Annotated criminal legislation New South Wales [2016-2017 edition.] 9780409343724, 0409343722

Table of contents :
Full Title
Copyright
Currency note
Publisher’s note
Features of this Book
Table of Cases
Table of Contents
Proceedings Before Magistrates
Criminal Procedure Act 1986
Table of Provisions
Table of Amendments
Criminal Procedure Act 1986
Criminal Procedure Regulation 2010
Table of Provisions
Table of Amendments
Criminal Procedure Regulation 2010
Crimes (Sentencing Procedure) Act 1999
Table of Provisions
Table of Amendments
Crimes (Sentencing Procedure) Act 1999
Crimes (Sentencing Procedure) Regulation 2010
Table of Provisions
Table of Amendments
Crimes (Sentencing Procedure) Regulation 2010
Trial Procedure
Trial Procedure
Crimes Act 1900
Table of Provisions
Table of Amendments
Crimes Act 1900
Crimes (Domestic and Personal Violence) Act 2007
Table of Provisions
Table of Amendments
Crimes (Domestic and Personal Violence) Act 2007
Crimes Regulation 2015
Table of Provisions
Table of Amendments
Crimes Regulation 2015
Crimes (High Risk Offenders) Act 2006
Table of Provisions
Table of Amendments
Crimes (High Risk Offenders) Act 2006
Bail Act 2013
Table of Provisions
Table of Amendments
Bail Act 2013
Drug Misuse and Trafficking Act 1985
Table of Provisions
Table of Amendments
Summary Offences Act 1988
Summary Offences Regulation 2015
Table of Provisions
Table of Amendments
Summary Offences Regulation 2015
Crimes (Forensic Procedures) Act 2000
Table of Provisions
Table of Amendments
Crimes (Forensic Procedures) Act 2000
Crimes (Forensic Procedures) Regulation 2014
Table of Provisions
Table of Amendments
Crimes (Forensic Procedures) Regulation 2014
Law Enforcement (Powers and Responsibilities) Act 2002
Table of Provisions
Table of Amendments
Law Enforcement (Powers and Responsibilities) Act 2002
Law Enforcement (Powers and Responsibilities) Regulation 2016
Table of Provisions
Table of Amendments
Law Enforcement (Powers and Responsibilities) Regulation 2016
Index

Citation preview

LEXISNEXIS ANNOTATED ACTS

ANNOTATED CRIMINAL LEGISLATION NEW SOUTH WALES 2016–2017 EDITION

Legislation current as at 8 September 2016

LEXISNEXIS ANNOTATED ACTS

ANNOTATED CRIMINAL LEGISLATION NEW SOUTH WALES

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

2016–2017 EDITION

LexisNexis Butterworths Australia 2017

AUSTRALIA

ARGENTINA AUSTRIA BRAZIL CANADA CHILE CHINA CZECH REPUBLIC FRANCE GERMANY HONG KONG HUNGARY INDIA ITALY JAPAN KOREA MALAYSIA NEW ZEALAND POLAND SINGAPORE SOUTH AFRICA SWITZERLAND TAIWAN UNITED KINGDOM USA

LexisNexis LexisNexis Butterworths 475–495 Victoria Avenue, Chatswood NSW 2067 On the internet at: www.lexisnexis.com.au LexisNexis, BUENOS AIRES LexisNexis Verlag ARD Orac GmbH & Co KG, VIENNA LexisNexis Latin America, SAO PAULO LexisNexis Canada, Markham, ONTARIO LexisNexis Chile, SANTIAGO LexisNexis China, BEIJING, SHANGHAI Nakladatelství Orac sro, PRAGUE LexisNexis SA, PARIS LexisNexis Germany, FRANKFURT LexisNexis Hong Kong, HONG KONG HVG-Orac, BUDAPEST LexisNexis, NEW DELHI Dott AGiuffrè Editore SpA, MILAN LexisNexis Japan KK, TOKYO LexisNexis, SEOUL LexisNexis Malaysia Sdn Bhd, PETALING JAYA, SELANGOR LexisNexis, WELLINGTON Wydawnictwo Prawnicze LexisNexis, WARSAW LexisNexis, SINGAPORE LexisNexis Butterworths, DURBAN Staempfli Verlag AG, BERNE LexisNexis, TAIWAN LexisNexis UK, LONDON, EDINBURGH LexisNexis Group, New York, NEW YORK LexisNexis, Miamisburg, OHIO

ISBN: 9780409343717 (pbk). 9780409343724 (ebk). © 2017 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 China. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Currency note Introduction This volume of LexisNexis Annotated Acts provides practitioners and students with a guide to criminal legislation in New South Wales. Reproduced are the Criminal Procedure Act 1986, the Criminal Procedure Regulation 2010, the Crimes (Sentencing Procedure) Act 1999, the Crimes (Sentencing Procedure) Regulation 2010, the Crimes Act 1900, the Crimes Regulation 2015, the Crimes (Domestic and Personal Violence) Act 2007, the Crimes (High Risk Offenders) Act 2006, the Bail Act 2013, the Drug Misuse and Trafficking Act 1985, the Drug Misuse and Trafficking Regulation 2011, the Summary Offences Act 1988, the Summary Offences Regulation 2015, the Crimes (Forensic Procedures) Act 2000, the Crimes (Forensic Procedures) Regulation 2014, the Law Enforcement (Powers and Responsibilities) Act 2002 and the Law Enforcement (Powers and Responsibilities) Regulation 2016 — 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 The legislation reflects the law as amended to 7 October 2016.

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 crossreferences 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.

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 2015/2016 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:

Table of Contents This table appears at page vii.

Table of Cases This table appears at page xix.

Index The index appears at page 2051.

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.

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.

Table of Cases A2; R v KM; R v Vaziri (No 2); R v [2015] NSWSC 1221; BC201511092 …. [8-s 45.5], [8-s 45A.5] — v Magennis; R v Vaziri (No 23); R v [2016] NSWSC 282; BC201601706 …. [8-s 45.10] — v Magennis; R v Vaziri (No 24); R v [2016] NSWSC 737; BC201604468 …. [5-s 76.1], [8-s 45.10] A; R v [2003] NSWCCA 157; BC200303127 …. [8-s 91D.20] AB v R [2014] NSWCCA 31; BC2014015532 …. [5-s 44.15], [5-s 53A.5] AB; R v (2011) 59 MVR 356 …. [8-s 52A.45] Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; BC201302632 …. [5-s 33.5] Abbott v Smith [1965] 2 QB 662n; [1964] 3 All ER 762 …. [11-395.5] Abboud; R v [2005] NSWCCA 251; BC200505225 …. [8-s 61.7] Abbrederis; R v [1981] 1 NSWLR 530; (1981) 36 ALR 109 …. [8-s 7.1], [8s 527C.10] Abdallah (No 3); R v [2015] NSWSC 121; BC201500937 …. [2-s 314.15] Abdullah; R v (2001) 127 A Crim R 46 …. [2-s 161.35] 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] Achurch; R v [2011] NSWCCA 186; BC201106195 …. [10-s 25.25] ACK; R v BC9601665 …. [2-s 21.15] Acuthan v Coates (1986) 6 NSWLR 472; 24 A Crim R 304 …. [2-s 65.15], [2-s 117.10] Adam; R v (1999) 106 A Crim R 510 …. [2-s 161.62] — (1999) 47 NSWLR 267 …. [7-485] Adamiczka v R (1993) 33 NSWLR 68; 71 A Crim R 291 …. [1-130], [2-s 65.10], [2-s 289.1]

Adamopoulos v Olympic Airways (1991) 25 NSWLR 75 …. [2-s 59.10] 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 (2008) 234 CLR 143; 244 ALR 270 …. [10-s 25.25] — v — [2011] NSWCCA 47; BC201101502 …. [8-s 33.20] Addison v — (1993) 70 A Crim R 213 …. [10-s 3.30], [10-s 3.45], [10-s 3.75] 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] Adler; R v (1992 unreported) …. [2-s 19.5] Adomako; R v [1995] 1 AC 171; [1994] 3 All ER 79; [1994] 3 WLR 288; 99 Cr App Rep 362 …. [8-s 18.50] AE v R [2010] NSWCCA 203; BC201006706 …. [5-s 54B.5] AEM (Snr); R v [2002] NSWCCA 58; BC200200785 …. [5-s 55.1] Agic; R v (1992 unreported) …. [10-s 29.10] AGR; R v BC9803670 …. [8-s 61I.65] AH v R [2015] NSWCCA 51; BC201502298 …. [5-s 21A.20] Ah-See v Heilpern (2000) 115 A Crim R 1 …. [2-s 281.1] Ahmad v R [2006] NSWCCA 177; BC200604022 …. [5-s 22.1] Ahmed; R v [2001] NSWCCA 450; BC200107455 …. [8-s 197.5] Ainsworth v Hanrahan (1991) 25 NSWLR 155 …. [2-s 228.10] Ainsworth; R v (1994) 76 A Crim R 127 …. [8-s 19A.1] AJB v R (2007) 169 A Crim R 32 …. [5-s 44.15], [8-s 66A.40] AJP; R v (2004) 150 A Crim R 575 …. [8-s 66A.40] Al Khair; R v BC9402671 …. [10-s 25.35], [10-s 25.45] 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] Aldridge; R v (1990) 20 NSWLR 737; 51 A Crim R 281 …. [7-495], [7-575] — (1993) 67 A Crim R 371 …. [2-s 21.1] Alexander v R (1981) 145 CLR 395; 34 ALR 289 …. [2-s 161.55]

Alexander; R v (1994) 78 A Crim R 141 …. [8-s 24.30] Alexandridis; R v [2014] NSWSC 662; BC201403896 …. [9-s 19.10] Alexandroaia; R v (1995) 81 A Crim R 286 …. [2-s 40.1], [2-s 190.1] Alford v Magee (1952) 85 CLR 437; 59 ALR 101 …. [2-s 161.1], [2-s 161.25] Ali; R v (1981) 6 A Crim R 161 …. [2-s 161.25], [2-s 161.30] Alister v R (1984) 154 CLR 404; 51 ALR 480 …. [2-s 222.30] Alla v Gleeson BC8500455 …. [21-s 206.1], [21-s 206.5], [21-s 206.10] Allan v R (No 2) [2011] NSWCCA 27; BC201100884 …. [5-s 59.5] Allan; R v (1841) 174 ER 513; Car M 295 …. [8-s 310C.1] Allen v R [2010] NSWCCA 47; BC201001303 …. [8-s 86.15] Allen; R v (1984) 16 A Crim R 441 …. [2-s 161.55] Allerton v DPP (1991) 24 NSWLR 550; 53 A Crim R 33 …. [1-230] Allison; R v (2003) 138 A Crim R 378 …. [2-s 207.1] Alliston v R [2011] NSWCCA 281; BC201110694 …. [10-s 29.15] Allitt v Sullivan [1988] VR 621 …. [21-s 48.40] Amalgamated Television Services Pty Ltd v Marsden (2001) 122 A Crim R 166 …. [2-s 202.1] Ambrosi; R v (2004) 144 A Crim R 67 …. [7-485] Anastasiou (aka Peters); R v (1991) 21 NSWLR 394; 52 A Crim R 7 …. [7405], [7-475] 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 BC8901598 …. [2-s 222.10], [2-s 227.5] Anderson; R v (2001) 127 A Crim R 116 …. [2-s 161.10] — (1983) Petty SR 2897 …. [10-s 10.25], [10-s 10.40] — (1994 unreported) …. [2-s 93.5] 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 …. [8-s 18.50], [8-s 54.5] Andrews; R v [1973] 1 QB 422 …. [8-s 319.5]

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] Annecchini; R v BC9601668 …. [2-cl 21.20] Anson v DPP (2002) 129 A Crim R 328 …. [1-055], [1-280], [2-s 6.1] Antill and Brown; R v (1863) 2 SCR (NSW) 50 …. [2-s 160.1] Antonelli; R v (1905) 70 JP 4 …. [8-s 26.20] Aoun v R [2011] NSWCCA 284; BC201110365 …. [10-s 3.45], [10-s 25.25] Apostilides v — (1984) 154 CLR 563; 53 ALR 445 …. [7-485] Appelby; R v (1940) 28 Cr App R 1 …. [8-s 58.45] Apps v R [2006] NSWCCA 290; BC200607306 …. [8-s 19A.5] ARD; R v [2000] NSWCCA 443; BC200006761 …. [8-s 319.5] Argytis v Stones (1959) AR (NSW) 145 …. [2-s 16.35] Arrowsmith v R (1994) 55 FCR 130 …. [2-s 161.20] ARS v — [2011] NSWCCA 266; BC201110713 …. [8-s 66EA.25] Asim; R v (1997) 92 A Crim R 97 …. [10-s 3.30] Asmar, Re [2005] VSC 487; BC200510874 …. [9-s 16A.10] ASP v R [2007] NSWSC 339; BC200702526 …. [5-s 44.40] Asquith; R v (1994) 72 A Crim R 250 …. [2-s 161.35] Assaad; R v [2009] NSWCCA 182; BC200906528 …. [5-s 5.1], [5-s 12.1] Assim; R v [1966] 2 QB 249; [1966] 2 All ER 881 …. [2-s 21.10] Astor v Hayes (1988) 38 A Crim R 219 …. [8-s 117.35] Atkinson v Coady BC8901561 …. [21-s 61.5] — v R [2014] NSWCCA 262; BC201410622 …. [5-s 22.1] — v Samuels (1977) 17 SASR 129 …. [11-395.5] Atkinson; R v (1970) 55 Cr App R 1 …. [8-s 52A.20] Attard; R v [1970] 1 NSWR 750 …. [2-s 31.1] — BC9301923 …. [8-s 61J.1], [8-s 98.5] Attorney -General (SA) v Brown [1960] AC 432; [1960] ALR 395 …. [2-s 160.1]

Attorney General (NSW) v Tillman [2007] NSWCA 119; BC200703909 …. [29-950.5], [29-956.5], [29-965.5] Attorney-General v Huber (1971) 2 SASR 142 …. [8-s 61L.10] — 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 (Cth) v Breckler (1999) 197 CLR 83; 163 ALR 576 …. [8s 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 Milat (1995) 37 NSWLR 370 …. [2-s 36.1] — v Stuart (1994) 34 NSWLR 667; 75 A Crim R 8 …. [1-250], [2-s 57.10], [2-s 59.5], [2-s 65.15], [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’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 …. [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 Application under s 37 Crimes (Sentencing Procedure) Act, Re (No 3 of 2002) (2004) 61 NSWLR 305; 147 A Crim R 546 …. [5-s 10.1], [5-s 37.1], [8-s 52A.45] 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] Attorney-General(NSW) v Mayas Ptd Ltd (1988) 14 NSWLR 342 …. [2-s 56.1] Aubrey; R v [2012] NSWCCA 254; BC201209323 …. [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] Avery; R v [1965] NSWR 1419 …. [2-s 31.1] Avory; Question of Law Reserved, Re (No 1 of 2003) (2003) 87 SASR 392; 143 A Crim R 514 …. [10-s 6.10] Aziz; R v [1982] 2 NSWLR 322 …. [2-s 161.55] B v Gould (1993) 67 A Crim R 297 …. [2-s 93.5] — v R (1992) 175 CLR 599; 110 ALR 432 …. [2-s 161.25] B; R v (1990) 12 MVR 540 …. [8-s 52A.5], [8-s 52A.10] — (1993) 68 A Crim R 547 …. [8-s 41.15] — (1994 unreported) …. [8-s 61I.65] BA; R v [2014] NSWCCA 148; BC201405995 …. [5-s 44.20] Baartman; R v BC9405200 …. [2-s 21.15] Bacon; R v [1973] 1 NSWLR 87 …. [1-225], [2-s 14.1], [2-s 161.12] — [1977] 2 NSWLR 507 …. [11-125.25], [11-140.5] Bagshaw v Carter [2006] NSWCA 113; BC200603245 …. [2-s 55.20] Bahsa; R v (2003) 138 A Crim R 245 …. [5-s 55.1] Bailey v Dept of Land and Water Conservation (2009) 74 NSWLR 333 …. [2-s 142.5] Bailey; R v (1907) 24 WN (NSW) 23 …. [8-s 126.10] — [1924] QWN 38 …. [8-s 117.30] Baird; R v (1985) 3 NSWLR 331 …. [8-s 7.1], [10-s 10.15], [10-s 12.1] 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] Baker; R v BC9402549 …. [8-s 19A.1] Bakewell; R v BC9602796 …. [5-s 28.1]

Baleisuva; R v [2004] NSWCCA 344; BC200406822 …. [5-s 23.1] 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] Bamford; R v [1972] 2 NSWLR 261 …. [2-s 105.1] Banditt v R (2005) 224 CLR 262; 223 ALR 633 …. [8-s 61I.5] Banner; R v [1970] VR 240 …. [8-s 310D.10] 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] Bar-Mordecai v Hillston [2003] NSWSC 1269; BC200308531 …. [8-s 338.1] Barakat; R v [2004] NSWCCA 201; BC200403884 …. [5-s 44.15] Barca v R (1975) 133 CLR 82; 7 ALR 78; 50 ALJR 108 …. [2-s 161.15] Barca; R v (1978 unreported) …. [2-s 40.1] 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] Barns v Edwards (1993) 31 NSWLR 714; 68 A Crim R 140 …. [1-010] Barrass; R v [2005] NSWCCA 131; BC200502092 …. [8-s 61O.3], [8-s 61L.10] Barrington v Austin [1939] SASR 130 …. [21-s 206.10] Barrom v Valdmanis [1978] ACLD 374 …. [10-s 10.35], [10-s 43.1] Barron v A-G (NSW) (1987) 10 NSWLR 215 …. [2-s 8.10], [2-s 57.1] Barron; R v [1914] 2 KB 570 …. [2-s 193.5] Bartalesi; R v (1997) 41 NSWLR 641; 93 A Crim R 274 …. [1-120], [2-s 258.1], [7-010] Bartho v R (1978) 19 ALR 418; 52 ALJR 520 …. [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], [2-s 57.1], [7-220] Barton; R v (2001) 121 A Crim R 185 …. [5-s 33.5]

— [2004] NSWCCA 229; BC200404319 …. [2-s 21.15] Basha; R v (1989) 39 A Crim R 337 …. [1-200], [2-s 8.10], [2-s 57.1], [2-s 59.15], [7-220], [7-225], [7-485] Basto v R (1954) 91 CLR 628; 28 ALJR 519 …. [2-s 161.30], [8-s 27.45], [8-s 27.1], [8-s 39.35], [8-s 41.35] Bateman; R v [1925] All ER 45; 94 LJKB 791; 133 LT 730; 41 TLR 557; 19 Cr App Rep 8 …. [8-s 18.50], [8-s 54.5] Batiste; R v (1994) 35 NSWLR 437; 77 A Crim R 266 …. [2-s 36.1] Bavadra; R v (2000) 115 A Crim R 152 …. [5-s 33.1], [5-s 55.1] Bazley; R v (1989) 9 Petty SR 4136 …. [10-s 10.25] BD; R v (1997) 94 A Crim R 131 …. [8-s 61I.10] — (2001) 122 A Crim R 28 …. [10-s 6.10] Beavan v R (1954) 92 CLR 660; [1954] ALR 775 …. [2-s 161.20], [8-s 18.25] Beavan; R v (1952) 69 WN (NSW) 140 …. [2-s 21.15] Beckett; R v (2015) 325 ALR 385; 90 ALJR 1 …. [8-s 312.5], [8-s 319.5] Beckwith v R (1976) 135 CLR 569; 12 ALR 333; 51 ALJR 247 …. [8-s 7.1] Beckwith; R v [1976] 1 NSWLR 511 …. [8-s 7.1] Beeby; R v (1999) 104 A Crim R 142 …. [2-s 153.1], [7-170] Beech; R v (1912) 7 Cr App R 197 …. [8-s 18.15] Behman v R [2014] NSWCCA 239; BC201409192 …. [5-s 53A.5] Beissel; R v (1996) 89 A Crim R 210 …. [5-s 10.1] Belghar; R v [2012] NSWCCA 86; BC201202863 …. [2-s 132.1] 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] Bell; R v (1985) 2 NSWLR 466 …. [5-s 61.1] Bellamy; R v (1981) 3 A Crim R 432 …. [8-s 188.25] — BC9301860 …. [8-s 94.10] Bellchambers v R [2008] NSWCCA 235; BC200809092 …. [8-s 428B.1] — v — [2011] NSWCCA 131; BC201104171 …. [5-s 44.15], [8-s 61I.65] Bellino v Clair [1993] 2 Qd R 236; (1992) 63 A Crim R 346 …. [2-s 160.1] Bellino and Conte; R v [1993] 1 Qd R 521; (1992) 59 A Crim R 323 …. [7-

485] Bellman; R v [1989] AC 836; (1989) 88 Cr App R 252 …. [2-s 16.10], [2-s 21.5] 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] Bennie; R v [1953] VLR 583 …. [8-s 125.15] Benns v Judd (1992) 58 SASR 295 …. [5-s 12.1] Berg; R v (2004) 41 MVR 399 …. [8-s 52A.45] Bergin; R v (1984 unreported) …. [10-s 43.1] Bernhard; R v [1938] 2 KB 264 …. [8-s 117.35] Bernthaler; R v BC9302364 …. [2-s 293.1] Berrigan v R [1995] 20 Leg Rep C2c …. [2-s 293.1] Berrigan; R v (1994 unreported) …. [2-s 293.1] Berwin v Donohue (1915) 21 CLR 1; [1915] HCA 79 …. [2-s 14.1] Beserick; R v (1993) 30 NSWLR 510; 66 A Crim R 419 …. [2-s 293.1], [8-s 61I.1], [8-s 61Q.1], [8-s 61L.10] Besim; R v (2004) 148 A Crim R 28 …. [8-s 18.55] Beveridge v R [2011] NSWCCA 249; BC201109100 …. [5-s 54B.5] Beydoun; R v (1990) 22 NSWLR 256; (1990) 51 A Crim R 89 …. [8-s 192B.15], [8-s 192E.20] Bielaczek; R v BC9202765 …. [5-s 21.1] Bignell, Ex parte (1915) 32 WN (NSW) 91 …. [2-s 16.15] Bikhit v R [2007] NSWCCA 202; BC200705470 …. [5-s 10A.1] Bikic; R v (2000) 112 A Crim R 300 …. [2-s 21.15] Bilick; R v (1984) 36 SASR 321; 11 A Crim R 452 …. [2-s 202.1], [7-525], [7-530] Billing v Pill [1954] 1 QB 70 …. [8-s 117.15] Bingapore; R v (1975) 11 SASR 469 …. [8-s 18.15] Bircham; R v [1972] Crim LR 430 …. [2-s 160.1] 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 …. [7-805], [2-s 161.12] Black; R v (1983) 35 SASR 261; (1984) ACLD 113 …. [10-s 3.25] — [1963] WLR 1311 …. [2-s 160.1] — BC9805277 …. [8-s 52A.45] Blacklidge; R v BC9501665 …. [8-s 24.30] Blackman; R v [2001] NSWCCA 121; BC200102144 …. [5-s 12.1] Blackwell v R (2011) 208 A Crim R 392 …. [8-s 4A.5], [8-s 35.5] — v — [2012] NSWCCA 227; BC201208964 …. [5-s 22.1] Blackwell; R v (1996) 186 LSJS 336; 87 A Crim R 289 …. [10-s 25.50] Blair; R v (1985) 1 NSWLR 584 …. [2-s 19.5], [2-s 193.5] — (2005) 152 A Crim R 462 …. [10-s 3.30] Blakeney; R v BC9403425 …. [8-s 39.20] Blanch v Deputy Commissioner of Taxation (2004) 58 ATR 113 …. [2-s 228.10] Blanco; R v (1987 unreported) …. [10-s 25.25] Blaue; R v [1975] 1 WLR 1411 …. [8-s 18.15] 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] Blinkhorn; R v (1994) 32 NSWLR 706 …. [8-s 310G.5] Blondin (1971) 2 CCC(2d) 118 …. [10-s 10.15] Bloxham; R v (1943) 29 Cr App R 37 …. [8-s 117.20] Bluett, Ex parte; Re Nyngan Municipal Council (1929) 9 LGR 72; 46 WN (NSW) 120 …. [2-s 16.15] Boag v R (1994) 73 A Crim R 35 …. [2-s 207.1] Boatswain; R v (1993 unreported) …. [8-s 61I.65] Boden; R v (1844) 1 Car & Kir 395 …. [8-s 117.35] Boehner; R v (1978 unreported) …. [10-s 10.35] Bogacki; R v [1973] 1 QB 832 …. [8-s 154A.5] Bolduc and Bird; R v (1967) 61 DLR (2d) 494 …. [8-s 61L.10] Bollen; R v (1998) 99 A Crim R 510 …. [5-s 28.5]

Bollmeyer v Daly [1933] SASR 295 …. [8-s 154A.10] Bolt v R [2012] NSWCCA 50; BC201202118 …. [5-s 54B.5] Bolton v Dance [1968] VR 631 …. [11-155.1] Bolton; R v (1981 unreported) …. [8-s 53.5] Bond v R (1990) 48 A Crim R 1 …. [5-s 23.1] Bond; R v BC9603728 …. [2-s 293.1] Bonora; R v (1994) 35 NSWLR 74 …. [8-s 58.5], [8-s 61L.10] Bonsu v R [2009] NSWCCA 316; BC200912221 …. [5-s 8.10] Bonwick v — [2010] NSWCCA 177; BC201006385 …. [5-s 54B.5] Booth Pty Ltd v Barlett (1956) AR (NSW) 720 …. [2-s 16.15] Booth; R v [1982] 2 NSWLR 847; (1982) 8 A Crim R 81 …. [7-485] — [2014] NSWCCA 156; BC201406807 …. [5-s 55.1] Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 …. [2-s 11.1] Borkowski; R v (2009) 52 MVR 528; 195 A Crim R 1 …. [5-s 22.1], [8-s 18.55], [8-s 24.30] Borodin v R [2006] NSWCCA 83; BC200601917 …. [2-s 21.1] Boston; R v (1923) 33 CLR 386; 30 ALR 185 …. [2-s 17.5] Botany Bay Instrumentation and Control Pty Ltd v Stewart [1984] 3 NSWLR 98 …. [2-s 227.1] Bouch; R v (1983) 76 Cr App R 11 …. [8-s 28.1] Boughen; R v [2012] NSWCCA 17; BC201200777 …. [5-s 7.5] 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 61L.10], [8-s 93G.10], [8-s 193H.5] Boujaoude v — [2008] NSWCCA 35; BC200801070 …. [10-s 25.23] Bourchas; R v (2002) 133 A Crim R 413 …. [5-s 23.1] Bourke v R (2010) 199 A Crim R 38 …. [5-s 21A.15], [8-s 33.3], [8-s 33.20] Bourne; R v (1952) 36 Cr App Rep 125 …. [8-s 79.1], [8-s 351B.5] Bowden; R v (1981) 7 A Crim R 378 …. [8-s 110.5] Bowen; R v [1997] 2 Qd R 379 …. [5-s 12.5] Bowman, Ex parte (1866) 6 SCR (NSW) 15 …. [8-s 131.15] Boyle; R v [1954] 2 QB 292 …. [7-150] Bradley; R v BC9302270 …. [8-s 94.20]

Bradshaw v R BC9701944 …. [7-485] Brady v Schatzel [1911] St R Qd 206 …. [8-s 58.5] Brady; R v (1980) 2 A Crim R 42; Petty Sessions Review 2199 …. [10-s 12.1] Braithwaite v R [2005] NSWCCA 451; BC200511164 …. [5-s 12.1], [10-s 25.25] Brandt; R v (2004) 42 MVR 262 …. [5-s 33.1] Brebner v Seager [1926] VLR 166 …. [8-s 527C.1] Breen; R v (1990) 99 FLR 474; 47 A Crim R 298 …. [7-105] Brenner; R v [1990] Tas R 131 …. [8-s 117.55] Brett; R v [2004] NSWCCA 372; BC200407211 …. [5-s 22.1] Brewer (No 1); R v [2015] NSWSC 1471; BC201509713 …. [2-s 314.15] Briggs; R v (1987) 24 A Crim R 98 …. [7-525] Brindley v R (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] Broadbent; R v [1964] VR 733 …. [2-s 153.1] Broadfoot; R v [1976] 3 All ER 753 …. [8-s 91A.5] 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] Brotherton v R (1992) 29 NSWLR 95; 65 A Crim R 301 …. [2-s 161.35], [2s 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 (1986) 160 CLR 171; 64 ALR 161 …. [7-200] — v Robinson (1959) 60 SR (NSW) 297; 76 WN (NSW) 758 …. [2-s 193.5] Brown; R v (1883) 10 QBD 381 …. [8-s 30.1] — (1982) 79 FLR 148 …. [8-s 24.15] — (1987) 78 ALR 368; 32 A Crim R 162 …. [2-s 161.30] — (1989) 17 NSWLR 472; 44 A Crim R 385 …. [7-001], [2-s 153.1], [2-s 8.10] — [1993] 2 WLR 556 …. [8-s 59.5]

— [1994] 1 AC 212 …. [8-s 58.5] — [2009] NSWCCA 6; BC200901586 …. [5-s 11.1] — [2012] NSWCCA 199; BC201207329 …. [5-s 53.5], [5-s 53A.5] Browne v Dunn (1893) 6 R 67 …. [2-s 150.5] — v Dunne: Khamis v R [2010] NSWCCA 179; BC20105950 …. [7-555] Browne; R v (1987) 30 A Crim R 278 …. [7-495], [7-575], [8-s 351.15] Brownlee v R (2001) 207 CLR 278; 108 ALR 301 …. [2-s 131.1] Brownlowe; R v (1986) 7 NSWLR 461; 24 A Crim R 377 …. [2-s 161.55] Bruce v R (1987) 74 ALR 219 …. [8-s 188.25] Brutus v Cozens [1973] AC 854; [1972] 2 All ER 1297 …. [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] Buchanan; R v [1966] VR 9 …. [8-s 52A.35] Buckett; R v (1995) 132 ALR 669; 79 A Crim R 303 …. [8-s 117.35], [8-s 351.15] Buckley; R v [1979] Crim LR 665 …. [10-s 3.30] Buckman v R [2013] NSWCCA 258 …. [10-s 25.20] Bugmy v — (1990) 169 CLR 525; 92 ALR 552 …. [5-s 44.10] Bugmy; R v [2004] NSWCCA 258; BC200404869 …. [5-s 95.1] Bui v R [2008] NSWCCA 297; BC200811261 …. [10-s 23A.5] Bungie v — [2015] NSWCCA 9; BC201500543 …. [5-s 43.1] Burgess; R v (1862) L C 258 …. [8-s 30.1] — (2005) 152 A Crim R 100 …. [8-s 418.1] Burke; R v [1993] 1 Qd R 166; (1991) 56 A Crim R 242 …. [2-s 36.1], [7405] — [2002] NSWCCA 353; BC200205003 …. [5-s 23.1] Burnard; R v [2009] NSWCCA 5; BC200900762 …. [5-s 12.1] Burnett, Ex parte; Re Wicks [1968] 2 NSWR 119 …. [2-s 16.35] Burnett; R v (1996) 85 A Crim R 76 …. [8-s 52A.45] Burns v Barnett (1993 unreported) …. [2-s 65.15] — v R (2012) 290 ALR 713 …. [8-s 18.50], [8-s 18.55] Burns; R v (1920) 20 SR (NSW) 351; 37 WN (NSW) 77 …. [2-s 16.30], [2-s

21.1] — (2011) 205 A Crim R 240 …. [8-s 39.7] Burrell v R (2009) 196 A Crim R 199 …. [2-s 161.15] Burton; R v [2008] NSWCCA 128; BC200804752 …. [8-s 323.20] BUSB v Director-General of Security [2011] NSWCA 49; BC201101463 …. [7-490] Bush v R (1993) 43 FCR 549; 115 ALR 654 …. [7-495] Buswell; R v [1972] 1 All ER 75 …. [8-s 7.1] Butcher; R v [1986] VR 43; (1985) 16 A Crim R 1 …. [8-s 18.15] Butler v R [2012] NSWCCA 23; BC201201623 …. [5-s 54B.5] Butler; R v (1991) 24 NSWLR 66; 56 A Crim R 231 …. [2-s 8.10], [2-s 65.10], [7-001], [7-010], [7-220] Buttle; R v (1960) SR (NSW) 320; (1959) 77 WN (NSW) 154 …. [8-s 117.20], [8-s 126.10] Buttsworth; R v [1983] 1 NSWLR 658 …. [8-s 52A.15] BWM; R v (1997) 91 A Crim R 260 …. [2-s 153.1] BWT; R v (2002) 54 NSWLR 241; 129 A Crim R 153 …. [2-s 161.45] Byrne; R v (1998) 104 A Crim R 456 …. [5-s 6.1] — [1960] 2 QB 396 …. [8-s 23A.1] C v R (1993) 67A Crim R 562 …. [2-s 56.1] C-P v — [2009] NSWCCA 291; BC200911181 …. [5-s 33.1] Cacciola; R v (1998) 104 A Crim R 178 …. [10-s 25.25] Cahill; R v [2015] NSWCCA 53; BC201502231 …. [10-s 25.25] Cahyadi v R (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] Caine; R v (1990) 48 A Crim R 464 …. [7-640] Cakovski; R v (2004) 149 A Crim R 21 …. [8-s 58.35] Calderoni; R v [2000] NSWCCA 511; BC200007790 …. [5-s 23.1] Callaghan v R (2006) 160 A Crim R 145 …. [5-s 47.1] Callaghan; R v [1994] 2 Qd R 300; (1993) 70 A Crim R 350 …. [2-s 160.1] 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] Camberwell Green Stipendiary Magistrate; Ex parte Christie; R v [1978] QB 602; 2 All ER 377 …. [2-s 55.5] Cameron; R v (1924) 24 SR (NSW) 302 …. [8-s 117.10] — (2002) 209 CLR 339; 187 ALR 65 …. [5-s 22.1] — (2005) 157 A Crim R 70 …. [8-s 24.30] — [1983] 2 NSWLR 66; (1983) 8 A Crim R 466 …. [2-s 161.20], [2-s 162.1], [8-s 61Q.1], [8-s 61I.85] Camp, Appeal of [1975] 1 NSWLR 452 …. [11-125.15] Campbell v R (1980) 2 A Crim R 157 …. [8-s 18.15] Campbell; R v [2004] NSWCCA 314; BC200406256 …. [8-s 121.5] — [2005] NSWCCA 132; BC200502032 …. [2-s 161.62] 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] Cardoso; R v (2003) 137 A Crim R 535 …. [5-s 22.1] Carew v Carone (1991) 5 WAR 1 …. [7-485] Carey; R v (1990) 20 NSWLR 292; 50 A Crim R 163 …. [10-s 3.30], [10-s 29.5] Carlairs; R v (1925) 25 SR (NSW) 515 …. [7-525] Carlin v Thawat Chidkhunthod (1985) 4 NSWLR 182; 20 A Crim R 332 …. [2-s 62.5] Carlton v R (2010) 199 A Crim R 591 …. [21-s 108E.5] Carney and Cambey v — [2011] NSWCCA 223; BC201108760 …. [8-s 18.25] Carr v — (1988) 165 CLR 314; 81 ALR 236 …. [2-s 161.40] Carr-Briant; R v [1943] KB 607 …. [11-125.25] Carr; R v [1972] 1 NSWLR 608 …. [21-s 133.3] — BC9001863 …. [8-s 58.5] Carrol; R v [1975] 2 NZLR 474 …. [11-230.10] 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] Carroll; R v (2010) 267 ALR 57 …. [8-s 24.30] Carruthers; R v (2008) 50 MVR 29; 182 A Crim R 481 …. [8-s 52A.45] Carter v Managing Partner, Northmore Hale Davy and Leake (1995) 183 CLR 121; 129 ALR 593 …. [2-s 222.20.5] Carter; R v (1978) 4 Petty SR 1859 …. [8-s 527C.10] — [2003] NSWCCA 243; BC200305119 …. [5-s 44.15] Cartwright; R v (1989) 17 NSWLR 243 …. [5-s 23.1] Carusi v R (1990) 64 ALJR 657 …. [10-s 3.30], [10-s 26.1] Carusi; R v (1989) 17 NSWLR 516 …. [10-s 3.30], [10-s 26.1] Carver v Law Society of New South Wales (1998) 43 NSWLR 71 …. [1015] Cassaniti v Croucher (2000) 48 NSWLR 623; 175 ALR 113 …. [21-s 48.15], [21-s 48.20], [21-s 60.1] Cassell; R v BC9607104 …. [2-s 11.1] Castle v Olen (1985) 3 NSWLR 26 …. [10-s 3.35], [10-s 27.5] Catalano; R v (1992) 107 FLR 31; 61 A Crim R 323 …. [2-s 19.5] Cato; R v [1976] 1 All ER 260; [1976] 1 WLR 110 …. [8-s 18.15], [8-s 18.50] Catt; R v (1993) 68 A Crim R 189 …. [7-495] Cattell v Rolfe (1993-94) 1 NSWCR 49 …. [21-s 134.1] CC v R [2010] NSWCCA 337; BC201010020 …. [2-s 161.1] CDH; R v [2002] NSWCCA 103; BC200201373 …. [5-s 22.1] Ceissman; R v (2001) 160 FLR 252; 119 A Crim R 535 …. [8-s 97.20] CES v Superclinics (Aust) Pty Ltd (1995) 38 NSWLR 47 …. [8-s 84.5] Chai; R v (1992) 27 NSWLR 153; 60 A Crim R 305 …. [2-s 32.5], [2-s 161.40] — (2002) 187 ALR 436; 76 ALJR 628 …. [2-s 161.1] — [2000] NSWCCA 320; BC200005097 …. [8-s 18.55] Challita; R v (1988) 37 A Crim R 175 …. [2-cl 21.5], [10-s 26.1] Chamberlain v R (No 2) (1984) 153 CLR 521; 51 ALR 225; 58 ALJR 133 …. [2-s 161.10], [2-s 161.15] Champion v R (1992) 64 A Crim R 244 …. [5-s 98.1]

Chan-Fook; R v [1994] 1 WLR 691 …. [8-s 59.5] Chan; R v (1992) 28 NSWLR 421 …. [8-s 527C.10], [8-s 527C.25] — [1999] NSWCCA 103; BC9901998 …. [10-s 25.25] Chandler; R v [1913] 1 KB 125 …. [8-s 112.5] Chant; R v [2009] NSWSC 290; BC200902937 …. [5-s 10A.1] Chaplin v R (2006) 160 A Crim R 85 …. [8-s 86.15] Chapman v Gentle (1987) 28 A Crim R 29 …. [2-s 91.10], [2-s 93.5] — v R [2013] NSWCCA 91; BC201302135 …. [10-s 25.1] Charara v — (2006) 164 A Crim R 39 …. [1-510] Charles; R v [1977] AC 177 …. [8-s 192B.15], [8-s 192E.20] — BC9800880 …. [8-s 319.5] Charlton; R v [1972] VR 758 …. [7-485] Chatwood; R v [1980] Crim LR 46 …. [10-s 12.1] Chatzidimitriou; R v (2000) 1 VR 493; 112 A Crim R 95 …. [2-s 161.10] Cheatle v R (1993) 177 CLR 541; 116 ALR 1 …. [7-810] Checconi; R v (1988) 34 A Crim R 160 …. [2-cl 21.5], [2-s 32.5], [2-s 161.25], [2-s 161.40] Cheikh; R v Hoete; R v [2004] NSWCCA 448; BC200408756 …. [5-s 22.1] Cheney v R (1991) 28 FCR 103; 99 ALR 360 …. [7-575] Chhay; R v (1994) 72 A Crim R 1; (1995) 19 Crim LJ 37 …. [8-s 23.3] Chief Executive Officer of Customs v Au (2005) 153 A Crim R 21 …. [2-s 208.5] Chin; R v (1985) 157 CLR 671; 59 ALR 1 …. [7-495] Chiron; R v [1980] 1 NSWLR 218 …. [2-s 207.1], [7-170] Chisari; R v [2006] NSWCCA 19; BC200601106 …. [5-s 21A.1] Chong; R v [2003] NSWCCA 274; BC200305650 …. [5-s 44.5] Chonka; R v [2000] NSWCCA 466; BC200006758 …. [8-s 61O.3] Chow; R v (1987) 11 NSWLR 561 …. [10-s 3.30], [10-s 26.1] Christie v Leachinsky [1947] AC 573; [1947] 1 All ER 567 …. [21-s 99.15] Christoff; R v (2003) 38 MVR 218; 140 A Crim R 45 …. [5-s 44.15], [8-s 52A.15] Church v R [2012] NSWCCA 149; BC201205031 …. [8-s 319.15]

Church; R v [1966] 1 QB 59 …. [8-s 18.1], [8-s 18.55] Cicekdag; R v (2004) 150 A Crim R 299 …. [5-s 8.10], [5-s 55.1] Cincotta; R v BC9501631 BC9501631 BC9501631 …. [2-s 207.1] City of London Coroner; Ex parte Barber; R v [1975] 1 WLR 1310 …. [8-s 31C.5] CJ v R [2012] NSWCCA 258; BC201209878 …. [2-s 133.1] CL v DPP (NSW) [2011] NSWSC 943; BC201106872 …. [2-s 281.1] Clarence; R v (1888) 22 QBD 23 …. [8-s 58.5] Clark v R [2008] NSWCCA 122; BC200803971 …. [2-s 294A.5] — v Ryan (1960) 103 CLR 486; [1960] ALR 524 …. [10-s 12.1] Clarke; R v (1993) 71 A Crim R 58 …. [2-s 21.1], [2-s 161.55] — (1995) 78 A Crim R 226 …. [2-s 161.15], [8-s 121.5] — (1997) 97 A Crim R 414 …. [2-s 161.55] — (1990 unreported) …. [10-s 25.25] — [2013] NSWCCA 260; BC201314803 …. [5-s 53A.5] Clarkson v DPP (Vic) [1990] VR 745 …. [7-485] Clarkson; R v [1987] VR 962; (1987) 25 A Crim R 277 …. [7-105], [8-s 192B.15], [8-s 192E.20] Clayton v John L Pty Ltd [1984] 1 NSWLR 344 …. [2-s 11.1] Clayton; R v (1997) 42 NSWLR 268 …. [5-s 58.1] Clear; R v [1968] 2 WLR 122 …. [8-s 99.10] Cleary v Booth [1893] 1 QB 465 …. [8-s 58.10] — 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; (2001) FCA 1858 …. [21-s 48.40] Clixby v Weston (1988) 15 NSWLR 35; 83 ALR 485 …. [8-s 154A.15] Clogher; R v [1999] NSWCCA 397; BC9908862 …. [8-s 192G.20] Close v R (1992) 31 NSWLR 743; 65 A Crim R 55 …. [5-s 44.15]

Clough; R v (1992) 28 NSWLR 396; 64 A Crim R 451 …. [2-s 161.40] Clout; R v (1995) 41 NSWLR 312 …. [2-s 161.55] Clyne v A-G (Cth) (1984) 12 A Crim R 378 …. [7-005] Cogan; R v [1976] QB 217; [1975] 2 All ER 1059 …. [8-s 351B.5] Colbourn, In the Appeal of (1977 unreported) …. [10-s 3.1] Colby; R v (1995) 84 A Crim R 125 …. [2-s 65.15], [2-s 91.15], [2-s 93.5], [2-s 93.10] Cole; R v [1965] 2 QB 388; [1965] 2 All ER 29; [1965] 3 WLR 263; 49 Cr App Rep 199 …. [2-s 153.1] Coleman v DPP (2000) 49 NSWLR 371 …. [11-410.5] Coleman; R v (1990) 19 NSWLR 467; 47 A Crim R 306 …. [2-s 161.63], [8s 4A.5], [8-s 18.1] — (1991) 56 A Crim R 369 …. [10-s 25.25] Coles; R v [1984] 1 NSWLR 726; (1984) 9 A Crim R 419 …. [10-s 3.30] Collet; R v (1979 unreported) …. [8-s 86.1] 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] Colling; R v (1847) 2 Cox CC 184 …. [7-105] 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] Collins; R v [1973] QB 100; [1972] 2 All ER 1105 …. [8-s 111.5], [8-s 112.5] Colosimo v DPP (2005) 64 NSWLR 645; 155 A Crim R 573 …. [8-s 93C.10] — v — [2006] NSWCA 293; BC200609029 …. [8-s 93C.10] 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 for Railways (NSW) v Young (1962) 106 CLR 535 …. [10-s 43.1] 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 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], [11540.15] — v Wilson [1984] AC 242 …. [8-s 58.5] Commissioner of Police (NSW) v Folkes [2015] NSWSC 1887; BC201512199 …. [11-535.5], [11-540.15] 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] Comptroller of Customs; R v [1899] 1 QB 909 …. [7-105] Condon; R v (1995) 83 A Crim R 335 …. [2-s 161.1], [2-s 161.25] Coney; R v (1882) 8 QBD 534 …. [8-s 58.5] Conlon; R v (1993) 69 A Crim R 92; (1995) 19 Crim LJ 44 …. [8-s 58.20], [8-s 418.1] Connelly v DPP (UK) [1964] AC 1254; [1964] 2 All ER 401 …. [2-s 193.5] Conners v Craigie (1994) 76 A Crim R 502 …. [11-125.20], [11-125.25] — v — (1993-94) 1 NSWCR 69 …. [11-125.20] Connolly v Willis [1984] 1 NSWLR 373 …. [11-125.20] Connor v Sankey [1976] 2 NSWLR 570; (1976) 21 ALR 317 …. [2-s 65.15] Considine v Kirkpatrick [1971] SASR 73 …. [8-s 4.5], [11-230.10] Consolidated Press Ltd, Ex parte; Re Harris (1961) 78 WN (NSW) 261 …. [2-s 16.35] Cook; R v BC9002472 …. [2-s 21.1] Cooke v Purcell (1988) 14 NSWLR 51; 91 FLR 350 …. [2-s 19.5]

Coomer; R v (1989) 40 A Crim R 417 …. [8-s 18.55] Cooper v Shield [1971] 2 QB 334; 2 All ER 917 …. [11-125.10] Cooper; R v (1979) 69 Cr App Rep 229 …. [2-s 150.1] — BC9800322 …. [2-s 21.10] Corbett v NSW [2006] NSWCA 138; BC200604217 …. [21-s 60.1] Corbishley, Ex parte; Re Locke [1967] 2 NSWR 547; (1967) 67 SR (NSW) 396; 86 WN (Pt 2) (NSW) 215 …. [2-s 202.30] 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 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 347; BC200711457 …. [29-950.5] Cosgrove; R v (1988) 34 A Crim R 299 …. [2-s 161.25] Costi; R v (1987) 48 SASR 269 …. [2-s 160.1] Cotterill; R v (1993 unreported) …. [10-s 43.5] Coulter v R (1987) 61 ALJR 537 …. [8-s 59.10] Coulter; R v [1914] 31 WN (NSW) 21 …. [2-s 31.1] Court; R v [1989] AC 28; [1988] 2 All ER 221 …. [8-s 61L.10] Courtney-Smith (No 2); R v (1990) 48 A Crim R 49 …. [2-s 161.25] Cousens, Ex parte; Re Blacket (1946) 47 SR (NSW) 145; 63 WN (NSW) 228 …. [1-200], [2-s 65.15] Coventry v R (1938) 59 CLR 633 …. [8-s 52A.45] Cox v Riley (1986) 83 Cr App R 54 …. [8-s 195.5] — v Salt (1994) 12 WAR 12 …. [2-s 202.1] Cox; R v (1818) R R 362 …. [8-s 33.5] — [1960] VR 665 …. [2-s 40.1] CPK; R v BC9504846 …. [7-485] Crabbe v R (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; R v (1880) 5 QBD 307 …. [8-s 39.5]

— (1999) 30 MVR 9; 110 A Crim R 198 …. [8-s 18.62] — [2004] NSWCCA 264; BC200404883 …. [5-s 21A.1], [5-s 44.15] Crampton v R (2000) 206 CLR 161; 176 ALR 369 …. [2-s 161.40] Crawford; R v [1989] 2 Qd R 443; (1988) 36 A Crim R 182 …. [2-s 17.1] Crichton v Victorian Dairies Ltd (1965) VR 49 …. [2-s 14.1] Crisologo; R v (1997) 99 A Crim R 178 …. [2-s 161.20], [2-s 162.1], [8-s 61I.65] Croaker; R v [2004] NSWCCA 470; BC200409024 …. [5-s 12.1] Croft; R v (1933) 50 WN(NSW) 56 …. [7-640] Crombie; R v [1999] NSWCCA 297; BC9906339 …. [10-s 25.25] Cross v R (No 2) [2012] NSWCCA 234; BC201209055 …. [5-s 50.1] Cross; R v (1995) 84 A Crim R 242 …. [8-s 188.25] 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] Crotty; R v (1993) 1 NSWCR 71 …. [8-s 94.20] Crowe v Graham (1968) 121 CLR 375; [1968] ALR 524 …. [11-135.5] Crowe; R v [2016] NSWCCA 39; BC201601466 …. [5-s 3A.1] Crowley; R v (1963) 82 WN (Pt 1) (NSW) 238 …. [8-s 117.5] Cruse; R v (1838) 8 C P 541 …. [8-s 27.15] CTM v R (2007) 171 A Crim R 371 …. [8-s 66D.10] — v — (2008) 247 ALR 1; 82 ALJR 978 …. [8-s 66C.10] Cullen v Meckelenburg [1977] WAR 1 …. [11-135.5] — v R [2014] NSWCCA 162; BC201406584 …. [5-s 53A.5] Cumberland v DPP BC9606848 …. [2-s 212.5] Cunliffe, Ex parte (1871) 10 SCR (NSW) 250 …. [2-s 16.35] CWW; R v (1993) 32 NSWLR 348; 70 A Crim R 517 …. [10-s 23.30] Czako v R [2015] NSWCCA 202; BC201507195 …. [10-s 25.45] D’Arrigo; R v [1994] 1 Qd R 603; (1991) 58 A Crim R 71 …. [2-s 32.5] D; R v [1984] 3 NSWLR 29 …. [8-s 54.5], [8-s 212.10] Da Silva v R [2016] NSWCCA 40; BC201605196 …. [2-s 30.1] DAC v — [2006] NSWCCA 265; BC200606707 …. [5-s 54B.1]

Dairy Farmers Co-operative Milk Co Ltd v Acquilina (1963) 109 CLR 458; [1964] ALR 333; (1963) 37 ALJR 308 …. [2-s 59.10] Dalby; R v [1982] 1 WLR 425; 1 All ER 916 …. [10-s 3.30], [10-s 13.10] Dale v DPP [2009] VSCA 212; BC200908579 …. [9-s 19.10] Dale; R v (1852) 6 Cox CC 14 …. [8-s 27.1] Daley; R v (1879) 12 SCR (NSW) 151 …. [8-s 117.15] Dallison v Caffery [1965] 1 QB 348; [1964] 2 All ER 610 …. [7-485] Damic; R v [1982] 2 NSWLR 750; (1982) 6 A Crim R 35 …. [7-485] Dang v R [2013] NSWCCA 246; BC201314491 …. [10-s 24.40] Dang; R v [1999] NSWCCA 42; BC9901567 …. [8-s 19A.1], [8-s 24.30], [8-s 52A.45] — [2005] NSWCCA 430; BC200510784 …. [10-s 25.25] Danial v R [2008] NSWCCA 15; BC200800416 …. [5-s 22.1] Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543; 192 ALR 561 …. [2-s 222.20.5] Dann; R v [2000] NSWCCA 185; BC200002589 …. [8-s 61I.48] Darby v DPP (2004) 61 NSWLR 558; 150 A Crim R 314 …. [21-s 21.1] Darby; R v (1982) 148 CLR 668; 40 ALR 594; 56 ALJR 688 …. [2-cl 21.5], [2-s 21.15] 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] Darling; R v (1884) 5 LR (NSW) 405; 1 WN 74 …. [8-s 56.10] — [1974] 2 NSWLR 542 …. [11-140.5] Dasilva; R v [2015] NSWSC 1909; BC201513520 …. [2-s 30.1] Davenport; R v [1954] 1 All ER 602 …. [8-s 157.10] David and Gugea; R v (1995 unreported) …. [10-s 25.45] Davidson v R (2009) 75 NSWLR 150; 195 A Crim R 406 …. [2-s 161.15] Davidson; R v [1969] VR 667 …. [8-s 84.5] Davies and Cody v R [1937] VLR 205; 43 ALR 321; 57 CLR 170 …. [2-s 161.55] Davies; R v (1973) 7 SASR 375 …. [8-s 327.10] — (1993) 19 MVR 481 …. [2-s 207.1]

— [1970] VR 27 …. [8-s 117.10], [8-s 117.20] 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 (1991) 103 ALR 417; 66 ALJR 22 …. [10-s 19.1] — v — (1991) 66 ALJR 22 …. [10-s 27.1] — v — (1998) 73 ALJR 139; 20 Leg Rep C 19c …. [8-s 23.3] — v — [2006] NSWCCA 392; BC200610292 …. [8-s 86.2] Davis; R v (1998) 100 A Crim R 573 …. [8-s 23.3] — [1968] 1 QB 72 …. [8-s 31C.5] — [1999] NSWCCA 15; BC9900945 …. [2-s 161.1] — [2004] NSWCCA 298; BC200406330 …. [8-s 61I.48] Dawson v R (1961) 106 CLR 1; [1962] ALR 365 …. [2-s 161.10] Dawson; R v (1985) 81 Cr App Rep 150 …. [8-s 18.55] Day v R (1984) 153 CLR 475; 51 ALR 353 …. [8-s 310D.10] — v Rugala [1978] 33 FLR 208 …. [2-s 11.1] DBG; R v (2002) 133 A Crim R 227 …. [2-s 306X.1], [2-s 306ZI.1] De Campos v R [2006] NSWCCA 51; BC200601099 …. [5-s 23.1] De Cressac; R v (1985) 1 NSWLR 381 …. [2-s 161.55] De Gruchy v R (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 Leeuw; R v [2015] NSWCCA 183; BC201506248 …. [8-s 91H.1] 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 Simoni; R v (1981) 147 CLR 383; 35 ALR 265 …. [2-s 153.1], [10-s 25A.5] De Souza; R v (1997) 41 NSWLR 656; 95 A Crim R 1 …. [8-s 23A.1] De Varda v Constable Stengord [2011] NSWSC 868 …. [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] Dean; R v (1932) NZLR 753 …. [2-s 16.15] — [2013] NSWSC 661; BC201302789 …. [2-s 132.1]

Dearing v Passi (1994) 12 NSWCR 117; (1995) 2 Crim LN 13 …. [21-s 99.15] Deeble; R v BC9101554 …. [5-s 47.1] Delk v R (1999) 46 NSWLR 340; 106 A Crim R 240 …. [8-s 94.2] Dellapatrona; R v (1993) 31 NSWLR 123 …. [2-s 161.40], [2-s 161.62] Delon; R v (1992) 29 NSWLR 29 …. [7-505] Demetriou v DPP (2000) 32 MVR 485 …. [2-s 16.15] Demiroz; R v [2003] NSWCCA 146; BC200303668 …. [2-s 161.55] Dendic & Mazzeo v R (1987) 34 A Crim R 40 …. [10-s 3.45] Deng; R v (1996) 91 A Crim R 80 …. [10-s 6.15] Denning; R v BC9203052 …. [8-s 310D.35] Department of Health and Community Services (NT) v JWB (Marion’s case) (1992) 175 CLR 218; 106 ALR 385 …. [8-s 58.5] Derbas; R v (1993) 66 A Crim R 327 …. [10-s 25.5] Derriman v Slattery [1982] 1 NSWLR 214; (1982) 41 ALR 482; 61 FLR 230 …. [5-s 55.1] Devenish; R v [1969] VR 737 …. [7-485] Dever v Creevey; Ex parte Creevey [1993] 1 Qd R 232; (1991) ASC 56-100 …. [2-s 14.1] DH; R v BC9703242 …. [8-s 61H.10] Dhanhoa v R (2003) 217 CLR 1; 199 ALR 547 …. [2-s 161.55], [2-s 161.62] Dhanhoa; R v [2000] NSWCCA 257; BC200004701 …. [8-s 52A.45] Dhillon; R v BC8902251 …. [8-s 61.25] Diamond; R v (1920) 84 JP 211 …. [8-s 26.10] Dib; R v (1991) 52 A Crim R 64 …. [8-s 7.1], [10-s 7.1], [10-s 10.10], [10-s 10.25] — [2002] NSWSC 934; BC200205992 …. [7-170] — [2003] NSWCCA 117; BC200302577 …. [5-s 22.1] Dickinson; R v [2005] NSWCCA 284; BC200506727 …. [5-s 44.10] Dickson v Cmr of Police (1999) 48 NSWLR 156; 108 A Crim R 494 …. [21s 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]

Dileski; R v (2002) 132 A Crim R 408 …. [8-s 349.5] Dillon; R v (1878) 1 SCR (NS) (NSW) 159 …. [8-s 117.35] — [1982] VR 434 …. [8-s 249B.10] — [1983] 2 Qd R 627 …. [10-s 12.1] Dimian v R (1995) 83 A Crim R 358 …. [2-s 293.1] Dimitrou v Samuels (1975) 10 SASR 331 …. [10-s 43.1] Dinh; R v [2010] NSWCCA 74; BC201002663 …. [5-s 12.5], [8-s 47.15] Dinsdale v R (2000) 202 CLR 321; 175 ALR 315 …. [5-s 12.1] Director General NSW Dept of Agriculture v Temmingh (2003) NSWSC 247; BC200301726 …. [8-s 10A.10] — v — [2003] NSWSC 598; BC200303816 …. [2-s 116.15], [2-s 213.15], [2-s 215.1] Director of Prosecutions (NSW) v Knight (2006) 162 A Crim R 555 …. [2-s 16.15] 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 BC9405141 …. [2-s 212.1], [2-s 227.10] — v Brooks [1974] AC 862; [1974] 2 WLR 899 …. [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 Cooke (2007) 168 A Crim R 379 …. [5-s 98.5] — 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 Fraser [2008] NSWSC 244; BC200803020 …. [8-s 195.5] — v Goben [1999] NSWSC 696; BC9903990 …. [2-s 213.1]

— v Gribble (2005) 151 A Crim R 256 …. [8-s 58.55] — v Harika [2001] VSC 237; BC200104512 …. [9-s 16A.10] — 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 BC9705937 …. [8-s 58.5] — v K (1999) 49 NSWLR 226 …. [8-s 99.10] — v Kolalich (1990) 19 NSWLR 520; 47 A Crim R 471 …. [2-s 65.1] — v Losurdo (1998) 44 NSWLR 618; 103 A Crim R 189 …. [1-510], [2-s 91.10] — v Mawad [2015] NSWCCA 227 …. [9-s 31.5] — 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 Nouata [2009] NSWSC 72; BC200900868 …. [5-s 12.5] — v O’Conner (2006) 181 A Crim R 294 …. [2-s 91.15], [2-s 91.17], [2-s 93.10], [2-s 93.5] — v Paterson (2004) 148 A Crim R 410 …. [2-s 93.5] — 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 BC9701516 …. [8-s 311.1] — v Sinton (2001) 51 NSWLR 659; 33 MVR 549 …. [2-s 167.1] — v Smith (1996) 86 A Crim R 308 …. [2-s 56.1], [2-s 65.15] — v Sounthorn [1999] NSWSC 786; BC9904395 …. [2-s 183.1] — v Tanswell (1998) 103 A Crim R 205 …. [2-s 91.1] — v TY (No 2) (2006) 14 VR 430; 167 A Crim R 596 …. [8-s 18.55] — v Vella (2005) 156 A Crim R 113 …. [8-s 60.5] — v — [1999] NSWSC 49; BC9900681 …. [2-s 156.1]

— 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] — v Zhang (2007) 48 MVR 78 …. [1-455] Director of Public Prosecutions (Cth) v Bayly (No 1) (1994) 63 SASR 97; 126 ALR 290 …. [2-s 91.1], [2-s 93.5] — v Carter [1998] 1 VR 601; (1997) 91 A Crim R 222 …. [5-s 12.1] — 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) v Eades [2009] NSWSC 1352; BC200911487 …. [8-s 61O.3] — 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 Tamcelik [2012] NSWSC 1008; BC201206880 …. [21-s 82.1] — v Wunderwald [2004] NSWSC 182; BC200401191 …. [2-s 194.5] Director of Public Prosecutions (DPP) (NSW) 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 …. [1-485], [2-s 202.15] — v Horwood (2009) 78 NSWLR 32; 208 A Crim R 146 …. [21-s 11.5] — v Wililo [2012] NSWSC 713; BC201204764 …. [1-005], [2-s 134.20], [2-s 194.5], [8-s 58.2] Director of Public Prosecutions (NSW) v Caita-Mantra [2004] NSWSC 1127; BC200408048 …. [5-s 8.10] — v Campbell [2015] NSWCCA 173; BC201505760 …. [9-s 16A.5], [9-s 67.1] — 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 Mikhael [2015] NSWSC 819; BC201505734 …. [7-530]

— v Nassif (2002) 135 A Crim R 391 …. [21-s 10.1] — v Tikomaimaleya [2015] NSWCA 83; BC201502323 …. [9-s 16A.5], [9s 16A.10], [9-s 19.5], [9-s 66.5] — v Yeo (2008) 51 MVR 157 …. [2-s 190.1], [2-s 193.1] 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 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) 46 FCR 336; 118 ALR 596 …. [8-s 546C.15] Director-General of Fair Trading v O’Shane BC9703791 …. [2-s 202.10], [2-s 208.5] Dittmar; R v [1973] 1 NSWLR 722 …. [8-s 527C.1], [8-s 527C.25] Dixon v McCarthy [1975] 1 NSWLR 617 …. [5-s 10.10] — v Stephens (1971 unreported) …. [21-s 49.5] DJB v R [2007] NSWCCA 209; BC200711453 …. [2-s 20.1] DMC; R v (2002) 137 A Crim R 246 …. [8-s 86.1] Dodd v R (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] Dodd; R v (1991) 57 A Crim R 349 …. [8-s 52A.45] Doe 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] Dolan; R v [1969] 1 WLR 1479 …. [11-125.25] Domican v R (1989) 43 A Crim R 24 …. [2-cl 21.5], [2-s 21.15] — v — (1992) 173 CLR 555; 106 ALR 203; 66 ALJR 285 …. [7-625], [2-s 161.25], [2-s 161.30], [2-s 161.55] Dominguez v — (1985) 63 ALR 181 …. [2-s 161.10], [2-s 161.30] Donaczy v — [2010] NSWCCA 143; BC201004642 …. [5-s 22.1], [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 All ER 987; 1 WLR 562 …. [8-s 58.45], [8-s 546C.5] Donoghue v Coombe (1987) 45 SASR 330 …. [8-s 117.15], [8-s 117.25] Donohoe; R v (1993 unreported) …. [10-s 25.30] Donovan; R v [1934] 2 KB 498 …. [8-s 59.5] Doodeward v Spence (1908) 6 CLR 406 …. [8-s 117.15] Doorey; R v [2000] NSWCCA 456; BC200006608 …. [8-s 97.20] Dossi; R v (1918) 13 Cr App R 158 …. [2-s 16.15], [2-s 21.1] Douar v R (2005) 159 A Crim R 154 …. [5-s 5.1], [5-s 6.1], [5-s 7.5], [5-s 12.1] 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 BC9805274 …. [21-s 48.25], [21-s 49.5] Downey v R (1994) 68 ALJR 371 …. [8-s 192B.15], [8-s 192E.20] Downs; R v (1985) 3 NSWLR 312 …. [8-s 18.1], [8-s 18.25] Dowse v NSW [2012] NSWCA 337; BC201208026 …. [21-s 99.5] Doyle; R v (1996) 84 A Crim R 287 …. [5-s 98.1] — [2006] NSWCCA 118; BC200602231 …. [8-s 52A.45] Drinkwater; R v (1981) 27 SASR 396 …. [8-s 117.15] Dryburgh v R (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] Dudko; R v (2002) 132 A Crim R 371 …. [8-s 310B.5] Duffield v R (1992) 28 NSWLR 638; 110 ALR 323 …. [2-s 8.10], [7-010] Dugan; R v [1984] 2 NSWLR 554 …. [8-s 114.20] Dunbar; R v (1982) 1 All ER 188 …. [10-s 11.5] Dungay; R v (2001) 126 A Crim R 216 …. [21-s 99.15] Dunks; R v [1982] 2 NSWLR 747; (1982) 8 A Crim R 267 …. [8-s 310D.30] Dunn v R [2007] NSWCCA 312; BC200709737 …. [5-s 44.15]

