units or both, but where the property does not exceed $2000, the maximum fine is 20 penalty units: see at [2-s 268]. [8-s 140.5] Intoxication An offence under this section which is alleged to have been committed after 16 August 1996, to the extent that an element of the offence under this section requires a person to intend to cause the specific result necessary for the offence, is an offence of specific intent for the purpose of Pt 11A Crimes Act 1900 relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. PROOF MATERIAL ON SECTION 140 For the text of s 140, see [8-s 140] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 140.10] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did steal/destroy/damage with intent to steal the whole/a part of a tree/sapling/shrub/plant/underwood of/to the value of [state value], the property of [name of owner], then growing in a certain park/pleasure ground/garden/orchard/avenue/ground belonging to a dwelling-house/place of the said owner [name of owner] situated at [describe location]. [8-s 140.15] Elements of offence

The elements of the offence are —

[8-s 140.20] Tree etc growing in park etc (1) The accused: (i) stole [8-s 117.5][27-23,055]; (ii) destroyed or damaged with intent to steal [8-s 117.30]; (2) a tree, sapling, shrub, plant or underwood, or any part thereof; (3) which grew in a: (i) park; (ii) pleasure ground; (iii) garden; (iv) orchard; (v) avenue; or (vi) ground belonging to a dwelling-house; and (4) the value of the article stolen or amount of injury done exceeded two dollars. [8-s 140.25] Tree etc growing elsewhere (1) The accused: (i) stole [8-s 117.5][27-23,055]; or (ii) destroyed or damaged with intent to steal [8-s 117.30]; (2) a tree, sapling, shrub, plant or underwood, or any part thereof; (3) which grew elsewhere than in a: (i) park;

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s 149

CRIMES ACT 1900 (NSW) — PART 4

(ii) (iii) (iv) (v) (vi)

[8-s 149]

pleasure ground; garden; orchard; avenue; or ground belonging to a dwelling-house; and

(4) the value of the article stolen or amount of injury done exceeded ten dollars.

141–147 [ss 141–143 rep Act 31 of 1951 s 2] [ss 144–147 rep Act 137 of 1996 s 4 and Sch 2.3, opn 8 Mar 1997]

[8-s 148] Stealing property in a dwelling-house 148 Whosoever steals in a dwelling-house any property shall be liable to imprisonment for seven years. [s 148 am Act 33 of 1965 s 4(2); Act 9 of 1985 s 2 and Sch 1(1); am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000]

COMMENTARY ON SECTION 148 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 148.1] Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 148.5] Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 148.10] Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 148.15] [8-s 148.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act where the value of the property exceeds $5000 and a Table 2 offence under that Act where the value of the property does not exceed $5000, see at [2-s 260] and [2-Sch 1] Pt 2 cl 3. Where the offence is a Table 1 offence the maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. Where the offence is a Table 2 offence the maximum penalty that can be imposed is 24 months imprisonment or a fine of 50 penalty units or both, but where the property does not exceed $2000, the maximum fine is 20 penalty units: see at [2-s 268]. [8-s 148.5] Definitions As to “steal” see [8-s 117.1]. As to “dwelling-house” see at [8-s 4]. As to “property” see at [8-s 4]. PROOF MATERIAL ON SECTION 148 For the text of s 148, see [8-s 148] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 148.10] Form of indictment That [name of accused] on [date of alleged offence] in the State of New South Wales, in the dwelling-house of [name of dwelling-house owner] did steal certain property, namely [describe property taken] the property of [name of property owner]. [8-s 148.15] Elements of offence The elements of the offence are — (1) The accused stole [8-s 117.5][27-23,055] property [8-s 4]; and (2) that stealing took place in a dwelling-house [8-s 4].

[8-s 149] The same with menaces 149 Whosoever steals any property in a dwelling-house, and uses thereafter any menace or threat to any person therein, shall be liable to imprisonment for fourteen years. [s 149 am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000] Editor’s note: For proof material on s 149, see [27-23,700] behind the “27 – Informations and Indictments” guide card in Vol 4.

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Crimes

Editor’s note: For proof material on s 148, see [27-23,650] behind the “27 – Informations and Indictments” guide card in Vol 4.

[8-s 149.1]

s 149

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

COMMENTARY ON SECTION 149 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 149.1] [8-s 149.5] [8-s 149.10]

[8-s 149.1] Definitions As to “steal” see [8-s 117]. As to “dwelling-house” see s 4 at [8-s 4]. As to “property” see s 4 at [8-s 4]. As to “menace” see [8-s 99.10]. PROOF MATERIAL ON SECTION 149 For the text of s 149, see [8-s 149] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 149.5] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, in the dwelling-house of [name of owner of dwelling-house] stole certain property of [name of property owner] namely [describe property taken], and thereafter did use certain menaces/threat to [name of person menaced or threatened], then being in the said dwelling-house. [8-s 149.10] Elements of offence The elements of the offence are — (1) The accused stole [8-s 117.5][27-23,055] property [8-s 4]; and (2) that stealing took place in a dwelling-house [8-s 4]; and (3) the accused thereafter used a menace [8-s 99.5] or threat to any person in that

dwelling-house.

[8-s 150] Stealing goods in process of manufacture 150 Whosoever steals, to the value of one dollar, any goods, article, or material, while anywhere placed, or exposed, during the process or progress of manufacture, shall be liable to imprisonment for a term not exceeding three years. [s 150 am Act 33 of 1965 s 4(2); am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000] Editor’s note: For proof material on s 150, see [27-23,750] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 150 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Process or progress of manufacture . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 150.1] [8-s 150.5] [8-s 150.10] [8-s 150.15]

[8-s 150.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act where the value of the property exceeds $5000 and a Table 2 offence under that Act where the value of the property does not exceed $5000, see at [2-s 260] and [2-Sch 1] Pt 2 cl 3. Where the offence is a Table 1 offence the maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. Where the offence is a Table 2 offence the maximum penalty that can be imposed is 24 months imprisonment or a fine of 50 penalty units or both, but where the property does not exceed $2000, the maximum fine is 20 penalty units: see at [2-s 268]. [8-s 150.5] Process or progress of manufacture see R v Woodland (1836) 1 M R 549.

As to “process or progress of manufacture”

PROOF MATERIAL ON SECTION 150 For the text of s 150, see [8-s 150] behind the “8 – Crimes Act” guide card in Vol 1.

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s 151

CRIMES ACT 1900 (NSW) — PART 4

[8-s 151.15]

[8-s 150.10] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, in a certain [type of building etc goods were removed from] of [name of owner] situate at [state location of building etc], did steal goods/article/material namely [describe goods stolen], of the value of more than one dollar, of the goods/articles/materials of the said [name of owner], the said goods/articles/materials being then placed/exposed during the process/progress of manufacture. [8-s 150.15] Elements of offence The elements of the offence are — (1) The accused stole [8-s 117.5][27-23,055] any goods, article or materials; (2) the value of which was at least one dollar; and (3) which were placed or exposed during the process or progress of manufacture

[8-s 150.5].

151 Whosoever, being, for the purpose of manufacture, or any special purpose connected with manufacture, employed to make, prepare, or work up, any goods, article, or material, or being for any such purpose entrusted with any such goods, article, or material, or with any tools, or apparatus, sells, pawns, purloins, secretes, embezzles, exchanges, or otherwise fraudulently disposes of the same, or any part thereof, shall be liable to imprisonment for four years. Editor’s note: For proof material on s 151, see [27-23,800] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 151 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Employee selling etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Person entrusted with goods etc selling etc . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Employee selling etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Person entrusted with goods etc selling etc . . . . . . . . . . . . . . . . . .

[8-s 151.1] [8-s 151.5] [8-s 151.10] [8-s 151.15] [8-s 151.20] [8-s 151.25] [8-s 151.30]

[8-s 151.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act where the value of the property exceeds $5000 and a Table 2 offence under that Act where the value of the property does not exceed $5000, see at [2-s 260] and [2-Sch 1] Pt 2 cl 3. Where the offence is a Table 1 offence the maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. Where the offence is a Table 2 offence the maximum penalty that can be imposed is 24 months imprisonment or a fine of 50 penalty units or both, but where the property does not exceed $2000, the maximum fine is 20 penalty units: see at [2-s 268]. PROOF MATERIAL ON SECTION 151 For the text of s 151, see [8-s 151] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 151.5] Form of indictment [8-s 151.10] Employee selling etc That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, then being, for the purpose of manufacture/for a special purpose connected with manufacture employed to make/prepare/work up certain goods/articles/material, namely [describe stolen goods etc], the property of [name of owner] did sell/pawn/purloin/secrete/ embezzle/exchange/fraudulently dispose of the same/a part of the same. [8-s 151.15] Person entrusted with goods etc selling etc That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, then being, for the purpose

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Crimes

[8-s 151] Selling etc materials to be manufactured

[8-s 151.15]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 151

of manufacture/for a special purpose connected with manufacture, entrusted with goods/material/tools/apparatus namely [describe stolen goods etc], the property of [name of owner] did sell/pawn/purloin/secrete/embezzle/exchange/fraudulently dispose of the same/a part of the same. [8-s 151.20] Elements of offence

The elements of the offence are —

[8-s 151.25] Employee selling etc (1) The accused was employed to make, prepare or work up any goods, article or

material; and (2) that employment was for the purpose of manufacture or for a special purpose

connected with manufacture; and (3) the accused sold, pawned, purloined, secreted, embezzled [8-s 157.10] disposed

of the whole or any part of those goods, article or material. [8-s 151.30] Person entrusted with goods etc selling etc (1) The accused was entrusted with any goods, article, material, tool or apparatus;

and (2) the accused was entrusted with those goods etc for the purpose of manufacture

or for a special purpose of manufacture or for a special purpose connected with manufacture; and (3) the accused sold, pawned, purloined, secreted, embezzled [8-s 157.10], exchanged or otherwise fraudulently [8-s 134.5] disposed of the whole or any part of those goods, article or material.

[8-s 152] Stealing from ship in port or on wharfs etc 152

Whosoever: steals any property in any vessel, barge, or boat, while in any haven, or port, or upon any navigable river, or canal, or in any creek, or basin, belonging to, or communicating with, any such haven, port, river, or canal, or steals any property from any dock, wharf, or quay, shall be liable to imprisonment for seven years. [s 152 am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000] Editor’s note: For proof material on s 152, see [27-23,850] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 152 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Stealing from ship in port etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Stealing from wharf etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 152.1] [8-s 152.5] [8-s 152.10] [8-s 152.15] [8-s 152.20]

[8-s 152.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act where the value of the property exceeds $5000 and a Table 2 offence under that Act where the value of the property does not exceed $5000, see at [2-s 260] and [2-Sch 1] Pt 2 cl 3. Where the offence is a Table 1 offence the maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. Where the offence is a Table 2 offence the maximum penalty that can be imposed is 24 months imprisonment or a fine of 50 penalty units or both, but where the property does not exceed $2000, the maximum fine is 20 penalty units: see at [2-s 268].

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s 153

CRIMES ACT 1900 (NSW) — PART 4

[8-s 153.10]

PROOF MATERIAL ON SECTION 152 For the text of s 152, see [8-s 152] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 152.5] Form of indictment [8-s 152.10] Stealing from ship in port etc That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales stole [describe goods allegedly stolen] the property of [name of owner] in a certain vessel/barge/boat in a port called [name of port]/haven/ navigable river/canal/creek or basin belonging to or communicating with [name haven, port, river, canal] then being.

[8-s 152.20] Elements of offence The elements of the offence are — (1) The accused stole [8-s 117.5][27-23,055] property [8-s 4]; and (2) that property was: (i) in any vessel [8-s 4], barge or boat; (ii) while in any haven, port, or upon any navigable river or canal, or in any creek or basin belonging to or communicating with any such haven, port, river, or canal; or (3) that property was on any dock, wharf or quay.

[8-s 153] Stealing from ship in distress or wrecked 153 Whosoever steals, or plunders, any part of any vessel in distress, or wrecked, stranded, or cast on shore, or any property of any kind to the value of two dollars belonging to such vessel, shall be liable to imprisonment for ten years. [s 153 am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000] Editor’s note: For proof material on s 153, see [27-23,900] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 153 Summary offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 153.1] [8-s 153.5] [8-s 153.10] [8-s 153.15]

[8-s 153.1] Summary offences For summary offences as to possession and offering for sale of shipwrecked goods, see ss 522-523. [8-s 153.5] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 2 cl 9. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. PROOF MATERIAL ON SECTION 153 For the text of s 153, see [8-s 153] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 153.10] Form of indictment That on [date of alleged offence] at [locality/suburb] in the State of New South Wales, a certain vessel [state name of vessel if known] the property of [state name of owner or “the property of some person to the Attorney-General unknown”] was in

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Crimes

[8-s 152.15] Stealing from wharf etc That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales stole [describe goods allegedly stolen] the property of [name of owner] from a wharf/dock/quay called the [name of wharf etc] situate at [location of wharf] aforesaid.

[8-s 153.10]

s 153

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

distress/ wrecked/stranded/cast on shore; and that [name of accused] afterwards on the day and year aforesaid, stole/plundered [describe property allegedly stolen], being parts of the said vessel/[describe property allegedly stolen], being property belonging to the said vessel so in distress/wrecked/stranded/cast on shore, the property of the said [restate the owner], being property to the value of two dollars. [8-s 153.15] Elements of offence The elements of the offence are — (1) The accused stole [8-s 117.5][27-23,055] property; and (2) that property was: (i) a part of any vessel [8-s 4] in distress [8-s 57.10], or wrecked, stranded [8-s 32.1] or cast on shore; or (ii) property of any kind to the value of two dollars belonging to a vessel [8-s 4] in distress [8-s 57.10], or wrecked, stranded [8-s 32.1] or cast on shore.

[8-s 154] Tenants etc stealing articles let to hire 154 Whosoever, being the tenant, or occupier, of any house, building, or lodging, steals any chattel, or fixture let to be used therewith, whether the contract was entered into by the accused, or by any person on his or her behalf, shall be liable to be punished as for larceny. [s 154 am Act 50 of 1974 s 6; Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998] Editor’s note: For proof material on s 154, see [27-23,950] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 154 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 154.1] [8-s 154.5] [8-s 154.10] [8-s 154.15]

[8-s 154.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 where the value of the property exceeds $5000 and a Table 2 offence under that Act where the value of the property does not exceed $5000, see at [2-s 260] and [2-Sch 1] Pt 2 cl 3. Where the offence is a Table 1 offence the maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. Where the offence is a Table 2 offence the maximum penalty that can be imposed is 12 months imprisonment or a fine of 50 penalty units or both, but where the property does not exceed $2000, the maximum fine is 20 penalty units: see at [2-s 268]. [8-s 154.5] Form of indictment It is sufficient if the indictment is in terms of simple larceny and property may be laid in the owner or the person letting the property to hire: see [2-Sch 3] clause 10. PROOF MATERIAL ON SECTION 154 For the text of s 154, see [8-s 154] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 154.10] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, being the tenant/occupier of a house/building/lodging situate at [state address of house etc] did steal a chattel/fixture let to be used therewith namely [describe object allegedly stolen] the property of [name of owner/person letting the property to hire]. [8-s 154.15] Elements of offence The elements of the offence are — (1) The accused was a tenant or occupier of a house, building or lodging; and

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s 154A

CRIMES ACT 1900 (NSW) — PART 4

[8-s 154A.10]

(2) the accused stole [8-s 117.5][27-23,055] a chattel or fixture let to be used

therewith. The offence is committed whether the contract was entered into by the accused, or by any person on his/her behalf.

[8-s 154A] Taking a conveyance without consent of owner 154A (1) Any person who: (a) without having the consent of the owner or person in lawful possession of a conveyance, takes and drives it, or takes it for the purpose of driving it, or secreting it, or obtaining a reward for its restoration or pretended restoration, or for any other fraudulent purpose, or (b) knowing that any conveyance has been taken without such consent, drives it or allows himself or herself to be carried in or on it, shall be deemed to be guilty of larceny and liable to be indicted for that offence. (2) For the purposes of this section conveyance means any cart, wagon, cab, carriage, motor car, caravan, trailer, motor lorry, tractor, earth moving equipment, omnibus, motor or other bicycle, tank or other military vehicle, or any ship, or vessel, used or intended for navigation, and drive shall be construed accordingly. [subs (2) am Act 31 of 1951 s 2 and Sch; Act 53 of 1980 s 5 and Sch 1; Act 26 of 2006 s 3 and Sch 1[3], opn 1 Sep 2006; Act 107 of 2008 s 3 and Sch 5, opn 8 Dec 2008] [s 154A subst Act 50 of 1974 s 6] Editor’s note: For proof material on s 154A, see [27-24,000] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 154A Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Taking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Without consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Commonwealth vehicles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Taking and driving . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Knowingly drive or be carried in . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 154A.1] [8-s 154A.5] [8-s 154A.10] [8-s 154A.15] [8-s 154A.20] [8-s 154A.25] [8-s 154A.30] [8-s 154A.35]

[8-s 154A.1] Summary disposal An offence under the section is a Table 2 offence under the Criminal Procedure Act and is to be dealt with in a Local Court unless an election is made for trial on indictment by the prosecutor, see at [2-s 260] and [2-Sch 1] Pt 2 cl 4. The maximum penalty which can be imposed is 2 years imprisonment or 50 penalty units or both: see at [2-s 268]. [8-s 154A.5] Taking The English Court of Appeal in R v Bogacki [1973] 1 QB 832 considered the word “takes” in a similar English provision, and held that the concept of movement was built into the word “takes” and that before a conviction could be sustained it had to be shown that there had been an unauthorised taking of possession or control, followed by some movement of the conveyance, however small. [8-s 154A.10] Without consent If the person has the consent of the owner to use the conveyance for a limited time, then he does not commit this offence by merely using it after that time: Ex parte Johnstone (1935) 52 WN (NSW) 194. The intent necessary for the offence is to use the conveyance without the consent of the owner: Bollmeyer v Daly [1933] SASR 295.

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Crimes

[subs (1) insrt Act 10 of 1924 s 9; am Act 16 of 1955 s 6; Act 77 of 1967 s 2; Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998]

[8-s 154A.10]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 154A

De facto consent to the use of a conveyance is not vitiated by the fraud of the accused: Whittaker v Campbell [1983] 3 WLR 676. [8-s 154A.15] Commonwealth vehicles The section applied to a vehicle owned by the Commonwealth, the provision not being inconsistent with s 71 of the Crimes Act 1914 (Cth): Clixby v Weston (1988) 15 NSWLR 35; 83 ALR 485. PROOF MATERIAL ON SECTION 154A For the text of s 154A, see [8-s 154A] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 154A.20] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did steal [describe property taken], the property of [name of owner]. It is generally the practice of the Crown to indicate that the charge of larceny is laid pursuant to s 154A by an annotation to that effect upon the backsheet of the indictment. [8-s 154A.25] Elements of offence

The elements of the offence are —

[8-s 154A.30] Taking and driving (1) The accused acted without the consent of the owner s 10 or the person in lawful

possession of a conveyance [8-s 154A(2)]; and (2) the accused either: (i) took [8-s 117.5][8-s 154A.5] and drove that conveyance [8-s 154A(2)]; or (ii) took [8-s 117.5] for the purpose of driving it, or secreting it, or obtaining a reward for its restoration or pretended restoration, or for any other fraudulent [8-s 134.5] purpose. [8-s 154A.35] Knowingly drive or be carried in (1) The accused knew that a conveyance [8-s 154A(2)] had been taken without the

consent of the owner [8-s 154A.10] or the person in lawful possession of it; and (2) the accused drove that conveyance [8-s 154A(2)] or allowed himself or herself

to be carried in or on it. 154AA

[s 154AA rep Act 26 of 2006 s 3 and Sch 1[4], opn 1 Sep 2006]

[8-s 154B] Stealing aircraft and unlawfully taking or exercising control of aircraft 154B (1) Whosoever steals any aircraft shall be liable to imprisonment for ten years. [subs (1) am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000]

(2) Whosoever without lawful excuse takes or exercises control, whether direct or through another person, of an aircraft shall be deemed to be guilty of larceny and be liable to imprisonment for seven years. [subs (2) am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000]

(3) Whosoever without lawful excuse takes or exercises control, whether direct or through another person, of an aircraft while another person, not being an accomplice of the first-mentioned person, is on board the aircraft shall be deemed to be guilty of larceny and be liable to imprisonment for fourteen years. [subs (3) am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000]

(4) Whosoever without lawful excuse, by force or violence or threat of force or violence, or by any trick or false pretence, takes or exercises control, whether direct or

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s 154B

CRIMES ACT 1900 (NSW) — PART 4

[8-s 154B.25]

through another person, of an aircraft while another person, not being an accomplice of the first-mentioned person, is on board the aircraft shall be deemed to be guilty of larceny and be liable to imprisonment for twenty years. [subs (4) am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000] Editor’s note: For proof material on s 154B, see [27-24,100] behind the “27 – Informations and Indictments” guide card in Vol 4.

[8-s 154B.1] [8-s 154B.5] [8-s 154B.10] [8-s 154B.15] [8-s 154B.20] [8-s [8-s [8-s [8-s

154B.25] 154B.30] 154B.35] 154B.40]

[8-s 154B.45] [8-s 154B.50]

[8-s 154B.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 2 cll 4 and 9. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. PROOF MATERIAL ON SECTION 154B For the text of s 154B, see [8-s 154B] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 154B.5] Form of indictment [8-s 154B.10] Stealing aircraft — s 154B(1) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did steal an aircraft [describe aircraft] the property of [name of owner]. [8-s 154B.15] Unlawfully taking or exercising control over aircraft — s 154B(2) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, without lawful excuse, did take/exercise control directly/indirectly through another person [name of other person if known] of an aircraft [describe aircraft] the property of [name of owner]. [8-s 154B.20] Unlawfully taking or exercising control over aircraft with non-accomplice passenger on board — s 154B(3) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, without lawful excuse, did take/exercise control directly/indirectly through another person [name of other person if known] of an aircraft [describe aircraft] the property of [name of owner] whilst [name of non-accomplice passenger] was on board the said aircraft. [8-s 154B.25] Unlawfully taking or exercising control over aircraft by force etc with non-accomplice passenger on board — s 154B(4) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, without lawful excuse and with force/violence/threat of force/threat of violence/by trick/by false pretence, did take/exercise

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Crimes

COMMENTARY ON SECTION 154B Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Stealing aircraft — s 154B(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Unlawfully taking or exercising control over aircraft — s 154B(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Unlawfully taking or exercising control over aircraft with non-accomplice passenger on board — s 154B(3) . . . . . . . . . Unlawfully taking or exercising control over aircraft by force etc with non-accomplice passenger on board — s 154B(4) . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Stealing aircraft . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Unlawfully taking or exercising control over aircraft . . . . . . . . . Unlawfully taking or exercising control over aircraft with non-accomplice passenger on board . . . . . . . . . . . . . . . . . . . . . . Unlawfully taking or exercising control over aircraft by force etc with non-accomplice passenger on board . . . . . . . . . . . . . . . . .

[8-s 154B.25]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 154B

control directly/indirectly through another person [name of other person if known] of an aircraft [describe aircraft] the property of [name of owner] whilst [name of non-accomplice passenger] was on board the said aircraft. [8-s 154B.30] Elements of offence

The elements of the offence are —

[8-s 154B.35] Stealing aircraft (1) The accused stole [8-s 117.5][27-23,055]; (2) an aircraft [8-s 4]. [8-s 154B.40] Unlawfully taking or exercising control over aircraft (1) The accused, without lawful excuse [8-s 417]; (2) took [8-s 117.5][8-s 154A.5] or exercised control, whether directly or indirectly

through another person; (3) of an aircraft [8-s 4]. [8-s 154B.45] Unlawfully taking or exercising control over aircraft with non-accomplice passenger on board (1) The accused, without lawful excuse [8-s 417]; (2) took [8-s 117] or exercised control, whether directly or indirectly through

another person; (3) of an aircraft [8-s 4]; (4) which had a person on board who was not an accomplice of the accused. [8-s 154B.50] Unlawfully taking or exercising control over aircraft by force etc with non-accomplice passenger on board (1) The accused, without lawful excuse [8-s 417]; (2) by force or violence or threat of force or violence or by trick or false pretence; (3) took [8-s 117.5][8-s 154A.5] or exercised control, whether directly or indirectly

through another person; (4) of an aircraft [8-s 4]; (5) which had a person on board who was not an accomplice of the accused.

[8-s 154C] Taking motor vehicle or vessel with assault or with occupant on board 154C (1) A person who: (a) assaults another person with intent to take a motor vehicle or vessel and, without having the consent of the owner or person in lawful possession of it, takes and drives it, or takes it for the purpose of driving it, or (b) without having the consent of the owner or person in lawful possession of a motor vehicle or vessel, takes and drives it, or takes it for the purpose of driving it, when a person is in or on it, is liable to imprisonment for 10 years. [subs (1) am Act 26 of 2006 s 3 and Sch 1[5], opn 1 Sep 2006]

(2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 14 years. (3) In this section:

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s 154C

CRIMES ACT 1900 (NSW) — PART 4

[8-s 154C.10]

circumstances of aggravation means circumstances involving any one or more of the following: (a) the alleged offender is in the company of another person or persons, (b) the alleged offender is armed with an offensive weapon or instrument, (c) the alleged offender intentionally or recklessly inflicts actual bodily harm on any person. [def am Act 38 of 2007 s 3 and Sch 1[3], opn 15 Feb 2008]

drive includes operate. [def insrt Act 26 of 2006 s 3 and Sch 1[6], opn 1 Sep 2006]

motor vehicle means a motor vehicle within the meaning of the Road Transport Act 2013. [def am Act 11 of 2005 s 247 and Sch 3.5[4], opn 30 Sep 2005; Act 19 of 2013 Sch 4 item 4.8[8], opn 1 July 2013]

vessel means a vessel within the meaning of the Marine Safety Act 1998. [def insrt Act 26 of 2006 s 3 and Sch 1[6], opn 1 Sep 2006]

COMMENTARY ON SECTION 154C Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Motor vehicle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Standard non-parole period provisions . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assaults with intent to take motor vehicle and takes motor vehicle — s 154C(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Takes motor vehicle when a person is in or on it — s 154C(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Aggravated form — s 154C(3)(a) and s 154C(3)(b) . . . . . . . . . . Aggravated form — s 154C(3)(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assaults with intent to take motor vehicle and takes motor vehicle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Takes motor vehicle when a person is in or on it . . . . . . . . . . . . . Aggravated form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 154C.1] [8-s 154C.5] [8-s 154C.10] [8-s 154C.15] [8-s 154C.20] [8-s 154C.25] [8-s [8-s [8-s [8-s

154C.30] 154C.35] 154C.40] 154C.45]

[8-s 154C.50] [8-s 154C.55] [8-s 154C.60]

[8-s 154C.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 2 cl 9. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 154C.5] Definitions As to “assaults”, see at [8-s 58.5]. As to “takes”, see at [8-s 154A.5] As to “without consent”, see at [8-s 154A.10] As to “in company”, see at [8-s 97.10]. As to “offensive weapon”, see at [8-s 4.5]. As to “maliciously”, see s 5 at [8-s 5] and the annotations. As to “actual bodily harm”, see at [8-s 58.5]. [8-s 154C.10] Motor vehicle Act 2013 as follows:

“Motor vehicle” is defined in s 3 of the Road Transport

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Crimes

Editor’s note: For proof material on s 154C, see [27-24,120] behind the “27 – Informations and Indictments” guide card in Vol 4.

[8-s 154C.10]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 154C

motor vehicle means a vehicle that is built to be propelled by a motor that forms part of the vehicle. As to a Commonwealth “motor vehicle”, see [8-s 154A.15]. [8-s 154C.15] Standard non-parole period provisions Where an offence under s 154C(1) or s 154C(2) Crimes Act 1900 is committed on or after 1 February 2003, the offence is subject to the provisions of Div 1A of Pt 4 (ss 54A-54D) of the Crimes (Sentencing Procedure Act) 1999 at [5-s 54A] and following. The standard non-parole period for an offence under s 154C(1) is three years and for an offence under s 154C(2), five years: Table following s 54D at [5-s 54D]. Division 1A of Pt 4 does not apply to detention under the Mental Health (Forensic Provisions) Act 1990 nor where the offence is dealt with summarily: s 54D(1)(b) and (2) at [5-s 54D]. PROOF MATERIAL ON SECTION 154C For the text of s 154C, see [8-s 154C] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 154C.20] Form of indictment [8-s 154C.25] Assaults with intent to take motor vehicle and takes motor vehicle — s 154C(1)(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales assaulted [name of person assaulted] with intent to take a motor vehicle and took and drove/took for the purpose of driving a motor vehicle [describe motor vehicle] without the consent of the owner of the motor vehicle/the person in lawful possession of the motor vehicle [name of owner/person in lawful possession]. [8-s 154C.30] Takes motor vehicle when a person is in or on it — s 154C(1)(b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales took and drove/took for the purpose of driving a motor vehicle [describe motor vehicle] without the consent of the owner of the motor vehicle/ the person in lawful possession of the motor vehicle [name of owner/person in lawful possession] while [name of person in or on vehicle] was in/on the motor vehicle. [8-s 154C.35] Aggravated form — s 154C(3)(a) and s 154C(3)(b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales while in the company of another person/other persons/while armed with an offensive weapon/instrument [state relevant averment above]. [8-s 154C.40] Aggravated form — s 154C(3)(c) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales [state relevant averment above] and intentionally/recklessly inflicted actual bodily harm on [name of person]. [8-s 154C.45] Elements of offence

The elements of the offence are —

[8-s 154C.50] Assaults with intent to take motor vehicle and takes motor vehicle (1) The accused assaulted [8-s 58.5] a person; and (2) this was done with the intention [6-500] of taking a motor vehicle

[8-s 154C(3)][8-s 154C.10]; and (3) the accused: (i) took [8-s 117.5][8-s 154A.5] and drove the motor vehicle; or (ii) took the motor vehicle for the purpose of driving it; and (4) this was done without the consent of the owner or person in lawful possession

of the motor vehicle. [8-s 154C.55] Takes motor vehicle when a person is in or on it (1) The accused: (i) took [8-s 117.5] and drove a motor vehicle; or

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s 154E

[8-s 154E]

CRIMES ACT 1900 (NSW) — PART 4

(ii) took a motor vehicle [8-s 154C(3)] for the purpose of driving it; and (2) this was done without the consent of the owner or person in lawful possession

of the motor vehicle; and (3) this was done while a person was in or on the motor vehicle. [8-s 154C.60] Aggravated form (Relevant elements above plus one or more of the following:) (1) The accused was in the company of another person or other persons; or (2) the accused was armed with an offensive weapon or instrument [8-s 4]; or (3) the accused intentionally or recklessly [8-s 4A.1][8-s 5] inflicted actual bodily

harm [8-s 59.5] on any person.

[8-s 154D] Stealing firearms 154D (1) A person who steals a firearm is liable to imprisonment for 14 years. (2) In this section:

[def am Act 40 of 2010 Sch 3.8[3], opn 9 July 2010] [s 154D insrt Act 92 of 2003 s 3 and Sch 1[4], opn 15 Dec 2003]

COMMENTARY ON SECTION 154D Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 154D.1]

[8-s 154D.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 2 cl 9. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267].

DIVISION 5A — OFFENCES RELATING TO THEFT OF MOTOR VEHICLES AND VESSELS [Div 5A (formerly Pt 4, Div 1, subdiv 5A) am Act 99 of 2009 Sch 2, opn 22 Feb 2010]

[8-s 154E] Definitions 154E (1) In this Division: interfere with a thing includes alter, deface, remove, obliterate, conceal or add anything to the thing. motor vehicle means: (a) a motor vehicle within the meaning of the Road Transport Act 2013 (whether or not the vehicle contains the motor intended to form part of it), or (b) a motor intended to form part of, or capable of forming part of, any such motor vehicle, or (c) any part of any such motor vehicle containing, or consisting of, an identification plate for a vehicle under the Motor Vehicle Standards Act 1989 of the Commonwealth. [def am Act 19 of 2013 Sch 4 item 4.8[9], opn 1 July 2013]

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Crimes

firearm has the same meaning as in the Firearms Act 1996, and includes an imitation firearm within the meaning of that Act.

[8-s 154E]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 154E

unique identifier means any numbers, letters, symbols or other identification information: (a) marked on or attached to a motor vehicle or vessel, or a part of a motor vehicle or vessel, or (b) marked on a thing that is designed to be attached to a motor vehicle or vessel, or a part of the motor vehicle or vessel, or (c) stored in electronic form in a part of a motor vehicle or vessel, for the primary purpose of: (d) enabling a particular motor vehicle, vessel or part to be distinguished from all other motor vehicles, vessels or parts (including by enabling a part to be identified as a part of a particular motor vehicle or vessel), or (e) identifying different motor vehicle or vessel production batches (including by enabling a part to be identified as a part of a motor vehicle or vessel of a particular production batch). vessel means a vessel within the meaning of the Marine Safety Act 1998. [subs (1) am Act 99 of 2009 Sch 2, opn 22 Feb 2010]

(2) For the purposes of this Division, a part of a motor vehicle or vessel includes a thing (such as a key) manufactured in connection with the motor vehicle or vessel that enables the operation of the motor vehicle or vessel or prevents the unauthorised operation of the motor vehicle or vessel. [subs (2) am Act 99 of 2009 Sch 2, opn 22 Feb 2010]

[8-s 154F] Stealing motor vehicle or vessel 154F A person who steals a motor vehicle or vessel is guilty of an offence. Maximum penalty: imprisonment for 10 years.

[8-s 154G] Facilitating organised car or boat rebirthing activities 154G (1) A person who facilitates a car or boat rebirthing activity that is carried out on an organised basis knowing that: (a) it is a car or boat rebirthing activity, and (b) it is carried out on an organised basis, is guilty of an offence. Maximum penalty: imprisonment for 14 years. (2) For the purposes of this section, a car or boat rebirthing activity is an activity involving one or more of the following: (a) the stealing of a motor vehicle or vessel or the receiving of a stolen motor vehicle or stolen vessel, (b) the interference with a motor vehicle or vessel, or a part of a motor vehicle or vessel, or a unique identifier, for the purpose of concealing the fact that a motor vehicle or vessel, or any part of a motor vehicle or vessel, is stolen, (c) the affixing of stolen parts to a motor vehicle or vessel, (d) the interference with a unique identifier, being a unique identifier that wholly or partly identifies a motor vehicle or vessel for registration under a law of any jurisdiction, for the purpose of disguising or misrepresenting the identity of a motor vehicle or vessel,

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CRIMES ACT 1900 (NSW) — PART 4

[8-s 154G.15]

(e) the registration, in this or any other jurisdiction, of a stolen motor vehicle or stolen vessel, or of a motor vehicle or vessel that has had stolen parts affixed to it, (f) the supply of, or offering to supply, a stolen motor vehicle or stolen vessel. (3) A person facilitates a car or boat rebirthing activity if the person: (a) takes, or participates in, any step, or causes any step to be taken, that is part of the activity, or (b) provides or arranges finance for any step that is part of the activity, or (c) provides the premises in which any step that is part of the activity is taken, or allows any step that is part of the activity to be taken in premises of which the person is the owner, lessee or occupier or of which the person has the care, control or management. (4) A car or boat rebirthing activity is carried out on an organised basis if: (a) it is planned, organised, structured or otherwise carried out in such a manner as to indicate that the activity is carried out on more than one occasion and involves more than one participant, and (b) it is carried out for profit or gain. (5) In proceedings for an offence against this section, for the purpose of proving that an activity was carried out on an organised basis, or that the accused knew it was carried out on an organised basis, it is not necessary to prove: (a) that the accused knew any of the participants in the activity or that any of the participants knew each other, or (b) that the activity was planned, organised, structured or otherwise carried out under the direction of any particular person or persons or in any hierarchical manner, or (c) that the same participants were involved on each occasion on which the activity was carried out. COMMENTARY ON SECTION 154G Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 154G.5] Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 154G.10] Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 154G.15] [8-s 154G.5] Sentence An offence under s 154G is subject to the provisions of Div 1A of Pt 4 (ss 54A–54D) of the Crimes (Sentencing Procedure) Act 1999 at [5-s 54A] and following. A standard non-parole period of four years applies to a s 154G offence: item 15A in the Table following s 54D at [5-s 54D]. The seriousness of an offence under the section was considered in R v Tannous, Fahda and Dib [2012] NSWCCA 243; BC201209067; 20(1) Crim LN [3160] where, in upholding a Crown appeal against an inadequate sentence, the court made remarks about the nature of the offence and matters to be considered when passing sentence. PROOF MATERIAL ON SECTION 154G For the text of s 154G, see [8-s 154G] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 154G.10] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did steal/receive/interfere with a unique identifier of/affix stolen parts to/register a stolen/supply a stolen/offer to supply a stolen boat/vessel on an organised basis knowing that [describe the activity] was carried out on an organised basis. [8-s 154G.15] Elements of offence

The elements of the offence are —

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s 154G

[8-s 154G.15]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 154G

(1) The accused facilitated [8-s 154G(3)] a car or boat rebirthing activity

[8-s 154G(2)]; and (2) the car or boat rebirthing activity was carried out on an organised basis

[8-s 154G(4)]; and (3) the accused knew [6-515] that he/she was facilitating a car or boat rebirthing

activity; and (4) the accused knew [6-515] that the car or boat rebirthing activity was being

carried out on an organised basis [8-s 154G(4)]. Proof that activity was carried out on organised basis and proof of knowledge that activity was carried out on organised basis. Section 154G(5) provides that for the purpose of proving that an activity was carried out on an organised basis, or that the accused knew it was carried out on an organised basis, the prosecution does not need to prove: (a) that the accused knew any of the participants in the activity or that any of the participants knew each other, or (b) that the activity was planned, organised, structured or otherwise carried out under the direction of any particular person or persons or in any hierarchical manner, or (c) that the same participants were involved on each occasion on which the activity was carried out.

[8-s 154H] Making, using and interfering with unique identifiers 154H (1) A person who: (a) dishonestly interferes with, or copies, a unique identifier, or (b) possesses a motor vehicle or vessel, or a part of a motor vehicle or vessel, with the intention of dishonestly interfering with, or copying, a unique identifier, or (c) dishonestly makes a unique identifier, or a purported unique identifier, or (d) knowingly induces another person to accept any information attached to a motor vehicle, vessel or a part of a motor vehicle or vessel as a genuine unique identifier for the motor vehicle, vessel or part, when the information is not in fact a genuine unique identifier for that motor vehicle, vessel or part, is guilty of an offence. Maximum penalty: imprisonment for 7 years. (2) For the purposes of this section, information is attached to a motor vehicle, vessel or a part of a motor vehicle or vessel if it is: (a) marked on or attached to the motor vehicle, vessel or part, or (b) marked on a thing attached to the motor vehicle, vessel or part, or (c) stored in electronic form in a part of the motor vehicle or vessel. (3) In proceedings for an offence against this section, if it is necessary to allege a person knowingly induced another person to accept information attached to a motor vehicle, vessel or a part of a motor vehicle or vessel as a genuine unique identifier for the motor vehicle, vessel or part, it is not necessary to allege that the accused knowingly induced a particular person to accept the information as a genuine unique identifier. (4) In this section, a reference to inducing a person to accept information attached to a motor vehicle, vessel or a part of a motor vehicle or vessel as a genuine unique identifier includes a reference to causing a computer to respond to the information attached to the motor vehicle, vessel or part as if it were a genuine unique identifier. (5) In this section:

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s 154I

CRIMES ACT 1900 (NSW) — PART 4

[8-s 154I]

information includes numbers, letters or symbols. COMMENTARY ON SECTION 154H Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 154H.1] Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 154H.5] Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 154H.10] [8-s 154H.1] Summary disposal An offence under the section is a Table 2 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment by the prosecutor, see s 260(2) at [2-s 260] and [2-Sch 1] Pt 2 cl 4. The maximum penalty which can be imposed is 24 months imprisonment, or a fine of 50 penalty units, or both. However, the maximum fine that a Local Court may impose if the value of the property, amount of money or reward concerned does not exceed $2,000 is 20 penalty units: see at [2-s 268].

[8-s 154H.5] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did dishonestly use/interfere with a unique identifier/possess a motor vehicle/vessel/a part of a motor vehicle/vessel, with the intention of dishonestly interfering with / copying, a unique identifier / dishonestly make a unique identifier/purported unique identifier/knowingly induced another person to accept information attached to a motor vehicle/vessel/a part of a motor vehicle/vessel as a genuine unique identifier for the motor vehicle/vessel/part, when the information was not in fact a genuine unique identifier for that motor vehicle/vessel/part. [8-s 154H.10] Elements of offence The elements of the offence are — (1) The accused: (a) dishonestly [8-s 178BA.20] interfered with or copied a unique identifier [8-s 194]; or (b) possessed [8-s 7] a motor vehicle or vessel, or a part of a motor vehicle or vessel, with the intention [6-500] of dishonestly interfering with, or copying, a unique identifier [8-s 194]; or (c) dishonestly [8-s 178BA.20] made a unique identifier [8-s 194], or a purported unique identifier; or (d knowingly [6-515] induced another person to accept any information attached [8-s 154H(2)] to a motor vehicle, vessel or a part of a motor vehicle or vessel as a genuine unique identifier [8-s 194] for the motor vehicle, vessel or part, when the information was not in fact a genuine unique identifier for that motor vehicle, vessel or part. Not necessary to prove knowledge that particular person was induced. Section 154H(3) provides that in proceedings for an offence involving knowing inducement of another person to accept information attached to a motor vehicle, vessel or a part of a motor vehicle or vessel as a genuine unique identifier for the motor vehicle, vessel or part, it is not necessary to allege that the accused knowingly induced a particular person to accept the information as a genuine unique identifier.

[8-s 154I] Possession of motor vehicle or vessel where unique identifier has been interfered with 154I (1) A person who dishonestly has possession of a motor vehicle or vessel, or a part of a motor vehicle or vessel, a unique identifier of which has been interfered with, is guilty of an offence. Maximum penalty: imprisonment for 5 years.

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Crimes

PROOF MATERIAL ON SECTION 154H For the text of s 154H, see [8-s 154H] behind the “8 – Crimes Act” guide card in Vol 1.

[8-s 154I]

s 154I

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

(2) For the purposes of this section, a person dishonestly has possession of a thing if: (a) the person obtained or received the thing dishonestly, or (b) the person intends to register, supply or use the thing dishonestly. COMMENTARY ON SECTION 154I Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 154I.1] [8-s 154I.5] [8-s 154I.10]

[8-s 154I.1] Summary disposal An offence under the section is a Table 2 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment by the prosecutor, see s 260(2) at [2-s 260] and [2-Sch 1] Pt 2 cl 4. The maximum penalty which can be imposed is 24 months imprisonment, or a fine of 50 penalty units, or both. However, the maximum fine that a Local Court may impose if the value of the property, amount of money or reward concerned does not exceed $2,000 is 20 penalty units: see at [2-s 268]. PROOF MATERIAL ON SECTION 154I For the text of s 154I, see [8-s 154I] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 154I.5] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did dishonestly possess a motor vehicle/vessel/a part of a motor vehicle/vessel with a unique identifier which had been interfered with. [8-s 154I.10] Elements of offence The elements of the offence are — (1) The accused: (a) dishonestly [8-s 178BA.20] had possession [8-s 7] of a motor vehicle or vessel, or a part of a motor vehicle or vessel, a unique identifier [8-s 194] of which has been interfered with.

[8-s 154J] Possession of vehicle identification plate not attached to motor vehicle 154J (1) A person is guilty of an offence if the person, without reasonable excuse, knowingly has possession of a vehicle identification plate not attached to the motor vehicle to which it relates. Maximum penalty: imprisonment for 5 years. (2) The onus of proof of reasonable excuse in proceedings for an offence against this section lies on the accused. (3) In this section: motor vehicle means a motor vehicle within the meaning of the Road Transport Act 2013 (whether or not the vehicle contains the motor intended to form part of it). vehicle identification number means a vehicle identification number allocated to a vehicle in accordance with the national standards under the Motor Vehicle Standards Act 1989 of the Commonwealth. vehicle identification plate means a plate, label or other thing that has a vehicle identification number on it, is designed to be attached to a motor vehicle and which: (a) enables the motor vehicle to be identified for the purposes of registration under a law of any jurisdiction, or

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s 156

CRIMES ACT 1900 (NSW) — PART 4

[8-s 156]

(b) includes information relating to the manufacture of the motor vehicle or compliance with the national standards under the Motor Vehicle Standards Act 1989 of the Commonwealth. [subs (3) am Act 19 of 2013 Sch 4 item 4.8[10], opn 1 July 2013]

COMMENTARY ON SECTION 154J Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 154J.1] [8-s 154J.5] [8-s 154J.10]

[8-s 154J.1] Summary disposal An offence under the section is a Table 2 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment by the prosecutor, see s 260(2) at [2-s 260] and [2-Sch 1] Pt 2 cl 4. The maximum penalty which can be imposed is 24 months imprisonment, or a fine of 50 penalty units, or both. However, the maximum fine that a Local Court may impose if the value of the property, amount of money or reward concerned does not exceed $2,000 is 20 penalty units: see at [2-s 268].

[8-s 154J.5] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did knowingly possess a vehicle identification plate not attached to the motor vehicle to which it relates. [8-s 154J.10] Elements of offence The elements of the offence are — (1) The accused: (a) without reasonable excuse; (b) knowingly [6-515] had possession [8-s 7] of a vehicle identification plate [8-s 154J(3)] not attached to the motor vehicle to which it relates.

DIVISION 6 — EMBEZZLEMENT OR LARCENY [Div 6 (formerly Pt 4, Div 1, subdiv 6) am Act 99 of 2009 Sch 2, opn 22 Feb 2010]

[8-s 155] Definition of clerk or servant 155 Every person employed for any purpose, as, or in the capacity of, a clerk, or servant, or as a collector of moneys, although temporarily only, or employed also by other persons, or employed to pay as well as receive moneys, or although the person had no authority from his or her employer to receive money, or other property, on his or her account, shall be deemed a clerk, or servant. [s 155 am Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998]

[8-s 156] Larceny by clerks or servants 156 Whosoever, being a clerk, or servant, steals any property belonging to, or in the possession, or power of, his or her master, or employer, or any property into or for which it has been converted, or exchanged, shall be liable to imprisonment for ten years. [s 156 am Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998; am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000] Editor’s note: For proof material on s 156, see [27-24,150] behind the “27 – Informations and Indictments” guide card in Vol 4.

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PROOF MATERIAL ON SECTION 154J For the text of s 154J, see [8-s 154J] behind the “8 – Crimes Act” guide card in Vol 1.

[8-s 156.1]

s 156

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

COMMENTARY ON SECTION 156 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Clerk or servant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 156.1] [8-s 156.5] [8-s 156.10] [8-s 156.15]

[8-s 156.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act where the value of the property exceeds $5000 and a Table 2 offence under that Act where the value of the property does not exceed $5000, see at [2-s 260] and [2-Sch 1] Pt 2 cl 3. Where the offence is a Table 1 offence the maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. Where the offence is a Table 2 offence the maximum penalty that can be imposed is 24 months imprisonment or a fine of 50 penalty units or both, but where the property does not exceed $2000, the maximum fine is 20 penalty units: see at [2-s 268]. [8-s 156.5] Clerk or servant “Clerk or servant”— Whether a person is a clerk or servant is a matter of fact. One test is whether the person was bound to obey the orders of his employer, so that he is under the employer’s control: R v Negus (1873) LR 2 CCR 34. PROOF MATERIAL ON SECTION 156 For the text of s 156, see [8-s 156] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 156.10] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, being then a clerk/servant of [name of employer] did steal certain property, namely [describe property stolen], the property of/being property in the possession of/being property in the power of, the said [name of employer] his/her master/employer. [8-s 156.15] Elements of offence The elements of the offence are — (1) The accused was a clerk or servant [8-s 156.5] of the victim; and (2) the accused stole [8-s 117.5][27-23,055] property [8-s 4]; and (3) that property either: (i) belonged to his or her master or employer [8-s 4]; (ii) was in the possession of his or her master or employer [8-s 4]; (iii) was in the power of his or her master or employer [8-s 4]; or (iv) was property into or for which (i)–(iii) had been converted or exchanged.

[8-s 157] Embezzlement by clerks or servants 157 Whosoever, being a clerk, or servant, fraudulently embezzles, either the whole or any part of, any property delivered to, or received, or taken into possession by him or her, for, or in the name, or on the account of, his or her master, or employer, shall be deemed to have stolen the same, although such property was not received into the possession of such master, or employer, otherwise than by the actual possession of such clerk, or servant, and shall be liable to imprisonment for ten years. [s 157 am Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998; am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000] Editor’s note: For proof material on s 157, see [27-24,200] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 157 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . General deficiency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Embezzlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[8-s 157.1] [8-s 157.5] [8-s 157.10]

s 158

CRIMES ACT 1900 (NSW) — PART 4

Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alternative verdicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 158.10] [8-s 157.15] [8-s 157.20] [8-s 157.25]

[8-s 157.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act where the value of the property exceeds $5000 and a Table 2 offence under that Act where the value of the property does not exceed $5000, see at [2-s 260] and [2-Sch 1] Pt 2 cl 3. Where the offence is a Table 1 offence the maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. Where the offence is a Table 2 offence the maximum penalty that can be imposed is 24 months imprisonment or a fine of 50 penalty units or both, but where the property does not exceed $2000, the maximum fine is 20 penalty units: see at [2-s 268]. [8-s 157.5] General deficiency Pursuant to s 163, where a charge under this section concerns money, it is not necessary to prove the embezzlement of a specific sum if there is proof of a general deficiency on examination of the records kept or made by the accused and it is proved he or she stole the money: see Caratti v R [1984] WAR 313; (1984) 10 A Crim R 328.

PROOF MATERIAL ON SECTION 157 For the text of s 157, see [8-s 157] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 157.15] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales being a clerk/servant to [name of employer] did by virtue of his/her employment and being so employed, have delivered/receive/take into his/her possession the whole/part of property namely [describe property] for/in the name of/on account of his/her master/employer the said [name of employer] and did fraudulently embezzle the said property. [8-s 157.20] Elements of offence The elements of the offence are — (1) The accused was a clerk or servant [8-s 156.5] of the victim, his/her master or

employer; and (2) the accused had delivered to, received or took into his/her possession, property

[8-s 4] for or, in the name of, or on account of the victim, his/her master or employer; and (3) the accused fraudulently [8-s 134.5] embezzled [8-s 157.10] that property. [8-s 157.25] Alternative verdicts Where on the trial of an accused for embezzlement as a clerk or servant, it appears that the accused obtained the property in such manner as to amount in law to larceny, the jury may acquit the accused of the offence charged, and find the accused guilty of larceny or larceny as a clerk or servant: see s 163 at [8-s 163].

158

[s 158 rep Act 99 of 2009 Sch 2, opn 22 Feb 2010]

Editor’s note: for commentary on s 158 please refer to that section number in 8A – Crimes Act: Repealed Legislation.

PROOF MATERIAL ON SECTION 158 For the text of s 158, see [8-s 158] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 158.5] Form of indictment [8-s 158.10] Clerk or servant destroying book etc That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales being a clerk/servant to [name of

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[8-s 157.10] Embezzlement It is larceny where the property is in the possession of the master; it is embezzlement where the property is taken before the master obtains possession of it. The property must have been received by the clerk on behalf of the master: R v Davenport [1954] 1 All ER 602.

[8-s 158.10]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 158

employer], with intent to defraud, did destroy/alter/mutilate/falsify a book/paper/writing/valuable security/account belonging to/in the possession of/received for [name of employer], his/her employer. [8-s 158.15] Clerk or servant making false entry That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales being a clerk/servant to [name of employer], with intent to defraud, did make a false entry/did concur in the making of a false entry/did omit/alter any material particular/did concur in omitting/altering any material particular from/in a book/writing/account belonging to/in the possession of/received for [name of employer], his/her employer, namely [particularise the entries or omissions relied upon]. [8-s 158.20] Elements of offence

The elements of the offence are —

[8-s 158.25] Clerk or servant destroying book etc (1) The accused intended [6-500] to defraud [8-s 125.25]; and (2) the accused was a clerk or servant [8-s 156.5], or person acting in the capacity

of a clerk or servant, to the victim, his or her employer; and (3) the accused destroyed, altered, mutilated or falsified [8-s 158.5] any book,

paper, writing [29-45,200], valuable security [8-s 4] or account, that belonged to or was in the possession of or was received for that employer. [8-s 158.30] Clerk or servant making false entry (1) The accused intended [6-500] to defraud [8-s 125.25]; and (2) the accused was a clerk or servant [8-s 156.5], or person acting in the capacity

of a clerk or servant, to the victim, his or her employer; and (3) the accused made, or concurred in the making of any false entry in or omitted

or altered or concurred in the omission or alteration of any material from, or in any such book or writing [29-45,200] or account.

[8-s 159] Larceny by persons in Public Service 159 Whosoever, being employed in the Public Service, steals any property, or any part thereof, intrusted to him or her, or taken into his or her possession, or being in his or her custody, or under his or her control, by virtue or colour of such employment, shall be liable to imprisonment for ten years. [s 159 am Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998; am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000] Editor’s note: For proof material on s 159, see [27-24,300] behind the 27 – Informations and Indictments guide card in Vol 4.

COMMENTARY ON SECTION 159 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Custody . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Possession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . General deficiency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . “By virtue of his employment” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Necessary averments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[8-s 159.1] [8-s 159.5] [8-s 159.10] [8-s 159.15] [8-s 159.20] [8-s 159.25] [8-s 159.30] [8-s 159.35] [8-s 159.40] [8-s 159.45]

s 160

CRIMES ACT 1900 (NSW) — PART 4

[8-s 160]

[8-s 159.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act where the value of the property exceeds $5000 and a Table 2 offence under that Act where the value of the property does not exceed $5000, see at [2-s 260] and [2-Sch 1] Part 2 clause 3. Where the offence is a Table 1 offence the maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. Where the offence is a Table 2 offence the maximum penalty that can be imposed is 24 months imprisonment or a fine of 50 penalty units or both, but where the property does not exceed $2000, the maximum fine is 20 penalty units: see at [2-s 268]. [8-s 159.5] Definitions As to “steals” see [8-s 117]. As to “property” see s 4 at [8-s 4]. [8-s 159.10] Form of indictment It is unnecessary to specify details of any money stolen see at [2-Sch 3] clause 9. Property may be laid in the State, see at [2-Sch 3] clause 12. [8-s 159.15] Custody Is “the immediate de facto control or charge of the article in question”: Ex parte McPherson (1933) 50 WN (NSW) 25.

[8-s 159.25] General deficiency

See s 161 at [8-s 161.1].

[8-s 159.30] “By virtue of his employment” Semble property does not come into the possession of a person by virtue of his employment unless the person had authority to receive it: R v O’Donoghue (1917) 23 CLR 9. PROOF MATERIAL ON SECTION 159 For the text of s 159, see [8-s 159] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 159.35] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, being then employed in the Public Service as a [describe position held] stole certain property, namely [describe property stolen], being property intrusted to him/her/being property taken into his/her possession/being property in his/her custody/being property under his/her control by virtue or colour of such employment. [8-s 159.40] Elements of offence The elements of the offence are — (1) The accused was employed in the Public Service; and (2) the accused stole [8-s 117.5][27-23,055] property [8-s 4]; and (3) that property was intrusted to the accused or taken into possession [8-s

159.20] or being in custody [8-s 159.15] or under control of the accused by virtue or colour of such employment. [8-s 159.45] Necessary averments It is unnecessary to specify details of any money stolen: see Sch 3 cl 9 Criminal Procedure Act 1986 at [2-cl 9]. Property may be laid in the state: see Sch 3 cl 12 Criminal Procedure Act at [2-cl 12].

[8-s 160] Embezzlement etc by persons in the Public Service 160 Whosoever, being employed in the Public Service, fraudulently embezzles any property, or any part thereof, so intrusted to him or her, or taken into his or her possession, or being in his or her custody, or under his or her control, or fraudulently

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Crimes

[8-s 159.20] Possession “denotes a physical control or custody of a thing plus knowledge that you have it in your possession or control”: Warner v Met Police Cmr [1969] 2 AC 256; 2 All ER 356. See also s 7 at [8-s 7].

[8-s 160]

s 160

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

secretes, removes, or in any manner fraudulently applies, or disposes of, the same, or any part thereof, shall be deemed to have stolen the same, and shall be liable to imprisonment for ten years. [s 160 am Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998; am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000] Editor’s note: For proof material on s 160, see [27-24,350] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 160 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . General deficiency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alternative verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . “By virtue of his employment” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alternative verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 160.1] [8-s 160.5] [8-s 160.10] [8-s 160.15] [8-s 160.20] [8-s 160.25] [8-s 160.30] [8-s 160.35]

[8-s 160.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act where the value of the property exceeds $5000 and a Table 2 offence under that Act where the value of the property does not exceed $5000, see at [2-s 260] and [2-Sch 1] Pt 2 cl 3. Where the offence is a Table 1 offence the maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. Where the offence is a Table 2 offence the maximum penalty that can be imposed is 24 months imprisonment or a fine of 50 penalty units or both, but where the property does not exceed $2000, the maximum fine is 20 penalty units: see at [2-s 268]. [8-s 160.5] Definitions As to “fraudulently” see [8-s 134.5]. As to “embezzles” see [8-s 157.10]. As to “property” see s 4 at [8-s 4]. As to “possession” see [8-s 159.15]. As to “custody” see [8-s 159.10]. [8-s 160.10] General deficiency

See s 161 at [8-s 161.1].

[8-s 160.15] Alternative verdict The person may be convicted of larceny or larceny as a Public Servant. See s 163 at [8-s 163]. [8-s 160.20] “By virtue of his employment”

See [8-s 159.25].

PROOF MATERIAL ON SECTION 160 For the text of s 160, see [8-s 160] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 160.25] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, being then employed in the Public Service as a [describe position held] having being intrusted with/having taken into possession/being in the custody of/having under control property, namely [describe property subject of the charge] fraudulently embezzled/secreted/removed/applied/disposed of (a part of) that property. [8-s 160.30] Elements of offence The elements of the offence are — (1) The accused was employed in the Public Service; and (2) the accused: (i) had been intrusted with; (ii) had taken into possession [8-s 159.20]; (iii) had custody [8-s 159.15] of; or (iv) had under his/her control;

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s 162

CRIMES ACT 1900 (NSW) — PART 4

[8-s 162.1]

property [8-s 4]; and (3) the accused fraudulently [8-s 134.5] embezzled [8-s 157.10], secreted,

removed, applied or disposed of that property or any part thereof. [8-s 160.35] Alternative verdict An accused charged with an offence under this section may be acquitted of this offence and convicted of larceny or larceny as a Public Servant: see s 163 at [8-s 163].

[8-s 161] Proof of general deficiency in accounts 161 On the prosecution of a person for larceny, or embezzlement as a clerk, or servant, or as a person employed in the Public Service, where the charge is in respect of money, it shall not be necessary to prove the larceny, or embezzlement, by the accused of any specific sum of money, if there is proof of a general deficiency on the examination of the books of account, or entries kept, or made by him or her, or otherwise, and the jury are satisfied that he or she stole, or fraudulently embezzled the deficient money, or any part thereof. COMMENTARY ON SECTION 161 General deficiency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 161.1]

[8-s 161.1] General deficiency Where the charge is in respect of money it is not necessary to prove the larceny of a specific sum if there is proof of a general deficiency on the examination of accounts kept or made by the accused and it is proved he stole the money: see Caratti v R [1984] WAR 313; (1984) 10 A Crim R 328. Where the charge is one of embezzlement, the prosecution must prove that the amount involved in the general deficiency was substantially received by the accused in order to rely on this provision, and if it can only prove a number of individual transactions then each transaction should be the subject of a separate charge: R v McMullen (1990) 54 SASR 55.

[8-s 162] Larceny etc by joint owners 162 Whosoever, being a member of any copartnership, or being one of two, or more, joint owners, steals, or embezzles, any property of, or belonging to, such copartnership, or joint owners, may be convicted of, and punished for, the offence as if he or she was not a member of the copartnership, or one of such joint owners. Copartnership shall, for the purposes of this section, include all corporations and societies whatsoever. [s 162 am Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998]

COMMENTARY ON SECTION 162 Scope of the section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 162.1] [8-s 162.5]

[8-s 162.1] Scope of the section The section was considered in Croton v R (1967) 117 CLR 326; [1968] ALR 331; BC6700090, where it was held that: “It (the section) does no more than remove the objection that one joint owner could not at common law be guilty of larceny in the property jointly owned. It simply required that he be treated as if he were not a joint owner. It does not remove the necessity for all the elements of larceny to be present” at 332 per Barwick CJ.

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Crimes

[s 161 am Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998]

[8-s 162.5]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 162

[8-s 162.5] Form of indictment It is not necessary to name all the persons who are in joint ownership of property: see at [2-Sch 3] clause 15.

[8-s 163] Trial for embezzlement — verdict of larceny 163 Where, on the trial of any person for embezzlement, or the fraudulent application, or disposition, of property as a clerk, or servant, or person employed in the Public Service, it appears that the person obtained the property in such manner as to amount in law to larceny, the jury may acquit the person of the offence charged, and find the person guilty of larceny, or of larceny as such clerk, servant, or person, as the case may be, and the person shall be liable to punishment accordingly. [s 163 am Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998] 164–186 [subdivs 7–15 of former Pt 1, Div 1 (ss 164–186) rep Act 99 of 2009 Sch 2, opn 22 Feb 2010] Editor’s note: for commentary dealing with ss 165–186 (where commentary existed before the provision was repealed) please refer to that section number in 8A – Crimes Act: Repealed Legislation.

DIVISION 16 — RECEIVERS [Div 16 (formerly Pt 4, Div 1, subdiv 16) am Act 99 of 2009 Sch 2, opn 22 Feb 2010]

[8-s 187] Term “stealing” in sections 188 and 189 187

For the purposes of sections 188 and 189:

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

[8-s 188] Receiving stolen property where stealing a serious indictable offence 188 (1) Whosoever receives, or disposes of, or attempts to dispose of, any property, the stealing whereof amounts to a serious indictable offence, knowing the same to have been stolen, shall be guilty of a serious indictable offence, and may be indicted, either as an accessory after the fact, or for a substantive offence, and in the latter case whether the principal offender has been previously tried or not, or is amenable to justice or not, and in either case is liable: (a) if the property is a motor vehicle or a motor vehicle part, or a vessel or a vessel part, to imprisonment for 12 years, or (b) in the case of any other property, to imprisonment for 10 years. [subs (1) am Act 26 of 2006 s 3 and Sch 1[8], opn 1 Sep 2006]

(2) In this section: motor vehicle has the same meaning as it has in Division 5A. [def am Act 99 of 2009 Sch 2, opn 22 Feb 2010]

vessel means a vessel within the meaning of the Marine Safety Act 1998. [subs (2) insrt Act 84 of 2001 s 3 and Sch 1[12], opn 14 Dec 2001; am Act 26 of 2006 s 3 and Sch 1[9]–[10], opn 1 Sep 2006] [s 188 am Act 50 of 1974 s 6; am Act 94 of 1999 s 5 and Sch 3[39]–[41] and [70], opn 1 Jan 2000; Act 84 of 2001 s 3 and Sch 1[11], opn 14 Dec 2001] Editor’s note: For proof material on s 188, see [27-25,450] behind the 27 – Informations and Indictments guide card in Vol 4.

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s 188

CRIMES ACT 1900 (NSW) — PART 4

COMMENTARY ON SECTION 188 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope of section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Knowing to have been stolen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recent possession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Act of receiving . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Proof of stealing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Indictment for larceny and receiving . . . . . . . . . . . . . . . . . . . . . . . . . . . Separate receivers in the same indictment . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alternative verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 188.15]

[8-s 188.1] [8-s 188.5] [8-s 188.10] [8-s 188.15] [8-s 188.25] [8-s 188.30] [8-s 188.35] [8-s 188.40] [8-s 188.45] [8-s 188.50] [8-s 188.55] [8-s 188.60]

[8-s 188.5] Scope of section The section applies to the receieving of goods stolen or obtained by the commission of a serious indictable offence that is an offence for which the maximum penalty prescribed is 5 years imprisonment or more. There are only a few offences in Part 4 of the Crimes Act which carry a maximum penalty of less than 5 years imprisonment and, therefore, are minor indictable offences: offences under ss 131, 132, 133, 150, 151, 168, 178B and 178C. This section is therefore the section used generally in relation to offences in Part 4 of the Act whereas the offence under s 189 will generally relate to summary offences in Part 14 of the Act and a small number of offences in Part 4. [8-s 188.10] Definitions As to “property” see s 4 at [8-s 4]. As to “stealing” see [8-s 117], but note the extended meaning of that term by s 187 at [8-s 187]. As to “serious indictable offence” see [8-s 4]. [8-s 188.15] Knowing to have been stolen The word “knowing”, “includes an actual belief of the accused that the property was stolen in the sense of the believer accepting the truth of that which he believes as distinct from having a mere suspicion”: R v Raad [1983] 3 NSWLR 344. It must be proved that the accused actually held the requisite knowledge or belief, and recklessness or negligence is not sufficient: R v Parker [1974] 1 NSWLR 14. The existence of suspicion as to the theft of the goods and the refusal to make enquiries may be of evidentiary value in relation to the question of whether the accused had the requisite knowledge, but the wilful shutting of eyes to avoid suspicions hardening into belief is insufficient without more: R v Schipanski (1989) 17 NSWLR 618. It must be made clear to the jury that, although they may have regard to what a reasonable person in the position of the accused would have believed in the circumstances, they can only do so in order to assist them to determine what the accused in fact believed on the particular occasion under consideration: R v Dykyj (1993) 29 NSWLR 273. See also R v McConnell (1993) 69 A Crim R 39 as to the directions to be given to a jury as to proof of knowledge. However, the appropriate direction to be given has been restated in R v Watkins (NSWCCA, Gleeson CJ, Cole JA, Sperling J, 5 April 1995, unreported, BC9504520); (1995) 2 Crim LN 30 [387]. The circumstances in which the defendant received the property may themselves be sufficient to prove that the accused knew they were stolen: R v Sbarra (1917) 13 Cr App R 118; R v Fuschello [1940] 2 All ER 489.

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[8-s 188.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act where the value of the property exceeds $5000 and a Table 2 offence under that Act where the value of the property does not exceed $5000, see at [2-s 260] and [2-Sch 1] Pt 2 cl 3. Where the offence is a Table 1 offence the maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. Where the offence is a Table 2 offence the maximum penalty that can be imposed is 24 months imprisonment or a fine of 50 penalty units or both, but where the property does not exceed $2000, the maximum fine is 20 penalty units: see at [2-s 268].

[8-s 188.25]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 188

[8-s 188.25] Recent possession Evidence that the accused was in possession of recently stolen property may be evidence that the accused was either the thief or the receiver of the property: see R v Bellamy (1981) 3 A Crim R 432; Bruce v R (1987) 74 ALR 219; Saleam v R (1989) 16 NSWLR 14; 39 A Crim R 406. In order to prove recent possession the prosecution does not have to prove possession in the same way as it does in relation to an offence involving possession but it is sufficient if it is shown that the accused had actual physical possession or that the property was in the physical possession of a person over whom the accused had some control. The nature of the possession will vary with the nature of the property: McCarthy v R (1993) 71 A Crim R 395; R v Cross (1995) 84 A Crim R 242. It is not necessary for recent possession that the accused be found in possession of the property at the time of his arrest provided at some time he had the property in his possession: Saleam v R (1989) 16 NSWLR 14; 39 A Crim R 406; R v Cross, above. Where the Crown is relying upon recent possession to prove that the accused is either the thief or the receiver but the accused is only charged with stealing, the jury must be directed that they should acquit the accused if they are not satisfied which offence has been committed: McCarthy v R (1993) 71 A Crim R 395. [8-s 188.30] Act of receiving The accused must have obtained possession of the property, or disposed of it, knowing it to have been stolen, so that an innocent obtaining of the property will not become an offence simply by later acquiring knowledge that it was stolen: see Murphy v Porter (1984) 12 A Crim R 38. [8-s 188.35] Proof of stealing Although it is necessary that the prosecution prove that the property was stolen, it is not necessary that either the circumstances of the theft or the identity of the owner of the goods be proved. The circumstances in which the accused obtained possession of the goods may be sufficient proof that the goods were stolen: R v Young [1953] 1 All ER 21. [8-s 188.40] Indictment for larceny and receiving A count of receiving may be added to an indictment alleging a stealing of the same property by the same person: see at [2-Sch 3] clause 7. A jury may bring in a special verdict under s 121 of the Crimes Act where it cannot say whether the accused is guilty of the larceny or the receiving. [8-s 188.45] Separate receivers in the same indictment Any number of receivers of stolen property or of different parts of the property can be charged with substantive offences in the same indictment, see at [2-Sch 3] clause 8. PROOF MATERIAL ON SECTION 188 For the text of s 188, see [8-s 188] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 188.50] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales received (and had)/disposed of/attempted to dispose of [describe property], the property of [name of owner], before then stolen, the stealing of which amounted to a serious indictable offence being [name the serious indictable offence committed by the stealing and see s 187], he/she the said [name of accused] at the time when he/she received/disposed/attempted to dispose of the said [describe property] knowing the same to have been stolen. [8-s 188.55] Elements of offence The elements of the offence are — (1) The accused received [8-s 188.30] or disposed of or attempted to dispose of

property [8-s 4]; (2) which had been stolen [27-23,055][8-s 187]; and (3) the stealing [27-23,055][8-s 187] of which would amount to a serious

indictable offence [8-s 4]; and (4) the accused did so knowing [8-s 188.15] that that property had been stolen

[27-23,055][8-s 187].

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s 189

CRIMES ACT 1900 (NSW) — PART 4

[8-s 189.25]

[8-s 188.60] Alternative verdict As to verdict of “larceny or receiving”: see s 121 at [8-s 121]. As to where several persons are indicted for jointly receiving, and where several persons are charged with larceny and also receiving: see s 122 at [8-s 122] and s 193 at [8-s 193].

[8-s 189] Receiving etc where principal guilty of minor indictable offence 189 Whosoever receives, or disposes of, or attempts to dispose of, any property, the stealing whereof is a minor indictable offence, knowing the same to have been stolen, shall be guilty of a minor indictable offence, and whether the person guilty of the principal offence has been previously tried or not, or is amenable to justice or not, shall be liable to imprisonment for three years. [s 189 am Act 94 of 1999 s 5 and Sch 3[42], opn 1 Jan 2000]

COMMENTARY ON SECTION 189 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope of the offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recent possession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Act of receiving . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Proof of stealing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alternative verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 189.1] [8-s 189.5] [8-s 189.10] [8-s 189.15] [8-s 189.20] [8-s 189.25] [8-s 189.30] [8-s 189.35] [8-s 189.40]

[8-s 189.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act where the value of the property exceeds $5000 and a Table 2 offence under that Act where the value of the property does not exceed $5000, see at [2-s 260] and [2-Sch 1] Part 2 clause 3. Where the offence is a Table 1 offence the maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. Where the offence is a Table 2 offence the maximum penalty that can be imposed is 24 months imprisonment or a fine of 50 penalty units or both, but where the property does not exceed $2000, the maximum fine is 20 penalty units: see at [2-s 268]. [8-s 189.5] Definitions As to “property” see s 4 of the Crimes Act at [8-s 4]. As to “stealing” see [8-s 117] but note the extended meaning of the word by s 187 at [8-s 187]. It would include an offence of obtaining by deception (s 178BA), obtaining by false or misleading statement (s 178BB), and fraudulent appropriation (s 124). As to “minor indictable offence” see [8-s 4]. [8-s 189.10] Scope of the offence The offence under this section should be used where the stealing or obtaining of the property would be a minor indictable offence, that is, an offence in respect of which the maximum penalty prescribed is less than 5 years imprisonment. This will generally be offences in Part 14 of the Crimes Act although there are a small number of offences in Part 4 to which the section will apply: see [8-s 188.5]. [8-s 189.15] Recent possession

See [8-s 188.25].

[8-s 189.20] Act of receiving

See [8-s 188.30].

[8-s 189.25] Proof of stealing

See [8-s 188.35].

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Editor’s note: For proof material on s 189, see [27-25,500] behind the “27 – Informations and Indictments” guide card in Vol 4.

[8-s 189.30]

s 189

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

PROOF MATERIAL ON SECTION 189 For the text of s 189, see [8-s 189] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 189.30] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales received (and had)/disposed of/attempted to dispose of [describe property], the property of [name of owner], before then stolen, the stealing of which amounted to a minor indictable offence being [name the minor indictable offence committed by the stealing and see s 187], he/she the said [name of accused] at the time when he/she received the said [describe property] knowing the same to have been stolen. [8-s 189.35] Elements of offence The elements of the offence are — (1) The accused received [8-s 188.30] or disposed or attempted to dispose of

property [8-s 4]; (2) which had been stolen [27-23,055], [8-s 187]; and (3) the stealing [27-23,055][8-s 187] of which would amount to a minor indictable

offence [8-s 4]; and (4) the accused did so knowing [8-s 188.15] that the property had been stolen

[27-23,055][8-s 187]. [8-s 189.40] Alternative verdict As to verdict of “larceny or receiving”: see s 121 at [8-s 121]. As to where several persons are indicated for jointly receiving, and where several persons are charged with larceny and also receiving: see s 122 at [8-s 122] and s 193 at [8-s 193].

[8-s 189A] Receiving etc goods stolen out of New South Wales 189A (1) Whosoever, without lawful excuse, receives or disposes of, or attempts to dispose of, or has in his or her possession, any property stolen outside the State of New South Wales, knowing the same to have been stolen, and whether or not he or she took part in the stealing of the property, shall be liable to imprisonment for ten years. [subs (1) am Act 50 of 1974 s 6; Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998; am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000]

(2) For the purposes of this section property shall be deemed to have been stolen if it has been taken, extorted, obtained, embezzled, converted, or disposed of under such circumstances that if the act had been committed in the State of New South Wales the person committing it would have been guilty of an indictable offence according to the law for the time being of the State of New South Wales. (3) No person shall be liable to conviction under this section if the taking, extorting, obtaining, embezzling, converting, or disposing is not a criminal offence in the country in which the act is committed. [s 189A insrt Act 10 of 1924 s 9] Editor’s note: For proof material on s 189A, see [27-25,550] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 189A Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Lawful excuse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alternative verdicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[8-s 189A.1] [8-s 189A.5] [8-s 189A.10] [8-s 189A.15] [8-s 189A.20] [8-s 189A.25]

s 189B

CRIMES ACT 1900 (NSW) — PART 4

[8-s 189B]

[8-s 189A.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act where the value of the property exceeds $5000 and a Table 2 offence under that Act where the value of the property does not exceed $5000, see at [2-s 260] and [2-Sch 1] Pt 2 cl 3. Where the offence is a Table 1 offence the maximum penalty which can be imposed is 2 years imprisonment; see at [2-s 267]. Where the offence is a Table 2 offence the maximum penalty that can be imposed is 24 months imprisonment or a fine of 50 penalty units or both, but where the property does not exceed $2000, the maximum fine is 20 penalty units: see at [2-s 268]. [8-s 189A.5] Definitions As to “property” see s 4 at [8-s 4]. As to “receives” see [8-s 188.25]. As to “possession” see [8-s 159.15]. [8-s 189A.10] Lawful excuse The onus is upon the accused to prove that he had a lawful excuse: see s 417. A lawful excuse is “authority supported by law”: Crafter v Kelly [1941] SASR 237.