Dunn; R v (1986) 32 A Crim R 203 …. [10-s 10.15] — [1973] 2 NZLR 481 …. [8-s 81C.5] — (1992 unreported) …. [8-s 61H.5] Dunne; R v (1993 unreported) …. [8-s 52A.5], [8-s 52A.15] 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] Duru; R v [1973] 3 All ER 715 …. [8-s 117.30] Dustings, Ex parte; Re Jackson [1968] 1 NSWR 257; 87 WN (Pt 1) (NSW) 98 …. [2-s 36.5] Dutton; R v [2005] NSWCCA 248; BC200505157 …. [8-s 52A.45] DW v R (2004) 150 A Crim R 139 …. [2-s 133.1] DW; R v [2012] NSWCCA 66; BC201203094 …. [10-s 25.25] Dwyer; R v [1999] NSWCCA 47; BC9901059 …. [8-s 61I.10] Dyason v Butterworth [2015] NSWCA 52; BC201501468 …. [8-6360.5] Dyers v R (2002) 210 CLR 285; 192 ALR 181 …. [2-s 161.30] Dykyj; R v (1993) 29 NSWLR 273 …. [8-s 188.15] Dziduch; R v (1990) 47 A Crim R 378 …. [8-s 58.20] E (a Child) (1994) 13 WAR 1; 76 A Crim R 343 …. [21-s 206.10] E; R v (1996) 39 NSWLR 450 …. [2-s 161.10] Eade; R v (2002) 131 A Crim R 390 …. [10-s 27.5] Eades v DPP [2010] NSWCA 241; BC201006899 …. [8-s 61L.10] Eager v Smith (1988) 38 A Crim R 272 …. [10-s 3.10] Easom; R v (1981) 28 SASR 134; 4 A Crim R 171 …. [7-485] — [1971] 2 QB 315 …. [8-s 117.30] Eastman v R (1997) 76 FCR 9; 158 ALR 107 …. [2-s 222.25] Ebatarinja v Deland (1998) 194 CLR 444; 157 ALR 385 …. [2-s 57.1] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; 176 ALR 644 …. [1-015] Economou; R v (1989) 51 SASR 421; 44 A Crim R 88 …. [7-105] Edelsten; R v (1990) 21 NSWLR 542; 51 A Crim R 397 …. [8-s 319.5] Edens v Cleary [1975] 1 NSWLR 278 …. [8-s 527C.25] Edigarov; R v (2001) 125 A Crim R 551 …. [5-s 12.1]

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] Edwards; R v [1998] 2 VR 354; (1997) 94 A Crim R 204 …. [2-s 19.5] — [2008] SASC 303; BC200809979 …. [8-s 18.55] Eedens v R [2009] NSWCCA 254; BC200909053 …. [5-s 33.1] EF v — [2015] NSWCCA 36; BC201501697 …. [5-s 7.5] 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] Egan; R v [2013] NSWCCA 196; BC201312170 …. [5-s 12.1] Ehrlich; R v [2012] NSWCCA 38; BC201201670 …. [5-s 23.5] 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 Azzi; R v [2001] NSWCCA 397; BC200106121 …. [10-s 6.10] El Hani; R v [2004] NSWCCA 162; BC200403011 …. [5-s 22.1], [5-s 23.1] El Hassan v DPP [2000] NSWCA 330; BC200007117 …. [2-s 193.1] El Helou; R v [2010] NSWCCA 111; BC201003286 …. [10-s 25.20] El Masri; R v [2005] NSWCCA 167; BC200502544 …. [5-s 8.1] El Mir; R v (1957) 75 WN (NSW) 191 …. [2-s 161.10], [7-640] El-Andouri; R v [2004] NSWCCA 178; BC200403645 …. [5-s 22.1] El-Hayek; R v (2004) 144 A Crim R 90 …. [5-s 44.15] El-Hilli and Melville v R [2015] NSWCCA 146; BC201505080 …. [9-s 22.5] El-Youssef v — [2010] NSWCCA 4; BC201000373 …. [5-s 33.1] El-Zeyat; R v [2002] NSWCCA 138 …. [8-s 315.15] ELD; R v [2004] NSWCCA 219; BC200404881 …. [8-s 61I.48] Eldridge v R [2011] NSWCCA 144; BC201104501 …. [5-s 47.1] Ellames; R v [1974] 3 All ER 130; 1 WLR 1391 …. [8-s 114.10] 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]

Ellis; R v (1973) 57 Cr App R 571 …. [7-150] — (1986) 6 NSWLR 603 …. [5-s 23.1] — (1993) 68 A Crim R 449 …. [8-s 97.20] — (1987 unreported) …. [10-s 25.30] Elyard v R (2006) 45 MVR 402 …. [5-s 21A.1] Emery v Magistrate of the Local Court at Tamworth BC9003273 …. [2-s 202.10] Emery; R v (1975) 11 SASR 169 …. [8-s 94.10] Emmerson v Clarke (1872) 3 QSCR 76 …. [8-s 131.15] English; R v (1989) 17 NSWLR 149 …. [8-s 527C.5] — [2000] NSWCCA 245; BC200003829 …. [5-s 47.1] 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] Epping and Harlow Justices; Ex parte Massaro; R v [1973] QB 433; [1973] 1 All ER 1011 …. [2-s 59.15] 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 …. [2-s 161.45] Errington; R v (1999) 29 MVR 344 …. [8-s 52A.45] Esposito; R v (1998) 45 NSWLR 442; 105 A Crim R 27 …. [2-s 281.1] Essex Justices, Ex parte Final; R v [1963] 2 QB 816; [1962] 3 All ER 924 …. [2-s 202.10] 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 (1990 unreported) …. [11-125.20] Evans and Gardiner (No 2); R v [1976] VR 523 …. [8-s 18.15]

Evans; R v [1842] Carrington and Marshman 298 …. [8-s 56.10] — [1962] SASR 303 …. [2-s 31.1] Evenett; Ex parte A-G (Qld); R v [1987] 2 Qd R 753; 24 A Crim R 330 …. [8-s 117.20] Everingham; R v (1949) 66 WN (NSW) 122 …. [8-s 58.5] Evgeniou v R [1965] ALR 209; (1964) 37 ALJR 508 …. [7-525] Ewen v — [2015] NSWCCA 117; BC201504420 …. [2-s 294AA.1] Eyles; R v (1997) 3 NSWCR 43 …. [11-135.10] F, Re [1990] 2 AC 1 …. [8-s 58.5] F; R v (1995) 83 A Crim R 502 …. [2-s 161.10] — (1996) 40 NSWLR 245; 89 A Crim R 250 …. [8-s 52A.5] — (1996) 90 A Crim R 356; (1996) 3 Crim LN 78 …. [2-s 16.25], [10-s 25.1], [10-s 25.100] — [1957] SR(NSW) 543; 74 WN 211 …. [8-s 52A.25] Fabian; R v (1992) 64 A Crim R 365 …. [10-s 25.25] 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] Falconer-Atlee; R v (1974) 58 Cr App R 348 …. [7-525] Faltas v McDermid (1993 unreported) …. [2-s 93.5] Falzon (No 2); R v [1993] 1 Qd R 618 …. [2-s 32.5] Fan v R (1991) 103 ALR 485 …. [10-s 28.1] Fan; R v (1989) 98 FLR 119 …. [2-s 19.5] 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] Farlow; R v [1980] 2 NSWLR 166; (1979) 2 A Crim R 266 …. [5-s 55.1], [8-s 310D.35] Farrar; R v (1983) 78 FLR 10 …. [8-s 97.5] Faulkner v Talbot [1981] 1 WLR 1528 …. [8-s 61L.10] Favero; R v [1999] NSWCCA 320; BC9906690 …. [2-s 207.1] Fayd’Herbe; R v [2007] NSWCCA 20; BC200700476 …. [10-s 25.25]

Fazio; R v (1997) 69 SASR 54; 93 A Crim R 522 …. [10-s 25.50] FB v R [2011] NSWCCA 217; BC201107721 …. [2-s 132.1] FD & JD; R v (2006) 160 A Crim R 392 …. [5-s 22.1] 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] Felton; R v (2002) 135 A Crim R 328 …. [5-s 33.1] Fennell; R v [1971] 1 QB 428; [1970] 3 All ER 215 …. [8-s 58.55] Fenwick; R v [1954] 71 WN 102 …. [2-s 21.10] Ferguson, Ex parte; Re Alexander (1945) 45 SR (NSW) 64; 62 WN (NSW) 15 …. [8-s 417A.1] Fermia v Hand (1984) 1 FCR 336; 53 ALR 731 …. [2-s 55.5] Fernando; R v [1999] NSWCCA 66; BC9901709 …. [2-s 21.15] — [2004] NSWCCA 147; BC200402658 …. [5-s 23.1] Ferrer-Esis; R v (1991) 55 A Crim R 231 …. [2-s 207.1] Fidow; R v [2004] NSWCCA 172; BC200403273 …. [5-s 44.15] Filimoehala; R v (2003) 138 A Crim R 299 …. [2-s 153.1], [7-170] Filios v Morland [1963] NSWR 545; (1963) 80 WN (NSW) 501 …. [2-s 59.10] Filippetti; R v (1978) 13 A Crim R 335 …. [8-s 7.1], [10-s 10.25], [10-s 10.40] Finlayson; R v (1964) 3 SCR (NSW) 3 …. [8-s 117.20] Finn; R v (1988) 34 A Crim R 425 …. [2-s 161.55], [7-640] Finnie v Dalglish (1982) 1 NSWLR 400 …. [2-s 227.5] — v Leggatt (2003) 141 A Crim R 523 …. [2-s 91.1] Finnie; R v [2002] NSWCCA 533; BC200208375 …. [5-s 12.1] 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 (1989 unreported) …. [10-s 27.5] Fisher; R v (2002) 54 NSWLR 467 …. [1-055], [1-280], [2-s 6.1], [8-s 61.1] — (2003) 56 NSWLR 625; 138 A Crim R 318 …. [2-s 19.1], [2-s 19.5]

Fitzgerald v DPP (1991) 24 NSWLR 45; 56 A Crim R 262 …. [2-s 21.15] — v Kennard (1995) 38 NSWLR 184; 84 A Crim R 333 …. [8-s 61L.10] — v Montoya (1989) 16 NSWLR 164 …. [11-140.5] — v R (1992) 106 FLR 331 …. [7-640] Fitzgerald; R v (2004) 59 NSWLR 493; 144 A Crim R 316 …. [8-s 66EA.25] 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] Fleming and Robinson; R v (1989) Crim LR 658 …. [11-185.5] Flemming; R v [1989] Crim LR 71 …. [11-230.10] Flesch and McKenzie; R v (1986) 7 NSWLR 554 …. [2-s 161.1], [2-s 161.10] Flynn v R [2010] NSWCCA 171; BC201005508 …. [5-s 44.15] Foley v Molan BC9301863 …. [2-s 65.15] — v R (1984) 13 A Crim R 29 …. [7-485] Fong; R v (1996 unreported) …. [10-s 3.30] Foord v Whiddett (1985) 6 FCR 475; 60 ALR 269 …. [2-s 65.15] Forbes; R v (2005) 160 A Crim R 1 …. [2-s 161.5] Forgione; R v [1969] SASR 248 …. [2-cl 21.5] Forsyth v Rodda (1989) 87 ALR 699 …. [2-s 65.15] Fosse v DPP (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] Foster; R v (1992) 25 NSWLR 732 …. [5-s 23.1] — (1995) 78 A Crim R 517 …. [8-s 94.10], [8-s 97.5] — (2001) 33 MVR 565 …. [5-s 5.1], [5-s 12.1] Foulstone; R v BC9002230 …. [8-s 24.30] Fowler v Lanning [1959] 1 QB 426; [1959] 1 All ER 290 …. [8-s 58.30] Fowler; R v (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] FP v R [2012] NSWCCA 182; BC201206278 …. [8-s 61J.1] Francis v Flood [1978] 1 NSWLR 113 …. [8-s 417A.1] Francis; R v (2004) 145 A Crim R 233 …. [2-s 222.25] Franklin v Durkin (1994 unreported) …. [11-390.10] Franklin; R v BC9001999 …. [2-s 31.1] Franks v Franks [2012] NSWCA 209; BC201205181 …. [8-5845.5], [86360.1] Franks; R v [2005] NSWCCA 196; BC200503392 …. [5-s 21A.5] Fransisco and Dorain; R v (1995 unreported) …. [2-s 19.5] Fraser v R (No 2) (1985) 1 NSWLR 680; 19 A Crim R 248 …. [2-s 8.1] Fraser; R v [2003] NSWSC 965; BC200306355 …. [2-s 151.5] Frawley v R (1993) 69 A Crim R 208; 18 Crim LJ 165 …. [2-s 36.1] Frazer; R v (2002) 128 A Crim R 89 …. [10-s 3.30] Fretwell; R v (1864) L C 443 …. [8-s 29.1] Friel; R v (1890) 17 Cox CC 325 …. [2-s 193.5] Frodsham v O’Gorman [1979] 1 NSWLR 683 …. [1-240], [2-s 104.1], [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] Fuge; R v (2001) 123 A Crim R 310 …. [8-s 94.15], [8-s 117.35] Fuller v DPP (Cth) (1994) 68 ALJR 611 …. [2-s 59.1] — v Field (1994) 62 SASR 112; 72 A Crim R 592 …. [2-s 59.1] Fullerton v Cmr of Police [1984] 1 NSWLR 159 …. [21-s 133.3] Fura; R v [1954] 1 QB 503 …. [11-125.25], [11-140.10] Furnell v Betts (1978) 20 SASR 300 …. [1-455] Fuschello; R v [1940] 2 All ER 489 …. [8-s 188.15] Gadd; R v [1911] QWN 31 …. [8-s 117.15] Gaffney; R v [1971] 1 NSWLR 511 …. [8-s 310D.10] Gaio v R (1960) 104 CLR 419; [1961] ALR 67 …. [2-s 59.10] Galambos; R v (1980) 2 A Crim R 388 …. [2-s 161.30]

Galea v Galea (1990) 19 NSWLR 263 …. [2-s 132.1] Galea; R v (1989) 46 A Crim R 158 …. [8-s 112.5] Galey; R v [1985] 1 NZLR 230 …. [8-s 97.10] Gallagher; R v (1989) 44 A Crim R 256 …. [2-cl 21.20] — (1991) 23 NSWLR 220; 53 A Crim R 248 …. [5-s 23.1] — [1986] VR 219; (1985) 16 A Crim R 215 …. [8-s 249B.10] Galvin (No 2); R v [1961] VR 740 …. [8-s 58.45], [8-s 546C.5] Gamgee; R v (2001) 51 NSWLR 707; 124 A Crim R 469 …. [5-s 12.1] Gammage v R (1969) 122 CLR 444; [1970] ALR 385 …. [2-s 161.20], [8-s 18.25] Ganderton; R v (1998 unreported) …. [2-s 207.1] 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] NSWCA 115; BC201103235 …. [8-6830.5] Gardenal-Williams; R v [1989] TasR 62; (1989) 43 A Crim R 29 …. [8-s 22A.1] Garnet-Thomas; R v [1974] 1 NSWLR 702 …. [8-s 417A.1] Garrett v R (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 …. [1015] Gavel; R v (2014) 239 A Crim R 469 …. [5-s 3A.1] Gawell; R v (2004) 150 A Crim R 376 …. [10-s 6.10] GDD v R [2010] NSWCCA 62; BC201002181 …. [7-600] GDR; R v (1994) 35 NSWLR 376; 75 A Crim R 319 …. [5-s 44.10] GED; R v (2003) 141 A Crim R 135 …. [2-s 161.40] Gedeon v R [2013] NSWCCA 257; BC201314570 …. [10-s 25.20] George v Rockett (1990) 170 CLR 104; 93 ALR 483 …. [21-s 48.1], [21-s 48.10] Georgiadis; R v [1984] VR 1030 …. [2-s 32.5] Gerakiteys v R (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] Ghani v Jones [1970] 1 QB 693; [1969] 3 All ER 1700 …. [21-s 49.5] Giang; R v [2001] NSWCCA 276; BC200105020 …. [8-s 319.15] Gibbons; R v (1862) XII CCC 100 …. [8-s 327.10] Gibson; R v (1987) 8 Petty SR 3901 …. [2-s 105.1] — (1989) 42 A Crim R 265 …. [2-s 21.1] — [2002] NSWCCA 401; BC200205919 …. [7-485] Gidley; R v [1984] 3 NSWLR 168 …. [7-405] Giffin; R v [1971] Qd R 12 …. [2-s 160.1] Gilbert v R (2000) 201 CLR 414; 170 ALR 88 …. [2-s 161.20] Gilbert; R v [1953] SASR 163 …. [8-s 125.15] Gilham v R (2007) 73 NSWLR 308; 178 A Crim R 72 …. [2-s 19.5], [2-s 153.1] Gilham; R v (2007) 190 A Crim R 303 …. [2-s 19.5] Gill Herron v Walton (1991) 25 NSWLR 190 …. [2-s 19.5] Gillan; R v (1991) 100 ALR 66; 54 A Crim R 475 …. [5-s 10.1] Gillard v R (2003) 219 CLR 1; 202 ALR 202 …. [2-s 161.20], [8-s 18.25] Gillard; R v (1999) 105 A Crim R 479 …. [8-s 61I.10] Gills; R v [1986] 1 Qd R 459; (1986) 22 A Crim R 115 …. [5-s 55.1] 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] Giorgi; R v (1982) 7 A Crim R 305; [1983] ACLD 54 …. [10-s 3.10] Giorgianni v R (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] GK; R v (2001) 53 NSWLR 317; 125 A Crim R 315 …. [7-225] GKA; R v (1998) 99 A Crim R 491 …. [7-105] GLB; R v [2003] NSWCCA 210; BC200304634 …. [5-s 22.1] GLC; R v [2000] NSWCCA 99; BC200001596 …. [2-s 21.15]

Glencourse; R v (1995) 78 A Crim R 256 …. [2-s 161.40] Glenister v R [1980] 2 NSWLR 597; (1980) 3 A Crim R 210 …. [8-s 125.25], [8-s 134.5] Glennon; R v (1992) 173 CLR 592; 106 ALR 177; 66 ALJR 344 …. [2-s 19.5] Glover, Re (1885) 2 WN (NSW) 27b …. [11-380.15] Glusheski; R v (1986) 33 A Crim R 193 …. [2-s 161.25] Glynn; R v (1994) 33 NSWLR 139; 71 A Crim R 537 …. [2-s 17.5] Goldburg; R v BC9302038 …. [2-s 19.5], [2-s 192.5] Goldie; Ex parte Picklum; R v (1937) 59 CLR 254; [1938] ALR 25 …. [8-s 351B.5] Goldsmith v Newman and South Australia (1992) 59 SASR 404; 65 A Crim R 563 …. [2-s 93.5] Gollan v Nugent (1988) 166 CLR 18; 82 ALR 193 …. [21-s 49.5], [21-s 219.5] Gommeson; R v [2014] NSWCCA 159 …. [5-s 55.1] Goodman; R v (1991 unreported) …. [8-s 52A.15] Goodwin, Ex parte; Re Carruthers [1968] 1 NSWR 23; (1967) 86 WN (Pt 1) (NSW) 313 …. [2-s 58.1] Gorman v Fitzpatrick (1987) 32 A Crim R 330 …. [2-s 285.1] Gorman; R v (2002) 137 A Crim R 326 …. [5-s 55.1] Gosling; R v [2002] NSWCCA 351; BC200205009 …. [8-s 18.10] Goss v Nicholas [1960] Tas SR 133 …. [8-s 58.25] Gouldham v R [1970] WAR 119 …. [7-485] Gover; R v (2000) 118 A Crim R 8 …. [2-s 91.1], [2-s 289.1] Gower v R (1991) 56 A Crim R 115 …. [5-s 44.15] GPP; R v (2001) 129 A Crim R 1 …. [7-640] Grace; R v (1930) 30 SR (NSW) 158; 47 WN (NSW) 51 …. [8-s 527C.10] Graham v R (1998) 195 CLR 606; 157 ALR 404 …. [8-s 61I.10] 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]

Grant, Appeal of (1981) 6 Petty SR 2568 …. [21-s 219.5] Grant; R v (2002) 55 NSWLR 80; 131 A Crim R 510 …. [8-s 18.30], [8-s 18.5], [8-s 428B.1] Grassby v R (1989) 168 CLR 1; 87 ALR 618 …. [1-020], [1-200], [2-s 8.10], [2-s 57.1], [2-s 57.15], [2-s 65.15], [2-s 227.10] Grassby; R v (1988) 15 NSWLR 109 …. [7-001] Grbic v Pitkethly (1992) 38 FCR 95; 110 ALR 577 …. [1-485] Grbin; R v [2004] NSWCCA 220; BC200404068 …. [5-s 22.1] Grealish v R [2013] NSWCCA 336; BC201316196 …. [5-s 53A.5] Greatorex; R v (1994) 74 A Crim R 496 …. [2-s 161.1], [10-s 25.1] Grech; R v (1998 unreported) …. [8-s 61I.65] Green v R (1971) 126 CLR 28; [1972] ALR 524 …. [2-s 161.10] — 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] Greenfield; R v (1973) 57 Cr App R 849; [1973] 1 WLR 1151 …. [2-cl 21.5], [2-s 17.1] Greer v Cmr of NSW Police (2002) 128 A Crim R 586 …. [21-s 49.45], [21s 49.5] Greer; R v (1992) 62 A Crim R 442 …. [2-s 36.1] Gregory; R v (1867) LR 1 CCR 77 …. [8-s 117.35] — [1983] 3 NSWLR 172 …. [8-s 310D.15] Grey v R (2001) 184 ALR 593; 75 ALJR 1708 …. [2-s 142.5] Griffin; R v (1869) 11 Cox CC 142 …. [8-s 58.10] Griffiths v R (1977) 137 CLR 293; 15 ALR 1 …. [7-170], [5-s 11.1] Grills v — (1996) 70 ALJR 905; [1996] 15 Leg Rep C2a …. [2-s 293.1] Grooms; R v BC8901617 …. [8-s 7.1] Grubbe; R v [2005] NSWCCA 140; BC200502037 …. [5-s 33.1] Gu; R v [2006] NSWCCA 104; BC200601976 …. [10-s 25.25] Guerin; R v [1967] 1 NSWR 255 …. [2-s 161.25], [2-s 161.30] Guldur; R v (1986) 8 NSWLR 12; 25 A Crim R 271 …. [2-s 21.15] Gulliford; R v (2004) 148 A Crim R 558 …. [2-s 161.20], [8-s 61I.48], [8-s 112.5]

GW; R v (2016) 328 ALR 583; 90 ALJR 407 …. [2-s 161.40] GWM; R v [2012] NSWCCA 240; BC201209125 …. [5-s 21A.15] H; R v (1980) 3 A Crim R 53 …. [5-s 21.1] — (1993) 66 A Crim R 505 …. [5-s 12.1] Haas; R v (1972 unreported) …. [2-s 23.5] Hadba v R (2004) 182 FLR 472; 146 A Crim R 291 …. [8-s 428A.1], [8-s 428G.1] 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] Hain; R v (1966) 85 WN (Pt 1) (NSW) 7 …. [8-s 52A.15] Haken v Johnson BC9302396 …. [8-s 527C.10] Hakim; R v (1989) 41 A Crim R 372 …. [2-s 19.5] Haley; R v (1959) 76 WN (NSW) 550 …. [8-s 29.1] Hall v R (1988) 36 A Crim R 368 …. [8-s 23A.10] — v — [2015] NSWCCA 298; BC201511627 …. [2-s 263.5] Hall; R v (1903) 3 SR (NSW) 307; 20 WN (NSW) 74 …. [8-s 126.10] — BC9501747 …. [8-s 94.20] Hallett; R v [1969] SASR 141 …. [8-s 18.15] Halliday v Neville (1984) 155 CLR 1; 57 ALR 331 …. [21-s 99.25] Hallocoglu; R v (1992) 29 NSWLR 67 …. [8-s 52A.45] Halmi; R v (2005) 62 NSWLR 263; 156 A Crim R 150 …. [2-s 16.40], [2-s 126.1] — [1999] NSWCCA 354; BC9907457 …. [2-s 19.5] Hamid; R v (2006) 164 A Crim R 179 …. [8-5135.1] Hamilton; R v (1993) 66 A Crim R 575; 10 Petty SR 4551 …. [8-s 4.5], [8-s 33B.3], [8-s 33B.5] Hammersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 …. [2-s 228.10] Hammoud; R v (2000) 118 A Crim R 66 …. [5-s 55.1] Hampton v R [2014] NSWCCA 131; BC201405594 …. [5-s 24.1] Hampton, Application of (1972) 3 DCR 59 …. [21-s 219.1] Hampton; R v (1998) 44 NSWLR 729; 101 A Crim R 399 …. [5-s 44.10] Hamze v R [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] Hands; R v (1887) 16 Cox CC 188 …. [8-s 117.20] Hann; R v (1883) SALR 119 …. [8-s 125.20], [8-s 125.25] Hanna v Horler (1999) 154 FLR 166 …. [2-s 117.5] — v Kearney and DPP BC9803179 …. [2-s 57.1], [2-s 91.1], [2-s 91.10] — v R (2008) 73 NSWLR 390; 191 A Crim R 302 …. [2-s 161.12] Hannes; R v (2000) 36 ACSR 72; 158 FLR 359 …. [2-s 161.35] Haoui v R [2008] NSWCCA 209; BC200807970 …. [8-s 4.1] Hardie v R; Phillipsen v R [2012] NSWCCA 6; BC201200770 …. [5-s 5.1] Hardman v Chief Constable of Avon Somerset Constabulary [1986] Crim LR 330 …. [8-s 195.5] — v Minehan (2003) 57 NSWLR 390 …. [8-s 93G.15] Hargraves v R (2011) 282 ALR 214 …. [2-s 161.35] Harkin; R v (1989) 38 A Crim R 296 …. [8-s 61L.10] Harkins v R [2015] NSWCCA 263; BC201509456 …. [8-s 4.5] Harkins; R v (1958) VR 543; [1958] ALR 461 …. [2-s 14.1] Harley; R v (1830) 4 C P 369 …. [8-s 27.1] Harmouche; R v (2005) 158 A Crim R 357 …. [5-s 22.1], [10-s 25.25] Harran; R v [1969] Crim LR 662 …. [8-s 114.10] Harrigan v R (2005) 45 MVR 352 …. [5-s 55.1] Harris v Harrison [1963] Crim LR 497 …. [8-s 117.35] Harris; R v (1968) 52 Cr App R 277 …. [10-s 3.30] — (1988) 17 NSWLR 158 …. [8-s 61H.1] — (2000) 50 NSWLR 409; 121 A Crim R 342 …. [5-s 44.10], [5-s 61.1] — (2001) 125 A Crim R 27 …. [5-s 33.1] — [1961] Crim LR 256 …. [8-s 114.10], [10-s 10.35] Harrison v Duke of Rutland [1893] 1 QB 142 …. [8-s 58.30] — v Hodgson [1830] 10 B Cr 445 …. [8-s 58.40] Harrison; R v (1995) 79 A Crim R 149 …. [2-cl 21.5] Harry; Ex parte Eastway; R v (1985) 39 SASR 203; 20 A Crim R 63 …. [2-s 59.15]

Hartikainen; R v BC9301848 …. [8-s 61I.65] Hartingdon v Director-General of Department of Community Services (1993) 17 Fam LR 126 …. [1-020] Hartley; R v [1972] 2 QB 1 …. [2-s 16.15] Hartnett v NSW [1999] NSWSC 265; BC9901190 …. [21-s 71.1], [21-s 76.5] Harvey; R v (1989) 40 A Crim R 102 …. [5-s 95.1] — (1985 unreported) …. [8-s 52A.45] Hasan v R (2010) 31 VR 28; 222 A Crim R 306 …. [5-s 21A.15] Hass; R v (1986) 22 A Crim R 299 …. [7-525] Hassan; R v [1971] 1 QB 423 …. [2-s 150.1] Hatfield v R [2011] NSWCCA 286; BC201110711 …. [5-s 22.1] Haw Tua Tau v Public Prosecutor [1982] AC 136; [1981] 3 WLR 395 …. [2s 202.1], [7-525] Hawes v Governor of Goulburn Correctional Centre BC9707659 …. [21-s 138.1] Hawes; R v (1994) 35 NSWLR 294 …. [8-s 58.20] Hawi (No 18); R v [2011] NSWSC 1664 …. [8-s 93B.30] Hawkins v R [2011] NSWCCA 153; BC201106353 …. [5-s 22.1] Hay; R v [1968] Qd R 459 …. [2-s 160.1] Hayden; R v (1993 unreported) …. [2-s 161.55] Hayes v Wilson [1984] 2 Qd R 114; 1 MVR 198 …. [2-s 16.35] Haywood; R v (1994) 73 A Crim R 41 …. [8-s 61I.45] Hazeltine; R v [1967] 2 QB 857; [1967] 2 All ER 671; [1967] 3 WLR 209; 51 Cr App Rep 351 …. [2-s 153.1] He Kaw Teh v R (1985) 157 CLR 523; 60 ALR 449; 15 A Crim R 203 …. [8-s 7.1], [10-s 10.15], [10-s 10.5] 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 22.1], [5-s 23.1] Hedges v — [2011] NSWCCA 263; BC201110712 …. [8-s 52A.45] Heinrich; R v (1992) 15 MVR 225; 61 A Crim R 212 …. [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 44.15]

Helmhout; R v (2000) 112 A Crim R 10 …. [21-s 112.1] Helmling; R v (1993 unreported) …. [8-s 52A.5] Hemsley; R v (1988) 36 A Crim R 334 …. [8-s 61I.5] Henderson v R [2016] NSWCCA 8; BC201600429 …. [5-s 53A.5] Hendricks; R v [2011] NSWCCA 203; BC201106989 …. [8-s 61I.65] Hennah; R v (1877) 13 Cox CC 547 …. [8-s 39.5] Hennessy; R v [2001] NSWCCA 36; BC200100544 …. [8-s 97.5] Hennigan; R v [1971] 3 All ER 133 …. [8-s 18.15], [8-s 18.50] Henning; R v BC9002977 …. [2-s 293.1], [8-s 61I.5] Henry; R v (1992) 28 NSWLR 348 …. [5-s 23.1] — (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] — [2007] NSWCCA 90 …. [8-s 98.20] Hernandez v R [2013] NSWCCA 51; BC201300863 …. [5-s 21A.10] Heron v — (2003) 197 ALR 81; 140 A Crim R 317 …. [8-s 23.3] Herron v A-G (NSW) (1987) 8 NSWLR 601; 28 A Crim R 353 …. [2-s 91.10], [2-s 93.5] — v McGregor (1986) 6 NSWLR 246 …. [7-220] Heuston; R v (1995) 81 A Crim R 387 …. [2-s 161.55] — (1996) 90 A Crim R 213 …. [2-s 150.1], [2-s 150.5], [7-485] Heyde; R v (1990) 20 NSWLR 234 …. [2-s 161.62] HG v R (1999) 197 CLR 414; 160 ALR 554 …. [2-s 293.1] Hibberd; R v [2009] NSWCCA 20; BC200901464 …. [8-s 66A.40] 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] Hildebrandt; R v (1963) 81 WN (NSW) 143 …. [2-s 193.5] Hill; R v Churchman; R v [1914] 2 KB 386 …. [11-380.10] Hill; R v (1981) 3 A Crim R 397 …. [8-s 24.30] — [1988] 1 Qd R 654 …. [2-s 161.25] Hillier v DPP (NSW) [2009] NSWCCA 312; BC200911891 …. [5-s 8.10], [5-s 9.5] Hillier; R v (2007) 228 CLR 618; 233 ALR 634 …. [2-s 161.15]

Hills v Henderson (1991) 9 Petty SR 4120 …. [10-s 30.1] Hillsley; R v (2006) 164 A Crim R 252 …. [8-s 19A.5] Hilton; R v (1987) 7 NSWLR 745 …. [9-s 1.10] Hinchliffe v Sheldon [1955] 3 All ER 406; 1 WLR 1207 …. [8-s 58.50] Hinds; R v (1957) 41 Cr App Rep 143 …. [8-s 310D.3], [8-s 310D.25] Hinton; R v (1976) Petty SR 1749 …. [10-s 10.40], [10-s 10.5] Ho; R v (1989) 39 A Crim R 145 …. [8-s 192B.15], [8-s 192E.20] — (2002) 130 A Crim R 545 …. [2-s 161.10] — BC8802216 …. [2-cl 21.20] Hoar; R v (1981) 148 CLR 32; 37 ALR 357 …. [2-cl 21.20], [2-cl 21.5], [5-s 21.1] Hoare v R (1989) 167 CLR 348 …. [5-s 33.5] Hoch v — (1988) 165 CLR 292; 81 ALR 225 …. [2-s 21.15] Hodge; R v (1993) 1 NSWCR 61 …. [8-s 97.20] Hodges; R v [1957] 41 Cr App R 218 …. [8-s 114.10] Hoerler; R v (2004) 147 A Crim R 520 …. [8-s 19A.1], [8-s 24.30] Hofschuster; R v (1993) 70 A Crim R 260 …. [7-105] Holden; R v [1974] 2 NSWLR 548 …. [2-s 161.30] Holder; R v [1983] 3 NSWLR 245; (1983) 13 A Crim R 375 …. [5-s 55.1] 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] Hollis; R v (1873) 12 Cox CC 463 …. [8-s 27.1] Holloway v R [2015] NSWCCA 207; BC201507292 …. [8-s 556.1] Holmden and Crawford v Bitar (1987) 75 ALR 522; 47 SASR 509 …. [2-s 19.5] Holmes; R v [2003] NSWCCA 258; BC200305376 …. [5-s 44.15] Holohan v R [2012] NSWCCA 105; BC201203646 …. [8-s 95.10] Holton; R v (2004) 41 MVR 89 …. [8-s 52AA.1] Holzer; R v [1968] VR 481 …. [8-s 18.55], [8-s 18.60] Homer, Ex parte; Re McElligott (1933) 50 WN (NSW) 158 …. [2-s 193.5], [8-s 351B.1] Homsi v R [2011] NSWCCA 164; BC201105612 …. [8-s 86.1]

Hopton; R v BC9805510 …. [8-s 52A.15] Hornby; R v (1985 unreported) …. [8-s 310D.35] 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] Horsington and Bortolus; R v [1983] 2 NSWLR 72 …. [2-cl 21.15] Horton; R v (1998) 45 NSWLR 426; 104 A Crim R 306 …. [2-s 281.1] Horvath; R v [1972] VR 533 …. [8-s 52A.35] — BC8601273 …. [8-s 61I.65] 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] House; R v [2005] NSWCCA 88; BC200501960 …. [5-s 21A.1] Houssein; R v (1980) 70 Cr App R 267 …. [2-s 161.5] Howard; R v (1992) 29 NSWLR 242 …. [7-100], [7-105], [7-150] Howars; R v [1993] Crim L R 213 …. [8-s 28.1] Howe; R v [1987] AC 417; [1987] 1 All ER 771 …. [8-s 117.35] Howes; R v (2000) 2 VR 141; 116 A Crim R 249 …. [8-s 61H.10] Hua; R v [2002] NSWCCA 384; BC200205679 …. [8-s 94.20] Huang; R v [2010] NSWCCA 68; BC201002330 …. [5-s 22.1] Hudd; R v BC9403564 …. [2-s 161.40] Hudson; R v (1995 unreported) …. [10-s 29.20] Hughes v R (2008) 49 MVR 420; 185 A Crim R 155 …. [8-s 52A.45] Hughes & Curtis; R v (1983) 49 ALR 110; 10 A Crim R 125 …. [10-s 29.10], [10-s 29.15] Hull; R v (1989) 16 NSWLR 385; 41 A Crim R 262 …. [2-s 8.1], [2-s 8.10] Humes v Townsend (1989) 4 WAR 196 …. [8-s 117.20] Humphries v R [2015] NSWCCA 319; BC201512560 …. [2-s 157.5] Humphries; R v (1997) 98 A Crim R 233 …. [8-s 208.10] Hunt; R v [1999] NSWCCA 375; BC9907764 …. [2-s 117.5], [2-s 214.5] Hunter; R v (1992 unreported) …. [8-s 61I.65]

Hura; R v (2001) 121 A Crim R 472 …. [2-s 157.1], [2-s 207.1] Hussey; R v (1924) 18 Cr App R 121 …. [8-s 58.30] Hutty; R v [1953] VLR 338; [1953] ALR 689 …. [8-s 20.1], [8-s 22A.1] Huynh v R (2013) 295 ALR 624; 87 ALJR 434 …. [2-s 161.1] Huynh; R v BC9601945 …. [10-s 25.45] 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] Ibrahimi; R v [2005] NSWCCA 153; BC200502338 …. [5-s 21A.1], [5-s 21A.5] Iby; R v (2005) 63 NSWLR 278; 45 MVR 1 …. [8-s 18.65], [8-s 20.1] Ignjatic v R (1993) 68 A Crim R 333 …. [2-s 21.15], [8-s 23A.1] IL; R v [2016] NSWCCA 51; BC201602329 …. [8-s 18.1], [8-s 18.20] Ilich v R (1986) 162 CLR 110; 69 ALR 231 …. [8-s 117.10], [8-s 117.20], [8-s 117.5], [8-s 117.55], [8-s 125.20] Ingivald; R v BC8902289 …. [2-s 23.5] Ingleton v Dibble [1972] 1 All ER 275 …. [8-s 58.50] Inglis v Fish [1961] VR 607 …. [11-125.20] Ingrassia; R v (1997) 41 NSWLR 447; 91 A Crim R 383 …. [5-s 10.5] Inwood; R v [1973] 2 All ER 645 …. [21-s 99.5] Ion; R v (1996) 89 A Crim R 81 …. [2-s 132.1] Iqbal v R [2012] NSWCCA 72; BC201210938 …. [2-s 8.10] Isaac v — [2012] NSWCCA 195; BC201207151 …. [5-s 23.1] Isaacs; R v (1997) 41 NSWLR 374 …. [8-s 18.62], [8-s 24.30] Ishac v R (2011) 211 A Crim R 102 …. [8-s 312.5] Itamua; R v [2000] NSWCCA 502; BC200007658 …. [5-s 55.1] Itaoui v R (2005) 158 A Crim R 233 …. [5-s 44.5] Ith v — [2012] NSWCCA 70; BC201206758 …. [2-s 161.1] Jackson v — (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] Jackson; R v (1864) 9 Cox CC 505 …. [8-s 125.20] — (1890) 17 Cox CC 104 …. [8-s 29.1] — [1891] 1 QB 671 …. [8-s 58.10] — [2004] NSWCCA 110; BC200402093 …. [10-s 25A.1] Jacobs; R v (2004) 151 A Crim R 452 …. [8-s 18.110] 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 …. [7-220], [2-s 19.5], [2-s 192.5] 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] Jamal; R v (1993) 69 A Crim R 544 …. [8-s 61I.45] — (2008) 72 NSWLR 258 …. [2-s 30.1] James v R (2014) 306 ALR 1; 88 ALJR 427 …. [2-s 161.20] Jameson; R v [1896] 2 QB 425 …. [7-160] Jamieson v R (1992) 60 A Crim R 68 …. [7-485] — 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] Janceski (No 2); R v (2005) 44 MVR 328 …. [5-s 55.1] Janceski; R v (2005) 64 NSWLR 10; 223 ALR 580 …. [7-150], [2-s 8.1], [2s 8.10], [2-s 16.40], [2-s 17.0], [2-s 126.1], [2-s 130.1], [8-s 52A.45] Jarret v R [2014] NSWCCA 140 …. [2-s 306S.1] Jarrold; R v (1863) Leigh Cave 301 …. [8-s 111.5] Jarvie v Magistrates Court of Victoria at Brunswick [1995] 1 VR 84 …. [2-s 56.1] Jasper; R v (2003) 139 A Crim R 329 …. [10-s 3.80] JCE; R v (2000) 120 A Crim R 18 …. [5-s 5.1], [5-s 12.1] Jeffs v Graham (1987) 8 NSWLR 292; Petty SR 3463 …. [11-125.10] Jell; Ex parte A-G; R v [1991] 1 Qd R 48; 46 A Crim R 161 …. [7-105] Jenkins; R v (1877) Knox 295 …. [8-s 35.65] Jenkyns; R v (1993) 32 NSWLR 712 …. [8-s 61I.45]

Jensen v Eleftheriou [1982] VR 184 …. [8-s 546C.15] Jiang v R [2010] NSWCCA 277; BC201008919 …. [2-s 161.40] Jidah v — [2014] NSWCCA 270; BC201410327 …. [10-s 25.15] Jimenez; R v (2000) 119 A Crim R 299 …. [21-s 49.45] Jiminez v R (1992) 173 CLR 572; 106 ALR 162 …. [8-s 52A.5] Jione; R v [2007] NSWCCA 170; BC200704860 …. [8-s 33.20] Jitjarden v Thompson (1995) 38 NSWLR 611 …. [11-390.5] JJS; R v [2005] NSWCCA 225; BC200504598 …. [5-s 95.1] JL v R [2014] NSWCCA 130; BC201405598 …. [5-s 23.1], [5-s 53A.5] JM v — [2014] NSWCCA 297 …. [5-s 53A.5] JMR; R v (1991) 57 A Crim R 39 …. [7-525] Johal; R v [1973] 1 QB 475; (1972) 56 Cr App R 348 …. [2-s 21.1] Johanson v Dixon (1979) 143 CLR 376; 25 ALR 65; 53 ALJR 494 …. [8-s 93X.10] John Fairfax and Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 …. [2-s 56.1] John Fairfax Group Ptd Ltd (Recievers and Managers Appointed) v Local Court of NSW (1991) 26 ALD 471; 26 NSWLR 131; 59 A Crim R 68 …. [1-020], [2-s 56.1] 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 …. [85135.1], [2-s 56.10] 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 …. [21s 99.30] John; R v [1974] 1 WLR 624 …. [11-125.25] Johns v R (1980) 143 CLR 108; 28 ALR 155 …. [8-s 351B.5] Johnson v DPP (1996) 2 NSWCR 83 …. [8-s 52AA.1], [2-s 193.5] — v Johnson (2000) 201 CLR 488; 174 ALR 655 …. [1-015] — v Miller (1937) 59 CLR 467; [1938] ALR 104 …. [2-s 16.5], [2-s 16.35] — v R (1976) 136 CLR 619; 11 ALR 23; (1977) 51 ALJR 57 …. [8-s 23.1],

[8-s 23.3] — v — (2004) 205 ALR 346; 78 ALJR 616 …. [5-s 55.1] Johnson; R v (1786) 2 East PC 448 …. [8-s 112.5] — (1979) 22 SASR 161; 4 ACLR 80 …. [7-475] — [1945] KB 419 …. [2-s 16.1] — BC9002976 …. [2-s 23.5] — [2005] NSWCCA 186; BC200503397 …. [5-s 21A.1] Johnston v R [2007] NSWCCA 133; BC200703591 …. [2-s 161.35] Johnstone, Ex parte (1935) 52 WN (NSW) 194 …. [8-s 154A.10] Johnstone; R v [2004] NSWCCA 307; BC200405937 …. [5-s 22.1] Jolly; R v [1982] VR 46 …. [5-s 55.1] 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 (1985 unreported) …. [10-s 3.40] Jones; R v (1839) 9 C P 258 …. [8-s 27.15] — (1974) 59 Cr App R 120 …. [2-cl 21.5], [2-s 17.1] — (1986) 22 A Crim R 42 …. [8-s 23A.1] — (1995) 78 A Crim R 504 …. [8-s 58.20] — BC8801835 …. [8-s 327.10] — BC9402488 …. [7-170] Jordan v Burgoyne [1963] 2 QB 744 …. [11-125.10] Jordan; R v (1956) 40 Cr App R 152 …. [8-s 18.15] Jorgic; R v (1963) 80 WN (NSW) 761 …. [2-s 161.10] Jovanovic; R v (1997) 98 A Crim R 1 …. [2-s 161.10] Joyce; R v [1968] NZLR 1070 …. [8-s 97.10] JSM v R [2010] NSWCCA 255; BC2011010646 …. [2-s 129.1] Jurisic; R v (1998) 101 A Crim R 259; 45 NSWLR 209; 29 MVR 49 …. [5-s 6.1], [5-s 37.1], [8-s 52A.45] Justelius; R v [1973] 1 NSWLR 471 …. [2-s 16.35] Justins v R [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] K, Re [2002] NSWCCA 374; BC200205230 …. [2-s 19.10] K; R v (1993) 118 ALR 596 …. [8-s 58.55] Kahatapitiye v R (2004) 146 A Crim R 542 …. [2-s 16.1] Kain; R v (1985) 38 SASR 309 …. [5-s 55.1] Kalache v R (2000) 21(20) Leg Rep C3b …. [5-s 23.1] Kalache; R v (2000) 111 A Crim R 152 …. [5-s 22.1], [5-s 23.1] Kalazich; R v (1997) 94 A Crim R 41 …. [5-s 61.1] Kaliti; R v (2001) 34 MVR 160 …. [5-s 44.15] Kama; R v (2000) 110 A Crim R 47 …. [5-s 44.15] 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] Kanaan; R v (2005) 64 NSWLR 527; 157 A Crim R 238 …. [2-s 161.30] — [2003] NSWCCA 396; BC200308057 …. [8-s 93G.15] Kane; R v (2004) 144 A Crim R 496 …. [21-1010.3] Kant v DPP (1994) 34 NSWLR 216; 73 A Crim R 481 …. [2-s 93.5] Karageorge; R v [1999] NSWCCA 213; BC9904370 …. [5-s 24.1] Kassis v Katsantonis [1984] 3 NSWLR 330 …. [8-s 117.50] Kastratovic; R v (1985) 42 SASR 59; 19 A Crim R 28 …. [8-s 117.35] Katarzynski; R v [2002] NSWSC 613; BC200203724 …. [8-s 418.1] Kawicki; R v (1995) 82 A Crim R 191 …. [8-s 310G.5] Kayrouz; R v (1979 unreported) …. [8-s 7.1], [10-s 10.25] Keenan; R v (1994) 76 A Crim R 374 …. [8-s 545B.5] — (2009) 236 CLR 397; 252 ALR 198 …. [2-s 161.15] 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] Kelly, Ex parte; Re Teece [1966] 2 NSWR 674; (1966) 85 WN (Pt 1) (NSW) 151 …. [2-s 202.10], [2-s 202.30] Kelly; R v (1993) 113 ALR 535; 30 NSWLR 64 …. [5-s 23.1] Kendrick; R v (1931) 144 LT 748; 23 Cr App Rep 1 …. [2-s 193.5]

Kennedy (No 2); R v [2008] 1 AC 269; [2007] 4 All ER 1083; [2007] 3 WLR 612 …. [8-s 18.55] Kennedy; R v (1997) 94 A Crim R 341 …. [2-s 8.10], [2-s 36.1], [2-s 93.5], [7-220] — (2000) 118 A Crim R 34 …. [2-s 16.15] Kennett v Holt [1974] VR 644 …. [2-s 16.35] Kenney; R v [1983] 2 VR 470 …. [8-s 23.3] Kennison v Daire (1985) 38 SASR 404 …. [8-s 117.20] — v — (1986) 160 CLR 129; 64 ALR 17 …. [8-s 117.20] Kent-Newbold; R v (1939) 62 CLR 398 …. [7-160] Kenworthy; R v (1995 unreported) …. [5-s 44.15] Kerekes; R v [1951] 70 WN(NSW) 102 …. [2-s 21.15] Kern; R v [1986] 2 Qd R 209; (1985) 18 A Crim R 191 …. [7-575] Kerr v Cmr of Police [2001] NSWSC 637; BC200104228 …. [21-1230.1], [21-1595.1], [21-2385.1] Kerr; R v BC9302221 …. [5-s 98.1] Keur; R v (1973) 7 SASR 13; 2 ALR 237 …. [2-s 17.1], [5-s 10.5] Khawaja v R [2014] NSWCCA 80; BC201404948 …. [5-s 53A.5] Khoo; R v (2013) 97 ACSR 1 …. [9-s 22.5] Khouzame; R v (1999) 108 A Crim R 170 …. [8-s 61I.7] Kilby (No 1); R v [1970] 1 NSWR 158 …. [2-s 31.1] Killick v R (1981) 147 CLR 565; 37 ALR 407 …. [7-495] Kimber; R v [1983] 3 All ER 316 …. [8-s 61L.10] Kinash; R v (1981) 5 A Crim R 240 …. [8-s 18.15] Kindon; R v (1957) 41 Cr App R 208 …. [8-s 117.20] King v R (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] King; R v (2003) 59 NSWLR 472; 139 A Crim R 132 …. [8-s 4.1], [8-s 33.1] — (2004) 59 NSWLR 515; 144 A Crim R 405 …. [2-s 162.1] — [1978] Crim LR 228 …. [10-s 3.30] — [1987] QB 547 …. [8-s 192B.15], [8-s 192E.20]

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Ladue; R v (1965) 51 WWR 175; [1965] 4 Can Crim R 264 …. [8-s 81C.5] Lago; R v [2014] NSWSC 660; BC201403986 …. [9-s 19.10] Lai; R v (1989) 42 A Crim R 460 …. [10-s 10.25] 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], [2-s 65.15] Lamb; R v (1967) 51 Cr App R 417 …. [8-s 18.55] — [2002] NSWSC 357; BC200203802 …. [21-s 112.1] Lambert v R [2015] NSWCCA 22; BC201501009 …. [5-s 7.5] Lambert; R v (1976) 65 Cr App Rep 12 …. [8-s 58.5] Lameri and Cohen; R v [2004] NSWCCA 217; BC200404129 …. [7-225], [7-450] Lane v R [2013] NSWSC 146; BC201300840 …. [9-s 22.5] Lane; R v [2011] NSWCCA 157; BC201105360 …. [2-s 161.62] Lang; R v [1965] NSWR 1313 …. [2-s 31.1] Langham; R v (1984) 36 SASR 48; 12 A Crim R 391 …. [8-s 94.15], [8-s 117.35] Lanteri; R v (1985) 4 NSWLR 359 …. [2-cl 21.5], [8-s 351.15] Lardner; R v BC9804715 …. [8-s 58.5], [8-s 59.5] Larkin; R v [1943] 1 All ER 217 …. [8-s 18.55] Lars aka Larsson; R v (1994) 73 A Crim R 91 …. [2-s 21.1], [2-s 154.5] 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] Lattouf; R v (1980) 2 A Crim R 65 …. [2-s 150.1] Lau; R v (1998) 105 A Crim R 167 …. [10-s 10.15] Lavelle; R v (1987) 2 Crim LJ 105 …. [8-s 527C.10] Lavender; R v (2005) 222 CLR 67; 218 ALR 521 …. [8-s 18.40], [8-s 18.50] Lawler v Johnson (2002) 56 NSWLR 1; 134 A Crim R 199 …. [2-s 93.1], [2-s 93.5] Lawless v R (1979) 142 CLR 659; 26 ALR 161 …. [7-485]

Lawrence v — (1981) 38 ALR 1 …. [7-495] Lawrence; R v [1980] 1 NSWLR 122; (1980) 32 ALR 72 …. [2-s 161.30], [5-s 21.1] — [1981] 1 All ER 974; (1981) 73 Cr App R 1 …. [2-s 161.1] 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 BC9303691 …. [2-s 208.1], [2-s 208.5] Le Boursicot; R v (1994) 79 A Crim R 548 …. [2-s 118.1], [2-s 216.1] Le; R v (2005) 151 A Crim R 564 …. [21-s 99.10] — [2000] NSWCCA 49; BC200001004 …. [8-s 61I.10] Leahy; R v [2004] NSWCCA 148; BC200402757 …. [5-s 11.1] Lean and Aland; R v (1993) 66 A Crim R 296 …. [8-s 58.20] Lee Kun; R v [1916] 1 KB 337; [1914] All ER Rep 603 …. [2-s 59.10] Lee; R v (1994) 76 A Crim R 271 …. [10-s 33.10] Leenan; R v (1968) 52 Cr App R 185 …. [8-s 61L.10] Leete; R v (2001) 125 A Crim R 37 …. [5-s 24.1], [5-s 51.1] 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] Lemene; R v (2001) 118 A Crim R 131 …. [5-s 33.1] Lenard; R v (1992) 57 SASR 164; 58 A Crim R 123 …. [8-s 117.35] Lenthall v Cavender [1931] SASR 164 …. [11-380.15] Leonard v Morris (1975) 10 SASR 528 …. [8-s 546C.10] Leoni; R v [1999] NSWCCA 14; BC9900970 …. [8-s 97.10] Lester; R v Byast; R v (1955) 30 Cr App R 157 …. [8-s 114.10] Levinge v Director of Custodial Services (1987) 9 NSWLR 546; 89 FLR 133 …. [2-s 19.5] Lewins v R (2007) 175 A Crim R 40 …. [5-s 23.1] Lewis v Cox [1985] 1 QB 509 …. [8-s 58.50] Lewis-Hamilton; R v [1998] 1 VR 630; (1997) 92 A Crim R 532 …. [7-485] Lewis; R v (1833) 9 C P 523 …. [8-s 29.1] — (1914) 10 Tas LR 48 …. [8-s 327.10]

— [1969] 2 QB 1 …. [2-s 150.1] — [2001] NSWCCA 448; BC200106902 …. [8-s 19A.1] Leydon v Forrest (1980) 23 SASR 364 …. [2-s 179.5] Li; R v (2003) 140 A Crim R 288 …. [2-s 285.1] — BC9703285 …. [8-s 61J.2], [8-s 61M.2], [8-s 95.2], [8-s 97.2], [8-s 105A.1] Liang v R (1995) 82 A Crim R 39; 124 FLR 350 …. [5-s 21.1] Liang; R v (1995 unreported) …. [10-s 25.25] Liberato v R (1985) 159 CLR 507; 61 ALR 623 …. [2-s 161.10] Liberti; R v (1991) 55 A Crim R 120 …. [2-s 207.1] Lindsay v R (2015) 146 ALD 456; 319 ALR 207 …. [8-s 23.3] Lineham; R v [1921] VLR 582; 27 ALR 348 …. [8-s 327.15] Ling v R [1981] Tas R 250 …. [7-530] 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] Liristis; R v (2004) 146 A Crim R 547 …. [7-600], [8-s 327.5] Lister; R v (1955) 72 WN (NSW) 491 …. [2-s 16.35] Littler; R v (2001) 120 A Crim R 512 …. [2-s 19.5] 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 …. [1015] Livingstone; R v (2004) 150 A Crim R 117 …. [2-s 142.5] Llewellyn v R [2011] NSWCCA 66; BC201102125 …. [2-s 161.30] Lloyd v Bibbin [1962] VR 593 …. [1-210] Lloyd; R v [1967] 1 QB 175 …. [8-s 23A.1] — [1985] 3 WLR 30 …. [8-s 117.15] Lo; R v [2003] NSWCCA 313; BC200306668 …. [5-s 22.1], [5-s 23.1] Locchi; R v (1991) 22 NSWLR 309 …. [10-s 3.70], [10-s 25.1] Lodhi v R (2006) 199 FLR 303 …. [2-s 11.1], [2-s 11.10] Lolesio; R v [2014] NSWCCA 219; BC201408696 …. [5-s 53A.5] Long v Rawlins (1874) 4 QSCR 86 …. [8-s 56.10]

Longbottom; R v (1849) 3 Cox CC 439 …. [8-s 18.50] Longman v R (1989) 168 CLR 79; 89 ALR 161 …. [2-s 133.1], [2-s 161.40] Longshaw; R v (1990) 20 NSWLR 554; (1990) 50 A Crim R 401 …. [1-001] Lopatta; R v (1983) 35 SASR 101 …. [8-s 112.15], [8-s 117.35] Lorraway v R [2010] NSWCCA 46; BC201002173 …. [10-s 25.25] Lose v Brown (1986 unreported) …. [10-s 3.20] Losurdo v DPP (1998) 101 A Crim R 162 …. [2-s 91.10] Loubatie v — (1994) 77 A Crim R 28 …. [2-s 55.5], [2-s 65.15], [2-s 93.5] Louizos v R [2009] NSWCCA 71; BC200901713 …. [2-s 161.40] Love; R v (1989) 17 NSWLR 608 …. [8-s 117.35] Lovell, Ex parte; Re Buckley (1938) 38 SR (NSW) 153; 55 WN (NSW) 63 …. [2-s 16.35] Loveridge; R v [2014] NSWCCA 120; BC201405292 …. [8-s 24.30] Lowe v Hooker [1987] Tas R 153; (1987) 35 A Crim R 90 …. [8-s 117.30] Lowe; R v (2003) 57 NSWLR 102; 139 A Crim R 240 …. [8-s 311.1], [8-s 322.10] LRS; R v [2001] NSWCCA 338; BC200105260 …. [5-s 5.1] Lucas; R v (1970) 120 CLR 171; [1970] ALR 835 …. [2-s 161.20] Ludlow; R v [1971] AC 29; [1970] 1 All ER 567 …. [2-s 21.5] Ludwigs Canberra Bond Cellar Pty Ltd v Sheen (1982) 46 ACTR 13; 65 FLR 347 …. [2-s 202.15] Lumsden; R v [1951] 2 KB 513; [1951] 1 All ER 1101 …. [8-s 112.5] Lun; R v (1932) 32 SR (NSW) 363 …. [8-s 117.35] Lusher; R v [1976] 1 NSWLR 227 …. [7-805] Ly v Jenkins (2001) 114 FCR 237; 187 ALR 178 …. [2-s 116.15], [2-s 213.15] Lykouras; R v [2005] NSWCCA 8; BC200500707 …. [2-s 16.10], [2-s 21.15], [2-s 21.5] Lynch v Attwood (1983) 3 NSWLR 1 …. [8-s 417A.1] Lynch; R v [1979] 2 NSWLR 775; (1979) 1 A Crim R 117 …. [2-s 285.1] Lynn v New South Wales [2016] NSWCA 57; BC201601901 …. [29950.10], [29-954E.5], [29-973.5] McAuliffe; R v (1993) 70 A Crim R 303 …. [8-s 18.15]

McBride; R v [1962] 2 QB 167 …. [8-s 52A.15] McCabe v BAT Aust Services Ltd [2002] VSC 150; BC200202143 …. [2-s 228.10] McCallum; R v (1995 unreported) …. [2-s 161.35] MacCarron v Coles Supermarkets Aus Pty Ltd (2001) 23 WAR 355; [2001] WASCA 61 …. [2-s 14.1] 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 BC9606890 …. [2-s 14.1] McConnell; R v (1993) 69 A Crim R 39 …. [8-s 188.15] — [1977] 1 NSWLR 715 …. [2-s 21.10] McCormack v Langham (1990) 9 Petty SR 4265 …. [11-125.20] McCormack; R v [1969] 2 QB 442 …. [8-s 61L.10] — [1981] VR 104 …. [8-s 93B.15] — [2015] NSWCCA 221; BC201507788 …. [9-s 16A.5] McCoy; R v (2001) 51 NSWLR 702 …. [10-s 6.10] McCready; R v (1985) 20 A Crim R 32 …. [2-cl 21.5] McCullough v R (2009) 194 A Crim R 439 …. [8-s 33.20] — v — [1982] Tas R 43; (1982) 6 A Crim R 274 …. [2-s 160.1], [7-475], [7600] McDonald v Camerotto (1984) 36 SASR 66; 14 A Crim R 1 …. [1-460] McDonald, Ex parte (1880) 1 LR(NSW) 252 …. [8-s 131.10] McDonald; R v (1998) 28 MVR 432 …. [5-s 44.10] MacDonald; R v (2000) 110 A Crim R 238 …. [7-165], [2-s 154.1], [2-s 167.1] McDonald; R v [1980] 2 NZLR 102; [1983] NZLR 252 …. [2-s 32.5] MacDonald; R v [1983] 1 NSWLR 729 …. [8-s 117.25] — [1983] AC 252 …. [2-s 32.5] McDonald; R v [1984] 1 NSWLR 428 …. [2-s 161.10] — [1992] 2 Qd R 634 …. [8-s 117.20] Macdonald; R v BC9501664 …. [5-s 24.1], [8-s 24.30] McDonnell v Smith (1918) 24 CLR 409 …. [2-s 14.1]

MacDonnell; R v (2002) 128 A Crim R 44 …. [5-s 23.1], [10-s 25.25] McGarritty; R v BC9405228 …. [2-s 156.1], [2-s 193.5], [8-s 18.110] McGarvey; R v (1987) 10 NSWLR 632; 34 A Crim R 119 …. [2-s 293.1] McGarvie; R v (1986) 5 NSWLR 270 …. [8-s 23A.1] MacGibbon v Warner (1997) 98 A Crim R 450 …. [21-s 48.30] McGuigan and Cameron; R v (1991) Crim LR 719 …. [11-185.5] McHardie; R v [1983] 2 NSWLR 733; (1983) 10 A Crim R 51 …. [7-455] McHugh; R v (1985) 1 NSWLR 588 …. [5-s 47.1] McIntosh v R [2015] NSWCCA 184; BC201506297 …. [5-s 53A.5] McIntyre v — (2009) 198 A Crim R 549 …. [8-s 59.5] — v — [2009] NSWCCA 305; BC200911594 …. [8-s 58.57], [8-s 61.7] MacIntyre; R v (1988) 38 A Crim R 135 …. [8-s 52A.45] McIntyre; R v (2000) 111 A Crim R 211 …. [2-s 161.15] McIvor v R [2010] NSWCCA 7; BC201000443 …. [8-s 97.20] Mackay v — (1977) 136 CLR 465; 15 ALR 541 …. [2-s 21.10] — v — (1977) 136 CLR 465; 15 ALR 541 …. [2-s 21.1] McKean v DPP BC9301694 …. [2-s 93.5] McKellar v — (2014) 240 A Crim R 285 …. [2-s 192.1], [2-s 196.1] MacKenzie; R v (1995) 82 A Crim R 473 …. [8-s 328.1] Mackie; R v [1973] Crim LR 54 …. [8-s 58.10] Mackinlay v Wiley [1971] WAR 3 …. [11-135.5] McKirdy v McCosker (2002) 127 A Crim R 217 …. [2-s 91.10] McLachlan v Mesics (1966) 116 CLR 340 …. [8-s 546C.15] — v — (1966) 40 ALJR 204 …. [8-s 58.45] Maclay v R (1990) 19 NSWLR 112; 46 A Crim R 340 …. [5-s 44.10] McLean v Case and Deignan Pty Ltd [1961] NSWR 873; 78 WN (NSW) 476; 6 LGRA 395 …. [2-s 16.35] McLean and Funk; Ex parte A-G (Qld); R v [1991] 1 Qd R 231; (1990) 47 A Crim R 240 …. [2-s 32.5] McLean; R v (1981) 5 A Crim R 36; 5 Petty SR 2497 …. [10-s 3.30], [10-s 13.10] McLiney v Minister [1911] VLR 347; 17 ALR 336 …. [8-s 58.45]

McLoughlin; Ex parte DPP; R v [1988] 1 Qd R 464; (1987) 31 A Crim R 256 …. [7-105] McMahon; R v (1978 unreported) …. [10-s 25.30] — BC9602908 …. [2-s 160.1] McMillan; R v [2005] NSWCCA 28; BC200500727 …. [5-s 21A.5], [8-s 52A.45] McMullen; R v (1990) 54 SASR 55 …. [8-s 161.1] McNamara; R v [1954] VLR 137; ALR 291 …. [8-s 58.5] — [1965] VR 372 …. [8-s 94.10] — [2005] NSWCCA 195; BC200503393 …. [5-s 21A.5] McPhail; R v (1988) 36 A Crim R 390 …. [21-s 133.3] 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] McPherson, Ex parte (1933) 50 WN (NSW) 25 …. [8-s 159.15], [8-s 527C.1], [11-230.5] Macrae v Redmond (1987) 8 Petty SR 3534 …. [2-s 190.1] 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] M (an infant), Re [1968] 1 WLR 1897 …. [2-s 190.1] M; R v [1980] 2 NSWLR 195; (1979) 4 ACLR 610 …. [8-s 192G.25] — [1991] 2 Qd R 68 …. [7-475] Ma and Pham v R [2007] NSWCCA 240; BC200706635 …. [10-s 25.25] MA; R v [2001] NSWCCA 30; BC200100796 …. [5-s 28.1], [5-s 30.1] Mac v R [2014] NSWCCA 24 …. [2-s 21.5] Madden v — [2014] NSWCCA 291; BC201410245 …. [8-s 193D.10] Maddison v Goldrick [1975] 1 NSWLR 557 …. [2-s 59.15] — v — [1976] 1 NSWLR 651 …. [2-s 36.5] Madercine; R v (1899) 15 WN (NSW) 235 …. [2-s 16.1] Maginnis; R v [1987] AC 303 …. [10-s 3.30] Maglis v R [2010] NSWCCA 247; BC201008612 …. [5-s 44.15] Maharaj; R v BC9801519 …. [2-s 16.10], [7-100]

Maher v R (1987) 163 CLR 221; 72 ALR 351 …. [2-s 21.1] Maher; R v (2005) 154 A Crim R 457 …. [8-s 93B.15] Mahmood v Western Australia (2008) 232 CLR 397; 241ALR 606 …. [2-s 161.40] Mai; R v (1992) 26 NSWLR 371 …. [2-s 16.1], [2-s 19.5] MAK; R v (2006) 167 A Crim R 159 …. [5-s 22.1] Makarov v R (No 4) [2008] NSWCCA 341; BC200813578 …. [5-s 59.5] Makisi; R v (2004) 151 A Crim R 245 …. [2-s 161.63], [8-s 98.15], [8-s 428B.1] Makrynikos v R [2006] NSWCCA 170; BC200603847 …. [5-s 21A.5] Malcherech; R v [1981] 1 WLR 690 …. [8-s 18.15] Mallard v R (2005) 224 CLR 125; 222 ALR 236 …. [2-s 142.5] Mamote-Kulang of Tamagot v — (1963) 111 CLR 62 …. [8-s 18.60] Manley; R v (2000) 49 NSWLR 203; 112 A Crim R 570 …. [2-s 116.5] — [1933] 1 KB 529 …. [8-s 319.5] 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] Mansfield; R v (1991 unreported) …. [2-s 31.1] Manson; R v BC9303922 …. [8-s 61L.10] Mansour; R v (1999) 29 MVR 409 …. [8-s 52A.45] Manton; R v (2002) 132 A Crim R 249 …. [8-s 60.5] Manwaring; R v [1983] 2 NSWLR 82; 12 A Crim R 253 …. [2-s 16.25] 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] Marchione; R v (2002) 128 A Crim R 574 …. [10-s 6.10] Marcus; R v [1981] 2 All ER 833 …. [8-s 39.10], [8-s 41.10] Marie; R v (1983) 13 A Crim R 440 …. [2-cl 21.20], [10-s 25.25] Marinko v Rames (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] — v — [2005] HCA 25; (2005) 228 CLR 357 …. [5-s 33.5] Markby; R v (1978) 140 CLR 108; 21 ALR 448 …. [2-s 161.20] Markisic v Vizza [2002] NSWCCA 53; BC200200834 …. [2-s 212.1] Markou v R [2012] NSWCCA 64; BC201203093 …. [8-s 59.5] Marland, Re [1963] 1 DCR 224 …. [11-125.20] Marlow v R [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] Marshall; R v (1987) 49 SASR 133 …. [8-s 29.1] — (1990 unreported) …. [2-s 150.5] Marsham; Ex parte Pethick Lawrence; R v [1912] 2 KB 362; [1911-13] All ER Rep 639 …. [2-s 193.5], [2-s 202.10] Martin v Pridgeon (1859) 23 JP 630 …. [2-s 16.35] — v R [2014] NSWCCA 124; BC201405388 …. [5-s 53A.5] Martin; R v (1904) 4 SR (NSW) 720; 21 WN (NSW) 233 …. [2-s 193.1] — (1984) 51 ALR 540; 16 A Crim R 87 …. [8-s 18.55] — [2005] NSWCCA 190; BC200503395 …. [5-s 21A.1], [5-s 44.15] Martindale; R v [1986] 3 All ER 31 …. [8-s 7.1] Masciantonio v R (1995) 183 CLR 58; 129 ALR 575; 69 ALJR 598 …. [8-s 23.3] Maslen; R v (1995) 79 A Crim R 199 …. [8-s 192G.20] Mason v Lyon [2005] NSWSC 804; BC200505736 …. [1-480], [2-s 38.1], [2-s 160.1] Mason; R v (1820) 168 ER 876 …. [8-s 94.10] Massey v R (1995) 13 Leg Rep C14 …. [2-s 19.5] Masters v Watt (1992) 10 Petty SR 4507 …. [8-s 58.5] Masters; R v (1992) 26 NSWLR 450; 59 A Crim R 445 …. [2-s 21.20] Mattar v R [2012] NSWCCA 98; BC201203260 …. [5-s 57.1] Matthews v Fountain [1982] VR 1045 …. [8-s 192D.5] Matthews; R v (1950) 34 Cr App R 55 …. [8-s 117.30]

Maxwell v Keun [1928] 1 KB 645 …. [2-s 190.1] — v R (1996) 184 CLR 501; 135 ALR 1 …. [2-s 207.1], [7-105], [7-170] — v — (1996) 184 CLR 501; 135 ALR 1 …. [2-s 153.1], [2-s 193.1] — v — (2007) 177 A Crim R 498 …. [5-s 54B.5] 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] 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 527 …. [2-s 190.1] Mehajer v R [2014] NSWCCA 167; BC201406853 …. [8-s 249B.10], [8-s 249B.15] Meher; R v [2004] NSWCCA 355; BC200406985 …. [2-s 161.1], [2-s 161.25] Meissner v R (1995) 184 CLR 132; 130 ALR 547 …. [2-s 207.1] — v — (1995) 184 CLR 132; 130 ALR 547 …. [2-s 154.5], [8-s 319.5] Meissner; R v (1994) 76 A Crim R 81 …. [2-s 222.30] Meller v Low (2000) 48 NSWLR 517 …. [8-s 60.5] Mellifont; R v (1992) 64 A Crim R 75 …. [7-105] Melser v Police [1967] NZLR 437 …. [21-s 206.10] Melville; R v (1956) 73 WN (NSW) 579 …. [2-s 161.30] 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] Merrin; R v (2007) 174 A Crim R 100 …. [5-s 55.1] Merrit; R v [1999] NSWCCA 29; BC9900749 …. [2-s 161.15] Merritt; R v (2004) 59 NSWLR 557 …. [5-s 61.1] — (2004) 59 NSWLR 557; 146 A Crim R 309 …. [5-s 61.1] — [2002] NSWCCA 368; BC200205146 …. [21-s 10.1] Messeruy; R v (1932) 49 WN 221 …. [8-s 99.20] MG v R (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] Mickelberg v R (No 3) (1992) 8 WAR 236; 59 A Crim R 288 …. [2-s 91.10], [2-s 93.5] Mifsud v R [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 22.1] Miles; R v (1842) 6 Jur 243 …. [8-s 58.10] 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] Millard; R v (1906) 23 SR (NSW) 38 …. [8-s 125.15] 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] Miller, Ex parte; Re Hamilton (1934) 51 WN (NSW) 101 …. [8-s 527C.5] Mills; R v (2005) 154 A Crim R 40 …. [8-s 203E.10] — BC9504475 …. [8-s 19A.1] Milne v Mutch [1927] VLR 190 …. [11-125.15] Milnes and Green; R v (1983) 33 SASR 211 …. [2-s 32.5], [7-160] 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] Mitchell, R v Gallagher; R v (2007) 177 A Crim R 94 …. [8-s 33.20] Mitchell; R v [1983] 1 QB 741 …. [8-s 18.55] — BC9504682 …. [7-170] MJ v R [2013] NSWCCA 250; BC201314495 …. [2-s 16.1] MJB; R v [2014] NSWCCA 195; BC201408161 …. [5-s 53A.5] MJR; R v (2002) 54 NSWLR 368; 130 A Crim R 481 …. [5-s 19.1] MM v R [2011] NSWCCA 262; BC201110755 …. [2-s 21.1] MM; R v (2004) 145 A Crim R 148 …. [2-s 159.1], [2-s 160.1], [7-477] MMK; R v (2006) 164 A Crim R 481 …. [5-s 3A.1]

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] Moffat; R v (1994 unreported) …. [5-s 44.15] Moffitt; R v (1990) 20 NSWLR 114; 49 A Crim R 20 …. [5-s 44.10] Mohamadin; R v [2004] NSWCCA 401; BC200408093 …. [5-s 21A.5] Mok; R v (1987) 27 A Crim R 438 …. [2-cl 21.5], [2-s 16.5] — (1987) 27 A Crim R 438 …. [7-495] Molloy; R v [1921] 2 KB 364 …. [8-s 139.5] Moore; R v [1979] Crim LR 789 …. [10-s 3.30] — [2015] NSWCCA 316; BC201512362 …. [8-s 18.50] Moors v Burke (1919) 26 CLR 265 …. [8-s 7.1] — v — (1919) 26 CLR 265; 25 ALR 213 …. [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] — v R (1993) 30 NSWLR 543; 67 A Crim R 526 …. [2-s 293.1] Morgan; Ex parte A-G (Qld); R v [1987] 2 Qd R 627; (1986) 24 A Crim R 342 …. [2-s 161.25], [8-s 23A.1] Morgan; R v (1993) 30 NSWLR 543; 67 A Crim R 526 …. [2-s 293.1] — [1970] 3 All ER 1053 …. [8-s 249B.5] Morris v R [2010] NSWCCA 152; BC201005732 …. [7-575] Morris; R v (1867) 10 Cox CC 480 …. [2-s 193.5] — [1983] 3 All ER 288 …. [8-s 118.1] — BC9505222 …. [5-s 98.1] 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 8.10], [5-s 9.5] — v United Collierier Pty Ltd [2002] NSWIR Comm 173 …. [2-s 14.1] Morrison; R v (1889) 10 LR (NSW) 197 …. [2-s 31.1] Morrissey v R (1994 unreported) …. [5-s 44.15] Morton v — [2014] NSWCCA 8; BC201400992 …. [5-s 22.1] Mosely; R v (1992) 28 NSWLR 735; (1992) 65 A Crim R 542 …. [1-020],

[7-915], [2-s 19.1], [2-s 227.10] Moss v Brown [1979] 1 NSWLR 114 …. [1-200], [2-s 55.5], [2-s 57.1] Mossop; R v (1991) 9 Petty SR 4453 …. [11-140.5] Most; R v (1881) 7 QBD 244 …. [8-s 26.20] Moussad; R v (1999) 152 FLR 373 …. [2-s 16.25] Moyse v R (1988) 38 A Crim R 169 …. [5-s 55.1] MPW; R v BC9507332 …. [2-s 133.1] Mraz v R (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 …. [2-s 193.5] — v — (1956) 96 CLR 62; [1956] 63 ALR 999 …. [2-s 193.5] — v — (1956) 96 CLR 62; [1956] ALR 999; (1956) 30 ALJR 604 …. [8-s 18.20] MSK and MAK; R v (2004) 61 NSWLR 204; 148 A Crim R 453 …. [2-s 294A.1] Muggleton v R [2015] NSWCCA 62; BC201502535 …. [5-s 28.1] Mulato; R v [2006] NSWCCA 282; BC200607186 …. [5-s 54B.5] Muldoon; R v (1870) 9 SCR (NSW) 116 …. [8-s 327.15] Muldrock v R (2011) 244 CLR 120; 281 ALR 652 …. [5-s 3A.1], [5-s 54A.1], [5-s 54B.5] — v — (2011) 281 ALR 652; 85 ALJR 1154 …. [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] — v — (1930) 44 CLR 38 …. [8-s 545C.10] Munro; R v (1981) 4 A Crim R 67 …. [8-s 96.5] — (2001) 51 NSWLR 540 …. [8-s 58.15], [8-s 58.20], [8-s 418.1] Munton v West, Re [1927] 1 Ch 262 …. [8-s 53.5] Murnin; R v (1985 unreported) …. [8-s 52A.45] Murphy v Porter (1984) 12 A Crim R 38 …. [8-s 188.30] — v R (1988) 52 SASR 186; 37 A Crim R 405 …. [2-s 153.1] — v — (1989) 167 CLR 94; 86 ALR 35 …. [2-s 40.1], [21-s 48.50] Murphy; R v (1985) 158 CLR 596; 61 ALR 139 …. [1-200]

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— 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], [29973.5] — v Manners [2008] NSWSC 1242; BC200810289 …. [29-956.5], [29965.5] — 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] New South Wales Commisioner of Police v Tuxford [2002] NSWCA 139; BC200202538 …. [2-s 227.1] New South Wales Commissioner of Police v — [2002] NSWCA 139; BC200202538 …. [2-s 222.10], [2-s 228.1] New South Wales Meat Industry Authority v Randall BC9402383 …. [2-s 208.5] Newell; R v [2004] NSWCCA 183; BC200403547 …. [8-s 86.15] 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 — [2007] NSWCCA 14; BC200700369 …. [5-s 55.1] — v — [2015] NSWCCA 78; BC201503259 …. [2-s 161.15] Nguyen; R v Cannistra; R v [2006] NSWCCA 389; BC200610047 …. [10-s 23.50] Nguyen; R v (1995) 36 NSWLR 397 …. [8-s 58.20] — (2004) 149 A Crim R 343 …. [8-s 319.15] — BC9700251 …. [8-s 121.5] — [2002] NSWCCA 183; BC200202582 …. [5-s 10.1] Niass; R v BC8801314 …. [5-s 24.1] — [2005] NSWCCA 120; BC200501841 …. [2-s 161.10] Nicholls v R; Coates v R (2005) 213 ALR 1; (2005) 79 ALJR 468 …. [2-s 281.1] Nicholson; R v [2010] NSWCCA 80; (unreported) …. [5-s 12.5] Nicolaidis; R v (1994) 33 NSWLR 364; 72 A Crim R 394 …. [7-150] Nilson; R v [1971] VR 853 …. [7-405], [7-600]

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] Novakovic; R v [2004] NSWCCA 437; BC200408421 …. [5-s 44.15] NP; R v [2003] NSWCCA 195; BC200303815 …. [5-s 22.1], [5-s 23.1] Nundah; R v (1916) 16 SR (NSW) 482 …. [8-s 117.35] Nydam [1977] VR 430 …. [8-s 18.50] — v R [1977] VR 430 …. [8-s 18.50] Nykolyn; R v [2012] NSWCCA 219; BC201208031 …. [5-s 53.5], [5-s 53A.5] NZ; R v (2005) 63 NSWLR 628 …. [2-s 289I.1], [2-s 306S.1], [2-s 306U.1], [2-s 306Z.1] O’Donoghue; R v (2005) 151 A Crim R 597 …. [8-s 112.7] O’Neill; R v (2001) 122 A Crim R 510 …. [21-s 10.1] O’Brien v Smith (1986 unreported) …. [10-s 3.30] O’Brien; R v (1921) 21 SR 136 …. [8-s 117.20] O’Donoghue; R v (1917) 23 CLR 9 …. [8-s 159.30] — (1988) 34 A Crim R 397 …. [2-s 160.1] — (2005) 151 A Crim R 597 …. [8-s 105A.1] O’Grady; R v BC9703122 …. [8-s 61I.65] O’Hare v DPP [2000] NSWSC 430; BC200005032 …. [2-s 93.5] O’Loughlin; Ex parte Ralphs; R v (1971) 1 SASR 219 …. [2-s 19.5] O’Meagher; R v (1997) 101 A Crim R 196 …. [8-s 61I.5] O’Neill & Parker; R v (1980) 2 A Crim R 401 …. [10-s 3.15] O’Neill; R v [1979] 2 NSWLR 582; (1979) 1 A Crim R 59 …. [2-s 153.1] O’Sullivan v Brady [1954] SASR 140 …. [11-125.15] — v Tregaskis [1948] SASR 12 …. [8-s 527C.10] O’Sullivan, Ex parte; Re Craig (1944) 44 SR (NSW) 291; 61 WN (NSW) 197 …. [2-s 16.5] O’Toole v Samuels (1972) 3 SASR 30 …. [8-s 125.15]

Ogochukwu; R v [2004] NSWCCA 473; BC200409545 …. [5-s 44.10] Ohar; R v (2004) 59 NSWLR 596; 145 A Crim R 453 …. [5-s 54B.5] 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] Oinonen; R v [1999] NSWCCA 310; BC9906740 …. [5-s 22.1] Olbrich; R v (1999) 199 CLR 270; 166 ALR 330 …. [10-s 25.25] Oliver; R v (1980) 7 A Crim R 174 …. [5-s 21.1] — (1984) 57 ALR 543 …. [2-cl 21.20], [2-s 161.40] OM; R v (2011) 212 A Crim R 293 …. [8-s 319.5] — [2011] NSWCCA 109; BC201103302 …. [8-s 312.5] Onufrejczyk; R v [1955] 1 QB 388 …. [8-s 18.65] 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], [211535.5], [21-3170.1] Orchard; R v (1993) 70 A Crim R 289 …. [10-s 23.35] Orcher; R v (1999) 48 NSWLR 273 …. [8-s 326.10] Orton; R v [1922] VLR 469 …. [2-s 160.1] Osland v R (1998) 197 CLR 316; 159 ALR 170 …. [8-s 18.15] — v — (1998) 197 CLR 316; 159 ALR 170; 73 ALJR 173 …. [8-s 23.3] — v — (1998) 197 CLR 316; 159 ALR 170 …. [8-s 18.15] Ousley v — (1997) 192 CLR 69; 148 ALR 510 …. [21-s 48.50] Overall; R v (1993) 71 A Crim R 170 …. [8-s 59.20] Overton; R v (1843) 4 QB 83 …. [8-s 327.10] Owens; R v (1987) 30 A Crim R 59 …. [8-s 52A.15] Ower, Appeal of (1945) 46 SR (NSW) 51; 62 WN (NSW) 222 …. [2-s 11.1] Ozcan; R v BC8802303 …. [2-s 21.10] Paauwe; R v [1970] 3 NSWR 131 …. [2-s 99.1] Packer; R v [1932] VLR 225 …. [8-s 79.1] Pagett; R v (1983) 76 Cr App R 279 …. [8-s 18.15] Pahuja; R v (1987) 49 SASR 191; 30 Crim R 418 …. [7-530]

Painter; R v (1870) 9 SCR (NSW) 277 …. [2-s 17.0] 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] Palu; R v (2002) 134 A Crim R 174 …. [5-s 11.1] Pan Laboratories Pty Ltd v Lyon (1995) 78 A Crim R 498 …. [2-s 65.15] Panchal v R; R v Panchal [2014] NSWCCA 275; BC201409995 …. [2-s 306P.5] Panetta; R v (1997) 2 MVR 332 …. [8-s 52A.45] Pangallo; R v (1989) 51 SASR 254; 44 A Crim R 462 …. [8-s 23A.10] Papakosmas v R (1999) 196 CLR 297; 164 ALR 548 …. [8-s 61I.10] Parhizkar v — [2014] NSWCCA 240; BC201409191 …. [8-s 93B.5] Paris; R v [2001] NSWCCA 83; BC200104818 …. [5-s 10.1] Parissienne Basket Shoes v Whyte (1938) 59 CLR 369; [1938] ALR 119 …. [2-s 179.1] Park v R [2010] NSWCCA 151; BC201005731 …. [8-s 30.1] Park; R v [2003] NSWCCA 203; BC200304065 …. [2-s 161.15] Parker v Churchill (1985) 9 FCR 316; 63 ALR 326 …. [21-s 49.5] — v — (1986) 9 FCR 334; 65 ALR 107 …. [21-s 48.25] — v DPP (1992) 28 NSWLR 282; 65 A Crim R 209 …. [1-510] — v R (1963) 111 CLR 610; [1963] ALR 524; (1963) 37 ALJR 3 …. [8-s 23.3] — v — (1964) 111 CLR 665; [1964] AC 1369; [1964] ALR 1153 …. [8-s 23.3] — v — (1964) 111 CLR 665; [1964] AC 1369 …. [2-s 161.30] — v Taylor (1994) 68 ALJR 496 …. [2-s 65.15] — v Todhunter (1987) 26 A Crim R 169 …. [8-s 527C.10] Parker; R v [1974] 1 NSWLR 14 …. [7-640], [8-s 188.15] 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]

Partridge; R v (1930) 30 SR (NSW) 410 …. [2-cl 21.5] Pascoe v Nominal Defendant (Qld) (No 2) [1964] Qd R 373 …. [11-125.25] Pateman; R v (1983) 33 A Crim R 212; [1984] 1 Qd R 312 …. [7-485] Paterson; R v (2006) 163 A Crim R 122 …. [9-s 16A.10] Patmoy, Ex parte; Re Jack (1944) 44 SR (NSW) 351 …. [8-s 527C.10], [8-s 527C.20] Patten v JP, Redfern Court (1986) 22 A Crim R 94 …. [21-s 48.10], [21-s 48.35] Patterson v Alsleben (1990 unreported) …. [11-125.25] Patterson; R v [1962] 2 QB 429 …. [8-s 114.10] Payne; R v (1866) LT 1 CCR 27 …. [8-s 310C.5] Peacock v R (1911) 13 CLR 619; 17 ALR 566 …. [2-s 161.15] — v — (1911) 13 CLR 619; 17 ALR 566 …. [2-s 31.1] Pearce v — (1998) 194 CLR 610; 156 ALR 684; 72 ALJR 1416 …. [5-s 53A.5] — v — (1998) 194 CLR 610; 156 ALR 684 …. [2-s 19.5], [2-s 156.1], [5-s 55.1], [8-s 113.15] Pearce; R v [1966] 3 All ER 618 …. [8-s 212.15] Pearson; R v [2005] NSWCCA 116; BC200502327 …. [5-s 21A.1] Peehi; R v (1997) 41 NSWLR 476 …. [8-s 310D.5] Peel; R v [1971] 1 NSWLR 247 …. [5-s 21.1] Peisley; R v (1990) 54 A Crim R 42; (1992) 16 Crim LJ 197 …. [8-s 23.3] 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 …. [8-s 18.55] — v — (1971) 124 CLR 107; [1971] ALR 762 …. [8-s 58.5] — v — (1971) 124 CLR 107; [1971] ALR 762 …. [2-s 161.1], [2-s 161.30], [8-s 18.5] Pengilley v — [2006] NSWCCA 163; BC200603582 …. [2-s 161.5] Penich and Maxwell; R v (1991) 55 A Crim R 464 …. [7-475] Pennisi; R v [2001] NSWCCA 326; BC200105217 …. [5-s 22.1] Penza and Di Maria v R [2013] NSWCCA 21; BC201300634 …. [8-s 18.20] Pereira v DPP (1988) 82 ALR 217; (1988) 35 A Crim R 382; (1989) 63

ALJR 1 …. [10-s 10.15] — v — (1988) 82 ALR 217; 35 A Crim R 382; (1989) 63 ALJR 1 …. [8-s 7.1] Perera; R v [1986] 1 Qd R 211; (1985) 16 A Crim R 292 …. [2-s 161.25] Perez-Vargas; R v (1987) 8 NSWLR 559 …. [5-s 23.1] Perez; R v BC9101351 …. [8-s 33B.3] — [2004] NSWCCA 218; BC200404318 …. [5-s 44.10] Pernich and Maxwell; R v (1991) 55 A Crim R 464 …. [2-s 160.1] Perry v R (1990) 49 A Crim R 243 …. [8-s 23A.10] Perry (No 1); R v (1981) 27 SASR 166 …. [7-485] Peters v Asplund [2008] NSWSC 1061; BC200808827 …. [2-s 222.1], [2-s 222.5], [2-s 229.5] Peters and Heffernan; R v (1995) 83 A Crim R 142 …. [2-s 19.5] Petroff; R v (1980) 2 A Crim R 101 …. [2-s 161.5] Petronius-Kuff; R v [1983] 3 NSWLR 178; (1978) 8 A Crim R 18 …. [8-s 117.5] Petroulias v R (2007) 176 A Crim R 302 …. [2-s 19.5] — v — [2010] NSWCCA 95; BC201002944 …. [9-s 22.5] PGM (No 2) v — [2012] NSWCCA 261; BC201210735 …. [2-s 306D.5] PH v — [2009] NSWCCA 161; BC200905526 …. [8-s 66A.40] Pham; R v [2004] NSWCCA 190; BC200404890 …. [2-s 21.15] — [2005] NSWCCA 94; BC200501606 …. [5-s 47.1], [5-s 57.1], [8-s 310D.35] Phillips v Cassar [1979] 2 NSWLR 340 …. [8-s 417A.1] Phillips; R v [1971] ALR 740; (1971) 45 ALJR 467 …. [8-s 58.5], [8-s 61L.10] — [1973] 1 NSWLR 275 …. [8-s 114.10] Philp; R v (1999) 108 A Crim R 336 …. [5-s 95.10] — (1999) 108 A Crim R 336 …. [5-s 95.5] Phung; R v [2001] NSWSC 115; BC200100670 …. [21-s 112.1] Piccin (No 2); R v [2001] NSWCCA 323; BC200105655 …. [5-s 10.1] Pickett; R v [2010] NSWCCA 273; BC201008882 …. [10-s 25.25]

Picknell; R v [1970] 1 NSWR 604; (1969) 90 WN (Pt 1) (NSW) 731 …. [7505] Piddington v Bates [1960] 3 All ER 660; [1961] 1 WLR 162 …. [8-s 546C.5] — v — [1961] 1 WLR 162 …. [8-s 546C.15] Pierpont; R v (1993) 71 A Crim R 187 …. [8-s 114.10] Pilley; R v (1991) 56 A Crim R 202 …. [10-s 29.25], [10-s 43.5] — (1991) 56 A Crim R 202 …. [10-s 25.25] Piltz; R v (2004) 59 NSWLR 538 …. [8-s 93G.20] 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] Pipe; R v (1966) 51 Cr App Rep 17 …. [2-s 32.5] Pirani v Hardy (1994 unreported) …. [21-s 99.5] Pittman v Di Francesco (1985) 4 NSWLR 133 …. [8-s 527C.10], [8-s 547D.1] Pittman; R v (1862) 172 ER 192 …. [8-s 117.20] PJE; R v (unreported) …. [2-s 19.5] — BC9507224 …. [2-s 293.1] PL; R v (2009) 261 ALR 365 …. [8-s 18.15], [8-s 18.40] 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] Plimmer; R v (1975) 61 Cr App R 264 …. [2-s 161.65] Plomp v R (1963) 110 CLR 234; [1964] ALR 267 …. [8-s 18.65] — v — (1963) 110 CLR 234; [1964] Qd R 170; [1964] ALR 267 …. [2-s 161.15] Plunkett v Kroemer [1934] SASR 124 …. [8-s 546C.10] PM v R (2007) 232 CLR 370; 240 ALR 1 …. [2-s 8.10] Pocock; R v (1851) 5 Cox CC 172 …. [8-s 18.50] Pogson, Lapham and Martin; R v [2012] NSWCCA 225; BC201208084 …. [5-s 7.5] Pogson; R v Lapham; R v Martin; R v (2012) 82 NSWLR 60; 91 ACSR 420 …. [5-s 76.1]

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] Pollock v — [2007] NSWSC 148; BC200701139 …. [5-s 44.40] Ponfield; R v (1999) 48 NSWLR 327 …. [5-s 37.1] Popa v R (1991) 53 A Crim R 102 …. [10-s 29.20] — v — (1991) 53 A Crim R 102 …. [10-s 25.1] Popescu; R v (1989) 39 A Crim R 137 …. [7-575] Porte; R v [2015] NSWCCA 174; BC201505867 …. [5-s 7.5], [8-s 91H.1] 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] Porter; R v (2004) 61 NSWLR 384; 186 FLR 350 …. [8-s 527C.10] 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] Potisk; R v (1973) 6 SASR 389 …. [8-s 117.15], [8-s 117.55] Potter; R v (1994) 72 A Crim R 108 …. [5-s 23.1] 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 at CLR 628 …. [5-s 44.10] — v — (1974) 131 CLR 623; 3 ALR 553 …. [5-s 44.10] Powles; R v (1831) 4 C & P 571 …. [8-s 27.45], [8-s 41.35] — (1831) 4 C & P 571 …. [8-s 39.35] Powter, Ex parte; Re Powter (1945) 46 SR (NSW) 1; 63 WN (NSW) 34 …. [2-s 202.15] PPB; R v [1999] NSWCCA 360; BC9907459 …. [5-s 23.1] PPC v Williams [2013] NSWCCA 286; BC201319110 …. [2-s 298.5] Prasad; R v (1979) 23 SASR 161; 2 A Crim R 45 …. [7-530]

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] Preval; R v [1984] 3 NSWLR 647 …. [8-s 61H.5] Previtera; R v (1997) 94 A Crim R 76 …. [5-s 28.5], [8-s 19A.1], [8-s 24.30], [8-s 52A.45] PRFN; R v [2000] NSWCCA 230; BC200003392 …. [8-s 58.20] Price v Ferris (1994) 34 NSWLR 704; 74 A Crim R 127 …. [1-275] — v Humphries [1958] 2 QB 353; [1958] 2 All ER 725 …. [2-s 14.1] Price; R v (2016) 75 MVR 89 …. [2-s 168.1], [5-s 53A.5] — [2004] NSWCCA 186; BC200405783 …. [8-s 52A.45] Principal Registrar of the Supreme Court of NSW v Tastan (1994) 75 A Crim R 498 …. [2-s 222.30] Pritchard, Ex parte (1914) 31 WN (NSW) 104 …. [8-s 502.5] Producers and Citizens Co-operative Assurance Co Ltd v Packer [1955] AR (NSW) 1002 …. [2-s 16.35] Ptohopoulos; R v (1967) 52 Cr App Rep 47 …. [11-380.10] Public Guardian v Guardianship Board (1997) 42 NSWLR 201 …. [2-s 132.10] Puciarello; R v (unreported) …. [10-s 25.1] — BC9002361 …. [2-s 16.5], [10-s 25.100], [10-s 25.25] Pulitano v R [2010] NSWCCA 45; BC201001318 …. [5-s 24.1] Pullman; R v (1991) 25 NSWLR 89 …. [8-s 18.55], [8-s 54.10] Purdon v Dittmar [1972] 1 NSWLR 94 …. [8-s 527C.15] Purdy; R v [1982] 2 NSWLR 964; (1982) 7 A Crim R 122 …. [8-s 23A.1], [8-s 23A.10] Pureau v R (1990) 19 NSWLR 372; 47 A Crim R 230 …. [2-s 162.1] Pureau; R v (1990) 19 NSWLR 372 …. [2-s 161.20], [8-s 61I.20] Purtell; R v (2001) 120 A Crim R 317 …. [8-s 319.15] Quartly; R v (1986) 11 NSWLR 332; 22 A Crim R 252 …. [8-s 23.3] Quayle v R [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] Quin; R v [2009] NSWCCA 16; BC200900696 …. [5-s 44.15] Quinn; R v (1991) 55 A Crim R 435 …. [2-s 161.20] — (1991 unreported) …. [2-s 23.5] R v A [2003] NSWCCA 157; BC200303127 …. [8-s 91D.20] — v A2; R v KM; R v Vaziri (No 2) [2015] NSWSC 1221; BC201511092 …. [8-s 45.5], [8-s 45A.5] — 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 …. [5-s 76.1], [8-s 45.10] — v AB (2011) 59 MVR 356 …. [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], [8s 527C.10] — v Abdallah (No 3) [2015] NSWSC 121; BC201500937 …. [2-s 314.15] — v Abdullah (2001) 127 A Crim R 46 …. [2-s 161.35] — v Achurch [2011] NSWCCA 186; BC201106195 …. [10-s 25.25] — v ACK 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 3.75] — v Adler (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 (1992 unreported) …. [10-s 29.10] — v AGR 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 AJB (2007) 169 A Crim R 32 …. [5-s 44.15] — v AJP (2004) 150 A Crim R 575 …. [8-s 66A.40] — v Al Khair BC9402671 …. [10-s 25.35], [10-s 25.45] — v Aldridge (1990) 20 NSWLR 737; 51 A Crim R 281 …. [7-495], [7-575] — v — (1993) 67 A Crim R 371 …. [2-s 21.1] — 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 190.1] — v Alexandroia (1995) 81 A Crim R 286 …. [2-s 40.1] — 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 …. ERROR — v Anastasiou (aka Peters) (1991) 21 NSWLR 394 …. [7-475] — v — (1991) 21 NSWLR 394; 52 A Crim R 7 …. [7-405] — v Anderson (2001) 127 A Crim R 116 …. [2-s 161.10] — v — (1983 unreported); (1983) Petty SR 2897 …. [10-s 10.25], [10-s 10.40] — v — (1994 unreported) …. [2-s 93.5] — v Andrews [1973] 1 QB 422 …. [8-s 319.5] — v Annecchini 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 …. [8-s 319.5], ERROR — 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], [5-s 12.1] — 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 …. ERROR — v Attard [1970] 1 NSWR 750 …. [2-s 31.1] — v — BC9301923 …. [8-s 61J.1], [8-s 98.5] — v Aubrey [2012] NSWCCA 254; BC201209323 …. [8-s 35.10] — v Avery [1965] NSWR 1419 …. [2-s 31.1] — v Aziz [1982] 2 NSWLR 322 …. [2-s 161.55] — v B (1990) 12 MVR 540 …. [8-s 52A.5], [8-s 52A.10] — v — (1993) 68 A Crim R 547 …. [8-s 41.15] — v — (1994 unreported) …. [8-s 61I.65] — v BA [2014] NSWCCA 148; BC201405995 …. [5-s 44.20] — v Baartman 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 Bahsa (2003) 138 A Crim R 245 …. [5-s 55.1] — v Bailey (1907) 24 WN (NSW) 23 …. [8-s 126.10] — v — [1924] QWN 38 …. [8-s 117.30] — v Baird (1985) 3 NSWLR 331 …. [8-s 7.1], [10-s 10.15], [10-s 12.1] — v Baker BC9402549 …. [8-s 19A.1] — v Bakewell BC9602796 …. [5-s 28.1] — v Baleisuva [2004] NSWCCA 344; BC200406822 …. [5-s 23.1], ERROR — v Bamford [1972] 2 NSWLR 261 …. [2-s 105.1] — v Banner [1970] VR 240 …. [8-s 310D.10] — v Barakat [2004] NSWCCA 201; BC200403884 …. [5-s 44.15] — v Barca (1978 unreported) …. [2-s 40.1] — v Barrass [2005] NSWCCA 131; BC200502092 …. [8-s 61L.10], [8-s 61O.3] — 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 [2001] NSWCCA 63; (2001) 121 A Crim R 185 …. [5-s 33.5]

— v — [2004] NSWCCA 229; BC200404319 …. [2-s 21.15] — v Basha (1989) 39 A Crim R 337 …. [1-200], [2-s 8.10], [2-s 57.1], [2-s 59.15], [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] — v — [1925] All ER 45; (1925) 19 Cr App R 8 …. [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 BC8902364; (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] — v — [2015] HCA 38; BC201510237 …. [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 (1981) 3 A Crim R 432 …. [8-s 188.25] — v — BC9301860 …. [8-s 94.10] — v Bellino and Conte [1993] 1 Qd R 521; (1992) 59 A Crim R 323 …. [7485] — 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 …. ERROR — v Bennie [1953] VLR 583 …. [8-s 125.15] — v Berg (2004) 41 MVR 399 …. [8-s 52A.45], ERROR — v Bergin (1984 unreported) …. [10-s 43.1] — v Bernhard [1938] 2 KB 264 …. [8-s 117.35] — v Bernthaler BC9302364 …. [2-s 293.1]

— v Berrigan (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 61L.10], [8-s 61Q.1] — v Besim (2004) 148 A Crim R 28 …. [8-s 18.55] — v Beydoun (1990) 22 NSWLR 256; (1990) 51 A Crim R 89 …. [8-s 192E.20] — v — (1990) 22 NSWLR 256; 51 A Crim R 89 …. [8-s 192B.15] — v Bielaczek 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], [7-530] — v Bingapore (1975) 11 SASR 469 …. [8-s 18.15] — v Bircham [1972] Crim LR 430 …. [2-s 160.1] — v Black (1983) 35 SASR 261; (1984) ACLD 113 …. [10-s 3.25] — v — (1993) 179 CLR 44; 118 ALR 209 …. [7-805] — v — [1963] WLR 1311 …. [2-s 160.1] — v — BC9805277 …. [8-s 52A.45] — v Blacklidge BC9501665 …. [8-s 24.30] — v Blackman [2001] NSWCCA 121; BC200102144 …. [5-s 12.1] — 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 BC9403425 …. [8-s 39.20] — v Blanco (1987 unreported) …. [10-s 25.25] — 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 (1993 unreported) …. [8-s 61I.65] — v Boden (1844) 1 Car & Kir 395 …. [8-s 117.35] — v Boehner (1978 unreported) …. [10-s 10.35] — v Bogacki [1973] 1 QB 832 …. [8-s 154A.5] — v Bolduc and Bird (1967) 61 DLR (2d) 494 …. [8-s 61L.10]

— v Bollen (1998) 99 A Crim R 510 …. [5-s 28.5] — v Bolton (1981 unreported) …. [8-s 53.5] — v Bond BC9603728 …. [2-s 293.1] — v Bonora (1994) 35 NSWLR 74 …. [8-s 61L.10] — v — (1994) 35 NSWLR 74 …. [8-s 58.5] — v Booth [1982] 2 NSWLR 847; (1982) 8 A Crim R 81 …. [7-485] — v — [2014] NSWCCA 156; BC201406807 …. [5-s 55.1] — v Borkowski (2009) 52 MVR 528; 195 A Crim R 1 …. [8-s 18.55], [8-s 24.30] — v — [2009] NSWCCA 102; BC200902544 …. [5-s 22.1] — 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 Boughen [2012] NSWCCA 17; BC201200777 …. [5-s 7.5] — v Boulad [2005] NSWCCA 289; BC200506979 …. ERROR — 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 Bowen [1997] 2 Qd R 379 …. [5-s 12.5] — v Boyle [1954] 2 QB 292 …. [7-150] — v Bradley BC9302270 …. [8-s 94.20] — v Brady (1980) 2 A Crim R 42; Petty Sessions Review 2199 …. [10-s 12.1] — v — (1980) 2 A Crim R 42; Petty SR 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] — v Brenner [1990] Tas R 131 …. [8-s 117.55] — v Brett [2004] NSWCCA 372; BC200407211 …. [5-s 22.1] — v Brewer (No 1) [2015] NSWSC 1471; BC201509713 …. [2-s 314.15] — 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 (1883) 10 QBD 381 …. [8-s 30.1] — v — (1982) 79 FLR 148 …. [8-s 24.15] — v — (1987) 78 ALR 368; 32 A Crim R 162 …. [2-s 161.30] — v — (1989) 17 NSWLR 472; 44 A Crim R 385 …. [7-001] — v — (1989) 17 NSWLR 472; 44 A Crim R 385 …. [2-s 8.10], [2-s 153.1] — v — [1993] 2 WLR 556 …. [8-s 59.5] — v — [1994] 1 AC 212 …. [8-s 58.5] — v — [2009] NSWCCA 6; BC200901586 …. [5-s 11.1] — v — [2012] NSWCCA 199; BC201207329 …. [5-s 53A.5] — v — [2012] NSWCCA 199; BC2012073329 …. [5-s 53.5] — v Browne (1987) 30 A Crim R 278 …. [7-495], [7-575], [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 Buckett (1995) 132 ALR 669; 79 A Crim R 303 …. [8-s 117.35] — v — (1995) 132 ALR 669; 79 A Crim R 303 …. [8-s 351.15] — v Buckley [1979] Crim LR 665 …. [10-s 3.30] — v Bugmy [2004] NSWCCA 258; BC200404869 …. [5-s 95.1] — 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], [7405] — v — [2002] NSWCCA 353; BC200205003 …. [5-s 23.1] — v Burnard [2009] NSWCCA 5; BC200900762 …. [5-s 12.1] — 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 …. [8-s 323.20] — 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], [2-s 65.10], [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 …. [2-s 161.45] — v Byrne (1998) 104 A Crim R 456 …. [5-s 6.1] — v — [1960] 2 QB 396 …. [8-s 23A.1] — v Cacciola (1998) 104 A Crim R 178 …. [10-s 25.25] — v Cahill [2015] NSWCCA 53; BC201502231 …. [10-s 25.25] — 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 Camberwell Green Stipendiary Magistrate; Ex parte Christie [1978] QB 602; 2 All ER 377 …. [2-s 55.5] — v Cameron (1924) 24 SR (NSW) 302 …. [8-s 117.10] — v — (2002) 209 CLR 339; 187 ALR 65 …. [5-s 22.1] — v — (2005) 157 A Crim R 70 …. [8-s 24.30] — v — [1983] 2 NSWLR 66 …. [2-s 161.20], [8-s 61I.85], [8-s 61Q.1] — v — [1983] 2 NSWLR 66; (1983) 8 A Crim R 466 …. [2-s 162.1] — v Campbell [2004] NSWCCA 314; BC200406256 …. [8-s 121.5] — v — [2005] NSWCCA 132; BC200502032 …. [2-s 161.62] — v Cardoso (2003) 137 A Crim R 535 …. [5-s 22.1] — 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 [1972] 1 NSWLR 608 …. [21-s 133.3] — v — BC9001863 …. [8-s 58.5] — 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 unreported); (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 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; 1 WLR 110 …. [8-s 18.15] — v — [1976] 1 All ER 260; [1976] 1 WLR 110 …. [8-s 18.50] — v Catt (1993) 68 A Crim R 189 …. [7-495] — v CDH [2002] NSWCCA 103; BC200201373 …. [5-s 22.1] — 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] — 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 Chan-Fook [1994] 1 WLR 691 …. [8-s 59.5] — v Chandler [1913] 1 KB 125 …. [8-s 112.5] — v Chant [2009] NSWSC 290; BC200902937 …. [5-s 10A.1] — v Charles [1977] AC 177 …. [8-s 192B.15], [8-s 192E.20] — v — BC9800880 …. [8-s 319.5] — 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-cl 21.5], [2-s 32.5], [2-s 161.25], [2-s 161.40] — v Cheikh; R v Hoete [2004] NSWCCA 448; BC200408756 …. [5-s 22.1] — 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 — (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], ERROR — v Chong [2003] NSWCCA 274; BC200305650 …. [5-s 44.5] — v Chonka [2000] NSWCCA 466; BC200006758 …. [8-s 61O.3] — 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 …. ERROR — v Cicekdag (2004) 150 A Crim R 299 …. [5-s 8.10], [5-s 55.1] — v Cincotta BC9501631 BC9501631 BC9501631 …. [2-s 207.1] — v City of London Coroner; Ex parte Barber [1975] 1 WLR 1310 …. [8-s 31C.5] — v Clarence (1888) 22 QBD 23 …. [8-s 58.5] — v Clarke (1993) 71 A Crim R 58 …. [2-s 21.1], [2-s 161.55] — v — (1995) 78 A Crim R 226 …. [8-s 121.5] — 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 — (1990 unreported) …. [10-s 25.25] — 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] — 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 Colby (1995) 84 A Crim R 125 …. [2-s 65.15], [2-s 91.15], [2-s 93.10], [2-s 93.5]

— 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 (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 …. [8-s 58.20] — v — (1993) 69 A Crim R 92; (1995) 19 Crim LJ 44 …. [8-s 418.1] — v Cook BC9002472 …. [2-s 21.1] — v — [2004] NSWCCA 52; BC200401046 …. ERROR — v Coomer (1989) 40 A Crim R 417 …. [8-s 18.55] — v Cooper (1979) 69 Cr App Rep 229 …. [2-s 150.1] — v — BC9800322 …. [2-s 21.10] — v Cosgrove (1988) 34 A Crim R 299 …. [2-s 161.25] — v Costi (1987) 48 SASR 269 …. [2-s 160.1] — v Cotterill (1993 unreported) …. [10-s 43.5] — v Coulter [1914] 31 WN (NSW) 21 …. [2-s 31.1] — v Court [1989] AC 28; [1988] 2 All ER 221 …. [8-s 61L.10] — v Courtney-Smith (No 2) (1990) 48 A Crim R 49 …. [2-s 161.25] — v Cox (1818) R R 362 …. [8-s 33.5] — v — [1960] VR 665 …. [2-s 40.1] — v CPK BC9504846 …. [7-485] — v Cramp (1880) 5 QBD 307 …. [8-s 39.5] — v — (1999) 30 MVR 9; 110 A Crim R 198 …. [8-s 18.62] — 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 …. [8-s 61I.65] — v — (1997) 99 A Crim R 178 …. [2-s 161.20], [2-s 162.1] — v Croaker [2004] NSWCCA 470; BC200409024 …. [5-s 12.1] — 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] — v D [1984] 3 NSWLR 29 …. [8-s 54.5], [8-s 212.10] — v D’Arrigo [1994] 1 Qd R 603; (1991) 58 A Crim R 71 …. [2-s 32.5] — v Dalby [1982] 1 WLR 425 …. [10-s 3.30] — v — [1982] 1 WLR 425; 1 All ER 916 …. [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-cl 21.5], [2-s 21.15] — v Darling (1884) 5 LR (NSW) 405; 1 WN 74 …. [8-s 56.10] — v — [1974] 2 NSWLR 542 …. [11-140.5] — 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 (1995 unreported) …. [10-s 25.45] — v Davidson [1969] VR 667 …. [8-s 84.5] — v Davies (1973) 7 SASR 375 …. [8-s 327.10]

— v — (1993) 19 MVR 481 …. [2-s 207.1] — v — [1970] VR 27 …. [8-s 117.10], [8-s 117.20] — v Davis (1998) 100 A Crim R 573 …. [8-s 23.3] — v — [1968] 1 QB 72 …. [8-s 31C.5] — v — [1999] NSWCCA 15; BC9900945 …. [2-s 161.1] — 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] — 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 …. [10-s 25A.5] — v — (1981) 147 CLR 383; 35 ALR 265 …. [2-s 153.1] — 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 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 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 BC9703242 …. [8-s 61H.10] — v Dhanhoa [2000] NSWCCA 257; BC200004701 …. [8-s 52A.45] — v Dhillon 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 — [2002] NSWSC 934; BC200205992 …. [7-170] — v — [2003] NSWCCA 117; BC200302577 …. [5-s 22.1] — 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 …. [5-s 12.5], [8-s 47.15] — 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 (1993 unreported) …. [10-s 25.30] — v Donovan [1934] 2 KB 498 …. [8-s 59.5] — 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 Douar (2005) 159 A Crim R 154 …. [5-s 7.5] — v Downs (1985) 3 NSWLR 312 …. [8-s 18.1], [8-s 18.25] — v Doyle (1996) 84 A Crim R 287 …. [5-s 98.1] — v — [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 Duffield (1992) 28 NSWLR 638; 110 ALR 323 …. [7-010] — 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 (1986) 32 A Crim R 203 …. [10-s 10.15] — v — [1973] 2 NZLR 481 …. [8-s 81C.5] — v — (1992 unreported) …. [8-s 61H.5] — v Dunne (1993 unreported) …. [8-s 52A.5], [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 (1981) 28 SASR 134; 4 A Crim R 171 …. [7-485] — v — [1971] 2 QB 315 …. [8-s 117.30] — 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 Edigarov (2001) 125 A Crim R 551 …. [5-s 12.1] — v Edwards [1998] 2 VR 354; (1997) 94 A Crim R 204 …. [2-s 19.5] — v — [2008] SASC 303; BC200809979 …. [8-s 18.55] — v Egan [2013] NSWCCA 196; BC201312170 …. [5-s 12.1] — v Ehrlich [2012] NSWCCA 38; BC201201670 …. [5-s 23.5] — v El Azzi [2001] NSWCCA 397; BC200106121 …. [10-s 6.10] — v El Hani [2004] NSWCCA 162; BC200403011 …. [5-s 22.1], [5-s 23.1] — v El Helou [2010] NSWCCA 111; BC201003286 …. [10-s 25.20] — v El Masri [2005] NSWCCA 167; BC200502544 …. [5-s 8.1] — v El Mir (1957) 75 WN (NSW) 191 …. [2-s 161.10], [7-640] — v El-Andouri [2004] NSWCCA 178; BC200403645 …. [5-s 22.1] — v El-Hayek (2004) 144 A Crim R 90 …. [5-s 44.15] — v El-Zeyat [2002] NSWCCA 138 …. [8-s 315.15] — v ELD [2004] NSWCCA 219; BC200404881 …. [8-s 61I.48] — v Ellames [1974] 3 All ER 130; 1 WLR 1391 …. [8-s 114.10] — v Ellis (1973) 57 Cr App R 571 …. [7-150] — v — (1986) 6 NSWLR 603 …. [5-s 23.1] — v — (1993) 68 A Crim R 449 …. [8-s 97.20] — v — (1987 unreported) …. [10-s 25.30] — 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 Epping and Harlow Justices; Ex parte Massaro [1973] QB 433; [1973] 1

All ER 1011 …. [2-s 59.15] — 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 [1842] Carrington and Marshman 298 …. [8-s 56.10] — v — [1962] SASR 303 …. [2-s 31.1] — 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 BC9705094; (1997) 3 NSWCR 43 …. [11-135.10] — v F (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 — (1996) 90 A Crim R 356; (1996) 3 Crim LN 78 …. [10-s 25.100] — v — (1996) 90 A Crim R 356 …. [2-s 16.25], [10-s 25.1] — 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 (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 Fayd’Herbe [2007] NSWCCA 20; BC200700476 …. [10-s 25.25] — 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 22.1] — 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] — v — [2003] NSWCCA 37; BC200300828 …. [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 Finnie [2002] NSWCCA 533; BC200208375 …. [5-s 12.1] — v Fisher (2002) 54 NSWLR 467 …. [1-055], [1-280], [2-s 6.1], [8-s 61.1] — v — (2003) 56 NSWLR 625; 138 A Crim R 318 …. [2-s 19.1] — v — (2003) 56 NSWlR 625; 138 A Crim R 318 …. [2-s 19.5] — v Fitzgerald (2004) 59 NSWLR 493; 144 A Crim R 316 …. [8-s 66EA.25] — 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 (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 (1992) 25 NSWLR 732 …. [5-s 23.1] — v — (1995) 78 A Crim R 517 …. [8-s 94.10] — v —(1995) 78 A Crim R 517 …. [8-s 97.5] — v — (2001) 33 MVR 565 …. [5-s 5.1], [5-s 12.1] — v Foulstone 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 Crim R 233 …. [2-s 222.25] — v Franklin BC9001999 …. [2-s 31.1] — v Franks [2005] NSWCCA 196; BC200503392 …. [5-s 21A.5]

— v Fransisco and Dorain (1995 unreported) …. [2-s 19.5] — v Fraser [2003] NSWSC 965; BC200306355 …. [2-s 151.5] — v Frazer (2002) 128 A Crim R 89 …. [10-s 3.30] — v Fretwell (1864) L C 443 …. [8-s 29.1] — v Friel (1890) 17 Cox CC 325 …. [2-s 193.5] — v 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 — (1991) 23 NSWLR 220; 53 A Crim R 248 …. [5-s 23.1] — v — [1986] VR 219; (1985) 16 A Crim R 215 …. [8-s 249B.10] — v Galvin (No 2) [1961] VR 740 …. [8-s 58.45], [8-s 546C.5] — v Gamgee (2001) 51 NSWLR 707; 124 A Crim R 469 …. [5-s 12.1] — v Ganderton (1998 unreported) …. [2-s 207.1] — v GAR [2003] NSWCCA 224; BC200304769 …. ERROR — 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] NSWCCA 56; (2014) 239 A Crim R 469 …. [5-s 3A.1] — v — [2014] NSWCCA 56; BC201402604 …. ERROR — 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 (1987) 8 Petty SR 3901 …. [2-s 105.1]

— v — (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] ACLD54 …. [10-s 3.10] — v GK (2001) 53 NSWLR 317; 125 A Crim R 315 …. [7-225] — v GKA (1998) 99 A Crim R 491 …. [7-105] — v GLB [2003] NSWCCA 210; BC200304634 …. [5-s 22.1] — 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 Glusheski (1986) 33 A Crim R 193 …. [2-s 161.25] — v Glynn (1994) 33 NSWLR 139; 71 A Crim R 537 …. [2-s 17.5] — v Goldburg 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 (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 91.1], [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 18.30], [8-s 18.5], [8-s 428B.1] — v Grassby (1988) 15 NSWLR 109 …. [7-001]

— v Grbin [2004] NSWCCA 220; BC200404068 …. [5-s 22.1] — v Greatorex (1994) 74 A Crim R 496 …. [2-s 161.1] — v — (1994) 74 A Crim R 496 …. [10-s 25.1] — v Grech (1998 unreported) …. [8-s 61I.65] — v Greenfield (1973) 57 Cr App R 849; [1973] 1 WLR 1151 …. [2-cl 21.5], [2-s 17.1] — v Greenham [1999] NSWCCA 8; BC9900796 …. ERROR — 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 Griffin (1869) 11 Cox CC 142 …. [8-s 58.10] — v Grooms BC8901617 …. [8-s 7.1] — v Grubbe [2005] NSWCCA 140; BC200502037 …. [5-s 33.1] — v Gu [2006] NSWCCA 104; BC200601976 …. [10-s 25.25] — v Guerin [1967] 1 NSWR 255 …. [2-s 161.25], [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 112.5] — v — (2004) 148 A Crim R 558 …. [8-s 61I.48] — 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] — v — (1993) 66 A Crim R 505 …. [5-s 12.1] — v Haas (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 (1903) 3 SR (NSW) 307; (1903) 20 WN (NSW) 74 …. [8-s 126.10] — v — BC9501747 …. [8-s 94.20] — 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 Harkin (1989) 38 A Crim R 296 …. [8-s 61L.10] — v — (1989) 38 A Crim R 296 …. [8-s 61L.10] — 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 22.1], [10-s 25.25] — v Harran [1969] Crim LR 662 …. [8-s 114.10] — v Harris (1968) 52 Cr App R 277 …. [10-s 3.30] — v — (1988) 17 NSWLR 158 …. [8-s 61H.1] — v — (2000) 50 NSWLR 409; 121 A Crim R 342 …. [5-s 44.10], [5-s 61.1] — v — (2001) 125 A Crim R 27 …. [5-s 33.1] — v — [1961] Crim LR 256 …. [8-s 114.10], [10-s 10.35] — v Harrison (1995) 79 A Crim R 149 …. [2-cl 21.5] — v Harry; Ex parte Eastway (1985) 39 SASR 203; 20 A Crim R 63 …. [2-s 59.15] — v Hartikainen BC9301848 …. [8-s 61I.65] — v Hartley [1972] 2 QB 1 …. [2-s 16.15] — v Harvey (1989) 40 A Crim R 102 …. [5-s 95.1] — v — (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 (1993 unreported) …. [2-s 161.55] — v Haywood (1994) 73 A Crim R 41 …. [8-s 61I.45] — v Hazeltine [1967] 2 QB 857; [1967] 2 All ER 671; [1967] 3 WLR 209; (1967) 51 Cr App Rep 351 …. [2-s 153.1] — 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 (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 BC9002977 …. [2-s 293.1], [8-s 61I.5] — v Henry (1992) 28 NSWLR 348 …. [5-s 23.1] — v — (1999) 46 NSWLR 346; 106 A Crim R 149 …. [8-s 98.20] — v — (1999) 46 NSWLR 346; 106 A Crim R 149 …. [5-s 37.1], [8-s 97.20] — v — (1999) 46 NSWLR 346; 106 A Crim R 149 …. [5-s 37.1], [5-s 42.1] — v — [2007] NSWCCA 90 …. [8-s 98.20] — v Heuston (1995) 81 A Crim R 387 …. [2-s 161.55] — v — (1996) 90 A Crim R 213 …. [2-s 150.1], [2-s 150.5], [7-485] — 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 (1981) 3 A Crim R 397 …. [8-s 24.30] — v — [1988] 1 Qd R 654 …. [2-s 161.25] — 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 unreported); (1976) Petty SR 1749 …. [10-s 10.40], [10-s 10.5] — v Ho (1989) 39 A Crim R 145 …. [8-s 192B.15], [8-s 192E.20] — v — (2002) 130 A Crim R 545 …. [2-s 161.10] — v — BC8802216 …. [2-cl 21.20] — v Hoar (1981) 148 CLR 32; 37 ALR 357 …. [2-cl 21.20], [2-cl 21.5] — v — (1981) 148 CLR 32; 37 ALR 357 …. [5-s 21.1] — v Hodge BC9302236; (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 BC9805510 …. [8-s 52A.15] — v Hornby (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 — 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 …. [7-105] — v — (1992) 29 NSWLR 242 …. [7-100], [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 22.1] — v Hudd BC9403564 …. [2-s 161.40] — v Hudson (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 (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 Hutty [1953] VLR 338; ALR 689 …. [8-s 22A.1] — v — [1953] VLR 338; [1953] ALR 689 …. [8-s 20.1] — v Huynh BC9601945 …. [10-s 25.45] — v Ibrahimi [2005] NSWCCA 153; BC200502338 …. [5-s 21A.1], [5-s 21A.5], ERROR — 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 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 (1864) 9 Cox CC 505 …. [8-s 125.20] — v — (1890) 17 Cox CC 104 …. [8-s 29.1] — v — [1891] 1 QB 671 …. [8-s 58.10] — v — [2004] NSWCCA 110; BC200402093 …. [10-s 25A.1] — v Jacobs (2004) 151 A Crim R 452 …. [8-s 18.110] — v Jamal (1993) 69 A Crim R 544 …. [8-s 61I.45] — v — (2008) 72 NSWLR 258 …. [2-s 30.1] — 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], [8-s 52A.45] — v — [2005] NSWCCA 281; BC200506067 …. [7-150] — 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], [5-s 12.1] — v JDB (2005) 153 A Crim R 164 …. ERROR — 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 Jimenez (2000) 119 A Crim R 299 …. [21-s 49.45] — v Jione [2007] NSWCCA 170; BC200704860 …. [8-s 33.20] — v JJS [2005] NSWCCA 225; BC200504598 …. [5-s 95.1] — v JMR (1991) 57 A Crim R 39 …. [7-525] — v Johal [1973] 1 QB 475; (1972) 56 Cr App R 348 …. [2-s 21.1] — v John [1974] 1 WLR 624 …. [11-125.25] — v Johnson (1786) 2 East PC 448 …. [8-s 112.5] — v — (1979) 22 SASR 161; 4 ACLR 80 …. [7-475] — v — [1945] KB 419 …. [2-s 16.1] — v — BC9002976 …. [2-s 23.5] — v — [2004] NSWCCA 76; BC200402002 …. ERROR — v — [2005] NSWCCA 186; BC200503397 …. [5-s 21A.1] — v Johnstone [2004] NSWCCA 307; BC200405937 …. [5-s 22.1] — v Jolly [1982] VR 46 …. [5-s 55.1] — v Jones (1839) 9 C P 258 …. [8-s 27.15] — v — (1974) 59 Cr App R 120 …. [2-cl 21.5], [2-s 17.1] — v — (1986) 22 A Crim R 42 …. [8-s 23A.1] — v — (1995) 78 A Crim R 504 …. [8-s 58.20] — v — BC8801835 …. [8-s 327.10] — v — 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 …. ERROR — v Jurisic (1998) 45 NSWLR 209; 101 A Crim R 259 …. [5-s 37.1], [8-s 52A.45] — v — (1998) 45 NSWLR 209; 29 MVR 49 …. [5-s 6.1], [5-s 37.1] — v Justelius [1973] 1 NSWLR 471 …. [2-s 16.35] — v K (1993) 118 ALR 596 …. [8-s 58.55] — v Kain (1985) 38 SASR 309 …. [5-s 55.1] — v Kalache (2000) 111 A Crim R 152 …. [5-s 22.1], [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 (1979 unreported) …. [8-s 7.1], [10-s 10.25] — v Keenan (1994) 76 A Crim R 374 …. [8-s 545B.5] — v — (2009) 236 CLR 397; 252 ALR 198 …. [2-s 161.15] — 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], [2-s 93.5], [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 (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 Kerr BC9302221 …. [5-s 98.1] — 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 Kimber [1983] 3 All ER 316 …. [8-s 61L.10] — 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 (2003) 59 NSWLR 472; 139 A Crim R 132 …. [8-s 4.1], [8-s 33.1] — v — (2004) 150 A Crim R 409 …. ERROR — v — (2004) 59 NSWLR 515; 144 A Crim R 405 …. [2-s 162.1] — v — [1978] Crim LR 228 …. [10-s 3.30] — v — [1987] QB 547 …. [8-s 192B.15], [8-s 192E.20] — v — [2000] NSWCCA 507; BC200007789 …. [2-s 161.40] — v — [2009] NSWCCA 117; BC200903121 …. [8-s 61I.65], [8-s 66A.40] — v — [2013] NSWSC 448; BC201302092 …. [2-s 132.1] — v Kinghorne (1982) 8 A Crim R 41 …. [8-s 52A.5], [8-s 52A.10] — v Kipic [2004] NSWCCA 452; BC200408651 …. [5-s 22.1] — 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] — v — (2001) 160 FLR 465; 120 A Crim R 381 …. [21-s 133.3] — v KNL (2005) 154 A Crim R 268 …. [5-s 10.1] — v Kolalich BC9505504 …. [7-805]

— v Koloamatangi [2011] NSWCCA 288; BC201110367 …. [5-s 54B.5] — 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; (1973) 58 Cr App Rep 412 …. [8-s 192E.20] — v — [1974] 1 All ER 1236; (1974) 138 JP 425 …. [8-s 192B.15], [8-s 192D.5] — v Krause (1902) 18 TLR 238; 66 JP 121 …. [8-s 26.25] — v Kringle [1953] Tas SR 52 …. [2-s 16.15] — v Kruger (1977) 17 SASR 214 …. [5-s 12.1] — v Kuckailis [2001] NSWCCA 333; BC200105330 …. [8-s 61L.10] — v Kyroglou [1999] NSWCCA 106; BC9902349 …. [10-s 25.25] — v Lacaze (1981) 3 A Crim R 233 …. [2-s 161.25] — 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 BC200404129; [2004] NSWCCA 217 …. [7-225] — v — [2004] NSWCCA 217; BC200404129 …. [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 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 [1980] 1 NSWLR 122; (1980) 32 ALR 72 …. [2-s 161.30], [5-s 21.1] — v — [1981] 1 All ER 974; (1981) 73 Cr App R 1 …. [2-s 161.1] — v Le (2005) 151 A Crim R 564 …. [21-s 99.10] — v — [2000] NSWCCA 49; BC200001004 …. [8-s 61I.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 Lee Kun [1916] 1 KB 337; [1914-15] All ER Rep 603 …. [2-s 59.10] — v Leenan (1968) 52 CrApp R 185 …. [8-s 61L.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 (1833) 9 C P 523 …. [8-s 29.1] — v — (1914) 10 Tas LR 48 …. [8-s 327.10] — v — [1969] 2 QB 1 …. [2-s 150.1] — v — [2001] NSWCCA 448; BC200106902 …. [8-s 19A.1] — 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 — BC9703285 …. [8-s 61J.2], [8-s 61M.2], [8-s 95.2], [8-s 97.2], [8-s 105A.1] — v Liang (1995 unreported) …. [10-s 25.25] — 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 22.1], [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 …. [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 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 21.15], [2-s 21.5] — v Lynch [1979] 2 NSWLR 775; (1979) 1 A Crim R 117 …. [2-s 285.1] — v McAuliffe (1993) 70 A Crim R 303 …. [8-s 18.15] — v McBride [1962] 2 QB 167 …. [8-s 52A.15] — v McCallum (1995 unreported) …. [2-s 161.35] — v McConnell (1993) 69 A Crim R 39 …. [8-s 188.15] — v — [1977] 1 NSWLR 715 …. [2-s 21.10] — v McCormack [1969] 2 QB 442 …. [8-s 61L.10] — v — [1981] VR 104 …. [8-s 93B.15] — v — [2015] NSWCCA 221; BC201507788 …. [9-s 16A.5]

— v McCoy (2001) 51 NSWLR 702 …. [10-s 6.10] — v McCready (1985) 20 A Crim R 32 …. [2-cl 21.5] — v McDonald (1998) 28 MVR 432 …. [5-s 44.10] — v MacDonald (2000) 110 A Crim R 238 …. [2-s 167.1] — v — (2000) 110 A Crim R 238 …. [2-s 154.1], [7-165] — v McDonald [1980] 2 NZLR 102; [1983] NZLR 252 …. [2-s 32.5] — v MacDonald [1983] 1 NSWLR 729 …. [8-s 117.25] — v — [1983] AC 252 …. [2-s 32.5] — v McDonald [1984] 1 NSWLR 428 …. [2-s 161.10] — v — [1992] 2 Qd R 634 …. [8-s 117.20] — v Macdonald BC9501664 …. [5-s 24.1], [8-s 24.30] — v MacDonnell (2002) 128 A Crim R 44 …. [5-s 23.1], [10-s 25.25] — v McEndoo 5 A Crim R 52 …. [2-s 161.15] — v McGarritty 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 MacIntyre (1988) 38 A Crim R 135 …. [8-s 52A.45] — v McIntyre (2000) 111 A Crim R 211 …. [2-s 161.15] — v MacKenzie (1995) 82 A Crim R 473 …. [8-s 328.1] — v Mackie [1973] Crim LR 54 …. [8-s 58.10] — 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 (1978 unreported) …. [10-s 25.30] — v — BC9602908 …. [2-s 160.1] — v McMillan [2005] NSWCCA 28; BC200500727 …. [5-s 21A.5], [8-s

52A.45], ERROR — 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 …. ERROR — v McPhail (1988) 36 A Crim R 390 …. [21-s 133.3] — 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 Madercine (1899) 15 WN (NSW) 235 …. [2-s 16.1] — v Maginnis [1987] AC 303 …. [10-s 3.30] — v Maharaj 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 (2006) 167 A Crim R 159 …. [5-s 22.1] — v — [2005] NSWCCA 369; BC200509808 …. ERROR — v MAK and MSK (2006) 167 A Crim R 159 …. ERROR — v MAK; R v MSK (2006) 167 A Crim R 159 …. ERROR — 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] — v — [1933] 1 KB 529 …. [8-s 319.5] — v Mansfield (1991 unreported) …. [2-s 31.1] — v Manson BC9303922 …. [8-s 61L.10] — 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 [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 …. ERROR — v Marshall (1987) 49 SASR 133 …. [8-s 29.1] — v — (1990 unreported) …. [2-s 150.5] — 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 44.15], ERROR — 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 …. ERROR — v Meher [2004] NSWCCA 355; BC200406985 …. [2-s 161.1], [2-s 161.25] — v Meissner (1994) 76 A Crim R 81 …. [2-s 222.30] — 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 (2004) 59 NSWLR 557 …. [5-s 61.1] — v — (2004) 59 NSWLR 557; 146 A Crim R 309 …. [5-s 61.1] — v — [2002] NSWCCA 368; BC200205146 …. [21-s 10.1] — v Messeruy (1932) 49 WN 221 …. [8-s 99.20] — v Miles (1842) 6 Jur 243 …. [8-s 58.10] — v Millard (1906) 23 SR (NSW) 38 …. [8-s 125.15] — v Mills (2005) 154 A Crim R 40 …. [8-s 203E.10] — v — BC9504475 …. [8-s 19A.1] — v Milnes and Green (1983) 33 SASR 211 …. [2-s 32.5], [7-160]

— v Mitchell [1983] 1 QB 741 …. [8-s 18.55] — v — BC9504682 …. [7-170], ERROR — v Mitchell, R v Gallagher (2007) 177 A Crim R 94 …. [8-s 33.20] — v MJB [2014] NSWCCA 195; BC201408161 …. [5-s 53A.5], ERROR — v MJR (2002) 54 NSWLR 368; 130 A Crim R 481 …. [5-s 19.1] — v MM (2000) 112 A Crim R 519 …. ERROR — v — (2004) 145 A Crim R 148 …. [2-s 159.1], [2-s 160.1], [7-477] — v MMK (2006) 164 A Crim R 481 …. [5-s 3A.1] — v Moffat (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-cl 21.5], [2-s 16.5] — v — (1987) 27 A Crim R 438 …. [7-495] — v Molloy [1921] 2 KB 364 …. [8-s 139.5] — v Moore [1979] Crim LR 789 …. [10-s 3.30] — v — [2015] NSWCCA 316; BC201512362 …. [8-s 18.50] — 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 — BC9505222 …. [5-s 98.1] — v Morrison (1889) 10 LR (NSW) 197 …. [2-s 31.1] — v Mosely (1992) 28 NSWLR 735; (1992) 65 A Crim R 452 …. [1-020] — v — (1992) 28 NSWLR 735; (1992) 65 A Crim R 542 …. [2-s 19.1], [7915] — v — (1992) 28 NSWLR 735; 65 A Crim R 542 …. [2-s 227.10] — v Mossop (1991 unreported); (1991) 9 Petty SR 4453 …. [11-140.5] — v Most (1881) 7 QBD 244 …. [8-s 26.20] — v Moussad (1999) 152 FLR 373 …. [2-s 16.25] — v MPW BC9507332 …. [2-s 133.1]

— v MSK and MAK (2004) 61 NSWLR 204; 148 A Crim R 453 …. [2-s 294A.1] — v Mulato [2006] NSWCCA 282; BC200607186 …. [5-s 54B.5] — v Muldoon (1870) 9 SCR (NSW) 116 …. [8-s 327.15] — v Munro (1981) 4 A Crim R 67 …. [8-s 96.5] — v — (2001) 51 NSWLR 540 …. [8-s 58.15], [8-s 58.20], [8-s 418.1] — v Murnin (1985 unreported) …. [8-s 52A.45] — v Murphy (1985) 158 CLR 596; 61 ALR 139 …. [1-200] — v — (1985) 158 CLR 596; 61 ALR 139 …. [8-s 319.5] — v — [1965] VR 187 …. [2-s 207.1] — v — [2005] NSWCCA 182; BC200503070 …. [5-s 21A.1], ERROR — v Murray [1906] 2 KB 385 …. [2-s 16.20] — v — BC8601280 …. [8-s 94.20] — v — BC9705899 …. [5-s 23.1] — v Musumeci 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 Nanka [1984] 1 NSWLR 722 …. [8-s 310D.15] — v Nation (1994) 78 A Crim R 125 …. [2-s 161.25] — v Negus (1873) LR 2 CCR 34 …. [8-s 156.5] — 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 — (2004) 149 A Crim R 343 …. [8-s 319.15] — v — BC9700251 …. [8-s 121.5] — v — [2002] NSWCCA 183; BC200202582 …. [5-s 10.1] — v Nguyen; R v Cannistra [2006] NSWCCA 389; BC200610047 …. [10-s 23.50] — v Niass BC8801314 …. [5-s 24.1] — v — [2005] NSWCCA 120; BC200501841 …. [2-s 161.10] — v Nicholson [2010] NSWCCA 80; (unreported) …. [5-s 12.5]

— 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 22.1], [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’Donoghue (2005) 151 A Crim R 597 …. [8-s 112.7] — v O’Neill (2001) 122 A Crim R 510 …. [21-s 10.1] — v O’Brien (1921) 21 SR 136 …. [8-s 117.20] — v O’Donoghue (1917) 23 CLR 9 …. [8-s 159.30] — v — (1988) 34 A Crim R 397 …. [2-s 160.1] — v — (2005) 151 A Crim R 597 …. [8-s 105A.1] — v O’Grady BC9703122 …. [8-s 61I.65] — v O’Loughlin; Ex parte Ralphs (1971) 1 SASR 219 …. [2-s 19.5] — 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 & Parker (1980) 2 A Crim R 401 …. [10-s 3.15] — v Ogochukwu [2004] NSWCCA 473; BC200409545 …. [5-s 44.10] — v Ohar (2004) 59 NSWLR 596; 145 A Crim R 453 …. [5-s 54B.5] — v Oinonen [1999] NSWCCA 310; BC9906740 …. [5-s 22.1] — v Olbrich (1999) 199 CLR 270; 166 ALR 330 …. [10-s 25.25] — v Oliver (1980) 7 A Crim R 174 …. [5-s 21.1] — v — (1984) 57 ALR 543 …. [2-cl 21.20], [2-s 161.40] — v Olsen [2005] NSWCCA 243; BC200505162 …. ERROR — v OM (2011) 212 A Crim R 293 …. [8-s 319.5] — v — [2011] NSWCCA 109; BC201103302 …. [8-s 312.5] — 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 BC8802303 …. [2-s 21.10] — v Paauwe [1970] 3 NSWR 131 …. [2-s 99.1] — v Packer [1932] VLR 225 …. [8-s 79.1] — v Pagett (1983) 76 Cr App R 279 …. [8-s 18.15] — v Pahuja (1987) 49 SASR 191; 30 Crim R 418 …. [7-530] — 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] — 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], ERROR — 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 …. [7-475] — v Pennisi [2001] NSWCCA 326; BC200105217 …. [5-s 22.1] — v Perera [1986] 1 Qd R 211; (1985) 16 A Crim R 292 …. [2-s 161.25] — v Perez 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 Pernich and Maxwell (1991) 55 A Crim R 464 …. [2-s 160.1] — 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], [8-s 61L.10] — v — [1973] 1 NSWLR 275 …. [8-s 114.10] — v Philp (1999) 108 A Crim R 336 …. [5-s 95.10] — v — (1999) 108 A Crim R 336 …. [5-s 95.5] — v Phung [2001] NSWSC 115; BC200100670 …. [21-s 112.1] — v Piccin (No 2) [2001] NSWCCA 323; BC200105655 …. [5-s 10.1] — v Pickett [2010] NSWCCA 273; BC201008882 …. [10-s 25.25] — v Picknell [1970] 1 NSWR 604; (1969) 90 WN (Pt 1) (NSW) 731 …. [7505] — v Pierpont (1993) 71 A Crim R 187 …. [8-s 114.10] — v Pilley (1991) 56 A Crim R 202 …. [10-s 29.25], [10-s 43.5] — v — (1991) 56 A Crim R 202 …. [10-s 25.25] — 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 (unreported) …. [2-s 19.5] — v — BC9507224 …. [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 Pogson, Lapham and Martin [2012] NSWCCA 225; BC201208084 ….