[8-s 189A.15] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales received (and had)/disposed of/attempted to dispose of/had in his/her possession [describe property], the property of [name of owner], before then stolen, he/she the said [name of accused] at the time when he/she received/disposed/attempted to dispose of the said [describe property] knowing the same to have been stolen outside the State of New South Wales. [8-s 189A.20] Elements of offence The elements of the offence are — (1) The accused received [8-s 188.30], disposed or attempted to dispose or had in

possession [8-s 159.20] property [8-s 4], without lawful excuse; (2) which had been stolen [27-23,055] (see extended definition s 189A(2)) outside

the State of New South Wales; (3) the stealing [27-23,055] of which would amount to an indictable offence

according to the law of New South Wales; and (4) the accused did so knowing [8-s 188.15] that the property had been stolen

[27-23,055]. [8-s 189A.25] Alternative verdicts As to verdict of “larceny or receiving”: see s 121 at [8-s 121]. As to where several persons are indicted for jointly receiving, and where several persons are charged with larceny and also receiving: see s 122 at [8-s 122] and s 193 at [8-s 193].

[8-s 189B] Prosecution under section 188 or 189 where property stolen in course of transmission 189B (1) Where in the trial of a person for the offence under section 188 or 189 of receiving, or disposing of, or attempting to dispose of, any property knowing it to have been stolen, it is proved that the property was stolen in the course of transmission between New South Wales and any other jurisdiction or between any other jurisdiction and New South Wales: (a) the person shall be liable to be convicted of the offence without proof that the stealing took place in New South Wales, and

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PROOF MATERIAL ON SECTION 189A For the text of s 189A, see [8-s 189A] behind the “8 – Crimes Act” guide card in Vol 1.

[8-s 189B]

s 189B

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

(b) for the purpose of determining whether or not the stealing amounts to a serious indictable offence or a minor indictable offence, the stealing shall be deemed to have taken place in New South Wales. [subs (1) am Act 94 of 1999 s 5 and Sch 3[43], opn 1 Jan 2000]

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

[8-s 190] Receiving etc cattle unlawfully killed, or carcass etc 190

Whosoever: receives any animal, unlawfully killed, with intent to steal the carcass, or skin, or other part thereof, knowing the same to have been so killed, or receives, or disposes of, or attempts to dispose of, any part of an animal so killed, or of an animal unlawfully stolen, knowing it to have been so killed or so stolen, shall be guilty of a serious indictable offence, and may be indicted and punished as if the animal had been stolen, and the accused had unlawfully received the same. [s 190 am Act 94 of 1999 s 5 and Sch 3[21] and [28], opn 1 Jan 2000] Editor’s note: For proof material on s 190, see [27-25,600] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 190 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Receiving animal with intent to steal . . . . . . . . . . . . . . . . . . . . . . . . Receiving animal unlawfully stolen or killed . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Receiving animal with intent to steal . . . . . . . . . . . . . . . . . . . . . . . . Receiving animal unlawfully killed or stolen . . . . . . . . . . . . . . . . . Alternative verdicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 190.1] [8-s 190.5] [8-s 190.10] [8-s 190.15] [8-s 190.20] [8-s 190.25] [8-s 190.30] [8-s 190.35] [8-s 190.40] [8-s 190.45]

[8-s 190.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act where the value of the property exceeds $5000 and a Table 2 offence under that Act where the value of the property does not exceed $5000, see at [2-s 260] and [2-Sch 1] Part 2 clause 3. Where the offence is a Table 1 offence the maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. Where the offence is a Table 2 offence the maximum penalty that can be imposed is 24 months imprisonment or a fine of 50 penalty units or both, but where the property does not exceed $2000, the maximum fine is 20 penalty units: see at [2-s 268]. [8-s 190.5] Definitions As to “cattle” see s 4 at [8-s 4]. As to “receives” see [8-s 188.30]. As to “steal” see [8-s 117]. As to “serious indictable offence” see [8-s 4]. [8-s 190.10] Intoxication An offence under this section which is alleged to have been committed after 16 August 1996 is an offence of specific intent for the purpose of Pt 11A Crimes Act 1900 relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. PROOF MATERIAL ON SECTION 190 For the text of s 190, see [8-s 190] behind the “8 – Crimes Act” guide card in Vol 1.

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s 192

CRIMES ACT 1900 (NSW) — PART 4

[8-s 192]

[8-s 190.15] Form of indictment [8-s 190.20] Receiving animal with intent to steal That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales received [describe animal] the property of [name of owner], that [name of animal] having been unlawfully killed, with intent to steal the carcass/skin/[describe any other part thereof], he/she the said accused knowing the same to have been unlawfully killed. [8-s 190.25] Receiving animal unlawfully stolen or killed That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales received (and had)/disposed of/attempted to dispose of (part of) [describe animal], the property of [name of owner], that [describe animal] having been unlawfully stolen/killed, he/she the said [name of accused] knowing the same to have been unlawfully stolen/killed. [8-s 190.30] Elements of offence

The elements of the offence are —

[8-s 190.35] Receiving animal with intent to steal (1) The accused received [8-s 188.30] an animal; (2) which had been unlawfully killed; (3) with intent [6-500] to steal [27-23,055] the carcass, skin or any other part of

[8-s 190.40] Receiving animal unlawfully killed or stolen (1) The accused received [8-s 188.30] or disposed of or attempted to dispose of; (2) an animal that had been either: (i) unlawfully killed; or (ii) unlawfully stolen; and (3) in so doing, the accused knew that it had been so killed or so stolen

[27-23,055]. [8-s 190.45] Alternative verdicts As to verdict of stealing or receiving: see s 121 at [8-s 121]. As to where several persons are indicated for jointly receiving, and where several persons are charged with stealing and also receiving: see s 122 at [8-s 122] and s 193 at [8-s 193].

[8-s 191] Uncertainty as to sex or age not to entitle to acquittal 191 Where, on the trial of a person for an offence under section 190, it appears that the animal was of the species mentioned in the indictment, but it is uncertain on the evidence what was its sex or age, such person shall not be entitled to acquittal by reason only of such uncertainty.

[8-s 192] Receiving material or tools intrusted for manufacture 192 Whosoever receives any goods, article, or material or any tools, or apparatus for manufacturing, or working up, the same, knowing the same to have been purloined, embezzled, or secreted, within the meaning of section 151, or that the person offering the same is fraudulently disposing thereof, shall be liable to imprisonment for four years. Editor’s note: For proof material on s 192, see [27-25,650] behind the “27 – Informations and Indictments” guide card in Vol 4.

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that animal; (4) knowing that the animal had been so killed.

[8-s 192.1]

s 192

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

COMMENTARY ON SECTION 192 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Receiving goods etc purloined etc . . . . . . . . . . . . . . . . . . . . . . . . . . Receiving goods etc from person fraudulently disposing . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Receiving goods etc purloined etc . . . . . . . . . . . . . . . . . . . . . . . . . . Receiving goods etc from person fraudulently disposing . . . . . .

[8-s 192.1] [8-s 192.5] [8-s 192.10] [8-s 192.15] [8-s 192.20] [8-s 192.25] [8-s 192.30] [8-s 192.35]

[8-s 192.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act where the value of the property exceeds $5000 and a Table 2 offence under that Act where the value of the property does not exceed $5000, see at [2-s 260] and [2-Sch 1] Part 2 clause 3. Where the offence is a Table 1 offence the maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. Where the offence is a Table 2 offence the maximum penalty that can be imposed is 24 months imprisonment or a fine of 50 penalty units or both, but where the property does not exceed $2000, the maximum fine is 20 penalty units: see at [2-s 268]. [8-s 192.5] Definitions As to “receives” see [8-s 188.30] As to “embezzled” see [8-s 157.10] For s 151 see [8-s 151]. PROOF MATERIAL ON SECTION 192 For the text of s 192, see [8-s 192] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 192.10] Form of indictment [8-s 192.15] Receiving goods etc purloined etc That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales received and had certain goods/article/material/tools/apparatus for manufacturing/working up, namely [describe property], the property of [name of owner], before then purloined/embezzled/secreted by [name of other party if known], he/she the said [name of accused] at the time when he/she received the said [describe property] knowing the same to have been purloined/embezzled/secreted. [8-s 192.20] Receiving goods etc from person fraudulently disposing That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales received and had certain goods/article/material/tools/apparatus for manufacturing/working up, namely [describe property], the property of [name of owner], he/she the said [name of accused] at the time when he/she received the said [describe property] knowing the person offering the same was fraudulently disposing thereof. [8-s 192.25] Elements of offence

The elements of the offence are —

[8-s 192.30] Receiving goods etc purloined etc (1) The accused received [8-s 188.30] any goods, article, or material or any tools

or apparatus for manufacturing or working up; and (2) knew that the same had been purloined, embezzled [8-s 157.10], or secreted

within the meaning of s 151[8-s 151]. [8-s 192.35] Receiving goods etc from person fraudulently disposing (1) The accused received [8-s 188.30] any goods, article, or material or any tools

or apparatus for manufacturing or working up; and (2) knew that the person offering the same was fraudulently disposing thereof.

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s 192B

CRIMES ACT 1900 (NSW) — PART 4AA

[8-s 192B.15]

[8-s 192A] Verdict where several persons are indicted for jointly receiving 192A Where, on the trial of two or more persons for jointly receiving property, it appears that one, or more, separately received such property, or any part thereof, the jury may convict such one or more of the said persons as is, or are, proved to have so received the same. [s 193 renum as s 192A by Act 99 of 2009 Sch 2, opn 22 Feb 2010]

PART 4AA — FRAUD [Pt 4AA insrt Act 99 of 2009 Sch 1, opn 22 Feb 2010]

DIVISION 1 — PRELIMINARY

192B (1) In this Part, deception means any deception, by words or other conduct, as to fact or as to law, including: (a) a deception as to the intentions of the person using the deception or any other person, or (b) conduct by a person that causes a computer, a machine or any electronic device to make a response that the person is not authorised to cause it to make. (2) A person does not commit an offence under this Part by a deception unless the deception was intentional or reckless. COMMENTARY ON SECTION 192B Purpose of the Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Deception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 192B.5] [8-s 192B.10] [8-s 192B.15]

[8-s 192B.5] Purpose of the Part In the second reading speech for the Crimes Amendment (Fraud, Identity and Forgery Offences) Bill 2009, which created this Part, the Attorney General said (Legislative Council, Hansard, 12 November 2009): This bill . . . modernises and simplifies the existing fraud and forgery offences in the Crimes Act and deletes the outdated and redundant provisions, replacing them with provisions that conceptually fit in a modern Crimes Act. The bill also adopts a number of the provisions and more broadly the structure of the national Model Criminal Code. It will bring New South Wales more in step with the national approach to fraud, forgery and identity crime, and will give law enforcement the tools required in a modern age to actively combat these crimes. [8-s 192B.10] Definition

As to “reckless” see at [8-s 4A].

[8-s 192B.15] Deception The following commentary related to the words “by any deception” in the section replaced by this Part. It may provide guidance in the interpretation of these words in this new Part, but it ought to be kept in mind that the two statutory schemes are not identical. It is an essential ingredient of the offence that the cause of the payment of the money or the handing over of the valuable thing was the deception used by the accused: R v Ho (1989) 39 A Crim R 145; BC8902362; R v Clarkson [1987] VR 962; (1987) 25 A Crim R 277. It does not matter that the person deceived is not the person from whom the property is obtained: R v Kovacs [1974] 1 All ER 1236; (1974) 138 JP 425; R v Charles [1977] AC 177; R v Clarkson, above. There must be a sufficient connection between the deception and the obtaining, and the deception must be an operative cause of the obtaining: R v King [1987] QB 547. As to reckless intention, see R

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[8-s 192B] Deception

[8-s 192B.15]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 192B

v Smith (1982) 7 A Crim R 437 where it was held that if a person had adverted to a probable consequence and acted with indifference to that consequence, or was willing to run the risk of it occurring, then he was reckless so far as that consequence was concerned. As to a deception based upon proceedings commenced by a false statement of claim see Jamieson v R (1993) 177 CLR 574; 116 ALR 193; [1993] HCA 48; BC9303581, overruling R v Beydoun (1990) 22 NSWLR 256; 51 A Crim R 89, where it was held that no relevant distinction could be made between an allegation that the serving of a statement of claim was false and an allegation that a statement made in the statement of claim was false and that neither could be the subject of an allegation of a criminal offence under the section. However, the decision in Jamieson, above, relates only to pleadings and does not mean that no demand made in or for the purposes of litigation may be treated as containing a representation of fact for the purpose of the criminal law: Downey v R (1994) 68 ALJR 371. A representation can be continuing so that with a change of circumstances it can become false to the knowledge of the accused: Director of Public Prosecutions v Ray [1974] AC 370; [1973] 3 All ER 131. The question whether a person was authorised within the terms of s 192B(1)(b) to make withdrawals from an account to the amount of $2.1 million was considered in Moore v R [2016] NSWCCA 260; BC201610237; 24(2) Crim LN [3793]. The court overturned a conviction under the section on the basis that the bank had authorised the conduct by simply charging fees and interest on the negative balance in the account. The bank was aware of the situation. The terms of the account did not forbid an account being overdrawn but rather recognised that it could be but would incur fees and interest.

[8-s 192C] Obtaining property belonging to another 192C (1) For the purposes of this Part, a person obtains property if: (a) the person obtains ownership, possession or control of the property for himself or herself or for another person, or (b) the person enables ownership, possession or control of the property to be retained by himself or herself or by another person, or (c) the person induces a third person to do something that results in the person or another person obtaining or retaining ownership, possession or control of the property. (2) A person does not commit an offence under this Part by obtaining or intending to obtain property belonging to another unless the person intends to permanently deprive the other of the property. (3) For the purposes of this Part, property belongs to a person if: (a) the person has possession or control of the property, or (b) the person has a proprietary right or interest in the property (not being an equitable interest arising only from an agreement to transfer or grant an interest or from a constructive trust). If property is subject to a trust, the persons to whom it belongs include any person having a right to enforce the trust. (4) A person obtaining property belonging to another without meaning the other permanently to lose the thing itself has, nevertheless, the intention of permanently depriving the other of it if the person’s intention is to treat the thing as his or her own to dispose of regardless of the other’s rights. A borrowing or lending of the property may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal. (5) Without limiting the generality of subsection (4), if:

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s 192D

CRIMES ACT 1900 (NSW) — PART 4AA

[8-s 192D.5]

(a) a person has possession or control (lawfully or not) of property belonging to another, and (b) the person parts with the property under a condition as to its return that the person may not be able to perform, and (c) the parting is done for the purposes of his or her own and without the other’s authority, the parting amounts to treating the property as his or her own to dispose of regardless of the other’s rights. COMMENTARY ON SECTION 192C Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 192C.5]

[8-s 192C.5] Definitions As to “possession” see at [8-s 7.1]. As to “property” see at [8-s 4].

192D (1) In this Part, obtain a financial advantage includes: (a) obtain a financial advantage for oneself or for another person, and (b) induce a third person to do something that results in oneself or another person obtaining a financial advantage, and (c) keep a financial advantage that one has, whether the financial advantage is permanent or temporary. (2) In this Part, cause a financial disadvantage means: (a) cause a financial disadvantage to another person, or (b) induce a third person to do something that results in another person suffering a financial disadvantage, whether the financial disadvantage is permanent or temporary. COMMENTARY ON SECTION 192D Financial advantage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 192D.5]

[8-s 192D.5] Financial advantage The following commentary assisted in interpreting “financial advantage” in the sections replaced by this Part. It may provide guidance in the interpretation of the term in this new Part, but it ought to be kept in mind that the two statutory schemes are not identical. As to what may be a financial advantage, see D Lanham “Obtaining a Financial Advantage by Deception in Victoria” (1977) 1 Crim LJ 188; I D Elliot “Obtaining a Financial Advantage by Deception — A Comment” (1978) 2 Crim LJ 18 and A Steel “Money for Nothing, Cheques for Free? The Meaning of ‘Financial Advantage’ in Fraud Offences” (2007) 31 Melbourne University Law Review 201. The words should be given their plain meaning and not narrowly construed, so that it was held in Matthews v Fountain [1982] VR 1045 that a financial advantage was obtained by the use of a valueless cheque given to an employee, even though the accused could not pay the money owed, on the basis that the accused obtained the benefit of further time to pay and did not have to pay the value of the cheque. See also R v Vasic (2005) 11 VR 380; 155 A Crim R 26; [2005] VSCA 38; BC200501139. However, there was no financial advantage where the accused merely secured the deferral or repayment of money owed by giving a valueless cheque: Fisher v Bennett (1987) 85 FLR 469. A financial advantage can be obtained even though there is no financial disadvantage to be suffered by the victim: R v Walsh (1990) 52 A Crim R 80. There must be a causal connection between the financial advantage obtained and the deception practised

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Crimes

[8-s 192D] Obtaining financial advantage or causing financial disadvantage

[8-s 192D.5]

s 192D

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

although the financial advantage does not have to be gained from the person deceived: R v Kovacs [1974] 1 All ER 1236; (1974) 138 JP 425; to obtain the registration of a motor vehicle is not the obtaining of a financial advantage: Coelho v Durbin (NSWSC, Badgery-Parker J, 29 March 1993, unreported, BC9304122).

DIVISION 2 — FRAUD AND RELATED OFFENCES

[8-s 192E] Fraud 192E (1) A person who, by any deception, dishonestly: (a) obtains property belonging to another, or (b) obtains any financial advantage or causes any financial disadvantage, is guilty of the offence of fraud. Maximum penalty: Imprisonment for 10 years. (2) A person’s obtaining of property belonging to another may be dishonest even if the person is willing to pay for the property. (3) A person may be convicted of the offence of fraud involving all or any part of a general deficiency in money or other property even though the deficiency is made up of any number of particular sums of money or items of other property that were obtained over a period of time. (4) A conviction for the offence of fraud is an alternative verdict to a charge for the offence of larceny, or any offence that includes larceny, and a conviction for the offence of larceny, or any offence that includes larceny, is an alternative verdict to a charge for the offence of fraud. COMMENTARY ON SECTION 192E Scope of the section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . By any deception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 192E.5] [8-s 192E.10] [8-s 192E.15] [8-s 192E.20]

[8-s 192E.5] Scope of the section In the second reading speech for the Crimes Amendment (Fraud, Identity and Forgery Offences) Bill 2009, the Attorney General said (Legislative Council, Hansard, 12 November 2009): Schedule 1 [3] inserts a new part 4AA into the Crimes Act and contains the new fraud provisions. The principal fraud offence is contained in clause 192E which makes it an offence for a person by any deception to dishonestly obtain another’s property, obtain any financial advantage or cause any financial disadvantage. This offence carries a maximum penalty of 10 years imprisonment. This one provision clearly covers most fraud cases, and ensures that only people that have been deceptive and dishonest will be prosecuted. The Model Criminal Code definition of dishonest has been adopted, so that the mental element of dishonesty means dishonest according to the standards of ordinary people and known by the defendant to be dishonest according to those standards. [8-s 192E.10] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in the Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1], Pt 2 cl 4A. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 192E.15] Definitions As to “property” see [8-s 4]. As to “dishonesty” see [8-s 4B].

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s 192F

CRIMES ACT 1900 (NSW) — PART 4AA

[8-s 192F]

[8-s 192E.20] By any deception The following commentary related to the words “by any deception” in the section replaced by this Part. It may provide guidance in the interpretation of these words in this new Part, but it ought to be kept in mind that the two statutory schemes are not identical. It is an essential ingredient of the offence that the cause of the payment of the money or the handing over of the valuable thing was the deception used by the accused: R v Ho (1989) 39 A Crim R 145; BC8902362; R v Clarkson [1987] VR 962; (1987) 25 A Crim R 277. It does not matter that the person deceived is not the person from whom the property is obtained: R v Kovacs [1974] 1 All ER 1236; (1973) 58 Cr App Rep 412; R v Charles [1977] AC 177; R v Clarkson, above. There must be a sufficient connection between the deception and the obtaining, and the deception must be an operative cause of the obtaining: R v King [1987] QB 547. As to reckless intention, see R v Smith (1982) 7 A Crim R 437 where it was held that if a person had adverted to a probable consequence and acted with indifference to that consequence or was willing to run the risk of it occurring, then he was reckless so far as that consequence was concerned. As to a deception based upon proceedings commenced by a false statement of claim seeJamieson v R (1993) 177 CLR 574; 116 ALR 193; [1993] HCA 48; BC9303581, overruling R v Beydoun (1990) 22 NSWLR 256; (1990) 51 A Crim R 89 where it was held that no relevant distinction could be made between an allegation that the serving of a statement of claim was false and an allegation that a statement made in the statement of claim is false and that neither can be the subject of an allegation of a criminal offence under the section. However, the decision in Jamieson, above, relates only to pleadings and does not mean that no demand made in or for the purposes of litigation may be treated as containing representation of fact for the purpose of the criminal law: Downey v R (1994) 68 ALJR 371. A representation can be continuing so that with a change of circumstances it can become false to the knowledge of the accused: Director of Public Prosecutions v Ray [1974] AC 370; [1973] 3 All ER 131. There does not have to be direct evidence called by the prosecution that the misrepresentation charged actually induced any person to act in a way that resulted in the gaining of a financial advantage: Decision restricted [2019] NSWCCA 43; 26(5) Crim LN [4128] where the trial judge had directed an acquittal because there was no such evidence led. However, the court held on appeal that such a matter could be proved by inference where the false representation is the only suggested operative inducement to result in the financial advantage. The element of causation between the misrepresentation and the obtaining of property or a financial advantage is the relevant concern.

[8-s 192F] Intention to defraud by destroying or concealing accounting records 192F (1) A person who dishonestly destroys or conceals any accounting record with the intention of: (a) obtaining property belonging to another, or (b) obtaining a financial advantage or causing a financial disadvantage, is guilty of an offence. Maximum penalty: Imprisonment for 5 years. (2) In this section, destroy includes obliterate.

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As to “obtains any property belonging to another” see [8-s 192C]. Section 192C(1) defines “obtains property” and s 192C(2) defines when “property belongs” to a person. As to “obtain any financial advantage or cause any financial disadvantage” see [8-s 192D]. Section 192D(1) relates to obtaining a financial advantage and s 192D(2) defines “cause a financial disadvantage”. See also [8-s 192D.5].

[8-s 192F.5]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

COMMENTARY ON SECTION 192F Scope of the section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

s 192F

[8-s 192F.5] [8-s 192F.10] [8-s 192F.15]

[8-s 192F.5] Scope of the section In the second reading speech for the Crimes Amendment (Fraud, Identity and Forgery Offences) Bill 2009, the Attorney General said (Legislative Council, Hansard, 12 November 2009): This offence will ensure that accounting records cannot be deleted or concealed on a computer in order to avoid prosecution. [8-s 192F.10] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in the Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1], Pt 2 cl 4A. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 192F.15] Definitions As to “property” see [8-s 4]. As to “dishonesty” see [8-s 4B]. As to “obtains any property belonging to another” see [8-s 192C]. Section 192C(1) defines “obtains property” and s 192C(2) defines when “property belongs” to a person. As to “obtain any financial advantage or cause any financial disadvantage” see [8-s 192D]. Section 192D(1) relates to obtaining a financial advantage and s 192D(2) defines “cause a financial disadvantage”. See also [8-s 192D.5].

[8-s 192G] Intention to defraud by false or misleading statement 192G A person who dishonestly makes or publishes, or concurs in making or publishing, any statement (whether or not in writing) that is false or misleading in a material particular with the intention of: (a) obtaining property belonging to another, or (b) obtaining a financial advantage or causing a financial disadvantage, is guilty of an offence. Maximum penalty: Imprisonment for 5 years. COMMENTARY ON SECTION 192G Scope of the section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Misleading in a material particular . . . . . . . . . . . . . . . . . . . . . . . . . . . . . False . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 192G.5] [8-s 192G.10] [8-s 192G.15] [8-s 192G.20] [8-s 192G.25]

[8-s 192G.5] Scope of the section In the second reading speech for the Crimes Amendment (Fraud, Identity and Forgery Offences) Bill 2009, the Attorney General said (Legislative Council, Hansard, 12 November 2009): Clause 192G of the bill is a modernised version of section 178BB of the Crimes Act. This provision makes it an offence for a person to dishonestly make, publish or concur in making or publishing any statement that is false or misleading in a material way, with the intention of obtaining another’s property, or obtaining a financial advantage or causing a financial disadvantage. [8-s 192G.10] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in the Local Court unless an election is made

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s 192H

CRIMES ACT 1900 (NSW) — PART 4AA

[8-s 192H.5]

for trial on indictment, see at [2-s 260] and [2-Sch 1], Pt 2 cl 4A. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 192G.15] Definitions As to “property see [8-s 4]. As to “dishonesty” see [8-s 4B]. As to “obtains any property belonging to another” see [8-s 192C]. Section 192C(1) defines “obtains property” and s 192C(2) defines when “property belongs” to a person. As to “obtain any financial advantage or cause any financial disadvantage” see [8-s 192D]. Section 192D(1) relates to obtaining a financial advantage and s 192D(2) defines “cause a financial disadvantage”. See also [8-s 192D.5].

[8-s 192G.25] False It was held in relation to the section replaced by this Part that a statement may be false notwithstanding that it contains nothing that is false but which creates a false impression: R v M [1980] 2 NSWLR 195; (1979) 4 ACLR 610. It was further held that a charge under this section is not duplicitous because it refers to more than one false or misleading particular: R v M, above; see also R v Wright [1980] VR 593; (1980) 4 ACLR 931. These cases may provide guidance in the construction of this term in this section.

[8-s 192H] Intention to deceive members or creditors by false or misleading statement of officer of organisation 192H (1) An officer of an organisation who, with the intention of deceiving members or creditors of the organisation about its affairs, dishonestly makes or publishes, or concurs in making or publishing, a statement (whether or not in writing) that to his or her knowledge is or may be false or misleading in a material particular is guilty of an offence. Maximum penalty: Imprisonment for 7 years. (2) In this section: creditor of an organisation includes a person who has entered into a security for the benefit of the organisation. officer of an organisation includes any member of the organisation who is concerned in its management and any person purporting to act as an officer of the organisation. organisation means any body corporate or unincorporated association. COMMENTARY ON SECTION 192H Scope of the section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 192H.5] Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 192H.10] Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 192H.15]

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[8-s 192G.20] Misleading in a material particular The term “material” in the section replaced by this Part was held to require no more than that the false particular be of moment or significance and not trivial or inconsequential: Minister for Immigration v Dela Cruz (1992) 34 FCR 348 at 352; 110 ALR 367; BC9203397, where it was also held that a statement will be false in a material particular if it is relevant to the purpose for which it is made, ie if it may — not only if it must or if it will — be taken into account. This case was applied in R v Maslen (1995) 79 A Crim R 199; BC9504922; (1995) 2 Crim LN 22 [363]. See also R v Clogher [1999] NSWCCA 397; BC9908862 where the statement was capable of influencing the victim’s attitude to the claim made upon it. These cases may provide guidance in the construction of this term in the section.

[8-s 192H.5]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 192H

[8-s 192H.5] Scope of the section In the second reading speech for the Crimes Amendment (Fraud, Identity and Forgery Offences) Bill 2009, the Attorney General said (Legislative Council, Hansard, 12 November 2009): Clause 192H applies to officers of organisations who make false or misleading statements with the intention of deceiving the members or creditors of that organisation about its affairs. This offence carries a maximum penalty of seven years imprisonment, and the higher penalty is justified by the position of trust and responsibility that the offender is in. [8-s 192H.10] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in the Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1], Pt 2 cl 4A. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 192H.15] Definitions As to “deceiving” see [8-s 192B.15]. As to “dishonesty” see [8-s 4B]. As to “false or misleading in a material particular” see [8-s 192G.20].

PART 4AB — IDENTITY OFFENCES [Pt 4AB insrt Act 99 of 2009 Sch 1, opn 22 Feb 2010]

[8-s 192I] Definitions 192I In this Part: deal in identification information includes make, supply or use any such information. identification information means information relating to a person (whether living or dead, real or fictitious, or an individual or body corporate) that is capable of being used (whether alone or in conjunction with other information) to identify or purportedly identify the person, and includes the following: (a) a name or address, (b) a date or place of birth, marital status, relative’s identity or similar information, (c) a driver licence or driver licence number, (d) a passport or passport number, (e) biometric data, (f) a voice print, (g) a credit or debit card, its number or data stored or encrypted on it, (h) a financial account number, user name or password, (i) a digital signature, (j) a series of numbers or letters (or both) intended for use as a means of personal identification, (k) an ABN. COMMENTARY ON SECTION 192I Purpose of the Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 192I.5]

[8-s 192I.5] Purpose of the Part In the second reading speech for the Crimes Amendment (Fraud, Identity and Forgery Offences) Bill 2009, which created this Part, the Attorney General said (Legislative Council, Hansard, 12 November 2009):

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s 192K

CRIMES ACT 1900 (NSW) — PART 4AB

[8-s 192K.10]

This bill addresses the serious and growing problem of identity crime in New South Wales. It also modernises and simplifies the existing fraud and forgery offences in the Crimes Act and deletes the outdated and redundant provisions, replacing them with provisions that conceptually fit in a modern Crimes Act. The bill also adopts a number of the provisions and more broadly the structure of the national Model Criminal Code. It will bring New South Wales more in step with the national approach to fraud, forgery and identity crime, and will give law enforcement the tools required in a modern age to actively combat these crimes.

[8-s 192J] Dealing with identification information 192J A person who deals in identification information with the intention of committing, or of facilitating the commission of, an indictable offence is guilty of an offence. Maximum penalty: Imprisonment for 10 years. [8-s 192J.5] [8-s 192J.10]

[8-s 192J.5] Scope of the section In the second reading speech for the Crimes Amendment (Fraud, Identity and Forgery Offences) Bill 2009, the Attorney General said (Legislative Council, Hansard, 12 November 2009): Schedule 1 [3] inserts the new identity offences in a new part 4AB. Clause 192J makes it an offence for a person to deal in identification information with the intention of committing, or facilitating the commission of, an indictable offence . . . “Deal” is defined broadly in the bill and includes make, supply or use [8-s 192J.10] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in the Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1], Pt 3 cl 10D. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267].

[8-s 192K] Possession of identification information 192K A person who possesses identification information with the intention of committing, or of facilitating the commission of, an indictable offence is guilty of an offence. Maximum penalty: Imprisonment for 7 years. COMMENTARY ON SECTION 192K Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 192K.5] Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 192K.10] [8-s 192K.5] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in the Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1], Pt 3 cl 10D. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 192K.10] Definitions As to “possession” see at [8-s 7.1]. As to “identification information” see [8-s 192I].

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COMMENTARY ON SECTION 192J Scope of the section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 192L]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 192L

[8-s 192L] Possession of equipment etc to make identification documents or things 192L A person who: (a) possesses any equipment, material or other thing that is capable of being used to make a document or other thing containing identification information, and (b) intends that the document or other thing made will be used to commit, or to facilitate the commission of, an indictable offence, is guilty of an offence. Maximum penalty: Imprisonment for 3 years. COMMENTARY ON SECTION 192L Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 192L.5] [8-s 192L.10]

[8-s 192L.5] Summary disposal An offence under the section is a Table 2 offence under the Criminal Procedure Act 1986 and is to be dealt with in the Local Court unless an election is made for trial on indictment by the prosecutor, see at [2-s 260] and [2-Sch 1], Pt 2 cl 4A. The maximum penalty which can be imposed is 24 months imprisonment, or a fine of 50 penalty units, or both. However, the maximum fine that a Local Court may impose if the value of the property, amount of money or reward concerned does not exceed $2,000 is 20 penalty units: see at [2-s 268]. [8-s 192L.10] Definitions As to “document” see s 21 of the Interpretation Act 1987 at [29-45,200]. As to “possesses” see at [8-s 7.1]. As to “identification information” see [8-s 192I].

[8-s 192M] Miscellaneous provisions 192M (1) This Part does not apply to dealing in a person’s own identification information. (2) It is not an offence to attempt to commit an offence against this Part. (3) This Part applies to a person who intends to commit an indictable offence even if committing the offence concerned is impossible or the offence concerned is to be committed at a later time. (4) Section 309A of the Criminal Procedure Act 1986 enables a victim of an offence against this Part to obtain a certificate from a court that such an offence has been committed to assist with problems the offence has caused in relation to the victim’s personal or business affairs. 193 [s 193 renum as s 192A by Act 99 of 2009 Sch 2, opn 22 Feb 2010] PART 4AC — MONEY LAUNDERING [Pt 4AC (formerly Pt 4, Div 1A) am Act 99 of 2009 Sch 2, opn 22 Feb 2010]

[8-s 193A] Definitions 193A In this Part: deal with includes: (a) receive, possess, conceal or dispose of, or

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s 193B

[8-s 193B.5]

CRIMES ACT 1900 (NSW) — PART 4AC

(b) bring or cause to be brought into New South Wales, including transfer or cause to be transferred by electronic communication, or (c) engage directly or indirectly in a transaction, including receiving or making a gift. instrument of crime means property that is used in the commission of, or to facilitate the commission of, a serious offence.

serious offence means: (a) an offence (including a common law offence) against the laws of New South Wales, being an offence that may be prosecuted on indictment, or (a1) an offence against a law of the Commonwealth that may be prosecuted on indictment, or (b) the offence of supplying any restricted substance prescribed for the purposes of section 16 of the Poisons and Therapeutic Goods Act 1966 that arises under section 18A(1) of that Act, or (c) an offence committed outside New South Wales (including outside Australia) that would be an offence referred to in paragraph (a) or (b) if it had been committed in New South Wales. [def am Act 29 of 2018 Sch 1 item 1.4[5], opn 21 June 2018] [s 193A am Act 99 of 2009 Sch 2, opn 22 Feb 2010]

[8-s 193B] Money laundering 193B (1) A person who deals with proceeds of crime: (a) knowing that it is proceeds of crime, and (b) intending to conceal that it is proceeds of crime, is guilty of an offence. Maximum penalty: imprisonment for 20 years. (2) A person who deals with proceeds of crime knowing that it is proceeds of crime is guilty of an offence. Maximum penalty: imprisonment for 15 years. (3) A person who deals with proceeds of crime being reckless as to whether it is proceeds of crime is guilty of an offence. Maximum penalty: imprisonment for 10 years. (4) It is a defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant dealt with the proceeds of crime to assist the enforcement of a law of the Commonwealth, a State or a Territory. COMMENTARY ON SECTION 193B Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Knowingly deal with proceeds of crime with intent to conceal — s 193B(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Knowingly deal with proceeds of crime — s 193B(2) . . . . . . . . Recklessly deal with proceeds of crime — s 193B(3) . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[8-s 193B.5] [8-s 193B.10] [8-s [8-s [8-s [8-s

193B.15] 193B.20] 193B.25] 193B.30]

Crimes

proceeds of crime means any property that is substantially derived or realised, directly or indirectly, by any person from the commission of a serious offence.

[8-s 193B.5]

s 193B

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Knowingly deal with proceeds of crime with intent to conceal — s 193B(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Knowingly deal with proceeds of crime — s 193B(2) . . . . . . . . Recklessly deal with proceeds of crime — s 193B(3) . . . . . . . . . Statutory defence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alternative verdicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s [8-s [8-s [8-s [8-s

193B.35] 193B.40] 193B.45] 193B.50] 193B.55]

[8-s 193B.5] Sentencing The correct approach in determining the objective seriousness of an offence under the section was considered in Ramos v R [2018] NSWCCA 206; BC201808865; 25(10) Crim LN [4049]. In a case in which few facts were known about the particular offending, it was not open to the judge to conclude that the offence was “a little above middle of any scale constructed” on the basis of the paucity of facts known about the possession of the money or its source. It was not required that the judge attempt to make any evaluation of the objective seriousness in those circumstances. PROOF MATERIAL ON SECTION 193B For the text of s 193B, see [8-s 193B] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 193B.10] Form of indictment [8-s 193B.15] Knowingly deal with proceeds of crime with intent to conceal — s 193B(1) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did [receive / possess / conceal / dispose of / bring into New South Wales / cause to be brought into New South Wales / engage in a transaction with] proceeds of crime, being [description of property], in circumstances where he/she knew that [description of property] were/was proceeds of crime and where he/she intended to conceal that [description of property] were/was proceeds of crime. [8-s 193B.20] Knowingly deal with proceeds of crime — s 193B(2) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did [receive / possess / conceal / dispose of / bring into New South Wales / cause to be brought into New South Wales / engage in a transaction with] proceeds of crime, being [description of property], in circumstances where he/she knew that [description of property] were/was proceeds of crime. [8-s 193B.25] Recklessly deal with proceeds of crime — s 193B(3) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did [receive / possess / conceal / dispose of / bring into New South Wales / cause to be brought into New South Wales / engage in a transaction with] proceeds of crime, being [description of property], in circumstances where he/she was reckless as to whether [description of property] were/was proceeds of crime. [8-s 193B.30] Elements of offence [8-s 193B.35] Knowingly deal with proceeds of crime with intent to conceal — s 193B(1) The elements of the offence are— (1) The accused dealt [8-s 193A]; (2) with proceeds of crime [8-s 193A]; (3) knowing [6-515] that it was proceeds of crime; and (4) intending [6-500] to conceal that it was proceeds of crime. [8-s 193B.40] Knowingly deal with proceeds of crime — s 193B(2) offence are— (1) The accused dealt [8-s 193A]; (2) with proceeds of crime [8-s 193A]; and (3) knowing [6-515] that it was proceeds of crime.

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The elements of the

s 193C

CRIMES ACT 1900 (NSW) — PART 4AC

[8-s 193C]

[8-s 193B.45] Recklessly deal with proceeds of crime — s 193B(3) The elements of the offence are— (1) The accused dealt [8-s 193A]; (2) with proceeds of crime [8-s 193A]; and (3) was reckless [6-505] as to whether it was proceeds of crime. [8-s 193B.50] Statutory defence It is a defence to any of the offences under s 193B if the accused can satisfy the court that he or she dealt with the proceeds of crime to assist the enforcement of a law of the Commonwealth, a State or Territory: see at [8-s 193B(4)].