[5-s 7.5] — v Pogson; R v Lapham; R v Martin (2012) 82 NSWLR 60; 91 ACSR 420 …. [5-s 76.1] — v Ponfield (1999) 48 NSWLR 327 …. [5-s 37.1] — v Popescu (1989) 39 A Crim R 137 …. [7-575] — v Porte [2015] NSWCCA 174; BC201505867 …. [5-s 7.5], [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 41.35] — v — (1831) 4 C & P 571 …. [8-s 39.35] — v PPB [1999] NSWCCA 360; BC9907459 …. [5-s 23.1] — v Prasad (1979) 23 SASR 161; 2 A Crim R 45 …. [7-530] — v Preval [1984] 3 NSWLR 647 …. [8-s 61H.5] — v Previtera (1997) 94 A Crim R 76 …. [5-s 28.5], [8-s 19A.1], [8-s 24.30], [8-s 52A.45], ERROR — 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 — [2005] NSWCCA 285 …. ERROR — v — [2004] NSWCCA 186; BC200405783 …. [8-s 52A.45] — v Ptohopoulos (1967) 52 Cr App Rep 47 …. [11-380.10] — v Puciarello (unreported) …. [10-s 25.1] — v — BC9002361 …. [2-s 16.5], [10-s 25.100], [10-s 25.25] — 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 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 (1991) 55 A Crim R 435 …. [2-s 161.20] — v — (1991 unreported) …. [2-s 23.5]

— v R (1989) 18 NSWLR 74 …. [2-s 154.1] — v — (1989) 18 NSWLR 74; 44 A Crim R 404 …. [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 …. [2-s 100.1], [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] — v Rahme (1993) 70 A Crim R 357 …. [11-395.10] — v — [2004] NSWCCA 233; BC200404413 …. [2-s 293.1] — 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], ERROR — 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 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 (2002) 186 FLR 1 …. [7-530] — v — (2004) 60 NSWLR 454; 146 A Crim R 475 …. [2-s 142.5] — v Reardon (No 2) (2004) 60 NSWLR 454; 146 A Crim R 475 …. [2-s 142.5] — v — (2004) 60 NSWLR 454 …. [7-485] — v Rees [2001] NSWCCA 23; BC200100279 …. [8-s 18.55] — v Reeves (1992) 29 NSWLR 109 …. [2-s 161.10] — v — (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 (1992 unreported) …. [10-s 43.1] — v — BC8601306 …. [8-s 114.10] — v Rice (2004) 150 A Crim R 37 …. [8-s 105A.1] — v Richards (1974) QB 776 …. [8-s 117.35] — v — (1994) 64 SASR 42; 77 A Crim R 1 …. [2-s 19.5] — v — BC9501889 …. [2-s 161.55] — 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 …. ERROR — 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 — BC8901702 …. [5-s 11.1] — v — [2000] NSWSC 972; BC200006239 …. ERROR — v — [2002] NSWCCA 359; BC200205630 …. [5-s 22.1] — 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 (1990) 51 A Crim R 359 …. [8-s 319.5] — v — (1992) 174 CLR 268; 107 ALR 225 …. [8-s 319.5] — v — (1992) 65 A Crim R 530 …. [2-s 161.15] — 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 (1993) 69 A Crim R 1 …. [7-575] — v — [2003] NSWCCA 411; BC200308558 …. [8-s 86.1]

— 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 (1890) 11 LR (NSW) 171 …. [8-s 58.45] — v — (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 Rye (1909) 2 Cr App R 155 …. [8-s 117.45] — v Rymer (2005) 156 A Crim R 84 …. [7-495] — v S (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 …. [21-1380.5], [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 …. ERROR — v Salisbury [1976] VR 452 …. [8-s 58.5] — v Salvo [1980] VR 401 …. [8-s 117.35] — v Sam (No 5) [2009] NSWSC 543; BC200905451 …. [2-s 314.15] — v Sam (No 16) (2009) 196 A Crim R 138 …. [2-s 314.15] — v Sanders (1991) 57 SASR 102 …. [8-s 117.35] — v Sandford (1994) 33 NSWLR 172 …. [2-s 161.1], [7-225], [7-640] — v — (1994) 33 NSWLR 172 …. [7-485] — v — (1994) 33 NSWLR 172 …. [2-s 36.1] — v Sangalang [2005] NSWCCA 171; BC200502640 …. [5-s 54B.5] — 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 — (1993 unreported); (1993) Petty SR 4537 …. [10-s 25.1] — v Sayak 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 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 (1993) 42 FCR 1; 116 ALR 703 …. [7-001], [7-105] — v — [1967] VR 276 …. [8-s 310D.20] — v — [2003] NSWCCA 286; BC200305880 …. [5-s 22.1] — 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; BC2003005296 …. ERROR — 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 22.1] — v Sharp (2003) 143 A Crim R 344 …. [2-s 281.1] — v Shaw (1991) 57 A Crim R 425 …. [7-485] — v Shenton [2003] NSWCCA 346; BC200307075 …. [5-s 22.1] — v Shephard [1919] 2 KB 125; [1918-19] All ER Rep 374 …. [8-s 26.15]

— v Shepherd [1999] NSWCCA 162; BC9903822 …. [10-s 25.25] — v — [2003] NSWCCA 351; BC200307249 …. [8-s 35.5] — 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 BC9102035 …. [8-s 310D.35] — v Simpson (2001) 53 NSWLR 704; 126 A Crim R 525 …. [5-s 44.15] — v — [1956] VLR 490; ALR 623 …. [2-s 31.1] — 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 …. ERROR — v Slattery (1996) 90 A Crim R 519 …. [8-s 52A.45] — v — [2002] NSWCCA 367; BC200205109 …. [2-s 161.40] — v SLD (2003) 58 NSWLR 589; 142 A Crim R 503 …. [5-s 60C.5] — v — [2002] NSWSC 758; BC200204988 …. [5-s 60C.5] — v Smails (1957) 74 WN 150 …. [8-s 117.30] — v Smart [1963] NSWR 706 …. [2-s 161.25], [2-s 161.30] — v — [1963] NSWR 706; (1962) 80 WN (NSW) 1125 …. [2-s 161.30] — v Smiroldo (2000) 112 A Crim R 47 …. [10-s 25A.5] — v Smith (1827) 1 Mood 178 …. [8-s 112.5] — v — (1837) 8 C & P 173 …. [8-s 35.5] — v — (1948) 48 SR (NSW) 268; 65 WN (NSW) 101 …. [7-505] — v — (1982) 7 A Crim R 437 …. [8-s 192B.15], [8-s 192E.20] — v — (1993) 69 A Crim R 47 …. [5-s 95.10] — v — (1997) 95 A Crim R 373 …. [5-s 6.1] — v — [1959] 2 QB 35 …. [8-s 18.15] — v — [1960] 2 QB 423; [1960] 1 All ER 256 …. [8-s 133.5] — v — [1974] 2 NSWLR 586 …. [11-125.20] — v — [1982] 2 NSWLR 569; 8 A Crim R 131 …. [8-s 61H.1] — v — [1995] 1 VR 10; (1994) 73 A Crim R 384 …. [2-s 19.5]

— v — (1991 unreported) …. [10-s 25.25] — v — [2000] NSWCCA 468; BC200007410 …. [2-s 161.10] — v Smith (EJ) [1982] 2 NSWLR 608 …. [2-s 160.1], [7-405] — v Smith (GWJ) [1982] 2 NSWLR 490 …. [8-s 61Q.1] — v Smith and Bardini (1987 unreported) …. [8-s 115.5] — v Solomon (2005) 153 A Crim R 32 …. [8-s 97.20], ERROR — v — [1980] 1 NSWLR 321 …. [2-s 161.20], [8-s 18.5] — v Solway (1984) 2 Qd R 75 …. [10-s 10.25] — v Sorlee (1925) 42 WN (NSW) 152 …. [8-s 61L.10] — 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 Spiers (1983) 34 SASR 546 …. [5-s 12.1] — 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 22.1] — v Stanford BC9001978 …. [8-s 26.10] — v Stanley (1995 unreported) …. [8-s 58.5] — v — [2003] NSWCCA 233; BC200304770 …. [8-s 97.20] — v Stanton (1991) 52 A Crim R 164 …. [7-220] — v — (1991) 52 A Crim R 164 …. [2-s 8.10] — 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 — (1990) 51 A Crim R 25 …. [2-s 161.30] — 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], ERROR — 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 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 Sundra Khan (1901) 18 WN (NSW) 29 …. [2-s 59.10] — v Supple (1870) 1 VR 151 …. [8-s 18.10] — v Sutton (1877) 13 Cox CC 648 …. [8-s 4.5] — v — (1986) 5 NSWLR 697 …. [2-s 161.62] — v — (2004) 41 MVR 40 …. [5-s 22.1] — v — [1977] 3 All ER 476 …. [8-s 61L.10] — v Swan (2003) 140 A Crim R 243 …. [10-s 3.45] — v Swift BC9102117 …. [8-s 52A.45] — v SY [2003] NSWCCA 291; BC200306107 …. [5-s 22.1] — v Tadman (2001) 34 MVR 54 …. [8-s 52A.45] — v Tadrosse (2005) 65 NSWLR 740 …. [5-s 21A.1], [5-s 21A.5], ERROR — v Taha (2000) 120 A Crim R 161 …. [8-s 97.5] — v Tahau [1975] 1 NSWLR 479 …. [8-s 109.5] — 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 Taleb [2006] NSWCCA 119; BC200602300 …. [2-s 161.25]

— 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 [1982] 2 NSWLR 974 …. [10-s 3.10], [10-s 23.35] — v — BC9203128 …. [2-s 21.20] — v Taylor (1904) 21 WN (NSW) 43 …. [8-s 131.15] — v — (2002) 129 A Crim R 146 …. [8-s 18.27], [8-s 418.1] — v — [2003] NSWCCA 194; BC200306670 …. [2-s 20.1], [7-150] — 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 12.1], [5-s 54C.1] — v Thiagarajah (1989) 41 A Crim R 45 …. [5-s 21.1] — v Thomas (1953) 37 Cr App R 169 …. [8-s 117.20] — v — (1981) 6 A Crim R 66 …. [10-s 10.20] — v — (1985) 81 Cr App R 331 …. [8-s 58.5] — v — (1992) 65 A Crim R 269 …. [8-s 58.20] — v — (1993) 67 A Crim R 308 …. [10-s 6.10] — v — [1957] 2 All ER 181 …. [11-380.5] — v — [2007] NSWCCA 269; BC200709863 …. ERROR — v Thomas Sam (No 14) [2009] NSWSC 561; BC200905452 …. [7-600] — v Thompson (1925) 25 SR (NSW) 250 …. [2-s 21.1] — v — (1945) 45 SR(NSW) 374 …. [7-640] — v — (1988) 36 A Crim R 223 …. [8-s 23A.1] — v — [1976] 2 NSWLR 453 …. [8-s 52A.30] — v — (1976 unreported) …. [2-s 153.1] — v — (1994 unreported) …. [10-s 25.25] — v Thomson 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 22.1], [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 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 Tolley [2004] NSWCCA 165; BC200403019 …. [5-s 12.1] — v Tolmie (1995) 37 NSWLR 660 …. [8-s 61I.5] — v — (1994 unreported) …. [2-s 19.5], [2-s 192.5] — 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-cl 21.5], [2-s 161.20], [2-s 161.25] — v Towner (1991) 56 A Crim R 221 …. [2-s 161.10] — v Tracey (1895) 6 QLJ 272 …. [8-s 29.1] — 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]

— v — (1988) 35 A Crim R 183 …. [7-640] — v Trivett 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 Tuala [2015] NSWCCA 8; BC201500546 …. [5-s 21A.5], [5-s 28.1], ERROR — v Tubou [2001] NSWCCA 243; BC200103428 …. [2-s 293.1] — v Tugaga (1994) 74 A Crim R 190 …. [7-525] — v Tuki (No 4) [2013] NSWSC 1864 …. [8-s 93T.10] — v Tulloh BC9302114 …. [10-s 25.25] — 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 BC9605087 …. [2-s 161.10] — v Underhill 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 Valence (1958) 59 SR (NSW) 138 …. [8-s 61L.10] — 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 61Q.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 BC9601940 …. [7-150] — v Velevski (2000) 117 A Crim R 30 …. [9-s 22.5]

— v Vella (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 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 (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 (1981) 27 SASR 315; 3 A Crim R 200 …. [5-s 12.1] — v — BC9501896 …. [8-s 58.20] — v — [2005] NSWCCA 109; BC200501614 …. ERROR — v Walsh (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 Warner [1969] 2 AC 256 …. [10-s 10.30] — v Waterhouse (1911) 11 SR (NSW) 217 …. [8-s 117.15] — v Watkins BC9504520 …. [8-s 188.15] — v Way (2004) 60 NSWLR 168 …. [5-s 21A.1], [5-s 44.15], [5-s 44.25], ERROR — v — (2004) 60 NSWLR 168 …. [5-s 44.10], [5-s 44.15], [5-s 54B.5] — v — [1981] 2 NSWLR 653; (1981) 3 A Crim R 465 …. [8-s 310D.30] — v Weatherall [1968] Crim LR 115 …. [8-s 39.10] — v Weatherspoon (1992 unreported) …. [8-s 61I.65] — v Weatherstone BC8701208; (1987) 8 Petty SR 3729 …. [8-s 117.30]

— v Weaver (1931) 45 CLR 321 …. [2-cl 21.15], [2-cl 21.5], [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 BC9201710 …. [5-s 24.1] — v West (1848) 175 ER 329 …. [8-s 20.1] — v — (1880) 1 LR(NSW) 329 …. [8-s 131.5] — v — [1948] 1 KB 709 …. [7-100] — v — [1962] 2 All ER 624; [1962] 3 WLR 218 …. [2-s 202.10] — v — [2011] NSWCCA 91 …. [8-s 24.30] — 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 (1853) 169 ER 696 …. [8-s 117.15] — v — (1904) 21 WN(NSW) 104 …. [8-s 117.15] — v — (1912) 7 Cr App R 266 …. [8-s 117.15] — v — [1910] 2 KB 124 …. [8-s 18.70] — v — BC9101745 …. [2-cl 21.20] — v — BC9803139 …. [5-s 22.1] — 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] — v — (2002) 55 NSWLR 252 …. [5-s 37.1] — v — [2002] NSWCCA 343; BC200204713 …. [8-s 52A.45] — v Wickham [2004] NSWCCA 193; BC200403646 …. [5-s 21A.1], [5-s 21A.5], [5-s 44.15], ERROR — v — [2010] NSWCCA 41; BC201001109 …. ERROR — v Wilhelm (2010) 77 NSWLR 1; 200 A Crim R 413 …. [8-s 38.10] — v — [2010] NSWSC 334; BC201002419 …. [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 (1982) 7 A Crim R 46 …. [8-s 310D.35] — v — (1986) 21 A Crim R 460 …. [8-s 117.35] — v — (1990) 50 A Crim R 213 …. [2-s 161.1] — v — (1990) 50 A Crim R 213 …. [8-s 58.5], [8-s 59.10] — v — (1999) 104 A Crim R 260 …. [2-s 161.1] — v — (2005) 62 NSWLR 481; 152 A Crim R 405 …. [5-s 51.1] — v — [2005] NSWCCA 99; BC200501608 …. [5-s 21A.1], [5-s 21A.5], ERROR — v Williams and Dark [1908] QWN 33 …. [8-s 33.5] — v Williamson (2000) 1 VR 58 …. [8-s 18.25] — v Williamson (No 1) (1996) 67 SASR 428 …. [2-s 161.1] — v Williamson and Morell (1991 unreported) …. [2-s 21.10] — v Wills [1983] 2 VR 201 …. [8-s 18.55] — v Wilson (1979) 69 Cr App R 83 …. [2-s 16.25] — v — (1992) 174 CLR 313; 107 ALR 257 …. [8-s 18.55], [8-s 18.60] — v — (1992) 174 CLR 313; 107 ALR 257 …. [8-s 18.25] — v — (1994) 34 NSWLR 1; 73 A Crim R 532 …. [9-s 22.5] — v — (2005) 62 NSWLR 346 …. [5-s 28.1] — 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 — BC9805276 …. [7-405] — v Winner (1995) 79 A Crim R 528 …. [2-s 133.1] — v Winningham (1995 unreported) …. [2-s 133.1], [8-s 93G.10] — v Withers [1975] AC 842 …. [8-s 319.5] — v Wong (1988) 37 A Crim R 385 …. [2-cl 21.5], [2-s 161.20] — 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 (1879) 2 SCRNS 110 …. [8-s 29.1] — v — (1976) 62 Cr App Rep 169 …. [10-s 10.20] — v — [1980] VR 593; (1980) 4 ACLR 931 …. [8-s 192G.25] — v — BC9702913 …. [8-s 26.25] — 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 [2009] NSWCCA 115; BC200902934 …. [5-s 55.1] — v Yates (1963) 80 WN (NSW) 744 …. [8-s 97.5], [8-s 114.10] — v — [1963] SR (NSW) 477; (1963) 80 WN (NSW) 744 …. [8-s 546B.1] — v Yildiz (2006) 160 A Crim R 218 …. [10-s 25.1], ERROR — v Youkana [2005] NSWCCA 231; BC200504601 …. [8-s 59.20] — v Youkhana [2004] NSWCCA 412; BC200408415 …. [8-s 97.20], ERROR — v Young (1999) 46 NSWLR 681; 107 A Crim R 1 …. [2-s 222.40] — v — [1953] 1 All ER 21 …. [8-s 188.35] — v — (1993 unreported) …. [8-s 310D.35] — v — [2003] NSWCCA 276; BC200305724 …. [8-s 94.20] — v Zaiter [2005] NSWCCA 61; BC200500749 …. [10-s 6.15] — v Zamagias [2002] NSWCCA 17; BC200200346 …. [5-s 5.1], [5-s 6.1], [5-s 7.5], [5-s 12.1] — v Zeilaa [2009] NSWSC 532; BC200905192 …. [5-s 22.1] — 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] 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] R2; R v (1990) 19 NSWLR 513 …. [10-s 4.1], [10-s 29.5] R; R v (1989) 18 NSWLR 74 …. [2-s 154.1] — (1989) 18 NSWLR 74; 44 A Crim R 404 …. [7-525] — (1995) 63 SASR 417; 180 LSJS 443; 79 A Crim R 191 …. [8-s 18.20] Raabe; R v (1984) 14 A Crim R 381 …. [8-s 58.5] Raad; R v [1983] 3 NSWLR 344 …. [8-s 188.15] Radi v R [2010] NSWCCA 265; BC201008770 …. [10-s 25.40] Radic; R v (2001) 122 A Crim R 70 …. [2-s 100.1], [8-s 117.60] Radju; R v (2001) 53 NSWLR 471 …. [7-800] Radley; R v (1973) 58 Cr App R 394 …. [2-s 21.1] Rae; R v [2013] NSWCCA 9; BC201300291 …. [5-s 53.5], [5-s 53A.5] Rahme; R v (1993) 70 A Crim R 357 …. [11-395.10] — [2004] NSWCCA 233; BC200404413 …. [2-s 293.1] Rajendran v R [2010] NSWCCA 322; BC201009864 …. [2-s 20.1] Ramey v — (1994) 68 ALJR 917 …. [2-s 161.35] Ramsay v Watson (1961) 108 CLR 642 …. [8-s 23A.10] Ramsay; R v [1967] NZLR 1005 …. [8-s 18.1] Ran v R (1996) 16 WAR 447 …. [2-s 222.30] Randall; R v (1991) 53 A Crim R 380 …. [8-s 61H.1], [8-s 61H.5] Ransford; R v (1874) 31 LTNS 488 …. [8-s 26.25] Raspor v R (1958) 99 CLR 346 …. [2-s 161.30] RAT; R v (2000) 111 A Crim R 360 …. [2-s 161.20], ERROR Ravnjak, Appeal of (1973) 3 DCR(NSW) 166 …. [8-s 58.45] Rawcliffe; R v [1977] 1 NSWLR 219 …. [10-s 10.10] Rawlinson; R v (2013) 246 A Crim R 1 …. [2-s 30.1] Ray; R v (2003) 57 NSWLR 616 …. [2-s 161.62] Raybos Australia Pty Ltd v Tectran Corp Pty Ltd (1986) 6 NSWLR 272 …. [1-015] Raz; R v BC9201407 …. [5-s 23.1]

Read; R v (2010) 55 MVR 280 …. [8-s 52A.45] Readman; R v (1990) 47 A Crim R 181 …. [8-s 94.20] Reardon v Baker [1987] VR 887; (1987) 25 A Crim R 203 …. [10-s 12.1] Reardon (No 2); R v (2004) 60 NSWLR 454; 146 A Crim R 475 …. [2-s 142.5] — (2004) 60 NSWLR 454 …. [7-485] Reardon; R v (2002) 186 FLR 1 …. [7-530] — (2004) 60 NSWLR 454; 146 A Crim R 475 …. [2-s 142.5] Redman v R [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] Rees; R v [2001] NSWCCA 23; BC200100279 …. [8-s 18.55] Reeves v R (2013) 304 ALR 251; 88 ALJR 215 …. [8-s 58.5] — v — [2013] NSWCCA 34; BC201300682 …. [8-s 33.5], [8-s 58.5] Reeves; R v (1992) 29 NSWLR 109 …. [2-s 161.10] — (1993 unreported) …. [2-s 161.35] 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] Reid, Ex parte; Re Lynch (1943) 43 SR (NSW) 207; 60 WN (NSW) 148 …. [2-s 202.15] Reid; R v [1999] NSWCCA 258; BC9905412 …. [2-s 281.1] — [1999] NSWCCA 355; BC9907386 …. [8-s 323.10] Reinsch; R v [1978] 1 NSWLR 483 …. [5-s 10.1] Relf v Webster (1978) 24 ACTR 3 …. [10-s 12.1] Rend v R (2006) 160 A Crim R 178 …. [7-495] Reynhoudt; R v (1962) 107 CLR 381; [1962] ALR 483 …. [8-s 58.55], [8-s 546C.5], [8-s 546C.15] Reynolds v R (1983) 10 A Crim R 30 …. [5-s 55.1] Reynolds; R v (1992 unreported) …. [10-s 43.1] — BC8601306 …. [8-s 114.10] Rice v Connolly [1966] 2 QB 414; 2 All ER 649 …. [8-s 546C.15]

Rice; R v (2004) 150 A Crim R 37 …. [8-s 105A.1] Richards; R v (1974) QB 776 …. [8-s 117.35] — (1994) 64 SASR 42; 77 A Crim R 1 …. [2-s 19.5] — BC9501889 …. [2-s 161.55] Richardson v R (1974) 131 CLR 116; 3 ALR 115 …. [7-485] — v — [2013] NSWCCA 218; BC201313312 …. [8-s 19A.1] Richardson; R v (1998) 3 WLR 1292 …. [8-s 58.5] Riddell; R v [2009] NSWCCA 96; BC200902409 …. [5-s 55.1] Ridgeway v R (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 …. ERROR Ritson v Myers [2013] NSWCA 176; BC201303074 …. [8-s 556.1] RJS v R 173 A Crim R 100 …. [2-s 161.12] RJS; R v (1993) 31 NSWLR 649 …. [8-s 61J.1] RJT v R [2012] NSWCCA 280; BC201209875 …. [5-s 23.1] RM v — [2012] NSWCCA 35; BC201201583 …. [2-s 19.5] RNS; R v [1999] NSWCCA 122; BC9908888 …. ERROR Roads and Traffic Authority of NSW v Conolly (2003) 57 NSWLR 310; 38 MVR 444 …. [2-s 222.30] Roberts; R v (1971) 56 Cr App R 95 …. [8-s 18.15] — (1994) 73 A Crim R 306 …. [8-s 94.20] Robins (J) and Sons Ltd v Maloney (No 2) [1935] AR (NSW) 155; (1935) IR 155 …. [2-s 179.5] Robinson v Balmain New Ferry Co Ltd [1910] AC 295 …. [8-s 58.30] — 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] Robinson; R v (2000) 111 A Crim R 388 …. [2-s 161.20] — BC8901702 …. [5-s 11.1] — [2000] NSWSC 972; BC200006239 …. ERROR

— [2002] NSWCCA 359; BC200205630 …. [5-s 22.1] Robson; R v [1978] 1 NSWLR 73 …. [8-s 86.1] Rodden v R (2008) 182 A Crim R 227 …. ERROR Roddom; R v [2001] NSWCCA 168; BC200102187 …. [2-s 161.40] Rogan v Hyde (1995) 84 A Crim R 519 …. [2-s 32.5], [2-s 33.5] 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], [7225] Rogers; R v (1868) 1 LR 136 …. [8-s 7.1] — (1996) 86 A Crim R 542 …. [8-s 310D.25] Rogerson v R (1992) 65 A Crim R 530 …. [2-s 161.15] Rogerson; R v (1990) 51 A Crim R 359 …. [8-s 319.5] — (1992) 174 CLR 268; 107 ALR 225 …. [8-s 319.5] — (1992) 65 A Crim R 530 …. [2-s 161.15] Rolfe; R v (1952) 36 Cr App Rep 4 …. [8-s 58.5] Romeyko v Samuels (1972) 2 SASR 529; 19 FLR 322 …. [2-s 16.25] Rondo; R v (2001) 126 A Crim R 562 …. [21-s 21.1], [21-s 99.10], [21-s 120.1] 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] Rose; R v (1993) 69 A Crim R 1 …. [7-575] — [2003] NSWCCA 411; BC200308558 …. [8-s 86.1] Rosza v Samuels [1969] SASR 205 …. [8-s 58.5] Rowe; R v (2001) 50 NSWLR 510; 118 A Crim R 421 …. [2-s 281.1] Rowell v Larter (1986) 6 NSWLR 21; 24 A Crim R 222 …. [21-s 49.5] Rowland; R v [1910] 1 KB 458 …. [8-s 502.5] Royall v R (1991) 172 CLR 378; 100 ALR 669 …. [8-s 18.1], [8-s 18.10], [8-s 18.15], [8-s 18.25], [8-s 18.5] RP v — [2013] NSWCCA 192; BC201312214 …. [5-s 28.1], ERROR RPS v — (2000) 199 CLR 620; 168 ALR 729 …. [2-s 161.25], [2-s 161.35] RTB; R v [2002] NSWCCA 104; BC200201374 …. [2-s 161.25] Rugari; R v (2001) 122 A Crim R 1 …. [2-s 160.1]

Rushby; R v [1977] 1 NSWLR 594 …. [8-s 52A.45] Rushton; R v [1967] VR 842 …. [2-s 17.1] Russell v R [2010] NSWCCA 248; BC201008531 …. [5-s 44.15] — v Wilson (1923) 33 CLR 538; 30 ALR 75 …. [21-s 219.5] Russell-Jones; R v (1995) 1 Cr App Rep 538; 3 All ER 239 …. [7-485] Russell-Smith; R v (1981) 35 ACTR 31; 51 FLR 42 …. [7-485] RWB v R [2010] NSWCCA 147; BC201004918 …. [2-s 161.10], [2-s 161.40] RWO; R v [2002] NSWCCA 133; BC200203809 …. [2-s 19.5] 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 18.20] — v — (1967) 121 CLR 205; [1967] ALR 577 …. [8-s 18.1] — v — (1967) 121 CLR 205; [1967] ALR 577 …. [8-s 18.15], [8-s 98.10] — v — (2001) 206 CLR 267; 179 ALR 193 …. [5-s 22.1], ERROR Ryan; R v (1890) 11 LR (NSW) 171 …. [8-s 58.45] — (1995) 90 A Crim R 191 …. [8-s 23A.1] — (2003) 39 MVR 395; 141 A Crim R 403 …. [8-s 52A.45] Rye; R v (1909) 2 Cr App R 155 …. [8-s 117.45] Rymer; R v (2005) 156 A Crim R 84 …. [7-495] S v Metanomski (1993) 65 A Crim R 352 …. [2-s 93.5] — v R (1989) 168 CLR 266; 89 ALR 321 …. [2-s 8.1], [2-s 16.5], [2-s 19.5] — v — (1989) 168 CLR 266; 89 ALR 321; 45 A Crim R 221 …. [10-s 3.70] — v — (1989) 168 CLR 266; 89 ALR 321; 45 A Crim R 221 …. [8-s 61I.7], [10-s 25.1] — v — (1989) 168 CLR 266; 89 ALR 321 …. [2-s 16.15], [2-s 16.25] S; R v (1991) 22 NSWLR 548 …. [8-s 52A.15] — (2000) 111 A Crim R 225 …. [5-s 23.1], [5-s 44.15] SA; R v [2011] NSWCCA 60; BC201102131 …. [21-1380.5], [21-s 133.5] Saad v R (1987) 70 ALR 667; 61 ALJR 243; 29 A Crim R 20 …. [8-s 7.1] — v — (1987) 70 ALR 667; 61 ALJR 243; 29 A Crim R 20 …. [10-s 10.15] Saddler v — [2009] NSWCCA 83; BC200902237 …. ERROR

Saffron v DPP (1989) 16 NSWLR 397; 43 A Crim R 1 …. [2-s 62.5], [2-s 65.1], [2-s 65.15] — v FCT (No 1) (1992) 109 ALR 695 …. [2-s 33.5] Saffron (No 1) v R (1988) 17 NSWLR 395; 36 A Crim R 262 …. [2-cl 21.5] — v — (1988) 17 NSWLR 395; 36 A Crim R 262 …. [7-495] Sagiv; R v (1986) 22 A Crim R 73 …. [2-s 207.1] Sako v Anthony BC9102654 …. [8-s 61.25] Salameh; R v (1986) 26 A Crim R 353 …. [8-s 94.10] Saldaneri; R v [2001] NSWCCA 480; BC200107856 …. [5-s 5.1] 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] Saleib; R v [2005] NSWCCA 85; BC200501605 …. ERROR Saler v Klingbiel [1945] SASR 171 …. [8-s 58.25] Salisbury; R v [1976] VR 452 …. [8-s 58.5] Salter v DPP [2011] NSWCA 190; BC201105364 …. [8-s 308B.5] Salvo; R v [1980] VR 401 …. [8-s 117.35] Sam v R (2011) 206 A Crim R 67 …. [8-s 18.50] Sam (No 5); R v [2009] NSWSC 543; BC200905451 …. [2-s 314.15] Sam (No 16); R v (2009) 196 A Crim R 138 …. [2-s 314.15] Sanders; R v (1991) 57 SASR 102 …. [8-s 117.35] Sandford; R v (1994) 33 NSWLR 172 …. [2-s 161.1], [7-225], [7-640] — (1994) 33 NSWLR 172 …. [7-485] — (1994) 33 NSWLR 172 …. [2-s 36.1] Sangalang; R v [2005] NSWCCA 171; BC200502640 …. [5-s 54B.5] Sankey v Whitlam (1978) 142 CLR 1; 21 ALR 505 …. [1-200] Saraswati v R (1991) 172 CLR 1; 100 ALR 193 …. [8-s 61N.5] Saraswati; R v (1989) 47 A Crim R 1 …. [7-001] Sasterawan v Morris (2007) 69 NSWLR 547 …. [2-s 173.1] — v — BC200705318; BC200705318 …. [2-s 14.1] — v — [2007] NSWCA 185; BC200705318 …. [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]

Saunders; R v (2002) 37 MVR 270; 133 A Crim R 104 …. [8-s 52A.15] — (1993 unreported); (1993) Petty SR 4537 …. [10-s 25.1] Savvas v R (1995) 183 CLR 1; 129 ALR 319 …. [2-cl 21.20] Sawtell v Regan (1882) 3 LR(NSW) 362 …. [11-125.15] Sayak; R v BC9304078 …. [5-s 24.1] Sbarra; R v (1917) 13 Cr App R 118 …. [8-s 188.15] SBF v R (2009) 53 MVR 438; 198 A Crim R 219 …. [8-s 24.15] Scaramanga; R v [1963] 2 QB 807; [1963] 2 All ER 852 …. [2-s 21.10] Schaefer, Ex parte; Re Field (1943) 60 WN (NSW) 99 …. [2-s 179.5] Schaffer; R v (2005) 153 A Crim R 372 …. [8-s 322.20] Schelberger; R v BC8801878 …. [8-s 24.30] Schiavini v R (1999) 108 A Crim R 161 …. [2-s 281.1] Schipanski; R v (1989) 17 NSWLR 618 …. [8-s 7.1], [8-s 188.15] Schlesinger; R v (1847) 10 QB 670 …. [8-s 327.5] Schneidas (No 2) (1981) 4 A Crim R 101 …. [7-555] Schneidas (No 2); R v [1981] 2 NSWLR 713 …. [2-s 161.20], [8-s 18.25] 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 [2010] NSWCCA 103; BC201003417 …. [10-s 25.25] — v — [2011] NSWCCA 221; BC201107783 …. [8-s 24.30] Scott; R v (1993) 42 FCR 1; 116 ALR 703 …. [7-001], [7-105] — [1967] VR 276 …. [8-s 310D.20] — [2003] NSWCCA 286; BC200305880 …. [5-s 22.1] SDM; R v (2001) 51 NSWLR 530; 127 A Crim R 318 …. [8-s 97.20] Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218; 106 ALR 385 …. [8-s 58.5] See v Milner (1980) 2 A Crim R 210 …. [10-s 10.40] Seidler, Re [1986] 1 Qd R 486 …. [7-105] Selbeck v McDonald [1978] 1 NSWLR 1 …. [11-425.1] Sellen; R v (1991) 57 A Crim R 313 …. [5-s 44.15] Seller; R v McCarthy; R v [2015] NSWCCA 76; BC201503262 …. [2-s 19.5]

Selvage; R v [1982] QB 372 …. [8-s 319.5] Senior; R v (1832) 1 Mood CC 346 …. [8-s 20.1] Seong Won Lee and Do Young Lee v R (2012) 224 A Crim R 278 …. [9-s 22.5] Sepulveda; R v [2003] NSWCCA 131; BC200302273 …. [2-s 20.1] Sergi v DPP BC9101577 …. [2-s 8.10], [2-s 65.15], [7-010] Serratore; R v (1999) 48 NSWLR 101 …. [2-s 202.1] Seymour v Price BC9805031 …. [2-s 228.5] — v R (2006) 162 A Crim R 576 …. [7-530] Seymour; R v [1954] 1 All ER 1006; 1 WLR 678; (1954) 38 Cr App Rep 68 …. [2-cl 7.1] — [1954] 1 WLR 678 …. [8-s 117.50] — [2001] NSWCCA 272; BC200103962 …. [10-s 25A.1] SGJ v R [2008] NSWCCA 258; BC200809879 …. [5-s 33.1] Shaluga; R v (1957) 75 WN (NSW) 120; 58 SR (NSW) 151 …. [11-380.5] Shankley; R v [2003] NSWCCA 253; BC2003005296 …. ERROR Sharah; R v (1992) 30 NSWLR 292; 63 A Crim R 361 …. [8-s 18.20] Sharma; R v (2002) 54 NSWLR 300; 130 A Crim R 238 …. [5-s 22.1] 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] Sharp; R v (2003) 143 A Crim R 344 …. [2-s 281.1] 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 (1952) 85 CLR 365; [1952] ALR 257 …. [7-495] — v — (1989) 39 A Crim R 343 …. [5-s 55.1] — v — [2010] NSWCCA 23; BC201001197 …. [5-s 23.1] Shaw; R v (1991) 57 A Crim R 425 …. [7-485] Sheen v R [2011] NSWCCA 259; BC201109701 …. [2-s 162.1], [7-625], [8s 115A.5] Shenton; R v [2003] NSWCCA 346; BC200307075 …. [5-s 22.1] Shephard; R v [1919] 2 KB 125; [1918-19] All ER Rep 374 …. [8-s 26.15]

Shepherd (1988) 16 NSWLR 1; 37 A Crim R 466 …. [2-s 161.15] — v R (1988) 94 FLR 55; 37 A Crim R 303 …. [2-cl 21.5] — v — (1990) 170 CLR 573; 97 ALR 161 …. [2-s 161.10] — v — (1990) 170 CLR 573; 97 ALR 161; 65 ALJR 132; 51 A Crim R 181 …. [2-s 161.15] Shepherd (No 2) v — (1988) 16 NSWLR 1; 37 A Crim R 466 …. [2-cl 21.20] — v — (1988) 16 NSWLR 1; 37 A Crim R 466 …. [5-s 21.1] — v — (1988) 16 NSWLR 1; 37 A Crim R 466 …. [2-s 161.15] Shepherd; R v [1999] NSWCCA 162; BC9903822 …. [10-s 25.25] — [2003] NSWCCA 351; BC200307249 …. [8-s 35.5] Sheppard; R v [1981] AC 394; [1980] 3 All ER 899 …. [8-s 53.5] Shortus; R v (1917) 17 SR (NSW) 66 …. [2-s 31.1] SHR v R [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] Silbert v DPP (WA) (2004) 205 ALR 43; 78 ALJR 464 …. [2-s 208.5] Silver; R v [1956] 1 All ER 716; 1 WLR 281 …. [11-380.5] Simon; R v [2005] NSWCCA 123; BC200501844 …. [5-s 44.10] Simonds; R v BC9102035 …. [8-s 310D.35] Simpson v R [2014] NSWCCA 23; BC201401108 …. [8-s 61I.65] Simpson; R v (2001) 53 NSWLR 704; 126 A Crim R 525 …. [5-s 44.15] — [1956] VLR 490; ALR 623 …. [2-s 31.1] Sing; R v (2002) 54 NSWLR 31 …. [7-485] Sivell v R [2009] NSWCCA 286; BC200910950 …. [5-s 9.5], ERROR Skaf; R v [2004] NSWCCA 74; BC200401711 …. [8-s 61I.48] Skivington; R v (1967) 51 Cr App R 167 …. [8-s 94.15] Skondin v R [2005] NSWCCA 417; BC200510614 …. [2-s 150.1] Slack; R v [2004] NSWCCA 128; BC200402455 …. ERROR Slattery v R (1905) 2 CLR 546 …. [8-s 125.15] Slattery; R v (1996) 90 A Crim R 519 …. [8-s 52A.45] — [2002] NSWCCA 367; BC200205109 …. [2-s 161.40]

SLD; R v (2003) 58 NSWLR 589; 142 A Crim R 503 …. [5-s 60C.5] — [2002] NSWSC 758; BC200204988 …. [5-s 60C.5] Sloggett v Adams (1953) 70 WN (NSW) 206 …. [2-s 179.5] Slotboom v R [2013] NSWCCA 18; BC201301009 …. [2-s 40.1] Smails; R v (1957) 74 WN 150 …. [8-s 117.30] Small v R (1994) 33 NSWLR 575; 72 A Crim R 462 …. [2-s 36.1], [7-400] Smart; R v [1963] NSWR 706 …. [2-s 161.25], [2-s 161.30] — [1963] NSWR 706; (1962) 80 WN (NSW) 1125 …. [2-s 161.30] Smiroldo; R v (2000) 112 A Crim R 47 …. [10-s 25A.5] Smith v Desmond [1965] AC 960 …. [8-s 94.10], [8-s 117.10] — v Moody [1903] 1 KB 56 …. [2-s 16.15], [2-s 16.5] — v R (1970) 121 CLR 572; [1971] ALR 183 …. [2-s 161.5] — v — (1985) 159 CLR 532; 71 ALR 631 …. [2-s 36.1], [7-405] — v — (2007) 169 A Crim R 265 …. [5-s 98.1] — v — [2007] NSWCCA 138; BC200703798 …. ERROR — v Superintendent of Woking Police Station (1983) 76 Cr App R 234 …. [8-s 58.5] Smith & Kirton v R (1990) 47 A Crim R 43 …. [8-s 96.35] Smith (EJ); R v [1982] 2 NSWLR 608 …. [2-s 160.1], [7-405] Smith (GWJ); R v [1982] 2 NSWLR 490 …. [8-s 61Q.1] Smith and Bardini; R v (1987 unreported) …. [8-s 115.5] Smith and Kirton v R (1990) 47 A Crim R 43 …. [2-s 16.1], [7-100], [8-s 94.55], [8-s 95.35] Smith; R v (1827) 1 Mood 178 …. [8-s 112.5] — (1837) 8 C & P 173 …. [8-s 35.5] — (1948) 48 SR (NSW) 268; 65 WN (NSW) 101 …. [7-505] — (1982) 7 A Crim R 437 …. [8-s 192B.15], [8-s 192E.20] — (1993) 69 A Crim R 47 …. [5-s 95.10] — (1997) 95 A Crim R 373 …. [5-s 6.1] — [1959] 2 QB 35 …. [8-s 18.15] — [1960] 2 QB 423; [1960] 1 All ER 256 …. [8-s 133.5] — [1974] 2 NSWLR 586 …. [11-125.20]

— [1982] 2 NSWLR 569; 8 A Crim R 131 …. [8-s 61H.1] — [1995] 1 VR 10; (1994) 73 A Crim R 384 …. [2-s 19.5] — (1991 unreported) …. [10-s 25.25] — [2000] NSWCCA 468; BC200007410 …. [2-s 161.10] Smithers v Andrews; Ex parte Andrews [1978] Qd R 64 …. [1-455] Soames v R [2012] NSWCCA 188; BC201206674 …. [7-600] Solomon; R v (2005) 153 A Crim R 32 …. [8-s 97.20], ERROR — [1980] 1 NSWLR 321 …. [2-s 161.20], [8-s 18.5] Solway; R v (1984) 2 Qd R 75 …. [10-s 10.25] Soma v R (2003) 212 CLR 299; 196 ALR 421 …. [7-495] Sorby v Cth (1983) 152 CLR 281; 46 ALR 237 …. [2-s 33.5] Sorlee; R v (1925) 42 WN (NSW) 152 …. [8-s 61L.10] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 …. [1485], [2-s 202.15] Southammavong; R v [2003] NSWCCA 312; BC200306669 …. [2-s 161.10] Southon v Plath obh Dept of Environment and 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] Spartels; R v [1953] VLR 194; ALR 554 …. [8-s 27.15], [8-s 58.25] Speechley; R v [2012] NSWCCA 130; BC2001204915 …. [8-s 86.15] Spence v Loguch BC9101434; (1990) 9 Petty SR 4404 …. [11-125.20] Sperotto; R v [1970] 1 NSWR 502; (1970) 71 SR(NSW) 334 …. [2-s 21.10] Spicer; R v (2003) 139 A Crim R 206 …. [10-s 6.10] Spiero; R v (1979) 22 SASR 543 …. [5-s 55.1] Spiers; R v (1983) 34 SASR 546 …. [5-s 12.1] Spiteri; R v (2004) 61 NSWLR 369 …. [2-s 142.5], [7-485] Spratt v DPP [2010] NSWSC 355; BC201002668 …. [2-s 293.1] Spurge; R v [1961] 2 QB 205; 45 Cr App R 191 …. [8-s 52A.20] Stackelroth; R v (1996) 86 A Crim R 438 …. [2-s 285.1], [2-s 289.1] Stafford v R (1993) 67 ALJR 510 …. [2-s 161.35]

Stambolis; R v (2006) 160 A Crim R 510 …. [5-s 22.1] Standen v Director of Public Prosecutions (DPP) (Cth) [2011] NSWCCA 187; BC201106085 …. [2-s 19.5] Stanford; R v BC9001978 …. [8-s 26.10] Stanley v Farlow (2001) 161 FLR 250 …. [2-s 192.5] — v Powell [1891] 1 QB 86 …. [8-s 58.30] Stanley; R v (1995 unreported) …. [8-s 58.5] — [2003] NSWCCA 233; BC200304770 …. [8-s 97.20] 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] Stanton, Ex parte (1928) 28 SR (NSW) 516; 45 WN (NSW) 118 …. [2-s 16.35] Stanton; R v (1991) 52 A Crim R 164 …. [7-220] — (1991) 52 A Crim R 164 …. [2-s 8.10] 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] Stead; R v [1994] 1 Qd R 665; (1992) 62 A Crim R 40 …. [2-s 32.5] Steele; R v (1952) 70 WN (NSW) 167 …. [8-s 117.10] Steer v R (2008) 191 A Crim R 435 …. ERROR Steffan v — (1993) 30 NSWLR 633 …. [7-525] Stevens v — [2007] NSWCCA 152; BC200704397 …. [8-s 93C.15] Stevens; R v (1991) 23 NSWLR 75; 102 ALR 42 …. [10-s 25.20] Stewart v R (1921) 29 CLR 234; 27 ALR 173 …. [2-s 31.1] — v — [2009] NSWCCA 152; BC200904561 …. [8-s 24.30] Stewart; Ex parte A-G (Qld); R v [1989] 1 Qd R 590 …. [2-s 161.25] Stewart; R v (2001) 52 NSWLR 301; 124 A Crim R 371 …. [2-s 161.40] Stingel 97 ALR 1 …. [8-s 23.3] — v R (1990) 171 CLR 312; 97 ALR 1 …. [2-s 161.30] — v — (1990) 171 CLR 312; 97 ALR 1 …. [8-s 23.3] — v — 97 ALR 1 …. [8-s 23.3]

Stoeski v — [2014] NSWCCA 161; BC201406653 …. [5-s 53A.5] Stokes and Difford; R v (1990) 51 A Crim R 25 …. [2-s 161.30], [8-s 117.35] — (1990) 51 A Crim R 25 …. [2-s 161.30] Stokes; R v (1925) Cr App R 71 …. [8-s 27.65] Stone; R v (1995) 85 A Crim R 436 …. [5-s 44.15] Storey; R v (1978) 140 CLR 364; 22 ALR 47 …. [2-s 193.5] Stoupe; R v [2015] NSWCCA 175; BC201505960 …. [5-s 21A.20], [8-s 91K.1] Strahan; R v (1855) 7 Cox CC 85 …. [7-160] Street; R v [2005] NSWCCA 139; BC200502036 …. [5-s 21A.5], ERROR Stringer; R v (2000) 116 A Crim R 198 …. [2-s 16.15] Stuart v R (1959) 101 CLR 1; 33 ALJR 113b …. [2-s 59.10] Sturdy v Katarzynski (NSWSC, Sperling J, 17 March 1997, unreported …. [8-s 527C.35] Stutsel v Reid (1990) 20 NSWLR 661 …. [11-125.15] Su; R v [1997] 1 VR 1; (1995) 129 FLR 120 …. [7-485] 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] Sukkar; R v (2006) 172 A Crim R 151 …. [5-s 23.1] Suleman v R [2009] NSWCCA 70; BC200901710 …. ERROR Sullivan v — [2011] NSWCCA 270; BC201109699 …. [2-s 161.63] — v R; Skillin v R (2008) 51 MVR 572 …. [5-s 22.1] Sullivan; R v BC9505248 …. [2-s 289.1] — [2003] NSWCCA 100; BC200301699 …. [7-485] Sultana; R v (1994) 74 A Crim R 27 …. [10-s 25.40] Sumner; R v [1935] VLR 197; ALR 350 …. [8-s 327.15] Sundra Khan; R v (1901) 18 WN (NSW) 29 …. [2-s 59.10] Supple; R v (1870) 1 VR 151 …. [8-s 18.10] 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] Sutton; R v (1877) 13 Cox CC 648 …. [8-s 4.5] — (1986) 5 NSWLR 697 …. [2-s 161.62] — (2004) 41 MVR 40 …. [5-s 22.1] — [1977] 3 All ER 476 …. [8-s 61L.10] Swan; R v (2003) 140 A Crim R 243 …. [10-s 3.45] 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] Swift; R v BC9102117 …. [8-s 52A.45] SY; R v [2003] NSWCCA 291; BC200306107 …. [5-s 22.1] SZ v R (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] Tadman; R v (2001) 34 MVR 54 …. [8-s 52A.45] Tadrosse; R v (2005) 65 NSWLR 740 …. [5-s 21A.1], [5-s 21A.5], ERROR Taha; R v (2000) 120 A Crim R 161 …. [8-s 97.5] Tahau; R v [1975] 1 NSWLR 479 …. [8-s 109.5] Taikato v R (1996) 186 CLR 454; 139 ALR 386 …. [8-s 417.1], [8-s 547D.10] — v — (1996) 186 CLR 454; 139 ALR 386 …. [8-s 43.5], [8-s 43A.5], [11125.25] Taikmaskis; R v (1986) 19 A Crim R 383 …. [8-s 310D.35] Tait; R v [1990] 1 QB 290; [1989] 3 All ER 682 …. [8-s 20.1] Taktak; R v (1988) 14 NSWLR 226; 34 A Crim R 334 …. [8-s 18.50] Taleb v R [2006] NSWCCA 119; BC200602300 …. [2-s 161.25] — v — [2015] NSWCCA 105; BC201504055 …. [2-s 293.1] Taleb; R v [2006] NSWCCA 119; BC200602300 …. [2-s 161.25] Tam v DPP (Cth) 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] Tangmashuk; R v (1986) 7 NSWLR 551 …. [2-s 31.1] Tannous v R (1989) 64 ALJR 141 …. [10-s 26.1]

Tannous, Fahda and Dib; R v [2012] NSWCCA 243; BC201209067 …. [8-s 154G.5] Tao; R v [1977] 1 QB 141 …. [10-s 6.5] Taouk; R v [1982] 2 NSWLR 974 …. [10-s 3.10], [10-s 23.35] — BC9203128 …. [2-s 21.20] Taylor v R (1978) 45 FLR 343; 22 ALR 599 …. [8-s 23A.10] — v — [2009] NSWCCA 180; BC200912275 …. [2-s 293.1] Taylor and Little; R v [1992] 1 All ER 299; QB 645 …. [8-s 58.5] Taylor; R v (1904) 21 WN (NSW) 43 …. [8-s 131.15] — (2002) 129 A Crim R 146 …. [8-s 18.27], [8-s 418.1] — [2003] NSWCCA 194; BC200306670 …. [2-s 20.1], [7-150] Tazelaar v R [2009] NSWCCA 119; BC200903215 …. [5-s 22.1] Teasdale; R v (2004) 145 A Crim R 345 …. [2-s 160.1] Tegge v Caldwell (1988) 15 NSWLR 226 …. [8-s 527C.20] Templeton; R v [1956] VLR 709; ALR 706 …. [8-s 310D.10] Tez v Longley (2004) 142 A Crim R 122 …. [2-s 93.5] Thabo Meli; R v [1954] 1 WLR 228 …. [8-s 18.1] Thawer; R v [2009] NSWCCA 158; BC200904895 …. [5-s 12.1], [5-s 54C.1] Thiagarajah; R v (1989) 41 A Crim R 45 …. [5-s 21.1] 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] Thomas Sam (No 14); R v [2009] NSWSC 561; BC200905452 …. [7-600] Thomas; R v (1953) 37 Cr App R 169 …. [8-s 117.20] — (1981) 6 A Crim R 66 …. [10-s 10.20] — (1985) 81 Cr App R 331 …. [8-s 58.5] — (1992) 65 A Crim R 269 …. [8-s 58.20] — (1993) 67 A Crim R 308 …. [10-s 6.10] — [1957] 2 All ER 181 …. [11-380.5] — [2007] NSWCCA 269; BC200709863 …. ERROR Thommeny v Humphries (1987 unreported) …. [11-125.20] Thompson v R (1968) 117 CLR 313; [1968] ALR 432 …. [10-s 23.35]

— v — (1989) 169 CLR 1; 86 ALR 1 …. [2-s 13.1], [2-s 14.1], [7-160] — v Vincent (2005) 153 A Crim R 577 …. [21-s 4.1], [21-s 99.15] Thompson; R v (1925) 25 SR (NSW) 250 …. [2-s 21.1] — (1945) 45 SR(NSW) 374 …. [7-640] — (1988) 36 A Crim R 223 …. [8-s 23A.1] — [1976] 2 NSWLR 453 …. [8-s 52A.30] — (1976 unreported) …. [2-s 153.1] — (1994 unreported) …. [10-s 25.25] Thomson [(2000) 49 NSWLR 383; 115 A Crim R 104 …. [5-s 22.1] — v R [2014] NSWCCA 88; BC201403737 …. [5-s 67.1] Thomson and Dann; R v (2002) 134 A Crim R 252 …. [2-s 21.5] Thomson and Houlton; R v (2000) 49 NSWLR 383; 115 A Crim R 104 …. [5-s 22.1], [5-s 37.1] Thomson; R v BC8601015 …. [8-s 310D.35] Thorneloe v Filipowski (2001) 52 NSWLR 60; 123 A Crim R 92 …. [5-s 10.1] Thorpe; R v [1972] 1 WLR 342; [1972] 56 CR App R 93 …. [8-s 52A.15] Thurborn; R v (1848) 169 ER 293 …. [8-s 117.15] Tidona v R [2005] NSWCCA 410; BC200510433 …. [5-s 54B.5] Tien Hung Vu v — [2006] NSWCCA 188; BC200604589 …. [10-s 25.25] Tierney; R v (1885) 1 WN (NSW) 114a …. [8-s 35.65] Tight; R v BC8601309 …. [10-s 25.25] Tiknius v R [2011] NSWCCA 215; BC201107348 …. [5-s 21A.10] Tillett; Ex parte Newton; R v (1969) 14 FLR 101 …. [21-s 48.10], [21-s 48.35] Tillman v Attorney-General (NSW) (2007) 70 NSWLR 448; 178 A Crim R 133 …. [29-950.5] Tillmans Butcheries Pty Ltd v AMIEU (1979) 42 FLR 331 …. [2-s 91.10] Tillot; R v (1995) 38 NSWLR 1 …. [8-s 61I.45] Tillott; R v (1991) 53 A Crim R 46 …. [2-s 161.15], [2-s 161.25], [8-s 115.5] Timmins; R v [1976] Crim LR 129 …. [8-s 310D.5] TJ v R (2009) 197 A Crim R 508 …. [2-s 161.45]

— v — [2009] NSWCCA 257; BC200909613 …. [2-s 294.5] TMTW v — [2008] NSWCCA 50; BC200801364 …. ERROR Toalepai v — [2009] NSWCCA 270; BC200909849 …. ERROR Tobar; R v (2004) 150 A Crim R 104 …. [5-s 44.10] Todd; R v (1977) 6 A Crim R 105 …. [10-s 10.20] Toki; R v [2003] NSWCCA 125; BC200302309 …. [8-s 18.10] Toksoz; R v [2015] NSWSC 1234 …. [9-s 16A.5] Tolley; R v [2004] NSWCCA 165; BC200403019 …. [5-s 12.1] Tolmie; R v (1995) 37 NSWLR 660 …. [8-s 61I.5] — (1994 unreported) …. [2-s 19.5], [2-s 192.5] Tonari v R [2013] NSWCCA 232; BC201313860 …. [2-s 16.1] Tonks; R v [1963] VR 121 …. [7-170] Tonner; R v [1985] 1 All ER 807 …. [7-455] Torrance v Cornish (1985) 79 FLR 87 …. [2-s 202.1] Tout; R v (1987) 11 NSWLR 251 …. [8-s 61K.5] Towers; R v (1984) 14 A Crim R 12 …. [2-s 154.1], [7-525] Towle; R v (1954) 72 WN (NSW) 338 …. [2-cl 21.5], [2-s 161.20], [2-s 161.25] Towner; R v (1991) 56 A Crim R 221 …. [2-s 161.10] Tracey; R v (1895) 6 QLJ 272 …. [8-s 29.1] Trainer v R (1906) 4 CLR 126; 13 ALR 53 …. [2-s 16.20] Traino; R v (1987) 45 SASR 473; 27 A Crim R 271 …. [8-s 327.5] Trainor; R v [1992] 2 Qd R 572; 56 A Crim R 102 …. [2-s 19.5] Traveland v Doherty (1982) 41 ALR 563; 63 FLR 41 …. [2-s 14.1] Treacy; R v [1971] AC 537 …. [8-s 99.15] Trindall; R v (2002) 133 A Crim R 119 …. [5-s 11.1] Tripodina; R v (1988) 35 A Crim R 183 …. [2-s 161.5] — (1988) 35 A Crim R 183 …. [7-640] Trivett; R v BC9101892 …. [7-640] Trobridge v Hardy (1955) 94 CLR 147 …. [21-s 99.5] Trotter; R v (1993) 35 NSWLR 428; 68 A Crim R 536 …. [8-s 23A.1], [8-s 23A.10]

Trudgeon; R v (1988) 39 A Crim R 252 …. [2-cl 21.5], [10-s 26.1] Trujillo-Mesa v R [2010] NSWCCA 201; BC201006699 …. [5-s 22.1] 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 George BC9802154 …. [2-s 93.5] — v James [2014] NSWSC 984; BC201405753 …. [21-1535.5] Tsakonas v R [2009] NSWCCA 258; BC200909563 …. ERROR TT v — [2014] NSWCCA 206; BC201408396 …. [8-s 24.30] Tuala; R v [2015] NSWCCA 8; BC201500546 …. [5-s 21A.5], [5-s 28.1], ERROR Tubou; R v [2001] NSWCCA 243; BC200103428 …. [2-s 293.1] Tucs v Manley (1985) 62 ALR 460 …. [8-s 527C.10] Tugaga; R v (1994) 74 A Crim R 190 …. [7-525] Tuki (No 4); R v [2013] NSWSC 1864 …. [8-s 93T.10] Tulloh; R v BC9302114 …. [10-s 25.25] 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 (No 1); R v [2016] NSWSC 189; BC201604060 …. [2-s 30.1] Turner; R v (1910) 4 Cr App Rep 203 …. [8-s 27.1] Tuuta; R v [2014] NSWCCA 40; BC201402311 …. [5-s 44.15] Tye v Cmr of Police (1995) 84 A Crim R 147 …. [21-s 49.5] Tyford; R v (1893) 14 LR (NSW) 51 …. [2-s 31.1] Ugle v R (2002) 211 CLR 171; 189 ALR 22 …. [8-s 18.15] Uhrig; R v BC9605087 …. [2-s 161.10] Underhill v Murden (2007) 173 A Crim R 336 …. [8-6180.1] Underhill; R v BC8601036 …. [8-s 97.20] United States Government v Atkinson [1969] 2 All ER 1151 …. [2-s 193.5] Utans; R v (1982) 29 SASR 592; 5 A Crim R 315 …. [7-485] Vaa; R v [2006] NSWCCA 44; BC200601076 …. [5-s 55.1] Vakauta v Kelly (1989) 167 CLR 568; 87 ALR 633 …. [1-015] Valence; R v (1958) 59 SR (NSW) 138 …. [8-s 61L.10]

Valentine v Eid (1992) 27 NSWLR 615; 15 MVR 541 …. [1-005], [2-s 202.25] Valentini; R v (1989) 46 A Crim R 23 …. [8-s 94.20] Valera; R v [2002] NSWCCA 50; BC200201640 …. [5-s 61.1] Vallance v R (1961) 108 CLR 56; [1963] ALR 461 …. [8-s 58.5] Van Beelen, Re (1974) 9 SASR 163 …. [2-s 59.15], [7-485] Van Beelen; R v (1973) 4 SASR 353 …. [8-s 18.20] Van den Hoek v R (1986) 161 CLR 158; 69 ALR 1; (1987) 61 ALJR 19 …. [2-s 161.30] — v — (1986) 161 CLR 158; 69 ALR 1 …. [8-s 18.25] Van der Lubbe; R v (1949) 66 WN (NSW) 140; (1949) 49 SR (NSW) 309 …. [8-s 545B.1] Van Dyk; R v [2000] NSWCCA 67; BC200001101 …. [8-s 61Q.1] Van Leeuwen v R (1981) 55 ALJR 726; 36 ALR 591 …. [2-s 161.10] Van Tongeren v ODPP (Qld) [2013] QMC 16 …. [9-s 16A.10] Vanecek; R v (1954) 72 WN (NSW) 72 …. [2-s 152.1] 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] — v — (1976) 12 ALR 347; 51 ALJR 243 …. [2-s 161.30] Varley; R v [1973] 2 NSWLR 427 …. [2-s 160.1], [8-s 18.65] Vasic; R v (2005) 11 VR 380; 155 A Crim R 26 …. [8-s 192D.5] Veatufunga; R v (2007) 47 MVR 324 …. [8-s 52A.50] Veen v R (1979) 143 CLR 458; 23 ALR 281 …. [8-s 23A.5] — v R (No 2) (1988) 164 CLR 465 …. [5-s 61.1] — v — (1988) 164 CLR 465; 77 ALR 385 …. [8-s 23A.5] — v — (1988) 164 CLR 465; 77 ALR 385 …. [5-s 3A.1], [5-s 21.1], [5-s 33.5], ERROR Velardi; R v BC9601940 …. [7-150] Velevski v R (2002) 187 ALR 233 …. [7-485] Velevski; R v (2000) 117 A Crim R 30 …. [9-s 22.5] Vella v R (1990) 2 WAR 537; 47 A Crim R 119 …. [2-s 160.1] — v — (1990) 2 WAR 537; 47 A Crim R 119 …. [7-475]

Vella; R v (1995 unreported) …. [8-s 24.30] Velmin v O’Connor (1991 unreported) …. [11-395.5] Venables; R v (1908) 8 SR 612; (1908) 25 WN (NSW) 190 …. [8-s 117.20], [8-s 126.10] Veness v Hodge [2015] NSWCA 20; BC201500890 …. [8-6360.5] Venna; R v [1976] QB 421 …. [8-s 58.5] 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] Veverka; R v [1978] 1 NSWLR 478 …. [2-s 161.30] VHP; R v BC9702876 …. [2-s 16.15] Vickers; R v (1975) 61 Cr App R 48 …. [8-s 23A.1] Viers; R v [1983] 2 Qd R 1 …. [2-s 19.5] 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 22.1] Von Lieven v Stewart (1990) 21 NSWLR 52; 3 ACSR 118 …. [8-s 351B.10] Vortouni v McDonald BC9504205 …. [2-s 65.15] Vougdis v R (1989) 41 A Crim R 125 …. [5-s 33.1] Vreones; R v [1891] 1 QB 361 …. [8-s 319.5] Vu; R v (1993 unreported) …. [8-s 94.20] W v R [2014] NSWCCA 110; BC201405596 …. [2-s 133.1] Wade; R v (1869) 11 Cox CC 549 …. [8-s 117.35] Wainohu v New South Wales (2011) 278 ALR 1; 85 ALJR 746 …. ERROR Wakefield v R [2010] NSWCCA 12; BC201000466 …. [5-s 44.15] Wakeling v — [2016] NSWCCA 33; BC201601309 …. [8-s 66C.60] Wald; R v (1971) 3 DCR (NSW) 25 …. [8-s 84.5] Walden v Hensler (1987) 163 CLR 561; 75 ALR 173 …. [5-s 10.1], [8-s 117.35] — v R (1986) 41 SASR 421; 23 A Crim R 242 …. [2-s 59.15] Walkden; R v (1845) 1 Cox CC 282 …. [8-s 58.5] 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] Walker; R v (1981) 27 SASR 315; 3 A Crim R 200 …. [5-s 12.1] — BC9501896 …. [8-s 58.20] — [2005] NSWCCA 109; BC200501614 …. ERROR 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 …. [10-s 25.1] — v — (1996) 188 CLR 77; 139 ALR 27 …. [2-s 8.1], [2-s 16.25] Walsh; R v (1990) 52 A Crim R 80 …. [8-s 192D.5] — [2004] NSWCCA 428; BC200408411 …. [5-s 59.5] Walters; R v (1992) 62 A Crim R 16 …. [8-s 121.5] Walton v Gardiner (1993) 177 CLR 378; 112 ALR 289 …. [2-s 19.5] — v — (1993) 177 CLR 378; 112 ALR 289 …. [2-s 19.5] — v — (1993) 177 CLR 378; 112 ALR 289 …. [2-s 19.5] — v Salmon (1992 unreported); (1992) 10 Petty SR 4530 …. [8-s 195.10] Walton, Ex parte (1885) 1 WN (NSW) 141 …. [8-s 131.5] Waqa (No 2); R v (2005) 156 A Crim R 454 …. [5-s 23.1] Warby v R (2007) 171 A Crim R 575 …. [8-s 324.5] Ward v Marsh [1959] VR 26; [1958] ALR 724 …. [11-125.15] Ward; R v (1938) 38 SR (NSW) 308; 55 WN 80 …. [8-s 117.5], [8-s 125.15] Waring (No 2); R v [1972] Qd R 263 …. [7-405] Warner v Elder BC9703044 …. [21-s 48.30] — v Met Police Cmr [1969] 2 AC 256; 2 All ER 356 …. [8-s 159.20] Warner; R v [1969] 2 AC 256 …. [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] Waterhouse v Gilmore (1988) 12 NSWLR 270 …. [2-s 65.15] Waterhouse; R v (1911) 11 SR (NSW) 217 …. [8-s 117.15] Watkins; R v BC9504520 …. [8-s 188.15] 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]

Watts, Ex parte (1906) 23 WN (NSW) 69 …. [11-380.15] Waugh v Kippen (1986) 160 CLR 156; 64 ALR 195 …. [8-s 44.5] Way; R v (2004) 60 NSWLR 168 …. [5-s 21A.1], [5-s 44.15], [5-s 44.25], ERROR — (2004) 60 NSWLR 168 …. [5-s 44.10], [5-s 44.15], [5-s 54B.5] — [1981] 2 NSWLR 653; (1981) 3 A Crim R 465 …. [8-s 310D.30] Weatherall; R v [1968] Crim LR 115 …. [8-s 39.10] Weatherspoon; R v (1992 unreported) …. [8-s 61I.65] Weatherstone; R v BC8701208; (1987) 8 Petty SR 3729 …. [8-s 117.30] Weaver v Bush (1798) 8 Term Rep 78 …. [8-s 58.30] Weaver; R v (1931) 45 CLR 321 …. [2-cl 21.15], [2-cl 21.5], [7-001] Webb and Hay v R (1994) 181 CLR 41; 122 ALR 41 …. [1-015], [2-s 21.15] — v — (1994) 181 CLR 41; 122 ALR 41 …. [7-460] Webb and Hay; R v (1992) 64 A Crim R 38 …. [2-s 160.1] Webley; R v (1967) 111 Sol Jo 111 …. [8-s 114.10] Webster and Jones; R v BC9201710 …. [5-s 24.1] Webster; R v (1998) 43 NSWLR 256; 100 A Crim R 26 …. [1-020] Weekes v Lahood (1992) 10 Petty SR 4501 …. [8-s 58.55] — v — BC9201717 …. [21-s 99.20], [21-s 105.1] — v — BC9201717; (1992) 10 Petty SR 4501 …. [8-s 546C.15] Wehebe v Voulgarakis (1991 unreported); (1991) 9 Petty Sessions Review 4363 …. [2-s 11.1] — v — (1991 unreported); (1991) 9 Petty SR 4363 …. [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] Wen Sheng Jiang v R [2010] NSWCCA 277; BC201008919 …. ERROR Wentworth v Rogers [1984] 2 NSWLR 422; (1984) 15 A Crim R 376 …. [2s 62.5] West; R v (1848) 175 ER 329 …. [8-s 20.1] — (1880) 1 LR(NSW) 329 …. [8-s 131.5] — [1948] 1 KB 709 …. [7-100]

— [1962] 2 All ER 624; [1962] 3 WLR 218 …. [2-s 202.10] — [2011] NSWCCA 91 …. [8-s 24.30] Westerman; R v (1991) 55 A Crim R 353 …. [2-s 16.15] 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] Whalen; R v (2003) 56 NSWLR 454 …. [10-s 23.30] Wheeldon; R v (1839) 8 Carrington & Payne 747 …. [8-s 112.10] Wheeler; R v (1844) 1 Cox CC 106 …. [8-s 33.5] Whelan v R [2012] NSWCCA 159; BC201204946 …. [8-s 52A.5] Wheller; R v (1829) 3 C P 585 …. [8-s 56.10] White v R (1906) 4 CLR 152; 13 ALR 102 …. [8-s 319.5] — v — (1989) 18 NSWLR 332; 46 A Crim R 251 …. [2-s 293.1] — 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] White; R v (1853) 169 ER 696 …. [8-s 117.15] — (1904) 21 WN(NSW) 104 …. [8-s 117.15] — (1912) 7 Cr App R 266 …. [8-s 117.15] — [1910] 2 KB 124 …. [8-s 18.70] — BC9101745 …. [2-cl 21.20] — BC9803139 …. [5-s 22.1] Whitehorn v R (1983) 152 CLR 657; 49 ALR 448 …. [2-s 160.1] — v — (1983) 152 CLR 657; 49 ALR 448 …. [7-485] Whitmore; R v (1999) 109 A Crim R 51 …. [8-s 61I.10] 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] Whyte; R v (2002) 55 NSWLR 252; 37 MVR 1 …. [5-s 37.1] — (2002) 55 NSWLR 252 …. [5-s 37.1] — [2002] NSWCCA 343; BC200204713 …. [8-s 52A.45] Wickham; R v [2004] NSWCCA 193; BC200403646 …. [5-s 21A.1], [5-s 21A.5], [5-s 44.15], ERROR

— [2010] NSWCCA 41; BC201001109 …. ERROR Wicks, Ex parte; Re Cameron (1935) 52 WN (NSW) 144 …. [11-380.5] 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] Wilhelm; R v (2010) 77 NSWLR 1; 200 A Crim R 413 …. [8-s 38.10] — [2010] NSWSC 334; BC201002419 …. [8-s 39.7] Wilk; R v (1982) 32 SASR 12 …. [2-s 17.1] Wilkes; R v (2001) 122 A Crim R 310 …. [2-s 207.1] Wilkins v R [2009] NSWCCA 222 …. [8-s 33.20] Williams v Douglas (1949) 78 CLR 521 …. [8-s 7.1] — v — (1949) 78 CLR 521; [1950] ALR 223 …. [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 (1978) 140 CLR 591 …. [10-s 10.30] — v — (1978) 140 CLR 591; 22 ALR 195 …. [10-s 10.30] — v — (2006) 160 A Crim R 151 …. [8-s 86.3] — v — (2012) 62 MVR 382 …. [7-410], [7-455], [8-s 52A.15] — v — [1982] WAR 277 …. [7-525] — v — [2010] NSWCCA 15; BC201000929 …. ERROR — v Spautz (1992) 174 CLR 509; 107 ALR 635 …. [2-s 19.5], [2-s 192.5] Williams and Dark; R v [1908] QWN 33 …. [8-s 33.5] Williams, Ex parte (1909) 9 SR (NSW) 140; 26 WN (NSW) 9 …. [2-s 16.35] Williams; R v (1982) 7 A Crim R 46 …. [8-s 310D.35] — (1986) 21 A Crim R 460 …. [8-s 117.35] — (1990) 50 A Crim R 213 …. [2-s 161.1] — (1990) 50 A Crim R 213 …. [8-s 58.5], [8-s 59.10] — (1999) 104 A Crim R 260 …. [2-s 161.1] — (2005) 62 NSWLR 481; 152 A Crim R 405 …. [5-s 51.1] — [2005] NSWCCA 99; BC200501608 …. [5-s 21A.1], [5-s 21A.5],

ERROR Williamson v DPP (Qld) [2001] 1 Qd R 99 …. [9-s 19.10] Williamson (No 1); R v (1996) 67 SASR 428 …. [2-s 161.1] Williamson and Morell; R v (1991 unreported) …. [2-s 21.10] Williamson; R v (2000) 1 VR 58 …. [8-s 18.25] Willmott v Attack [1976] 3 WLR 753 …. [8-s 58.50] Wills v Williams [1971] WAR 29 …. [11-125.25], [11-140.10] Wills; R v [1983] 2 VR 201 …. [8-s 18.55] Wilson v DPP [2002] NSWSC 935; BC200206024 …. [11-130.10], [21-s 99.5] — v Kuhl [1979] VR 315 …. [11-230.10] Wilson; R v (1979) 69 Cr App R 83 …. [2-s 16.25] — (1992) 174 CLR 313; 107 ALR 257 …. [8-s 18.55], [8-s 18.60] — (1992) 174 CLR 313; 107 ALR 257 …. [8-s 18.25] — (1994) 34 NSWLR 1; 73 A Crim R 532 …. [9-s 22.5] — (2005) 62 NSWLR 346 …. [5-s 28.1] — [1955] 1 All ER 744 …. [8-s 58.5] — [1985] 2 Qd R 420 …. [8-s 58.5] — [1996] 3 WLR 125 …. [8-s 58.5] — BC9805276 …. [7-405] 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] Wimborne (RJ) Pty Ltd, Ex parte; Re Beale [1958] SR (NSW) 353; 75 WN (NSW) 372 …. [8-s 417A.1] Windle v R [2011] NSWCCA 277; BC201110827 …. ERROR Winn v — [2007] NSWCCA 44; BC200700958 …. [8-s 60.15] Winner v — (1989) 39 A Crim R 180 …. [2-s 162.1] Winner; R v (1995) 79 A Crim R 528 …. [2-s 133.1] Winningham; R v (1995 unreported) …. [2-s 133.1], [8-s 93G.10] Withers v DPP [1974] 3 WLR 751 …. [2-cl 21.15] Withers; R v [1975] AC 842 …. [8-s 319.5] Witness v Marsden (2000) 49 NSWLR 429 …. [2-s 91.10], [2-s 93.5]

Wong v DPP (2005) 155 A Crim R 37 …. [2-s 207.1] — v R (2001) 207 CLR 584; 185 ALR 233 …. [5-s 22.1], [5-s 37.1] — v — [2009] NSWCCA 101; BC200912274 …. [2-s 161.30] Wong Kam-Ming v — [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], [11275.1] Wong; R v (1988) 37 A Crim R 385 …. [2-cl 21.5], [2-s 161.20] — (1999) 48 NSWLR 340; 154 FLR 80 …. [5-s 37.1] Wood; R v [2014] NSWCCA 184; BC201407793 …. [8-s 24.30] Woodland; R v (1836) 1 M R 549 …. [8-s 150.5] Woodley v Boyd [2001] NSWCA 35; BC200100621 …. [21-s 231.1] Woodman; R v [1974] QB 754 …. [8-s 117.15] 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] Woods; R v [2009] NSWCCA 55; BC200903214 …. [8-s 66A.40] Woodward v Wallace (1985 unreported) …. [10-s 3.20] Woodward; R v [1995] 2 Cr App R 388 …. [8-s 52A.15] 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] Work, Ex parte (1887) 3 WN (NSW) 125 …. [8-s 131.10] WorkCover Authority of NSW (Inspector Keenan) v Lucon (Aust) Pty Ltd (2002) 112 IR 332; NSWIRComm 68 …. [2-s 179.1] Worsley v Aitken (1990 unreported); (1990) 9 Petty SR 4074 …. [8-s 546C.10] — v — BC9003194; (1990) 9 Petty SR 4074 …. [5-s 10.10] Worthington; R v [1921] VLR 660 …. [8-s 133.5] WRC; R v (2003) 59 NSWLR 273; (2003) 143 A Crim R 503 …. [2-s 19.5] Wright; R v (1879) 2 SCRNS 110 …. [8-s 29.1] — (1976) 62 Cr App Rep 169 …. [10-s 10.20] — [1980] VR 593; (1980) 4 ACLR 931 …. [8-s 192G.25] — BC9702913 …. [8-s 26.25]

WW v R [2012] NSWCCA 165; BC201206782 …. [8-s 52A.45] Wynn; R v (1887) 16 Cox CC 231 …. [8-s 125.20], [8-s 125.25] x (1992 unreported) …. [2-s 192.5] XHR; R v [2012] NSWCCA 247; BC201209166 …. [7-525], [8-s 61I.1] XX; R v [2009] NSWCCA 115; BC200902934 …. [5-s 55.1] Yager v R (1977) 139 CLR 28; 13 ALR 247 …. [2-s 161.25] Yang v — [2012] NSWCCA 49; BC201201671 …. [5-s 54B.5] Yates v Commissioner of Corrective Services of NSW [2014] NSWSC 653; BC201403983 …. [5-s 98.1] — v Wilson (1989) 168 CLR 338 …. [2-s 65.15] Yates; R v (1963) 80 WN (NSW) 744 …. [8-s 97.5], [8-s 114.10] — [1963] SR (NSW) 477; (1963) 80 WN (NSW) 744 …. [8-s 546B.1] Yenice v R (1994) 72 A Crim R 234 …. [5-s 23.1] Yildiz; R v (2006) 160 A Crim R 218 …. [10-s 25.1], ERROR Youkana; R v [2005] NSWCCA 231; BC200504601 …. [8-s 59.20] Youkhana; R v [2004] NSWCCA 412; BC200408415 …. [8-s 97.20], ERROR Young v Cmr for Railways (1962) 62 SR (NSW) 647 …. [10-s 43.1] — v Sprague [2015] NSWSC 1874; BC201512127 …. [2-s 177.5] — v Torrington BC8701135 …. [2-s 59.15] Young; R v (1999) 46 NSWLR 681; 107 A Crim R 1 …. [2-s 222.40] — [1953] 1 All ER 21 …. [8-s 188.35] — (1993 unreported) …. [8-s 310D.35] — [2003] NSWCCA 276; BC200305724 …. [8-s 94.20] Youssef v R [2014] NSWCCA 285; BC201410331 …. [10-s 25.25] Z v — [2014] NSWCCA 323; BC201411203 …. [5-s 23.1] Zahrooni v — [2010] NSWCCA 252; BC201008357 …. [10-s 25.25] Zaiter; R v [2005] NSWCCA 61; BC200500749 …. [10-s 6.15] Zaky v R [2015] NSWCCA 161; BC201505602 …. [5-s 12.1] Zamagias; R v [2002] NSWCCA 17; BC200200346 …. [5-s 5.1], [5-s 6.1], [5-s 7.5], [5-s 12.1] 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] Zeilaa; R v [2009] NSWSC 532; BC200905192 …. [5-s 22.1] Ziems v The Prothonotary (1957) 97 CLR 279; [1957] ALR 620 …. [7-485] Zischke; R v [1983] 1 Qd R 240 …. [7-640] Zoneff v R (2000) 200 CLR 234; 172 ALR 1 …. [2-s 161.62] Zorad; R v (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] — [1979] 2 NSWLR 764 …. [8-s 61I.5] Zreika v R [2012] NSWCCA 44; BC201202119 …. [5-s 54B.5] ZZ v — [2013] NSWCCA 83; BC201301960 …. [5-s 21A.15]

Table of Contents Currency note Currency note

Publisher’s note Publisher’s note

Features of this Book Features of this Book

Table of Cases Table of Cases

Proceedings Before Magistrates Proceedings Before Magistrates

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

Criminal Procedure Regulation 2010 Table of Provisions Table of Amendments Criminal Procedure Regulation 2010

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

Crimes (Sentencing Procedure) Regulation 2010 Table of Provisions Table of Amendments Crimes (Sentencing Procedure) Regulation 2010

Trial Procedure Trial Procedure

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

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

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

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

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

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

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

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

Summary Offences Regulation 2015 Table of Provisions Table of Amendments Summary Offences Regulation 2015

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

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

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

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

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

Index Index *

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

[page 1]

Proceedings Before Magistrates CONTENTS Paragraph INTRODUCTION: PROCEEDINGS BEFORE MAGISTRATES The Local Court …. [1-001] Decisions of Supreme and District Courts …. [1-005] Statutory reforms affecting the Local Court …. [1-007] Jurisdiction …. [1-010] Interest or bias …. [1-015] Express and implied powers …. [1-020] Local Court may give directions in circumstances not covered by rules …. [1-025] INDICTABLE OFFENCES: PROCEEDINGS BEFORE MAGISTRATES Commencement of prosecution Who may prosecute …. Indictable offences …. The court attendance notice …. Service of notice …. Procedure before committal proceedings Bail …. Adjournment …. Summary disposal of indictable offences by Local Courts ….

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

[1-100] [1-105] [1-120]

Other indictable offences …. Paper committal procedures …. Attendance of witnesses …. Subpoenas to give evidence or produce documents …. Open court, suppression orders and non-publication orders …. Children …. Committal proceedings Committal proceedings …. Procedures in committal proceedings generally …. The prosecution case …. Section 62 initial determination …. The defence case ….

[1-125] [1-130] [1-140] [1-145] [1-150] [1-155]

[1-200] [1-205] [1-210] [1-215] [1-220] [page 2]

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 ….

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

SUMMARY OFFENCES: PROCEEDINGS BEFORE MAGISTRATES Commencement of prosecution Who may prosecute …. Summary offences ….

[1-275] [1-280]

The court attendance notice …. Service of notice …. 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 …. 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 …. Costs ….

[1-285] [1-290]

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

[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] [1-495] [page 3]

Review by Local Court …. Appeal and review ….

Paragraph [1-500] [1-510]

[page 5]

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 office: 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] Court

Statutory reforms affecting the Local

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. [page 6] 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 [2955,095]. 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 Official 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 Official 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 Official 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 Official 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 Official Trustee in Bankruptcy, above, at [58]. [page 7] 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 Official 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 Official 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 [page 8] court’s statutory jurisdiction, it may do that which is “really necessary to secure the 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 [2955,255]. 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]. [page 9]

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.

[page 10]

[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]. [page 11] See paragraph 8 of the Prosecution Guidelines of the NSW DPP at [2825,040] 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.

[1-130]

Paper committal procedures

Section 74 at [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 [2-s 79] and following. Section 89 at [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 [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 [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 [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 justice, the witness should attend to give oral evidence: [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 [2-s 91]. Evidence not complying with the paper committal procedures may be allowed in certain circumstances: [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 [2-s 59]. See annotations at [2-s 222] and following.

[1-150] Open court, suppression orders and nonpublication orders Subject to any Act or other law, s 56 at [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 [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 committal proceedings. [page 12]

[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 [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 [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 circumstances, where the accused person fails to appear: [2-s 71]–[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 [2-s 59.15]. As to the use of interpreters, see [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: [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: [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. [page 13]

[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: [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 [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: [2-s 63]. The accused person is entitled to give evidence and call witnesses: [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: [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: [2-s 66]. As to the nature of the opinion under s 64, see [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 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.

[page 14]

[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 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 [2s.65.15](e) concerning the reluctance of the Supreme Court to intervene with respect to committal proceedings. [page 15]

[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].

[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. [page 16]

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 [2s 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.

[1-370] Open court, suppression orders and nonpublication 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].

[page 17]

[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]. 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 [2815,205].

[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]. [page 18]

[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; 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. [page 19]

[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 [2955,255]) 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, 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. [page 20]

[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], [2020,585] 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; 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 [page 21] 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.

[page 23]

Criminal Procedure Act 1986 TABLE OF PROVISIONS Section

1 2 3 4 4A

Title

CHAPTER 1 — PRELIMINARY Name of Act …. Commencement …. Definitions …. Regulations and rules …. Fees ….

Paragraph

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

CHAPTER 2 — GENERAL PROVISIONS

5 6 7 8 9 10 11 12

PART 1 — OFFENCES 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 ….

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

13 14 14A

15 16 17 18 19 20 21 22

Venue in indictment …. Common informer …. Proceedings for offences commenced by officers of ICAC or PIC …. PART 2 — INDICTMENTS AND OTHER MATTERS 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 ….

[2-s 13] [2-s 14] [2-s 14A]

[2-s 15] [2-s 16] [2-s 17] [2-s 18] [2-s 19] [2-s 20] [2-s 21] [2-s 22] [page 24]

Section

23 24 25 26 27

28 29 30

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 23] [2-s 24] [2-s 25] [2-s 26] [2-s 27]

PART 3 — CRIMINAL PROCEEDINGS GENERALLY Application of Part and definition …. [2-s 28] When more than one offence may be heard at the same time …. [2-s 29] Change of venue …. [2-s 30]

31

32 33 34 35 36 36A 37 38 39 40 41 42 43 44

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 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

45 46

PART 1 — PRELIMINARY Application of Chapter and definitions …. Jurisdiction of courts ….

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

PART 2 — COMMITTAL PROCEEDINGS

47 48 49

DIVISION 1 — COMMENCEMENT OF PROCEEDINGS Commencement of committal proceedings by court attendance notice …. [2-s 47] Commencement of proceedings by police officer or public officer …. [2-s 48] Commencement of private prosecutions …. [2-s 49]

[page 25] Section

50 51 52 53 54

55 56 57 58 59 60 61 62 63 64 65 66 67 68 69

Title

Paragraph

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 ….

[2-s 50]

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

DIVISION 2 — COMMITTAL PROCEEDINGS GENERALLY Magistrate to conduct proceedings …. [2-s 55] Committal proceedings to be heard in open court …. [2-s 56] Part does not affect nature of committal proceedings …. [2-s 57] Place of hearing …. [2-s 58] Application of other procedural provisions to committal proceedings …. [2-s 59] Time for taking prosecution evidence …. [2-s 60] Discharge of accused person if prosecutor not present for taking of evidence …. [2-s 61] Prosecution evidence and initial determination …. [2-s 62] Where prosecution evidence sufficient to satisfy jury …. [2-s 63] Decision about committal …. [2-s 64] Committal …. [2-s 65] Discharge …. [2-s 66] Committal may be set aside by Magistrate …. [2-s 67] Accused person may waive committal hearing …. [2-s 68] Magistrate may end witnesses’ evidence …. [2-s 69]

70

71 72 73 74 75 76 76A 77 78 79 79A 80 81

82

Certain evidence may not be excluded …. DIVISION 3 — PROSECUTION EVIDENCE Evidence to be taken in presence of accused person Magistrate may excuse accused person from attending Other circumstances in which evidence may be taken in absence of accused person Prosecution evidence to be in written form Written statements to be served on accused person Recordings of interviews with vulnerable persons Recordings of interviews with domestic violence complainants When prosecution evidence may be given in other ways Evidentiary effect of written statements Form and requirements for written statements …. Form and requirements for recorded statements …. Rules relating to written statements …. Written statement must be signed by its maker or another person on the maker’s behalf …. Written statement must be signed by witness ….

[2-s 70]

[2-s 71] [2-s 72] [2-s 73] [2-s 74] [2-s 75] [2-s 76] [2-s 76A] [2-s 77] [2-s 78] [2-s 79] [2-s 79A] [2-s 80]

[2-s 81] [2-s 82] [page 26]

Section

83

Title

Presumptions about written statements ….

Paragraph

[2-s 83]

84 85 86 87 88 89 90 91 92 93 94 95 96

97 98

99 100 101 102 103 104

Presumptions about signatures …. False statements or representations …. Evidence not to be admitted …. Inadmissible written statements or parts of statements to be rejected …. Death of person who made statement …. Notice of rights to unrepresented accused person …. Magistrate may set aside requirements for written statements …. Witness may be directed to attend …. When accused person may apply to have witness attend …. Victim witnesses generally not to be directed to attend …. Meaning of “offence involving violence” …. Use of previous statements in cases involving prescribed sexual offences …. Application of Division to proceedings where there is more than one accused person …. DIVISION 4 — DEFENCE EVIDENCE Evidence for accused person …. Other evidence about accused person ….

[2-s 84] [2-s 85] [2-s 86] [2-s 87] [2-s 88] [2-s 89] [2-s 90] [2-s 91] [2-s 92] [2-s 93] [2-s 94] [2-s 95]

[2-s 96]

[2-s 97] [2-s 98]

DIVISION 5 — PROCEDURE IF ACCUSED PERSON PLEADS GUILTY Effect of guilty plea …. [2-s 99] Guilty plea may be accepted or rejected …. [2-s 100] Effect of rejection of guilty plea …. [2-s 101] Effect of acceptance of guilty plea …. [2-s 102] Procedure applicable after committal for trial …. [2-s 103] Higher court may refer accused person back to Magistrate …. [2-s 104]

105 106 107

108

Disposal of proceedings by higher court …. Change to not guilty plea in higher court …. Attorney General or Director of Public Prosecutions may direct that no further proceedings be taken …. Meaning of “accused person” ….

[2-s 105] [2-s 106]

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

DIVISION 6 — PROCEDURE AFTER COMMITTAL FOR TRIAL OR SENTENCE 109 Accused person to be committed to correctional centre …. [2-s 109] 110 Bail acknowledgment to be notified …. [2-s 110] 111 Papers to be sent to officer of higher court …. [2-s 111] 112 Responsibilities of appropriate officer …. [2-s 112] 113 Copies of trial papers to be given to Director of Public Prosecutions …. [2-s 113] [page 27] Section

114 115

116 117 118 119 120

Title

Copies of transcripts of evidence, recorded statements and witnesses’ statements …. Meaning of “accused person” …. DIVISION 7 — COSTS 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 ….

Paragraph

[2-s 114] [2-s 115]

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

PART 3 — TRIAL PROCEDURES

121 122 123 124 125

DIVISION 1 — LISTING Definitions …. Listing …. Authority of Criminal Listing Director …. Liaison …. Certain matters not affected ….

[2-s 121] [2-s 122] [2-s 123] [2-s 124] [2-s 125]

DIVISION 2 — COMMENCEMENT AND NATURE OF PROCEEDINGS 126 Signing of indictments …. [2-s 126] 127 Manner of presenting indictments …. [2-s 127] 128 Directions as to indictments to be presented in District Court …. [2-s 128] 129 Time within which indictment to be presented …. [2-s 129] 130 Trial proceedings after presentation of indictment and before empanelment of jury …. [2-s 130] 130A Pre-trial orders and orders made during trial bind trial Judge …. [2-s 130A] 131 Trial by jury in criminal proceedings …. [2-s 131] 132 Orders for trial by Judge alone …. [2-s 132] 132A Applications for trial by judge alone in criminal proceedings …. [2-s 132A] 133 Verdict of single Judge …. [2-s 133] DIVISION 3 — CASE MANAGEMENT PROVISIONS AND OTHER PROVISIONS TO REDUCE DELAYS IN PROCEEDINGS 134 Purpose …. [2-s 134] 135 Definitions …. [2-s 135] 136 Directions for conduct of proceedings …. [2-s 136] 137 Notice of prosecution case to be given to accused person [Repealed] …. [2-s 137]

[page 28] Section

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

150 151

Title

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 ….

Paragraph

[2-s 138] [2-s 139] [2-s 140] [2-s 141] [2-s 142] [2-s 143] [2-s 144] [2-s 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 Notice of alibi …. [2-s 150] Notice of intention to adduce evidence of substantial mental impairment …. [2-s 151]

DIVISION 5 — PLEADINGS ON TRIAL 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 ….

152 153 154 155 156 157

158 159 160 161 162

[2-s 152] [2-s 153] [2-s 154] [2-s 155] [2-s 156] [2-s 157]

DIVISION 6 — OTHER PROVISIONS RELATING TO TRIALS Transcript of statement in committal proceedings …. [2-s 158] Opening address to jury by accused person …. [2-s 159] Closing address to jury by accused person …. [2-s 160] Summary by Judge …. [2-s 161] Alternative verdict of attempt on trial for any indictable offence …. [2-s 162] [page 29]

Section

163

164

Title

No further prosecution after trial for serious indictable offence where alternative verdict possible …. Joint trial in case of perjury ….

Paragraph

[2-s 163] [2-s 164]

DIVISION 7 — CERTAIN SUMMARY OFFENCES MAY BE DEALT WITH 165 Definitions and application …. [2-s 165] 166 Certification and transfer of back up and related offences …. [2-s 166] 167 Manner of dealing with back up and related offences …. [2-s 167]

168 169

Procedures for dealing with certain offences related to indictable offences …. Remission of certain offences related to indictable offences to Local Court ….

[2-s 168] [2-s 169]

CHAPTER 4 — SUMMARY PROCEDURE

170 171

PART 1 — PRELIMINARY Application …. Definitions ….

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

PART 2 — TRIAL PROCEDURES IN LOWER COURTS

172 173 174 175 176 177 178 179 180 181

182 183 184 185

DIVISION 1 — COMMENCEMENT OF PROCEEDINGS Commencement of proceedings by court attendance notice …. [2-s 172] Commencement of proceedings by police officer or public officer …. [2-s 173] Commencement of private prosecutions …. [2-s 174] Form of court attendance notice …. [2-s 175] Court attendance notice to be for one offence only [Repealed] Service of court attendance notices …. [2-s 177] When proceedings commence …. [2-s 178] Time limit for commencement of summary proceedings …. [2-s 179] Relationship to other law or practice …. [2-s 180] Attendance of accused person at proceedings …. [2-s 181] 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

[2-s 182] [2-s 183] [2-s 184]

185A

persons …. Recordings of interviews with domestic violence complainants ….

[2-s 185] [2-s 185A] [page 30]

Section

186 187 188 189

190 191 192 193 194 195 196 197 198 199

200 201 202 203

Title

Form of copy of brief of evidence …. When brief of evidence need not be served …. Evidence not to be admitted …. False statements or representations …. DIVISION 3 — HEARINGS 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

Paragraph

[2-s 186] [2-s 187] [2-s 188] [2-s 189]

[2-s 190] [2-s 191] [2-s 192] [2-s 193] [2-s 194] [2-s 195] [2-s 196] [2-s 197] [2-s 198]

[2-s 199] [2-s 200] [2-s 201] [2-s 202]

204 205 206 207 208 209 210

211 211A 212 213 214

215 216 217 218

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 …. DIVISION 4 — COSTS Definition …. Imposition of court costs levy …. When costs may be awarded …. 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 ….

[2-s 203] [2-s 204] [2-s 205] [2-s 206] [2-s 207] [2-s 208] [2-s 209] [2-s 210]

[2-s 211] [2-s 211A] [2-s 212] [2-s 213]

[2-s 214] [2-s 215] [2-s 216] [2-s 217] [2-s 218] [page 31]

Section

Title

Paragraph

DIVISION 5 — RULES 219

Rules ….

[2-s 219]

PART 3 — ATTENDANCE OF WITNESSES AND PRODUCTION OF EVIDENCE IN LOWER COURTS 220 Application …. [2-s 220] 221 Definitions …. [2-s 221] 222 Issue of subpoenas …. [2-s 222] 223 Time for service of subpoenas …. [2-s 223] 224 Conduct money …. [2-s 224] 225 Limits on obligations under subpoenas …. [2-s 225] 226 Production by non-party …. [2-s 226] 227 Subpoena may be set aside …. [2-s 227] 228 Inspection of subpoenaed documents and things …. [2-s 228] 229 Action that may be taken if person does not comply with subpoena …. [2-s 229] 230 Application of Bail Act 2013 …. [2-s 230] 231 Action that may be taken if witness refuses to give evidence …. [2-s 231] 232 Rules relating to subpoenas …. [2-s 232] PART 4 — WARRANTS

233 234

235 236 237 238 239 240

DIVISION 1 — PRELIMINARY Application …. Definition ….

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

DIVISION 2 — ARREST WARRANTS 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 235] [2-s 236] [2-s 237] [2-s 238] [2-s 239] [2-s 240]

DIVISION 3 — WARRANTS OF COMMITMENT

241 242 243 244

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 ….

[2-s 241] [2-s 242] [2-s 243] [2-s 244] [page 32]

Section

Title

Paragraph

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

245

246 247

DIVISION 1 — JURISDICTION Summary jurisdiction of Supreme Court ….

[2-s 245]

DIVISION 2 — APPEARANCE OF ACCUSED PERSONS Orders for appearance or apprehension of accused persons …. [2-s 246] Notices to be given to prosecutor …. [2-s 247]

DIVISION 2A — CASE MANAGEMENT PROVISIONS AND OTHER PROVISIONS TO REDUCE DELAYS IN PROCEEDINGS 247A Application …. [2-s 247A] 247B Purpose …. [2-s 247B] 247C Definitions …. [2-s 247C] 247D Directions for conduct of proceedings …. [2-s 247D] 247E Notice of prosecution case to be given to defendant …. [2-s 247E] 247F Notice of defence response to be given to prosecutor …. [2-s 247F] 247G Preliminary hearings …. [2-s 247G] 247H Preliminary conferences …. [2-s 247H] 247I Court may order preliminary disclosure in particular case …. [2-s 247I]

247J 247K 247L 247M 247N 247O 247P 247Q 247R 247S 247T 247U 247V

247W 247X 247Y

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 …. 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 ….

[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] [2-s 247T] [2-s 247U]

[2-s 247V] [2-s 247W] [2-s 247X] [2-s 247Y] [page 33]

Section

248 249

Title

DIVISION 3 — TRIAL PROCEDURE Pre-trial procedure …. Procedure where prosecutor does not, but accused person does, appear ….

Paragraph

[2-s 248] [2-s 249]

250 251 252 253 254 255

256 257

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

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 …. DIVISION 4 — COSTS 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 250] [2-s 251] [2-s 252]

[2-s 254]

[2-s 255] [2-s 256] [2-s 257]

[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 Objects of this Chapter …. [2-s 258] 259 Offences to which this Chapter applies …. [2-s 259] 260 Offences to be dealt with summarily unless election made to proceed on indictment …. [2-s 260] 261 Procedure for dealing with offences summarily if no election made …. [2-s 261]

262 263 264 265 266 267 268 269

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 ….

[2-s 262] [2-s 263] [2-s 264] [2-s 265] [2-s 266] [2-s 267] [2-s 268] [2-s 269] [page 34]

Section

270 271 272 273

Title

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

[2-s 273]

CHAPTER 6 — EVIDENTIARY MATTERS

274 275

275A 275B

276

PART 1 — PRELIMINARY Application …. Definitions …. PART 2 — GENERAL Improper questions [Repealed] …. Witness with communication difficulty entitled to assistance from person or communication aid …. Proof of service of notice to produce ….

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

[2-s 275B] [2-s 276]

277 278 279 280 281

281A 281B 281C 281D 281E 281F

Stealing goods from vessel or wharf …. Incriminating statements admissible though on oath …. Compellability of spouses to give evidence in certain proceedings …. Disclosure of address or telephone number of witness …. Admissions by suspects …. PART 2A — SENSITIVE EVIDENCE Definitions …. Sensitive evidence — meaning …. 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 277] [2-s 278] [2-s 279] [2-s 280] [2-s 281]

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

PART 3 — SCIENTIFIC EXAMINATIONS AND LAW ENFORCEMENT DEVICES 282 Scientific examinations …. [2-s 282] 283 Law enforcement devices …. [2-s 283]

284 285

PART 4 — DEPOSITIONS AND WRITTEN STATEMENTS Depositions by persons dangerously ill …. [2-s 284] Depositions tendered by prosecution …. [2-s 285] [page 35]

Section

286 287

Title

Depositions tendered by accused person …. Evidentiary effect of certain transcripts ….

Paragraph

[2-s 286] [2-s 287]

288 289

289A 289B

Depositions taken during pre-trial investigations …. Written statements admitted in committal proceedings ….

[2-s 288] [2-s 289]

PART 4A — USE OF RANDOM SAMPLE EVIDENCE Definitions …. [2-s 289A] Use of random sample evidence in child abuse material cases …. [2-s 289B]

PART 4B — GIVING OF EVIDENCE BY DOMESTIC VIOLENCE COMPLAINANTS

289C 289D 298E

DIVISION 1 — PRELIMINARY 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 Complainant may give evidence in chief in form of recording …. [2-s 289F] 289G Determination as to whether evidence will be given by recording …. [2-s 289G] 289H Use of evidence in concurrent or related domestic violence proceedings …. [2-s 289H] 289I Admissibility of recorded evidence …. [2-s 289I] 289J Warning to jury …. [2-s 289J] 289K Transcripts of recordings …. [2-s 289K] DIVISION 3 — SERVICE OF AND ACCESS TO RECORDED STATEMENTS 289L Service of recorded statement …. [2-s 289L] 289M Access to recorded statement …. [2-s 289M] DIVISION 4 — MISCELLANEOUS

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

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 ….

[2-s 289N] [2-s 289O] [2-s 289P] [2-s 289Q] [2-s 289R] [2-s 289S] [page 36]

Section

Title

Paragraph

PART 5 — EVIDENCE IN SEXUAL OFFENCE PROCEEDINGS DIVISION 1 — EVIDENCE IN CERTAIN SEXUAL OFFENCE PROCEEDINGS 290 Application …. [2-s 290] 290A Definitions …. [2-s 290A] 291 Proceedings must be held in camera when complainant gives evidence …. [2-s 291] 291A Other parts of proceedings may be heard in camera …. [2-s 291A] 291B Incest offence proceedings to be held entirely in camera …. [2-s 291B] 291C Media access to proceedings held in camera …. [2-s 291C] 292 Publication of evidence may be forbidden in certain cases [Repealed] …. [2-s 292] 293 Admissibility of evidence relating to sexual experience …. [2-s 293] 294 Warning to be given by Judge in relation to lack of complaint in certain sexual offence proceedings …. [2-s 294] 294AA Warning to be given by Judge in relation to

294A

294B

294C

294D

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 …. Protections of Division extend to tendency witnesses ….

[2-s 294AA]

[2-s 294A]

[2-s 294B]

[2-s 294C] [2-s 294D]

DIVISION 2 — SEXUAL ASSAULT COMMUNICATIONS PRIVILEGE 295 Interpretation …. [2-s 295] 296 What is a protected confidence? …. [2-s 296] 297 Protected confidences — preliminary criminal proceedings …. [2-s 297] 298 Protected confidences — criminal proceedings …. [2-s 298] 299 Court to inform of rights under Division …. [2-s 299] 299A Protected confider has standing …. [2-s 299A] 299B Determining if there is a protected confidence …. [2-s 299B] 299C Notice of application for leave …. [2-s 299C] 299D Determining whether to grant leave …. [2-s 299D] 300 Effect of consent …. [2-s 300] 301 Loss of sexual assault communications privilege: misconduct …. [2-s 301] 302 Ancillary orders …. [2-s 302] 303 Court to inform of rights to make applications and objections [Repealed] 304 Court may inspect documents [Repealed] 305 Inadmissibility of evidence …. [2-s 305]

[page 37] Section

305A 306

Title

Subpoenas for production of counselling communications …. Application of common law ….

Paragraph

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

DIVISION 3 — SPECIAL PROVISIONS RELATING TO RETRIALS OF SEXUAL OFFENCE PROCEEDINGS 306A Definitions …. [2-s 306A] 306B Admission of evidence of complainant in new trial proceedings …. [2-s 306B] 306C Complainant not compellable to give further evidence …. [2-s 306C] 306D Complainant may elect to give further evidence …. [2-s 306D] 306E Form in which record of original evidence of complainant is to be tendered …. [2-s 306E] 306F Access to audio visual or audio recording …. [2-s 306F] 306G Exhibits may also be tendered …. [2-s 306G] DIVISION 4 — SPECIAL PROVISIONS RELATING TO SUBSEQUENT TRIALS OF SEXUAL OFFENCE PROCEEDINGS 306H Definitions …. [2-s 306H] 306I Admission of evidence of complainant in new trial proceedings …. [2-s 306I] 306J Whether complainant compellable to give further evidence …. [2-s 306J] 306K Complainant may elect to give further evidence …. [2-s 306K] 306L Application of provisions dealing with form of record of original evidence, access to recordings and exhibits …. [2-s 306L]

PART 6 — GIVING OF EVIDENCE BY VULNERABLE PERSONS

306M 306N 306O 306P

DIVISION 1 — PRELIMINARY 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 Evidence to which this Division applies …. [2-s 306R] 306S Ways in which evidence of vulnerable person may be given …. [2-s 306S] 306T Wishes of vulnerable person to be taken into account …. [2-s 306T] 306U Vulnerable person entitled to give evidence in chief in form of recording …. [2-s 306U] [page 38] Section

Title

306V 306W

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 ….

306X 306Y

306Z

Paragraph

[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 Application of Division …. [2-s 306ZA] 306ZB Vulnerable persons have a right to give evidence by closed-circuit television …. [2-s 306ZB] 306ZC Accused vulnerable persons may be allowed to give evidence by closed-circuit television …. [2-s 306ZC] 306ZD Giving evidence by closed-circuit television …. [2-s 306ZD] 306ZE Giving identification evidence when closedcircuit television is used …. [2-s 306ZE] 306ZF Proceedings may be moved to allow use of closed-circuit television facilities …. [2-s 306ZF] 306ZG Use of closed-circuit television or similar technology …. [2-s 306ZG] 306ZH Vulnerable persons have a right to alternative arrangements for giving evidence when closed-circuit television facilities not available …. [2-s 306ZH] 306ZI Warning to jury …. [2-s 306ZI]

306ZJ 306ZK

306ZL

306ZM 306ZN 306ZO 306ZP

DIVISION 5 — MISCELLANEOUS Validity of proceedings not affected …. Vulnerable persons have a right to presence of a supportive 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 ….

[2-s 306ZJ]

[2-s 306ZK]

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

CHAPTER 7 — MISCELLANEOUS

307 308 309 309A

PART 1 — GENERAL 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 ….

[2-s 307] [2-s 308] [2-s 309] [2-s 309A] [page 39]

Section

310 311 312 313 314 314A

315 316 317 317A

332 333

Title

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 …. PART 3 — PENALTY NOTICE OFFENCES Definitions …. Police may issue penalty notices for certain offences ….

Paragraph

[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]

[2-s 332] [2-s 333]

334 335 336 337 338 339 340 341 342 343 344 344A

Penalty notices …. Penalty notices may not be issued to children …. Penalty notice offences …. Penalties …. 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 334] [2-s 335] [2-s 336] [2-s 337] [2-s 338] [2-s 339] [2-s 340] [2-s 341] [2-s 342] [2-s 343] [2-s 344]

[2-s 344A]

PART 4 — INTERVENTION PROGRAMS

345 346

347 348 349

DIVISION 1 — PRELIMINARY Objects …. Definitions …. DIVISION 2 — INTERVENTION PROGRAMS 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 345] [2-s 346]

[2-s 347] [2-s 348] [2-s 349] [page 40]

Section

Title

Paragraph

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]

351

352

DIVISION 4 — MISCELLANEOUS 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 RELATING TO OFFENCES ….

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

[2-Sch 1]

[2-Sch 2] [2-Sch 3]

[page 41]

Criminal Procedure Act 1986 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

Road Transport Legislation 16 April 2004 Amendment (Public Transport Lanes) Act 2004 No 22 Crimes Amendment (Child 6 July 2004 Neglect) Act 2004 No 41 Crimes Legislation Amendment (Terrorism) Act 2004 No 48

6 July 2004

Sydney Opera House Trust Amendment Act 2004 No 49 Criminal Procedure Amendment (Sexual Offence Evidence) Act 2004 No 50 Courts Legislation

6 July 2004

6 July 2004

6 July 2004

Date of Commencement s 3 and Sch 3: on assent

s 4 and Sch 2 (Gaz 166 of 22 October 2004) 12 November 2004 Sch 2 (s 2(2)) (Gaz 179 of 12 November 2004) 5 November 2004 (Gaz 174 of 5 November 2004) s 3 and Sch 1: on assent (Gaz 117 of 9 July 2004) s 3 and Sch 6: on

Amendment Act 2004 No 68 Crimes Amendment (Child 15 December 2004 Pornography) Act 2004 No 95 Legal Profession Act 2004 21 December 2004 No 112

Marine Safety (Random Breath Testing) Act 2005 No 4 Road Transport (General) Act 2005 No 11

10 March 2005

Criminal Procedure Amendment (Evidence) Act 2005 No 15 Criminal Procedure Further Amendment (Evidence) Act 2005 No 25

12 May 2005

14 April 2005

31 May 2005

Civil Procedure Act 2005 No 1 June 2005 28 Crimes Amendment (Road Accidents) (Brendan’s Law) Act 2005 No 74

26 October 2005

assent 1 January 2005 (Gaz 200 of 17 December 2004) All: 1 October 2005 (s 2 and Gaz No 105 of 19 August 2005) 13 May 2005 (Gaz 54 of 13 May 2005) s 247 and Sch 3.33[1]–[3], [15]– [19]: 1 December 2005; rem: 30 September 2005 (Gaz 120 of 30 September 2005) Date of assent (Gaz 57 of 20 May 2005) 12 August 2005 (Gaz 101 of 12 August 2005); Sch 1[5] and [7]: 25 November 2005 15 August 2005 (Gaz 100 of 10 August 2005) 13 February 2006 (Gaz 16 of 3 February 2006) [page 42]

Amending Legislation

Date of Assent

1 December 2005

Date of Commencement 21 September 2005 (Gaz 131 of 28 October 2005) 16 December 2005 (Gaz 158 of 16 December 2005) 1 December 2005

15 December 2005

On assent

11 April 2006

9 February 2007

17 May 2006

s 3 and Sch 2: 13 July 2006

26 May 2006

1 September 2006

28 September 2006

15 December 2006

27 October 2006

12 March 2007 (Gaz 130 of 3 November 2006) 15 December 2006

Criminal Procedure 26 October 2005 Amendment (Prosecutions) Act 2005 No 75 Crimes Amendment (Animal 24 November 2005 Cruelty) Act 2005 No 94 Criminal Procedure Amendment (Sexual Offence Case Management) Act 2005 No 102 Law Enforcement Legislation Amendment (Public Safety) Act 2005 No 119 Law Enforcement (Controlled Operations) Amendment Act 2006 No 14 Courts Legislation Amendment Act 2006 No 23 Crimes Amendment (Organised Car and Boat Theft) Act 2006 No 26 Crimes Legislation Amendment (Gangs) Act 2006 No 61 Crimes Amendment (Apprehended Violence) Act 2006 No 73 Road Transport Legislation Amendment (Drug Testing) Act 2006 No 79

27 October 2006

Criminal Procedure Amendment (Sexual and Other Offences) Act 2006 No 88 Police Amendment (Miscellaneous) Act 2006 No 94

2 November 2006

s 3 and Sch 1: 1 January 2007

22 November 2006

Crimes and Courts Legislation Amendment Act 2006 No 107

29 November 2006

Statute Law (Miscellaneous Provisions) Act (No 2) 2006 No 120 Police Powers Legislation Amendment Act 2006 No 128 Criminal Procedure Amendment (Vulnerable Persons) Act 2007 No 6 Statute Law (Miscellaneous Provisions) Act 2007 No 27 Criminal Procedure Amendment (Local Court Process Reforms) Act 2007 No 34

4 December 2006

Sch 3.9: 1 February 2007 (s 2 and Gaz No 22 of 1 February 2007) 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) s 3 and Schs 1.8, 3.7: 4 December 2006

12 December 2006

s 6 and Sch 4: 12 December 2006

15 June 2007

12 October 2007

4 July 2007

Sch 1[1.13]: 1 July 2008

4 July 2007

14 November 2007

[page 43]

Amending Legislation

Date of Assent

Crimes Amendment Act 2007 No 38

27 September 2007

Evidence Amendment Act 2007 No 46

1 November 2007

Criminal Legislation Amendment Act 2007 No 57

15 November 2007

Surveillance Devices Act 2007 No 64 Crimes Amendment (Sexual Procurement or Grooming of Children) Act 2007 No 74 Evidence (Audio and Audio Visual Links) Amendment Act 2007 No 75 Crimes (Domestic and Personal Violence) Act 2007 No 80

23 November 2007

Child Protection (Offenders Registration) Amendment Act 2007 No 87 Miscellaneous Acts (Casino, Liquor and Gaming) Amendment Act 2007 No 92 Miscellaneous Acts (Local

13 December 2007

Date of Commencement Sch 3.1[1], [3]–[6]: on assent; Sch 3.1[2]: 15 February 2008 1 January 2009 (s 2 and Gaz 158 of 19 December 2008) Sch 1[1], [11], [12], [15]: 15 November 2007; Sch 1[2]– [10], [12]–[14], [16]: 7 December 2007 1 August 2008

7 December 2007

18 January 2008 (Gaz 9 of 18 January 2008)

7 December 2007

1 January 2009 (Gaz 158 of 19 December 2008) s 103 and Sch 2.9: 10 March 2008 (Gaz 30 of 7 March 2008) s 6 and Sch 4.2: 20 October 2008

7 December 2007

13 December 2007

Sch 4: 1 July 2008

13 December 2007

Schs 1.28, 2 and 3: 6

Court) Amendment Act 2007 No 94 Electricity Supply 19 March 2008 Amendment (Offences) Act 2008 No 2 Crimes Amendment (Rock 20 May 2008 Throwing) Act 2008 No 18 Mining Amendment Act 20 May 2008 2008 No 19

Fines Amendment Act 2008 No 40 Children (Criminal Proceedings) Amendment Act 2008 No 54

25 June 2008 1 July 2008

Crimes Amendment 28 October 2008 (Cognitive Impairment — Sexual Offences) Act 2008 No 74

July 2009 (s 2 and SI 314 of 2009, LW 3 July 2009) All: on assent (s 2)

23 May 2008 (Gaz 56 of 23 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) Sch 2: on assent Sch 2: 3 November 2008 (s 2(1) and Gaz 138 of 31 October 2008) 1 December 2008 (s 2 and Gaz 150 of 21 November 2008)

[page 44] Amending Legislation

Date of Assent

Crimes Amendment (Sexual Offences) Act 2008 No 105

8 December 2008

Date of Commencement Sch 2: 1 January 2009 (s 2(1) and Gaz 158 of 19

Courts and Crimes Legislation Further Amendment Act 2008 No 107

8 December 2008

Rural Lands Protection Amendment Act 2008 No 112 Statute Law (Miscellaneous Provisions) (No 2) Act 2008 No 114

10 December 2008

Crimes (Appeal and Review) Amendment Act 2009 No 4 Crimes (Criminal Organisations Control) Act 2009 No 6* Criminal Organisations Legislation Amendment Act 2009 No 23 Criminal Legislation Amendment Act 2009 No 27 Energy Legislation Amendment (Infrastructure Protection) Act 2009 No 31

30 March 2009

10 December 2008

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) s 4 and Sch 6.3: 1 January 2009 Sch 2.8[1]–[2], [4]: on assent (s 2); Sch 2.8[3]: 1 August 2008 (Sch 2.8) Sch 2: on assent (s 2(1))

3 April 2009

on assent (s 2)

19 May 2009

Sch 3: 19 May 2009 (s 2)

19 May 2009

On assent (s 2)

9 June 2009

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

Coroners Act 2009 No 41

19 June 2009

Road Transport Legislation 26 June 2009 Amendment (Traffic Offence Detection) Act 2009 No 50 Statute Law (Miscellaneous 1 July 2009 Provisions) Act 2009 No 56 Crimes Amendment (Fraud, 14 December 2009 Identity and Forgery Offences) Act 2009 No 99 Criminal Procedure 14 December 2009 Amendment (Case Management) Act 2009 No 112 Fisheries Management 14 December 2009 Amendment Act 2009 No 114

Sch 4: 1 January 2010 (s 2(1) and SI 544 of 2009, LW 27 November 2009) 11 September 2009 (s 2 and SI 454 of 2009, LW 4 September 2009) Schs 2.11 and 3.3: 17 July 2009 (s 2) 22 February 2010 (s 2 and SI 41 of 2010, LW 19 February 2010) 1 February 2010 (s 2 and SI 10 of 2010, LW 22 January 2010) Sch 2: 1 April 2010 (s 2 and SI 112 of 2010, LW 1 April 2010) [page 45]

Amending Legislation

Date of Assent

Crimes Amendment (Police Pursuits) Act 2010 No 2 Crimes Amendment (Child Pornography and Abuse Material) Act 2010 No 9

18 March 2010 28 April 2010

Date of Commencement On assent (s 2) Sch 2[4]–[6] and [10]: on assent (s 2(2)); Sch 2[1]– [3], [7]–[9]: 17

Relationships Register Act 2010 No 19 Weapons and Firearms Legislation Amendment Act 2010 No 40 Health Legislation Amendment Act 2010 No 52

19 May 2010

Courts Legislation Amendment Act 2010 No 63 Law Enforcement and National Security (Assumed Identities) Act 2010 No 73 Courts and Crimes Legislation Amendment Act 2010 No 88 Court Suppression and Nonpublication Orders Act 2010 No 106 Courts and Crimes Legislation Further Amendment Act 2010 No 135

28 June 2010

Statute Law (Miscellaneous Provisions) Act (No 2) 2011 No 62 Work Health and Safety Legislation Amendment Act 2011 No 67

16 November 2011

15 June 2010

28 June 2010

September 2010 (s 2 and SI 517 of 2010) Sch 3: on assent (s 2(2)) 9 July 2010 (s 2 and SI 351 of 2010, LW 9 July 2010) Sch 1.2: 30 July 2010 (s 2 and SI 385 of 2010, LW 30 July 2010) Sch 1.8: 28 June 2010 (s 2)

29 September 2010

On assent (s 2)

1 November 2010

Sch 2: on assent (s 2)

29 November 2010

1 July 2011 (s 2 and SI 296 of 2011, LW 24 June 2011) Sch 12.1 and Sch 12.2[1], [3]–[5]: on assent (s 2); Sch 12.2[2]: 14 January 2011 (s 2) Sch 3.7: 6 January 2012 (s 2(1))

7 December 2010

28 November 2011

Sch 4.6: 1 January 2012 (s 2)

Crimes Amendment 14 March 2012 (Consorting and Organised Crime) Act 2012 No 3

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 Criminal Procedure Amendment (Summary Proceedings Case Management) Act 2012 No 10 Courts and Crimes Legislation Amendment Act 2012 No 11 Courts and Other Legislation Amendment Act 2012 No 60

21 March 12

Sch 1.4: 21 March 2012 (s 2)

21 March 2012

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

21 March 2012

Sch 1.1: 21 March 2012 (s 2)

10 September 2012

Crimes Amendment (Cheating at Gambling) Act 2012 No 64 Crimes Legislation Amendment Act 2012 No 67

13 September 2012

Sch 5: 1 January 2014 (s 2 and SI 717 of 2013, LW 20 December 2013) 13 September 2012 (s 2)

24 September 2012

24 September 2012 (s 2)

[page 46] Amending Legislation

Date of Assent

Petroleum (Onshore) 29 October 2012 Amendment (Royalties and Penalties) Act 2012 No 84

Statute Law (Miscellaneous Provisions) Act (No 2) 2012 No 95 Criminal Procedure Amendment (Court Costs Levy) Act 2013 No 8 Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Act 2013 No 10 Road Transport Legislation (Repeal and Amendment) Act 2013 No 19 Local Land Services Act 2013 No 51 Firearms and Criminal Groups Legislation Amendment Act 2013 No 74 Child Protection Legislation Amendment (Offenders Registration and Prohibition Orders) Act 2013 No 77

21 November 2012

25 March 2013

25 March 2013

3 April 2013

1 July 2013 23 October 2013

29 October 2013

Date of Commencement Sch 2.1: 1 January 2013 (s 2 and SI 667 of 2012, LW 21 December 2012) Sch 1.7 and 2.8: 4 January 2013 (s 2) Sch 1: 13 May 2013 (s 2 and SI 193 of 2013) 1 September 2013 (s 2 and SI 444 of 2013)

1 July 2013 (s 2 and SI 329 of 2013, LW 28 June 2013) Sch 7: 1 January 2014 (s 2) 1 November 2013 (s 2 and SI 623 of 2013, LW 1 November 2013) 29 October 2013 (s 2)

Crimes and Courts Legislation Amendment Act 2013 No 80 Companion Animals Amendment Act 2013 No 86

29 October 2013

29 October 2013 (s 2)

11 November 2013

Crimes Legislation Amendment Act 2013 No 90 Civil and Administrative Legislation (Repeal and Amendment) Act 2013 No 95 Bail (Consequential Amendments) Act 2014 No 5 Crimes Amendment (Strangulation) Act 2014 No 23 Child Protection (Offenders Registration) Amendment (Statutory Review) Act 2014 No 54 Crimes (High Risk Offenders) Amendment Act 2014 No 58

20 November 2013

Sch 3: 18 November 2013 (s 2(1) and SI 644 of 2013, LW 15 November 2013) 20 November 2013 (s 2)

Crimes Legislation Amendment Act 2014 No 59 Rural Fires Amendment Act 2014 No 66

20 November 2013

1 January 2014 (s 2)

12 March 2014

5 June 2014

20 May 2014 (s 2 and SI 235 of 2014, LW 24 April 2014) 5 June 2014 (s 2)

23 October 2014

23 October 2014 (s 2)

23 October 2014

23 October 2014

7 January 2015 (s 2 and SI 831 of 2014, LW 19 December 2014) 23 October 2014 (s 2)

28 October 2014

28 October 2014 (s 2)

[page 47]

Amending Legislation

Date of Assent

Criminal Procedure Amendment (Domestic Violence Complainants) Act 2014 No 83 Statute Law (Miscellaneous Provisions) Act (No 2) 2014 No 88 Legal Profession Uniform Law Application Legislation Amendment Act 2015 No 7 Statute Law (Miscellaneous Provisions) Act 2015 No 15 Criminal Procedure Amendment (Child Sexual Offence Evidence Pilot) Act 2015 No 46 Firearms and Weapons Prohibition Legislation Amendment Act 2015 No 63 Courts and Other Justice Portfolio Legislation Amendment Act 2015 No 67 Criminal Legislation Amendment (Organised Crime and Public Safety) Act 2016 No 16

28 November 2014

28 November 2014

9 June 2015

29 June 2015

Date of Commencement 1 June 2015 (s 2 and SI 247 of 2015, LW 29 May 2015) Schs 1.5 and 2.16: 8 January 2015 (s 2(1)) Sch 2.11: 1 July 2015 (s 2(2) and SI 299 of 2015, LW 19 June 2015) Sch 2.14: 8 July 2015 (s 2(1))

5 November 2015

5 November 2015 (s 2)

24 November 2015

24 November 2015 (s 2)

24 November 2015

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

11 May 2016

Sch 4[1], [3]: 8 September 2016 (cl 2 and SI 577 of 2016, LW 8 September 2016)

* 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”.

[page 49] 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. [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: [page 50] (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]

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 a hearing before a Magistrate for the purpose of deciding whether a person charged with an indictable offence should be committed for trial or sentence. [def am Act 119 of 2001 s 3 and Sch 1[3], opn 7 July 2003]

[page 51] 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 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]

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]

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. 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 means the Industrial Relations Commission constituted as referred to in section 151 of the Industrial Relations Act 1996. [def insrt Act 119 of 2001 s 3 and Sch 1[4], opn 7 July 2003]

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]

[page 52] 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]

prescribed sexual offence means: (a) an offence under section 61B, 61C, 61D, 61E, 61I, 61J, 61JA, 61K, 61L, 61M, 61N, 61O, 63, 65, 65A, 66, 66A, 66B, 66C, 66D, 66EA, 66EB, 66F, 67, 68, 71, 72, 72A, 73, 74, 76, 76A, 78A, 78B, 78H, 78I, 78K, 78L, 78M, 78N, 78O, 78Q, 79, 80, 80A, 80D, 80E, 81, 81A, 81B, 86, 87, 89, 90, 90A, 91, 91A, 91B, 91D, 91E, 91F or 91G 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 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]

prescribed summary offence has the same meaning as in the Director of Public Prosecutions Act 1986. 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 officer means any of the following persons, if acting in an official capacity: (a) an employee in the Public Service or the NSW Police Force, (b) an officer or employee of a statutory body representing the Crown, (c) 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. [page 53] 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]

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] [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) 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] [2-s 3.5] [2-s 3.10]

[2-s 3.1] “Prescribed summary offences” See cl 3 of the Director of Public Prosecutions Regulation at [29-15,010]. [2-s 3.5] “Public officer” See cl 101(1) of the Criminal Procedure Regulation 2010 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. [page 54] (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 2010 at [2-5000] and following and the Local Court Rules 2009 at [2-9200] and following.

____________________

[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. [page 55] (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]

[page 56]

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 [page 57] 328; [2002] NSWSC 408; BC200202513. The effect of these decisions is that ss 6 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 ….

[2-s 8.1]

Indictable offences heard summarily …. Ex officio indictments ….

[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 [page 58] in the District and Supreme Court. Criminal proceedings are now generally commenced by a court 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 Duffield v R (1992) 28 NSWLR 638; 110 ALR [page 59] 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. 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 crossexamination 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.

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[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. [page 60] (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. (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 [page 61]

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 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].

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[2-s 12] 12

Short description of certain offences

(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. [page 62] (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. COMMENTARY ON SECTION 13

Venue in an indictment ….

[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].

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[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 [page 63] 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 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.