[8-s 193C] Dealing with property suspected of being proceeds of crime 193C (1) A person is guilty of an offence if: (a) the person deals with property, and (b) there are reasonable grounds to suspect that the property is proceeds of crime, and (c) at the time of the dealing, the value of the property is $100,000 or more. Maximum penalty: Imprisonment for 5 years. (2) A person is guilty of an offence if: (a) the person deals with property, and (b) there are reasonable grounds to suspect that the property is proceeds of crime, and (c) at the time of the dealing, the value of the property is less than $100,000. Maximum penalty: Imprisonment for 3 years. (3) Without limiting subsection (1)(b) or (2)(b), there are reasonable grounds to suspect that property is proceeds of crime in each of the following circumstances: (a) in the case of subsection (1)(a) — the dealing involves a number of transactions that are structured or arranged to avoid the reporting requirements of the Financial Transaction Reports Act 1988 of the Commonwealth that would otherwise apply to the transactions, (b) the dealing involves a number of transactions that are structured or arranged to avoid the reporting requirements of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 of the Commonwealth that would otherwise apply to the transactions, (c) the dealing involves using one or more accounts held with authorised deposit-taking institutions in false names, (d) the dealing amounts to an offence against section 139, 140 or 141 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 of the Commonwealth,

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Crimes

[8-s 193B.55] Alternative verdicts If on the trial of a person for an offence under section 193B(1), the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 193B(1) or (2), it may find the accused not guilty of the offence charged, but guilty of that other offence: see at [8-s 193E(1)]. If on the trial of a person for an offence under section 193B(2), the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 193B(3), it may find the accused not guilty of the offence charged, but guilty of the other offence: see at [8-s 193E(2)].

[8-s 193C]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 193C

(e) the value of the property involved in the dealing is, in the opinion of the trier of fact, grossly out of proportion to the defendant’s income and expenditure over a reasonable period within which the dealing occurs, (f) the dealing involves a significant cash transaction (within the meaning of the Financial Transaction Reports Act 1988 of the Commonwealth) and the defendant: (i) has contravened the defendant’s obligations under that Act relating to reporting the transaction, or (ii) has given false or misleading information in purported compliance with those obligations, (g) the dealing involves a threshold transaction (within the meaning of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 of the Commonwealth) and the defendant: (i) has contravened the defendant’s obligations under that Act relating to reporting the transaction, or (ii) has given false or misleading information in purported compliance with those obligations, (h) the defendant: (i) has stated that the dealing was engaged in on behalf of or at the request of another person, and (ii) has not provided information enabling the other person to be identified and located. (4) It is a defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant had no reasonable grounds for suspecting that the property was substantially derived or realised, directly or indirectly, from an act or omission constituting an offence against a law in force in the Commonwealth, a State or a Territory or another country. [s 193C subst Act 16 of 2016 Sch 2[1], opn 8 Sep 2016]

PROOF MATERIAL ON SECTION 193C For the text of s 193C, see [8-s 193C] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 193C.5] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did [receive / possess / conceal / dispose of / bring into New South Wales / cause to be brought into New South Wales / engage in a transaction with] property, being [description of property], in circumstances where there are reasonable grounds to suspect that [description of property] are proceeds of crime. [8-s 193C.10] Elements of offence The elements of the offence are— (1) The accused dealt [8-s 193A]; (2) with property; and (3) there are reasonable grounds to suspect that the property is proceeds of crime

[8-s 193A]; [8-s 193C.15] Statutory defence It is a defence to the offence under s 193C(1) if the accused satisfies the court that he or she had no reasonable grounds for suspecting that the property was substantially derived or realised, directly or indirectly, from an act or omission constituting an offence against a law of the Commonwealth, a State or Territory or another country: see at [8-s 193C(2)].

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s 193D

CRIMES ACT 1900 (NSW) — PART 4AC

[8-s 193D.20]

193D (1) If: (a) a person deals with property intending that the property will become an instrument of crime, and (b) the property subsequently becomes an instrument of crime, the person is guilty of an offence. Maximum penalty: imprisonment for 15 years. (2) If: (a) a person deals with property being reckless as to whether the property will become an instrument of crime, and (b) the property subsequently becomes an instrument of crime, the person is guilty of an offence. Maximum penalty: imprisonment for 10 years. (3) Proceedings for an offence under this section must not be commenced without the consent of the Director of Public Prosecutions. (4) It is a defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant dealt with the proceeds of crime to assist the enforcement of a law of the Commonwealth, a State or a Territory. (5) In this section: property means money or other valuables. COMMENTARY ON SECTION 193D Scope of the offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dealing with property intending that the property become an instrument of crime — s 193D(1) . . . . . . . . . . . . . . . . . . . . . . . . Dealing with property and being reckless as to whether the property will become an instrument of crime — s 193D(2) . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dealing with property intending that the property become an instrument of crime — s 193D(1) . . . . . . . . . . . . . . . . . . . . . . . . Dealing with property and being reckless as to whether the property will become an instrument of crime — s 193D(2) . Statutory defence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alternative verdicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 193D.10] [8-s 193D.15] [8-s 193D.20] [8-s 193D.25] [8-s 193D.30] [8-s 193D.35] [8-s 193D.40] [8-s 193D.45] [8-s 193D.50]

[8-s 193D.10] Scope of the offence The definition of “property” in s 193D(5) includes a motorcycle as the word “valuables” is not to be limited to small items of personal property: Madden v R [2014] NSWCCA 291; BC201410245; 22(2) Crim LN [3486]. PROOF MATERIAL ON SECTION 193D For the text of s 193D, see [8-s 193D] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 193D.15] Form of indictment [8-s 193D.20] Dealing with property intending that the property become an instrument of crime — s 193D(1) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did [receive / possess / conceal / dispose of / bring into New South Wales / cause to be brought into New South Wales / engage in a transaction with] property, being [description of property], in circumstances where he/she intended that the [description of

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Crimes

[8-s 193D] Dealing with property that subsequently becomes an instrument of crime

[8-s 193D.20]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 193D

property] be used in the commission of / to facilitate the commission of a serious offence and where [description of property] was used in the commission of / to facilitate the commission of a serious offence. [8-s 193D.25] Dealing with property and being reckless as to whether the property will become an instrument of crime — s 193D(2) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did [receive / possess / conceal / dispose of / bring into New South Wales / cause to be brought into New South Wales / engage in a transaction with] property, being [description of property], in circumstances where he/she was reckless as to whether the [description of property] would be used in the commission of / to facilitate the commission of a serious offence and where [description of property] was used in the commission of / to facilitate the commission of a serious offence. [8-s 193D.30] Elements of offence [8-s 193D.35] Dealing with property intending that the property become an instrument of crime — s 193D(1) The elements of the offence are— (1) The accused dealt [8-s 193A]; (2) with property; (3) intending [6-500] that the property will become an instrument of crime

[8-s 193A]; and (4) the property subsequently became an instrument of crime. [8-s 193D.40] Dealing with property and being reckless as to whether the property will become an instrument of crime — s 193D(2) The elements of the offence are— (1) The accused dealt [8-s 193A]; (2) with property; and (3) was reckless [6-505] as to whether the property will become an instrument of

crime [8-s 193A]; and (4) the property subsequently became an instrument of crime. [8-s 193D.45] Statutory defence It is a defence to any of the offences under s 193D if the accused can satisfy the court that he or she dealt with the proceeds of crime to assist the enforcement of a law of the Commonwealth, a State or Territory: see at [8-s 193D(4)]. [8-s 193D.50] Alternative verdicts If on the trial of a person for an offence under section 193D(1), the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 193D(2), it may find the accused not guilty of the offence charged, but guilty of the other offence: see at [8-s 193E(3)].

[8-s 193E] Alternative verdicts 193E (1) If on the trial of a person for an offence under section 193B(1), the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 193B(2) or (3), it may find the accused not guilty of the offence charged but guilty of the other offence, and the accused is liable to punishment accordingly. (2) If on the trial of a person for an offence under section 193B(2), the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 193B(3), it may find the accused not guilty of the offence charged but guilty of the other offence, and the accused is liable to punishment accordingly.

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s 193G

CRIMES ACT 1900 (NSW) — PART 4AC

[8-s 193G]

(2A) If on the trial of a person for an offence under section 193B, the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 193C(1) or (2), it may find the accused not guilty of the offence charged but guilty of the other offence, and the accused is liable to punishment accordingly. [subs (2A) insrt Act 16 of 2016 Sch 2[2], opn 8 Sep 2016]

(2B) If on the trial of a person for an offence under section 193C(1), the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 193C(2), it may find the accused not guilty of the offence charged but guilty of the other offence, and the accused is liable to punishment accordingly. [subs (2B) insrt Act 40 of 2017 Sch 1.5[2], opn 14 Aug 2017]

(3) If on the trial of a person for an offence under section 193D(1), the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 193D(2), it may find the accused not guilty of the offence charged but guilty of the other offence, and the accused is liable to punishment accordingly.

193F (1) To avoid doubt, it is not necessary, in order to prove for the purposes of an offence under this Part that property is proceeds of crime, to establish that: (a) a particular offence was committed in relation to the property, or (b) a particular person committed an offence in relation to the property. [subs (1) am Act 99 of 2009 Sch 2, opn 22 Feb 2010]

(2) To avoid doubt, it is not necessary, in order to prove for the purposes of an offence under this Part that property will be an instrument of crime, to establish: (a) an intention or risk that a particular offence will be committed in relation to the property, or (b) an intention or risk that a particular person will commit an offence in relation to the property. [subs (2) am Act 99 of 2009 Sch 2, opn 22 Feb 2010]

[8-s 193FA] Combining several contraventions in a single charge 193FA (1) A single charge of an offence against a provision of this Part may be about 2 or more instances of the defendant engaging in conduct (at the same time or different times) that constitutes an offence against a provision of this Part. (2) If a single charge is about 2 or more such instances and the value of the property dealt with is an element of the offence in question, that value is taken to be the sum of the values of the property dealt with in each of those instances. [s 193FA insrt Act 16 of 2016 Sch 2[3], opn 8 Sep 2016]

[8-s 193G] Transitional provision 193G This Part (as amended by the Criminal Legislation Amendment (Organised Crime and Public Safety) Act 2016) applies to or in respect of acts or omissions in relation to proceeds of crime arising from serious offences committed before or after the commencement of the amendments made to this Part by that Act. [s 193G am Act 99 of 2009 Sch 2, opn 22 Feb 2010; Act 16 of 2016 Sch 2[4], opn 8 Sep 2016]

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Crimes

[8-s 193F] Proof of other offences not required

[8-s 193H]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 193H

PART 4ACA — CHEATING AT GAMBLING [Pt 4ACA insrt Act 64 of 2012 Sch 1[1], opn 13 Sep 2012]

DIVISION 1 — PRELIMINARY

[8-s 193H] Corrupting betting outcome of event 193H (1) For the purposes of this Part, conduct corrupts a betting outcome of an event if the conduct: (a) affects or, if engaged in, would be likely to affect the outcome of any type of betting on the event, and (b) is contrary to the standards of integrity that a reasonable person would expect of persons in a position to affect the outcome of any type of betting on the event. (2) For the purposes of this Part, an agreement about conduct that corrupts a betting outcome of an event is an agreement between 2 or more persons under which one or more of those persons agree to engage in conduct that corrupts a betting outcome of an event. (3) In this Part: agreement includes an arrangement. conduct means an act or an omission to perform an act. engage in conduct means: (a) do an act, or (b) omit to perform an act. COMMENTARY ON SECTION 193H Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 193H.5]

[8-s 193H.5] Definitions In s 193H(1)(a) “likely” is synonymous with “probably” and means “a real and not remote chance”, but it is not necessary that the probability be more than 50% or more likely than not, and such terms ought not to be used when instructing a jury: Boughey v R (1986) 161 CLR 10; 65 ALR 609; 20 A Crim R 156; BC8601432.

[8-s 193I] Betting 193I (1) In this Part, bet includes the following: (a) place, accept or withdraw a bet, (b) cause a bet to be placed, accepted or withdrawn. (2) A reference in this Part to betting on an event includes a reference to betting on any event contingency.

[8-s 193J] Events and event contingencies 193J (1) In this Part, an event means any event (whether it takes place in this State or elsewhere) on which it is lawful to bet under a law of this State, another State, a Territory or the Commonwealth. (2) In this Part, an event contingency means any contingency in any way connected with an event, being a contingency on which it is lawful to bet under a law of this State, another State, a Territory or the Commonwealth.

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s 193N

CRIMES ACT 1900 (NSW) — PART 4AC

[8-s 193N]

[8-s 193K] Obtaining financial advantage or causing financial disadvantage 193K (1) In this Part, obtain a financial advantage includes: (a) obtain a financial advantage for oneself or for another person, and (b) induce a third person to do something that results in oneself or another person obtaining a financial advantage, and (c) keep a financial advantage that one has, whether the financial advantage is permanent or temporary. (2) In this Part, cause a financial disadvantage means: (a) cause a financial disadvantage to another person, or (b) induce a third person to do something that results in another person suffering a financial disadvantage, whether the financial disadvantage is permanent or temporary.

193L (1) If an offence under this Part requires a person (the accused) to intend to obtain a financial advantage, or to cause a financial disadvantage, in connection with betting on an event, that element of the offence is established if, and only if, it is proved that: (a) the accused meant to obtain a financial advantage, or cause a financial disadvantage, in connection with betting on the event, or (b) the accused was aware that another person meant to obtain a financial advantage, or cause a financial disadvantage, in connection with betting on the event, as a result of the conduct the subject of the charge. (2) It is not necessary to prove that any financial advantage was actually obtained or any financial disadvantage was actually caused. (3) In this section, the conduct the subject of the charge means: (a) in the case of an offence against section 193N — the conduct that the accused engaged in, or (b) in the case of an offence against section 193O — the conduct that the accused facilitated, or (c) in the case of an offence against section 193P — the conduct, or the conduct the subject of the agreement, that the accused encouraged another person to conceal.

[8-s 193M] Encourage 193M In this Part, encourage another person to engage in conduct includes command, request, propose, advise, incite, induce, persuade, authorise, urge, threaten or place pressure on the person to engage in conduct. DIVISION 2 — OFFENCES

[8-s 193N] Engage in conduct that corrupts betting outcome of event 193N

A person who engages in conduct that corrupts a betting outcome of an event:

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Crimes

[8-s 193L] Proof of intention to obtain financial advantage or cause financial disadvantage

[8-s 193N]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 193N

(a) knowing or being reckless as to whether the conduct corrupts a betting outcome of the event, and (b) with the intention of obtaining a financial advantage, or causing a financial disadvantage, in connection with any betting on the event, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. COMMENTARY ON SECTION 193N Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 193N.5] Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 193N.10] [8-s 193N.5] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in the Local Court unless the prosecutor or the defendant elects to have the matter dealt with on indictment, see [2-s 260] and [2-Sch 1] Pt 4, cl 16D. The maximum penalty that can be imposed, where the matter is dealt with summarily, is 2 years’ imprisonment, see [2-s 267]. [8-s 193N.10] Definitions As to “reckless”, see [8-s 4A]. As to “conduct that corrupts a betting outcome of an event”, see [8-s 193H]. As to “obtaining financial advantage” or “causing financial disadvantage”, see [8-s 193K] and see [8-s 193L] as to proof of that element of the offence.

[8-s 193O] Facilitate conduct that corrupts betting outcome of event 193O (1) A person who facilitates conduct that corrupts a betting outcome of an event: (a) knowing or being reckless as to whether the conduct facilitated corrupts a betting outcome of the event, and (b) with the intention of obtaining a financial advantage, or causing a financial disadvantage, in connection with any betting on the event, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (2) A person facilitates conduct that corrupts a betting outcome of an event if the person: (a) offers to engage in conduct that corrupts a betting outcome of an event, or (b) encourages another person to engage in conduct that corrupts a betting outcome of an event, or (c) enters into an agreement about conduct that corrupts a betting outcome of an event. COMMENTARY ON SECTION 193O Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 193O.5] Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 193O.10] [8-s 193O.5] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in the Local Court unless the prosecutor or the defendant elects to have the matter dealt with on indictment, see at [2-s 260] and [2-Sch 1] Pt 4, cl 16D. The maximum penalty that can be imposed, where the matter is dealt with summarily, is 2 years’ imprisonment, see [2-s 267].

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s 193Q

[8-s 193Q]

CRIMES ACT 1900 (NSW) — PART 4AC

[8-s 193O.10] Definitions As to “reckless”, see [8-s 4A]. As to “conduct that corrupts a betting outcome of an event”, see [8-s 193H]. As to “obtaining financial advantage” or “causing financial disadvantage”, see [8-s 193K] and see [8-s 193L] as to proof of that element of the offence.

193P (1) A person who encourages another person to conceal from any appropriate authority conduct, or an agreement about conduct, that corrupts a betting outcome of an event: (a) knowing or being reckless as to whether the conduct corrupts a betting outcome of the event, and (b) with the intention of obtaining a financial advantage, or causing a financial disadvantage, in connection with any betting on the event, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (2) In this section, an appropriate authority includes: (a) a police officer, or (b) a body that has the official function of controlling, regulating or supervising an event, or any betting on an event. COMMENTARY ON SECTION 193P Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 193P.5] [8-s 193P.10]

[8-s 193P.5] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in the Local Court unless the prosecutor or the defendant elects to have the matter dealt with on indictment, see at [2-s 260] and [2-Sch 1] Pt 4, cl 16D. The maximum penalty that can be imposed, where the matter is dealt with summarily, is 2 years’ imprisonment, see [2-s 267]. [8-s 193P.10] Definitions As to “reckless”, see [8-s 4A]. As to “conduct that corrupts a betting outcome of an event”, see [8-s 193H]. As to “obtaining financial advantage” or “causing financial disadvantage”, see [8-s 193K] and see [8-s 193L] as to proof of that element of the offence. As to “encourage”, see [8-s 193M].

[8-s 193Q] Use of corrupt conduct information for betting purposes

information

or

inside

193Q (1) A person who possesses information in connection with an event that is corrupt conduct information, and who knows or is reckless as to whether the information is corrupt conduct information, is guilty of an offence if the person: (a) bets on the event, or (b) encourages another person to bet on the event in a particular way, or (c) communicates the information to another person who the first person knows or ought reasonably to know would or would be likely to bet on the event. Maximum penalty: Imprisonment for 10 years.

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Crimes

[8-s 193P] Concealing conduct or agreement about conduct that corrupts betting outcome of event

[8-s 193Q]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 193Q

(2) A person who possesses information in connection with an event that is inside information, and who knows or is reckless as to whether the information is inside information, is guilty of an offence if the person: (a) bets on the event, or (b) encourages another person to bet on the event in a particular way, or (c) communicates the information to another person who the first person knows or ought reasonably to know would or would be likely to bet on the event. Maximum penalty: Imprisonment for 2 years. (3) Information in connection with an event is corrupt conduct information if the information is about conduct, or proposed conduct, that corrupts a betting outcome of the event. (4) Information in connection with an event is inside information if the information: (a) is not generally available, and (b) if it were generally available, would, or would be likely to, influence persons who commonly bet on the event in deciding whether or not to bet on the event or making any other betting decision. (5) Information is generally available if: (a) it consists of matter that is readily observable by the public, or (b) it has been made known in a manner that would, or would be likely to, bring it to the attention of the public, or (c) it consists of deductions, conclusions or inferences made or drawn from information referred to in paragraph (a) or (b). (6) In proceedings for an offence against subsection (1)(b) or (c) or (2)(b) or (c) it is not necessary to prove that the person encouraged to bet, or to whom information was communicated, actually bet on the event concerned. (7) If, on the trial of a person for an offence under subsection (1), the trier of fact is not satisfied that the accused is guilty of the offence charged but is satisfied that the accused is guilty of an offence under subsection (2), it may find the accused not guilty of the offence charged but guilty of an offence under subsection (2), and the accused is liable to punishment accordingly. (8) A reference in this section to communicating information includes a reference to causing information to be communicated. COMMENTARY ON SECTION 193Q Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 193Q.5] Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 193Q.10] [8-s 193Q.5] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in the Local Court unless the prosecutor or the defendant elects to have the matter dealt with on indictment, see at [2-s 260] and [2-Sch 1] Pt 4, cl 16D. The maximum penalty that can be imposed, where the matter is dealt with summarily, is 2 years’ imprisonment, see [2-s 267]. [8-s 193Q.10] Definitions As to possession, see [8-s 7.1]. As to “conduct that corrupts a betting outcome of an event”, see [8-s 193H]. As to “reckless”, see [8-s 4A]. As to “encourage”, see [8-s 193M].

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s 195

CRIMES ACT 1900 (NSW) — PART 4AD

[8-s 195]

PART 4AD — CRIMINAL DESTRUCTION AND DAMAGE [Pt 4AD (formerly Pt 4, Div 2) am Act 99 of 2009 Sch 2, opn 22 Feb 2010]

DIVISION 1 — INTERPRETATION [Div 1 (formerly Pt 4, Div 2, subdiv 1) am Act 99 of 2009 Sch 2, opn 22 Feb 2010]

[8-s 194] Interpretation 194 (1) In this Part, a reference to property does not include a reference to property that is not of a tangible nature. [subs (1) am Act 31 of 1999 s 3 and Sch 5.27, opn 7 July 1999; Act 99 of 2009 Sch 2, opn 22 Feb 2010]

(2) In this Part, a reference to property includes a reference to wild creatures that have been tamed or are ordinarily kept in captivity and also includes any other wild creatures or their carcasses but only if they: (a) have been reduced into possession that has not been lost or abandoned, or (b) are in the course of being reduced into possession. (3) For the purposes of this Part, an act done by a person under a reasonable belief that the person had a right to do the act does not constitute an element of any offence under this Part. [subs (3) am Act 31 of 1999 s 3 and Sch 5.27, opn 7 July 1999; Act 38 of 2007 s 3 and Sch 1[21], opn 15 Feb 2008; Act 99 of 2009 Sch 2, opn 22 Feb 2010]

(4) For the purposes of this Part, damaging property includes removing, obliterating, defacing or altering the unique identifier of the property. The unique identifier is any numbers, letters or symbols that are marked on or attached to the property as a permanent record so as to enable the property to be distinguished from similar property. [subs (4) insrt Act 5 of 2003 s 3 and Sch 1, opn 15 Dec 2003; am Act 99 of 2009 Sch 2, opn 22 Feb 2010]

DIVISION 2 — CRIMES AGAINST PROPERTY GENERALLY [Div 2 (formerly Pt 4, Div 2, subdiv 2) am Act 99 of 2009 Sch 2, opn 22 Feb 2010]

[8-s 195] Destroying or damaging property 195 (1) A person who intentionally or recklessly destroys or damages property belonging to another or to that person and another is liable: (a) to imprisonment for 5 years, or (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 10 years. [subs (1) am Act 38 of 2007 s 3 and Sch 1[3], opn 15 Feb 2008]

(1A) A person who, in the company of another person or persons, intentionally or recklessly destroys or damages property belonging to another or to that person and another is liable: (a) to imprisonment for 6 years, or (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 11 years. [subs (1A) insrt Act 107 of 2008 s 3 and Sch 5, opn 8 Dec 2008]

(2) A person who, during a public disorder, intentionally or recklessly destroys or damages property belonging to another or to that person and another is liable: (a) to imprisonment for 7 years, or

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Crimes

[subs (2) am Act 31 of 1999 s 3 and Sch 5.27, opn 7 July 1999; Act 99 of 2009 Sch 2, opn 22 Feb 2010]

[8-s 195]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 195

(b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 12 years. [subs (2) insrt Act 61 of 2006 s 3 and Sch 1[12], opn 15 Dec 2006; am Act 38 of 2007 s 3 and Sch 1[3], opn 15 Feb 2008] [s 195 am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000; Act 38 of 2007 s 3 and Sch 1[3], opn 15 Feb 2008] Editor’s note: For proof material on s 195, see [27-26,000] behind the “27 – Informations and Indictments” guide card.

COMMENTARY ON SECTION 195 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Property belonging to another . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Personal violence offence/domestic violence offence . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Destroying or damaging property — s 195(1)(a) . . . . . . . . . . . . . Destroying or damaging property by means of fire or explosives — s 195(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Destroying or damaging property in company — s 195(1A)(a) . Destroying or damaging property by means of fire or explosives — s 195(1A)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Destroying or damaging property during public disorder — s 195(2)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Destroying or damaging property by means of fire or explosives during public disorder — s 195(2)(b) . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Destroying or damaging property — s 195(1)(a) . . . . . . . . . . . . . Destroying or damaging property by means of fire or explosives — s 195(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Destroying or damaging property in company — s 195(1A)(a) . Destroying or damaging property in company by means of fire or explosives — s 195(1A)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Destroying or damaging property during public disorder — s 195(2)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Destroying or damaging property by means of fire or explosives during public disorder —– s 195(2)(b) . . . . . . . . . . . . . . . . . . . Alternative verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 195.1] [8-s 195.5] [8-s 195.10] [8-s 195.15] [8-s 195.20] [8-s 195.25] [8-s 195.30] [8-s 195.35] [8-s 195.40] [8-s 195.45] [8-s 195.50] [8-s 195.55] [8-s 195.60] [8-s 195.65] [8-s 195.70] [8-s 195.75] [8-s 195.80] [8-s 195.85] [8-s 195.90]

[8-s 195.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act where the value of the property exceeds $5000 and a Table 2 offence under that Act where the value of the property does not exceed $5000, see at [2-s 260] and [2-Sch 1] Part 2 clause 3. Where the offence is a Table 1 offence the maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. Where the offence is a Table 2 offence the maximum penalty that can be imposed is 24 months imprisonment or a fine of 50 penalty units or both, but where the property does not exceed $2000, the maximum fine is 20 penalty units: see at [2-s 268]. [8-s 195.5] Definitions As to “recklessly” see at [8-s 4A.1] and s 194(3) at [8-s 194]. The meaning of the words “destroys or damages” were considered in Grajewski v Director of Public Prosecutions (NSW) [2019] HCA 8; BC201901701. In that case the appellant had bound himself to a ship loader at a coal terminal as part of a protest. The loader could not be safely used until the appellant was removed from it. The question arose as to whether the act of the accused in rendering the loader inoperable for two hours amounted to damaging the loader so as to give rise to an offence contrary to s 195(1). In the Court of Criminal Appeal, in answer to a question

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s 195

CRIMES ACT 1900 (NSW) — PART 4AD

[8-s 195.5]

stated, it was held that the offence was made out where physical interference caused the property to become inoperable, whether temporarily or otherwise. After considering the legislative history of the provision and cases in various jurisdictions on the meaning of “damage”, the High Court by majority held that the offence was not made out because the appellant had not brought about “any alteration to the physical integrity” of the loader. The decision to shut down the loader was due to safety concerns for the appellant and remained so until he was removed. As to the words used in the section, the majority stated: [21] The physical element of the offence created by s 195(1) is conduct which “destroys or damages”. It strains the language of the provision to interpret the words “destroys or damages” as including conduct which obstructs or renders useless without in any way altering the physical integrity of the property. If the legislature intended to criminalise the obstruction of property or the rendering of it useless in s 195(1), it is to be expected that it would have so provided.

[49] Inoperability may be the product of damage done to property but it does not, of itself, constitute damage to property. Nothing in the authorities justifies an interpretation of the expression “destroys or damages” as extending to conduct which does not in any respect alter the physical integrity of the thing said to be damaged. The attempt to overcome the evident difficulty in the conclusion in Hammond [v R (2013) 85 NSWLR 313; BC201300779], that interference with functionality alone suffices to establish the offence, by the addition of a requirement of “physical interference” does not solve the difficulty. The protestor who ties herself to the blade of the bulldozer does not damage the bulldozer just as the protestor who lies in front of the bulldozer does not damage the bulldozer. It may be that in each case the bulldozer is stopped while the protestor remains in position but that is not because of anything done by the protestor to affect the functioning of the bulldozer. It is because of the desire of the operator not to injure the protestor. In summary, majority held (footnote omitted): [53] The physical element of the offence created by s 195(1) is conduct that “destroys or damages” some article of tangible property. A person does not damage a thing by conduct which does not bring about any alteration to the physical integrity of the thing. The alteration may be relatively minor and temporary as in letting the air out of a tyre, which physically alters the tyre and renders it imperfect. By contrast, unless the attachment of a wheel clamp to the tyre causes some physical alteration to the tyre it has not damaged the tyre even though the vehicle may be inoperable while the clamp remains in place. The principles in Hammond v R were applied in Director of Public Prosecutions (NSW) v Lucas [2014] NSWSC 1441; BC201408778 at [10]–[18] where it was held that the defendant’s act of deflating a tyre on the complainant’s car was capable of supporting a conclusion that there had been an interference with the functionality of the tyre, and the car itself, by necessitating that the complainant take it to a service station to pump air into the tyre before normal function was restored, and thus constituted “danger” under s 195(1)(a). In Grajewski v DPP (NSW) [2017] NSWCCA 251; BC201708844; 24(11) Crim LN [3914] it was held, following Hammond, that to render a machine temporarily inoperable amounted to “damage” for the purpose of the offence. In that case, during a protest, the accused had locked himself to a coal loading machine rendering it inoperative for the safety of the accused while he was in that position. The court held that causing property to become inoperative by some physical interference was within the scope of the section and refused to follow the decision of Simpson J reaching a contrary conclusion in Fraser, above. The court did indicate that it would not be sufficient if a person simply lay in front of a bulldozer rather than actually tied himself or herself to the blade of the bulldozer; see at [62].

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Crimes

As to the authorities examined by the court, it was held:

[8-s 195.10]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 195

[8-s 195.10] Property belonging to another Section 195 merely requires proof that the property belonged to some person other than the accused: Walton v Salmon (NSWSC, Loveday J, 24 April 1992, unreported); (1992) 10 Petty SR 4530. [8-s 195.15] Personal violence offence/domestic violence offence This offence (or an offence of attempting to commit this offence) is a “personal violence offence” as defined in s 4 of the Crimes (Domestic and Personal Violence) Act 2007 at [8-5015] and, when committed by a person against another person with whom the offender has or has had a domestic relationship, is a “domestic violence offence” as defined in s 11 of that Act at [8-5240]. PROOF MATERIAL ON SECTION 195 For the text of s 195, see [8-s 195] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 195.20] Form of indictment [8-s 195.25] Destroying or damaging property — s 195(1)(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, intentionally/recklessly destroyed/damaged [brief details of property] the property of [name of owner] or of himself/herself and [name of owner]. [8-s 195.30] Destroying or damaging property by means of fire or explosives — s 195(1)(b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, intentionally/recklessly destroyed/damaged [brief details of property] the property of [name of owner] or of himself/herself and [name of owner] by means of fire/by means of explosives. [8-s 195.35] Destroying or damaging property in company — s 195(1A)(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, in the company of another person/persons, intentionally/recklessly destroyed/damaged [brief details of property] the property of [name of owner] or of himself/herself and [name of owner]. [8-s 195.40] Destroying or damaging property by means of fire or explosives — s 195(1A)(b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, in the company of another person/persons, intentionally/recklessly destroyed/damaged [brief details of property] the property of [name of owner] or of himself/herself and [name of owner] by means of fire/by means of explosives. [8-s 195.45] Destroying or damaging property during public disorder — s 195(2)(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, during a public disorder, intentionally/recklessly destroyed/damaged [brief details of property] the property of [name of owner] or of himself/herself and [name of owner]. [8-s 195.50] Destroying or damaging property by means of fire or explosives during public disorder — s 195(2)(b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, during a public disorder, intentionally/recklessly destroyed/damaged [brief details of property] the property of [name of owner] or of himself/herself and [name of owner] by means of fire/by means of explosives. [8-s 195.55] Elements of offence

The elements of the offence are —

[8-s 195.60] Destroying or damaging property — s 195(1)(a) (1) The accused intentionally [6-500] or recklessly [8-s 4A.1], [8-s 194] destroyed

or damaged [8-s 195.5] property [8-s 4], [8-s 194]; (2) which belonged to another person or the accused and another person. [8-s 195.65] Destroying or damaging property by means of fire or explosives — s 195(1)(b) (1) The accused intentionally [6-500] or recklessly [8-s 4A.1], [8-s 194] destroyed

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s 196

CRIMES ACT 1900 (NSW) — PART 4AD

[8-s 196]

or damaged [8-s 195.5] property [8-s 4], [8-s 194]; (2) which belonged to another person or the accused and another person; and (3) the damage or destruction was caused by means of fire or explosives. [8-s 195.70] Destroying or damaging property in company — s 195(1A)(a) (1) The accused intentionally [6-500] or recklessly [8-s 4A.1], [8-s 194] destroyed

or damaged [8-s 195.5] property [8-s 4], [8-s 194]; (2) which belonged to another person or the accused and another person; and (3) the accused was in the company of another person or persons. [8-s 195.75] Destroying or damaging property in company by means of fire or explosives — s 195(1A)(b) (1) The accused intentionally [6-500] or recklessly [8-s 4A.1], [8-s 194] destroyed

or damaged [8-s 195.5] property [8-s 4], [8-s 194];

[8-s 195.80] Destroying or damaging property during public disorder — s 195(2)(a) (1) The accused intentionally [6-500] or recklessly [8-s 4A.1], [8-s 194] destroyed

or damaged [8-s 195.5] property [8-s 4], [8-s 194]; (2) which belonged to another person or the accused and another person; and (3) the damage or destruction occurred during a public disorder [8-s 4]. [8-s 195.85] Destroying or damaging property by means of fire or explosives during public disorder —– s 195(2)(b) (1) The accused intentionally [6-500] or recklessly [8-s 4A.1], [8-s 194] destroyed

or damaged [8-s 195.5] property [8-s 4], [8-s 194]; (2) which belonged to another person or the accused and another person; and (3) the damage or destruction was caused by means of fire or explosives; and (4) the damage or destruction occurred during a public disorder [8-s 4]. [8-s 195.90] Alternative verdict A conviction for an offence under s 308D or s 308E is an alternative verdict to a charge under this section: see ss 308D and 308E at [8-s 308D], [8-s 308E].

[8-s 196] Destroying or damaging property with intent to injure a person 196 (1) A person who destroys or damages property, intending by the destruction or damage to cause bodily injury to another, is liable: (a) to imprisonment for 7 years, or (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 14 years. [subs (1) am Act 38 of 2007 s 3 and Sch 1[12], opn 15 Feb 2008]

(2) A person who, during a public disorder, destroys or damages property, intending by the destruction or damage to cause bodily injury to another, is liable: (a) to imprisonment for 9 years, or

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Crimes

(2) which belonged to another person or the accused and another person; (3) the damage or destruction was caused by means of fire or explosives; and (4) the accused was in the company of another person or persons.

[8-s 196]

s 196

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

(b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 16 years. [subs (2) insrt Act 61 of 2006 s 3 and Sch 1[13], opn 15 Dec 2006; am Act 38 of 2007 s 3 and Sch 1[12], opn 15 Feb 2008] [s 196 am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000; Act 38 of 2007 s 3 and Sch 1[12], opn 15 Feb 2008] Editor’s note: For proof material on s 196, see [27-26,050] behind the “27 – Informations and Indictments” guide card.

COMMENTARY ON SECTION 196 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Personal violence offence/domestic violence offence . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Destroying or damaging property with intent to injure a person — s 196(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Destroying or damaging property by means of fire or explosives with intent to injure a person — s 196(1)(b) . . . . . . . . . . . . . . Destroying or damaging property with intent to injure a person during public disorder — s 196(2)(a) . . . . . . . . . . . . . . . . . . . . . Destroying or damaging property by means of fire or explosives with intent to injure a person during public disorder — s 196(2)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Destroying or damaging property with intent to injure a person — s 196(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Destroying or damaging property by means of fire or explosives with intent to injure a person — s 196(1)(b) . . . . . . . . . . . . . . Destroying or damaging property during a public disorder with intent to injure a person — s 196(2)(a) . . . . . . . . . . . . . . . . . . . Destroying or damaging property during a public disorder by means of fire or explosives with intent to injure a person — s 196(2)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 196.1] [8-s 196.5] [8-s 196.10] [8-s 196.15] [8-s 196.20] [8-s 196.25] [8-s 196.30] [8-s 196.35] [8-s 196.40] [8-s 196.45] [8-s 196.50] [8-s 196.55] [8-s 196.60] [8-s 196.65]

[8-s 196.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act and is to be dealt with in the Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Part 2 clause 9. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 196.5] Definitions As to “property” see s 4 at [8-s 4] and s 194 at [8-s 194]. As to “damage” see [8-s 195.5]. [8-s 196.10] Intoxication An offence under this section which is alleged to have been committed after 16 August 1996 is an offence of specific intent for the purpose of Pt 11A Crimes Act 1900 relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. [8-s 196.15] Personal violence offence/domestic violence offence This offence (or an offence of attempting to commit this offence) is a “personal violence offence” as defined in s 4 of the Crimes (Domestic and Personal Violence) Act 2007 at [8-5015] and, when committed by a person against another person with whom the offender has or has had a domestic relationship, is a “domestic violence offence” as defined in s 11 of that Act at [8-5240]. PROOF MATERIAL ON SECTION 196 For the text of s 196, see [8-s 196] behind the “8 – Crimes Act” guide card in Vol 1.

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s 196

CRIMES ACT 1900 (NSW) — PART 4AD

[8-s 196.65]

[8-s 196.20] Form of indictment [8-s 196.25] Destroying or damaging property with intent to injure a person — s 196(1)(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales intentionally/recklessly destroyed/damaged [brief details of property destroyed/damaged] with intent to cause bodily injury to [name of victim]. [8-s 196.30] Destroying or damaging property by means of fire or explosives with intent to injure a person — s 196(1)(b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales intentionally/recklessly destroyed/damaged [brief details of property destroyed/damaged] by means of fire/by means of explosives, with intent to cause bodily injury to [name of victim].