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[2-s 14A] Proceedings for offences commenced by officers of ICAC or PIC 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) For that purpose, the Director of Public Prosecutions may liaise with the Independent Commission Against Corruption, but is to act independently in deciding to advise that proceedings for the offence may be commenced. (3) The Commissioner, an Assistant Commissioner and an officer of the Police Integrity Commission do not have the power to commence proceedings for an offence. (4) In this section: officer of ICAC means a person acting in the capacity of the Commissioner, an Assistant Commissioner or officer of the Independent Commission Against Corruption. [s 14A insrt Act 67 of 2015 Sch 1.8[2], opn 24 Nov 2015]

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]

(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]

[page 64]

[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. COMMENTARY ON SECTION 16

Statement of charge …. Particulars in the indictment ….

[2-s 16.1] [2-s 16.5] [page 65]

Alternative counts …. Allegation of time …. Allegation of ownership of property …. Duplicity …. Amendment of indictment …. Defects in form and variance …. Signature on indictment ….

[2-s 16.10] [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 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]. [page 66] 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 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. [page 67] 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 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. [page 68] 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 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]. [page 69] 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 [2Sch 2].

____________________

[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. [page 70] (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 [20265]. 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 2010 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.

____________________

[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.

[page 71]

[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. 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]; [page 72] (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]. 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 [page 73] 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; (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; [page 74] 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 2010 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. 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].

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[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]

[page 75] (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.

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[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. (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.

[page 76] (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 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. [page 77] 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 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 In R v Assim [1966] 2 QB 249; [1966] 2 All ER 881, Sachs LJ said: 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 [page 78] 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 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 [page 79] 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 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 [page 80] [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).

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[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] counts

Indictment may contain up to 3 similar

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. (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 ….

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

[2-s 23.10]

Separate trials ….

[page 81] [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].

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[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]

[2-s 24.1] Accessories As to accessories before the fact see [6-100]. As to accessories after the fact see [6-105].

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[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.

[page 82] 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].

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[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.

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: [page 83] Judge includes a Magistrate, a Children’s Court Magistrate, an Industrial Magistrate, the President or a judicial member of the Industrial Relations Commission 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] [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 [2s 21.5] and [2-s 21.10]. As to when separate trials are appropriate see at [2-s 21.15].

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[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.

[page 84] 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].

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[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. 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.

[page 85] 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.

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[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. (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 [page 86] 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.

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[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. (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. [page 87] (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.

[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.

[page 88]

[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. 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 2010 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 [page 89] 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] Court

Hearing procedures to be as for Supreme

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 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].

____________________ [page 90]

[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 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 [page 91] 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.

____________________

[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 [page 92] (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 102 of the Criminal Procedure Regulation 2010 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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[page 93]

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

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 103, Criminal Procedure Regulation 2010 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. [page 94] (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 See r 8.7 of the Local Court Rules 2009 at [2-9845] concerning the filing of documents.

____________________

[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 [page 95] (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] [2-s 49.1]

[2-s 49.0] Law Part Code 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 [2910,275]; 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 ….

[2-s 50.1] [2-s 50.5] [page 96]

[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] COMMENTARY ON SECTION 52

Service of court attendance notice ….

[2-s 52.5] [page 97]

[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 ….

[2-s 54.0]

[2-s 54.1]

Warrants …. [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.

[page 98] [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].

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DIVISION 2 — COMMITTAL PROCEEDINGS GENERALLY [2-s 55]

Magistrate to conduct proceedings

55 Committal proceedings are to be conducted and determined by a Magistrate. COMMENTARY ON SECTION 55

Committal by consent …. Joint or separate committal proceedings …. Applications …. Jurisdiction of magistrate ….

[2-s 55.1] [2-s 55.5] [2-s 55.10] [2-s 55.20]

[2-s 55.1] Committal by consent A magistrate may, at any time on the application of the accused person and with the consent of the prosecutor, commit the accused person for trial: [2-s 68]. [2-s 55.5] Joint or separate committal proceedings A magistrate has a discretion as to whether or not committal proceedings are heard against two accused persons together and an accused has no legal right to demand a separate hearing: R v Camberwell Green Stipendiary Magistrate; Ex parte Christie [1978] QB 602; 2 All ER 377; Loubatie v DPP (1994) 77 A Crim R 28; BC9403379. Where a large number of persons were charged with the one crime (eg conspiracy), it was open to a magistrate to deal with the committal proceedings against groups of accused persons and it was not necessary to hear the committal proceedings against all accused together: Moss v Brown [1979] 1 NSWLR 114. In committal proceedings involving several accused, a prosecutor is entitled to close his or her case against one accused person and the magistrate may either commit or discharge one accused person in such circumstances notwithstanding that the prosecution case against co-accused has not been

closed: Fermia v Hand (1984) 1 FCR 336; 53 ALR 731. As to the application of Div 3, concerning the use of written statements in committal proceedings, where there is more than one accused person, see [2-s 96]. [2-s 55.10] Applications An application in committal proceedings for interlocutory and other specified orders is to be made by filing an application stating the nature of the order sought: r 8.3, Local Court Rules 2009 at [2-9825]. [2-s 55.20] Jurisdiction of magistrate A magistrate had power to conduct committal proceedings for federal offences under s 68 of the Judiciary Act (Cth): Bagshaw v Carter [2006] NSWCA 113; BC200603245; (2006) 13 Crim LN 23 [2041].

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[2-s 56] Committal proceedings to be heard in open court 56 (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 [page 99] 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. [subs (3) insrt Act 135 of 2010 Sch 12.2, opn 7 Dec 2010] COMMENTARY ON SECTION 56

Open court, suppression orders and non-publication orders ….

[2-s 56.1]

Closed court …. Media access ….

[2-s 56.5] [2-s 56.10]

[2-s 56.1] Open court, suppression orders and non-publication orders 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 the Children’s Court, to make suppression orders and non- publication orders. That Act sets out the grounds for such orders (s 8) and provides as well for standing (s 9), duration (s 12), geographical application (s 11), review (s 13), appeal (s 14) and penalties for contravention of an order (s 16). Courts retain other statutory powers to prohibit or restrict the disclosure of court information, with the exception of provisions repealed by the Act: s 5 at [29-9020]. The Act repeals s 292 of the Criminal Procedure Act 1986, s 62 of the Criminal Assets Recovery Act 1990 and s 72 of the Civil Procedure Act 2005. Section 6 Court Suppression and Non-publication Orders Act 2010 at [29-9120] provides that, in deciding whether to make an order under the Act, the court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. A fundamental rule of the common law was that the administration of justice must take place in open court: John Fairfax and Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 476; AttorneyGeneral(NSW) v Mayas Ptd Ltd (1988) 14 NSWLR 342 at 345–50. The test for making a nonpublication or suppression order at common law was one of necessity — where it was really necessary to secure the proper administration of justice: John Fairfax and Sons Ltd v Police Tribunal (NSW) at 476–7. Cases decided before the enactment of the Court Suppression and Non-publication Orders Act 2010 included the following: (a) use of pseudonyms for victims of extortion: John Fairfax Group Ptd Ltd (Recievers and Managers Appointed) v Local Court of NSW (1991) 26 ALD 471; 26 NSWLR 131; 59 A Crim R 68; (b) use of a pseudonym for an accused person: C v R (1993) 67A Crim R 562 at 565; BC9301749; (c) use of pseudonyms for informers: DPP v Smith (1996) 86 A Crim R 308; BC9601667; 3 Crim LN 25 [556]; (d) use of pseudonyms for undercover police operatives: Jarvie v Magistrates Court of Victoria at Brunswick [1995] 1 VR 84. [2-s 56.5] Closed court 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, and s 291C at [2-s 291C] relates to media access to proceedings held in camera. Section 10 of the Children (Criminal Proceedings) Act 1987 at [16-15,225] relates to the exclusion of the general public from criminal proceedings to which a child is a party. The power to hear committal proceedings in the absence of the public under s 56(3) is to facilitate the use of electronic case management under Sch 1 of the Electronic Transactions Act [page 100] 2000, which permits the establishment of an ECM court to allow for the filing of documents and other administrative matters to be conducted under an electronic case management system. [2-s 56.10] Media access As to the right of the media to have access to court documents, see at [2-s

314]. Open justice is a principle rather than a right and there is no common law right to obtain access to a document filed in proceedings and held as part of a court record: John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512; 220 ALR 248; [2005] NSWCA 101; BC200501968 where consideration was given to express and implied powers to grant access to court records.

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[2-s 57] Part does not affect nature of committal proceedings 57 Nothing in this Part alters the nature of a committal proceeding from that existing immediately before the commencement of this section. COMMENTARY ON SECTION 57

Nature of committal proceedings …. Discretion to exclude evidence …. Abuse of process ….

[2-s 57.1] [2-s 57.10] [2-s 57.15]

[2-s 57.1] Nature of committal proceedings The nature and purpose of committal proceedings have been referred to in a number of authorities, all of which must now be read subject to the provisions which restrict the categories of witnesses who may be required to give oral evidence at committal proceedings: see at [2-s 93] and [2-s 94]. Committal proceedings do not constitute a judicial inquiry but are conducted in the exercise of an executive or ministerial function: Grassby v R (1989) 168 CLR 1; 87 ALR 618; BC8902704 at CLR 11. While not required to make a judicial decision, the magistrate hearing committal proceedings is bound to act judicially in arriving at a result, that is to say, he or she is bound to act justly and fairly: Grassby v R, above. Because of the powers given to the Director of Public Prosecutions, committal for trial does not determine whether a person charged with an offence shall stand trial. The Crown may determine not to proceed further with the hearing of the charge, to find a bill for a different charge than that for which the person was committed and a person discharged may nevertheless be the subject of an ex officio indictment. See generally Trial Procedure at [7-001] and following. However, the powers of a magistrate in committal proceedings are, strictly speaking, still confined to determining whether the person charged shall be discharged, committed to prison to await trial or admitted to bail and do not involve the exercise of a judicial function: Grassby v R, above. The importance of committal proceedings in the criminal process should not be underrated. It enables the person charged to hear the evidence against him or her and to cross-examine the prosecution witnesses. It enables him or her to put forward his or her defence if he or she wishes to do so. It serves to marshal the evidence in deposition form. And, notwithstanding that it is not binding, the decision of a magistrate that a person should or should not stand trial has in practice considerable force so that the preliminary hearing operates effectively to filter out those prosecutions which, because there is insufficient evidence, should not be pursued. Furthermore, the value of committal proceedings to a person charged may be such as to warrant a trial being stayed or postponed where an ex officio indictment has been presented without committal proceedings, in order to prevent an abuse of process of the trial court and to ensure a fair trial: Barton v R (1980) 147 CLR 75; 32 ALR 449; Grassby v R, above, at CLR 15; Ebatarinja v Deland (1998) 194 CLR 444 at 453; 157 ALR 385 at 390; [1998] HCA 62; BC9804989; (1998) 5 Crim LN 74 [907]. The fundamental objective of committal proceedings, namely the objective of facilitating a fair trial in the event that the accused person is committed for trial, has been stressed: Hanna v [page 101]

Kearney and DPP (NSWSC, Studdert J, 28 May 1998, unreported, BC9803179); (1998) 5 Crim LN 46 [867]. The nature and purpose of a committal proceeding is to receive, examine and permit the testing of evidence introduced by the prosecutor before the magistrate, in order to determine whether there is sufficient evidence to warrant the person charged being put on trial and, if not, to discharge that person: Moss v Brown [1979] 1 NSWLR 114 at 125. Committal proceedings are not conducted merely to aid the preparation of the defence case, for example, by allowing risky questions to be put to ascertain whether certain questions could be safely put at the trial: Moss v Brown, above; Barron v A-G (NSW) (1987) 10 NSWLR 215 at 217; R v Basha (1989) 39 A Crim R 337; BC8902533 at A Crim R 340. [2-s 57.10] Discretion to exclude evidence Section 70 provides that a magistrate must not exclude evidence at committal proceedings on any of the grounds set out in Pt 3.11 of the Evidence Act 1995 which is concerned with discretionary exclusion of evidence: see at [3-s 135] and following. The magistrate cannot exclude an admission because it would be unfair to admit it: see at [3-s 90]. The enactment of these provisions confirmed the common law position as stated in Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667 at 683; 75 A Crim R 8; BC9405113 and the authorities cited therein. [2-s 57.15] Abuse of process In committal proceedings, a magistrate is performing an administrative or ministerial function which is governed by statute and the terms of the statute afford no basis for the implication of any power to dispose of those proceedings by the imposition of a permanent stay: Grassby v R (1989) 168 CLR 1 at 19; 87 ALR 618; BC8902704.

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[2-s 58]

Place of hearing

58 (1) A Magistrate may transfer committal proceedings to another Magistrate in another place, if satisfied that: (a) the principal witnesses to prove the offence live in another place where the offence is alleged to have been committed, or (b) for any other reason, it is in the interests of justice to do so. (2) The Magistrate may, subject to the Bail Act 2013, make orders necessary to enable the accused person to be brought before the other Magistrate and to be dealt with according to law. [subs (2) am Act 5 of 2014 Sch 2 item 2.15[1], opn 20 May 2014] COMMENTARY ON SECTION 58

Transfer of proceedings ….

[2-s 58.1]

[2-s 58.1] Transfer of proceedings The word “may” bears its natural meaning and is permissive not compulsive. The magistrate is, therefore, not bound to make an order for transfer upon being informed that the principal witnesses for the prosecution reside in some other place: Ex parte Goodwin; Re Carruthers [1968] 1 NSWR 23; (1967) 86 WN (Pt 1) (NSW) 313.

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[2-s 59] Application of other procedural provisions to committal proceedings 59 The following provisions of this Act apply, subject to any necessary modifications, to committal proceedings conducted by a Magistrate in the same way as they apply to proceedings for offences before the Local Court: (a) sections 30, 31, 36, 37, 38, 39, 40, 41 and 44, [page 102] (b) Part 3 (Attendance of witnesses and production of evidence in lower courts) of Chapter 4, (c) Part 4 (Warrants) of Chapter 4. [s 59 am Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009] COMMENTARY ON SECTION 59

Conduct of committal proceedings …. Discretion to exclude evidence …. Use of interpreters …. Duties of a prosecutor ….

[2-s 59.1] [2-s 59.5] [2-s 59.10] [2-s 59.15]

[2-s 59.1] Conduct of committal proceedings The following general provisions apply to committal proceedings where appropriate: change of venue, s 30; abolition of accused’s right to make a statement, s 31; representation and appearance, s 36; conduct of the case, s 37; hearing procedures to be as in the Supreme Court, s 38; recording of evidence, s 39; adjournment generally, s 40; how accused person to be dealt with during adjournments, s 41; where case does not proceed with accused to be released from custody, s 44. See annotations in respect of those sections. Provisions of the Evidence Act that apply to “criminal proceedings” apply to committal proceedings: see the Dictionary of the Act. Part 3 of Ch 4 is concerned with attendance of witnesses at court through issuing of subpoenas: see at [2-s 220] and following. Prosecution evidence must be given in written form: s 74; and statements must be served on the defence: s 75. However the prosecutor may apply to have evidence admitted which is not in written form: s 77. The magistrate has power to stop the evidence of a witness if satisfied that further examination or cross-examination would not assist the magistrate make a determination under ss 62 or 64: see at [2-s 69].

The lack of legal representation at committal proceedings will not necessarily result in an unfair trial: Fuller v Field (1994) 62 SASR 112; 72 A Crim R 592; Fuller v DPP (Cth) (1994) 68 ALJR 611. Proceedings may be conducted in the absence of the accused person if excused by the magistrate: s 72; or where the accused person fails to attend and a copy of statements has been served on the defence: s 73. [2-s 59.5] Discretion to exclude evidence Section 70 provides that a magistrate must not exclude evidence at committal proceedings on any of the grounds set out in Pt 3.11 of the Evidence Act 1995 which is concerned with discretionary exclusion of evidence: see at [3-s 135] and following. The magistrate cannot exclude an admission because it would be unfair to admit it: see at [3-s 90]. The enactment of these provisions confirmed the common law position as stated in Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667 at 683; 75 A Crim R 8; BC9405113 and the authorities cited therein. [2-s 59.10] Use of interpreters There is no absolute right in a witness to have an interpreter as it is a matter for the discretion of the magistrate who may, if he or she sees fit, test the witness’s knowledge. “The primary consideration … is that what the witness has to say should be put before the court as fully and accurately, and as fairly and effectively, as all the circumstances permit”: Filios v Morland [1963] NSWR 545 at 546; (1963) 80 WN (NSW) 501 at 502 per Brereton J. In Dairy Farmers Co-operative Milk Co Ltd v Acquilina (1963) 109 CLR 458; [1964] ALR 333; (1963) 37 ALJR 308, the High Court agreed with this decision. As to factors to be considered in determining whether to allow an interpreter to be used and to adjourn proceedings for that purpose, see Adamopoulos v Olympic Airways (1991) 25 NSWLR 75. Where an interpreter is used he must be sworn to interpret faithfully. [page 103] While it is competent for a court to ascertain a witness’s knowledge of English, if in fact he or she does not understand, the evidence must be interpreted to him or her: R v Lee Kun [1916] 1 KB 337; [1914–15] All ER Rep 603. Where the accused person is defended by counsel, in certain circumstances the translation may be dispensed with, but the safer course is for everything to be interpreted: R v Lee Kun, above. Interpretation is not confined to differing tongues but extends to all means whereby the effect of the proceedings is brought to the understanding of the person concerned, eg by signs for a deaf and dumb person. As regards extra-curial conversations conducted through interpreters the rule is that the confession or otherwise admissible conversation may be given in evidence by one of the parties to it, even though he only tells what was interpreted to him, provided the interpreter is sworn to swear that he truly and faithfully interpreted everything said at the time, even though the interpreter is unable himself to repeat the conversation: Gaio v R (1960) 104 CLR 419; [1961] ALR 67. A bystander could also give such evidence on the interpreter being sworn: R v Sundra Khan (1901) 18 WN (NSW) 29; cf also Stuart v R (1959) 101 CLR 1; 33 ALJR 113b; BC5900140. As to the use of interpreters, see [3-s 22] and [3-s 30]. [2-s 59.15] Duties of a prosecutor There is no rule that requires the prosecution to call at committal all witnesses whom it is intended to call at trial: R v Epping and Harlow Justices; Ex parte Massaro [1973] QB 433; [1973] 1 All ER 1011; Re Van Beelen (1974) 9 SASR 163; Maddison v Goldrick [1975] 1 NSWLR 557. There is a discretion in the prosecution as to what witnesses should be called but it should not be exercised by reference to tactical considerations alone: Walden v R (1986) 41

SASR 421; 23 A Crim R 242; Young v Torrington (NSWCA, Kirby P, Priestley and Clarke JJA, 22 September 1987, unreported, BC8701135). In R v Basha (1989) 39 A Crim R 337; BC8902533 the court approved the following statement of the duties of a prosecutor in committal proceedings which is found in R v Harry; Ex parte Eastway (1985) 39 SASR 203; 20 A Crim R 63: … The responsibility of prosecuting counsel at the trial would by no means be discharged by calling the minimum number of witnesses required to establish the charge. He would be expected to call all the material witnesses unless there are good reasons of the kind discussed in the cases for not calling any of them. The responsibility of the police prosecutor at the preliminary hearing is not fundamentally different. It is not sufficient for him to call only the minimum evidence required to make out a prima facie case. He is also required, in the absence of sound reasons to the contrary, to call all witnesses whom, in the exercise of his discretionary judgment, he considers to be material irrespective of whether their evidence strengthens or weakens the case for the prosecution. There may be some greater latitude as to what constitutes sound reason in the case of a preliminary hearing in view of the ability of the prosecution to supplement the evidence at the preliminary hearing by supplying to the defence statements of additional witnesses. This may enable the prosecutor to have greater regard to difficulties in procuring the attendance of witnesses, particularly merely supporting witnesses, than would be open to prosecuting counsel at the trial. But the function and responsibility of the prosecutor at the preliminary hearing is essentially the same as that of prosecuting counsel at the trial. There is no abuse of process by reason of the prosecution calling a witness or witnesses at the trial who were not called at committal. However, where this produces unacceptable unfairness the indictment may be stayed, but only if the unfairness cannot be cured by providing statements to the defence or permitting the witness to be cross-examined prior to the trial: Basha, above.

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[2-s 60]

Time for taking prosecution evidence

60 (1) On the first return date for a court attendance notice in any committal proceedings, or at such later time or times as the Magistrate determines, the Magistrate must set: [page 104] (a) the date, time and place for taking the prosecution evidence and the time within which written statements, and copies of any proposed exhibits identified in the statements (or a notice relating to inspection of them), must be served on the accused person, and (b) the time within which the accused person must serve on the prosecutor any notice requesting the attendance of a person who

made a written statement. Note. Prosecution evidence is to be given by written statements (see Division 3), which includes a reference to a recorded statement in the case of a domestic violence offence (see section 76A(5)). [subs (1) am Act 83 of 2014 Sch 1[2], opn 1 June 2015]

(2) The registrar must notify the accused person of the date, time and place, and any other time set by the Magistrate, if the accused person is not present. (3) A registrar may exercise the Magistrate’s functions under this section. COMMENTARY ON SECTION 60

Practice Note ….

[2-s 60.1]

[2-s 60.1] Practice Note See Local Court Practice Note Comm 1 at [28-15,200] concerning procedures to be adopted for committal hearings.

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[2-s 61] Discharge of accused person if prosecutor not present for taking of evidence 61 (1) If the prosecutor fails to appear on the day and at the time and place set for taking prosecution evidence in any committal proceedings, the Magistrate must: (a) discharge the accused person as to the offence the subject of the proceedings, or (b) if the Magistrate thinks it appropriate, adjourn the hearing to a specified time and place. (2) The adjournment must not exceed 8 days or such longer period as the accused person may consent to. (3) Subsection (2) does not apply if the accused person is refused bail and section 41 of the Bail Act 2013 (which provides for a maximum adjournment period) applies. [subs (3) subst Act 5 of 2014 Sch 2 item 2.15[2], opn 20 May 2014] COMMENTARY ON SECTION 61

Where prosecutor fails to appear ….

[2-s 61.1]

[2-s 61.1] Where prosecutor fails to appear The section permits the magistrate, rather than

discharging the accused person, to adjourn the proceedings for a period no longer than eight days without the consent of the accused person. As to costs on adjournment, see [2-s 118]. See s 41 of the Bail Act 2013 at [9-s 41].

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[2-s 62] Prosecution evidence and initial determination 62 (1) The Magistrate must take the prosecution evidence in accordance with Division 3 and must determine whether the prosecution evidence is capable of satisfying a jury, properly instructed, beyond reasonable doubt that the accused person has committed an indictable offence. [page 105] (2) The Magistrate must discharge the accused person in relation to the offence if, in any committal proceedings, after all the prosecution evidence is taken and after considering all the evidence before the Magistrate, the Magistrate is not of the opinion that, having regard to all the evidence before the Magistrate, the evidence is capable of satisfying a reasonable jury, properly instructed, beyond reasonable doubt that the accused person has committed an indictable offence. COMMENTARY ON SECTION 62

Use of written statements …. Procedure under s 62(2) ….

[2-s 62.1] [2-s 62.5]

[2-s 62.1] Use of written statements Division 3 concerns the procedures to be adopted in committal proceedings including the use of written statements and the restrictions on calling witnesses to give oral evidence: see at [2-s 93] and following. [2-s 62.5] Procedure under s 62(2) Under s 62(2), the test as to whether the accused person should be discharged is whether the evidence is not “capable of satisfying a reasonable jury properly instructed beyond reasonable doubt that the accused person has committed an indictable offence”. In effect, the question is whether there is a prima facie case: see Wentworth v Rogers [1984] 2 NSWLR 422; (1984) 15 A Crim R 376 at NSWLR 429, 440. For the purpose of s 62(2), the opinion is to be formed solely on an examination of the evidence and it is no part of the function of the magistrate to entertain considerations favouring the prosecutor or favouring the accused person as, for example, a determination in his or her favour because of some

supposed harshness to the accused in carrying the matter any further: Carlin v Thawat Chidkhunthod (1985) 4 NSWLR 182 at 193; 20 A Crim R 332 at 340–1. In forming the opinion, a magistrate is required to make some kind of forecast of the outcome of the trial upon all the evidence he or she has heard, giving attention to the weight and acceptability of the evidence in relation to the character of the evidence itself and the credibility of witnesses who gave it: Saffron v DPP (1989) 16 NSWLR 397; 43 A Crim R 1. The magistrate is not precluded from forming his or her own assessment of the evidence and the credibility of witnesses as a basis for forming that opinion: Saffron v DPP, above. If the magistrate is of the opinion set out in s 62(2), the magistrate should discharge the accused person, but, if not, proceed under s 63.

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[2-s 63] Where prosecution evidence sufficient to satisfy jury 63 (1) If in any committal proceedings, after all the prosecution evidence is taken and after considering all the evidence before the Magistrate, the Magistrate is of the opinion that, having regard to all the evidence before the Magistrate, the evidence is capable of satisfying a reasonable jury, properly instructed, beyond reasonable doubt that the accused person has 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. (2) The Magistrate must proceed to take any statement by or any evidence adduced by the accused person in accordance with Division 4. (3) If the accused person is not present, the Magistrate may make a decision under section 64 without complying with subsection (2). (4) If the accused person is a corporation and the corporation appears by a representative, the representative may answer the charge on behalf of the corporation. [page 106] COMMENTARY ON SECTION 63

Defence evidence …. Form of warning ….

[2-s 63.1] [2-s 63.5]

[2-s 63.1] Defence evidence 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 is to consider any defence evidence. The accused person is entitled to give evidence and call witnesses: s 97. As to the restriction upon the cross-examination of an accused person, see at [3-s 104] and [3-s 112] as to the restrictions upon cross-examination as to character. [2-s 63.5] Form of warning See r 3.3 of the Local Court Rules 2009 at [2-9375] for the form of warning to be given under s 63(1).

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[2-s 64]

Decision about committal

64 When all the prosecution evidence and any defence evidence have been taken in committal proceedings, the Magistrate must consider all the evidence and determine whether or not in his or her opinion, having regard to all the evidence before the Magistrate, there is a reasonable prospect that a reasonable jury, properly instructed, would convict the accused person of an indictable offence.

[2-s 65]

Committal

65 (1) If the Magistrate is of the opinion that there is a reasonable prospect that a reasonable jury, properly instructed, would convict the accused person of an indictable offence, the Magistrate must commit the accused person for trial. (2) In the case of an accused person that is a corporation, the Magistrate may, if of that opinion, 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 Director of Public Prosecutions considers proper. (3) The making of an order under subsection (2) is taken to be committal for trial. COMMENTARY ON SECTION 65

Procedure under s 65(1) …. Committal for trial …. Effect of errors in committal proceedings …. Appeal from or review of committal proceedings ….

[2-s 65.1] [2-s 65.5] [2-s 65.10] [2-s 65.15]

[2-s 65.1] Procedure under s 65(1) When all the evidence for the prosecution and any evidence for the

defence has been taken, the magistrate, after considering all the evidence, must commit the accused person for trial if of the opinion that, on the basis of all the evidence, there is a reasonable prospect that a reasonable jury would convict the accused person of an indictable offence. If not of that opinion, the magistrate must discharge the accused person as to the information then under inquiry: s 66. In reaching an opinion for the purpose of s 65, a magistrate is required to make some kind of forecast of the outcome of the trial upon all the evidence he or she has heard without regard to any considerations outside the evidence, but giving attention to the weight and acceptability of the evidence in relation to the character of the evidence itself and the credibility of witnesses who gave it: Saffron v DPP (1989) 16 NSWLR 397; 43 A Crim R 1. The magistrate is not precluded from forming his or her own assessment of the evidence and the credibility of witnesses as a basis for forming that opinion: Saffron v DPP, above. [page 107] The magistrate should commit the accused person for trial in respect of a particular indictable offence although the DPP is not bound to indict the accused person for that offence: Kolalich v DPP (1991) 173 CLR 222; 103 ALR 630; BC9102610, disapproving Director of Public Prosecutions v Kolalich (1990) 19 NSWLR 520; 47 A Crim R 471; BC9002995 on this point. [2-s 65.5] Committal for trial As to the procedure following a committal for trial, see Div 6 at [2-s 109] and following. As to orders for costs, see at [2-s 116] and following. An accused who is committed for trial is entitled to receive one copy of the transcript and the written statements tendered: see [2-s 114]. [2-s 65.10] Effect of errors in committal proceedings An error in the conduct of committal proceedings will not necessarily mean that the committal proceedings will have no effect. Such errors may not affect the right of the DPP to proceed on an indictment even if the error went to the jurisdiction of the magistrate to hear the proceedings: R v Butler (1991) 24 NSWLR 66; 56 A Crim R 231; see also Adamiczka v R (1993) 33 NSWLR 68; 71 A Crim R 291; BC9303906. In Butler, the failure by a magistrate to issue a warrant prior to commencing proceedings in the absence of the accused person did not justify the stay of an indictment presented by the Crown. [2-s 65.15] Appeal from or review of committal proceedings (a) Court of Criminal Appeal An application for leave to appeal lies to the Court of Criminal Appeal from an interlocutory judgment or order given or made in committal proceedings under s 5F Criminal Appeal Act: see at [20-265]. The rejection by a magistrate of a claim for public interest immunity with respect to a subpoena served upon the Commissioner of Police during committal proceedings is an interlocutory order for the purpose of s 5F: Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667; 75 A Crim R 8; BC9405113, as is the rejection by a magistrate of a claim for public interest immunity during evidence: Director of Public Prosecutions v Smith (1996) 86 A Crim R 308; BC9601667; 3 Crim LN 25 [556]. The refusal of a magistrate to require the attendance of a complainant for cross-examination at committal proceedings is not an interlocutory judgment or order but a ruling on an application for a direction: R v Colby (1995) 84 A Crim R 125; BC9506819; (1996) 3 Crim LN 6 [525] and so is not a matter falling within s 5F. The Attorney-General or Director of Public Prosecutions may appeal to the Court of Criminal Appeal under s 5F as of right: s 5F(2). Any other party to committal proceedings may appeal under s 5F

with the leave of the Court of Criminal Appeal or if the magistrate certifies that the judgment or order is a proper one for determination on appeal: s 5F(3). See [20-265.1]–[20-265.10] for authorities relevant to an appeal under s 5F including leave to appeal and fresh evidence on appeal. (b) Supreme Court It has been held that common law prohibition and certiorari are not available with respect to committal proceedings: Ex parte Cousens; Re Blacket (1946) 47 SR (NSW) 145; 63 WN (NSW) 228; Waterhouse v Gilmore (1988) 12 NSWLR 270 at 275–6; cf Grassby v R (1989) 168 CLR 1 at 15; 87 ALR 618 at 627; BC8902704 where it was said that the question whether a magistrate conducting committal proceedings may be subject to prohibition remains undecided. As to the availability of prerogative relief to prevent a magistrate proceeding with committal proceedings where no jurisdiction exists, see Connor v Sankey [1976] 2 NSWLR 570; (1976) 21 ALR 317. Relief in the nature of mandamus may lie under ss 65 and 69 Supreme Court Act at [20-20,575] and [20-20,585] with respect to committal proceedings. See Waterhouse v Gilmore (1988) 12 NSWLR 270 at 276; Saffron v DPP (1989) 16 NSWLR 397 at 399, 418–20; 43 A Crim R 1 and annotations at [2020,585.15]. Declaratory relief is available with respect to committal proceedings, however the beneficial jurisdiction to grant declaratory relief should not be used as a means of appeal except in special [page 108] circumstances, nor is there a basis for the exercise of the Supreme Court’s discretion to grant declaratory relief where its only effect is to usurp a magistrate’s exclusive authority: Waterhouse v Gilmore, above, at 276–7; Foley v Molan (NSWSC, Levine J, 20 August 1993, unreported, BC9301863). See s 75 of the Supreme Court Act 1970 at [20-20,610] and authorities cited in [2020,610.1] and [20-20,610.5]. As to appeals on a question of law and by leave by an accused person, see [4-s 53.5]. (c) Federal Court A magistrate’s decision in a committal proceeding while exercising federal jurisdiction is reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth): Lamb v Moss (1983) 49 ALR 533; 76 FLR 296. (d) District Court There is no appeal to the District Court with respect to committal proceedings: Waterhouse v Gilmore (1988) 12 NSWLR 270 at 275. Where a costs order was made against the informant prior to 1 March 1999 under s 41A Justices Act, an appeal lay to the District Court under repealed s 122 Justices Act: Acuthan v Coates (1986) 6 NSWLR 472 at 484; 24 A Crim R 304 at 316; BC8600588. As to an appeal by a prosecutor against an order for costs, see at [2-s 116.20] and an appeal from order of costs against an accused person, see at [2-s 118.5]. (e) Discretionary factors The undesirability of the Supreme Court intervening in committal proceedings has been stressed: Waterhouse v Gilmore, above at 277; Loubatie v DPP (1994) 77 A Crim R 28 at 35–6; BC9403379. The Federal Court has stressed that the power of review will be exercised only in most exceptional circumstances, especially where the question relates to a decision made by a magistrate in the course of the hearing: Foord v Whiddett (1985) 6 FCR 475; 60 ALR 269; Forsyth v Rodda (1989) 87 ALR 699; Pan Laboratories Pty Ltd v Lyon (1995) 78 A Crim R 498. The undesirability of fragmenting the criminal process has been stressed: Yates v Wilson (1989) 168 CLR 338 at 339. The court will take into account the power of the DPP to override any decision

relating to the magistrate’s order at committal: Parker v Taylor (1994) 68 ALJR 496. It is the role of the DPP to determine the charge upon which a person is to be tried upon indictment, not the role of the committing magistrate: see s 7 Director of Public Prosecutions Act 1986 at [2910,225]. As a general rule, where a bill has been found, such finding is not examinable by the courts: Grassby v R (1989) 168 CLR 1 at 13–15; 87 ALR 618; BC8902704; Sergi v DPP (NSWCA, Kirby P, Meagher and Handley JJA, 40518/1991, 10 September 1991, unreported, BC9101577); Burns v Barnett (NSWSC, Studdert J, 1 October 1993, unreported). The court has refused to intervene where a bill of indictment has been found: Vortouni v McDonald (NSWCA, Mahoney, Handley and Powell JJA, 16 February 1995, unreported, BC9504205); (1995) 2 Crim LN 19 [332].

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[2-s 66]

Discharge

66 If the Magistrate is not of the opinion that there is a reasonable prospect that a reasonable jury, properly instructed, would convict the accused person of an indictable offence, the Magistrate must immediately order the accused person to be discharged in relation to the offence.

[2-s 67] Committal may be set aside by Magistrate 67 (1) An accused person who was not present and, if not present, was not represented when committed for trial may apply to a Magistrate to have an order for the accused person’s committal for trial set aside. [page 109] (2) The application must be made before the presentation or filing of an indictment against the accused person. (3) The Magistrate may set aside the order for committal for trial and any associated warrant to commit the accused person if the Magistrate is satisfied that good and proper reason is shown for the absence of the accused person or a representative of the accused person and that it is in the interests of justice to do so. COMMENTARY ON SECTION 67

[2-s 67.1]

Law Part Code …. [2-s 67.1] Law Part Code The Law Part Code for s 67(1) is 51519.

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[2-s 68] hearing

Accused person may waive committal

68 Despite any other provision of this Part, the Magistrate may, at any time, on the application of the accused person, and with the consent of the prosecutor, commit the accused person for trial. COMMENTARY ON SECTION 68

Law Part Code …. Application to waive committal hearing ….

[2-s 68.0] [2-s 68.1]

[2-s 68.0] Law Part Code The Law Part Code for this section is 51520. [2-s 68.1] Application to waive committal hearing See r 3.4 of the Local Court Rules 2009 at [29380] concerning a s 68 application.

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[2-s 69]

Magistrate may end witnesses’ evidence

69 The Magistrate may end the examination or cross-examination on any particular matter of any witness giving evidence for the prosecution or the defence in any committal proceedings if he or she is satisfied that further examination or cross-examination on the matter will not help the Magistrate to make the initial determination under section 62 or a decision under section 64.

[2-s 70]

Certain evidence may not be excluded

70 A Magistrate in committal proceedings may not exclude evidence on any of the grounds set out in section 90 (Discretion to exclude admissions) or Part 3.11 (Discretions to exclude evidence) of the Evidence Act 1995.

DIVISION 3 — PROSECUTION EVIDENCE [2-s 71] Evidence to be taken in presence of accused person 71 The accused person must be present when prosecution evidence is taken, unless this Division or any other Act or law permits the evidence to be taken in the accused person’s absence. [page 110]

[2-s 72] Magistrate may excuse accused person from attending 72 (1) The Magistrate may excuse the accused person from attending during the taking of prosecution 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. [subs (1) am Act 120 of 2006 s 3 and Sch 3[1], opn 4 Dec 2006]

(2) 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.

[2-s 73] Other circumstances in which evidence may be taken in absence of accused person 73 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 the 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 Act and the accused person has been informed of the time set by the Magistrate for taking prosecution evidence.

[2-s 74] form

Prosecution evidence to be in written

74 (1) Evidence for the prosecution must be given by written statements that are admissible as evidence. (2) A written statement is not admissible as evidence unless this Division, and any applicable rules or regulations, are complied with in relation to the statement and any associated exhibits or documents. (3) A written statement that is inadmissible as evidence under this section may nevertheless be admitted as evidence if otherwise admissible in accordance with any rule or law of evidence.

[2-s 75] Written statements to be served on accused person 75 (1) The prosecutor must serve or cause to be served on the accused person a copy of the written statements relating to the offence, and copies of any proposed exhibits identified in the statement (or a notice relating to inspection of them), within the time set by the Magistrate under section 60. (2) The last date for service set by the Magistrate under that section must be at least 28 days before the date set by the Magistrate for taking the prosecution evidence in the committal proceedings. (3) 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. (4) A written statement served under this Division must contain a notice explaining the effect of this Division and the accused person’s rights in relation to this Division and prosecution evidence under this Division. The notice must be in the form of words prescribed by the rules. (5) Despite subsection (1), 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. [page 111]

(6) 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. COMMENTARY ON SECTION 75

Written statements …. Practice Notes ….

[2-s 75.1] [2-s 75.5]

[2-s 75.1] Written statements See r 3.5 of the Local Court Rules 2009 at [2-9385] and Notice to defendants as to rights regarding statements at [2-5720] for the form of notice under s 75(4). [2-s 75.5] Practice Notes See Local Court Practice Comm 1 at [28-15,200] for procedures to be adopted for committal hearings where proceedings were commenced on or after 1 May 2012.

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[2-s 76] persons

Recordings of interviews with vulnerable

76 (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 and served on the accused person in accordance with section 75. (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 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 (4) am Act 56 of 2009 Sch 3.3, opn 17 July 2009]

(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 (other than a transcript of the record). (6) This section does not affect section 306V(2). (7) Section 79(3) does not apply to or in relation to a written statement certified under this section. [page 112] (8) 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[3], 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 76 subst Act 6 of 2007 s 3 and Sch 1[1], 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 76

Operation of section ….

[2-s 76.1]

[2-s 76.1] Operation of section Section 76 applies to proceedings commenced on or after 12 October 2007: cl 55 at [2-Sch 2].

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[2-s 76A] Recordings of interviews with domestic violence complainants

76A (1) Evidence for the prosecution may be given in the form of a recorded statement instead of a written statement, if the offence is a domestic violence offence. (2) If a recorded statement is to be given instead of a written statement, the prosecutor must serve on the accused person a notice in the form referred to in section 75(4). (3) 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 in relation to any recorded statement given instead of a written statement. (4) However, if the requirements of Division 3 of Part 4B of Chapter 6 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. (5) This Part applies to a recorded statement and the person whose representation is recorded in the recorded statement in the same way as it applies to a written statement under this Division and the person who made the written statement. (6) Sections 74(1), 76, 79, 81, 82, 83(2) and (3), 84 and 85(1) do not apply to a recorded statement. (7) This section does not affect section 289I(2). [s 76A insrt Act 83 of 2014 Sch 1[4], opn 1 June 2015] COMMENTARY ON SECTION 76A

Recorded statements of domestic violence complainants ….

[2-s 76A.1] [page 113]

[2-s 76A.1] Recorded statements of domestic violence complainants Section 76A enables the recorded statement of a domestic violence complainant to be used in committal proceedings for a domestic violence offence instead of a written statement, provided the prosecution has served the appropriate notice under s 76A(2).

“Domestic violence offence” means a domestic violence offence within the meaning of the Crimes (Domestic and Personal Violence) Act 2007. See 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) at [2-s 3] and s 289D at [2-s 289D]. See s 79A at [2-s 79A] for the form and requirements for recorded statements.

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[2-s 77] When prosecution evidence may be given in other ways 77 (1) A prosecutor may apply to have a Magistrate admit prosecution evidence that is not in the form of a written statement admissible in evidence under this Division. (2) The Magistrate may admit the evidence if satisfied that: (a) the written statement was prepared but a copy could not reasonably be served on the accused person, or (b) any other requirement could not reasonably be complied with, or (c) the evidence is additional evidence of a person whose written statement has already been admitted in evidence and a further written statement is not appropriate. (3) If the Magistrate decides not to admit the evidence, the Magistrate may adjourn the committal proceedings to enable the appropriate written statement to be prepared and served on the accused person, or may proceed without taking the evidence. (4) Evidence for the prosecution may be given orally if the prosecutor obtains a subpoena to require a witness to attend to give evidence or to produce documents or things and to give evidence. (5) A prosecutor may, subject to this Division, give evidence and may examine and cross-examine the witnesses giving evidence for the prosecutor or for the accused person, respectively. COMMENTARY ON SECTION 77

Law Part Code ….

[2-s 77.0]

[2-s 77.0] Law Part Code The Law Part Code for s 77(1) is 51521.

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[2-s 78]

Evidentiary effect of written statements

78 (1) A written statement by any person is, if tendered by the prosecutor, admissible in committal proceedings as evidence to the same extent as if it were oral evidence to the like effect given in those proceedings by the same person. (2) Any document or other thing identified in any written 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 written statement admissible if it is not admissible because of another provision of this Division. [page 114] COMMENTARY ON SECTION 78

Effect of admission of written statement ….

[2-s 78.1]

[2-s 78.1] Effect of admission of written statement A statement admitted into evidence at committal proceedings may be admissible at the trial of the accused person: see at [2-s 289].

____________________

[2-s 79] Form and requirements for written statements 79 (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 rules by the maker of the statement as to the truth of the statement and any other matter required by the rules. (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 79

Endorsement of written statements ….

[2-s 79.1]

[2-s 79.1] Endorsement of written statements See r 3.6 of the Local Court Rules 2009 at [2-9390] for the form of endorsement required in s 79(3).

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[2-s 79A] Form and requirements for recorded statements 79A (1) A representation contained in a recorded statement 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 rules. (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. [s 79A insrt Act 83 of 2014 Sch 1[5], opn 1 June 2015]

[2-s 80]

Rules relating to written statements

80 (1) The rules may prescribe requirements for written statements. (2) Any such requirements may be of the same or a different kind to the requirements contained in this Division. [page 115]

(3) The rules may provide that a requirement prescribed under subsection (2) may not be dispensed with by a Magistrate. COMMENTARY ON SECTION 80

Written statements ….

[2-s 80.1]

[2-s 80.1] Written statements See rr 3.6–3.7 of the Local Court Rules 2009 at [2-9390]–[2-9395] concerning non-disclosure of addresses and phone numbers in statements and service of statements.

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[2-s 81] Written statement must be signed by its maker or another person on the maker’s behalf 81 (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.

[2-s 82] witness

Written statement must be signed by

82 A written statement must be signed by another person as a witness to the signing of the statement by the person who made it or as a witness to the signing by another person on the maker’s behalf (if applicable).

[2-s 83]

Presumptions about written statements

83 (1) In any proceedings it is presumed, if there is no evidence to the contrary, that the age specified in the written 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 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 the statement or part statement is an accurate translation of the statement or part.

[2-s 84]

Presumptions about signatures

84 (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. [page 116]

[2-s 85]

False statements or representations

85 (1) A person who made a written statement tendered in evidence in proceedings 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: (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 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: (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[6], opn 1 June 2015]

(2) Chapter 5 of this Act (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 85

Law Part Code …. Summary disposal of offence ….

[2-s 85.0] [2-s 85.1]

[2-s 85.0] Law Part Code The Law Part Code for s 85(1) is 51522. [2-s 85.1] Summary disposal of offence See at [2-s 267] and Table 1 of Sch 1 at [2-Sch 1].

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[2-s 86]

Evidence not to be admitted

86 (1) The Magistrate must refuse to admit evidence sought to be adduced by the prosecutor in respect of an offence in committal proceedings if, in relation to that evidence, this Division or any rules made under this Division, 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 with this Division or the rules 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. [subs (2) insrt Act 107 of 2006 s 3 and Sch 1, opn 29 Nov 2006]

[page 117]

[2-s 87] Inadmissible written statements or parts of statements to be rejected 87 (1) The Magistrate must reject a written statement, or any part of a written statement, tendered in committal proceedings if the statement or part is inadmissible because of this Division. (2) The Magistrate must record the rejection of a part of a written statement and identify in the record the part rejected. (3) The rules may prescribe the manner of identifying a part of a written statement that has been rejected. COMMENTARY ON SECTION 87

Inadmissible statements ….

[2-s 87.1]

[2-s 87.1] Inadmissible statements See r 3.8 of the Local Court Rules 2009 at [2-9400] for the manner of identifying inadmissible statements.

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[2-s 88]

Death of person who made statement

88 (1) A written statement is not admissible if, on evidence produced during committal proceedings, the Magistrate is satisfied that the person who made the statement is dead. (2) If it is found after a written statement is admitted in evidence in committal 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. [subs (3) insrt Act 99 of 2002 s 3 and Sch 1.2[3], opn 7 July 2003]

[2-s 89] person

Notice of rights to unrepresented accused

89 (1) In any committal proceedings in which an accused person is not represented by an Australian legal practitioner, a written statement is not admissible unless the Magistrate:

(a) has explained to the accused person the effect of this Division and the accused person’s rights in relation to this Division, and (b) is satisfied that the accused person understands his or her rights under this Division. [subs (1) am Act 120 of 2006 s 3 and Sch 3[5], opn 4 Dec 2006]

(2) The explanation by the Magistrate must be in the form of words prescribed by the rules. COMMENTARY ON SECTION 89

Notice of rights ….

[2-s 89.1]

[2-s 89.1] Notice of rights See r 3.9 of the Local Court Rules 2009 at [2-9405] for the prescribed form of words under s 89(2).

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[2-s 90] Magistrate may set aside requirements for written statements 90 (1) In any committal proceedings, the Magistrate may dispense with all or any of the following requirements of this Act relating to written statements or exhibits: [page 118] (a) service of documents on the accused person, as required by section 75, (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, if the rules 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. COMMENTARY ON SECTION 90

[2-s 90.0]

Law Part Code …. [2-s 90.0] Law Part Code The Law Part Code for s 90(2) is 51523.

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[2-s 91]

Witness may be directed to attend

91 (1) The Magistrate may direct the attendance at the committal proceedings of the person who made a written statement that the prosecution intends to tender as evidence in the committal proceedings. The direction may be given on the Magistrate’s own motion or on the application of the accused person or the prosecutor. [subs (1) am Act 107 of 2006 s 3 and Sch 1, opn 29 Nov 2006]

(2) 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. (3) In any other circumstance, 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. [subs (3) am Act 107 of 2006 s 3 and Sch 1, opn 29 Nov 2006]

(3A) A direction may not be given for the reasons referred to in subsection (3) if the written statement has already been admitted in evidence. This does not prevent a direction being given merely because the written statement is tendered to the Magistrate for the purpose of determining an application for a direction under this section. [subs (3A) insrt Act 107 of 2006 s 3 and Sch 1, opn 29 Nov 2006]

(4) The written statement may be admissible in evidence in the proceedings after the direction is given 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 statement should be admitted. [subs (4) subst Act 88 of 2006 s 3 and Sch 1[1], opn 1 Jan 2007]

(5) A direction given on the application of the accused person or the prosecutor may be withdrawn only: (a) on the application, or with the consent, of the applicant, or

(b) if the applicant fails to appear, on the application of the other party. (6) The regulations may make provision for or with respect to the determination of substantial reasons under subsections (3) and (4). [subs (6) am Act 88 of 2006 s 3 and Sch 1[2], opn 1 Jan 2007]

(7) If a person attends to give oral evidence because of a direction under this section, 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 [page 119] satisfied that there are substantial reasons why, in the interests of justice, the person should be cross-examined in respect of those matters. [subs (7) insrt Act 40 of 2003 s 3 and Sch 1.10[3], opn 7 July 2003]

(7A) A direction may not be given under this section so as to require the attendance of the complainant in proceedings for a prescribed sexual offence if the complainant is a cognitively impaired person (within the meaning of Part 6 of Chapter 6). [subs (7A) insrt Act 6 of 2007 s 3 and Sch 1[2], opn 12 Oct 2007; am Act 74 of 2008 s 4 and Sch 2, opn 1 Dec 2008]

(8) A direction may not be given under this section so as to require the attendance of the complainant in 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. [subs (8) insrt Act 27 of 2003 s 3 and Sch 7[2], opn 18 Aug 2003]

(9) For the purposes of subsection (8): 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 (8), or (c) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in paragraph (a) or (b). [def subst 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] [subs (9) insrt Act 27 of 2003 s 3 and Sch 7[2], opn 18 Aug 2003] COMMENTARY ON SECTION 91

Law Part Codes …. Operation of section …. Direction by consent …. “Substantial reasons … in the interests of justice” …. Appeal from or review of refusal to give direction …. Withdrawal of direction …. Practice Note ….

[2-s 91.0] [2-s 91.1] [2-s 91.5] [2-s 91.10] [2-s 91.15] [2-s 91.17] [2-s 91.20] [page 120]

Child sexual assault offence …. Operation of s 91(7A) …. [2-s 91.0] Law Part Codes The Law Part Codes for s 91(1) are 51524, 51525. The Law Part Code for s 91(5) is 51526.

[2-s 91.25] [2-s 91.30]

[2-s 91.1] Operation of section There is no constitutional or common law right to a committal proceeding of a particular type; Ch 3 (and in particular s 80) of the Commonwealth Constitution does not invalidate s 106 Summary Procedure Act 1921 (SA) (the South Australian “special reasons” provision) and, accordingly, committal proceedings for a Commonwealth indictable offence were subject to the state legislation: Director of Public Prosecutions (Cth) v Bayly (No 1) (1994) 63 SASR 97; 126 ALR 290; BC9405562. Separate consideration must be given to each witness statement sought to be introduced by the prosecution for the purposes of determining whether a direction should be made: Hanna v Kearney (NSWSC, Studdert J, 28 May 1998, unreported, BC9803179); (1998) 5 Crim LN 46 [867]. Where a notice has been given for witnesses to attend but the accused person fails to appear at the hearing, the statements are admissible notwithstanding that there was no consent given to the tender of the statements: R v Gover (2000) 118 A Crim R 8; [2000] NSWCCA 303; BC200004876; (2000) 7 Crim LN 69 [1191]. The Local Court has no power to entertain an application under the section in respect of the authors of statements made and served pursuant to the Division but upon which the prosecution does not intend to rely: Director of Public Prosecutions v Tanswell (1998) 103 A Crim R 205; BC9805110; (1998) 5 Crim LN 84 [924]. An order may be made for a witness to attend even though the witness intends to claim privilege in respect of the evidence that he or she could give: Finnie v Leggatt (2003) 141 A Crim R 523; [2003] NSWSC 549; BC200303178; (2003) 10 Crim LN 44 [1560]. [2-s 91.5] Direction by consent The magistrate must give the direction if an application is made by the accused person or the informant and the other party consents to the direction being given: s 91(2). [2-s 91.10] “Substantial reasons … in the interests of justice” The word “substantial” is susceptible of ambiguity and is a word calculated to conceal a lack of precision: Tillmans Butcheries Pty Ltd v AMIEU (1979) 42 FLR 331 at 348. Having regard to the scheme of the Division, the test of “substantial reasons” is less stringent than that of “special reasons” used in s 93. To establish substantial reasons for the attendance of witnesses at committal proceedings it is not necessary to show that the case is exceptional or unusual: Losurdo v DPP (1998) 101 A Crim R 162; BC9800566; (1998) 5 Crim LN 14 [816], where it was held that substantial reasons had been shown where the defence wished to cross-examine police as to the lawfulness of a search. An appeal against this decision was dismissed: Director of Public Prosecutions v Losurdo (1998) 44 NSWLR 618; 103 A Crim R 189; 5 Crim LN 74 [906]. The following propositions emerged from the decision in Hanna v Kearney (NSWSC, Studdert J, 28 May 1998, unreported, BC9803179); (1998) 5 Crim LN 46 [867]: 1. The section plainly has as a primary aim the limitation of the time occupied in committal proceedings. Such proceedings are not to provide the opportunity for a full dress rehearsal for the trial. Cross-examination is to be eliminated unless it is required in the interests of justice for reasons that are reasons of substance. 2. There can be no rigid or exhaustive definition of what constitutes “substantial reasons” and it would be undesirable to attempt to give one. Relevant issues inevitably vary from case to case. However, any statement served has to be considered with reference to the issues it addresses and the charge to which it relates. The application to cross-examine [page 121] requires identification and consideration of the objective of the cross-examiner, and the

framework of the prosecution case. To require a witness for cross-examination without a definite aim but in the hope of eliciting some evidence that might prove useful to the defence would not constitute “substantial reasons”. It is for the applicant to clearly define the purpose or purposes of the cross-examination which he seeks. 3. It would be wrong to limit “substantial reasons” to situations where cross-examination is likely to result in the discharge of the accused or to establish grounds for a no bill application. Equally, it would be wrong to limit “substantial reasons” to situations where cross-examination is likely to substantially undermine the credit of an important witness. “Substantial reasons” may well be found elsewhere. 4. On any application under the provision the fundamental objective of committal proceedings must be borne in mind, namely the objective of facilitating a fair trial in the event that the person charged is committed and later stands trial. This may mean that there are substantial reasons for requiring a witness for cross-examination for a proper understanding of the nature of the prosecution case or for an understanding of the basis of a relevant opinion held by a witness. These are instances only and are not exhaustive. 5. “Substantial reasons” may be shown for cross-examination where this may lead to the narrowing of matters in dispute. This is a consideration of particular importance where the prospect exists of a lengthy trial. The duty of both the prosecutor and the representative of the accused person to assist the magistrate in determining whether to make an order under the section were stressed in McKirdy v McCosker (2002) 127 A Crim R 217; [2002] NSWSC 197; BC200201116, where it was held that bald assertions of relevance did not sufficiently define the purpose of calling the witness and the prosecutor had a duty to make sure that the proceedings served their proper function of ensuring that only appropriate matters proceed to trial. Section 91(3) and (7) refer to “substantial reasons … in the interests of justice”. The words “interests of justice” are usually words of the widest possible reference and they enliven a discretionary judgment: Herron v A-G (NSW) (1987) 8 NSWLR 601 at 613A–B; 28 A Crim R 353. The interests of justice incorporate as a paramount consideration that an accused person should have a fair trial: Chapman v Gentle (1987) 28 A Crim R 29 at 32–3; BC8701223. The interests of justice include the interest in securing relevant testimony: Witness v Marsden (2000) 49 NSWLR 429; [2000] NSWCA 52 at [3]; BC200001106. It has been said that the interests of justice in a particular criminal case are to ensure that a person who is accused of crime is convicted if guilty and acquitted if innocent after he or she has had a fair trial, and that the interests of justice also extend to the public interest in the due administration of justice: Mickelberg v R (No 3) (1992) 8 WAR 236 at 251; 59 A Crim R 288. These statements may assist the construction of s 91, although it is necessary to bear in mind that committal proceedings do not constitute a criminal trial at which guilt may be determined. [2-s 91.15] Appeal from or review of refusal to give direction The decision of a magistrate declining to give a direction for the attendance of a witnes is not an interlocutory judgment or order from which an appeal lay to the Court of Criminal Appeal under s 5F Criminal Appeal Act 1912: R v Colby (1995) 84 A Crim R 125; BC9506819; (1996) 3 Crim LN 6 [525]. Section 5F Criminal Appeal Act appears at [20-265]. The avenue for relief is an application to the Administrative Law Division (or Common Law Division) for the purpose of obtaining relief on administrative law grounds: R v Colby, above at 128–9. The nature of appellate and prerogative relief available with respect to an order under ss 91 and 93 was considered in Director of Public Prosecutions v O’Conner (2006) 181 A Crim R 294; [2006] NSWSC 458; BC200603474 at [37]–[45]. [2-s 91.17] Withdrawal of direction Section 91(5) provides that a direction for attendance may be

withdrawn only in defined circumstances. The effect of this provision appears to be that any argument that a direction for attendance may be revisited, as an interlocutory order, in other [page 122] than the defined circumstances, is excluded by statute: Director of Public Prosecutions v O’Conner (2006) 181 A Crim R 294; [2006] NSWSC 458; BC200603474 at [55]. [2-s 91.20] Practice Note See Local Court Practice Note Comm 1 at [28-15,200] concerning procedures to be adopted for committal hearings. [2-s 91.25] Child sexual assault offence The amendments made to the definition of “child sexual assault offence” in s 91 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: Sch 2 cl 41(2) Criminal Procedure Act 1986 at [2-Sch 2]. See Sch 2 cls 41(2) and (3) at [2-Sch 2] for other provisions concerning application of the amended definition to proceedings which are on foot. [2-s 91.30] Operation of s 91(7A) Section 91(7A) is applicable to proceedings commenced on or after the provision was inserted on 12 October 2007: cl 55 at [2-Sch 2].

____________________

[2-s 92] When accused person may apply to have witness attend 92 (1) The accused person in any committal proceedings may not apply for a direction under section 91 unless the accused person has served on the prosecutor a notice requesting the attendance at the proceedings of the person who made the statement concerned. (2) The notice must be served within the time set by the Magistrate. (3) The last date for service of the notice set by the Magistrate must be at least 14 days before the time set by the Magistrate for taking the prosecution evidence in the committal proceedings. (4) The Magistrate may specify a later date with the consent of the accused person or if the circumstances of the case require it.

[2-s 93] Victim witnesses generally not to be directed to attend

93 (1) Despite section 91 (other than subsection (8) of that section), in any committal proceedings in which the accused person is charged with an offence involving violence, the Magistrate may not, under that section, direct the attendance of an alleged victim of the offence who made a written statement (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. [subs (1) subst Act 88 of 2006 s 3 and Sch 1[3], opn 1 Jan 2007]

(2) The regulations may make provision for or with respect to the determination of any such special reasons. COMMENTARY ON SECTION 93

Offence involving violence …. “Special reasons … in the interests of justice” …. Appeal from or review of refusal to give direction …. Practice Note ….

[2-s 93.1] [2-s 93.5] [2-s 93.10] [2-s 93.15]

[2-s 93.1] Offence involving violence Section 94 defines the term “offence involving violence” for the purposes of the section. The definition of “offence involving violence” continues not to apply to sexual offences not falling within the definition of “prescribed sexual offence” in [page 123] s 4(1) Crimes Act 1900 at [8-s 4] where those matters are being heard on their own, but s 91(3) does apply where an accused is charged with a mixture of alleged offences, including “prescribed sexual offences”: L v DPP (NSWSC, Smart J, 26 August 1994, 11639/1994, unreported, BC9402949); Lawler v Johnson (2002) 56 NSWLR 1; 134 A Crim R 199; [2002] NSWSC 864; BC200205442. [2-s 93.5] “Special reasons … in the interests of justice” The term “special reasons … in the interests of justice” in a similar provision was considered in B v Gould (1993) 67 A Crim R 297; BC9303688; Faltas v McDermid (NSWSC, Allen J, 30 July 1993, unreported) and R v Anderson (NSWCCA, 15 February 1994, unreported) and the scheme of similar provisions was considered in Kant v DPP (1994) 34 NSWLR 216; 73 A Crim R 481; BC9405254 and R v Colby (1995) 84 A Crim R 125; BC9506819; (1996) 3 Crim LN 6 [525]. These authorities assist the process of construction of the present provision. The requirement of “special reasons” in s 93(1) is a more stringent test than that of “substantial reasons” required by s 91(3): Tez v Longley (2004) 142 A Crim R 122; [2004] NSWSC 74; BC200400556 at [19]. The totality of the relevant issues in each case should be considered in determining whether or not the reasons are “special” for the purposes of the Act: Lawler v Johnson (2002) 56 NSWLR 1; 134 A Crim R 199; [2002] NSWSC 864; BC200205442 at [30]; Tez v Longley, above, at [20]. There is nothing special or unusual requiring the magistrate to make an order in the fact that the prosecution case relies heavily upon the account of the complainant and that the accused person wishes to cross-examine her: R v Anderson, above. See also Goldsmith v Newman and South Australia (1992)

59 SASR 404; 65 A Crim R 563, S v Metanomski (1993) 65 A Crim R 352; BC9303959, Director of Public Prosecutions (Cth) v Bayly (No 1) (1994) 63 SASR 97; 126 ALR 290; BC9405562 and O’Hare v DPP [2000] NSWSC 430; BC200005032 as to “special reasons”. The circumstances in which a s 93 order may be made where it is said that a witness has given inconsistent accounts were considered in Director of Public Prosecutions v O’Conner (2006) 181 A Crim R 294; [2006] NSWSC 458; BC200603474 at [51]–[52], [90]. There is no power to make an order for the attendance of a witness to give evidence at committal proceedings contingent upon the defendant giving evidence in those proceedings: Director of Public Prosecutions v Paterson (2004) 148 A Crim R 410; [2004] NSWSC 693; BC200405121; (2004) 11 Crim LN 82 [1754]. Where the particulars given by the prosecution in a sexual assault case are vague as to the dates upon which the offences are said to have occurred and the cross-examination is aimed at pinning down the complainant as to those dates then cross-examination would be justified: R v Kennedy (1997) 94 A Crim R 341; BC9702759; 4 Crim LN 46 [712] where the prosecution was criticised for objecting to cross-examination of a witness at committal proceedings where the refusal of cross-examination would result in an unfair trial. This approach was followed in TS v George (NSWSC, Studdert J, 14 April 1998, unreported, BC9802154); (1998) 5 Crim LN 32 [843] where it was observed that a lack of precision as to dates of alleged offences in the complainant’s statement inhibited the accused’s effective preparation for trial. It was held that such a provision can apply to a situation where the victim of one offence is also a witness in respect of an offence committed against another person and where both matters are being dealt with together: McKean v DPP (NSWSC, Grove J, 22 April 1993, unreported, BC9301694), where the victim made a statement referable both to an offence against herself and an offence against her child. See also Loubatie v DPP (1994) 77 A Crim R 28 at 31–4; BC9403379. The reasoning in McKean, above, appears to have continuing application so that an alleged victim of an offence involving violence may only be required to attend to give oral evidence where the section is satisfied, even where that person is a witness in respect of some other offence which is before the court in the same committal proceedings. Section 93(1) refers to “special reasons … in the interests of justice”. The words “interests of justice” are usually words of the widest possible reference and they enliven a discretionary judgment: Herron v A-G (NSW) (1987) 8 NSWLR 601 at 613A–B; 28 A Crim R 353 at 363–4. The [page 124] interests of justice incorporate as a paramount consideration that an accused person should have a fair trial: Chapman v Gentle (1987) 28 A Crim R 29 at 32–3; BC8701223. The interests of justice include the interest in securing relevant testimony: Witness v Marsden (2000) 49 NSWLR 429; [2000] NSWCA 52; BC200001106 at [3]. It has been said that the interests of justice in a particular criminal case are to ensure that a person who is accused of crime is convicted if guilty and acquitted if innocent after he or she has had a fair trial, and that the interests of justice also extend to the public interest in the due administration of justice: Mickelberg v R (No 3) (1992) 8 WAR 236 at 251; 59 A Crim R 288. These statements may assist the construction of s 93, although it is necessary to bear in mind that committal proceedings do not constitute a criminal trial at which guilt may be determined. [2-s 93.10] Appeal from or review of refusal to give direction The decision of a magistrate declining to give a direction for the attendance of a witness is not an interlocutory judgment or order from which an appeal lay to the Court of Criminal Appeal under s 5F Criminal Appeal Act 1912: R v Colby (1995) 84 A Crim R 125; BC9506819; (1996) 3 Crim LN 6 [525]. Section 5F Criminal Appeal Act appears at

[20-265]. The avenue for relief is an application to the Administrative Law Division (or Common Law Division) for the purpose of obtaining relief on administrative law grounds: R v Colby, above at 128–9. See also [4-s 53.5]. The nature of appellate and prerogative relief available with respect to an order under ss 91 and 93 was considered in Director of Public Prosecutions v O’Conner (2006) 181 A Crim R 294; [2006] NSWSC 458; BC200603474 at [37]–[45]. [2-s 93.15] Practice Note See Local Court Practice Note Comm 1 at [28-15,200] concerning procedures to be adopted for committal hearings.

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[2-s 94]

Meaning of “offence involving violence”

94 (1) The following offences are offences involving violence for the purposes of section 93: (a) a prescribed sexual offence, (b) an offence under section 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), (f1) 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, (g) an offence that, at the time it was committed, was an offence involving violence for the purposes of section 93, (h) any other offence that involves an act of actual or threatened violence that is prescribed by the regulations for the purposes of this section. [subs (1) am Act 88 of 2010 Sch 2, opn 1 Nov 2010; Act 95 of 2012 Sch 1 item 1.7, opn 4 Jan 2013]

(2) An offence that may be dealt with summarily under Chapter 5 is not an offence involving violence for the purposes of section 93.