[8-s 196.40] Destroying or damaging property by means of fire or explosives with intent to injure a person during public disorder — s 196(2)(b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, during a public disorder, intentionally/recklessly destroyed/damaged [brief details of property destroyed/damaged] by means of fire/by means of explosives, with intent to cause bodily injury to [name of victim]. [8-s 196.45] Elements of offence

The elements of the offence are —

[8-s 196.50] Destroying or damaging property with intent to injure a person — s 196(1)(a) (1) The accused intentionally or recklessly [8-s 4A.1][8-s 194] destroyed or

damaged [8-s 195.5] property [8-s 4][8-s 194]; and (2) that destruction or damage [8-s 195.5] was done with intent [6-500] to cause

bodily injury to another person. [8-s 196.55] Destroying or damaging property by means of fire or explosives with intent to injure a person — s 196(1)(b) (1) The accused intentionally or recklessly [8-s 4A.1][8-s 194] destroyed or

damaged [8-s 195.5] property [8-s 4][8-s 194]; and (2) that destruction or damage [8-s 195.5] was done with intent [6-500] to cause

bodily injury to another person. (3) that destruction or damage was caused by means or fire or explosives. [8-s 196.60] Destroying or damaging property during a public disorder with intent to injure a person — s 196(2)(a) (1) The accused intentionally or recklessly [8-s 4A.1][8-s 194] destroyed or

damaged [8-s 195.5] property [8-s 4][8-s 194]; and (2) that destruction or damage [8-s 195.5] was done with intent [6-500] to cause

bodily injury to another person. (3) that destruction or damage and intent to cause bodily injury occurred during a

public disorder [8-s 4]. [8-s 196.65] Destroying or damaging property during a public disorder by means of fire or explosives with intent to injure a person — s 196(2)(b) (1) The accused intentionally or recklessly [8-s 4A.1][8-s 194] destroyed or

damaged [8-s 195.5] property [8-s 4][8-s 194]; and

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Crimes

[8-s 196.35] Destroying or damaging property with intent to injure a person during public disorder — s 196(2)(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales intentionally/recklessly destroyed/damaged [brief details of property destroyed/damaged] during a public disorder with intent to cause bodily injury to [name of victim].

[8-s 196.65]

s 196

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

(2) that destruction or damage [8-s 195.5] was done with intent [6-500] to cause

bodily injury to another person. (3) that destruction or damage was caused by means or fire or explosives; (4) that destruction or damage and intent to cause bodily injury occurred during a

public disorder [8-s 4].

[8-s 197] Dishonestly destroying or damaging property 197 (1) A person who dishonestly, with a view to making a gain for that person or another, destroys or damages property is liable: (a) to imprisonment for 7 years, or (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 14 years. (2) A person who, during a public disorder, dishonestly, with a view to making a gain for that person or another, destroys or damages property is liable: (a) to imprisonment for 9 years, or (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 16 years. [subs (2) insrt Act 61 of 2006 s 3 and Sch 1[14], opn 15 Dec 2006] [s 197 am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000] Editor’s note: For proof material on s 197, see [27-26,100] behind the “27 – Informations and Indictments” guide card.

COMMENTARY ON SECTION 197 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dishonestly destroying or damaging property — s 197(1)(a) . . Dishonestly destroying or damaging property by means of fire or explosives — s 197(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dishonestly destroying or damaging property during a public disorder — s 197(2)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dishonestly destroying or damaging property by means of fire or explosives during a public disorder — s 197(2)(b) . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dishonestly destroying or damaging property — s 197(1)(a) . . Dishonestly destroying or damaging property by means of fire or explosives — s 197(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dishonestly destroying or damaging property during public disorder — s 197(2)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 197.1] [8-s 197.5] [8-s 197.10] [8-s 197.15] [8-s 197.20] [8-s 197.25] [8-s 197.30] [8-s 197.35] [8-s 197.40] [8-s 197.45] [8-s 197.50] [8-s 197.55]

[8-s 197.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act and is to be dealt with in the Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 2 cl 9. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 197.5] Definitions As to “dishonesty” see [8-s 178BA.20]. As to “damage” see [8-s 195.5]. As to “property” see s 4 at [8-s 4] and s 194 at [8-s 194]. It has been held with respect to a similar offence in Victoria, that “gain” is to be given a wide or general interpretation and extends beyond “profit”. It includes obtaining the market value for

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s 197

CRIMES ACT 1900 (NSW) — PART 4AD

[8-s 197.50]

the property from an insurance company: Director of Public Prosecutions Reference (No 1 of 1988) [1989] VR 857; (1989) 40 A Crim R 461. The section covers a situation where the accused sets the fire in order to obtain money knowing that a fraudulent claim on an insurance company was to be made: R v Ahmed [2001] NSWCCA 450; BC200107455; (2001) 8 Crim LN 98 [1365]. [8-s 197.10] Intoxication An offence under this section which is alleged to have been committed after 16 August 1996, to the extent that an element of the offence under this section requires a person to intend to cause the specific result necessary for the offence, is an offence of specific intent for the purpose of Pt 11A Crimes Act 1900 relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. PROOF MATERIAL ON SECTION 197 For the text of s 197, see [8-s 197] behind the “8 — Crimes Act” guide card in Vol 1. [8-s 197.15] Form of indictment

[8-s 197.25] Dishonestly destroying or damaging property by means of fire or explosives — s 197(1)(b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales dishonestly destroyed/damaged by means of fire/by means of explosives [brief details of property destroyed or damaged] with the view of making a gain of [set out brief description of the gain sought] for [name of intended recipient of gain]. [8-s 197.30] Dishonestly destroying or damaging property during a public disorder — s 197(2)(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, during a public disorder, dishonestly destroyed/damaged [brief details of property destroyed or damaged] with the view of making a gain of [set out brief description of the gain sought] for [name of intended recipient of gain]. [8-s 197.35] Dishonestly destroying or damaging property by means of fire or explosives during a public disorder — s 197(2)(b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, during a public disorder, dishonestly destroyed/damaged by means of fire/by means of explosives [brief details of property destroyed or damaged] with the view of making a gain of [set out brief description of the gain sought] for [name of intended recipient of gain]. [8-s 197.40] Elements of offence

The elements of the offence are —

[8-s 197.45] Dishonestly destroying or damaging property — s 197(1)(a) (1) The accused dishonestly [8-s 178BA.20], with a view to making a gain [8-s 197.5] for the accused or another person, (2) destroyed or damaged [8-s 195.5] property [8-s 4][8-s 194]. [8-s 197.50] Dishonestly destroying or damaging property by means of fire or explosives — s 197(1)(b) (1) The accused dishonestly [8-s 178BA.20], with a view to making a gain [8-s 197.5] for the accused or another person; (2) destroyed or damaged [8-s 195.5] property [8-s 4][8-s 194]; (3) by means of fire or explosives.

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Crimes

[8-s 197.20] Dishonestly destroying or damaging property — s 197(1)(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales dishonestly destroyed/damaged brief details of property destroyed or damaged] with the view of making a gain of [set out brief description of the gain sought] for [name of intended recipient of gain].

[8-s 197.55]

s 197

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

[8-s 197.55] Dishonestly destroying or damaging property during public disorder — s 197(2)(a) (1) The accused dishonestly [8-s 178BA.20], with a view to making a gain [8-s 197.5] for the accused or another person; (2) destroyed or damaged [8-s 195.5] property [8-s 4][8-s 194]; (3) during a public disorder [8-s 4]. Dishonestly destroying or damaging property by means of fire or explosives — s 197(2)(b) (1) The accused dishonestly [8-s 178BA.20], with a view to making a gain

[8-s 197.5] for the accused or another person, (2) destroyed or damaged [8-s 195.5] property [8-s 4][8-s 194]. (3) by means of fire or explosives. (4) during a public disorder [8-s 4].

[8-s 198] Destroying or damaging property with intention of endangering life 198 A person who destroys or damages property, intending by the destruction or damage to endanger the life of another, is liable to imprisonment for 25 years. [s 198 am Act 218 of 1989 s 3 and Sch 1(21); am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000; Act 38 of 2007 s 3 and Sch 1[12], opn 15 Feb 2008] Editor’s note: For proof material on s 198, see [27-26,150] behind the “27 – Informations and Indictments” guide card.

COMMENTARY ON SECTION 198 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Personal violence offence/domestic violence offence . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 198.1] [8-s 198.5] [8-s 198.10] [8-s 198.15] [8-s 198.20]

[8-s 198.1] Definitions As to “damage” see [8-s 195.5]. As to “property” see s 4 at [8-s 4] and s 194 at [8-s 194]. [8-s 198.5] Intoxication An offence under this section which is alleged to have been committed after 16 August 1996 is an offence of specific intent for the purpose of Pt 11A Crimes Act 1900 relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. [8-s 198.10] Personal violence offence/domestic violence offence This offence (or an offence of attempting to commit this offence) is a “personal violence offence” as defined in s 4 of the Crimes (Domestic and Personal Violence) Act 2007 at [8-5015] and, when committed by a person against another person with whom the offender has or has had a domestic relationship, is a “domestic violence offence” as defined in s 11 of that Act at [8-5240]. PROOF MATERIAL ON SECTION 198 For the text of s 198, see [8-s 198] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 198.15] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, intentionally/recklessly destroyed/damaged [brief details of property] with the intent by that destruction/damage to endanger the life of [name of victim]. [8-s 198.20] Elements of offence The elements of the offence are — (1) The accused intentionally or recklessly [8-s 4A.1] destroyed or damaged

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s 199

CRIMES ACT 1900 (NSW) — PART 4AD

[8-s 199.5]

[8-s 195.5] property [8-s 195.5][8-s 194]; (2) with intent [6-500] thereby to endanger the life of another person.

199 (1) A person who, without lawful excuse, makes a threat to another, with the intention of causing that other to fear that the threat would be carried out: (a) to destroy or damage property belonging to that other or to a third person, or (b) to destroy or damage the first-mentioned person’s own property in a way which that person knows will or is likely to endanger the life of, or to cause bodily injury to, that other or a third person, is liable to imprisonment for 5 years. (2) A person who, during a public disorder and without lawful excuse, makes a threat to another, with the intention of causing that other to fear that the threat would be carried out: (a) to destroy or damage property belonging to that other or to a third person, or (b) to destroy or damage the first-mentioned person’s own property in a way which that person knows will or is likely to endanger the life of, or to cause bodily injury to, that other or a third person, is liable to imprisonment for 7 years. [subs (2) insrt Act 61 of 2006 s 3 and Sch 1[15], opn 15 Dec 2006] [s 199 am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000] Editor’s note: For proof material on s 199, see [27-26,200] behind the “27 – Informations and Indictments” guide card.

COMMENTARY ON SECTION 199 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Without lawful excuse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Personal violence offence/domestic violence offence . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Threaten to destroy or damage property . . . . . . . . . . . . . . . . . . . . . Threaten to destroy or damage property so as to endanger life etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Threaten to destroy or damage property during public disorder . Threaten to destroy or damage property so as to endanger life etc during public disorder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Threaten to destroy or damage property — s 199(1) . . . . . . . . . . Threaten to destroy or damage property during public disorder — s 199(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 199.1] [8-s 199.5] [8-s 199.10] [8-s 199.15] [8-s 199.20] [8-s 199.25] [8-s 199.30] [8-s 199.35] [8-s 199.40] [8-s 199.45] [8-s 199.50] [8-s 199.55] [8-s 199.60]

[8-s 199.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act and is to be dealt with in the Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 2 cl 9. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 199.5] Definitions As to “damage” see [8-s 195.5]. As to “property” see s 4 at [8-s 4] and s 194 at [8-s 194].

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Crimes

[8-s 199] Threatening to destroy or damage property

[8-s 199.10]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 199

[8-s 199.10] Without lawful excuse The onus of proving lawful excuse lies upon the accused: see s 417 of the Crimes Act at [8-s 417]; see also [8-s 189A.10]. [8-s 199.15] Intoxication An offence under this section which is alleged to have been committed after 16 August 1996 is an offence of specific intent for the purpose of Pt 11A Crimes Act 1900 relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. [8-s 199.20] Personal violence offence/domestic violence offence This offence (or an offence of attempting to commit this offence) is a “personal violence offence” as defined in s 4 of the Crimes (Domestic and Personal Violence) Act 2007 at [8-5015] and, when committed by a person against another person with whom the offender has or has had a domestic relationship, is a “domestic violence offence” as defined in s 11 of that Act at [8-5240]. PROOF MATERIAL ON SECTION 199 For the text of s 199, see [8-s 199] behind the “8 — Crimes Act” guide card in Vol 1. [8-s 199.25] Form of indictment [8-s 199.30] Threaten to destroy or damage property That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, without lawful excuse, made a threat to [name of victim] with the intention of causing the said [name of victim] to fear that property namely [brief details of property] belonging to [name of owner] would be damaged/destroyed. [8-s 199.35] Threaten to destroy or damage property so as to endanger life etc That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, without lawful excuse, made a threat to [name of victim] with the intention of causing the said [name of victim] to fear that property namely [brief details of property] belonging to [name of owner] would be damaged/destroyed in a way which he/she the said [name of accused] knew was/was likely to endanger the life of/cause bodily injury to [name of victim or third party]. [8-s 199.40] Threaten to destroy or damage property during public disorder That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, during a public disorder, without lawful excuse, made a threat to [name of victim] with the intention of causing the said [name of victim] to fear that property namely [brief details of property] belonging to [name of owner] would be damaged/destroyed. [8-s 199.45] Threaten to destroy or damage property so as to endanger life etc during public disorder That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, during a public disorder, without lawful excuse, made a threat to [name of victim] with the intention of causing the said [name of victim] to fear that property namely [brief details of property] belonging to [name of owner] would be damaged/destroyed in a way which he/she the said [name of accused] knew was/was likely to endanger the life of/cause bodily injury to [name of victim or third party]. [8-s 199.50] Elements of offence

The elements of the offence are —

[8-s 199.55] Threaten to destroy or damage property — s 199(1) (1) The accused, without lawful excuse [8-s 199.10], made a threat to another

person, with the intention [6-500] of causing that other person to fear that the threat would be carried out; and (2) that threat was: (i) to destroy or damage [8-s 195.5] property [8-s 4][8-s 194] belonging to that other person or a third person; or (ii) to destroy or damage [8-s 195.5] the accused’s own property [8-s 4][8-s 194] in a way which the accused knows will, or is likely to endanger the life of or cause bodily injury to that other person or some third person.

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s 200

CRIMES ACT 1900 (NSW) — PART 4AD

[8-s 200.1]

[8-s 199.60] Threaten to destroy or damage property during public disorder — s 199(2) (1) The accused, without lawful excuse [8-s 199.10]; (2) during a public disorder [8-s 4]; (3) made a threat to another person, with the intention [6-500] of causing that other

person to fear that the threat would be carried out; and (4) that threat was: (i) to destroy or damage [8-s 195.5] property [8-s 4][8-s 194] belonging to that other person or a third person; or (ii) to destroy or damage [8-s 195.5] the accused’s own property [8-s 4][8-s 194] in a way which the accused knows will, or is likely to endanger the life of or cause bodily injury to that other person or some third person.

200 (1) A person who has possession, custody or control of an article with the intention that it should be used to destroy or damage property belonging to: (a) some other person, or (b) the first-mentioned person or the user, or both of them, and some other person, is liable (if the article is an explosive) to imprisonment for 7 years or (if the article is not an explosive) to imprisonment for 3 years. [subs (1) am Act 38 of 2007 s 3 and Sch 1[12], opn 15 Feb 2008]

(2) A person who, during a public disorder, has possession, custody or control of an article with the intention that it should be used to destroy or damage property belonging to: (a) some other person, or (b) the first-mentioned person or the user, or both of them, and some other person, is liable (if the article is an explosive) to imprisonment for 9 years or (if the article is not an explosive) to imprisonment for 5 years. [subs (2) insrt Act 61 of 2006 s 3 and Sch 1[16], opn 15 Dec 2006; am Act 38 of 2007 s 3 and Sch 1[12], opn 15 Feb 2008] [s 200 am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000; am Act 48 of 2004 s 3 and Sch 1[6], opn 12 Nov 2004] Editor’s note: For proof material on s 200, see [27-26,250] behind the “27 – Informations and Indictments” guide card.

COMMENTARY ON SECTION 200 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Personal violence offence/domestic violence offence . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Possession etc of explosive or other article with intent to destroy or damage property — s 200(1) . . . . . . . . . . . . . . . . . . . . . . . . . Possession etc of explosive or other article during public disorder with intent to destroy or damage property — s 200(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Possession etc of explosive or other article with intent to destroy or damage property — s 200(1) . . . . . . . . . . . . . . . . . . . . . . . . .

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[8-s 200.1] [8-s 200.5] [8-s 200.10] [8-s 200.15] [8-s 200.20] [8-s 200.25] [8-s 200.30] [8-s 200.35] [8-s 200.40]

Crimes

[8-s 200] Possession etc of explosive or other article with intent to destroy or damage property

[8-s 200.1]

s 200

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Possession etc of explosive or other article during public disorder with intent to destroy or damage property — s 200(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 200.45]

[8-s 200.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act and is to be dealt with in the Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 2 cl 9. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 200.5] Definitions As to “possession” see at [8-s 7]. As to “damage” see [8-s 195.5]. As to “property” see at [8-s 4] and at [8-s 194]. [8-s 200.10] Intoxication An offence under this section which is alleged to have been committed after 16 August 1996 is an offence of specific intent for the purpose of Pt 11A Crimes Act 1900 relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. [8-s 200.15] Personal violence offence/domestic violence offence This offence (or an offence of attempting to commit this offence) is a “personal violence offence” as defined in s 4 of the Crimes (Domestic and Personal Violence) Act 2007 at [8-5015] and, when committed by a person against another person with whom the offender has or has had a domestic relationship, is a “domestic violence offence” as defined in s 11 of that Act at [8-5240]. PROOF MATERIAL ON SECTION 200 For the text of s 200, see [8-s 200] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 200.20] Form of indictment [8-s 200.25] Possession etc of explosive or other article with intent to destroy or damage property — s 200(1) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales had possession/custody/control of [brief details of article] with intent to destroy/damage [brief details of property] belonging to [name/s of property owner/s]. [8-s 200.30] Possession etc of explosive or other article during public disorder with intent to destroy or damage property — s 200(2) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales had, during a public disorder, possession/custody/control of [brief details of article] with intent to destroy/damage [brief details of property] belonging to [name/s of property owner/s]. [8-s 200.35] Elements of offence

The elements of the offence are —

[8-s 200.40] Possession etc of explosive or other article with intent to destroy or damage property — s 200(1) (1) The accused had possession [8-s 7], custody or control of an article; (2) with the intention [6-500] that the article should be used [8-s 5][8-s 194] to

destroy or damage [8-s 195.5] property [8-s 4][8-s 194] belonging to: (i) another person; or (ii) the accused and/or the user of the property [8-s 4][8-s 194], and another person. [8-s 200.45] Possession etc of explosive or other article during public disorder with intent to destroy or damage property — s 200(2) (1) The accused had possession [8-s 7], custody or control of an article; (2) during a public disorder [8-s 4]; (3) with the intention [6-500] that the article should be used [8-s 5][8-s 194] to

destroy or damage [8-s 195.5] property [8-s 4][8-s 194] belonging to: (i) another person; or

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s 201

[8-s 201.5]

CRIMES ACT 1900 (NSW) — PART 4AD

(ii) the accused and/or the user of the property [8-s 4][8-s 194], and another person.

DIVISION 3 — CRIMES RELATING TO PARTICULAR KINDS OF PROPERTY [Div 3 (formerly Pt 4, Div 2, subdiv 3) am Act 99 of 2009 Sch 2, opn 22 Feb 2010]

201 (1) A person who intentionally or recklessly: (a) causes water to run into a mine or any subterranean channel connected to it, (b) destroys, damages or obstructs any shaft, passage, pit, airway, waterway or drain of, or associated with, a mine, (c) destroys, damages or renders useless any equipment, structure, building, road or bridge belonging to, or associated with, a mine, or (d) hinders the working of equipment belonging to, or associated with, a mine, is liable to imprisonment for 7 years. (2) In this section, mine includes: (a) a place at which gas or other petroleum is extracted from the ground, and (b) a place at which exploration for minerals, or for gas or other petroleum, is undertaken by mechanical means that disturb the ground, and (c) a place at which works are being carried out to enable the extraction of minerals, or of gas or other petroleum, from the ground, and (d) a former mine at which works are being carried out to decommission the mine or make it safe. [subs (2) insrt Act 7 of 2016 Sch 2[3], opn 1 June 2016] [s 201 am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000; Act 38 of 2007 s 3 and Sch 1[3], opn 15 Feb 2008; Act 7 of 2016 Sch 2[1], [2], opn 1 June 2016] Editor’s note: For proof material on s 201, see [27-26,500] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 201 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Cause water to run into a mine or any subterranean channel connected to it — s 201(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Destroy, damage or obstruct any shaft etc of, or associated with, a mine — s 201(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Destroy, damage or render useless any equipment etc belonging to a mine — s 201(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Hinder the working of equipment belonging to a mine — s 201(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 201.1] [8-s 201.5] [8-s 201.10] [8-s 201.15] [8-s 201.20] [8-s 201.25] [8-s 201.30] [8-s 201.35]

[8-s 201.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act and is to be dealt with in the Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 2 cl 9. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 201.5] Definitions As to “recklessly” see at [8-s 5.1] and at [8-s 194]. As to “damage” see [8-s 195.5]. As to “property” see at [8-s 4] and at [8-s 194].

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Crimes

[8-s 201] Interfering with a mine

[8-s 201.10]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 201

PROOF MATERIAL ON SECTION 201 For the text of s 201, see [8-s 201] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 201.10] Form of indictment [8-s 201.15] Cause water to run into a mine or any subterranean channel connected to it — s 201(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales intentionally/recklessly caused water to run into [name and location of mine]/into a subterranean channel connected to [name and location of mine]. [8-s 201.20] Destroy, damage or obstruct any shaft etc of, or associated with, a mine — s 201(b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales intentionally/recklessly destroyed/damaged/obstructed a shaft/passage/pit/ airway/waterway/drain of/associated with [name and location of mine]. [8-s 201.25] Destroy, damage or render useless any equipment etc belonging to a mine — s 201(c) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales intentionally/recklessly destroyed/damaged/rendered useless equipment/building/road/bridge [provide brief description] belonging to [name and location of mine]. [8-s 201.30] Hinder the working of equipment belonging to a mine — s 201(d) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales intentionally/recklessly hindered [describe acts done and equipment etc hindered and the mine to which the equipment belonged]. [8-s 201.35] Elements of offence The elements of the offence are — (1) The accused intentionally or recklessly [8-s 4A.1]: (i) caused water to run into a mine or any subterranean channel connected to it; (ii) destroyed, damaged [8-s 195.5] or obstructed any shaft, passage, pit, airway, waterway or drain of, or associated with, a mine; (iii) destroyed, damaged [8-s 195.5] or rendered useless any equipment, building, road or bridge belonging to a mine; or (iv) hindered the working of equipment belonging to a mine.

[8-s 202] Causing damage etc to sea, river, canal and other works 202 A person who: (a) intentionally or recklessly destroys, damages, removes or interferes with piles or other materials that form part of, or have been fixed or placed in position in order to secure: (i) a sea wall or other structure designed to prevent erosion by the sea, (ii) the bank or bed of, or a dam, weir or lock located on, a river or canal, (iii) a drain, aqueduct, marsh or reservoir, or (iv) a dock, quay, wharf, jetty or other harbour installation, (b) intentionally or recklessly opens a floodgate or sluice that is located at or on a dam, weir, reservoir or watercourse, or (c) with the intention of obstructing or hindering the navigation of vessels or boats on a navigable river or canal: (i) interferes with or obstructs the flow of the river or canal, (ii) damages or interferes with the bank or bed of the river or canal, or

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s 202

[8-s 202.25]

CRIMES ACT 1900 (NSW) — PART 4AD

(d) destroys, damages or interferes with any structure or equipment constructed or installed in connection with the use of the river or canal for the purposes of navigation, is liable to imprisonment for 7 years. [s 202 am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000; Act 38 of 2007 s 3 and Sch 1[3], opn 15 Feb 2008] Editor’s note: For proof material on s 202, see [27-26,550] behind the “27 – Informations and Indictments” guide card in Vol 4.

[8-s 202.1] [8-s 202.5] [8-s 202.10] [8-s 202.15] [8-s 202.20] [8-s 202.25] [8-s 202.30] [8-s [8-s [8-s [8-s [8-s

202.35] 202.40] 202.45] 202.50] 202.55]

[8-s 202.60] [8-s 202.65]

[8-s 202.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act and is to be dealt with in the Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 2 cl 9. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 202.5] Definitions As to “recklessly” see at [8-s 5.1] and at [8-s 194]. As to “damage” see [8-s 195.5]. [8-s 202.10] Form of indictment It is not necessary to allege that the property damaged belongs to any person; see at [2-Sch 3] Pt 4 cl 16. [8-s 202.15] Intoxication An offence under this section which is alleged to have been committed after 16 August 1996 is an offence of specific intent for the purpose of Pt 11A Crimes Act 1900 relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. PROOF MATERIAL ON SECTION 202 For the text of s 202, see [8-s 202] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 202.20] Form of indictment [8-s 202.25] Intentionally/recklessly destroys etc piles etc — s 202(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales intentionally/recklessly did destroy/damage/remove/interfere with [set out items destroyed etc] forming part of/fixed/placed in position to secure a sea wall/a structure designed to prevent erosion by the sea/the bank or bed of a river or canal/a dam, weir or lock located on a river or canal/a drain/aqueduct/marsh/reservoir/a dock/quay/wharf/jetty or other harbour installation, namely [describe structure, feature or installation].

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Crimes

COMMENTARY ON SECTION 202 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intentionally/recklessly destroys etc piles etc — s 202(a) . . . . . Intentionally/recklessly opens floodgate etc — s 202(b) . . . . . . . Interferes with or damages river etc with intent to obstruct etc — s 202(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Destroys etc structure etc — s 202(d) . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intentionally or recklessly [8-s 4A.1] destroys etc piles etc . . . . Intentionally or recklessly [8-s 4A.1] opens floodgate etc . . . . . Interferes with or damages etc river etc with intent to obstruct etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Destroys etc structure etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 202.30]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 202

[8-s 202.30] Intentionally/recklessly opens floodgate etc — s 202(b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales intentionally/recklessly opened a floodgate/sluice located at/on a dam/ weir/reservoir/watercourse situate at [describe dam etc]. [8-s 202.35] Interferes with or damages river etc with intent to obstruct etc — s 202(c) (i) That [name of accused] on [date of alleged offence] at [locality/suburb] in the

State of New South Wales, with the intention of obstructing/hindering the navigation of vessels/boats on [describe navigable river or canal], interfered with/obstructed the flow of the river/canal. (ii) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, with the intention of obstructing/hindering the navigation of vessels/boats on [describe navigable river or canal], damaged or interfered with the bank/bed of the river/canal. [8-s 202.40] Destroys etc structure etc — s 202(d) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales destroyed/damaged/interfered with a structure/equipment constructed or installed in connection with the use of the river/canal [describe river or canal] for the purpose of navigation. [8-s 202.45] Elements of offence

The elements of the offence are —

[8-s 202.50] Intentionally or recklessly [8-s 4A.1] destroys etc piles etc (1) The accused intentionally or recklessly [8-s 4A.1][8-s 5], [8-s 194] destroyed,

damaged s 5, removed or interfered with; (2) piles or other material that formed part of or had been fixed or placed in

position to secure either: (i) (ii) (iii) (iv)

a sea wall or other structure designed to prevent erosion by the sea; the bank or bed of, or a dam, weir or lock located on a river or canal; a drain, aqueduct, marsh or reservoir; or a dock, quay, wharf, jetty or other harbour installation.

[8-s 202.55] Intentionally or recklessly [8-s 4A.1] opens floodgate etc (1) The accused intentionally or recklessly [8-s 4A.1][8-s 5][8-s 194] opened a

floodgate or sluice; (2) which was located at or on a dam, weir, reservoir or watercourse. [8-s 202.60] Interferes with or damages etc river etc with intent to obstruct etc (1) The accused with the intention [6-500] of obstructing or hindering the

navigation of vessels or boats on a navigable river or canal, either: (i) interfered with or obstructed the flow of the river or canal; or (ii) damaged [8-s 195.5] or interfered with the bank or bed of a river or canal. [8-s 202.65] Destroys etc structure etc (1) The accused destroyed, damaged [8-s 195.5] or interfered with any structure or

equipment; (2) constructed or installed in connection with the use of a river or canal for the

purposes of navigation. 203

[s 203 rep Act 117 of 2001 s 3 and Sch 3[6], opn 21 Dec 2001]

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s 203B

CRIMES ACT 1900 (NSW) — PART 4AD

[8-s 203B.10]

DIVISION 4 — SABOTAGE [Div 4 (formerly Pt 4, Div 2, subdiv 4) am Act 99 of 2009 Sch 2, opn 22 Feb 2010]

[8-s 203A] Definitions 203A In this Division: economic loss includes the disruption of government functions or the disruption of the use of public facilities.

[def am Act 48 of 2004 s 3 and Sch 1[7], opn 12 Nov 2004; Act 99 of 2009 Sch 2, opn 22 Feb 2010]

[8-s 203B] Sabotage 203B A person: (a) whose conduct causes damage to a public facility, and (b) who intended to cause that damage, and (c) who intended by that conduct to cause: (i) extensive destruction of property, or (ii) major economic loss, is guilty of an offence. Maximum penalty: Imprisonment for 25 years. Editor’s note: For proof material on s 203B, see [27-26,700] behind the “27 – Informations and Indictments” guide card in Vol 4.

PROOF MATERIAL ON SECTION 203B For the text of s 203B, see [8-s 203B] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 203B.5] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales conducted himself/herself in a manner causing damage to a public facility [name of public facility] with intent to cause that damage and with intent to cause extensive destruction of property/major economic loss by that conduct. [8-s 203B.10] Elements of offence The elements of the offence are — (1) The accused’s conduct caused damage [8-s 195.5] to a public facility

[8-s 203A]; and (2) the accused intended [6-500] to cause that damage; and (3) the accused intended by that conduct to cause extensive destruction of property

or major economic loss [8-s 203A].

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Crimes

public facility means any of the following (whether publicly or privately owned): (a) a government facility, including premises used by government employees in connection with official duties, (b) a public infrastructure facility, including a facility providing water, sewerage, energy or other services to the public, (c) a public transport facility, including a conveyance used to transport people or goods, (d) a public place, including any premises, land or water open to the public, (e) a public computer system, including a computer system used for the operation of a public facility, for the provision of banking services or for other services to the public.

[8-s 203C]

s 203C

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

[8-s 203C] Threaten sabotage 203C (1) A person who: (a) makes to another person a threat to damage a public facility, and (b) intends that person to fear that the threat will be carried out and will cause: (i) extensive destruction of property, or (ii) major economic loss, is guilty of an offence. Maximum penalty: Imprisonment for 14 years. (2) In the prosecution of an offence under this section it is not necessary to prove that the person threatened actually feared that the threat would be carried out. (3) For the purposes of this section: (a) a threat may be made by any conduct, and may be explicit or implicit and conditional or unconditional, and (b) a threat to a person includes a threat to a group of persons, and (c) fear that a threat will be carried out includes apprehension that it will be carried out. Editor’s note: For proof material on s 203C, see [27-26,750] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 203C Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 203C.1] [8-s 203C.5] [8-s 203C.10]

[8-s 203C.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act and is to be dealt with in the Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 2 cl 9. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. PROOF MATERIAL ON SECTION 203C For the text of s 203C, see [8-s 203C] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 203C.5] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales made a threat to [name of person] to damage a public facility [name of public facility] with intent that he/she would fear that the threat would be carried out and would cause extensive destruction of property/major economic loss. [8-s 203C.10] Elements of offence The elements of the offence are — (1) The accused made a threat [8-s 203C(3)] to another person to damage a public

facility [8-s 203A]; and (2) intended [6-500] that person to fear that the threat [8-s 203C(3)] would be

carried out; and (3) would cause extensive destruction of property or major economic loss [8-s

203A]. DIVISION 5 — BUSHFIRES [Div 5 (formerly Pt 4, Div 2, subdiv 5) am Act 99 of 2009 Sch 2, opn 22 Feb 2010]

[8-s 203D] Definitions 203D

In this Division:

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s 203E

CRIMES ACT 1900 (NSW) — PART 4AD

[8-s 203E.5]

causing a fire includes: (a) lighting a fire, or (b) maintaining a fire, or (c) failing to contain a fire, except where the fire was lit by another person or the fire is beyond the control of the person who lit the fire. firefighter means a member of a fire brigade under the Rural Fires Act 1997 or the Fire and Rescue NSW Act 1989 or of any other official firefighting unit (including a unit from outside the State). [def am Act 59 of 2018 Sch 5 item 5.1, opn 26 Oct 2018]

spread of a fire means spread of a fire beyond the capacity of the person who causes the fire to extinguish it. [s 203D am Act 99 of 2009 Sch 2, opn 22 Feb 2010; Act 99 of 2009 Sch 2, opn 22 Feb 2010]

203E (1) A person: (a) who intentionally causes a fire, and (b) who is reckless as to the spread of the fire to vegetation on any public land or on land belonging to another, is guilty of an offence. Maximum penalty: Imprisonment for 21 years. [subs (1) am Act 94 of 2018 Sch 2 item 2.3[1], opn 28 Nov 2018]

(2) For the purposes of this section, recklessness may also be established by proof of intention. (3) A person is not criminally responsible for an offence against this section if: (a) the person is a firefighter or acting under the direction of a firefighter, and (b) the person caused the fire in the course of bushfire fighting or hazard reduction operations. (4) If on the trial of a person for an offence against this section the jury is not satisfied that the accused is guilty of the offence charged but is satisfied on the evidence that the accused is guilty of an offence against section 100(1) of the Rural Fires Act 1997, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. COMMENTARY ON SECTION 203E Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Standard non-parole period provisions . . . . . . . . . . . . . . . . . . . . . . . . . . Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Statutory defence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alternative verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 203E.1] [8-s 203E.5] [8-s 203E.10] [8-s 203E.15] [8-s 203E.20] [8-s 203E.25] [8-s 203E.30]

[8-s 203E.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in the Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 2 cl 9A. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 203E.5] Standard non-parole period provisions Where an offence under s 203E Crimes Act is committed on or after 1 February 2003, the offence is subject to the provisions of

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Crimes

[8-s 203E] Offence

[8-s 203E.5]

s 203E

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Div 1A of Pt 4 (ss 54A–54D) of the Crimes (Sentencing Procedure) Act 1999 at [5-s 54A] and following. The prescribed standard non-parole period is 5 years: Table following s 54D at [5-s 54D]. Division 1A of Pt 4 does not apply to detention under the Mental Health (Forensic Provisions) Act 1990 nor where the offence is dealt with summarily: s 54D(1)(b) and (2) at [5-s 54D]. [8-s 203E.10] Sentencing The approach to sentencing for standard non-parole period offences under s 203E(1) Crimes Act 1900 was considered in R v Mills (2005) 154 A Crim R 40; [2005] NSWCCA 175; BC200502849. PROOF MATERIAL ON SECTION 203E For the text of s 203E, see [8-s 203E] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 203E.15] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales intentionally caused a fire and was reckless as to the spread of the fire to vegetation on any public land or land belonging to another. [8-s 203E.20] Elements of offence The elements of the offence are: (1) The accused intentionally [6-500] caused a fire [8-s 203D]; and (2) Was reckless [8-s 203E(2)] as to the spread [8-s 203D] of the fire to vegetation

on any public land or on land belonging to another. [8-s 203E.25] Statutory defence A person is not criminally responsible for an offence against this section if the person is a firefighter [8-s 203D] or acting under the direction of a firefighter and the person caused the fire in the course of bushfire fighting or hazard reduction operations: see at [8-s 203E]. [8-s 203E.30] Alternative verdict If on the trial of a person for an offence against this section the jury is not satisfied that the accused is guilty of the offence charged but is satisfied on the evidence that the accused is guilty of an offence against s 100(1) of the Rural Fires Act 1997, it may find the accused not guilty of the offence charged but guilty of the latter offence: see [8-s 203E(4)] at [8-s 203].

PART 4AE — OFFENCES RELATING TO TRANSPORT SERVICES [Pt 4AA insrt Act 287 of 1987 s 3 and Sch 1(6); am Act 99 of 2009 Sch 2, opn 22 Feb 2010]

DIVISION 1 — OFFENCES RELATING TO AIRCRAFT, VESSELS ETC

[8-s 204] Destruction of, or damage to, an aircraft or vessel with intent or reckless indifference 204 Any person who: (a) with intent to cause the death of a person, or (b) with reckless indifference for the safety of the life of a person, destroys or damages an aircraft or vessel is liable to imprisonment for 25 years. [s 204 am Act 218 of 1989 s 3 and Sch 1(22); am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000] Editor’s note: For proof material on s 204, see [27-28,000] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 204 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[8-s 204.1] [8-s 204.5]

s 205

CRIMES ACT 1900 (NSW) — PART 4AE

Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 205.10] [8-s 204.10] [8-s 204.15]

[8-s 204.1] Definitions As to “reckless indifference” see [8-s 18.5]. As to “aircraft” and “vessel” see s 4 at [8-s 4]. [8-s 204.5] Intoxication An offence under this section which is alleged to have been committed after 16 August 1996, to the extent that an element of the offence under this section requires a person to intend to cause the specific result necessary for the offence, is an offence of specific intent for the purpose of Pt 11A Crimes Act 1900 relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. PROOF MATERIAL ON SECTION 204 For the text of s 204, see [8-s 204] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 204.10] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, destroyed/damaged an aircraft/vessel, namely the [name and/or number of aircraft or vessel] with intent to cause the death of [name of intended victim]/with reckless indifference for the safety of the life of [name of possible victim].

[8-s 4]; (2) either: (i) with intent [6-500] to cause the death of a person; or (ii) with reckless indifference [8-s 18.5] for the safety of the life of a person.

[8-s 205] Prejudicing the safe operation of an aircraft or vessel 205 A person who, whether on board the aircraft or vessel or not, does anything with the intention of prejudicing the safety of an aircraft or vessel is liable to imprisonment for 14 years. [s 205 am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000] Editor’s note: For proof material on s 205, see [27-28,050] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 205 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 205.1] Definitions

[8-s 205.1] [8-s 205.5] [8-s 205.10] [8-s 205.15]

As to “aircraft” and “vessel” see s 4 at [8-s 4].

[8-s 205.5] Intoxication An offence under this section which is alleged to have been committed after 16 August 1996 is an offence of specific intent for the purpose of Pt 11A Crimes Act 1900 relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. PROOF MATERIAL ON SECTION 205 For the text of s 205, see [8-s 205] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 205.10] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, did an act, namely [describe act] with the intention of prejudicing the safety of an aircraft/vessel, namely the [name and/or number of aircraft or vessel].

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Crimes

[8-s 204.15] Elements of offence The elements of the offence are — (1) The accused destroyed or damaged [8-s 195.5] an aircraft [8-s 4] or vessel

[8-s 205.15]

s 205

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

[8-s 205.15] Elements of offence The elements of the offence are — (1) The accused did an act; (2) which prejudiced the safety of an aircraft [8-s 4] or vessel [8-s 4].

[8-s 206] Assault etc on member of crew of aircraft or vessel 206 A person who, while on board an aircraft or vessel, assaults or threatens with violence a member of the crew of the aircraft or vessel: (a) so as to interfere with the functions or duties performed by the crew member in connection with the safe operation of the aircraft or vessel, or (b) so as to diminish the ability of the crew member to perform those functions or duties, is liable to imprisonment for 14 years. [s 206 am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000] Editor’s note: For proof material on s 206, see [27-28,100] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 206 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Interfere with functions etc of crew member — s 206(a) . . . . . . Diminish ability of crew member to perform functions etc — s 206(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 206.1] [8-s 206.5] [8-s 206.10] [8-s 206.15] [8-s 206.20]

[8-s 206.1] Definitions As to “aircraft” and “vessel” see s 4 at [8-s 4]. As to “assaults” see [8-s 58.5]. PROOF MATERIAL ON SECTION 206 For the text of s 206, see [8-s 206] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 206.5] Form of indictment [8-s 206.10] Interfere with functions etc of crew member — s 206(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales], whilst on board an aircraft/vessel, assaulted/threatened with violence [name of victim] a member of the crew of [name and/or number of aircraft or vessel] so as to interfere with the function or duties performed by [name of victim] in connection with the safe operation of the [name and/or number of aircraft or vessel]. [8-s 206.15] Diminish ability of crew member to perform functions etc — s 206(b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, whilst on board an aircraft/vessel, assaulted/threatened with violence [name of victim] a member of the crew of [name and/or number of aircraft or vessel] so as to diminish the ability of [name of victim] to perform his/her duties in connection with the safe operation of the aircraft/vessel. [8-s 206.20] Elements of offence The elements of the offence are — (1) The accused was on board an aircraft [8-s 4] or vessel [8-s 4]; and (2) whilst on board, either: (i) assaulted [8-s 58.5]; or (ii) threatened with violence; (3) a member of the crew of the aircraft or vessel;

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s 207

[8-s 207.1]

CRIMES ACT 1900 (NSW) — PART 4AE

(4) so as to either: (i) interfere with the functions or duties performed by the crew member in connection with the safe operation of the aircraft or vessel; or (ii) to diminish the ability of the crew member to perform those functions or duties.

[8-s 207] Placing etc dangerous articles on board an aircraft or vessel dangerous article means: (a) a firearm, ammunition for a firearm, a weapon or an explosive, or (b) a substance or thing that, because of its nature or condition, could endanger the safety of an aircraft or vessel or persons on board an aircraft or vessel. (2) A person who: (a) places or carries on board an aircraft or vessel an article knowing that it is a dangerous article, (b) knowing that an article is a dangerous article, delivers the article to a person for the purpose of having the article placed or carried on board an aircraft or vessel, or (c) has possession of an article while on board an aircraft or vessel knowing that the article is a dangerous article, is liable to imprisonment for 7 years. [subs (2) am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000]

(3) Subsection (2): (a) does not apply to or in relation to anything done with an article in relation to an aircraft or vessel with the consent of the owner or operator of the aircraft or vessel where that consent is given with a knowledge of the nature or condition of the article, and (b) does not apply to or in relation to the carrying or placing of a firearm or ammunition for a firearm on board an aircraft or vessel with permission given in accordance with regulations in force under the Air Navigation Act 1920 of the Commonwealth. (4) A reference in this section to a firearm includes a reference to an imitation firearm within the meaning of the Firearms Act 1996. [subs (4) insrt Act 40 of 2010 Sch 3.8[4], opn 9 July 2010] Editor’s note: For proof material on s 207, see [27-28,150] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 207 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Places or carries article on board aircraft etc — s 207(2)(a) . . . Delivers article to another to have placed on board aircraft etc — s 207(2)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Possesses article whilst on board aircraft etc — s 207(2)(c) . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Places or carries article on board aircraft etc . . . . . . . . . . . . . . . . .

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[8-s 207.1] [8-s 207.5] [8-s 207.10] [8-s 207.15] [8-s [8-s [8-s [8-s

207.20] 207.25] 207.30] 207.35]

Crimes

207 (1) In this section:

[8-s 207.1]

s 207

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Delivers article to another to have placed on board aircraft etc . Possesses article whilst on board aircraft etc . . . . . . . . . . . . . . . . .

[8-s 207.40] [8-s 207.45]

[8-s 207.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in the Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 3 cl 11. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 207.5] Definitions As to “possession” see s 7 at [8-s 7]. As to “vessel” see s 4 at [8-s 4]. As to “aircraft” see s 4 at [8-s 4]. PROOF MATERIAL ON SECTION 207 For the text of s 207, see [8-s 207] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 207.10] Form of indictment [8-s 207.15] Places or carries article on board aircraft etc — s 207(2)(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, placed/carried on board an aircraft/vessel, namely [name and/or number of aircraft or vessel, if known], an article, namely [describe article] knowing that it was a dangerous article. [8-s 207.20] Delivers article to another to have placed on board aircraft etc — s 207(2)(b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, knowing that [describe article] was a dangerous article, delivered that article to [name of other party] for the purpose of having that article placed/carried on board an aircraft/vessel namely [name and/or number of aircraft or vessel, if known]. [8-s 207.25] Possesses article whilst on board aircraft etc — s 207(2)(c) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, had possession of an article, namely [describe article] while on board an aircraft/vessel, namely [name and/or number of aircraft or vessel, if known], knowing that the article was a dangerous article. [8-s 207.30] Elements of offence

The elements of the offence are —

[8-s 207.35] Places or carries article on board aircraft etc (1) The accused placed or carried on board an aircraft [8-s 4] or vessel [8-s 4] an

article; (2) knowing that it was a dangerous article [8-s 207(1)]. [8-s 207.40] Delivers article to another to have placed on board aircraft etc (1) The accused, knowing that an article was a dangerous article [8-s 207(1)]; (2) delivered the article to a person for the purpose of having the article placed or

carried on board an aircraft [8-s 4] or vessel [8-s 4]. [8-s 207.45] Possesses article whilst on board aircraft etc (1) The accused had possession [8-s 7] of an article while on board an [8-s 4] or

vessel [8-s 4]; (2) knowing that the article was a dangerous article [8-s 207(1)].

[8-s 208] Threatening to destroy etc an aircraft, vessel or vehicle 208 (1) In this section: threat includes: (a) an expression of intention, or

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s 208

[8-s 208.1]

CRIMES ACT 1900 (NSW) — PART 4AE

(b) the making of a statement from which an expression of intention could reasonably be inferred. transport vehicle means: (a) a mechanically or electrically driven vehicle that is used or designed to be used for the purpose of conveying passengers or goods, or passengers and goods, or for the purpose of drawing a vehicle or vehicles of the kind referred to in paragraph (b), or (b) a vehicle not so driven that is directly or indirectly connected to and drawn by, or designed to be connected to and drawn by, a vehicle of the kind first referred to in paragraph (a), but does not include an aircraft or vessel. (2) A person who makes a demand of another person with a threat: (a) to destroy or damage, or endanger the safety of, an aircraft, vessel or transport vehicle, or (b) to kill, or inflict bodily injury on, persons who are in or on an aircraft, vessel or transport vehicle, is liable to imprisonment for 14 years. (3) A person who makes a demand of another person together with a threat to do any of the things mentioned in subsection (2)(a) or (b) and, while that threat still has effect: (a) discharges a firearm, (b) causes an explosion, or (c) inflicts grievous bodily harm on, or wounds, a person, is liable to imprisonment for 25 years. [subs (3) am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000]

(4) A person who makes a threat: (a) to destroy or damage, or endanger the safety of, an aircraft, vessel or transport vehicle, or (b) to kill, or inflict bodily injury on, persons who are in or on an aircraft, vessel or transport vehicle, is liable to imprisonment for 5 years. [s 208 am Act 218 of 1989 s 3 and Sch 1(23)] Editor’s note: For proof material on s 208, see [27-28,200] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 208 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Making a demand with a threat — s 208(2) . . . . . . . . . . . . . . . . . Making a demand with a threat and discharging firearm etc while threat still has effect — s 208(3) . . . . . . . . . . . . . . . . . . . . . . . . . Making a threat — s 208(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Making a demand with a threat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Making a demand with a threat and discharging firearm etc while threat still has effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Making a threat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[8-s 208.1] [8-s 208.5] [8-s 208.10] [8-s 208.15] [8-s 208.20] [8-s [8-s [8-s [8-s

208.25] 208.30] 208.35] 208.40]

[8-s 208.45] [8-s 208.50]

Crimes

[subs (2) am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000]

[8-s 208.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 208

[8-s 208.1] Summary disposal An offence under s 208(4) is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in the Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 3 cl 11. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 208.5] Definitions As to “damage” see [8-s 195.5]. As to “aircraft” see s 4 at [8-s 4]. As to “vessel” see s 4 at [8-s 4]. As to “grievous bodily harm” see [8-s 4.1]. As to “wounds” see [8-s 35]. [8-s 208.10] Sentencing For sentencing principles relevant to s 208, see R v Humphries (1997) 98 A Crim R 233; BC9706371. PROOF MATERIAL ON SECTION 208 For the text of s 208, see [8-s 208] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 208.15] Form of indictment [8-s 208.20] Making a demand with a threat — s 208(2) (a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the

State of New South Wales, made a demand of [name of victim] with a threat to destroy/damage/endanger the safety of an aircraft/vessel/transport vehicle, namely [name and/or number of aircraft etc, if known]. (b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, made a demand of [name of victim] with a threat to kill/inflict bodily injury on persons who are then in/on an aircraft/vessel/transport vehicle, namely [name and/or number of aircraft etc, if known]. [8-s 208.25] Making a demand with a threat and discharging firearm etc while threat still has effect — s 208(3) (a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the

State of New South Wales, made a demand of [name of person to whom demand was made] with a threat to destroy/damage/endanger the safety of an aircraft/vessel/transport vehicle, namely [name and/or number of aircraft etc, if known], and while that threat still had effect [name of accused] discharged a firearm/caused an explosion/inflicted grievous bodily harm on/wounded [name of person so injured]. (b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, made a demand of [name of person to whom the demand was made] with a threat to kill/inflict bodily injury on persons who are then in/on an aircraft/vessel/transport vehicle, namely [name and/or number of aircraft etc, if known], and while that threat still had effect [name of accused] discharged a firearm/caused an explosion/inflicted grievous bodily harm on/wounded [name of person so injured]. [8-s 208.30] Making a threat — s 208(4) (a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the

State of New South Wales, threatened to destroy/damage/endanger the safety of an aircraft/vessel/transport vehicle, namely [name and/or number of aircraft etc, if known]. (b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the

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s 209

CRIMES ACT 1900 (NSW) — PART 4AE

[8-s 209.1]

State of New South Wales, threatened to kill/inflict bodily injury on persons who are in/on an aircraft/vessel/transport vehicle, namely [name and/or number of aircraft etc, if known]. [8-s 208.35] Elements of offence

The elements of the offence are —

[8-s 208.45] Making a demand with a threat and discharging firearm etc while threat still has effect (1) The accused made a demand of another person; (2) with a threat [8-s 208(1)] either: (i) to destroy or damage [8-s 195.5], or endanger the safety of, an aircraft [8-s 4], vessel [8-s 4] or transport vehicle [8-s 208(1)]; or (ii) to kill, or inflict bodily injury on, persons who are then in or on an aircraft [8-s 4], vessel [8-s 4] or transport vehicle [8-s 208(1)]; and (3) while that threat still had effect either: (i) discharged a firearm; (ii) caused an explosion; or (iii) inflicted grievous bodily harm [8-s 4] or wounded [8-s 35] some person. [8-s 208.50] Making a threat (1) The accused made a threat [8-s 208(1)]; (2) either: (i) to destroy or damage [8-s 195.5] or endanger the safety of, an aircraft [8-s 4], vessel [8-s 4] or transport vehicle [8-s 208(1)]; or (ii) to kill, inflict bodily injury on, persons who are in or on an aircraft [8-s 4], vessel [8-s 4] or transport vehicle.

[8-s 209] False information as to plan etc to prejudice the safety of an aircraft or vessel or persons on board an aircraft or vessel 209 A person who makes a statement or conveys information, knowing it to be false, to the effect, or from which it could reasonably be inferred, that there has been, is or is to be a plan, proposal, attempt, conspiracy or threat to: (a) take, or exercise control of, an aircraft or vessel by force, (b) destroy or damage, or endanger the safety of, an aircraft or vessel, or (c) kill, or inflict bodily injury on, persons in or on an aircraft or vessel, is liable to imprisonment for 2 years. Editor’s note: For proof material on s 209, see [27-28,250] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 209 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[8-s 209.1] [8-s 209.5] [8-s 209.10]

Crimes

[8-s 208.40] Making a demand with a threat (1) The accused made a demand of another person; (2) with a threat [8-s 208(1)] either: (i) to destroy or damage [8-s 195.5], or endanger the safety of, an aircraft [8-s 4], vessel [8-s 4] or transport vehicle [8-s 208(1)]; or (ii) to kill, or inflict bodily injury on, persons who are then in or on an aircraft [8-s 4], vessel [8-s 4] or transport vehicle [8-s 208(1)].

[8-s 209.1]

s 209

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

False information as to plan etc to take or exercise control of aircraft etc — s 209(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . False information as to plan etc to destroy etc aircraft etc — s 209(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . False information as to plan etc to kill etc persons on aircraft etc — s 209(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 209.15] [8-s 209.20] [8-s 209.25] [8-s 209.30]

[8-s 209.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in the Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Part 3 clause 11. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 209.5] Definitions As to “aircraft” see s 4 at [8-s 4]. As to “vessel” see s 4 at [8-s 4]. PROOF MATERIAL ON SECTION 209 For the text of s 209, see [8-s 209] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 209.10] Form of indictment [8-s 209.15] False information as to plan etc to take or exercise control of aircraft etc — s 209(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, made a statement/conveyed information, knowing it to be false, to the effect that/from which it could reasonably be inferred that, there had been/was/was to be a plan/proposal/attempt/conspiracy/threat to take/exercise control of an aircraft/vessel [name and/or number of aircraft etc, if known] by force. [8-s 209.20] False information as to plan etc to destroy etc aircraft etc — s 209(b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, made a statement/conveyed information, knowing it to be false, to the effect that/from which it could reasonably be inferred that, there had been/was/was to be a plan/proposal/attempt/conspiracy/threat to destroy/damage/endanger the safety of an aircraft/vessel [name and/or number of aircraft etc, if known]. [8-s 209.25] False information as to plan etc to kill etc persons on aircraft etc — s 209(c) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, made a statement/conveyed information, knowing it to be false, to the effect that/from which it could reasonably be inferred that, there had been/was/was to be a plan/proposal/attempt/conspiracy/threat to kill/inflict bodily injury on persons then in/on an aircraft/vessel, namely [name and/or number of aircraft etc, if known]. [8-s 209.30] Elements of offence The elements of the offence are — (1) The accused made a statement or conveyed information; (2) knowing it to be false; (3) either: (i) to the effect that; or (ii) from which it could reasonably be inferred that, there had been, is or is to be a plan, proposal, attempt [6-300], conspiracy [6-200] or threat; (4) to: (i) take, or exercise control of, an aircraft [8-s 4] or vessel [8-s 4] by force; (ii) destroy or damage [8-s 195.5] or endanger the safety of an aircraft [8-s 4] or vessel [8-s 4], or (iii) kill, or inflict bodily injury on persons in or on an aircraft [8-s 4] or vessel [8-s 4].

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s 210

[8-s 210.30]

CRIMES ACT 1900 (NSW) — PART 4AE

[8-s 210] Destroying, damaging etc an aid to navigation 210 A person who: (a) intentionally or recklessly destroys, damages, removes, conceals or interferes with a mark, device or equipment used or designed to be used to assist the navigation of aircraft or vessels, or (b) does any act with the intention of causing any such destruction, damage, concealment or interference, is liable to imprisonment for 7 years. [s 210 am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000; Act 38 of 2007 s 3 and Sch 1[3], opn 15 Feb 2008]

COMMENTARY ON SECTION 210 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Destroying, damaging etc — s 210(a) . . . . . . . . . . . . . . . . . . . . . . . Act with intent to cause destruction, damage etc — s 210(b) . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Destroying, damaging etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Act with intent to cause destruction, damage etc . . . . . . . . . . . . .

[8-s 210.1] [8-s 210.5] [8-s 210.10] [8-s 210.15] [8-s 210.20] [8-s 210.25] [8-s 210.30] [8-s 210.35] [8-s 210.40] [8-s 210.45]

[8-s 210.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in the Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 3 cl 11. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 210.5] Definitions As to “recklessly” see at [8-s 5]. As to “damage” see [8-s 195.5]. As to “aircraft” see at [8-s 4]. As to “vessel” see at [8-s 4]. [8-s 210.10] Form of indictment It is not necessary to allege that the property destroyed or damaged belongs to any person, see at [2-Sch 3] clause 16. [8-s 210.15] Intoxication An offence under this section which is alleged to have been committed after 16 August 1996 is an offence of specific intent for the purpose of Pt 11A Crimes Act 1900 relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. PROOF MATERIAL ON SECTION 210 For the text of s 210, see [8-s 210] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 210.20] Form of indictment [8-s 210.25] Destroying, damaging etc — s 210(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales intentionally/recklessly destroyed/damaged/removed/concealed/ interfered with a mark/device/equipment [describe mark/device/equipment] used/designed to be used to assist the navigation of aircraft/vessels. [8-s 210.30] Act with intent to cause destruction, damage etc — s 210(b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did an

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Crimes

Editor’s note: For proof material on s 210, see [27-28,300] behind the “27 – Informations and Indictments” guide card.

[8-s 210.30]

s 210

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

act [describe act] with intent to cause malicious destruction/damage/concealment/interference with a mark/device/equipment [describe mark/ device/ equipment] used/designed to be used to assist the navigation of aircraft/ vessels. [8-s 210.35] Elements of offence

The elements of the offence are —

[8-s 210.40] Destroying, damaging etc (1) The accused intentionally or recklessly [8-s 4A.1][8-s 5] destroyed, damaged

[8-s 195.5], removed, concealed or interfered with; (2) a mark, device or equipment used or designed to be used to assist the

navigation of aircraft [8-s 4] or vessels [8-s 4]. [8-s 210.45] Act with intent to cause destruction, damage etc (1) The accused acted with intent [6-500] to cause malicious [8-s 5] destruction,

damage [8-s 195.5]; concealment or interference with (2) a mark, device or equipment used or designed to be used to assist the

navigation of aircraft [8-s 4] or vessels [8-s 4]. DIVISION 2 — OFFENCES RELATING TO RAILWAYS ETC

[8-s 211] Criminal acts relating to railways 211 (1) A person who: (a) does any act on or in connection with the operation of a railway, or (b) omits to do any act on or in connection with a railway that it is the person’s duty to do, with the intention of causing the death of, inflicting bodily injury on or endangering the safety of any person who is on the railway, or who is in or on any locomotive or other rolling stock on the railway, is liable to imprisonment for 25 years. [subs (1) am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000; Act 38 of 2007 s 3 and Sch 1[12], opn 15 Feb 2008]

(2) A person who: (a) does any act on or in connection with the operation of a railway, or (b) omits to do any act on or in connection with the operation of a railway that it is the person’s duty to do, with the intention of causing any locomotive or other rolling stock on the railway to be derailed, destroyed or damaged, is liable to imprisonment for 14 years. [subs (2) am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000; Act 38 of 2007 s 3 and Sch 1[12], opn 15 Feb 2008] [s 211 am Act 218 of 1989 s 3 and Sch 1(24)] Editor’s note: For proof material on s 211, see [27-28,400] behind the “27 – Informations and Indictments” guide card.

COMMENTARY ON SECTION 211 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intent to cause death etc to person — s 211(1) . . . . . . . . . . . . . . . Act with intent to derail etc locomotive etc — s 211(2)(a) . . . . Omission with intent to derail etc locomotive etc — s 211(2)(b) . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[8-s 211.1] [8-s 211.5] [8-s 211.10] [8-s 211.15] [8-s 211.20] [8-s 211.25] [8-s 211.30]

s 212

CRIMES ACT 1900 (NSW) — PART 4AE

Alternative verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 212] [8-s 211.35]

[8-s 211.1] Definitions As to “railway” see s 4 at [8-s 4]. As to “damage” see [8-s 195.5]. [8-s 211.5] Intoxication An offence under this section which is alleged to have been committed after 16 August 1996 is an offence of specific intent for the purpose of Pt 11A Crimes Act 1900 relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. PROOF MATERIAL ON SECTION 211 For the text of s 211, see [8-s 211] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 211.10] Form of indictment

[8-s 211.20] Act with intent to derail etc locomotive etc — s 211(2)(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales intentionally/recklessly did an act on/in connection with the operation of a railway [state act done] with intent to cause a locomotive/rolling stock on the railway to be derailed/destroyed/damaged. [8-s 211.25] Omission with intent to derail etc locomotive etc — s 211(2)(b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales intentionally/recklessly omitted to do an act that was his/her duty to do on/in connection with the operation of a railway [state omitted act] with intent to cause a locomotive/rolling stock on the railway to be derailed/destroyed/damaged. [8-s 211.30] Elements of offence The elements of the offence are — (1) The accused did: (i) an act on or in connection with the operation of a railway; or (ii) omit to do an act that it was his/her duty to do on or in connection with a railway [8-s 4]; and (2) this act or omission was done intentionally or recklessly [8-s 4A.1][8-s 5]; and (3) the accused had the intent [6-500] to either: (i) cause the death of, inflict bodily injury on or endanger the safety of a person on the railway, or in or on any locomotive or other rolling stock on the railway; or (ii) cause a locomotive or other rolling stock on the railway to be derailed, destroyed or damaged [8-s 195.5]. [8-s 211.35] Alternative verdict If a jury is not satisfied that the accused is guilty of an offence under this section but is satisfied that the person is guilty of an offence under s 212 or 213, it may acquit the accused of the offence charged and find the accused guilty of an offence under s 212 or 213: see s 214 at [8-s 214].

[8-s 212] Endangering passengers etc on railway 212 A person who, by an unlawful act or a negligent omission, endangers the safety of any person who is on, or who is being conveyed on, a railway is liable to imprisonment for 3 years. Editor’s note: For proof material on s 212, see [27-28,450] behind the “27 – Informations and Indictments” guide card.

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Crimes

[8-s 211.15] Intent to cause death etc to person — s 211(1) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales intentionally/recklessly did/omitted to do an act that was his/her duty to do on/in connection with the operation of a railway [state act done or omitted] with intent to cause the death of/inflict bodily injury on/endanger the safety of a person on the railway/in or on a locomotive/rolling stock on the railway.

[8-s 212.1]

s 212

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

COMMENTARY ON SECTION 212 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Negligent omission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Endangering safety . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 212.1] [8-s 212.5] [8-s 212.10] [8-s 212.15] [8-s 212.20] [8-s 211.25]

[8-s 212.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in the Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Part 3 clause 11. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 212.5] Definitions

As to “railway” see s 4 at [8-s 4].

[8-s 212.10] Negligent omission The negligence required is that necessary for manslaughter: R v D [1984] 3 NSWLR 29. As to negligent omissions see [8-s 18.20]. [8-s 212.15] Endangering safety It is unnecessary to prove that actual danger occurred. It is sufficient if there was potential danger or a lowering of the safety standard which would lead to endangering of the safety of the person: R v Pearce [1966] 3 All ER 618. PROOF MATERIAL ON SECTION 212 For the text of s 212, see [8-s 212] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 212.20] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did an unlawful act/made a negligent omission thereby endangering the safety of any person on/being conveyed on a railway. [8-s 211.25] Elements of offence The elements of the offence are — (1) The accused: (i) did an unlawful act; or (ii) made a negligent omission [8-s 212.10]; and (2) thereby endangered the safety [8-s 212.15] of any person on or being conveyed

on a railway [8-s 4].

[8-s 213] Obstructing a railway 213 A person who: (a) intentionally and without lawful excuse, does an act, or omits to do an act, which causes the passage or operation of a locomotive or other rolling stock on a railway to be obstructed, or (b) assists a person to do or omit to do such an act, with the knowledge that the person’s intention to do or omit to do that act is without lawful excuse, is liable to imprisonment for 2 years. Editor’s note: For proof material on s 213, see [27-28,500] behind the “27 – Informations and Indictments” guide card.

COMMENTARY ON SECTION 213 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Without lawful excuse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Obstructing — s 213(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assisting to obstruct — s 213(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[8-s 213.1] [8-s 213.5] [8-s 213.10] [8-s 213.15] [8-s 213.20]

s 214

CRIMES ACT 1900 (NSW) — PART 4AE

Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Obstructing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assisting to obstruct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 214] [8-s 213.25] [8-s 213.30] [8-s 213.35]

[8-s 213.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in the Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 3 cl 11. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 213.5] Without lawful excuse The onus of proving lawful excuse lies upon the accused: see s 417 of the Crimes Act at [8-s 417]. PROOF MATERIAL ON SECTION 213 For the text of s 213, see [8-s 213] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 213.10] Form of indictment

[8-s 213.20] Assisting to obstruct — s 213(b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales assisted [name of person] to do an act/omit to do an act [describe act/omission] which caused the passage or operation of a locomotive/rolling stock on a railway to be obstructed, knowing that the intention of such person to do that act/omit to do that act was without lawful excuse. [8-s 213.25] Elements of offence

The elements of the offence are —

[8-s 213.30] Obstructing (1) The accused: (i) did an act; or (ii) omitted to do an act; and (2) this act/omission caused the passage or operation of a locomotive or other

rolling stock on a railway [8-s 4] to be obstructed; and (3) this act/omission was done intentionally [6-500] and without lawful excuse

[8-s 417]. [8-s 213.35] Assisting to obstruct (1) The accused assisted a person to do an act/omit to do an act; and (2) this act/omission caused the passage or operation of a locomotive or other

rolling stock on a railway [8-s 4] to be obstructed; and (3) the accused knew that this person’s intention to do that act/omission was

without lawful excuse [8-s 213.5].

[8-s 214] Obstructing a railway — verdict of misdemeanour 214 (1) If, on the trial of a person for an offence under section 211, the jury is not satisfied that the person is guilty of the offence, but is satisfied that the person is guilty of an offence under section 212 or 213, it may acquit the person of the offence charged and instead find the person guilty of an offence under section 212 or 213. (2) If, in accordance with subsection (1), a jury finds a person guilty of an offence under section 212 or 213, the person is liable to be punished as provided by that section.

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Crimes

[8-s 213.15] Obstructing — s 213(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales intentionally and without lawful excuse did an act/omitted to do an act [describe act/omission] which caused the passage or operation of a locomotive/rolling stock on a railway to be obstructed.

[8-s 214]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 215–249

215–249 Editor’s note: With the substitution of Part 4, Division 2 by Act 287 of 1987, please note that ss 215–249 no longer exist.

PART 4A — CORRUPTLY RECEIVING COMMISSIONS AND OTHER CORRUPT PRACTICES [Pt 4A insrt Act 116 of 1987 s 34 Sch 1(2), opn 5 July 1987]

[8-s 249A] Definitions 249A

In this Part:

agent includes: (a) any person employed by, or acting for or on behalf of, any other person (who in this case is referred to in this Part as the person’s principal) in any capacity, (b) any person purporting to be, or intending to become, an agent of any other person (who in this case is referred to in this Part as the person’s principal), and (c) any person serving under the Crown (which in this case is referred to in this Part as the person’s principal), and (d) a police officer (and in this case a reference in this Part to the agent’s principal is a reference to the Crown), and (e) a councillor within the meaning of the Local Government Act 1993 (and in this case a reference in this Part to the agent’s principal is a reference to the local council of which the person is a councillor), and (f) a councillor within the meaning of the Aboriginal Land Rights Act 1983 (and in this case a reference in this Part to the agent’s principal is a reference to the New South Wales Aboriginal Land Council), and (g) a Board member of a Local Aboriginal Land Council within the meaning of the Aboriginal Land Rights Act 1983 (and in this case a reference in this Part to the agent’s principal is a reference to the Local Aboriginal Land Council). [def am Act 40 of 1999 s 4 and Sch 2[3], opn 1 Sep 1999; Act 111 of 2006 s 4 and Sch 2.1, opn 1 July 2007]

benefit includes money and any contingent benefit. [s 249A am Act 23 of 1995 Sch 1, opn 1 July 1995]

COMMENTARY ON SECTION 249A Scope of Pt 4A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 249A.1]

[8-s 249A.1] Scope of Pt 4A Part 4A replaces the provisions of the Secret Commissions Prohibition Act 1919 which has been repealed. The offences contained in the Part are substantially the same as those under the earlier Act but are indictable offences. Provisions of the earlier Act which have not been included in the Part are: the general requirement for the Attorney General’s consent to commence prosecutions; the time limit on the commencement of prosecutions; the change of onus of proof onto the accused; and the compulsion of a witness to answer incriminatory questions. As to a review of the provisions of the Part see Lusty D, “Bribery and Secret Commissions — s 249B Crimes Act 1900” at 14 Crim LN 138 [2296].

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s 249B

CRIMES ACT 1900 (NSW) — PART 4A

[8-s 249B.1]

249B (1) If any agent corruptly receives or solicits (or corruptly agrees to receive or solicit) from another person for the agent or for anyone else any benefit: (a) as an inducement or reward for or otherwise on account of: (i) doing or not doing something, or having done or not having done something, or (ii) showing or not showing, or having shown or not having shown, favour or disfavour to any person, in relation to the affairs or business of the agent’s principal, or (b) the receipt or any expectation of which would in any way tend to influence the agent to show, or not to show, favour or disfavour to any person in relation to the affairs or business of the agent’s principal, the agent is liable to imprisonment for 7 years. (2) If any person corruptly gives or offers to give to any agent, or to any other person with the consent or at the request of any agent, any benefit: (a) as an inducement or reward for or otherwise on account of the agent’s: (i) doing or not doing something, or having done or not having done something, or (ii) showing or not showing, or having shown or not having shown, favour or disfavour to any person, in relation to the affairs or business of the agent’s principal, or (b) the receipt or any expectation of which would in any way tend to influence the agent to show, or not to show, favour or disfavour to any person in relation to the affairs or business of the agent’s principal, the firstmentioned person is liable to imprisonment for 7 years. (3) For the purposes of subsection (1), where a benefit is received or solicited by anyone with the consent or at the request of an agent, the agent shall be deemed to have received or solicited the benefit. Editor’s note: For proof material on s 249B, see [27-30,000] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 249B Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . “Receives” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . “Corruptly” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The nature of the offences under the section . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Agent committing offence — s 249B(1)(a) . . . . . . . . . . . . . . . . . . Agent committing offence — s 249B(1)(b) . . . . . . . . . . . . . . . . . . Person committing offence — s 249B(2)(a) . . . . . . . . . . . . . . . . . . Person committing offence — s 249B(2)(b) . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Agent committing offence — s 249B(1)(a) . . . . . . . . . . . . . . . . . . Agent committing offence — s 249B(1)(b) . . . . . . . . . . . . . . . . . . Person committing offence — s 249B(2)(a) . . . . . . . . . . . . . . . . . . Person committing offence — s 249B(2)(b) . . . . . . . . . . . . . . . . . .

[8-s 249B.1] [8-s 249B.5] [8-s 249B.10] [8-s 249B.15] [8-s 249B.20] [8-s 249B.25] [8-s 249B.30] [8-s 249B.35] [8-s 249B.40] [8-s 249B.45] [8-s 249B.50] [8-s 249B.55] [8-s 249B.60] [8-s 249B.65]

[8-s 249B.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 where the value of the property exceeds $5000 and a Table 2 offence under that Act where the value of the property does not exceed $5000, see at [2-s 260] and

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[8-s 249B] Corrupt commissions or rewards

[8-s 249B.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 249B

[2-Sch 1] Pt 3 cl 12 and Pt 2 cl 3(c). Where the offence is a Table 1 offence the maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. Where the offence is a Table 2 offence the maximum penalty that can be imposed is 24 months imprisonment or a fine of 50 penalty units or both, but where the property does not exceed $2000, the maximum fine is 20 penalty units: see at [2-s 268]. [8-s 249B.5] “Receives” It is not necessary that the agent receives the benefit or reward as an agent: R v Morgan [1970] 3 All ER 1053. [8-s 249B.10] “Corruptly” The meaning of the word “corruptly” in the section was examined in Mehajer v R [2014] NSWCCA 167; BC201406853; 21(9) Crim LN [3431] where it was held that it must be proved that the payment was made in circumstances which would be regarded as corrupt according to standards of conduct generally. The non-disclosure to the principal of the payment would generally be sufficient to satisfy that element. The receiver acts corruptly if, at the time he received the benefit, he believed the giver intended that the giving of the benefit was to influence him to show, or refrain from showing, favour or disfavour in relation to the principal’s affairs. It does not matter that the agent did not intend to be so influenced, or to do the act for which the benefit was given. An agent is acting corruptly under the section merely by receiving the benefit believing that it was given as a bribe: R v Dillon [1982] VR 434; R v Gallagher [1986] VR 219; (1985) 16 A Crim R 215; Jamieson v R [1988] VR 879; (1987) 34 A Crim R 308. [8-s 249B.15] The nature of the offences under the section The offences set out in s 249B(2)(a)(i), s 249B(2)(a)(ii) and s 249B(2)(b) were considered and contrasted in Mehajer v R [2014] NSWCCA 167; BC201406853; 21(9) Crim LN [3431] where the elements of the offences are set out. It was held: [68] The differences in the elements of each offence can be summarised as follows. For a benefit or offer of a benefit to constitute an offence under s 249B(2)(a)(i) of the Act, it is necessary to establish that the donor of the benefit intended the benefit or offer as an inducement to the agent to do or refrain from doing a particular act in relation to the principal’s affairs (or as a reward for doing or refraining from doing such an act). [69] By contrast, s 249B(2)(a)(ii) of the Act does not require the payment to be an inducement or reward for doing or not doing a particular act. Rather it requires that the payment was intended by the donor as an inducement or reward for showing or not showing favour to a particular person in relation to the affairs of the principal. [70] The difference between the elements of s 249B(2)(a)(i) and (ii) of the Act with s 249B(2)(b) is that, for the purposes of the latter section, the donor, whilst not offering the payment or benefit as an inducement or reward, must make the payment or offer to make the payment knowing, believing or intending that the payment was one which would tend to influence the agent to show favour or disfavour in relation to the affairs or business of the principal of the agent. PROOF MATERIAL ON SECTION 249B For the text of s 249B, see [8-s 249B] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 249B.20] Form of indictment [8-s 249B.25] Agent committing offence — s 249B(1)(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, being the agent of [name of principal] did corruptly (agree to) receive/solicit from [name of person making offer] a benefit, namely [describe benefit offered] as an inducement/reward/on account of: (i) doing/not doing/having done/not having done [describe act]; or (ii) showing/not showing/having shown/not having shown favour/disfavour to

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s 249B

CRIMES ACT 1900 (NSW) — PART 4A

[8-s 249B.60]

[name of person affected] in relation to the affairs/business of his/her principal [name of principal]. [8-s 249B.30] Agent committing offence — s 249B(1)(b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, being the agent of [name of principal] did corruptly (agree to) receive/solicit from [name of person making offer] a benefit, namely [describe benefit offered], the receipt/expectation of which would tend to influence [name of accused] to show/not show/favour/disfavour to a person [name of person affected] in relation to the affairs/business of his/her principal [name of principal]. [8-s 249B.35] Person committing offence — s 249B(2)(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, corruptly gave/offered to give [name of person to be benefited], an agent of [name of principal]/with the consent of/at the request of [name of agent], an agent of [name of principal], a benefit, namely [describe benefit offered], as an inducement/reward/on account of the agent [name of agent]: (i) doing/not doing/having done/having not done [describe act]; (ii) showing/not showing/having shown/not having shown favour/disfavour to

[name of person affected], [8-s 249B.40] Person committing offence — s 249B(2)(b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, did corruptly give/offer to give [name of person to be benefited], an agent of [name of principal]/with the consent of/at the request of [name of agent], an agent of [name of principal], a benefit, namely [describe benefit offered], the receipt/expectation of which would tend to influence the agent [name of agent], to show/not show/favour/disfavour to a person [name of person affected] in relation to the affairs/business of the principal [name of principal]. [8-s 249B.45] Elements of offence

The elements of the offence are —

[8-s 249B.50] Agent committing offence — s 249B(1)(a) (1) The accused was an agent [8-s 249A]; (2) who corruptly [8-s 249B.10] received [8-s 249B.5] or solicited, or corruptly

agreed to receive or solicit from another person any benefit [8-s 249A] for the accused or for any other person; (3) as an inducement or reward for or otherwise on account of either: (i) doing or not doing something or having done or not having done something; or (ii) showing or not showing or having shown or not shown favour or disfavour to any person; (4) in relation to the affairs or business of the agent’s principal. [8-s 249B.55] Agent committing offence — s 249B(1)(b) (1) The accused was an agent [8-s 249A]; (2) who corruptly [8-s 249B.10] received [8-s 249B.5] or solicited, or corruptly agreed to receive or solicit, from another person any benefit [8-s 249A] for the accused or for any other person; (3) the receipt or any expectation of which would in any way tend to influence the agent [8-s 249A] to show or not show favour or disfavour to any person; (4) in relation to the affairs or business of the agent’s principal. [8-s 249B.60] Person committing offence — s 249B(2)(a) (1) The accused corruptly [8-s 249B.10] gave or offered to give to any agent

[8-s 249A] or to any other person with the consent or at the request of any agent [8-s 249A] any benefit [8-s 249A];

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in relation to the affairs/business of the principal [name of principal].