[page 125]

[2-s 95] Use of previous statements in cases involving prescribed sexual offences 95 (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 on the same person, transcripts of evidence of the person on 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 hearing, be included in a brief of evidence. (2) A copy of the transcript must be certified by a registrar in accordance with the rules and served on the accused person in accordance with section 183. (3) A brief of evidence that includes a transcript of a deposition of a person is not required also to include a written statement from the person concerned in respect of any matter covered by the transcript. (4) The transcript of the deposition is taken, for the purposes of this Act, to be a written statement taken from the person. Accordingly, any document or other thing identified in the transcript as a proposed exhibit forms part of the brief of evidence. COMMENTARY ON SECTION 95

Prescribed sexual offence ….

[2-s 95.1]

[2-s 95.1] Prescribed sexual offence See the definition of “prescribed sexual offence” at [2-s 3].

____________________

[2-s 96] Application of Division to proceedings where there is more than one accused person 96 In committal proceedings in which there are 2 or more accused persons, this Division applies: (a) in relation to each accused person to the extent only that a written statement is sought to be admitted as evidence against that accused person, and (b) in relation to each such accused person as if that accused person were the only accused person.

DIVISION 4 — DEFENCE EVIDENCE [2-s 97]

Evidence for accused person

97 (1) The Magistrate must give the accused person an opportunity to give evidence in the committal proceedings or to call any witness on the accused person’s behalf. (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 for the prosecution, respectively. Note. For other provisions applying to evidence in committal proceedings, see the Evidence Act 1995.

[page 126] COMMENTARY ON SECTION 97

Defence case ….

[2-s 97.1]

[2-s 97.1] Defence case The provisions of the Evidence Act applying to criminal proceedings apply to committal proceedings. As to the provisions applicable to the evidence of an accused person, see at [3-s 104] as to the limitations on cross-examination of an accused and Pt 3.8 of the Evidence Act as to character of an accused.

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[2-s 98]

Other evidence about accused person

98 Nothing in this Part prevents the prosecutor from giving in evidence any admission or confession or other statement by the accused person, made at any time, which is by law admissible as evidence against the accused person. COMMENTARY ON SECTION 98

Evidence of admissions ….

[2-s 98.1]

[2-s 98.1] Evidence of admissions Provisions relating to the admissibility of admissions are found in Pt 3.4 of the Evidence Act: see at [3-s 81] and following. The magistrate has no power to reject an admission on the basis of a discretion under s 90 or otherwise under the Evidence Act: see [2-s 70].

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DIVISION 5 — PROCEDURE IF ACCUSED PERSON PLEADS GUILTY [2-s 99]

Effect of guilty plea

99 (1) An accused person may at any time in committal proceedings plead guilty to the offence concerned. If a person pleads guilty, the provisions of this Division apply. (2) Rejection of a guilty plea does not prevent an accused person from pleading guilty at a later stage in the proceedings. COMMENTARY ON SECTION 99

Plea of guilty ….

[2-s 99.1]

[2-s 99.1] Plea of guilty The plea may be given by counsel in the presence of the accused: R v Paauwe [1970] 3 NSWR 131.

____________________

[2-s 100]

Guilty plea may be accepted or rejected

100 The Magistrate may accept or reject the guilty plea. COMMENTARY ON SECTION 100

Acceptance and rejection of pleas of guilty ….

[2-s 100.1]

[2-s 100.1] Acceptance and rejection of pleas of guilty See at [2-s 193.1]. Where the accused pleaded guilty to a charge of stealing but denied that he had stolen any of the property specified in the charge, the plea of guilty could not be accepted in the District Court: R v Radic (2001) 122 A Crim R 70; [2001] NSWCCA 174; BC200102791; (2001) 8 Crim LN 38 [1288].

____________________ [page 127]

[2-s 101]

Effect of rejection of guilty plea

101 If the guilty plea is rejected, the committal proceedings continue as if the accused person had not pleaded guilty.

[2-s 102]

Effect of acceptance of guilty plea

102 If the guilty plea is accepted, the Magistrate must commit the accused person to the District Court or the Supreme Court, to be dealt with in accordance with this Division.

[2-s 103] for trial

Procedure applicable after committal

103 (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 the 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. COMMENTARY ON SECTION 103

Committal for sentence ….

[2-s 103.1]

[2-s 103.1] Committal for sentence As to the procedure after committal for sentence, see at [2-s 109] and following. An accused who is committed for sentence is entitled to receive one copy of the transcript and the written statements tendered: see [2-s 114].

____________________

[2-s 104] Higher court may refer accused person back to Magistrate 104 (1) A Judge of the District Court or the Supreme Court before whom an accused person is brought under this Division 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 the 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 committal proceedings continue as if the person had not pleaded guilty. COMMENTARY ON SECTION 104

Referral for continuation of committal proceedings ….

[2-s 104.1]

[2-s 104.1] Referral for continuation of committal proceedings A continuation may be ordered at any time up to the passing of sentence even where the accused was before the court for breach of a bond: Frodsham v O’Gorman [1979] 1 NSWLR 683.

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[2-s 105]

Disposal of proceedings by higher court

105 (1) The District Court or the Supreme Court may proceed to sentence or otherwise deal with an accused person brought before the Court under this Division 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. [page 128] (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. COMMENTARY ON SECTION 105

Plea in District or Supreme Court ….

[2-s 105.1]

[2-s 105.1] Plea in District or Supreme Court It is not necessary that the accused repeat or adhere to his plea before the District Court although this is a desirable practice: R v Gibson (1987) 8 Petty SR 3901. A formal indictment is not necessary: R v Bamford [1972] 2 NSWLR 261, but the charge to which the defendant has pleaded guilty before the magistrate may not be changed. If the charge is to be changed in the sentencing court, it must be done by the presentation of an indictment upon which the accused is to be arraigned.

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[2-s 106]

Change to not guilty plea in higher court

106 (1) If an accused person brought before the District Court or the Supreme Court under 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. (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 104. (5) Despite subsection (1), the Judge may make an order under section 104 instead of giving a direction under subsection (1), if of the opinion that such an order should be made.

[2-s 107] Attorney General or Director of Public Prosecutions may direct that no further proceedings be taken

107 (1) If a guilty plea is accepted under this Division, the Attorney General or the Director of Public Prosecutions may, at their discretion, direct in writing that no further proceedings be taken against the accused person under this Division for the offence concerned. (2) No further proceedings may be taken against the accused person under this Division 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.

[2-s 108]

Meaning of “accused person”

108 In this Division: accused person includes a person who has been committed for sentence to the District Court or Supreme Court. [page 129]

DIVISION 6 — PROCEDURE AFTER COMMITTAL FOR TRIAL OR SENTENCE [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:

committing the accused person to a correctional centre or other (a) place of security, and (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] court

Papers to be sent to officer of higher

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. [page 130] (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).

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[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 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,

recorded statements and witnesses’ statements 114 (1) An accused person who is committed for trial or sentence is entitled to obtain one copy of the transcript of evidence taken at the committal proceedings, and any written statements tendered at the proceedings. (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 7 — COSTS [2-s 116] persons

When costs may be awarded to accused

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: [page 131] (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. (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. [page 132] [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 [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].

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[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. [page 133] 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 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.

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[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. [page 134] (3) An order may be made whatever the result of the proceedings. COMMENTARY ON SECTION 118

Law Part Code ….

[2 s 118.0]

Costs on adjournment …. Appeal from order ….

[2-s 118.1] [2-s 118.5]

[2 s 118.0] Law Part Code 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); (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].

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[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. [page 135]

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 (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]

[page 136]

COMMENTARY ON SECTION 122

Listing ….

[2-s 122.1]

[2-s 122.1] Listing See Pt 2 of the Criminal Procedure Regulation 2010 at [2-5040] and following for procedural matters with respect to listing.

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[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]

[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) (d) (e) (f)

the power of a court to adjourn any matter, proceedings in the Court of Criminal Appeal, proceedings in the Supreme Court in its summary jurisdiction, or 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 [page 137] (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 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].

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[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] [page 138]

[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.

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[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: (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.

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[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. [page 139] (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 ….

[2-s 129.1] [2-s 129.5]

[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 2010 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.

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[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]

[page 140] 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 rearraigned 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 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.

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[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 …. Scope of the section ….

[2-s 130A.5] [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]. [page 141] [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 a trial, not just pre-trial orders, will be binding on a subsequent trial judge.

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[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].

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[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 [page 142]

(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] COMMENTARY ON SECTION 132

Trial by judge alone …. Election by the accused ….

[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 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 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 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.

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[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. [page 143] (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]

[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 ….

[2-s 133.1]

[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. [page 144] 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].

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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 …. Scope of Division after 2013 amendments …. Case management provisions for summary matters in higher courts …. Case management of Local Court summary criminal proceedings ….

[2-s 134.5] [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 Pretrial 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

[page 145] 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. 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]. [page 146] [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].

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[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] COMMENTARY ON SECTION 136

Operation of section ….

[2-s 136.5]

Supreme Court Practice Note …. District Court Practice Note ….

[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]. [page 147] [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].

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[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, (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] [page 148]

[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.

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[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: (a) the prosecutor and the Australian legal practitioner who represented the accused person at the pre-trial conference must complete a pretrial 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: [page 149] (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 Pretrial 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 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 courtordered 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 [page 150] 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. 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.

____________________ [page 151]

[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, (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 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, (j) 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, (k) a copy of any information in the possession of the prosecutor that is relevant to the reliability or credibility of a prosecution witness, (l) 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, (m) 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]

(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 Police Integrity Commission, (b) the New South Wales Crime Commission, (c) the Independent Commission Against Corruption. [s 142 subst Act 10 of 2013 Sch 1[5], opn 1 Sep 2013]

[page 152] 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. 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) ought the documents to have been disclosed; (ii) what is involved in disclosure; (iii) whether documents were adequately disclosed and; (iv) 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, [page 153] (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). (2) The notice of the defence response is also to contain such of the following matters (if any) as the court orders: (a) a copy of any report, relevant to the trial, that has been prepared by a person whom the accused person intends to call as an expert witness at the trial, (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) 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, (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) notice of any significant issue the accused person proposes to raise regarding the form of the indictment, severability of the charges or separate trials for the charges, (g) notice of any consent the accused person proposes to give under section 184 of the Evidence Act 1995. [s 143 subst Act 10 of 2013 Sch 1[5], opn 1 Sep 2013]

[2-s 144] response

Prosecution response to defence

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, [page 154] notice as to whether the prosecutor proposes to raise any issue with respect to the continuity of custody of the exhibit, (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, (e) a copy of any information, document or other thing in the possession of the prosecutor, not already disclosed to the accused

(f)

person, that might reasonably be expected to assist the case for the defence, 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] 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 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: [page 155] (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 (b) Part 2.2 or 2.3, or (c) Parts 3.2–3.8.

____________________ [page 156]

[2-s 146] Sanctions for non-compliance with pretrial 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.

____________________

[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 pretrial disclosure imposed by or under this Division on the accused person, or

[page 157] (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 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 [page 158] 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.

____________________

[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. [page 159] (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 coaccused 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 reflect the particular circumstances of each case.

____________________ [page 160]

[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.

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[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. (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: [page 161] (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. (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.

[page 162] (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] witnesses

Requirements as to statements of

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] disclosed

Exemption for matters previously

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.

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[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. COMMENTARY ON SECTION 149E

Court powers after commencement of trial ….

[2-s 149E.5] [page 163]

[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.

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[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. COMMENTARY ON SECTION 149F

Other disclosure requirements ….

[2-s 149F.5]

[page 164] [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.

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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. (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 [page 165] 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. [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) [page 166]

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”.

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[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. [page 167] (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 20 of the Criminal Procedure Regulation 2010 at [25195] 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.

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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.

____________________ [page 168]

[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

[page 169] 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.

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[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. [page 170] 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].

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[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.

____________________ [page 171]

[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] person

Opening address to jury by accused

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 [page 172] (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]

(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] person

Closing address to jury by accused

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 [page 173] [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. 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 Giffin [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.

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[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. [page 174] (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. COMMENTARY ON SECTION 161

Summing up generally …. Manner of summing up …. Summing up on onus and standard of proof …. Summing up on unanimous verdict ….

[2-s 161.1] [2-s 161.5] [2-s 161.10] [2-s 161.12]

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 ….

[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 [page 175]

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 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.

[page 176] 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]. [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. 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. 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 [page 177] 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 crossexamined 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 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 [page 178] 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]. 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. [page 179] 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; 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 trial judge is entitled to express an opinion on, or comment about, the facts provided that it is made clear that it is for the jury to determine the facts: R v Courtney-Smith (No 2) (1990) 48 A Crim R 49; BC9002274; R v Zorad, above, at NSWLR 106–7; A Crim R 226. However the jury should not be overawed by the force with which the judge’s comments are made: R v Lacaze (1981) 3 A Crim R 233 at 238; B v R (1992) 175 CLR 599 at 605; 110 ALR 432 at 435–6 per Brennan J; R v Nation (1994) 78 A Crim R 125. The trial judge can take into account that it is necessary to redress matters in the addresses of counsel: R v Glusheski (1986) 33 A Crim R 193 at 195; BC8601094. The judge should not lead the jury to believe that he is directing them as to how to find the facts: R v Guerin [1967] 1 NSWR 255 at 273, or that he is experienced in fact finding: R v Perera [1986] 1 Qd R 211; (1985) 16 A Crim R 292. It has been held that the safer course is for the judge not to comment on the facts beyond reminding the jury of the arguments of counsel and an attempt to instruct the jury about how they may reason towards a verdict of guilty leads only to difficulties: RPS v R (2000) 199 CLR 620; 168 ALR 729; [2000] HCA 3; [page 180] BC200000084; (2000) 7 Crim LN 5 [1104]. In R v Taleb [2006] NSWCCA 119; BC200602300 it was held that the width of the discretion for a trial judge to comment on the facts may be more limited than it once was and there is now a greater restraint upon judges in commenting than might have been the case, and while there is no prohibition on comment it is a matter of degree whether the comments have resulted in a trial that was unfair. The judge is not entitled to demolish the defence case and the legitimate bounds may be passed where the judge repeatedly makes statements undermining the defence but not the Crown case even where the jury are told that the finding of facts is within their province: Taleb v R [2006] NSWCCA 119; BC200602300; (2006) 13 Crim LN 40 [2058] where a trend was identified of greater restraint by trial judges in commenting on the facts. 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. [page 181] 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]. 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. 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]. [page 182] 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]. 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 I 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 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; [page 183] 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]. 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 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

[page 184] 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 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. [page 185] 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. 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 [page 186] 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]. 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). [page 187] 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 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 [page 188] 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. 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 [page 189] 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. [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].

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[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. 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]. [page 190] 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].

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[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 subjectmatter, 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.

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: [page 191] (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) 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]

[page 192]

(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 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] [page 193]

[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 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.

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[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]. [page 194] 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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[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]

[page 195]

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) Part 4 applies to the following proceedings: (a) proceedings before the Local Court, (b) proceedings before the District Court, (c) proceedings before the Supreme Court, (d) proceedings before an Industrial Magistrate, (e) [repealed] (f) 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) proceedings before the Industrial Relations Commission in Court Session, (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]

(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 [page 196] 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 the President or a judicial member of the Industrial Relations Commission and any other person of a class prescribed by the regulations for the purposes of this definition. 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. [page 197] COMMENTARY ON SECTION 172

Commencing summary proceedings …. Filing of documents …. Case Management of Local Court Summary Criminal Proceedings See ….

[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. [2-s 172.10] Case Management of Local Court Summary Criminal Proceedings See [2-s 134.20] and Local Court Practice Note Crim 1 at [28-15,205].

____________________

[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 [page 198] 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 the court on application by the person. COMMENTARY ON SECTION 174

Law Part Code …. Private prosecutions ….

[2 s 174.0] [2-s 174.1]

[2 s 174.0] Law Part Code 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, (e) state, unless a warrant is issued for the arrest of the person or the person is

[page 199] 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 …. Duplicity ….

[2-s 175.1] [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].

____________________ [page 200]

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] [2-s 177.5]

[2- s 177.0] Law Part Code 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.

____________________ [page 201]

[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. [subs (2) am Act 107 of 2006; s 3 and Sch 1, opn 29 Nov 2006]

(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] 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. 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; [page 202] 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.

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[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. (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 [page 203] (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]

[2-s 181.0] Law Part Codes The Law Part Code for s 181(1) is 51535. The Law Part Code for s 181(2) is 51536. The Law Part Code for s 181(3A) is 59958. The Law Part Code for s 181(4)(a) is 51537.

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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. (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]

(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).

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[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]

[page 204] (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 (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 [page 205] 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].

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[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] persons

Recording of interviews with vulnerable

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. (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]

[page 206] 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].

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[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] COMMENTARY ON SECTION 185A

Recorded statements of domestic violence complainants ….

[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.

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[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.

____________________ [page 207]

[2-s 187] served

When brief of evidence need not be

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 ….

[2-s 187.1] [2-s 187.5]

Offences where brief of evidence not required ….

[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 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 [page 208] 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. (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 21 Criminal Procedure Regulation 2010 at [2-5200]. See s 336 Criminal Procedure Act 1986 at [2-s 336] for penalty notice offences.

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[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] [2-s 188.1]

[2-s 188.0] Law Part Code 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

[page 209] 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 … (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.

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[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]

[page 210] (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]

[2-s 189.0] Law Part Code The Law Part Code for s 189(1) is 51539.

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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. (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. [page 211] 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). 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.

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[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.

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[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.

[page 212] (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]; (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; [page 213] (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 precondition 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]. [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.

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[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 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 [page 215] 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. (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 [page 216] 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 (No 2), above, where Australian cases are collected; Brown v

Robinson (1959) 60 SR (NSW) 297; 76 WN (NSW) 758. (h) 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. (i) 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. (j) 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. (k) 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].

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[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. [page 217]

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. [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.

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[2-s 195]

How evidence is taken

195 (1) A prosecutor may give evidence and may examine and crossexamine 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 See [2-s 202.1] as to a submission of no case to answer in criminal proceedings.

[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].

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[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 [page 218] 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 (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].

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[2-s 197] present

Adjournment when accused person not

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. [page 219]

[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]

[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. [page 220] (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. COMMENTARY ON SECTION 202

No case to answer …. Power to set aside conviction or order before sentence ….

[2-s 202.1] [2-s 202.5]

Determination without jurisdiction …. Reasons …. Findings of no jurisdiction …. Effect of decision of Supreme or District Court …. Sentencing options ….

[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 selfcontradictory 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 [page 221] 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. [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 [page 222] 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]. [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.

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[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] made

Record of conviction or order to be

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. [page 223] (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]

[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] [2-s 207.1]

[2 s 207.0] Law Part Code 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 [page 224] 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. 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.

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[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 [page 225] 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 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 Officer 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.

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[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. [page 226]

[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. (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, 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] 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), [page 227] (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, (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.

[page 228] 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. 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].

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[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 ….

[2-s 213.1] [2-s 213.10] [page 229]

Just and reasonable …. Appeals against orders ….

[2-s 213.15] [2-s 213.20]

Indemnity against costs order ….

[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: (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.

____________________ [page 230]

[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: (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] [2-s 214.1] [2-s 214.5] [2-s 214.10]

[2-s 214.0] Law Part Code 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]. [page 231] 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 eyewitnesses, 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]. [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.

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[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. [page 232] 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 “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].

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[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] [2-s 216.1] [2-s 216.5]

[2 s 216.0] Law Part Code 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. [page 233] 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? [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].

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[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).

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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, [page 234] (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, (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]

[2-s 219.1] Rules See Local Court Rules 2009 at [2-9200] and following.

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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 104, Criminal Procedure Regulation 2010 at [2-5885].

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[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. [page 235] 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. 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]

(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 …. Issue of subpoenas at the request of other parties …. Specificity and sufficient description in subpoena …. Application to set aside subpoena …. Client legal privilege …. Common law principles …. Evidence Act 1995 provisions …. Public interest immunity …. Legitimate forensic purpose …. Complaints against police …. Sexual assault communications privilege ….

[2-s 222.1] [2-s 222.5] [2-s 222.10] [2-s 222.15] [2-s 222.20] [2-s 222.20.5] [2-s 222.20.10] [2-s 222.25] [2-s 222.30] [2-s 222.35] [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].

[page 236] 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 222.5] 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. [page 237] 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]. 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. [page 238] [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; 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]. [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 precisely identified: Roads and Traffic 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]. [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). [page 239] [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 pretrial 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].

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[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] [2-s 223.1]

[2-s 223.0] Law Part Code The Law Part Code for s 223(2) is 51542. [2-s 223.1] Service of subpoenas See r 6.4 of the Local Court Rules 2009 at [2-9665] concerning service of subpoenas.

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[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 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]

[2-s 224.1] Conduct money See r 6.5 of the Local Court Rules 2009 at [2-9670] concerning conduct money.

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[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. [page 240] COMMENTARY ON SECTION 225

Specificity and sufficient description in subpoena …. [2-s 225.1] Specificity and sufficient description in subpoena See [2-s 222.10].

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[2-s 225.1]

[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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[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] [2-s 227.1] [2-s 227.5] [2-s 227.10]

[2-s 227.0] Law Part Code 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: [page 241] 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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[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] [2-s 228.1] [2-s 228.5] [2-s 228.10] [2-s 228.15] [page 242]

[2-s 228.0] Law Part Code 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 (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 [page 243] 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.

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[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 …. Issue of warrant ….

[2-s 229.0] [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. [page 244] (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.

(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]

[2-s 231.0] Law Part Code The Law Part Code for s 231(2) is 51547.

____________________ [page 245]

[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.

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]

[2-s 235.0] Law Part Code 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, [page 246] (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) 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 50 years 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. [page 247]

(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] warrant

Persons who may execute arrest

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]

[2-s 239.1] Procedure after arrest See r 7.5 of the Local Court Rules 2009 at [2-9760] concerning procedure after arrest.

____________________

[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]

[2-s 240.0] Law Part Code The Law Part Code for s 240(1)(a) is 51549.

____________________ [page 248]

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]

[2-s 241.0] Law Part Code 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 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]

[2-s 242.5] Warrants of commitment See rr 7.4 and 7.6 of the Local Court Rules 2009 at [2-9755] and [2-9765].

____________________

[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. [page 249] (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.

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. [page 250] (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. (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 …. Land and Environment Court Practice Note ….

[2-s 247A.5] [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. [page 251] 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:

requiring certain preliminary disclosures to be made by the (a) 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 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. [page 252]

[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, (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] [page 253]

[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. (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: [page 254] (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: (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 codefendants, 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. [page 255] (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. (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 notice — court-ordered preliminary disclosure 247J For the purposes of section 247I(1)(a), the prosecution’s notice is to contain the following:

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. (a)

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)).

[page 256]

[2-s 247K] Defence response — court-ordered preliminary disclosure 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 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 defence response — court-ordered preliminary disclosure 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 [page 257] 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. (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). [page 258] (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 non-compliance with preliminary disclosure requirements 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 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. [page 259]

[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, (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. [page 260]

[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] witnesses

Requirements as to statements of

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 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. [page 261]

[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.

[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 [page 262] 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]

[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: [page 263] (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] appear

Procedure where both parties do not

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. 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]

[page 264]

[2-s 255] Termination of lower court proceedings on commencement of proceedings under this Part 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, (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:

[page 265] (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.

[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. COMMENTARY ON SECTION 257C

Discretion to order costs ….

[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. [page 266] (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 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 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 purposes of 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.

[page 267]

[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]

[page 268]

CHAPTER 5 — SUMMARY DISPOSAL OF INDICTABLE OFFENCES BY LOCAL COURT [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]

[2-s 259.1] Tables 1 and 2 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]

[page 269] (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 [2Sch 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 Division 5 of Part 2 of Chapter 3 as if the person charged had pleaded guilty under that Division 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] [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. [page 270] (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 commencement of the taking of evidence for the prosecution in the committal for trial proceedings, (b) in the case of a plea of guilty — the committal of the person charged for sentence. (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]

[page 271]

[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 105(1) of the Criminal Procedure Regulation 2010 at [25890] 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]

[page 272] (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 105(2) and (3) of the Criminal Procedure Regulation 2010 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, [page 273] 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]

[2-s 267.0] Law Part Codes The Law Part Codes for s 267 are 51554, 51555. The Law Part Code for s 267(2) is 51556. The Law Part Code for s 267(3) is 51557. The Law Part Code for s 267(4)(a) is 51558. The Law Part Code for s 267(4)(b) is 51559. The Law Part Code for s 267(4A) is 51560. The Law 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, 60C, 60E(1) and (4), 61, 61L, 61N or 61O(1) or (1A) of the Crimes Act 1900 — 50 penalty units, [page 274] (b) 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, (c) for an offence under section 154A of the Crimes Act 1900 — 50 penalty units, (d) for an offence under section 93G, 93H or 93I of the Crimes Act 1900 — 50 penalty units, (e) 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, 58(2), 62, 63, 64, 66, 70, 71A, 72(1) or 74(1)–(5) of the Firearms Act 1996 — 50 penalty units, (f) for an offence under section 7, 20, 23(1), 23A(1), 25A(1), 25B(1), 31 or 34 of the Weapons Prohibition Act 1998 — 100 penalty units, (g) 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, (h) for an offence under section 100(1) or (1B) of the Rural Fires Act 1997 — 100 penalty units, (i) 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, (j) for an offence under section 10 or 20 of the Liens on Crops and Wool and Stock Mortgages Act 1898 — 50 penalty units, (k) 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, (k1) for an offence under section 8(2A) or 9(3) of the Restricted Premises Act 1943 — 50 penalty units, (l) for an offence under section 17 or 18 of the Child Protection (Offenders Registration) Act 2000 — 100 penalty units, (m) for an offence under section 65 of the Electricity Supply Act 1995 — 100 penalty units, (n) 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]

(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 (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, [page 275] 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]

[2-s 268.0] Law Part Codes The Law Part Code for s 268(1A) is 58644. The Law Part Code for s 268(2)(a) is 51562. The Law Part Code for s 268(2)(b) is 51563. The Law Part Code for s 268(2)(c) is 51564. The Law Part Code for s 268(2)(d) is 51565. The Law Part Code for s 268(2)(e) is 51566. The Law Part Code for s 268(2)(e1) is 51567. The Law Part Code for s 268(2)(f), for the period 7 July 2003 to 11 March 2007, is 51568. The Law Part Code for s 268(2)(f) from 12 March 2007 is 61553. The Law Part Code for s 268(2)(i) is 51569. The Law Part Code for s 268(2)(j) is 51570. The Law 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]

[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]

[page 276]

[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]

[page 277]

CHAPTER 6 — EVIDENTIARY MATTERS [Heading insrt Act 119 of 2001 s 3 and Sch 1[98], opn 7 July 2003]

PART 1 — PRELIMINARY [Heading insrt Act 119 of 2001 s 3 and Sch 1[98], opn 7 July 2003]

[2-s 274]

Application

274 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]

[2-s 275]

Definitions

275 In this Chapter: Judge includes a Magistrate, a Children’s Court Magistrate, the President or a judicial member of the Industrial Relations Commission and an Industrial Magistrate and any other person of a class prescribed for the purposes of this definition. [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]

Improper questions 275A [s 275A rep Act 46 of 2007 s 4 and Sch 2, opn 1 Jan 2009] COMMENTARY ON REPEALED SECTION 275A

Law Part Code …. Improper questions ….

[2-s 275A.0] [2-s 275A.1]

[2-s 275A.0] Law Part Code The Law Part Code for s 275A(8) is 57003. [2-s 275A.1] Improper questions Section 275A applies to “disallowable questions” asked in crossexamination in criminal proceedings. The general provision relating to the rejection of improper questions in s 41 Evidence Act 1995 at [3s 41] does not apply to criminal proceedings to which s 275A applies: s 275A(7). Section 275A extends to proceedings instituted or partly heard before the commencement of the section on 12 August 2005: cl 42(1) Sch 2 Criminal Procedure Act 1986 at [2-Sch 2]. However, s 275A 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: cl 42(2) Sch 2 at [2-Sch 2].

____________________ [page 278]

[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. (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 276]

Proof of service of notice to produce

276 An affidavit by: (a) the Director of Public Prosecutions or the Solicitor for Public Prosecutions, or (b) a member of the staff of the Director of Public Prosecutions, or (c) an Australian legal practitioner or Australian legal practitioner’s clerk, or (d) the accused person, or (e) a police officer, 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

from any store or shed used in connection with and adjoining (iii) any such dock, wharf, quay, railway yard or other railway premises, or [page 279] (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] 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.

[page 280]

[2-s 279] Compellability of spouses to give evidence in certain proceedings 279 (1) In this section: (a) a reference to the spouse of an accused person includes a reference to the de facto partner of an 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 the spouse

of an accused person 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 the spouse 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]

(2) The spouse of an accused person in proceedings in any court: (a) for a domestic violence offence (other than an offence arising from a negligent act or omission) committed on the spouse, 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 of the accused person and the spouse, 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]

(3) The spouse of an accused person is not compellable to give evidence for the prosecution as referred to in subsection (2) if the spouse 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]

[page 281] (4) A court may excuse the spouse of an accused person 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 spouse 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 spouse 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]

(5) When excusing the spouse of an accused person 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]

(6) An application under this section by the spouse of an accused person 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]

(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 the spouse of an accused person 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] [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 ….

[2-s 279.1]

[2-s 279.1] Form of reasons for excusing spouse from giving evidence See cl 26 of the Criminal Procedure Regulation 2010 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 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: (a) the address or telephone number is a materially relevant part of the evidence, or (b) the court makes an order requiring the disclosure. [page 282] (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]

[2-s 280.0] Law Part Code The Law Part Code for s 280(2) is 57857.

____________________

[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 [page 283] (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 (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 [page 284]

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; 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]

[2-s 281A]

Definitions

281A (1) In this Part: 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: [page 285] (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: (a) committal proceedings, (b) proceedings relating to bail, (c) proceedings relating to sentencing, (d) proceedings on an appeal against conviction or sentence. 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. (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]

(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,

[page 286] (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.

[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 (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. [page 287] (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 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. [page 288]

[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]

[2-s 281.0] Law Part Code The Law Part Code for s 281F(1) is 57007.

____________________

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.

[page 289]

[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 (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), [page 290] (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 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: (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.

[page 291] COMMENTARY ON SECTION 284

Form of deposition ….

[2-s 284.1]

[2-s 284.1] Form of deposition See cl 27 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).

____________________

[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]

[page 292] (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], 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 [page 293] (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. (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 112 or 113 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. (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.

[page 294]

[2-s 289] Written statements admitted in committal proceedings 289 (1) This section applies to: (a) a written statement the whole or any part of which has been admitted as evidence under Division 3 of Part 2 of Chapter 3, including any part of the statement that has been rejected under that Division,

(b) a written statement the whole or any part of which has been tendered as evidence under Division 5 of Part 2 of Chapter 3, referred to in this section as a prescribed written statement. [subs (1) am Act 119 of 2001 s 3 and Sch 1[116]–[118], opn 7 July 2003]

(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: [page 295] 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. 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.

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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]

[page 296] (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 [page 297] (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. [page 298] COMMENTARY ON SECTION 289D

Recorded statement ….

[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

298E 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-inchief, their recorded statement.

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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. [page 299] (3) A recorded statement must contain the following statements by the 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 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.

[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 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. [page 300] (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 (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]. [page 301] 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. COMMENTARY ON SECTION 289L

Service of recorded statement ….

[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. [page 302] 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: (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. [page 303] (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 copying or dissemination of recorded statement 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. 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. [page 304]

[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: 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] [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 [page 305] (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 is to be held in camera, unless the court otherwise directs.

(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. (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 or, if the record is an audio visual or audio recording, heard by the court in camera. (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, [page 306] (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. (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] camera

Media access to proceedings held in

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 [page 307] 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: (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 (as defined in section 61H(1) 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 [page 308] 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 crossexamination 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. (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 (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] [page 309]

[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 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 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 [page 310] 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]. 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.

____________________

[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 [page 311] (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.

COMMENTARY ON SECTION 294

Scope of section …. Commencement of provision ….

[2-s 294.1] [2-s 294.5]

[2-s 294.1] Scope of section As to the effect of this section see Judicial Officers’ Bulletin (2007) Vol 19, Issue 3. [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].

____________________

[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]

[page 312] (2) The complainant cannot be examined in chief, cross-examined or reexamined 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. (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 Sch 1[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]

[page 313] (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 (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. [page 314]

(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] 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].

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[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]

[page 315] (7) If the complainant is a vulnerable person when the evidence is given, section 306ZK does not apply. [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]

(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]

[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]

[page 316]

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 pretrial 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: (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 [page 317] (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 (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]

[page 318] (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 confidences — preliminary criminal proceedings 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]

[2-s 297.1] Preliminary criminal proceedings These are defined in s 295 to mean committal proceedings and applications for bail.

____________________

[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. (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. [page 319] (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;

The primary purpose of the prohibition in s 298(1) is to prevent any person other than the (b) 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 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]

[page 320]

[2-s 299B] confidence

Determining if there is a protected

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]. 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 [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 [page 321] (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]

[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,

that the effectiveness of counselling is likely to be dependent on the (b) maintenance of the confidentiality of the counselling relationship, (c) the public interest in ensuring that victims of sexual offences receive effective counselling, [page 322] (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]. [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 of sexual assault communications privilege: misconduct 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. [page 323] (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]

(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 for production of counselling communications 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 [page 324] 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]

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 has the meaning given by section 306B. sexual offence [def rep Act 25 of 2005 s 3 and Sch 1, opn 12 Aug 2005]

[page 325]

[2-s 306B] Admission of evidence of complainant 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. [subs (1) am Act 25 of 2005 s 3 and Sch 1, opn 12 Aug 2005]

(2) For the purposes of this Division, the original evidence of the complainant means all evidence given by the complainant in the proceedings from which the conviction arose (referred to in this Division as the original proceedings), including the evidence given by the complainant on examination in chief in the original proceedings and any further evidence given on cross-examination or re-examination in those proceedings. (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 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. (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 under this Division 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. (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 if it is admissible under this Division. (6) However, the court may give directions requiring a record of the original evidence of the complainant 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 new trial proceedings in accordance with the usual rules and practice of the court. (7) In addition, a record of the original evidence of the complainant 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]

(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. [page 326] COMMENTARY ON SECTION 306B

Written notice ….

[2-s 306B.5]

[2-s 306B.5] Written notice See cl 24 of the Criminal Procedure Regulation 2010 at [2-5215] concerning written notice to be given for the purpose of this section.

____________________

[2-s 306C] Complainant not compellable to give further evidence 306C If a record of the original evidence of the complainant (or any part of the record) is admitted in proceedings under this Division, the complainant 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]

[2-s 306D] evidence

Complainant may elect to give further

306D (1) If a record of the original evidence of the complainant (or any part of the record) is admitted in proceedings under this Division, the complainant may, with leave of the court hearing the proceedings, and only if the complainant so chooses, give further oral evidence in the proceedings. (2) The court is to give leave to the complainant 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 to give further oral evidence: (a) to clarify any matters relating to the original evidence of the complainant, or (b) to canvas information or material that has become available since the original proceedings, or (c) in the interests of justice. (3) The court is to ensure that the complainant 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. (4) Subject to subsection (3), if a complainant gives any further oral evidence under this section, the complainant is compellable (for the prosecution or the accused person) to give evidence. This applies despite section 306C. 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 is to be tendered 306E (1) A record of the original evidence of the complainant tendered by the prosecutor under this Division must be the best available record, or be comprised of the [page 327] best available records, of the original evidence of the complainant, and the record or records concerned must be properly authenticated. (2) For the purposes of this section, the best available record of the evidence, or any part of the evidence, given by a complainant 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. (3) If the whole or part of the evidence given by the complainant 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]

(4) A record of any evidence given by a complainant 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.

[2-s 306F] recording

Access to audio visual or audio

306F (1) If a record of the original evidence of the complainant 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]

(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 25 of the Criminal Procedure Regulation 2010 at [2-5220] concerning access to a recording.

____________________ [page 328]

[2-s 306G]

Exhibits may also be tendered

306G (1) If a record of the original evidence of a complainant 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 and

admitted in the original proceedings are also admissible in the new trial proceedings as if the original evidence of the complainant had been given orally before the court hearing the new trial proceedings in accordance with the usual rules and practice of the court. (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 has the meaning given by section 306I.

[2-s 306I] Admission of evidence of complainant 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. (2) For the purposes of this Division, the original evidence of the

complainant means all evidence given by the complainant in the discontinued trial (referred to in this Division as the original proceedings), including the evidence given by the complainant on examination in chief in the original proceedings and any further evidence given on cross-examination or re-examination in those proceedings. (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 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 [page 329] (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. (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 under this Division 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. (5) Despite subsection (3), the court hearing the new trial proceedings may decline to admit a record of the original evidence of the complainant 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 has been cross-examined on the evidence, (b) the effect of editing any inadmissible evidence from the original evidence,

(6)

(7)

(8)

(9)

(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. 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 new trial proceedings in accordance with the usual rules and practice of the court. In addition, a record of the original evidence of the complainant may be altered or edited in accordance with an agreement between the prosecutor and the accused person or his or her counsel (if any). 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. 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. COMMENTARY ON SECTION 306I

Written notice …. Scope of the section ….

[2-s 306I.5] [2-s 306I.10]

[2-s 306I.5] Written notice See cl 24 of the Criminal Procedure Regulation 2010 at [2-5215] concerning written notice to be given for the purpose of the section. [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].

____________________

[page 330]

[2-s 306J] Whether complainant compellable to give further evidence 306J(1) If a record of the original evidence of the complainant (or any part of the record) is admitted in proceedings under this Division, the complainant is not compellable to give further evidence in the 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 canvas information or material that has become available since the original proceedings, or (c) in the interests of justice. (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 is questioned by any party to the proceedings only in relation to matters that are relevant to the matters mentioned in subsection (1). (4) Subject to subsection (3), if a complainant gives any further oral evidence under this section, the complainant is compellable (for the prosecution or the accused person) to give evidence.

[2-s 306K] evidence

Complainant may elect to give further

306K(1) If a record of the original evidence of the complainant (or any part of the record) is admitted in proceedings under this Division, the complainant may, with leave of the court hearing the proceedings, and only if the complainant so chooses, give further oral evidence in the proceedings. (2) The court is to give leave to the complainant 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 to give further oral evidence: (a) to clarify any matters relating to the original evidence of the complainant, or (b) to canvas information or material that has become available since the original proceedings, or (c) in the interests of justice. (3) The court is to ensure that the complainant 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. (4) Subject to subsection (3), if a complainant gives any further oral evidence under this section, the complainant is compellable (for the prosecution or the accused person) to give evidence.

[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. [page 331]

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 investigation caused to be made by the Director-General of the Department of Community Services under section 27 of the Children and Young Persons (Care and Protection) Act 1998, or (c) any other person prescribed by the regulations for the purposes of this definition. 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]

recording means: (a) an audio recording, or [page 332] (b) a video recording, or (c) a video recording accompanied by a separately contemporaneously recorded audio recording. vulnerable person means a child or a cognitively impaired person.

but

[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 ….

[2-s 306M.1] [2 s 306M.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. [page 333]

[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 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 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.

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. [page 334] (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.

(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”; [page 335] (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.

____________________

[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. [page 336] (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].

____________________

[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 Clauses 17–19 of the Criminal Procedure Regulation 2010 at [2-5155]–[25165] provide for notice for the purposes of s 306V(2) of the Act.

____________________

[2-s 306W] evidence

Alternative arrangements for giving

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 [page 337] 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 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, [page 338] (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]

[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. [page 339] (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 closedcircuit television facilities or any other similar technology prescribed for the purposes of this section despite Part 1B of that Act. (5) A vulnerable person may choose not to give evidence by means of closed-circuit television facilities or other similar technology.

[2-s 306ZD] television

Giving evidence by closed-circuit

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. [page 340] (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.

____________________

[2-s 306ZF] Proceedings may be moved to allow use of closed-circuit television facilities 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. [page 341] (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.

[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 [page 342] 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.

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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 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 supportive 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

may be with the vulnerable person as an interpreter, for the purpose (b) 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. (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. [page 343] (6) This section extends to a vulnerable person who is the accused or the defendant in the relevant proceeding. Note. This section does not apply if a child or cognitively impaired person giving evidence is a complainant in proceedings for a prescribed sexual offence. In that case, section 294C sets out the entitlements of the child or cognitively impaired person to have one or more support persons present when giving evidence. [s 306ZK am Act 74 of 2008 s 4 and Sch 2, opn 1 Dec 2008]

[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] affected

General discretion of court not

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.

[page 344]

[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 closedcircuit 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 4 (cl 16–19) of the Criminal Procedure Regulation 2010 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.

[page 345]

CHAPTER 7 — MISCELLANEOUS [Heading insrt Act 119 of 2001 s 3 and Sch 1[132], opn 7 July 2003]

PART 1 — GENERAL [Heading insrt Act 119 of 2001 s 3 and Sch 1[132], opn 7 July 2003]

[2-s 307] persons

No court fees to be taken from accused

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] COMMENTARY ON SECTION 308

Witness failing to attend trial ….

[2-s 308.1] [page 346]

[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]

[2-s 309.0] Law Part Code 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. (8) The certificate is not admissible in any criminal proceedings in relation to the offence. [page 347] (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] COMMENTARY ON SECTION 311

Law Part Code ….

[2-s 311.0] [page 348]

[2-s 311.0] Law Part Code 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, the President or a judicial member of the Industrial Relations Commission 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]

COMMENTARY ON SECTION 312

Law Part Code ….

[2-s 312.0]

[2-s 312.0] Law Part Code The Law Part Code for s 312(1)(a) is 51577.

____________________

[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]

[page 349] (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 …. Access to exhibits during or following a jury trial ….

[2-s 314.0] [2-s 314.5] [2-s 314.10] [2-s 314.15]

[2-s 314.0] Law Part Code The Law Part Code for s 314(1) is 51578. [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 [29860] 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. [page 350] [2-s 314.15] Access to exhibits during or following a jury trial For factors relevant where the media seeks access to exhibits during or after a jury trial, see R v Sam (No 5) [2009] NSWSC 543; BC200905451; R v Sam (No 16) (2009) 196 A Crim R 138; [2009] NSWSC 544; BC200905449; R v Abdallah (No 3) [2015] NSWSC 121; BC201500937 and R v Brewer (No 1) [2015] NSWSC 1471;

BC201509713.

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[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]

[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.

[page 351]

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 police officer means: (a) a Local Area Commander of Police, or (b) a Duty Officer for a police station, or (c) any other police officer of the rank of Inspector or above. (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 cl 106 Criminal Procedure Regulation 2010 at [2-5895] and Sch 3 to the Regulation 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]

[2-s 335] children

Penalty notices may not be issued to

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. [page 352]

(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 cl 106 of the Criminal Procedure Regulation 2010 at [2-5895] and Sch 3 to the Regulation 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 3 of the Criminal Procedure Regulation 2010 at [2-6000]: cl 106(2), Criminal Procedure Regulation at [2-5895].

____________________

[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. (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]

[page 353]

[2-s 339] powers

Limitation on exercise of penalty notice

339 This Part does not authorise a police officer to serve a penalty notice in relation to: (a) an industrial dispute, or (b) an apparently genuine demonstration or protest, or (c) a procession, or (d) 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: (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): [page 354] (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] powers

Effect of Part on other procedures and

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 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). [page 355] (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

if printed by authority of the Clerk, is for all purposes taken to be a (c) 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 (1) The Ombudsman is to review the operation of the provisions of: (a) this Part, and (b) the regulations made under this Part, and (c) 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). (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. [page 356]

(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] 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) participation in an intervention program (and compliance with any plan arising out of the program) may be made a condition of a good behaviour bond under section 9 or 10 of the Crimes (Sentencing Procedure) Act 1999, or of a suspended sentence under section 12 of that Act, (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 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 [page 357] (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,

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, (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, (e)

[page 358] (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 28 of the Criminal Procedure Regulation 2010 at [2-5265] declares the circle sentencing intervention program to be an intervention program for the purposes of the Act and Pt 6 (cl 28–54) of the Regulation at [2-5265] and following makes detailed provision concerning that program. Clause 55 of the Criminal Procedure Regulation 2010 at [2-5485] declares the forum sentencing intervention program to be an intervention program for the purposes of the Act and Pt 7 (cl 55–87) of the Regulation at [2-5485] and following makes detailed provision concerning that program. Clause 88 of the Criminal Procedure Regulation 2010 at [2-5735] declares the traffic offender intervention program to be an intervention program for the purposes of the Act and Pt 8 (cl 88–100) 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): [page 359] (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 (Malicious wounding or infliction of grievous bodily harm) or 35A(1) (Maliciously cause dog to inflict grievous bodily harm) of the Crimes Act 1900, (b) an offence under Division 10 (Offences in the nature of rape, offences relating to other acts of sexual assault etc) 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] COMMENTARY ON SECTION 348

Excluded offences ….

[2-s 348.1]

[2-s 348.1] Excluded offences An offence that is a domestic violence offence within the meaning of the Crimes Act 1900 is prescribed for the purposes of s 348(2)(g) in relation to the forum sentencing intervention program: cl 55(2) of the Criminal Procedure Regulation 2010 at [2-5485].

____________________

[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. [page 360]

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 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. [page 361] (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]

[2-s 351.0] Law Part Code The Law Part Code for s 351(4) is 51969.

____________________

[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.

[page 362]

[2-Sch 1]

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(1), 39, 41, 41A, 43, 43A, 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), 61M, 61O(2) or (2A), 66EB, 78Q, 80, 81A, 81B, 81C, 82, 83, 84, 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 or 93 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]

[page 363]

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 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, 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]

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]

Entering with intent to commit serious indictable offence, or commit serious indictable offence, in dwelling-house and breaking out 6 An offence under section 109(1) of the Crimes Act 1900 where: (a) the serious indictable offence intended is stealing or maliciously destroying or damaging property, or (b) the serious indictable offence alleged is stealing or maliciously 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]

Entering dwelling-house in the night or breaking and entering any house or other building 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 maliciously 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]

[page 364] Breaking and entering into, or being in, any house or other building 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 maliciously 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]

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]

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]

[page 365] 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]

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]

[page 366] (2) Other public justice offences An offence under section 314, 315, 315A, 316, 317, 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]

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]

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 [page 367] 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]

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. 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]

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]

Police Powers (Drug Premises) Act 2001 23A 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]

Property, Stock and Business Agents Act 2002 23AAA 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 [page 368] $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]

Royal Commissions Act 1923 23AA 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]

Special Commissions of Inquiry Act 1983 23AB 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]

Sydney Opera House Trust Act 1961 23B 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]

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]

Legal Profession Uniform Law (NSW) 25 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]

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]

[page 369] 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]

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. 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)–(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]

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 2008 Sch 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. [page 370]

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]

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, 61L, 61N or 61O(1) or (1A) 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]

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 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, 193C, 195, 249B, 249D or 249E of the Crimes Act 1900, [page 371] (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]

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]

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]

[page 372]

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]

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, 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]

Weapons Prohibition Act 1998 8 An offence under section 7, 20, 23(1), 23A(1), 25A(1), 25B(1), 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]

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]

[page 373] 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 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]

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]

[page 374] 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. [page 375] 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]

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]

[2-s Sch1.0] Law Part Code The Law Part Code for the schedule is 54580.

____________________

[page 376]

[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 Criminal Procedure Amendment (Summary Proceedings Case Management) Act 2012 [page 377] Courts and Crimes Legislation Amendment Act 2012 Crimes Legislation Amendment Act 2012 Criminal Procedure Amendment (Court Costs Levy) Act 2013

Criminal Procedure Amendment Disclosure) Act 2013 any other Act that amends this Act.

(Mandatory

Pre-trial

Defence

[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 Sch 1[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 [page 378] 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.

[page 379] 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 [page 380] 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. [page 381] Application of section 63A (Amendment of indictment) 24 Section 63A applies to indictments presented commencement of that section.

after

the

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. [page 382] 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 [page 383] 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:

[page 384] (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 justices in petty sessions

New expression Local Court

summary proceedings before justices Act regulating summary proceedings before justices

clerk of courts of petty sessions or clerk of petty sessions clerk 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 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)

summary proceedings before a Local Court 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 registrar of a Local Court registrar of a Local Court issuing and filing a court attendance notice issuing and filing a court attendance notice

[page 385] 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

New expression issuing and filing an application notice

issuing and filing a court attendance notice arrest warrant

transcript of evidence

Local Court 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. (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 [page 386] 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. [page 387]

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). [page 388] (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]

[page 389]

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. [page 390] (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. (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. [page 391] 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. [page 392]

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.

[page 393] (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. [page 394] 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

whether they have been effective in promoting the efficient (b) 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 in the proceedings. 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) commenced by a court attendance notice filed or indictment presented: [page 395] (a) on or after the commencement of this Part, or (b) before the commencement of this Part but only if the matter has not been listed for trial before that commencement. (2) This Part applies at any stage of such a proceeding, including an appeal or rehearing.

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 evidence is given must be given at a hearing under clause 85 (a prerecorded evidence hearing) in accordance with that clause. (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 order is made, be given at a pre-recorded evidence hearing in accordance with clause 85. (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 who was a child when an order was made under this clause is entitled to continue to give evidence in accordance with the order even if the person becomes an adult before the conclusion of the proceeding concerned. 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 pretrial 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).

[page 396] (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. (4) The further evidence is, so far as practicable, to be given by prerecording 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 and explain: (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, [page 397] and to explain such questions or answers so far as necessary to enable them to be understood by the witness or person in question. (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 or Occupational Therapy or such other qualifications, training, experience or

skills as may be prescribed by the regulations (or both). (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 (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. [page 398] (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, (b) the rights of the accused person under those Parts, (c) any powers of the Court under those Parts. 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. [page 399] 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.

____________________

[page 400]

[2-Sch 3]

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 [page 401] (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.

[page 402]

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, 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. [page 403] (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. [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.

[page 404]

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.

Indecent assault 14 In an indictment for an indecent assault, it is sufficient to state that the accused person (at a specified time and place) committed an indecent assault on the person alleged to have been assaulted, without stating the mode of assault. [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] 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.

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, [page 405] (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.

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 [page 406] (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. COMMENTARY ON CLAUSE 21

Conspiracy …. Proceedings for conspiracy charges …. Admissibility of declarations of co-conspirators …. Conspiracy to cheat and defraud ….

[2-cl 21.1] [2-cl 21.5] [2-cl 21.10] [2-cl 21.15] [page 407]

Sentence for conspiracy ….

[2-cl 21.20]

[2-cl 21.1] Conspiracy As to the substantive law of conspiracy see under Criminal Responsibility at [6200] 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 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 [page 408] 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 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).

____________________

[page 409] 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 Act 1900.

[page 411]

Criminal Procedure Regulation 2010 TABLE OF PROVISIONS Regulation

1 2 3

4 5 6 7 8 9

9A 9B

10 11 12

Title

PART 1 — PRELIMINARY Name of Regulation …. Commencement …. Definitions …. PART 2 — LISTING OF CRIMINAL PROCEEDINGS Information for Criminal Listing Director …. Notice of appearance …. Transcript …. Notice of readiness …. Application to stay indictment …. Notice of listing …. PART 2A — COURT COSTS LEVY Court costs levy …. Exemption from liability to pay levy …. PART 3 — FEES Amounts payable in relation to court proceedings …. Amounts payable in relation to Sheriff’s functions …. Persons by and to whom fees are payable ….

Paragraph

[2-5000] [2-5005] [2-5010]

[2-5040] [2-5045] [2-5050] [2-5055] [2-5060] [2-5065]

[2-5070] [2-5075]

[2-5095] [2-5100]

13 14

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 ….

15 15A

16 17 18 19

[2-5105] [2-5110] [2-5115] [2-5120]

[2-5125]

PART 4 — RECORDED INTERVIEWS WITH VULNERABLE PERSONS Definitions …. [2-5150] Prosecuting authority notice …. [2-5155] Defence notice …. [2-5160] Recorded interview to be made available within 7 days …. [2-5165] [page 412]

Regulation

20 21 22 23 24

25

Title

PART 5 — EVIDENTIARY MATTERS Notice — evidence of substantial mental impairment …. Offences for which briefs of evidence not required …. Short briefs of evidence required in certain circumstances …. Evaluation of Local Court process reforms [Repealed] …. New trials of sexual assault proceedings — notice of intention to tender record of original evidence of complainant …. Access to record of original evidence of

Paragraph

[2-5195] [2-5200] [2-5205] [2-5210]

[2-5215]

26 27 27A

complainant …. Compellability of spouses …. Depositions by persons dangerously ill …. Authorised classifiers ….

[2-5220] [2-5225] [2-5230] [2-5235]

PART 6 — CIRCLE SENTENCING INTERVENTION PROGRAM

28 29 30 31

DIVISION 1 — PRELIMINARY Program declared to be intervention program …. Definitions …. Application …. Summary of process for participation in program ….

[2-5265] [2-5270] [2-5275] [2-5280]

DIVISION 2 — ASSESSMENT OF SUITABILITY TO PARTICIPATE 32 Notification of suitability assessment order …. [2-5300] 33 Meeting of Aboriginal Community Justice Group …. [2-5305] 34 Role of Aboriginal Community Justice Group …. [2-5310]

35 36 37 38 39 40 41 42

DIVISION 3 — THE CIRCLE SENTENCING INTERVENTION PROGRAM Objectives of the program …. [2-5330] Eligibility to participate in program …. [2-5335] Measures that constitute the circle sentencing program …. [2-5340] Convening of circle sentencing group …. [2-5345] Constitution of circle sentencing group …. [2-5350] Functions of circle sentencing groups …. [2-5355] Exclusions of persons from circle sentencing groups …. [2-5360] Termination of circle sentencing group meeting …. [2-5365]

43

Victims to be heard ….

[2-5370]

44 45 46

Procedure generally …. Records of meetings …. Reconvening of the circle sentencing group ….

[2-5375] [2-5380] [2-5385]

DIVISION 4 — ABORIGINAL COMMUNITY JUSTICE GROUPS 47 Minister to establish Group for each declared place …. [2-5405] 48 Appointment of members of Groups …. [2-5410] [page 413] Regulation

49 50

51 52 53 54

Title

Paragraph

Functions of Groups …. Procedure ….

[2-5415] [2-5420]

DIVISION 5 — MISCELLANEOUS Project Officer (Circle Sentencing) …. Minister may issue guidelines …. Evidence of statements generally inadmissible …. Prohibition on disclosure of information ….

[2-5440] [2-5445] [2-5450] [2-5455]

PART 7 — FORUM SENTENCING INTERVENTION PROGRAM

55 56 57 58

DIVISION 1 — PRELIMINARY Program declared to be intervention program …. Definitions …. Application …. Summary of process for participation in program ….

[2-5485] [2-5490] [2-5495] [2-5500]

DIVISION 2 — MAKING ASSESSMENTS AND ENSURING VICTIM

59 60 60A 60B 60C

PARTICIPATION Notification of suitability assessment order …. Assessment of appropriateness of offender’s case …. Assessment of offender’s capacity and prospects for participation in program …. Victim details may be sought …. Victims must be contacted ….

[2-5520] [2-5525] [2-5530] [2-5535] [2-5540]

DIVISION 3 — THE FORUM SENTENCING PROGRAM

61 62 63 63A 64 65 65A

66 67 68 69 70

Subdivision 1 — Preliminary Objectives of the program …. Principles to guide the program …. Eligibility to participate in program …. Court to consider if victim wishes to participate in forum [Repealed] …. Measures that constitute the forum sentencing program …. Decision not to participate in program …. Victim withdraws consent to participate in conference or offender’s case otherwise becomes unsuitable for program …. Subdivision 2 — Conferences Notification of forum participation order …. Time limit for holding conferences …. Preparation for conferences …. Participants in conferences …. Exclusion of persons from attending conference ….

[2-5545] [2-5550] [2-5555] [2-5557] [2-5560] [2-5565]

[2-5567]

[2-5570] [2-5575] [2-5580] [2-5585] [2-5590] [page 414]

Regulation

71 72 73 74 75 76 77

78 79 80

81 82 83 84

85 86 87

Title

Conference may deal with more than one offender and offence …. Views of persons invited but not in attendance …. Facilitation of conferences to be in accordance with guidelines …. Representation at conferences …. Non-attendance at conferences …. Draft intervention plans …. Draft intervention plan to be reported to court …. Subdivision 3 — Intervention plans Referring back draft intervention plans …. Notification of approval or refusal …. Implementation of intervention plan ….

Paragraph

[2-5595] [2-5600] [2-5605] [2-5610] [2-5615] [2-5620] [2-5625]

[2-5630] [2-5635] [2-5640]

DIVISION 4 — FORUM FACILITATORS AND SENIOR FORUM FACILITATORS Forum facilitators …. [2-5660] Senior forum facilitators …. [2-5665] Remuneration of forum facilitators and senior forum facilitators …. [2-5670] Vacancy in office of forum facilitators and senior forum facilitators …. [2-5675] DIVISION 5 — MISCELLANEOUS Minister may issue guidelines …. Evidence of statements generally inadmissible …. Prohibition on disclosure of information ….

[2-5695] [2-5700] [2-5705]

PART 8 — TRAFFIC OFFENDER INTERVENTION PROGRAM DIVISION 1 — PRELIMINARY

88

Program declared to be intervention program …. Definitions …. Summary of process for participation in program ….

89 90

[2-5735] [2-5740] [2-5745]

DIVISION 2 — DETERMINING ELIGIBILITY TO PARTICIPATE IN PROGRAM 91 Eligibility to participate in program …. [2-5765]

92 93 94 95

DIVISION 3 — THE TRAFFIC OFFENDER INTERVENTION PROGRAM Objectives of the program …. [2-5785] Measures that constitute the program …. [2-5790] Reports to Local Court on compliance …. [2-5795] Approved traffic course provider to make records …. [2-5800]

96

DIVISION 4 — APPROVED TRAFFIC COURSES Secretary may approve courses for program ….

[2-5805] [page 415]

Regulation

97

98 99 100

Title

Approved traffic course to comply with guidelines …. DIVISION 5 — MISCELLANEOUS Minister may issue guidelines …. Evidence of statements generally inadmissible …. Prohibition on disclosure of information ….

Paragraph

[2-5810]

[2-5830] [2-5835] [2-5840]

PART 8A — CHILD SEXUAL OFFENCE EVIDENCE PILOT SCHEME

100A 100B 100C 100D

101 102

103 104 105 106 107 108

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 …. PART 9 — MISCELLANEOUS 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 …. Penalty notice offences …. Delegation of functions …. Savings …. SCHEDULE 1 — FORMS …. Form 1 — Notice of intention to adduce evidence of substantial mental impairment …. Form 2 — Reasons for excusing a spouse 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 ….

[2-5845] [2-5850] [2-5855] [2-5860]

[2-5870]

[2-5875] [2-5880] [2-5885] [2-5890] [2-5895] [2-5900] [2-5905] [2-5935]

[2-5940]

[2-5945] [2-5950]

[2-5955] [2-5960] [2-5980]

SCHEDULE 2A — NSW GOVERNMENT AGENCIES AND STATUTORY BODIES REQUIRED TO PAY COURT FEES …. SCHEDULE 3 — PENALTY NOTICE OFFENCES ….

[2-5990] [2-6000]

[page 417]

Criminal Procedure Regulation 2010 TABLE OF AMENDMENTS Criminal Procedure Regulation 2010 No 474, published on LW 27 August 2010, commenced 1 September 2010, as amended by: Amending Legislation

Notification

Criminal Procedure Amendment (Forum Sentencing Program) Regulation 2010 SI 660 Criminal Procedure Amendment (ECM Committal Proceedings) Regulation 2011 SI 52 Criminal Procedure Amendment (Briefs of Evidence) Regulation 2011 SI 308 Criminal Procedure Amendment (Fees) Regulation 2011 SI 379 Summary Offences Amendment (Intoxicated and Disorderly Conduct) Act 2011 No 28 Criminal Procedure

LW 3 December 2010

Date of Commencement 3 December 2010 (cl 2, LW 3 December 2010)

LW 11 February 2011

11 February 2011 (cl 2, LW 11 February 2011)

LW 30 June 2011

30 June 2011 (cl 2)

LW 29 July 2011

1 August 2011 (cl 2)

10 August 2011

Sch 2: 30 September 2011 (s 2 and SI 478 of 2011, LW 9 September 2011) 1 January 2012 (cl 2)

LW 16 December

Amendment (District Court Summary Jurisdiction Fees) Regulation 2011 SI 666 Criminal Procedure Amendment (Retrieval Fees) Regulation 2011 SI 667 Courts and Crimes Legislation Amendment Act 2012 No 11 Criminal Procedure Amendment (Fees) Regulation 2012 SI 258 Criminal Procedure Amendment (Local Court Criminal Process Reforms) Regulation 2012 SI 310 Road Transport Legislation (Repeal and Amendment) Act 2013 No 19 Criminal Procedure Amendment (Court Costs Levy) Regulation 2013 SI 194 Criminal Procedure Amendment (Fees and Court Costs Levy) Regulation 2013 SI 301

2011

LW 16 December 2011

1 January 2012 (cl 2)

21 March 2012

Sch 1.2: 21 March 2012 (s 2)

LW 22 June 2012

1 July 2012 (cl 2)

LW 29 June 2012

29 June 2012 (cl 2)

3 April 2013

LW 10 May 2013

1 July 2013 (s 2 and SI 329 of 2013, LW 28 June 2013) 13 May 2013 (cl 2)

LW 21 June 2013

1 July 2013 (cl 2)

[page 418] Amending Legislation

Notification

Criminal Procedure

LW 20 December

Date of Commencement 1 January 2014 (cl 2)

Amendment (Court Fees Payable by Government Agencies) Regulation 2013 SI 719 Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 No 2 Criminal Procedure Amendment (Forum Sentencing Intervention Program) Regulation 2014 SI 143 Crimes Amendment (Strangulation) Act 2014 No 23 Statute Law (Miscellaneous Provisions) Act 2014 No 33 Criminal Procedure Amendment (Fees) Regulation 2014 SI 414 Water NSW Act 2014 No 74

2013

31 January 2014

LW 28 March 2014

Sch 5: 31 March 2014 (s 2(2) and SI 141 of 2014, LW 28 March 2014) 31 March 2014 (cl 2)

5 June 2014

5 June 2014 (s 2)

24 June 2014

Sch 2.11: 4 July 2014 (s 2(1))

LW 4 July 2014

4 July 2014 (cl 2)

11 November 2014

1 January 2015 (s 2 and SI 839 of 2014, LW 19 December 2014) 1 August 2015 (cl 2)

Criminal Procedure Amendment (Fees) Regulation 2015 SI 386 Occupational Licensing National Law Repeal Act 2015 No 49

LW 17 July 2015

Criminal Procedure Amendment (Children’s

LW 26 February 2016

5 November 2015

11 May 2016 (s 2 and Victoria Government Gazette No S 139 of 10 May 2016) 26 February 2016 (cl 2)

Champions) Regulation 2016 SI 96 Criminal Procedure Amendment (Fees) Regulation 2016 SI 398

LW 1 July 2016

1 July 2016 (cl 2)

[page 419]

PART 1 — PRELIMINARY [2-5000]

Name of Regulation

1 This Regulation is the Criminal Procedure Regulation 2010.

[2-5005]

Commencement

2 This Regulation commences on 1 September 2010 and is required to be published on the NSW legislation website. Note. This Regulation replaces the Criminal Procedure Regulation 2005, which is repealed on 1 September 2010 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. [def insrt SI 143 of 2014 Sch 1[1], opn 31 Mar 2014]

Criminal Listing Director has the same meaning that it has in Part 3 of Chapter 3 of the Act. Director-General [def rep SI 143 of 2014 Sch 1[1], opn 31 Mar 2014]

good behaviour bond means a good behaviour bond under the Crimes (Sentencing Procedure) Act 1999. [def insrt SI 143 of 2014 Sch 1[1], opn 31 Mar 2014]

Secretary means the Secretary of the Department of Attorney General and Justice. [def insrt SI 143 of 2014 Sch 1[1], opn 31 Mar 2014]

the Act means the Criminal Procedure Act 1986. (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] Director

Information for Criminal Listing

4 (1) The Criminal Listing Director may direct any of the following persons to give to the Director such information to assist the Director in making arrangements for the listing of criminal proceedings as 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. [page 420] (2) A person to whom such a direction is given must comply with the direction without delay. (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 (being a person who is under 21 years of age) who is in custody for the offence the subject of the proceedings, or [page 421] (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) As soon as practicable after determining that criminal proceedings are ready to proceed on the part of the Crown, the Director of Public Prosecutions must give to 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) As soon as practicable after receiving the notice, the Criminal Listing Director: (a) must give a copy of the notice, and of the draft indictment which accompanies the notice, to the registrar of the relevant court, and (b) must give a copy of the draft indictment to each accused person or the accused person’s Australian legal practitioner. (4) 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, the Director of Public Prosecutions must give to 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) As soon as practicable after receiving a draft indictment under subclause (4), the Criminal Listing Director must 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) As soon as practicable after fixing a date for the hearing or mention of any criminal proceedings, the Criminal Listing Director must give notice of the listing to the registrar of the relevant court. [page 422] (2) As soon as practicable after receiving notice of the listing, the registrar

must 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 — COURT COSTS LEVY [Pt 2A insrt SI 194 of 2013 cl 3, opn 13 May 2013]

[2-5070]

Court costs levy

9A For the purposes of section 211A(1) of the Act, the amount of the court costs levy is $85. [cl 9A am SI 301 of 2013 Sch 1[1], opn 1 July 2013]

[2-5075]

Exemption from liability to pay levy

9B 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 211(8) of the Criminal Procedure Act 1986).