[8-s 249B.60]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 249B

(2) which was an inducement or reward for or otherwise on account of the agent: (i) doing or not doing something or having done or not having done something; or (ii) showing or not showing or having shown or not shown favour or disfavour to any person; (3) in relation to the affairs or business of the agent’s principal. [8-s 249B.65] Person committing offence — s 249B(2)(b) (1) The accused corruptly [8-s 249B.10] gave or offered to give to any agent

[8-s 249A] or to any other person with the consent or at the request of any agent [8-s 249A] any benefit [8-s 249A]; (2) the receipt or any expectation of which would in any way tend to influence the agent [8-s 249A] to show or not to show favour or disfavour to any person; (3) in relation to the affairs or business of the agent’s principal.

[8-s 249C] Misleading documents or statements used or made by agents 249C (1) Any agent who uses, or gives to the agent’s principal, a document which contains anything that is false or misleading in any material respect, with intent to defraud the agent’s principal, is liable to imprisonment for 7 years. (2) Any agent who makes a statement to the agent’s principal which is false or misleading in any material respect, with intent to defraud the principal, is liable to imprisonment for 7 years. Editor’s note: For proof material on s 249C, see [27-30,050] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 249C Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Agent using misleading document — s 249C(1) . . . . . . . . . . . . . . Agent making misleading statement — s 249C(2) . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Agent using misleading document . . . . . . . . . . . . . . . . . . . . . . . . . . Agent making misleading statement . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 249C.1] [8-s 249C.5] [8-s 249C.10] [8-s 249C.15] [8-s 249C.20] [8-s 249C.25] [8-s 249C.30] [8-s 249C.35] [8-s 249C.40]

[8-s 249C.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in the Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 3 cl 12. Where the offence is a Table 1 offence the maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 249C.5] Definitions As to “document” see s 21 of the Interpretation Act 1987 at [29-45,200]. As to “misleading in a material particular” see [8-s 176.15]. As to “intent to defraud” see [8-s 125.25]. [8-s 249C.10] Intoxication An offence under this section which is alleged to have been committed after 16 August 1996 is an offence of specific intent for the purpose of Pt 11A Crimes Act 1900 relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. PROOF MATERIAL ON SECTION 249C For the text of s 249C, see [8-s 249C] behind the “8 – Crimes Act” guide card in Vol 1.

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s 249D

CRIMES ACT 1900 (NSW) — PART 4A

[8-s 249D]

[8-s 249C.15] Form of indictment [8-s 249C.20] Agent using misleading document — s 249C(1) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, being the agent of [name of principal], used/gave to [name of principal] a document, namely [describe document] which was false/misleading in a material respect namely [set out brief details] with intent to defraud [name of principal]. [8-s 249C.25] Agent making misleading statement — s 249C(2) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, being the agent of [name of principal], made a statement to [name of principal] to the effect that [brief details of statement] which was false/misleading in a material respect [set out brief details] with intent to defraud [name of principal]. [8-s 249C.30] Elements of offence

The elements of the offence are —

[8-s 249C.35] Agent using misleading document (1) The accused was an agent [8-s 249A]; (2) who used or gave to his/her principal; (3) a document [8-s 249C.5] containing anything false or misleading in a material

[8-s 249C.40] Agent making misleading statement (1) The accused was an agent [8-s 249A]; (2) who made a statement; (3) to his/her principal which was false or misleading in a material respect

[8-s 176.15]; (4) with intent [6-500] to defraud his/her principal.

[8-s 249D] Corrupt inducements for advice 249D (1) If a person corruptly gives a benefit to another person for giving advice to a third person, being advice which the person giving the benefit intends will influence the third person: (a) to enter into a contract with the person who gives the benefit, or (b) to appoint the person who gives the benefit to any office, and, at the time the benefit is given, the person who gives the benefit intends the giving of the benefit not be made known to the person advised, the person who gives the benefit is liable to imprisonment for 7 years. (2) If a person corruptly receives a benefit for giving advice to another person, being advice which is likely to influence the other person: (a) to enter into a contract with the person who gave the benefit, or (b) to appoint the person who gave the benefit to any office, and, at the time the benefit is received, the person who receives the benefit intends the giving of the benefit not be made known to the person to be advised, the person who receives the benefit is liable to imprisonment for 7 years. (3) For the purposes of subsections (1) and (2), where a benefit is given or received by anyone with the consent or at the request of another person, the other person shall be deemed to have given or received the benefit.

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respect [8-s 176.15]; (4) with intent [6-500] to defraud the principal of the accused.

[8-s 249D]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 249D

(4) If any person corruptly offers or solicits a benefit for the giving of advice by one person to another: (a) intending that the advice will influence the person advised: (i) to enter into a contract with anyone, or (ii) to appoint anyone to any office, and (b) intending that the giving or receipt of the benefit not be made known to the person advised, the firstmentioned person is liable to imprisonment for 7 years. (5) In this section: (a) a reference to the giving of advice includes a reference to the providing of information orally or in writing, (b) a reference to entering into a contract includes a reference to offering to enter into a contract, and (c) a reference to the appointment of a person includes a reference to: (i) joining in the appointment of the person, and (ii) voting for or assisting in the election or appointment of the person. Editor’s note: For proof material on s 249D, see [27-30,100] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 249D Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . “Corruptly” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Corruptly giving inducement — s 249D(1) . . . . . . . . . . . . . . . . . . Corruptly receiving inducement — s 249D(2) . . . . . . . . . . . . . . . . Corruptly offering/soliciting inducement — s 249D(4) . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Corruptly giving inducement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Corruptly receiving inducement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Corruptly offering or soliciting inducement . . . . . . . . . . . . . . . . . .

[8-s 249D.1] [8-s 249D.5] [8-s 249D.10] [8-s 249D.15] [8-s 249D.20] [8-s 249D.25] [8-s 249D.30] [8-s 249D.35] [8-s 249D.40] [8-s 249D.45] [8-s 249D.50]

[8-s 249D.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 where the value of the property exceeds $5000 and a Table 2 offence under that Act where the value of the property does not exceed $5000, see at [2-s 260] and [2-Sch 1] Pt 3 cl 12 and Pt 2 cl 3(c). Where the offence is a Table 1 offence the maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. Where the offence is a Table 2 offence the maximum penalty that can be imposed is 24 months imprisonment or a fine of 50 penalty units or both, but where the property does not exceed $2000, the maximum fine is 20 penalty unit: see at [2-s 268]. [8-s 249D.5] “Corruptly”

See [8-s 249B.10].

[8-s 249D.10] Intoxication An offence under this section which is alleged to have been committed after 16 August 1996 is an offence of specific intent for the purpose of Pt 11A Crimes Act 1900 relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. PROOF MATERIAL ON SECTION 249D For the text of s 249D, see [8-s 249D] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 249D.15] Form of indictment [8-s 249D.20] Corruptly giving inducement — s 249D(1) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales corruptly gave a benefit

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s 249E

CRIMES ACT 1900 (NSW) — PART 4A

[8-s 249E]

[describe benefit] to [name of person giving advice] with intent that [name of person giving advice] will influence the said [name of person receiving advice] to enter a contract [describe nature of contract] with/appoint to the office of [describe offıce concerned] the said [name of accused], and at the time the said benefit was given, he/she the said [name of accused] intended that the said [name of person receiving advice] not know of the said benefit given by [name of accused] to [name of person giving advice].

[8-s 249D.30] Corruptly offering/soliciting inducement — s 249D(4) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales corruptly offered/solicited a benefit, namely [describe benefit] to give advice to [name of person receiving advice] with intent that such advice will influence the said [name of person receiving advice] to enter a contract with [name of any person]/appoint [name of any person] to the office of [describe offıce concerned], with the intent that the gift/receipt not be made known to [name of person receiving advice]. [8-s 249D.35] Elements of offence

The elements of the offence are —

[8-s 249D.40] Corruptly giving inducement (1) The accused corruptly [8-s 249B.10] gave a benefit [8-s 249A] to another person, for that person giving advice to a third person; (2) being advice which the accused intended would influence the third person, either: (i) to enter a contract with the accused; or (ii) to appoint the accused to any office; and (3) at the time of giving the benefit [8-s 249A] the accused intended that the giving of the benefit not be made known to the third person. [8-s 249D.45] Corruptly receiving inducement (1) The accused corruptly [8-s 249B.10] received a benefit [8-s 249A] for giving advice to another person; (2) being advice likely to influence that latter person either: (i) to enter into a contract with the person who gave the benefit; or (ii) to appoint the person who gave the benefit to any office; and (3) at the time of the receipt of the benefit, the accused intended that its receipt not be made known to that latter person. [8-s 249D.50] Corruptly offering or soliciting inducement (1) The accused corruptly [8-s 249B.10] offered or solicited a benefit [8-s 249A] for the giving of advice by one person to another with the intent that the person so advised either: (i) enter a contract with anyone; or (ii) appoint anyone to any office; and (2) with the intent that the giving or receipt of the benefit [8-s 249A] not be made known to the person so advised.

[8-s 249E] Corrupt benefits for trustees and others 249E (1) In this section, a reference to a person entrusted with property is a reference to:

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[8-s 249D.25] Corruptly receiving inducement — s 249D(2) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales corruptly received a benefit [describe benefit] from [name of person giving benefit] for giving advice to [name of person receiving advice], being advice likely to influence the said [name of person receiving advice] to enter a contract with/appoint to the office of [describe offıce concerned] the said [name of accused], and at the time of the receipt of the said benefit by the said [name of accused], he/she the said [name of accused] intended that the receipt of the said benefit not to be made known to the said [name of person receiving advice].

[8-s 249E]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 249E

(a) a trustee of the property, (b) an executor or administrator appointed for the purpose of dealing with the property, (c) a person who, because of a power of attorney or a power of appointment, has authority over the property, and (d) a person managing or administering the property (or appointed or employed to manage or administer the property) under the NSW Trustee and Guardian Act 2009. [subs (1) am Act 49 of 2009 Sch 2.16, opn 1 July 2009]

(2) Any person who offers or gives a benefit to a person entrusted with property, and any person entrusted with property who receives or solicits a benefit for anyone, without the consent: (a) of each person beneficially entitled to the property, or (b) of the Supreme Court, as an inducement or reward for the appointment of any person to be a person entrusted with the property, are each liable to imprisonment for 7 years. (3) In this section, a reference to the appointment of a person includes a reference to: (a) joining in the appointment of the person, and (b) assisting in the appointment of the person. (4) Proceedings for an offence under this section shall not be commenced without the consent of the Attorney General. (5) A consent to commence any such proceedings purporting to have been signed by the Attorney General is evidence of that consent without proof of the signature of the Attorney General. Editor’s note: For proof material on s 249E, see [27-30,150] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 249E Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Offering or giving benefit to trustee . . . . . . . . . . . . . . . . . . . . . . . . . Trustee receiving or soliciting benefit . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Offering or giving benefit to trustee . . . . . . . . . . . . . . . . . . . . . . . . . Trustee receiving or soliciting benefit . . . . . . . . . . . . . . . . . . . . . . .

[8-s 249E.1] [8-s 249E.5] [8-s 249E.10] [8-s 249E.15] [8-s 249E.20] [8-s 249E.25] [8-s 249E.30]

[8-s 249E.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 where the value of the property exceeds $5000 and a Table 2 offence under that Act where the value of the property does not exceed $5000, see at [2-s 260] and [2-Sch 1] Pt 3 cl 12 and Pt 2 cl 3(c). Where the offence is a Table 1 offence the maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. Where the offence is a Table 2 offence the maximum penalty that can be imposed is 24 months imprisonment or a fine of 50 penalty units or both, but where the property does not exceed $2000, the maximum fine is 20 penalty units: see at [2-s 268]. PROOF MATERIAL ON SECTION 249E For the text of s 249E, see [8-s 249E] behind the “8 – Crimes Act” guide card in Vol 1. [8-s 249E.5] Form of indictment [8-s 249E.10] Offering or giving benefit to trustee That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales offered/gave a benefit

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s 249G

CRIMES ACT 1900 (NSW) — PART 4A

[8-s 249G]

namely [describe benefit] to [name of trustee], a trustee for [name of trust] without the consent of [name of beneficiary/beneficiaries], a person/persons beneficially entitled/the Supreme Court, as an inducement/reward for the appointment of [name of would-be trustee] to the said trust. [8-s 249E.15] Trustee receiving or soliciting benefit That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, as a trustee for [name of trust] received/solicited a benefit [describe benefit] for [name of recipient of benefit] without the consent of [name of beneficiary/beneficiaries], a person/persons beneficially entitled/the Supreme Court, as an inducement/reward for the appointment of [name of would-be trustee] to the said trust. [8-s 249E.20] Elements of offence

The elements of the offence are —

[8-s 249E.25] Offering or giving benefit to trustee (1) The accused offered or gave a benefit [8-s 249A] to a person entrusted with

property [8-s 249E(1)]; (2) without the consent of each person beneficially entitled or the Supreme Court; (3) as an inducement or reward for the appointment of any person to the trust. [8-s 249E.30] Trustee receiving or soliciting benefit (1) The accused, being entrusted with property [8-s 249E(1)], received or solicited

[8-s 249F] Aiding, abetting etc 249F (1) A person who aids, abets, counsels, procures, solicits or incites the commission of an offence under this Part is guilty of an offence and is liable to imprisonment for 7 years. (2) A person who, in New South Wales, aids, abets, counsels or procures the commission of an offence in any place outside New South Wales, being an offence punishable under the provisions of a law in force in that place which corresponds to a provision of this Part, is guilty of an offence and is liable to imprisonment for 7 years. COMMENTARY ON SECTION 249F Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Aids and abets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 249F.1] [8-s 249F.5]

[8-s 249F.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 where the value of the property exceeds $5000 and a Table 2 offence under that Act where the value of the property does not exceed $5000, see at [2-s 260] and [2-Sch 1] Pt 3 cl 12 and Pt 2 cl 3(d). Where the offence is a Table 1 offence the maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. Where the offence is a Table 2 offence the maximum penalty that can be imposed is 24 months imprisonment or a fine of 50 penalty units or both, but where the property does not exceed $2000, the maximum fine is 20 penalty units: see at [2-s 268]. [8-s 249F.5] Aids and abets

See generally at Criminal Responsibility [6-110].

[8-s 249G] Repayment of value of gift etc 249G (1) If a person is convicted of an offence under this Part, the court may (as well as imposing a penalty for the offence) order the person to pay to such other person

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Crimes

a benefit [8-s 249A] for the accused or any other person; (2) without the consent of each person beneficially entitled or the Supreme Court; (3) as an inducement or reward for the appointment of any person to the trust.

[8-s 249G]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 249G

as the court directs the whole or part of the amount or the value, assessed by the court, of any benefit received or given by the person. (2) Any money payable to a person under this section may be recovered in a court of competent jurisdiction as a debt due to the person.

[8-s 249H] Disqualification for office 249H If a person is convicted of an offence under this Part, the person is disqualified from holding civic office for the purposes of the Local Government Act 1993, for the period of 7 years from the conviction or such lesser period as the court may order. [s 249H am Act 11 of 1995 Sch 1]

[8-s 249I] Dismissal of trivial case 249I If, in any proceedings for an offence under this Part, it appears to the court that the offence is of a trivial or merely technical nature, the court may in its discretion dismiss the case.

[8-s 249J] Custom not a defence 249J In any proceedings for an offence under this Part, it is not a defence that the receiving, soliciting, giving or offering of any benefit is customary in any trade, business, profession or calling. PART 4B — BLACKMAIL [Pt 4B insrt Act 38 of 2007 s 3 and Sch 1[22], opn 15 Feb 2008]

[8-s 249K] Blackmail offence 249K (1) A person who makes any unwarranted demand with menaces: (a) with the intention of obtaining a gain or of causing a loss, or (b) with the intention of influencing the exercise of a public duty, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (2) A person is guilty of an offence against this subsection if the person commits an offence against subsection (1) by an accusation, or a threatened accusation, that a person has committed a serious indictable offence. Maximum penalty: Imprisonment for 14 years. COMMENTARY ON SECTION 249K Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 249K.5]

[8-s 249K.5] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in the Local Court unless an election is made for trial on indictment: see s 260(2) at [2-s 260] and [2-Sch 1], Pt 3, 12A. The maximum penalty for an offence dealt with summarily is imprisonment for 2 years: see s 267(2) at [2-s 267].

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s 249O

CRIMES ACT 1900 (NSW) — PART 4B

[8-s 249O]

[8-s 249L] Unwarranted demands — meaning 249L (1) For the purposes of this Part, a demand with menaces is unwarranted unless the person believes that he or she has reasonable grounds for making the demand and reasonably believes that the use of the menaces is a proper means of reinforcing the demand. (2) The demand need not be a demand for money or other property.

249M (1) For the purposes of this Part, menaces includes: (a) an express or implied threat of any action detrimental or unpleasant to another person, and (b) a general threat of detrimental or unpleasant action that is implied because the person making the unwarranted demand holds a public office. (2) A threat against an individual does not constitute a menace unless: (a) the threat would cause an individual of normal stability and courage to act unwillingly in response to the threat, or (b) the threat would cause the particular individual to act unwillingly in response to the threat and the person who makes the threat is aware of the vulnerability of the particular individual to the threat. (3) A threat against a Government or body corporate does not constitute a menace unless: (a) the threat would ordinarily cause an unwilling response, or (b) the threat would cause an unwilling response because of a particular vulnerability of which the person making the threat is aware. (4) It is immaterial whether the menaces relate to action to be taken by the person making the demand.

[8-s 249N] Obtaining gain or causing loss — meaning 249N For the purposes of this Part: (a) a gain means gain in money or other property, whether temporary or permanent, and includes keeping what one has, and obtaining a gain means obtaining a gain for oneself or for another, and (b) a loss means loss in money or other property, whether temporary or permanent, and includes not getting what one might get, and causing a loss means causing a loss to another.

[8-s 249O] Public duty — meaning 249O For the purposes of this Part, a public duty means a power, authority, duty or function: (a) that is conferred on a person as the holder of a public office, or (b) that a person holds himself or herself out as having as the holder of a public office.

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Crimes

[8-s 249M] Menaces — meaning

[8-s 250]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 250

PART 5 — FORGERY [Pt 5 subst Act 99 of 2009 Sch 1, opn 22 Feb 2010]

DIVISION 1 — PRELIMINARY

[8-s 250] False document — meaning 250 (1) For the purposes of this Part, a document is false if, and 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 in fact make it in that form, or (b) to have been made in the form in which it is made on the authority of a person who did not in fact authorise its making in that form, or (c) to have been made in the terms in which it is made by a person who did not in fact make it in those terms, or (d) to have been made in the terms in which it is made on the authority of a person who did not in fact authorise its making in those terms, or (e) to have been altered in any respect by a person who did not in fact alter it in that respect, or (f) to have been altered in any respect on the authority of a person who did not in fact authorise its alteration in that respect, or (g) to have been made or altered on a date on which, or at a place at which, or otherwise in circumstances in which, it was not in fact made or altered, or (h) to have been made or altered by, or on the authority of, a person who did not in fact exist. (2) For the purposes of this Part, a person is to be treated as making a false document if the person alters a document so as to make it false within the meaning of this section (whether or not it is false in some other respect apart from that alteration). (3) For the purpose of the application of 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.

[8-s 251] Inducing acceptance of false document 251 (1) In this Part, a reference to inducing a person to accept a false document as genuine includes a reference to causing a machine to respond to the document as if it were a genuine document. (2) If it is necessary for the purposes of this Part to prove an intent to induce some person to accept a false document as genuine, it is not necessary to prove that the accused intended so to induce a particular person.

[8-s 252] Interpretative provisions relating to obtaining property, financial advantage and financial disadvantage 252 The following provisions of Part 4AA (Fraud) also apply to this Part: (a) section 192C (Obtaining property belonging to another), (b) section 192D (Obtaining financial advantage or causing financial disadvantage).

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s 253

CRIMES ACT 1900 (NSW) — PART 5

[8-s 253.30]

DIVISION 2 — FORGERY

[8-s 253] Forgery — making false document 253 another (a) (b)

COMMENTARY ON SECTION 253 Summary Disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Forgery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Forgery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 253.5] [8-s 253.10] [8-s 253.15] [8-s 253.20] [8-s 253.25] [8-s 253.30]

[8-s 253.5] Summary Disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in the Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1], Pt 3 cl 12B. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 253.10] Definitions As to “document” see s 21 of the Interpretation Act 1987 at [29-45,200]. As to “property” see [8-s 4]. As to a “false document” see [8-s 250]. As to “induce some person to accept it as genuine” see [8-s 251]. As to “obtains any property belonging to another” s 192C applies to this offence, see [8-s 252]. Section 192C(1) defines “obtains property” and s 192C(2) defines when “property belongs” to a person. As to “obtain any financial advantage or cause any financial disadvantage” s 192D applies to this offence, see [8-s 252]. Section 192D(1) relates to obtaining a financial advantage and s 192D(2) defines “cause a financial disadvantage”. See also [8-s 192D.5]. PROOF MATERIAL ON SECTION 253 [8-s 253.15] Form of indictment [8-s 253.20] Forgery That [name of accused] on [date of offence] at [locality/suburb] in the State of New South Wales made a false document being [describe document] with the intention that he/she or another person would use it to induce a person [name person if known] to accept it as genuine and thereby to obtain any property [describe property] belonging to another/to obtain a financial advantage being [describe financial advantage]/to cause financial disadvantage being [describe the disadvantage]/to influence the exercise of a public duty being [describe public duty]. [8-s 253.25] Elements of offence

The elements of the offence are—

[8-s 253.30] Forgery (1) The accused made a false document [8-s 250];

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A person who makes a false document with the intention that the person or will use it: to induce some person to accept it as genuine, and because of its being accepted as genuine: (i) to obtain any property belonging to another, or (ii) to obtain any financial advantage or cause any financial disadvantage, or (iii) to influence the exercise of a public duty, is guilty of the offence of forgery. Maximum penalty: Imprisonment for 10 years.

[8-s 253.30]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 253

(2) with the intention that he/she or another person would induce a person to accept

it as genuine [8-s 125]; (3) and because of it being accepted as genuine: (i) obtains [8-s 192C(1)], [8-s 252] any property [8-s 4] belonging to another [8-s 192C(3)], [8-s 252]; or (ii) obtains a financial advantage [8-s 192D(1)], [8-s 252] or causes a financial disadvantage [8-s 192D(2)], [8-s 252]; or (iii) influences the exercise of a public duty.

DIVISION 3 — OFFENCES RELATED TO FORGERY

[8-s 254] Using false document 254 A person who uses a false document, knowing that it is false, with the intention of: (a) inducing some person to accept it as genuine, and (b) because of its being accepted as genuine: (i) obtaining any property belonging to another, or (ii) obtaining any financial advantage or causing any financial disadvantage, or (iii) influencing the exercise of a public duty, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. COMMENTARY ON SECTION 254 Summary Disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Using false document . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Using false document . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 254.5] [8-s 254.10] [8-s 254.15] [8-s 254.20] [8-s 254.25] [8-s 254.30]

[8-s 254.5] Summary Disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in the Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1], Pt 3 cl 12B. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 254.10] Definitions As to “document” see s 21 of the Interpretation Act 1987 at [29-45,200]. As to “property” see [8-s 4]. As to a “false document” see [8-s 250]. As to “induce some person to accept it as genuine” see [8-s 251]. As to “obtains any property belonging to another” s 192C applies to this offence see [8-s 252]. Section 192C(1) defines “obtains property” and s 192C(2) defines when “property belongs” to a person. As to “obtain any financial advantage or cause any financial disadvantage” s 192D applies to this offence, see [8-s 252]. Section 192D(1) relates to obtaining a financial advantage and s 192D(2) defines “cause a financial disadvantage”. See also [8-s 192D.5].

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s 255

CRIMES ACT 1900 (NSW) — PART 5

[8-s 255.10]

PROOF MATERIAL ON SECTION 254 [8-s 254.15] Form of indictment [8-s 254.20] Using false document That [name of accused] on [date of offence] at [locality/suburb] in the State of New South Wales used a false document being [describe document], knowing that it was false, with the intention of inducing a person [name person if known] to accept it as genuine and thereby to obtain any property [describe property] belonging to another/to obtain a financial advantage being [describe financial advantage]/to cause financial disadvantage being [describe disadvantage]/to influence the exercise of a public duty being [describe public duty]. The elements of the offence are—

[8-s 254.30] Using false document (1) The accused used a false document [8-s 250]; (2) knowing that the document was false; (3) with the intention of inducing a person to accept it as genuine [8-s 251]; (4) and because of it being accepted as genuine: (i) obtains [8-s 192C(1)], [8-s 252] any property [8-s 4] belonging to another [8-s 192C(3)], [8-s 252]; or (ii) obtains a financial advantage [8-s 192D(1)], [8-s 252] or causes a financial disadvantage [8-s 192D(2)], [8-s 252]; or (iii) influences the exercise of a public duty.

[8-s 255] Possession of false document 255 A person who has in his or her possession a false document, knowing that it is false, with the intention that the person or another will use it: (a) to induce some person to accept it as genuine, and (b) because of its being accepted as genuine: (i) to obtain any property belonging to another, or (ii) to obtain any financial advantage or cause any financial disadvantage, or (iii) to influence the exercise of a public duty, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. COMMENTARY ON SECTION 255 Summary Disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Possession of false document . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Possession of false document . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

.........................................................

[8-s 255.5] [8-s 255.10] [8-s 255.15] [8-s 255.20] [8-s 255.25] [8-s 255.30]

[8-s 255.5] Summary Disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in the Local Court unless an election is made for trial on indictment, see at [2-s 260]] and [2-Sch 1], Pt 3 cl 12B. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 255.10] Definitions As to “document” see s 21 of the Interpretation Act 1987 at [29-45,200]. As to “property” see [8-s 4]. As to a “false document” see [8-s 250]. As to “induce some person to accept it as genuine” see [8-s 251].

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Crimes

[8-s 254.25] Elements of offence

[8-s 255.10]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 255

As to “obtains any property belonging to another” s 192C applies to this offence see [8-s 252]. Section 192C(1) defines “obtains property” and s 192C(2) defines when “property belongs” to a person. As to “obtain any financial advantage or cause any financial disadvantage” s 192D applies to this offence, see [8-s 252]. Section 192D(1) relates to obtaining a financial advantage and s 192D(2) defines “cause a financial disadvantage”. See also [8-s 192D.5]. PROOF MATERIAL ON SECTION 255 [8-s 255.15] Possession of false document [8-s 255.20] Possession of false document That [name of accused] on [date of offence] at [locality/suburb] in the State of New South Wales possessed a false document being [describe document] with the intention that he/she or another person would use it to induce a person [name person if known] to accept it as genuine and thereby to obtain any property [describe property] belonging to another/to obtain a financial advantage being [describe financial advantage]/to cause financial disadvantage being [describe disadvantage]/to influence the exercise of a public duty being [describe public duty]. [8-s 255.25] Elements of offence

The elements of the offence are—

[8-s 255.30] (1) The accused possessed [8-s 7] a false document [8-s 250]; (2) with the intention that he/she or another person would induce a person to accept

it as genuine [8-s 251]; (3) and because of it being accepted as genuine: (i) obtains [8-s 192C(1)], [8-s 252] any property [8-s 4] belonging to another [8-s 192C(3)], [8-s 252]; or (ii) obtains a financial advantage [8-s 192D(1)], [8-s 252] or causes a financial disadvantage [8-s 192D(2)], [8-s 252]; or (iii) influences the exercise of a public duty.

[8-s 256] Making or possession of equipment etc for making false documents 256 (1) A person who makes, or has in his or her possession, any equipment, material or other thing designed or adapted for the making of a false document: (a) knowing that it is so designed or adapted, and (b) with the intention that the person or another person will use the equipment, material or other thing to commit the offence of forgery, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (2) A person who, without reasonable excuse, makes or has in his or her possession any equipment, material or other thing designed or adapted for the making of a false document, knowing that it is so designed or adapted, is guilty of an offence. Maximum penalty: Imprisonment for 3 years. (3) A person who possesses any equipment, material or other thing that is capable of being used to make a false document, with the intention that the person or another person will use the equipment, material or other thing to commit the offence of forgery, is guilty of an offence. Maximum penalty: Imprisonment for 3 years.

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s 257–307

[8-s 256.15]

CRIMES ACT 1900 (NSW) — PART 5

(4) This section applies in respect of any equipment, material or other thing that is designed or adapted for the purpose of making a false document whether or not it is also designed or adapted for another purpose. (5) This section applies to a person who intends to commit an offence even if committing the offence concerned is impossible or the offence concerned is to be committed at a later time. (6) It is not an offence to attempt to commit an offence against this section. COMMENTARY ON SECTION 256 Scope of the section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Summary Disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 256.5] [8-s 256.10] [8-s 256.15]

[8-s 256.5] Scope of the section In the second reading speech for the Crimes Amendment (Fraud, Identity and Forgery Offences) Bill 2009, the Attorney General said (Legislative Council, Hansard, 12 November 2009):

[8-s 256.10] Summary Disposal An offence under subsection 1 is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in the Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1], Pt 3 cl 12B. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. An offence under subsection 2 or 3 is a Table 2 offence under the Criminal Procedure Act and is to be dealt with in the Local Court unless an election is made for trial on indictment by the prosecutor, see at [2-s 260] and [2-Sch 1] Pt 2 cl 4AA. The maximum penalty which can be imposed is imprisonment for 24 months, or a fine of 50 penalty units, or both. However, the maximum fine that a Local Court may impose if the value of the property, amount of money or reward concerned does not exceed $2,000 is 20 penalty units: see at [2-s 268]. [8-s 256.15] Definitions As to “possession” see [8-s 7.1]. As to a “false document” see [8-s 250]. [ss 257–259 rep Act 71 of 1989 s 3 and Sch 1(5), opn 16 July 1989] 257–307 [s 260 rep Act 99 of 2009 Sch 1, opn 22 Feb 2010] [ss 261–264 rep Act 71 of 1989 s 3 and Sch 1(5), opn 16 July 1989] [ss 265–271 rep Act 99 of 2009 Sch 1, opn 22 Feb 2010] [ss 272–277 rep Act 71 of 1989 s 3 and Sch 1[5], opn 16 July 1989] [s 278 rep Act 99 of 2009 Sch 1, opn 22 Feb 2010] [ss 279–284 rep Act 71 of 1989 s 3 and Sch 1[5], opn 16 July 1989] [s 285 rep Act 99 of 2009 Sch 1, opn 22 Feb 2010] [ss 286–288 rep Act 71 of 1989 s 3 and Sch 1(5), opn 16 July 1989] [s 289 rep Act 99 of 2009 Sch 1, opn 22 Feb 2010] [s 290 rep Act 71 of 1989 s 3 and Sch 1(5), opn 16 July 1989] [s 291 rep Act 99 of 2009 Sch 1, opn 22 Feb 2010] [ss 292–295 rep Act 71 of 1989 s 3 and Sch 1(5), opn 16 July 1989] [ss 296–306 rep Act 99 of 2009 Sch 1, opn 22 Feb 2010] [s 307 rep Act 38 of 2007 s 3 and Sch 2[21], opn 27 Sep 2007]

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Crimes

Provisions criminalising the making or possessing of equipment have been added to in order to keep up with technological advances. The old provisions have been updated in modern language, but it remains an offence to knowingly make or possess especially adapted equipment with intent to use it to commit forgery.

[8-s 307A]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 307A

PART 5A — FALSE AND MISLEADING INFORMATION [Pt 5A (formerly Pt 5, Div 3) am Act 99 of 2009 Sch 2, opn 22 Feb 2010]

[8-s 307A] False or misleading applications 307A (1) A person is guilty of an offence if: (a) the person makes a statement (whether orally, in a document or in any other way), and (b) the person does so knowing that, or being reckless as to whether, the statement: (i) is false or misleading, or (ii) omits any matter or thing without which the statement is misleading, and (c) the statement is made in connection with an application for an authority or benefit, and (d) any of the following subparagraphs apply: (i) the statement is made to a public authority, (ii) the statement is made to a person who is exercising or performing any power, authority, duty or function under, or in connection with, a law of the State, (iii) the statement is made in compliance or purported compliance with a law of the State. Maximum penalty: Imprisonment for 2 years, or a fine of 200 penalty units, or both. [subs (1) am Act 25 of 2018 Sch 5 item 5.7, opn 29 June 2018]

(2) Subsection (1) does not apply as a result of subsection (1)(b)(i) if the statement is not false or misleading in a material particular. (3) Subsection (1) does not apply as a result of subsection (1)(b)(ii) if the statement did not omit any matter or thing without which the statement is misleading in a material particular. (4) The burden of establishing a matter referred to in subsection (2) or (3) lies on the accused person. (5) In this section: application includes any claim, request or other form of application and also includes, in the case of an application for an authority, any application for the issue, grant, amendment, transfer, renewal, restoration or replacement of the authority and any other application in connection with the authority. authority includes any licence, permit, consent, approval, registration or other form of authority. benefit includes any advantage and is not limited to property.

[8-s 307B] False or misleading information 307B (1) A person is guilty of an offence if: (a) the person gives information to another person, and (b) the person does so knowing that the information: (i) is false or misleading, or (ii) omits any matter or thing without which the information is misleading, and (c) any of the following subparagraphs apply:

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s 307C

CRIMES ACT 1900 (NSW) — PART 5A

[8-s 307C]

Maximum penalty: Imprisonment for 2 years, or a fine of 200 penalty units, or both. (2) Subsection (1) does not apply as a result of subsection (1)(b)(i) if the information is not false or misleading in a material particular. (3) Subsection (1) does not apply as a result of subsection (1)(b)(ii) if the information did not omit any matter or thing without which the information is misleading in a material particular. (4) Subsection (1) does not apply as a result of subsection (1)(c)(i) if, before the information was given by a person to the public authority, the public authority did not take reasonable steps to inform the person of the existence of the offence against subsection (1). (5) Subsection (1) does not apply as a result of subsection (1)(c)(ii) if, before the information was given by a person (the first person) to the person mentioned in that subparagraph (the second person), the second person did not take reasonable steps to inform the first person of the existence of the offence against subsection (1). (6) The burden of establishing a matter referred to in subsection (2), (3), (4) or (5) lies on the accused person. (7) For the purposes of subsections (4) and (5), it is sufficient if the following form of words is used: “Giving false or misleading information is a serious offence.”

[8-s 307C] False or misleading documents 307C (a) (b) (c)

(1) A person is guilty of an offence if: the person produces a document to another person, and the person does so knowing that the document is false or misleading, and the document is produced in compliance or purported compliance with a law of the State.

Maximum penalty: Imprisonment for 2 years, or a fine of 200 penalty units, or both. (2) Subsection (1) 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 written statement signed by the person or, in the case of a body corporate, by a competent officer of the body corporate: (a) stating that the document is, to the knowledge of the first-mentioned person, false or misleading in a material particular, and (b) setting out, or referring to, the material particular in which the document is, to the knowledge of the first-mentioned person, false or misleading. (4) The burden of establishing a matter referred to in subsection (2) or (3) lies on the accused person.

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Crimes

(i) the information is given to a public authority, (ii) the information is given to a person who is exercising or performing any power, authority, duty or function under, or in connection with, a law of the State, (iii) the information is given in compliance or purported compliance with a law of the State.

[8-s 308]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 308

PART 6 — COMPUTER OFFENCES [Pt 6 subst Act 20 of 2001 s 3 and Sch 1[1], opn 3 Aug 2001]

[8-s 308] General definitions 308 In this Part: data includes: (a) information in any form, or (b) any program (or part of a program). data held in a computer includes: (a) data entered or copied into the computer, or (b) data held in any removable data storage device for the time being in the computer, or (c) data held in a data storage device on a computer network of which the computer forms part. data storage device means any thing (for example a disk or file server) containing or designed to contain data for use by a computer. electronic communication means a communication of information in any form by means of guided or unguided electromagnetic energy. serious computer offence means: (a) an offence against section 308C, 308D or 308E, or (b) conduct in another jurisdiction that is an offence in that jurisdiction and that would constitute an offence against section 308C, 308D or 308E if the conduct occurred in this jurisdiction. [s 308 subst Act 20 of 2001 s 3 and Sch 1[1], opn 3 Aug 2001]

[8-s 308A] Meaning of access to data, modification of data and impairment of electronic communication 308A (1) 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 any other place in the computer or to a data storage device, or (c) in the case of a program — the execution of the program. (2) In this Part, modification of data held in a computer means: (a) the alteration or removal of the data, or (b) an addition to the data. (3) In this Part, impairment of electronic communication to or from a computer includes: (a) the prevention of any such communication, or (b) the impairment of any such communication on an electronic link or network used by the computer, but does not include a mere interception of any such communication. (4) A reference in this Part to any such access, modification or impairment is limited to access, modification or impairment caused (whether directly or indirectly) by the execution of a function of a computer. [s 308A insrt Act 20 of 2001 s 3 and Sch 1[1], opn 3 Aug 2001]

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s 308C

CRIMES ACT 1900 (NSW) — PART 6

[8-s 308C]

[8-s 308B] Meaning of unauthorised access, modification or impairment 308B (1) For the purposes of this Part, access to or modification of data, or impairment of electronic communication, by a person is unauthorised if the person is not entitled to cause that access, modification or impairment. (2) Any such access, modification or impairment is not unauthorised merely because the person has an ulterior purpose for that action. (3) For the purposes of an offence under this Part, a person causes any such unauthorised access, modification or impairment if the person’s conduct substantially contributes to the unauthorised access, modification or impairment. COMMENTARY ON SECTION 308B Scope of the section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 308B.5] [8-s 308B.5] Scope of the section The section was considered in Salter v DPP [2011] NSWCA 190; BC201105364; 18(8) Crim LN [2944] where it was held that the section protects an officer who has a legitimate entitlement to access data even though it is done with an ulterior purpose. In that case a police officer had accessed the police database although the access was not made in the course of the officer’s duties. It was held that section provided the police officer with no defence.

[8-s 308C] Unauthorised access, modification or impairment with intent to commit serious indictable offence 308C (1) A person who causes any unauthorised computer function: (a) knowing it is unauthorised, and (b) with the intention of committing a serious indictable offence, or facilitating the commission of a serious indictable offence (whether by the person or by another person), is guilty of an offence. Maximum penalty: The maximum penalty applicable if the person had committed, or facilitated the commission of, the serious indictable offence in this jurisdiction. (2) For the purposes of this section, an unauthorised computer function is: (a) any unauthorised access to data held in any computer, or (b) any unauthorised modification of data held in any computer, or (c) any unauthorised impairment of electronic communication to or from any computer. (3) For the purposes of this section, a serious indictable offence includes an offence in any other jurisdiction that would be a serious indictable offence if committed in this jurisdiction. (4) A person may be found guilty of an offence against this section: (a) even if committing the serious indictable offence concerned is impossible, or (b) whether the serious indictable offence is to be committed at the time of the unauthorised conduct or at a later time. (5) It is not an offence to attempt to commit an offence against this section. [s 308C insrt Act 20 of 2001 s 30 and Sch 1[1], opn 3 Aug 2001] Editor’s note: For proof material on s 308C, see [27-34,500] behind the “27 – Informations and Indictments” guide card in Vol 4.

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[s 308B insrt Act 20 of 2001 s 3 and Sch 1[1], opn 3 Aug 2001]

[8-s 308C.1]

s 308C

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

COMMENTARY ON SECTION 308C Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 308C.1] [8-s 308C.5]

[8-s 308C.1] Summary disposal An offence under the section, where the serious indictable offence alleged carries a maximum penalty of 10 years imprisonment or less, is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in the Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Part 3 clause 14. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 308C.5] Definitions As to “unauthorised”, see s 308B(1) at [8-s 308B]. As to “serious indictable offence”, see s 4 at [8-s 4]. As to “access”, “modification” and “impairment”, see s 308A at [8-s 308A].

[8-s 308D] Unauthorised modification of data with intent to cause impairment 308D (a) (b) (c)

(1) A person who: causes any unauthorised modification of data held in a computer, and knows that the modification is unauthorised, and intends by the modification to impair access to, or to impair the reliability, security or operation of, any data held in a computer, or who is reckless as to any such impairment, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (2) A conviction for an offence against this section is an alternative verdict to a charge for: (a) an offence against section 195 (Destroying or damaging property), or (b) an offence against section 308E (Unauthorised impairment of electronic communication). [subs (2) am Act 38 of 2007 s 3 and Sch 1[23], opn 15 Feb 2008] [s 308D insrt Act 20 of 2001 s 3 and Sch 1[1], opn 3 Aug 2001] Editor’s note: For proof material on s 308D, see [27-34,550] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 308D Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 308D.1] [8-s 308D.5]

[8-s 308D.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 3 cl 14. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 308D.5] Definitions As to “unauthorised”, see s 308B(1) at [8-s 308B]. As to “data held in a computer”, see s 308 at [8-s 308]. As to “access”, “modification” and “impairment”, see s 308A at [8-s 308B].

[8-s 308E] Unauthorised impairment of electronic communication 308E (1) A person who:

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s 308F

[8-s 308F]

CRIMES ACT 1900 (NSW) — PART 6

(a) causes any unauthorised impairment of electronic communication to or from a computer, and (b) knows that the impairment is unauthorised, and (c) intends to impair electronic communication to or from the computer, or who is reckless as to any such impairment, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (2) A conviction for an offence against this section is an alternative verdict to a charge for: (a) an offence against section 195 (Destroying or damaging property), or (b) an offence against section 308D (Unauthorised modification of data with intent to cause impairment). [subs (2) am Act 38 of 2007 s 3 and Sch 1[23], opn 15 Feb 2008] [s 308E insrt Act 20 of 2001 s 3 and Sch 1[1], opn 3 Aug 2001]

COMMENTARY ON SECTION 308E Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 308E.1] [8-s 308E.5]

[8-s 308E.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 3 cl 14. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 308E.5] Definitions As to “unauthorised”, see s 308B(1) at [8-s 308B]. As to “impairment”, see s 308A at [8-s 308A]. As to “electronic communication”, see s 308 at [8-s 308]. As to “reckless”, see at [8-s 4A.1].

[8-s 308F] Possession of data with intent to commit serious computer offence 308F (1) A person who is in possession or control of data: (a) with the intention of committing a serious computer offence, or (b) with the intention of facilitating the commission of a serious computer offence (whether by the person or by another person), is guilty of an offence. Maximum penalty: Imprisonment for 3 years. (2) For the purposes of this section, possession or control of data includes: (a) possession of a computer or data storage device holding or containing the data or of a document in which the data is recorded, and (b) control of data held in a computer that is in the possession of another person (whether the computer is in this jurisdiction or outside this jurisdiction). (3) A person may be found guilty of an offence against this section even if committing the serious computer offence concerned is impossible.

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Editor’s note: For proof material on s 308E, see [27-34,600] behind the “27 – Informations and Indictments” guide card in Vol 4.

[8-s 308F]

s 308F

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

(4) It is not an offence to attempt to commit an offence against this section. [s 308F insrt Act 20 of 2001 s 3 and Sch 1[1], opn 3 Aug 2001] Editor’s note: For proof material on s 308F, see [27-34,700] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 308F Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 308F.1] [8-s 308F.5]

[8-s 308F.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 3 cl 14. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 308F.5] Definitions As to “possession”, see s 7 at [8-s 7]. As to “serious computer offence”, see s 308 at [8-s 308]. As to “data storage device”, see s 308 at [8-s 308]. As to “data held in a computer”, see s 308 at [8-s 308].

[8-s 308G] Producing, supplying or obtaining data with intent to commit serious computer offence 308G (1) A person who produces, supplies or obtains data: (a) with the intention of committing a serious computer offence, or (b) with the intention of facilitating the commission of a serious computer offence (whether by the person or by another person), is guilty of an offence. Maximum penalty: Imprisonment for 3 years. (2) For the purposes of 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 may be found guilty of an offence against this section even if committing the serious computer offence concerned is impossible. (4) It is not an offence to attempt to commit an offence against this section. [subs (4) insrt Act 27 of 2003 s 3 and Sch 3[3], opn 8 July 2003] [s 308G insrt Act 20 of 2001 s 3 and Sch 1[1], opn 3 Aug 2001] Editor’s note: For proof material on s 308G, see [27-34,800] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 308G Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 308G.1] [8-s 308G.5]

[8-s 308G.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 3 cl 14. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 308G.5] Definitions As to “data”, see s 308 at [8-s 308]. As to “serious computer offence”, see s 308 at [8-s 308].

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s 308I

[8-s 308I]

CRIMES ACT 1900 (NSW) — PART 6

[8-s 308H] Unauthorised access to or modification of restricted data held in computer (summary offence) 308H (1) A person: (a) who causes any unauthorised access to or modification of restricted data held in a computer, and (b) who knows that the access or modification is unauthorised, and (c) who intends to cause that access or modification, is guilty of an offence. Maximum penalty: Imprisonment for 2 years. (2) An offence against this section is a summary offence. (3) In this section: restricted data means data held in a computer, being data to which access is restricted by an access control system associated with a function of the computer. [def am Act 27 of 2003 s 3 and Sch 3[4], opn 8 July 2003]

[subs (4) insrt Act 54 of 2016 Sch 1.4[1], opn 25 Oct 2016] [s 308H insrt Act 20 of 2001 s 3 and Sch 1[1], opn 3 Aug 2001] Editor’s note: For proof material on s 308H, see [27-34,850] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 308H Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 308H.1] Summary disposal [8-s 308H].

[8-s 308H.1] [8-s 308H.5]

The offence is a summary offence, see s 308H(2) at

[8-s 308H.5] Definitions As to “unauthorised”, see s 308B(1) at [8-s 308B]. As to “access” and “modification”, see s 308A at [8-s 308A]. As to “data held in a computer”, see s 308 at [8-s 308].

[8-s 308I] Unauthorised impairment of data held in computer disk, credit card or other device (summary offence) 308I (1) A person: (a) who causes any unauthorised impairment of the reliability, security or operation of any data held on a computer disk, credit card or other device used to store data by electronic means, and (b) who knows that the impairment is unauthorised, and (c) who intends to cause that impairment, is guilty of an offence. Maximum penalty: Imprisonment for 2 years. (2) An offence against this section is a summary offence. (3) For the purposes of this section, impairment of the reliability, security or

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Crimes

(4) Proceedings for an offence against this section must be commenced not later than 12 months from when the offence was alleged to have been committed.

[8-s 308I]

s 308I

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

operation of data is unauthorised if the person is not entitled to cause that impairment. [s 308I insrt Act 20 of 2001 s 3 and Sch 1[1], opn 3 Aug 2001] Editor’s note: For proof material on s 308I, see [27-34,900] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 308I Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8-s 308I.1] Summary disposal [8-s 308I].

[8-s 308I.1] [8-s 308I.5]

The offence is a summary offence, see s 308I(2) at

[8-s 308I.5] Definitions As to “unauthorised”, see s 308B(1) at [8-s 308B]. As to “impairment”, see s 308A at [8-s 308A]. As to “data”, see s 308 at [8-s 308].

309–310

[ss 309–310 rep Act 20 of 2001 s 3 and Sch 1[1], opn 3 Aug 2001]

PART 6A — OFFENCES RELATING TO ESCAPE FROM LAWFUL CUSTODY [Pt 6A insrt Act 94 of 1999 s 5 and Sch 3 Pt 1, opn 3 Apr 2000]

[8-s 310A] Definitions 310A In this Part: correctional centre means a correctional centre within the meaning of the Crimes (Administration of Sentences) Act 1999, and includes a correctional complex within the meaning of that Act. inmate has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999. COMMENTARY ON SECTION 310A Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 310A.1]

[8-s 310A.1] Definitions See the definitions of “correctional centre” and “inmate” in s 3(1) Crimes (Administration of Sentences) Act 1999 at [24-s 3].

[8-s 310B] Rescuing inmate from lawful custody 310B Any person who, by force, rescues or attempts to rescue an inmate from lawful custody is guilty of an offence. Maximum penalty: imprisonment for 14 years. Editor’s note: For proof material on s 310B, see [27-35,500] behind the “27 – Informations and Indictments” guide card.

COMMENTARY ON SECTION 310B Rescue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rescuing by force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 310B.1] [8-s 310B.5]

[8-s 310B.1] Rescue At common law, rescue is forcibly liberating a prisoner from lawful custody: see Hawkins Pleas of the Crown, c 21.

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s 310D

CRIMES ACT 1900 (NSW) — PART 6A

[8-s 310D.1]

[8-s 310B.5] Rescuing by force In respect of a similar provision found under s 32 of the Correctional Centres Act 1952, it was held that there is a causal relationship between the application of the “force” and either a “rescue” or “attempt to rescue”, but there is nothing in the section which directs attention to the person or persons to whom the force is to be applied and, although in the usual case force will be applied to a prison officer, that is not an essential ingredient: R v Dudko (2002) 132 A Crim R 371; [2002] NSWCCA 336; BC200204739; (2002) 9 Crim LN 62 [1462], where the force was applied to the pilot of a helicopter used for the rescue of the inmate.

[8-s 310C] Aiding escape 310C Any person: (a) who aids an inmate in escaping or attempting to escape from lawful custody, or (b) who conveys anything or causes anything to be conveyed into a correctional centre or to an inmate with intent to facilitate the escape of an inmate, is guilty of an offence. Maximum penalty: imprisonment for 7 years.

COMMENTARY ON SECTION 310C Aiding escape . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Anything intended to facilitate escape . . . . . . . . . . . . . . . . . . . . . . . . . . Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 310C.1] [8-s 310C.5] [8-s 310C.10]

[8-s 310C.1] Aiding escape At common law, a person who aids a prisoner to escape is guilty as a principal, or may be indicted for rescue: see R v Allan (1841) 174 ER 513; Car M 295. [8-s 310C.5] Anything intended to facilitate escape The mere delivery of instruments to a person in custody is a fact from which the jury may infer the intent to facilitate escape, and it is immaterial whether an escape is actually made or not: see Archbold 40th ed para 3433 and R v Payne (1866) LT 1 CCR 27. [8-s 310C.10] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 3 cl 16. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267].

[8-s 310D] Escaping 310D Any inmate: (a) who escapes or attempts to escape from lawful custody, or (b) who, having been temporarily released from lawful custody, fails to return to lawful custody at the end of the time for which the inmate has been released, is guilty of an offence. Maximum penalty: imprisonment for 10 years. Editor’s note: For proof material on s 310D, see [27-35,600] behind the “27 – Informations and Indictments” guide card.

COMMENTARY ON SECTION 310D Summary Disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[8-s 310D.1]

Crimes

Editor’s note: For proof material on s 310C, see [27-35,550] behind the “27 – Informations and Indictments” guide card.

[8-s 310D.1]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

Common Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inmate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Lawful custody . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Commonwealth and interstate escapees . . . . . . . . . . . . . . . . . . . . . . . . . Mental element . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Motive for escape . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Failure to return after temporary release . . . . . . . . . . . . . . . . . . . . . . . . Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Extension of sentence following unlawful absence from custody .

s 310D [8-s 310D.3] [8-s 310D.5] [8-s 310D.10] [8-s 310D.15] [8-s 310D.20] [8-s 310D.25] [8-s 310D.30] [8-s 310D.35] [8-s 310D.40]

[8-s 310D.1] Summary Disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 3 cl 16. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 310D.3] Common Law It is a common law misdemeanour for a person to escape from lawful custody. This applies to a prisoner serving a sentence or a person awaiting trial. See R v Hinds (1957) 41 Cr App Rep 143. For the common law offence of breach of prison see Hawkins Pleas of The Crown c 18. [8-s 310D.5] Inmate See definition in s 310A of the Act. A person in police custody other than pursuant to a warrant of imprisonment or committal to prison is not an “inmate” for the purposes of s 310D. Escape by such a person from lawful police custody constitutes the common law misdemeanour of escape from lawful custody: see R v Timmins [1976] Crim LR 129. A person fleeing during a court hearing may be guilty of the common law misdemeanour of escape from lawful custody: R v Peehi (1997) 41 NSWLR 476; BC9701091; (1997) 4 Crim LN 20 [674]. [8-s 310D.10] Lawful custody The Habeas Corpus Act 1679 31 Car II Ch 2 s 8 provides that a person committed to a prison or in custody of any officer, shall not be removed from that prison or custody except by habeas corpus, some other legal writ, or in particular cases specified by the section. This Act applies in NSW perforce of the Imperial Acts Application Act 1969 Sch 2 Pt 1.56. In R v Templeton [1956] VLR 709; ALR 706 it was held that the Crown must prove a documentary chain of title and other specified acts to show that the removal of a prisoner from one prison to another fell within one of the exceptions to the prohibition against removal contained in the Habeas Corpus Act 1679. In Day v R (1984) 153 CLR 475; 51 ALR 353; BC8400539 the High Court approved but distinguished R v Templeton, above. It was held that failure to comply with s 53 of the Prisons Act (1903) WA (which authorises the transfer of prisoners from one prison to another), does not have any relevance to the question of the lawfulness of any custody under sentence following conviction for an indictable offence, and s 8 of the Habeas Corpus Act 1674 was held not to apply to the custody of prisoners sentenced for an indictable offence. In Kelleher v Corrective Services Commission (NSW) (1987) 8 NSWLR 423; 29 A Crim R 1, Lee J distinguished Day v R, above. It was held that s 27 of the repealed Correctional Centres Act 1952 (see now s 23 Crimes (Administration of Sentences) Act 1999 at [24-s 23] does have direct relevance to the question of the lawfulness of custody, and an order made in accordance with s 27 of the Act must be produced. In that case an order for transfer was not in existence at the time the prisoner was transferred from one prison to another. Lee J ordered pursuant to section 71 of the Supreme Court Act 1970 that the prisoner be returned to the original prison. The Court of Appeal held that Lee J had been correct in his reliance upon s 71 of the Supreme Court Act: Kelleher v Corrective Services Commission (NSW) (1987) 8 NSWLR 423; 29 A Crim R 1. In Powch v R (1987) 163 CLR 496; 75 ALR 13; BC8701813 the High Court held that the power to make an order under s 27 is not contingent on the lawfulness of the custody of the prisoner in

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CRIMES ACT 1900 (NSW) — PART 6A

[8-s 310D.30]

the particular prison in which he was held when the order was made. The power is available by reason of his status as a prisoner and being detained in a prison. The decision in R v Templeton [1956] VLR 709; ALR 706 was said to be too wide. The lawfulness of the custody stated in a charge depends upon the terms of the sentence, the warrant of commitment (if any), the statutory provisions governing the custody of prisoners and, where there is a statute which authorises administrative steps to be taken to place a prisoner in that custody, the steps actually taken. It was pointed out that Day v R, above, shows that the particular statutory provisions are of critical importance. Section 28(2) of the repealed Correctional Centres Act 1952 provided that a prisoner removed to a hospital or other place to receive medical treatment, shall be deemed to be in the custody of the governor of the prison from which he was removed. In R v Gaffney [1971] 1 NSWLR 511 it was held that a prisoner certified to be mentally ill and removed to and detained in a mental hospital pursuant to s 27 of the Mental Health Act 1958 (now repealed) was not a prisoner held in lawful custody within the meaning of the sentence imposed by a court in judicial proceedings, but is detained by an administrative act that is by ministerial order. See now s 24 Crimes (Administration of Sentences) Act 1999 at [24-s 24]. Inmates who are absent from a correctional centre for specified purposes are taken to be in custody: s 38 Crimes (Administration of Sentences) Act 1999 at [24-s 38]. Although the detention of a person may at some stage be unlawful (eg where the person is being detained for questioning without being taken before a justice), the detention can become lawful at a later stage and if the person escapes at the time that the detention is lawful, he can be convicted of escaping lawful custody: Michaels v R (1995) 184 CLR 117; 130 ALR 581; [1995] HCA 8; BC9506448 applying R v Banner [1970] VR 240. [8-s 310D.15] Commonwealth and interstate escapees Section 310D does not apply to Federal offenders. See R v Gregory [1983] 3 NSWLR 172 and R v Nanka [1984] 1 NSWLR 722. Also see s 47 of the Crimes Act (Cth) 1914. Section 33 of the Prisoners (Interstate Transfer) Act 1982 at [24-20,665] provides that a person in custody under an order for transfer who escapes or attempts to escape from that custody while not within NSW or a participating state to which he was being conveyed, is guilty of an offence and liable to imprisonment for 7 years. [8-s 310D.20] Mental element To constitute the crime of escape, there must be a conscious and intentional act of withdrawal from an actual custody. The offence is not committed when the act of withdrawal and the intention of escaping do not concur. It is, therefore, a defence to a charge of escape that the original withdrawal from custody was unintentional or unconscious. If a prisoner who has not been discharged or released according to law finds himself innocently at large and decides not to give himself up, no offence has been committed: see R v Scott [1967] VR 276. [8-s 310D.25] Motive for escape It has been said that if a prisoner breaks out of prison to save his life, as in the case of fire, he is not guilty of breach of prison. See Hawkins Pleas of the Crown c 18 s 11. See, however, R v Hinds (1957) 41 Cr App Rep 143 where it was held that the motive for leaving prison was not relevant. The defence of necessity in relation to escape was considered in R v Rogers (1996) 86 A Crim R 542; BC9602574; 3(5) Crim LN [566], where it was held that if the prisoner escaped honestly believing on reasonable grounds that escape was necessary in order to avoid threatened death or serious bodily harm his conduct would be excused. [8-s 310D.30] Failure to return after temporary release In R v Dunks [1982] 2 NSWLR 747; (1982) 8 A Crim R 267 it was held that a prisoner granted permission to be absent under repealed s 29(1) Correctional Centres Act 1952, cannot commit the offence of escaping from lawful custody pursuant to the combined operation of repealed s 29A and s 34 of that Act, where there is no specific order imparting a defined obligation to return to prison. See also R v Way [1981] 2 NSWLR 653; (1981) 3 A Crim R 465. Section 310D now provides for the specific offence of failing to return to lawful custody after temporary release.

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Crimes

s 310D

[8-s 310D.35]

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

s 310D

[8-s 310D.35] Sentencing Section 57(2) Crimes (Sentencing Procedure) Act 1999 at [5-s 57] provides that a sentence of imprisonment for escape is to be served consecutively with a sentence being served at the time or a sentence to be imposed in the same proceedings. Section 57(3) provides that the term “sentence of imprisonment” in s 57(2) is taken to be the non-parole period of the sentence if there is one or the term of the sentence if there is not. The repealed s 34(2) Correctional Centres Act 1952 provided that the sentence imposed for an escape was cumulative on the sentence being served at the time of the escape. It was held that this had no application when the sentence being served is for life, because no additional sentence can be served cumulatively upon a life sentence. See R v Farlow [1980] 2 NSWLR 166; (1979) 2 A Crim R 266 and R v Hornby (NSWCCA, 3 March 1985, unreported). However, a sentence could be made cumulative upon another sentence being served concurrently with a life sentence: R v Denning (NSWCCA, Carruthers, Smart and Grove JJ, 60807/1991, 15 May 1992, unreported, BC9203052) disapproving R v Taikmaskis (1986) 19 A Crim R 383; BC8600384. The proper approach for sentencing for escape was recently considered in R v Pham [2005] NSWCCA 94; BC200501606; (2005) 12 Crim LN 48 [1870]. A serious attitude has been taken by courts to escaping, particularly from minimum security prisons: see R v Williams (1982) 7 A Crim R 46. See also R v Thomson (NSWCCA, Street CJ, Lee and Foster JJ, 380/1985, 21 May 1986, unreported, BC8601015) noted in 7 Petty SR 3436, where it was observed that the element of significant general deterrence plays an important part in the capacity of the State to continue with reforms in the physical circumstances under which prisoners are held in gaol. The ordinary sentence for what might be called an unremarkable escape could be expected to approximate two years. It should be noted that at the time when Thomson was decided, the maximum penalty for escape was penal servitude for 7 years. The maximum penalty under s 310D is 10 years imprisonment. It has been held that personal crises affecting the prisoner, or his or her family, offer no excuse or justification for an escape and cannot mitigate the sentence: R v Simonds (NSWCCA, Priestley JA, Wood J and Finlay J, 60479/1990, 6 May 1991, unreported, BC9102035). The sentencing by magistrates for escape has been criticised as being too lenient: R v Young (NSWCCA, 27 October 1993, unreported). [8-s 310D.40] Extension of sentence following unlawful absence from custody If a person is unlawfully absent from custody during the term of a sentence, the term of the sentence and, if the absence occurs during a non-parole period, the non-parole period is extended by the period for which the person is unlawfully absent from custody: s 254(1) Crimes (Administration of Sentences) Act 1999 at [24-s 254]. Section 254 does not prevent a person from being proceeded against and convicted in relation to any offence arising out of an escape from lawful custody: s 254(4).

[8-s 310E] Tunnels to facilitate escape 310E (1) A person who constructs, or takes part in the construction of, a tunnel that could reasonably be thought likely to be intended for use in facilitating an inmate’s escape from lawful custody is guilty of an offence. Maximum penalty: imprisonment for 10 years. (2) It is not necessary for the prosecution to prove that the tunnel was actually intended for use in facilitating an escape, but it is a defence for the accused person to establish that he or she did not intend it to be so used. (3) In this section: tunnel includes any partially completed tunnel and any excavation. COMMENTARY ON SECTION 310E Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[8-s 310E.1]

s 310G

CRIMES ACT 1900 (NSW) — PART 6A

[8-s 310G]

[8-s 310E.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 3 cl 16. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267].

310F (1) Any person who, being an officer of a correctional centre or a police officer, has actual custody of an inmate for the time being is guilty of an offence if he or she wilfully permits the inmate to escape from custody. Maximum penalty: imprisonment for 7 years. (2) Any person who, being an officer of a correctional centre or a police officer, has actual custody of an inmate for the time being is guilty of an indictable offence if he or she negligently permits the inmate to escape from custody. Maximum penalty: imprisonment for 2 years. (3) Any person who is employed by the management company of a managed correctional centre (within the meaning of the Crimes (Administration of Sentences) Act 1999) as a custodian of inmates at, or travelling to or from, the correctional centre is, for the purposes of this section, an officer of a correctional centre. Editor’s note: For proof material on s 310F, see [27-35,700] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 310F Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Common law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 310F.1] [8-s 310F.5]

[8-s 310F.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 3 cl 16. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 310F.5] Common law The distinction between wilfully and negligently permitting escape is also made at common law — see Halsburys Laws of England, Vol 11 par 967. It was also a requirement that the prisoner was actually in the defendant’s custody and that he went at large, see Hawkins Pleas of the Crown c 19 s14. At common law a private person who has lawfully arrested another is not only entitled, but bound, to hand him over to a person who ought to have custody of him. If he voluntarily or negligently permits the person so arrested to escape, he is liable to the same extent as the officer, see Hawkins Pleas of the Crown c 20.

[8-s 310G] Harbouring escapee 310G (1) Any person who knowingly harbours, maintains or employs an escaped inmate is guilty of an offence. Maximum penalty: imprisonment for 3 years. (2) In this section: escaped inmate includes a prisoner who has escaped from lawful custody in another State or Territory. [s 310G am Act 38 of 2007 s 3 and Sch 2[22], opn 27 Sep 2007]

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Crimes

[8-s 310F] Permitting escape

[8-s 310G.1]

s 310G

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

COMMENTARY ON SECTION 310G Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope of the section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 310G.1] [8-s 310G.5]

[8-s 310G.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 3 cl 16. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 310G.5] Scope of the section “Harbour” means to shelter a person, in the sense of giving refuge to that person: see Darch v Weight [1984] 1 WLR 659. The verb “maintain” has a restricted meaning denoting at least some degree of regularity in the provision of assistance and such assistance must be objectively of such a nature as to assist the escapee to continue to exist without being recaptured, but there is no necessity that there be an intention to hinder or prevent the recapture of the prisoner: R v Blinkhorn (1994) 32 NSWLR 706; BC9405210. The maintaining must be done with knowledge that the person assisted was an escaped prisoner and for the purpose of maintaining him: R v Kawicki (1995) 82 A Crim R 191; BC9505383.

[8-s 310H] Application of Part 310H This Part does not apply to or in respect of: (a) an inmate who is in lawful custody for the purpose of serving a sentence of imprisonment the subject of an intensive correction order under the Crimes (Sentencing Procedure) Act 1999, or (b) a detention centre or a detainee within the meaning of the Children (Detention Centres) Act 1987. [s 310H am Act 53 of 2000 s 3 and Sch 3.3, opn 29 June 2000; Act 48 of 2010 Sch 5, opn 1 Oct 2010; Act 53 of 2017 Sch 4 item 4.9, opn 24 Sep 2018]

PART 6B — TERRORISM Editor’s note: This part is self repealed on 13 September 2019 by repealed s 310L of this Act. [Part 6B insrt Act 54 of 2005 s 5 and Sch 4, opn 9 Sep 2005; am Act 14 of 2007 s 40 and Sch 3.1, opn 4 July 2007; Act 53 of 2008 s 3 and Sch 6[1], opn 1 July 2008; insrt Act 10 of 2019 Sch 1.6[2], opn 26 Sep 2019]

[8-s 310I] Definitions 310I In this Part: Commonwealth Criminal Code means the Criminal Code set out in the Schedule to the Criminal Code Act 1995 of the Commonwealth. terrorist organisation and member of a terrorist organisation have the meaning they are given by section 102.1 of the Commonwealth Criminal Code.

[8-s 310J] Membership of terrorist organisation 310J (1) A person commits an offence if— (a) the person intentionally is a member of a terrorist organisation, and (b) the organisation is a terrorist organisation, and (c) the person knows the organisation is a terrorist organisation. Maximum penalty: Imprisonment for 10 years.

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s 311

CRIMES ACT 1900 (NSW) — PART 7

[8-s 311.1]

(2) Subsection (1) does not apply if the person proves that he or she took all reasonable steps to cease to be a member of the organisation as soon as practicable after the person knew that the organisation was a terrorist organisation.

[8-s 310K] Multiplicity of offences 310K If— (a) an act or omission is an offence against both this Part and the Commonwealth Criminal Code, and (b) the offender has been punished for that offence under the Commonwealth Criminal Code, the offender is not liable to be punished for the offence under this Part. PART 7 — PUBLIC JUSTICE OFFENCES [Pt 7 insrt Act 51 of 1990 s 3 and Sch 1, opn 25 Nov 1990]

DIVISION 1 — DEFINITIONS [Div heading am Act 31 of 1999 s 3 and Sch 5.27, opn 7 July 1999]

Crimes

[8-s 311] Definitions 311 (1) In this Part: adult means a person who is of or above the age of 18 years. [def insrt Act 33 of 2018 Sch 1[54], opn 31 Aug 2018]

benefit means any benefit or advantage whether or not in money or money’s worth. judicial officer means a person who is, or who alone or with others constitutes, a judicial tribunal and includes a coroner. judicial proceeding means a proceeding in or before a judicial tribunal in which evidence may be taken on oath. judicial tribunal means a person (including a coroner and an arbitrator), court or body authorised by law, or by consent of parties, to conduct a hearing for the purpose of the determination of any matter or thing and includes a person, court or body authorised to conduct a committal proceeding. public justice official means a person who is a public officer employed in any capacity (other than as a judicial officer) for the investigation, detection or prosecution of offenders. serious offence [def rep Act 94 of 1999 s 5 and Sch 3[44], opn 1 Jan 2000] [subs (1) am Act 79 of 1993 s 5, opn 1 Feb 1994]

(2) In this Part, a reference to the making of a statement on oath includes a reference to the verification of a statement on oath. COMMENTARY ON SECTION 311 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 311.1]

[8-s 311.1] Definitions The term is defined in s 4. In respect of the term “serious offence”, which had a similar definition, it was held that the term looks to the offence in its generic sense; if the offence is capable of being punished by imprisonment for 5 years or more, it is a serious

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[8-s 311.1]

s 311

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

offence; the fact that the offence may attract a lesser maximum penalty if disposed of summarily does not mean that it is not a “serious offence”: Director of Public Prosecutions v Sinclair (NSWSC, Sperling J, 014409/1996, 1 April 1997, unreported, BC9701516); (1997) 4 Crim LN 20 [673]. “Judicial proceedings” means any judicial proceedings in and of NSW: R v Lowe (2003) 57 NSWLR 102; 139 A Crim R 240; [2003] NSWCCA 150; BC200302764; (2003) 10 Crim LN 43 [1557].

[8-s 312] Meaning of “pervert the course of justice” 312 A reference in this Part to perverting the course of justice is a reference to obstructing, preventing, perverting or defeating the course of justice or the administration of the law. COMMENTARY ON SECTION 312 Scope of “perverting the course of justice” . . . . . . . . . . . . . . . . . . . . .

[8-s 312.5]

[8-s 312.5] Scope of “perverting the course of justice” The scope of “perverting the course of justice” as defined in this section was considered in Einfeld v R (2008) 252 ALR 375; 51 MVR 200; [2008] NSWCCA 215; BC200808949; 15 Crim LN 129 [2456], where it was held that the words “the administration of the law” in the section were not to be construed literally so to apply to every function of any government body applying and enforcing the law of the State as this would broaden the offence in a way that cannot have been intended. The words should be construed in the traditional sense as applying to “the administration of the civil and criminal law by courts and tribunals”. In that case it was held that the offence did not apply to a false statement made in respect of motor traffic infringement. The decision in Einfeld was distinguished in R v OM [2011] NSWCCA 109; BC201103302; 18(6) Crim LN [2911] where it was held that the scope of the section did not differ from the common law, so that it covered conduct designed to deflect the police from prosecuting the accused or from adducing evidence of the true facts despite the fact that no judicial proceedings had been commenced at the time provided that the accused contemplated the possibility of commencement of proceedings against him. An accused was guilty of being an accessory before the fact to an offence of perverting the course of justice where he encouraged the offender to falsify time sheets as to the hours of work completed under a community service order, where the order had been breached and proceedings were pending: Ishac v R (2011) 211 A Crim R 102; [2011] NSWCCA 107; BC201102955. The meaning of “perverting the course of justice” was considered in R v Beckett (2015) 325 ALR 385; 90 ALJR 1; [2015] HCA 38; BC201510237; 22(11) Crim LN [3611] where it was held that it extends to actions done with the intention of frustrating or deflecting the course of justice that the accused contemplates may possibly be instituted. It was held that the offence under s 319 is not limited to conduct that is intended to pervert an existing course of justice. The offence was made out if the accused did an act or made an omission intending at the time in any way to obstruct, pervert, prevent or defeat the course of justice.

[8-s 313] Knowledge about type of offence is unnecessary 313 If it is an element of an offence under this Part that an offence is a serious indictable offence or child abuse offence (within the meaning of section 316A), it is not necessary for the prosecution to establish that the accused knew that the offence was a serious indictable offence or child abuse offence (within the meaning of section 316A). [s 313 am Act 94 of 1999 s 5 and Sch 3[45], opn 1 Jan 2000; Act 33 of 2018 Sch 1[55], opn 31 Aug 2018]

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s 315

CRIMES ACT 1900 (NSW) — PART 7

[8-s 315.1]

DIVISION 2 — INTERFERENCE WITH THE ADMINISTRATION OF JUSTICE [Div heading am Act 31 of 1999 s 3 and Sch 5.27, opn 7 July 1999]

[8-s 314] False accusations etc 314 A person who makes an accusation intending a person to be the subject of an investigation of an offence, knowing that other person to be innocent of the offence, is liable to imprisonment for 7 years. [s 314 am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000] Editor’s note: For proof material on s 314, see [27-36,000] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 314 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 314.1] [8-s 314.5]

[8-s 314.5] Intoxication An offence under this section which is alleged to have been committed after 16 August 1996 is an offence of specific intent for the purpose of Pt 11A Crimes Act 1900 relating to intoxication: see s 428B Crimes Act ff at [8-s 428B].

[8-s 315] Hindering investigation etc 315 (1) A person who does anything intending in any way to hinder: (a) the investigation of a serious indictable offence committed by another person, or (b) the discovery of evidence concerning a serious indictable offence committed by another person, or (c) the apprehension of another person who has committed a serious indictable offence, is liable to imprisonment for 7 years. [subs (1) am Act 94 of 1999 s 5 and Sch 3[45] and [70], opn 1 Jan 2000]

(2) For the purposes of subsection (1), a person is to be considered to have committed a serious indictable offence if a public officer engaged in the detection or investigation of offenders suspects on reasonable grounds that a person has committed the offence. [subs (2) am Act 94 of 1999 s 5 and Sch 3[45], opn 1 Jan 2000]

(3) It is not an offence against this section merely to refuse or fail to divulge information or produce evidence. Editor’s note: For proof material on s 315, see [27-36,050] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 315 Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mental element . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[8-s 315.1] [8-s 315.5] [8-s 315.10] [8-s 315.15]

Crimes

[8-s 314.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 3 cl 15. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267].

[8-s 315.1]

s 315

ANNOTATED CRIMINAL LEGISLATION NSW 2019/2020

[8-s 315.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 3 cl 15. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 315.5] Definitions “Serious indictable offence” is defined in s 4 at [8-s 4] and see at [8-s 311.1]. The prosecution need not prove that the accused knew that the offence was a “serious indictable offence”: s 313 at [8-s 313]. As to “public justice official” see at [8-s 326.10]. [8-s 315.10] Intoxication An offence under this section which is alleged to have been committed after 16 August 1996 is an offence of specific intent for the purpose of Pt 11A Crimes Act 1900 relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. [8-s 315.15] Mental element For an offence under s 315(1)(b) to be committed, it is necessary that the accused be aware, in a general way, of the nature of the primary offence concerning which he was intentionally hindering the discovery of evidence: R v El-Zeyat [2002] NSWCCA 138; (2002) 9 Crim LN 37 [1427] (revised - 08/02/2005).

[8-s 315A] Threatening or intimidating victims or witnesses 315A (1) A person who threatens to do or cause, or who does or causes, any injury or detriment to any other person intending to influence any person not to bring material information about an indictable offence to the attention of a police officer or other appropriate authority is liable to imprisonment for 7 years. (2) In this section: material information means information that a person has that might be of material assistance in securing the apprehension of a person who has committed an indictable offence, or the prosecution or conviction of any such person. [s 315A insrt Act 84 of 2001 s 3 and Sch 1[13], opn 14 Dec 2001] Editor’s note: For proof material on s 315A, see [27-36,060] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 315A Summary disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[8-s 315A.1]

[8-s 315A.1] Summary disposal An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in a Local Court unless an election is made for trial on indictment, see at [2-s 260] and [2-Sch 1] Pt 3 cl 15. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267].

[8-s 316] Concealing serious indictable offence 316 (1) An adult: (a) who knows or believes that a serious indictable offence has been committed by another person, and (b) who knows or believes that he or she has information that might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for that offence, and

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s 316

CRIMES ACT 1900 (NSW) — PART 7

[8-s 316.1]

(c) who fails without reasonable excuse to bring that information to the attention of a member of the NSW Police Force or other appropriate authority, is guilty of an offence. Maximum penalty: Imprisonment for: (a) 2 years — if the maximum penalty for the serious indictable offence is not more than 10 years imprisonment, or (b) 3 years — i