PART 3 — FEES [2-5095] Amounts payable in relation to court proceedings 10 (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. [subcl (2) insrt SI 52 of 2011 cl 3, opn 11 Feb 2011]

[2-5100] Amounts payable in relation to Sheriff’s functions 11 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.

[2-5105]

Persons by and to whom fees are payable

12 (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 any such fee. [page 423]

[2-5110]

When fees become due

13 (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.

[2-5115] General power to waive, postpone and remit fees 14 (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 such conditions (if any) as 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 such conditions (if any) as the Sheriff thinks fit to impose. (3) The powers conferred by this clause are to be exercised in accordance with such guidelines as may from time to time be published by the Attorney General.

[2-5120] persons

Postponement of fees for legally assisted

15 (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 centre within the meaning of the Legal Profession Act 2004.

[2-5125] Court fees payable by certain NSW Government agencies or statutory bodies representing the Crown 15A For the purposes of section 4A(2A) of the Act, the NSW Government agencies and statutory bodies representing the Crown set out in Schedule 2A are prescribed. [cl 15A insrt SI 719 of 2013 Sch 1[1], opn 1 Jan 2014]

PART 4 — RECORDED INTERVIEWS WITH VULNERABLE PERSONS [2-5150]

Definitions

16 In this Part: defence notice means a notice given by an accused person or his or her Australian legal practitioner under clause 18. 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. [page 424] prosecuting authority notice means a notice given by a prosecuting authority under clause 17. 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. responsible person means a person named in a prosecuting authority notice as referred to in clause 17(2)(d). vulnerable person has the same meaning as it has in Part 6 of Chapter 6 of the Act.

[2-5155]

Prosecuting authority notice

17 (1) For the purposes of section 306V(2) of the Act, if a prosecuting authority intends to adduce evidence of a previous representation by a vulnerable person wholly or partly by means of a recorded interview or a transcript of a recorded interview in a criminal proceeding where the vulnerable person who made the representation is not the accused person, 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 such 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 defendant 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.

[2-5160]

Defence notice

18 (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 [page 425]

be given to the responsible person at least 7 days before the (d) evidence for the prosecution is given in the proceeding, unless the court gives leave for the notice to be given at a later time.

[2-5165] Recorded interview to be made available within 7 days 19 (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 recorded interview within 7 days (or such shorter period of time as the court directs) 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 5 — EVIDENTIARY MATTERS [2-5195] Notice — evidence of substantial mental impairment 20 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.

[2-5200] required

Offences for which briefs of evidence not

21 (1) 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

(b) (c)

(d) (e) (f) (g)

issued (other than an offence that is set out in Schedule 3 and that is not referred to below), proceedings for an offence under section 4 of the Summary Offences Act 1988, 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 (5)(b)(i), (ii) section 110 or 112, proceedings for a summary offence for which there is a monetary penalty only, [repealed] proceedings for an offence under section 10 of the Drug Misuse and Trafficking Act 1985, proceedings for an offence under section 16(1) of the Poisons and Therapeutic Goods Act 1966.

[subcl (1) am Act 19 of 2013 Sch 4 item 4.14[1], [2], opn 1 July 2013]

(2) Subclause (1) has effect in relation to proceedings referred to in subclause (1)(b), (c) or (d) only if the proceedings are commenced on or after 14 November 2007. [subcl (2) am SI 308 of 2011 cl 3, opn 30 June 2011; SI 310 of 2012 cl 3, opn 29 June 2012]

(3) Subclause (1) has effect in relation to proceedings referred to in subclause (1)(e), (f) or (g) only if the proceedings are commenced on or after 1 February 2010. [subcl (3) am SI 308 of 2011 cl 3, opn 30 June 2011; SI 310 of 2012 cl 3, opn 29 June 2012]

[page 426]

[2-5205] Short briefs of evidence required in certain circumstances 22 (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 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 so long as 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 such 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 such an order. [page 427] (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. (7) This clause has effect in respect of proceedings only if the accused person in the proceedings was charged with the offence to which the proceedings relate on or after 12 November 2007. [subcl (7) am SI 308 of 2011 cl 3, opn 30 June 2011; SI 310 of 2012 cl 3, opn 29 June 2012]

[2-5210] reforms

Evaluation of Local Court process

23 [cl 23 rep SI 310 of 2012 cl 3, opn 29 June 2012]

[2-5215] New trials of sexual assault proceedings — notice of intention to tender record of original

evidence of complainant 24 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 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.

[2-5220] Access to record of original evidence of complainant 25 (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 24(b) by the prosecutor as the person responsible for arranging access to the recording. [page 428]

[2-5225]

Compellability of spouses

26 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.

[2-5230]

Depositions by persons dangerously ill

27 For the purposes of section 284(2) of the Act, Form 3 is the prescribed form in which a deposition must be taken.

[2-5235]

Authorised classifiers

27A 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. [cl 27A insrt Act 11 of 2012 Sch 1.2, opn 21 Mar 2012]

PART 6 — CIRCLE SENTENCING INTERVENTION PROGRAM DIVISION 1 — PRELIMINARY [2-5265] Program declared to be intervention program 28 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.

[2-5270]

Definitions

29 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 52. 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. [page 429] 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. Project Officer for a declared place means the Project Officer (Circle Sentencing) for the place referred to in clause 51(1).

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 Act 1996.

[2-5275]

Application

30 (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 any place declared by the Minister to be a place for the program. (3) Each place at which sittings of a participating court could be held immediately before the commencement of the Miscellaneous Acts (Local Court) Amendment Act 2007 is taken to be a declared place. (4) Any declaration made, or taken to have been made, under this clause may be amended or revoked from time to time.

[2-5280] Summary of process for participation in program 31 (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) Project Officer convenes meeting of Aboriginal Community Justice Group The Project 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. (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. (d) Court determines whether program participation order should be made If the Aboriginal Community Justice Group assesses an offender as not being suitable for participation, the offender will not be eligible to participate in the program. However, if the Group assesses the offender to be suitable, the participating court may then make a program participation order if it is satisfied [page 430] 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) Project Officer convenes a circle sentencing group The Project 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 Magistrate who refers the offender 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. Any such sentence will be pronounced in open court. (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 [2-5300] order

Notification of suitability assessment

32 If a participating court sitting at a declared place makes a suitability assessment order in respect of a referred offender, it must notify the Project Officer for the declared place of the order.

[2-5305] Meeting of Aboriginal Community Justice Group 33 (1) The Project 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 Project Officer.

[2-5310] Group

Role of Aboriginal Community Justice

34 (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 any such 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, [page 431] (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 such further period as the court may allow) after the Group has been convened.

DIVISION 3 — THE CIRCLE SENTENCING INTERVENTION PROGRAM [2-5330]

Objectives of the program

35 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.

[2-5335]

Eligibility to participate in program

36 (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, 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. [subcl (2) am SI 143 of 2014 Sch 1[2], [3], opn 31 Mar 2014]

[2-5340] Measures that constitute the circle sentencing program 37 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 [page 432] intervention program by making a program participation order and the offender enters into an agreement to participate in the program. (b) Constitution of circle sentencing group The Project 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.

[2-5345]

Convening of circle sentencing group

38 (1) A participating court that makes a program participation order in respect of a referred offender must notify the Project Officer for the declared place of the order. (2) The Project 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.

[2-5350]

Constitution of circle sentencing group

39 (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 Project Officer, (f) at least 3 Aboriginal persons (but no more than the maximum number of persons specified in the guidelines) chosen by the Project Officer, being persons who the Project 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 Project 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 any such 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 Project Officer, but only with the consent of the offender and, if a victim is participating, the consent of the victim. [page 433] (3) A member of a circle sentencing group may object to the participation in the group of a person chosen by the Project Officer for the purposes of subclause (1)(f) or (2)(d). The presiding Magistrate is to determine any such objection. (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.

[2-5355]

Functions of circle sentencing groups

40 (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) such other functions as 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 re-integration of the offender into the community, (f) such other matters as the group considers would promote the treatment or rehabilitation of the offender.

[2-5360] Exclusions of persons from circle sentencing groups 41 (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 Project Officer is to convene a new circle sentencing group for the offender excluding any such 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. [page 434]

[2-5365] meeting

Termination of circle sentencing group

42 (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 Project Officer to convene a new circle sentencing group or the Magistrate may return the matter to the participating court.

[2-5370]

Victims to be heard

43 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.

[2-5375]

Procedure generally

44 (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 41). (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.

[2-5380]

Records of meetings

45 (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 Project 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.

[2-5385] group

Reconvening of the circle sentencing

46 (1) The Project Officer may, in consultation with the presiding Magistrate, reconvene a circle sentencing group after it has determined an intervention plan or recommended an appropriate sentence (or both) for a referred offender for the purpose of reconsidering any matter it had

previously determined or recommended. [page 435] (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 [2-5405] Minister to establish Group for each declared place 47 The Minister is to establish an Aboriginal Community Justice Group for each declared place.

[2-5410]

Appointment of members of Groups

48 (1) The Minister may appoint such Aboriginal persons as 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 Project 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.

[2-5415]

Functions of Groups

49 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) such other functions as may be imposed or conferred on the Group by this Part or the guidelines.

[2-5420]

Procedure

50 (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. [page 436] (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 [2-5440]

Project Officer (Circle Sentencing)

51 (1) The Minister is to ensure that there is a Project Officer (Circle Sentencing) for each declared place. (2) The functions of a Project 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 any such 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) monitoring the compliance of an offender with his or her obligations under the program or an intervention plan arising out of the program and reporting any non-compliance to the participating court that referred the offender and to the circle sentencing group for the court, (e) such other functions as may be imposed or conferred on the Project Officer by this Division or the guidelines.

[2-5445]

Minister may issue guidelines

52 (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 such Aboriginal Community Justice Groups and circle sentencing groups and of members of such 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).

[2-5450] Evidence of statements generally inadmissible 53 (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 [page 437] (b) a meeting of an Aboriginal Community Justice Group held to assess a referred 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.

[2-5455]

Prohibition on disclosure of information

54 (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 39(1)(f) or (2)(b), (c) or (d).

PART 7 — FORUM SENTENCING INTERVENTION PROGRAM DIVISION 1 — PRELIMINARY [2-5485] Program declared to be intervention program 55 (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) Excluded offences The following offences are prescribed for the

purposes of section 348(2)(g) of the Act in relation to that intervention program: (a) a domestic violence offence within the meaning of the Crimes (Domestic and Personal Violence) Act 2007, but only in relation to an offence committed by an offender against another person with whom the offender has or has had an intimate domestic relationship, (b) an offence under section 60 or 93B of the Crimes Act 1900, (b1) an offence under section 10, 11, 11A, 11B, 11C, 12, 15, 16, 17, 18, 18A, 19 or 20 of the Drug Misuse and Trafficking Act 1985, [page 438] (c) 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), (ii) section 54(1), (3), (4) or (5), (iii) section 71, (iv) section 110(4), (v) clause 16(1)(b) or 18(1)(a) or (b) of Schedule 3, (c1) [repealed] (d) [repealed] (e) an offence under section 4, 11B or 11C of the Summary Offences Act 1988. [subcl (2) am SI 660 of 2010 Sch 1, opn 3 Dec 2010; Act 19 of 2013 Sch 4 item 4.14[3], opn 1 July 2013]

(3) For the purposes of this clause, a person has or has had an intimate domestic relationship with another person if the person: (a) is or has been married to the other person, or (b) is or has been a de facto partner of the other person, or Note. De facto partner is defined in section 21C of the Interpretation Act 1987.

(c) has or has had a relationship involving his or her dependence on the

ongoing paid or unpaid care of the other person, or (d) otherwise has or has had an intimate personal relationship with the other person, whether or not the intimate relationship involves or has involved a relationship of a sexual nature, but not if the person merely: (e) is living or has lived in the same household as the other person, or (f) is living or has lived as a long-term resident in the same residential facility as the other person (not being a facility that is a correctional centre within the meaning of the Crimes (Administration of Sentences) Act 1999 or a detention centre within the meaning of the Children (Detention Centres) Act 1987), or (g) is or has been a relative, within the meaning of section 6 of the Crimes (Domestic and Personal Violence) Act 2007, of the other person, or (h) in the case of an Aboriginal person or a Torres Strait Islander, is or has been part of the extended family or kin of the other person according to the Indigenous kinship system of the person’s culture.

[2-5490]

Definitions

56 In this Part: conference means a conference convened or proposed to be convened under Subdivision 2 of Division 3. [def insrt SI 143 of 2014 Sch 1[4], opn 31 Mar 2014]

draft intervention plan means a draft intervention plan prepared under clause 76. forum [def rep SI 143 of 2014 Sch 1[5], opn 31 Mar 2014]

forum facilitator means a person appointed as a forum facilitator under Division 4. forum participation order means: (a) a grant of bail that is subject to a condition referred to in section 36A(2)(b)(i) of the Bail Act 1978, or [page 439]

(b) an order referred to in section 11(1)(b2) of the Crimes (Sentencing Procedure) Act 1999, made in respect of an offender for the purpose of allowing the offender to participate in the program by attending a conference. [def am SI 143 of 2014 Sch 1[6], opn 31 Mar 2014]

guidelines means guidelines issued by the Minister under clause 85. intervention plan means an intervention plan arising out of the program that is the subject of an intervention plan order. intervention plan order means any of the following orders of a participating court for the purposes of allowing a person to participate in the program by completing an intervention plan: (a) a grant of bail that is subject to a condition referred to in section 36A(2)(b)(i) of the Bail Act 1978, (b) an order referred to in section 10(1)(c) or 11(1)(b2) of the Crimes (Sentencing Procedure) Act 1999, (c) an order providing for an offender to enter into a good behaviour bond that contains a condition referred to in section 95A(1) of the Crimes (Sentencing Procedure) Act 1999. offender means a person who 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. operations team employee for a declared place or a court means an employee of the Department of Attorney General and Justice whose role includes giving assistance in relation to the program for that declared place or court. [def insrt SI 143 of 2014 Sch 1[4], opn 31 Mar 2014]

participating court means the Local Court. program means the program of measures described in Division 3. program administrator [def insrt SI 143 of 2014 Sch 1[5], opn 31 Mar 2014]

program manager means an employee of the Department of Attorney General and Justice whose role includes managing the program. [def insrt SI 143 of 2014 Sch 1[4], opn 31 Mar 2014]

referred offender means an offender who is the subject of a forum

participation order or an intervention plan order. senior forum facilitator means a person appointed as a senior forum facilitator by the program manager under Division 4. [def insrt SI 143 of 2014 Sch 1[4], opn 31 Mar 2014]

suitability assessment order means: (a) a grant of bail that is subject to a condition referred to in section 36A(2)(a) of the Bail Act 1978, or (b) an order referred to in section 11(1)(b1) of the Crimes (Sentencing Procedure) Act 1999, 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. [page 440] victim has the same meaning as victim of crime has for the purposes of the Victims Rights Act 1996.

[2-5495]

Application

57 (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 any place declared by the Minister to be a place for the program. (3) Each place at which sittings of a participating court could be held immediately before the commencement of the Miscellaneous Acts (Local Court) Amendment Act 2007 is taken to be a declared place. (4) Any declaration made, or taken to have been made, under this clause may be amended or revoked from time to time.

[2-5500] Summary of process for participation in program 58 (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 and the offender enters into an agreement to be subjected to an assessment of the offender’s capacity and prospects for participation in the program. (b) Operations team employee ensures that assessment is carried out of the appropriateness of the program for the offender An operations team employee ensures that an assessment is carried out of the appropriateness of the offender’s case for being dealt with under the program. (c) Operations team employee ensures that assessment is carried out of offender’s suitability If the offender’s case has been assessed as appropriate for being dealt with under the program, an operations team employee ensures that an assessment is carried out of the offender’s capacity and prospects for participation in the program. (d) Victim participation is sought If the offender’s case has been assessed as appropriate for being dealt with under the program and the offender has been assessed as having the capacity and prospects for participation in the program, an operations team employee contacts any victim of the offender to ascertain whether the victim wishes to participate, or to have his or her nominated representative participate, in the conference. (e) Offender not eligible if offender’s case not appropriate, offender not suitable or no victim consents to participate The offender will not be eligible to participate in any program if: (i) the offender’s case has been assessed as not appropriate for being dealt with under the program, or (ii) the offender has been assessed as not being suitable for participation in the program, or (iii) no victim wishes to participate, or to have his or her nominated representative participate, in any conference. (f) Participating court determines whether forum participation order should be made However, if: (i) the offender’s case has been assessed as appropriate for being

dealt with under the program, and [page 441] (ii) the offender has been assessed as being suitable for participation in the program, and (iii) at least one victim wishes to participate, or to have his or her nominated representative participate, in a conference, the participating court may make a forum participation order if it is satisfied that the offender is otherwise eligible for participation in the program, having regard to the matters set out in clause 63. (g) Offender enters into agreement to participate The offender enters into an agreement to participate in the program. (h) Offender returned to court if offender becomes unsuitable or all victims withdraw consent to participate in conference The offender will be returned to the court for the court to deal with if: (i) the offender becomes unsuitable to participate in the program, or (ii) all victims who wished to participate, or to have their nominated representatives participate, in a conference withdraw their consent to participate, or (iii) the offender’s case otherwise becomes inappropriate for being dealt with under the program. (i) Conference held and draft intervention plan for offender prepared A conference is held. Participants are encouraged to agree to appropriate recommendations about the offender. A draft intervention plan is prepared that is based on any recommendations made, and agreed to, by participants in the conference. (j) Participating court considers draft intervention plan Any draft intervention plan arising from the conference is referred to the participating court together with a report on the conference that is prepared by an operations team employee. If the court approves the draft intervention plan, it makes an intervention plan order. (k) Offender to comply with intervention plan An offender who is

subject to any such order must comply with the intervention plan. An operations team employee for the declared place supervises the implementation and completion of the intervention plan. An operations team employee notifies the court as to whether the plan is satisfactorily completed. (l) Effect of failure to comply with intervention plan A failure to satisfactorily complete the intervention plan may result in the offender being returned to the 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. [cl 58 subst SI 143 of 2014 Sch 1[7], opn 31 Mar 2014]

DIVISION 2 — MAKING ASSESSMENTS AND ENSURING VICTIM PARTICIPATION [Div 2 subst SI 143 of 2014 Sch 1[8], opn 31 Mar 2014]

[2-5520] order

Notification of suitability assessment

59 A participating court that makes a suitability assessment order in respect of an offender must, within 7 days after making the order, notify an operations team employee for the declared place that it has done so. [page 442]

[2-5525] Assessment of appropriateness of offender’s case 60 (1) As soon as practicable after any operations team employee has been notified of the making of a suitability assessment order, an operations team employee must ensure that an assessment is carried out of the appropriateness of the offender’s case for being dealt with under the program.

(2) The assessment must be carried out in accordance with the guidelines. (3) If the offender’s case has been assessed as not being appropriate for being dealt with under the program, an operations team employee must report, in the form approved by the Minister, to the participating court that made the suitability assessment order at least 2 days before the date on which the court is due to continue the proceedings in respect of which the offender was referred.

[2-5530] Assessment of offender’s capacity and prospects for participation in program 60A (1) As soon as practicable after any operations team employee has been notified of the making of a suitability assessment order and an assessment has been made that the offender’s case is appropriate for being dealt with under the program, an operations team employee must ensure that an assessment is carried out of the offender’s capacity and prospects for participation in the program. (2) The assessment must be carried out in accordance with the guidelines. (3) An operations team employee must report, in the form approved by the minister, to the participating court that made the suitability assessment order at least 2 days before the date on which the court is due to continue the proceedings in respect of which the offender was referred.

[2-5535]

Victim details may be sought

60B (1) An operations team employee may request a relevant police officer or relevant prosecutor to provide the name, address and phone number of any victim of the offender. (2) The request may be made only if an operations team employee has made an assessment that the offender’s case is appropriate for being dealt with under the program and may be made for the purpose only of enabling compliance with clause 60C. (3) A relevant police officer or relevant prosecutor must provide an operations team employee with the information requested under this clause as soon as practicable and in any case no later than 72 hours after the request is made.

(4) In this clause: relevant police officer means: (a) any police officer responsible for investigating the offence to which the suitability assessment order relates, or (b) any senior police officer (within the meaning of section 332 of the Act) from that police officer’s command. relevant prosecutor means any police prosecutor responsible for the prosecution of the offence to which the suitability assessment order relates. [page 443]

[2-5540]

Victims must be contacted

60C (1) An operations team employee must contact any victim of the offender to ascertain whether the victim wishes to participate, or to have his or her nominated representative participate, in a conference and must record the victim’s response in the report to the court under clause 60A(3). (2) Such contact may be made only if: (a) an operations team employee has made an assessment that the offender’s case is appropriate for being dealt with under the program, and (b) an operations team employee has made an assessment that the offender is suitable for participation in the program.

DIVISION 3 — THE FORUM SENTENCING PROGRAM Subdivision 1 — Preliminary

[2-5545]

Objectives of the program

61 The objectives of the program are as follows:

to provide for the greater participation in the justice process of (a) offenders and victims and the families and support persons of offenders and victims, (b) to increase offenders’ awareness of the consequences of their offences for their victims and the community, (c) to promote the reintegration of offenders into the community, (d) to increase the satisfaction of victims with the justice process, (e) to increase the confidence of the community in the justice process, (f) to provide a participating court with an additional sentencing option, (g) to reduce re-offending.

[2-5550]

Principles to guide the program

62 The principles that are to guide the operation of the program, including persons exercising functions under the program, are as follows: (a) the program should enhance the rights and place of victims in the justice process and have due regard to their interests, (b) conferences should be conducted in a way that promotes the active participation and empowerment of referred offenders and their victims, and the families and support persons of those offenders and victims, in responding to and resolving crime, (c) conferences should be conducted in a way that respects and takes into account the rights, needs, capacities, gender, sexuality and cultural and linguistic diversity of all participants, including the Aboriginality of any participants and any disability that any participants have, (d) conferences should be conducted in a way that assists referred offenders to understand and take responsibility for the offences they have committed, (e) an intervention plan should recognise the harm done, as a consequence of the offending behaviour of the referred offender to whom the plan applies, to any victims of that offender and the community, (f) an intervention plan should take account of the rights, needs,

capacities, gender, sexuality, culture of, and language spoken by, the referred offender to whom the plan applies, including (if applicable) the Aboriginality of that offender, [page 444] (g) if a referred offender has a disability, an intervention plan that applies to that offender should take account of any needs arising from that disability, especially needs arising from any communication or cognitive difficulties that the offender has. [cl 62 am SI 143 of 2014 Sch 1[9], opn 31 Mar 2014]

[2-5555]

Eligibility to participate in program

63 (1) A person is eligible to be referred by a participating court to participate in a conference only if: (a) the person is an offender, and (b) 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 a conviction will be recorded and that the person will be required: (i) to serve a sentence of imprisonment, including a suspended sentence or a sentence the subject of an intensive correction order or a home detention order under the Crimes (Sentencing Procedure) Act 1999, or (ii) to perform community service work in accordance with a community service order, or (iii) to enter into a good behaviour bond, and (c) the offender’s case has been assessed as appropriate for being dealt with under the program in accordance with clause 60, and (d) the offender has been assessed as suitable for participation in the program in accordance with clause 60A, and (e) at least one victim of the offender has agreed to participate, or to

have his or her nominated representative participate, in a conference, and (f) the court considers that, if it refers the person to participate in the program, it is likely that the person will enter into an agreement to participate in the program. (2) A person is not eligible to be referred by a participating court to participate in a conference if, at the date on which the court proposes to make the referral, the person has been convicted of any of the following offences: (a) murder, (b) manslaughter, (c) a category 1 personal violence offence, (d) two or more category 2 personal violence offences (whether or not the same offence), (e) a relevant drug offence, (f) a serious firearms or weapons offence. (3) A reference in subclause (2) to a conviction for an offence does not include a reference to a conviction for: (a) the particular offence in respect of which a referral is proposed to be made, or (b) an offence committed by the person when the person was under 18 years of age, other than an offence that is a serious children’s indictable offence within the meaning of the Children (Criminal Proceedings) Act 1987. [page 445] (4) In this clause: category 1 personal violence offence means: (a) an offence under section 26, 27, 28, 29, 30, 31, 33, 61J, 61JA, 61K, 66A, 66B, 66C, 66EA, 66F, 73, 86, 96 or 98 of the Crimes Act 1900, or (b) an offence committed before the commencement of this Regulation under a law of New South Wales that constituted an

offence of a similar nature to an offence referred to in paragraph (a). category 2 personal violence offence means any of the following offences: (a) an offence under section 33A, 35(1) or (3), 37(1) or (2), 38, 39(1), 46, 47, 48, 61I, 61M, 80A, 87, 110, 195(1)(b), (1A)(b) and (2)(b), 196(1)(b) and (2)(b) or 198 of the Crimes Act 1900, (b) an offence under section 109, 111, 112, 113 or 249K of the Crimes Act 1900 if the circumstances of the offence involve an act of actual or threatened violence against a person, (c) an offence committed before the commencement of this Regulation under a law of New South Wales that constituted an offence of a similar nature to an offence referred to in paragraph (a) or (b). relevant drug offence means any of the following offences: (a) an offence under section 23(1), 24(1) or 25(1) or (1A) of the Drug Misuse and Trafficking Act 1985 (but only if the plant or drug concerned was found to be of a quantity that was at least twice the indictable quantity applicable under that Act at the date of the offence), (b) an offence under section 23(1A) or (2), 24(1A), (2) or (2A), 25(2), (2A), (2C) or (2D) or 25A of that Act, (c) an offence under section 26 of that Act of conspiring to commit an offence referred to in paragraph (a) or (b), (d) an offence under section 27 of that Act of aiding, abetting, counselling, procuring, soliciting or inciting the commission of an offence referred to in paragraph (a) or (b). serious firearms or weapons offence means any of the following offences: (a) an offence under section 93G, 93GA, 93H(2), 93I(2) or 154D of the Crimes Act 1900, (b) an offence under section 7, 36, 50, 50A(2), 51(1A) or (2A), 51A or 51D(2) of the Firearms Act 1996, being an offence that relates to a prohibited firearm or pistol, (c) an offence under section 51B or 51BB of the Firearms Act 1996.

[subcl (4) am Act 23 of 2014 Sch 2 item 2.2, opn 5 June 2014] [cl 63 subst SI 143 of 2014 Sch 1[10], opn 31 Mar 2014]

[2-5557] Court to consider if victim wishes to participate in forum 63A [cl 63A rep SI 143 of 2014 Sch 1[11], opn 31 Mar 2014]

[2-5560] Measures that constitute the forum sentencing program 64 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 conference by making a forum participation order and the offender enters into an agreement to participate in the program. [page 446] (b) Forum facilitator arranges conference A forum facilitator arranges a conference in respect of the offender. (c) Conference held and draft intervention plan prepared A conference is held with the aim of determining an appropriate draft intervention plan for the offender. Any draft intervention plan arising from the conference is referred to the participating court. (d) Offender completes intervention plan If the participating court makes an intervention plan order, the offender completes the intervention plan to which the order applies. [cl 64 subst SI 143 of 2014 Sch 1[12], opn 31 Mar 2014]

[2-5565]

Decision not to participate in program

65 (1) If a referred offender decides not to participate, or to continue to participate, in the program, the referred offender is to notify this decision to an operations team employee or forum facilitator for the declared place at

which the court that made the forum participation order or intervention plan order applying to that offender was sitting. (2) An operations team employee is to notify the court of the referred offender’s decision within 7 days after the referred offender gives notice under this clause. [cl 65 subst SI 143 of 2014 Sch 1[12], opn 31 Mar 2014]

[2-5567] Victim withdraws consent to participate in conference or offender’s case otherwise becomes unsuitable for program 65A (1) The program manager must as soon as practicable notify the court that made the forum participation order: (a) if, at anytime after the order was made and before any conference in respect of the referred offender is concluded, the program manager forms an opinion (with reference to the guidelines referred to in clauses 60(2) and 60A(2), as appropriate): (i) that the offender’s case is no longer appropriate for being dealt with under the program, or (ii) that the offender is no longer suitable to participate in the program, or (b) if, at any time before a conference is held, all the victims of the referred offender who wished to participate, or have their nominated representative participate, in a conference withdraw their consent to participate. (2) The program manager may delegate his or her functions under this clause (other than this power of delegation) to an operations team employee. [cl 65A subst SI 143 of 2014 Sch 1[12], opn 31 Mar 2014]

Subdivision 2 — Conferences [Subdiv 2 subst SI 143 of 2014 Sch 1[13], opn 31 Mar 2014]

[2-5570]

Notification of forum participation order

66 (1) A participating court that makes a forum participation order must,

within 7 days after making the order, notify an operations team employee for the declared place that it has done so. [page 447] (2) As soon as practicable after being notified under this clause, an operations team employee must allocate a forum facilitator to facilitate a conference in respect of the offender to whom the order applies.

[2-5575]

Time limit for holding conferences

67 A conference is to be held in respect of a referred offender: (a) if practicable, within 56 days after an operations team employee is notified by the participating court that it has made a forum participation order applying to that offender, or (b) as soon as practicable after those 56 days have elapsed.

[2-5580]

Preparation for conferences

68 (1) A forum facilitator must determine: (a) the date, time and location of any conference that the forum facilitator has been allocated to facilitate, and (b) the persons who are to be invited to participate in the conference. (2) The forum facilitator must, if practicable, before determining the matters referred to in subclause (1): (a) consult with: (i) an operations team employee for the court that made the forum participation order, and (ii) the referred offender concerned, and (iii) any victim of that offender, and (b) advise any such victim: (i) of the victim’s right to participate in the conference and to be accompanied by one or more support persons, and (ii) if the victim cannot, or elects not to, participate in the

conference — of the victim’s right to be represented by a person nominated by the victim and to have the victim’s views about the matter conveyed to conference participants, and (c) consider the specific needs and expressed views or wishes of the referred offender and of any such victim. (3) Before the conference is held, the forum facilitator must notify the referred offender of the following information: (a) the offence in respect of which the conference is to be held, (b) the date, time and location of the conference, (c) the name of the forum facilitator, (d) any requirements to be met by the referred offender, (e) the right of the referred offender to decide not to participate, or to continue to participate, in the program, the requirement for the referred offender to notify an operations team employee of any such decision and the consequences of any such decision, (f) the consequences of failure to participate in the conference, (g) the right of the referred offender to obtain legal advice and where that advice may be obtained, (h) the right of the referred offender to have a legal practitioner participate in the conference in an advisory, but not in a representative, capacity, [page 448] (i)

the right of the referred offender to have one or more support persons participate in the conference. (4) Before the conference is held, the forum facilitator must take all reasonable steps to notify any other persons who are entitled to participate, or who the forum facilitator determines are to be invited to participate, of the date, time and location of the conference. (5) Before the conference is held, the forum facilitator must take all reasonable steps to provide persons who are to participate in the conference with information available to the forum facilitator that, in the forum facilitator’s opinion, will assist the participants to formulate a draft

intervention plan. (6) Before the conference is held, the forum facilitator must ascertain, if practicable, the views about the matter of any persons who have been invited or are entitled to participate but have advised that they will not be participating.

[2-5585]

Participants in conferences

69 (1) The following persons are entitled to participate in a conference: (a) the referred offender in respect of whom the conference is to be held, (b) the forum facilitator, (c) any victim of the referred offender or a person nominated by any such victim as a representative of the victim, (d) a police officer responsible for investigating the offence in respect of which the conference is proposed to be held or a person chosen by the police officer as a representative of the police officer, (e) any persons chosen by the referred offender as support persons for the referred offender, (f) a legal practitioner advising the referred offender, (g) any persons chosen by any victim of the referred offender as support persons for any such victim. (2) The forum facilitator may, after consulting with the referred offender and any victim of that offender who proposes to participate in the conference, invite any of the following persons to participate in the conference: (a) a member of the referred offender’s family nominated by the referred offender, (b) if the referred offender is subject to a good behaviour bond that requires supervision, a community service order or parole — the referred offender’s supervising officer, (c) an interpreter, (d) any other person of a class specified by the guidelines. (3) The following persons may be invited to attend, but not participate in, a conference, with the consent of the referred offender and any victim of that offender:

(a) a senior forum facilitator, (b) an operations team employee for the court that made the forum participation order applying to the referred offender, (c) a person wishing to observe the conference for a research or educational purpose, including a police officer, a magistrate and a legal practitioner, (d) a person wishing to observe the conference for the purpose of monitoring or evaluating the program, (e) a member of the news media, (f) any other person of a class specified by the guidelines. [page 449]

[2-5590] Exclusion of persons from attending conference 70 If a forum facilitator forms the opinion that the presence of a person (other than a referred offender or any victim of that offender) may frustrate the purpose or conduct of a conference, the forum facilitator may exclude that person from attending, or continuing to attend, the conference.

[2-5595] Conference may deal with more than one offender and offence 71 A conference may be held in respect of more than one offender and more than one offence.

[2-5600] Views of persons invited but not in attendance 72 A forum facilitator must, at or before a conference, ensure that the participants are informed of the views of any person who is entitled or invited to attend, but is unable or declines to do so, if the forum facilitator is informed of those views.

[2-5605] Facilitation of conferences to be in accordance with guidelines 73 A forum facilitator is to facilitate a conference in accordance with any guidelines on the facilitation of conferences.

[2-5610]

Representation at conferences

74 (1) A referred offender is entitled to be advised, but not represented, by a legal practitioner at a conference. (2) A conference may be adjourned at any time for the purpose of allowing the referred offender to obtain advice from a legal practitioner.

[2-5615]

Non-attendance at conferences

75 If a referred offender fails, without reasonable explanation, to attend a conference, a forum facilitator or operations team employee must notify the court that made the forum participation order applying to the referred offender.

[2-5620]

Draft intervention plans

76 (1) The participants at a conference may agree to make such recommendations as they think fit about the referred offender in respect of whom the conference is held and include those recommendations in a draft intervention plan. (2) Without limiting subclause (1), a draft intervention plan may provide for one or more of the following: (a) that the referred offender apologise to any victim of that offender orally or in writing, (b) that the referred offender make reparations to any such victim or the community, (c) that the referred offender participate in a program aimed at improving that offender’s prospects (for example, a counselling program, a drug or alcohol rehabilitation program or an education program),

[page 450] (d) the taking of action directed towards the reintegration of the referred offender into the community, (e) the times within which the plan is to be implemented. (3) The participants may not include in a draft intervention plan a requirement that the referred offender carry out work in the community for a period that exceeds the period applying to community service orders under section 8 of the Crimes (Sentencing Procedure) Act 1999. (4) A draft intervention plan is, if possible, to be determined by consensus of the participants in the conference and, subject to subclauses (5) and (6), may be agreed to by a majority of participants in the conference even though it is not agreed to by all the participants. In the absence of a consensus, a decision of a majority of the participants is a decision of the conference. (5) The referred offender, and any victim of that offender who personally attends the conference, each has a right of veto with respect to the whole of a draft intervention plan, or with respect to any recommendation proposed to be contained in a draft intervention plan, regardless of the views of any other participant in the conference who is not a victim. (6) A victim’s right of veto does not operate unless all victims who personally attend the conference agree to the veto. (7) The draft intervention plan is to be prepared in the form approved by the Minister.

[2-5625] court

Draft intervention plan to be reported to

77 (1) An operations team employee must refer a draft intervention plan agreed to at the conference to the court that made the forum participation order. (2) An operations team employee must notify the court that made the forum participation order if a forum facilitator for a conference has informed an operations team employee that: (a) the participants at a conference are unable to agree to a draft intervention plan, or

(b) the referred offender or any victim of that offender who has personally attended the conference has vetoed the draft intervention plan. (3) An operations team employee must also provide to the court a report (prepared by the forum facilitator in the form approved by the Minister) on the following matters: (a) the name, address and date of birth of the referred offender, (b) the nature of the offence in respect of which the conference has been held, (c) the name of the forum facilitator, (d) the names of the other persons who attended the conference and, if they participated, the capacity in which they participated, (e) the dates on, and locations at, which the conference was held, (f) any recommendation contained in the draft intervention plan that has been agreed to at the conference other than by consensus (including the name of any participant who did not agree with the recommendation and any reason given by the participant for not agreeing with the recommendation), (g) any failure of the conference to agree to recommendations that could be included in a draft intervention plan, (h) the major points of discussion in the course of the conference, (i) any other matter that the forum facilitator considers relevant, such as anything [page 451] noted at the conference that the facilitator considers could assist in explaining the context for particular recommendations. (4) A referral, notification or report under this clause must be made or provided at least 2 days before the date on which the court is due to continue the proceedings in respect of which the referred offender was referred.

Subdivision 3 — Intervention plans

[Subdiv 3 subst SI 143 of 2014 Sch 1[14], opn 31 Mar 2014]

[2-5630]

Referring back draft intervention plans

78 (1) If a court has concerns about a draft intervention plan referred to the court under Subdivision 2, it may: (a) consult with an operations team employee for the declared place in relation to its concerns, or (b) notify an operations team employee for the declared place of its concerns and refer the draft plan for consideration under this clause. (2) The operations team employee: (a) must ascertain whether the referred offender to whom the draft intervention plan applies and all of the relevant victims (if any) agree to consider the court’s concerns about the draft intervention plan, and (b) if they do so, must arrange for the referred offender and those victims to consider the court’s concerns. (3) If the referred offender and all of the relevant victims (if any) agree to consider the court’s concerns, they are to do so: (a) if practicable, within 7 days after an operations team employee is notified by the court under subclause (1), or (b) as soon as practicable after those 7 days have elapsed. (4) On considering the court’s concerns, the referred offender and the relevant victims (if any) may decide to vary the draft intervention plan or decide not to vary the draft intervention plan. (5) Any such decision is, if practicable, to be made by consensus of the referred offender and the relevant victims (if any). In the absence of a consensus, a decision of a majority of the persons concerned is sufficient. (6) The referred offender and any relevant victim each has a right of veto with respect to any proposed variation to the draft intervention plan. However, a victim’s right of veto does not operate unless all such victims agree to the veto. (7) A draft intervention plan cannot be varied under this clause to require that the referred offender carry out work in the community for a period that

exceeds the period applying to community service orders under section 8 of the Crimes (Sentencing Procedure) Act 1999. (8) The operations team employee must notify the court of: (a) any failure of the referred offender and the relevant victims (if any) to agree to consider the court’s concerns, or (b) any decision made under subclause (4) to vary or not to vary the draft intervention plan, or (c) any failure of the referred offender and the relevant victims (if any) to agree on a decision under subclause (4), or [page 452] (d) any veto of a proposed variation of the draft intervention plan. (9) A notice under subclause (8) must be given within 7 days (or such further period as the court may allow) after: (a) the date on which the operations team employee ascertains that the referred offender and the relevant victims (if any) do not agree to consider the court’s concerns, or (b) the final date on which a decision about the draft intervention plan is made under subclause (4), or (c) if the referred offender and the relevant victims (if any) fail to agree on a decision about the draft intervention plan under subclause (4), the date on which the operations team employee becomes aware that they have failed to do so. (10) The court may not refer concerns about a draft intervention plan on more than one occasion under this clause. (11) In this clause: relevant victim means any victim of the referred offender who personally attended the conference at which the draft intervention plan was determined and is able to be contacted.

[2-5635]

Notification of approval or refusal

79 (1) Following its consideration of any draft intervention plan referred to

a court under Subdivision 2 (including any draft intervention plan varied under clause 78(4)) the court is to notify an operations team employee for the declared place of the following matters: (a) if the court approves the draft intervention plan — the terms of any intervention plan order made in respect of the referred offender to whom the plan applies, which may include the date by which the plan must be completed, (b) if the court does not approve the draft intervention plan: (i) that it has not approved the draft intervention plan, and (ii) its reasons for not doing so. (2) The court is to notify an operations team employee within 7 days after making its decision to approve or not approve the intervention plan. (3) An operations team employee is to notify the following persons of the court’s decision to approve or not approve the draft intervention plan within 7 days after being notified by the court under subclause (2): (a) the forum facilitator, (b) any victim of the referred offender, (c) any police officer responsible for investigating the offence in respect of which that offender was referred to the program.

[2-5640]

Implementation of intervention plan

80 (1) If a participating court makes an intervention plan order, an operations team employee for the declared place at which the intervention plan order was made is to supervise the implementation and completion of the applicable intervention plan by the referred offender to whom that order applies. [page 453] (2) The operations team employee must notify the following as to whether or not the intervention plan is satisfactorily completed by the referred offender: (a) the court,

(b) the forum facilitator, (c) any victim of the referred offender, (d) any police officer responsible for investigating the offence in respect of which that offender was referred to the program. (3) If the intervention plan has not been satisfactorily completed, the operations team employee must notify the court of: (a) any reasons of which any operations team employee is aware for the referred offender’s failure to complete the plan satisfactorily, and (b) if the plan has been partially completed, the extent to which it has been completed, and (c) any other matter that an operations team employee considers relevant.

DIVISION 4 — FORUM FACILITATORS AND SENIOR FORUM FACILITATORS [Div 4 subst SI 143 of 2014 Sch 1[15], opn 31 Mar 2014]

[2-5660]

Forum facilitators

81 (1) The Secretary may appoint a person as a forum facilitator, including a police officer in the police officer’s private capacity and an employee of a Department in the employee’s private capacity. (2) A forum facilitator has the following functions: (a) to prepare for, and to hold, conferences referred to the forum facilitator by an operations team employee, (b) any other functions conferred or imposed on the forum facilitator by this Part or any guidelines. (3) Subject to clause 84, a forum facilitator holds office for such period (not exceeding 3 years) as is specified in the facilitator’s instrument of appointment, but may be re-appointed.

[2-5665]

Senior forum facilitators

82 (1) The program manager may appoint a forum facilitator as a senior forum facilitator. (2) A senior forum facilitator has the following functions: (a) to mentor new forum facilitators, (b) to conduct assessments of forum facilitators, (c) to conduct forum facilitator debrief meetings, (d) any other functions conferred or imposed on the senior forum facilitator by this Part or any guidelines. (3) Subject to clause 84, a senior forum facilitator holds office for such period (not exceeding 3 years) as is specified in the facilitator’s instrument of appointment, but may be re-appointed. [page 454]

[2-5670] Remuneration of forum facilitators and senior forum facilitators 83 (1) A forum facilitator 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 forum facilitator. (2) A senior forum facilitator 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 senior forum facilitator.

[2-5675] Vacancy in office of forum facilitators and senior forum facilitators 84 (1) A person’s appointment as a forum facilitator or a senior forum facilitator is automatically terminated if the person: (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 Secretary, or

becomes bankrupt, applies to take the benefit of any law for the (d) 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 (e) becomes a mentally incapacitated person, or (f) 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 Secretary may remove a forum facilitator or senior forum facilitator from office at any time.

DIVISION 5 — MISCELLANEOUS [2-5695]

Minister may issue guidelines

85 (1) The Minister may from time to time issue guidelines, not inconsistent with this Part, for or with respect to any of the following matters: (a) the functions of operations team employees or other persons in connection with assessments, (b) the functions of operations team employees, senior forum facilitators or forum facilitators in connection with the program, (c) the constitution of and procedure for conferences, (d) any other matter in respect of which guidelines are permitted or required by this Part. [subcl (1) subst SI 143 of 2014 Sch 1[16], opn 31 Mar 2014]

(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).

[page 455]

[2-5700] Evidence of statements generally inadmissible 86 (1) Evidence of anything said, or any admission made or document produced, in a conference concerning a referred offender is not admissible in any criminal or civil proceedings. [subcl (1) am SI 143 of 2014 Sch 1[17], opn 31 Mar 2014]

(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. (3) Despite subclause (2), evidence of any admission made by a referred offender in a conference is not admissible in the criminal proceedings in respect of which the referred offender was referred or any appeal in respect of those proceedings. [subcl (3) am SI 143 of 2014 Sch 1[17], opn 31 Mar 2014]

(4) A reference in this clause to a conference includes a reference to a forum conducted under this Part before the commencement of the Criminal Procedure Amendment (Forum Sentencing Intervention Program) Regulation 2014. [subcl (4) insrt SI 143 of 2014 Sch 1[18], opn 31 Mar 2014]

[2-5705]

Prohibition on disclosure of information

87 (1) A relevant program participant must not disclose the name of, or any other identifying information about, a referred offender or a victim of a referred offender that is obtained in connection with: (a) the assessment of the appropriateness of the offender’s case for being dealt with under the program, or (b) the assessment of the referred offender’s suitability to participate in the program, or (c) 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 the information referred to in that subclause: (a) to any of the following persons: (i) the referred offender, (ii) a senior forum facilitator, (iii) a forum facilitator, (iv) any victim of the referred offender, (v) any police officer responsible for investigating the offence in respect of which the referred offender was referred to the program, (vi) if the referred offender is subject to a good behaviour bond that requires supervision, a community service order or parole — the referred offender’s supervising officer, (vii) an operations team employee, 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. (3) Nothing in subclause (1) prevents an operations team employee for a declared place from disclosing the information referred to in that subclause to a person for the purpose of monitoring or evaluating the program. [page 456] (4) In this clause: identifying information in relation to a person means any information that identifies the person or that is likely to lead to the identification of the person. relevant program participant means any of the following: (a) an operations team employee, (b) a person carrying out an assessment as to whether or not the offender’s case is appropriate for being dealt with under the program,

(c) a person carrying out an assessment of a referred offender’s capacity and prospects for participating in the program, (d) a senior forum facilitator, (e) a forum facilitator, (f) a person entitled or invited to participate in, or attend, a conference and a person attending any such conference, (g) a person entitled to consider a draft intervention plan under clause 78 and any person who does so. [cl 87 subst SI 143 of 2014 Sch 1[19], opn 31 Mar 2014]

PART 8 — TRAFFIC OFFENDER INTERVENTION PROGRAM DIVISION 1 — PRELIMINARY [2-5735] Program declared to be intervention program 88 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.

[2-5740]

Definitions

89 In this Part: 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 Minister 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 an approved traffic course specified by the Court. [page 457] referral means the referral of a traffic offender under a program participation order for participation in the program by undertaking 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). [def subst Act 19 of 2013 Sch 4 item 4.14[4], opn 1 July 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 Act 1996. working day means any day that is not a Saturday, Sunday or public holiday.

[2-5745] Summary of process for participation in program 90 (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 If the Local Court determines that a traffic offender is a suitable person for participation in the program and a suitable approved traffic course is available, the Court may then make a program participation order if it is satisfied that the offender is otherwise eligible to participate. The order will specify the approved traffic course that the offender is to undertake. (c) Traffic offender enters into agreement to participate The traffic offender enters into a written 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 [2-5765]

Eligibility to participate in program

91 (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 [page 458] (c) the person enters into a written agreement to participate in the program, and (d) 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) such other matters as 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, (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

[2-5785]

Objectives of the program

92 The objective of the program is to provide a community based road safety educational program for referred traffic offenders: (a) to provide such 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 such offenders.

[2-5790]

Measures that constitute the program

93 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 and the offender enters into a written agreement to participate in the program. (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. (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.

[2-5795]

Reports to Local Court on compliance

94 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 in the [page 459]

form approved by the Minister on the extent to which the offender has complied with the requirements of the program no later than 5 working days before the date fixed by the Court for the offender to re-appear before the Court to finalise the matter.

[2-5800] Approved traffic course provider to make records 95 The approved traffic course provider that conducts the approved traffic course to which a referred traffic offender has been referred must make a record (or cause a record to be made) of the following matters in connection with the participation of the offender in the course: (a) the name, address and date of birth of the offender, (b) the nature of the traffic offence, (c) the extent to which the offender has complied with the requirements of the course (including attendance at the course and assessment criteria for the course), (d) any fees or other moneys paid by the offender to the provider in relation to the course, (e) any other matters specified by the guidelines or that the provider considers relevant.

DIVISION 4 — APPROVED TRAFFIC COURSES [2-5805] Secretary may approve courses for program 96 (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. [subcl (1) am SI 143 of 2014 Sch 1[20], opn 31 Mar 2014]

(2) The Secretary may approve a course of study or training under subclause (1): (a) on the Secretary’s own motion, or (b) on the application (in the form approved by the Secretary from time

to time) of the government agency or association that conducts the course. [subcl (2) am SI 143 of 2014 Sch 1[20], opn 31 Mar 2014; Act 33 of 2014 Sch 2.11, opn 4 July 2014]

(3) 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) the course provider has submitted a statement to the Secretary in the form approved by the Secretary from time to time that sets out the following: (i) the objectives of the course, (ii) an outline of the content of the course, (iii) assessment criteria for the course, including the minimum rate of attendance by course participants, (iv) an itemised proposed fee structure for course participants, (v) details of proposed monitoring of the course and evaluation mechanisms for the course, and (c) the course consists of the following kinds of measures: (i) measures that aim to improve the understanding of course participants of their legal obligations as road users, (ii) measures that aim to develop safe driving behaviour by course participants, [page 460] (iii) measures to inform course participants about the potential impact of traffic offences on the victims of such offences and on the community generally, and (d) the Secretary is satisfied that any fee that is proposed to be charged for participation in the course is being charged on a cost recovery basis and not for profit, and (e) the Secretary is satisfied that the course complies with any relevant guidelines for the content or conduct of approved traffic courses. [subcl (3) am SI 143 of 2014 Sch 1[20], opn 31 Mar 2014]

(4) A course of study or training approved under subclause (1) may be approved for all Local Courts or for only such Local Courts as may be specified in the order approving the course. (5) 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. [subcl (5) am SI 143 of 2014 Sch 1[20], opn 31 Mar 2014]

(6) An approval for a course of study or training under subclause (1) has effect for a period of 3 years, unless sooner revoked. (7) Nothing in subclause (6) 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. [subcl (7) am SI 143 of 2014 Sch 1[20], opn 31 Mar 2014]

[2-5810] Approved traffic course to comply with guidelines 97 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 [2-5830]

Minister may issue guidelines

98 (1) The Minister 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 as part of the program, (b) the monitoring of participation of referred traffic offenders in the program and in approved traffic courses undertaken 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) 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 [page 461] (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).

[2-5835] Evidence of statements generally inadmissible 99 (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.

[2-5840]

Prohibition on disclosure of information

100 (1) An approved traffic course provider that conducts an approved traffic course undertaken 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 undertaken 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 8A — CHILD SEXUAL OFFENCE EVIDENCE PILOT SCHEME [Pt 8A insrt SI 96 of 2016 Sch 1, opn 26 Feb 2016]

[2-5845] Qualifications for inclusion on panel of suitable children’s champions 100A For the purposes of clause 89(2) of Schedule 2 to the Act, successful completion of the witness intermediary training course provided by the Department of Justice in addition to tertiary qualifications in psychology, social work, speech pathology or occupational therapy are prescribed.

[2-5850] Suspension or revocation of inclusion of children’s champions on panel 100B Victims Services in the Department of Justice (or, if the Attorney General has nominated another agency under clause 89(1) of Schedule 2 to the Act, that agency) may: (a) suspend or revoke the inclusion of a person on a panel under clause 89 of Schedule 2 to the Act, or (b) make such inclusion subject to conditions, or

(c) vary or revoke any condition of inclusion or impose additional conditions on inclusion. [page 462]

[2-5855] Form of oath or affirmation taken or made by children’s champions 100C 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.

[2-5860]

Fees

100D 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 9 — MISCELLANEOUS [2-5870]

Public officers

101 (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 Police Integrity 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, (d) the Australian Securities and Investments Commission, (e) the Office of the Commonwealth Director of Public Prosecutions.

[2-5875] Certificate by Attorney General or Director of Public Prosecutions that no further proceedings to be taken 102 For the purposes of section 44(1) of the Act, Form 4 is the prescribed form of certificate. [page 463]

[2-5880]

Offences not within jurisdiction of

District Court 103 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.

[2-5885]

Issue of subpoenas in AVO proceedings

104 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.

[2-5890] Election not to have indictable offence dealt with summarily 105 (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.

[2-5895]

Penalty notice offences

106 (1) For the purposes of section 336 of the Act, each offence created by a provision specified in Column 1 of Schedule 3 is prescribed as a penalty notice offence. (2) For the purposes of section 337 of the Act, the prescribed penalty for any such offence is the amount specified in Column 2 of Schedule 3 opposite the offence.

[2-5900]

Delegation of functions

107 (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.

[2-5905]

Savings

108 (1) Any act, matter or thing that, immediately before the repeal of the Criminal Procedure Regulation 2005, had effect under that Regulation continues to have effect under this Regulation. (2) The amendments to this Regulation made by the Criminal Procedure Amendment (Forum Sentencing Program) Regulation 2010 apply only in relation to criminal proceedings commenced on or after the commencement of that Regulation and offenders the subject of such proceedings. [subcl (2) insrt SI 660 of 2010 Sch 1, opn 3 Dec 2010]

(3) An offender in relation to whom a suitability assessment order has been made before the commencement of the Criminal Procedure Amendment (Forum Sentencing [page 464] Intervention Program) Regulation 2014 and in relation to whom the program under Part 7 had not been completed before that commencement, is to be dealt with under Part 7 as if that Regulation had not been made. [subcl (3) insrt SI 143 of 2014 Sch 1[22], opn 31 Mar 2014]

(4) From 31 March 2014 to 31 March 2015, the functions of an operations team employee under Part 7 may be exercised by a program administrator (within the meaning of that Part immediately before the commencement of the Criminal Procedure Amendment (Forum Sentencing Intervention Program) Regulation 2014). [subcl (4) insrt SI 143 of 2014 Sch 1[22], opn 31 Mar 2014] [cl 108 am SI 660 of 2010 Sch 1, opn 3 Dec 2010]

[page 465]

[2-5935]

SCHEDULE 1 — FORMS (Clause 3(2))

[2-5940]

Form 1

NOTICE OF INTENTION TO ADDUCE EVIDENCE OF SUBSTANTIAL MENTAL IMPAIRMENT (Clause 20) (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 such 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: [2-5945]

Form 2

REASONS FOR EXCUSING A SPOUSE FROM GIVING EVIDENCE FOR THE PROSECUTION IN A DOMESTIC VIOLENCE OR CHILD ASSAULT CASE (Clause 26) (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 appears that the spouse of the accused person is to be asked to give evidence or there is other evidence available to establish those facts, and [page 466] (b) the offence with which the accused person is charged is of a minor nature. Reasons:

[insert signature of Judge or Magistrate] Judge/Magistrate [2-5950]

Form 3

FORM OF DEPOSITION (Clause 27) (Criminal Procedure Act 1986: section 284(2)) The deposition of [insert name of person], a person now dangerously ill, taken before the undersigned Justice at [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 Justice] Justice Date: Note. If the deposition is by affirmation or declaration, the form is to be varied accordingly.

[2-5955]

Form 4

CERTIFICATE OF ATTORNEY GENERAL OR DIRECTOR OF PUBLIC PROSECUTIONS (Clause 102) (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: [page 467] [2-5960]

Form 5

IMPORTANT INFORMATION ABOUT YOUR RIGHTS (Clause 105) (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. If you want to be dealt with by a jury you must elect to have the offence dealt with that way.

If you are dealt with by a jury and are found guilty the maximum penalty/term is [insert maximum penalty or term]. If you do not elect to be dealt with by a jury, you will be dealt with summarily by a Magistrate of the Local Court sitting alone. If the offence is dealt with summarily by a Magistrate and you are found guilty, the maximum penalty/term is [insert maximum penalty or term]. 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 prosecuting authority can elect to have the offence dealt with on indictment. [page 468] [2-5980]

SCHEDULE 2 — FEES (Clauses 10 and 11)

[Sch 2 subst SI 398 of 2016 Sch 1, opn 1 July 2016]

PART 1 — COURT FEES Item 1

2

Matter for which fee payable Fee Filing a court attendance notice under Chapter 4 of $91.00 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 $917.00 Procedure Act 1986 to commence proceedings to which Part 5 of that Chapter applies, being proceedings in the Land and Environment Court

3

4

5

6

7 8

9

(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: (a) the Government Records Repository or any other off-site storage facility (other than the State Records): (i) standard retrieval request

(ii)

$1,813.00

$91.00

$113.00 $175.00 $917.00

$59.00

$13.00 $7.00

$14.00 per file or box of files non-standard retrieval request Such (including an urgent retrieval request, additional fee

a high or after hours priority retrieval incurred by a request or a retrieval request for court delivery to or from a regional location outside the Sydney metropolitan area) (b)

the State Records — standard retrieval request

$34.00 per file or box of files [page 469]

Item 10 11

Matter for which fee payable Supplying a duplicate recording of sound-recorded evidence — per cassette tape or disc 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: (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 $51.00

$87.00 $11.00

$107.00 $12.50

PART 2 — SHERIFF’S FEES Item 1

Matter for which fee payable Attending a view by a jury in criminal proceedings

Fee $180.00 [page 470]

[2-5990]

SCHEDULE 2A — NSW GOVERNMENT AGENCIES AND STATUTORY BODIES REQUIRED TO PAY COURT FEES (Clause 15A)

[Sch 2A insrt SI 719 of 2013 Sch 1[2], opn 1 Jan 2014; am Act 74 of 2014 Sch 3 item 3.4, opn 1 Jan 2015; Act 49 of 2015 s 11, opn 11 May 2016]

Barangaroo Delivery Authority Centennial Park and Moore Park Trust Department of Education and Communities, but only in relation to offences against the following Acts or the regulations made under them: (a) the Combat Sports Act 2008, (b) the Combat Sports Act 2013, (c) the Motor Vehicle Sports (Public Safety) Act 1985, (d) the Mount Panorama Motor Racing Act 1989, (e) the Sporting Venues Authorities Act 2008, (f) the Sydney Cricket and Sports Ground Act 1978, (g) the Sydney Olympic Park Authority Act 2001. Department of Finance and Services, 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 Civil and Administrative Tribunal Act 2013, (e) the Community Land Management Act 1989, (f) the Contracts Review Act 1980, (g) the Conveyancers Licensing Act 2003, (h) the Co-operative Housing and Starr-Bowkett Societies Act 1998, (i) the Co-operatives Act 1992, (j) the Co-operatives National Law (NSW), (k) the Crimes Act 1900, (l) the Electricity (Consumer Safety) Act 2004, (m) the Fair Trading Act 1987,

(n) (o) (p) (q) (r) (s) (t) (u) (v) (w) (x) (y) (z) (aa) (bb)

the Fitness Services (Pre-paid Fees) Act 2000, the Funeral Funds Act 1979, the Gas Supply (Consumer Safety) Regulation 2012, the Holiday Parks (Long-term Casual Occupation) Act 2002, the Home Building Act 1989, the HomeFund Commissioner Act 1993, the Landlord and Tenant Act 1899, the Landlord and Tenant (Amendment) Act 1948, the Motor Dealers Act 1974, the Motor Dealers and Repairers Act 2013, (Repealed) the Partnership Act 1892, the Pawnbrokers and Second-hand Dealers Act 1996, the Plumbing and Drainage Act 2011, the Prices Regulation Act 1948, [page 471]

(cc) the Property, Stock and Business Agents Act 2002, (dd) the Residential (Land Lease) Communities Act 2013, (ee) the Residential Parks Act 1998, (ff) the Residential Tenancies Act 2010, (gg) the Retirement Villages Act 1999, (hh) the Strata Schemes Management Act 1996, (ii) the Tattoo Parlours Act 2012, (jj) the Travel Agents Act 1986, (kk) the Valuers Act 2003. Department of Primary Industries, Department of Trade and Investment, Regional Infrastructure and Services, but only in relation to offences against the following Acts or the regulations made under them: (a) the Fisheries Act 1935,

(b) the Fisheries Management Act 1994, (c) the Water Act 1912, (d) the Water Management Act 2000. Destination NSW Environment Protection Authority Government Property NSW 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 Motor Accidents Authority New South Wales Land and Housing Corporation NSW Food Authority NSW Self Insurance Corporation NSW Trustee and Guardian Office of Environment and Heritage, Department of Premier and Cabinet, but only in relation to offences against the National Parks and Wildlife Act 1974 or the regulations made under it Parramatta Park Trust Rail Corporation New South Wales Rental Bond Board Roads and Maritime Services, but only in relation to offences against the following Acts or the regulations made under them or the following regulation: (a) the Heavy Vehicle National Law (NSW), (b) the Marine Safety Act 1998, (c) the Road Transport (Vehicle and Driver Management) Act 2005, (d) the Road Transport (Mass, Loading and Access) Regulation 2005 only in respect of offences relating to heavy vehicles, (e) the Tow Truck Industry Act 1998.

The Royal Botanic Gardens and Domain Trust State Records Authority of New South Wales [page 472] 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 Sydney Ferries Sydney Harbour Foreshore Authority Sydney Metro Sydney Olympic Park Authority Teacher Housing Authority NSW UrbanGrowth NSW Development Corporation Venues NSW Western Sydney Parklands Trust WorkCover Authority of NSW Zoological Parks Board [page 473] [2-6000]

SCHEDULE 3 — PENALTY NOTICE OFFENCES (Clause 106)

[Sch 3 am Act 28 of 2011 Sch 2.1, opn 30 Sep 2011; Act 2 of 2014 Sch 5 item 5.2, opn 31 Mar 2014]

Column 1 Offence Crimes Act 1900 section 117, if value of property or amount does not exceed $300 section 527C(1)

Column 2 Amount of penalty $300 $350

Summary Offences Act 1988 section 4(1) section 4A(1) section 6 section 6A section 9

$500 $500 $200 $250 $1,100

[page 475]

Crimes (Sentencing Procedure) Act 1999 TABLE OF PROVISIONS Section

1 2 3 3A

Title

PART 1 — PRELIMINARY Name of Act …. Commencement …. Interpretation …. Purposes of sentencing ….

Paragraph

[5-s 1] [5-s 2] [5-s 3] [5-s 3A]

PART 2 — PENALTIES THAT MAY BE IMPOSED

4

DIVISION 1 — GENERAL Penalties generally ….

5 5A 6 6 7

DIVISION 2 — CUSTODIAL SENTENCES Penalties of imprisonment …. Compulsory drug treatment detention …. Periodic detention [Repealed] Home detention …. Intensive correction orders ….

8 9

DIVISION 3 — NON-CUSTODIAL ALTERNATIVES Community service orders …. Good behaviour bonds ….

[5-s 4]

[5-s 5] [5-s 5A] [5-s 6] [5-s 7]

[5-s 8] [5-s 9]

10 10A 11

12 13

14 15

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 …. Community service orders and good behaviour bonds to be alternative penalties only ….

[5-s 10] [5-s 10A]

[5-s 11] [5-s 12] [5-s 13]

DIVISION 4 — FINES Fines as an additional penalty to good behaviour bond …. Fines as an additional or alternative penalty to imprisonment for offences dealt with on indictment ….

[5-s 14]

[5-s 15] [page 476]

Section

16 17

Title

Paragraph

Fines for bodies corporate for offences punishable by imprisonment only …. Penalty units ….

[5-s 16] [5-s 17]

DIVISION 4A — NON-ASSOCIATION AND PLACE RESTRICTION ORDERS 17A Non-association and place restriction orders …. [5-s 17A]

18 19 20

DIVISION 5 — MISCELLANEOUS Interpretation of provisions imposing penalties …. Effect of alterations in penalties …. No double jeopardy …. PART 3 — SENTENCING PROCEDURES GENERALLY

[5-s 18] [5-s 19] [5-s 20]

21 21A 22 22A 23 24 24A 24B 25

26 27 28 29 30 30A

DIVISION 1 — GENERAL General power to reduce penalties …. Aggravating, mitigating and other factors in sentencing …. Guilty plea to be taken into account …. 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 …. 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 …. Local Court not to impose certain penalties if offender is absent ….

[5-s 21] [5-s 21A] [5-s 22] [5-s 22A] [5-s 23] [5-s 24] [5-s 24A] [5-s 24B] [5-s 25]

DIVISION 2 — VICTIM IMPACT STATEMENTS Definitions …. [5-s 26] Application of Division …. [5-s 27] When victim impact statements may be received and considered …. [5-s 28] Victim impact statements discretionary …. [5-s 29] Formal requirements for victim impact statements …. [5-s 30] Reading out victim impact statements in court …. [5-s 30A]

DIVISION 3 — TAKING FURTHER OFFENCES INTO ACCOUNT 31 Definitions …. [5-s 31] 32 Prosecutor may file list of additional charges …. [5-s 32] 33 Outstanding charges may be taken into account …. [5-s 33] 34 Ancillary orders relating to offences taken into account …. [5-s 34] 35 Consequences of taking offences into account …. [5-s 35]

[page 477] Section

35A

36 37 37A 37B 38 39 39A 40 41 42 42A

Title

Consultation with victim and police in relation to charge negotiations …. DIVISION 4 — SENTENCING GUIDELINES 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 ….

Paragraph

[5-s 35A]

[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

44 45 46 47 48

DIVISION 1 — SETTING TERMS OF IMPRISONMENT Court to set non-parole period …. 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 ….

[5-s 44] [5-s 45] [5-s 46] [5-s 47] [5-s 48]

49 50 51 51A 51B 52 53 53A 54

54A 54B 54C

Restriction on term of sentence …. Making of parole orders by court …. Conditions on parole orders …. Conditions of parole as to non-association and place restriction …. Certain information not to be published or broadcast …. Court’s powers on appeal …. Multiple sentences of imprisonment …. Aggregate sentences of imprisonment …. Exclusions from Division ….

[5-s 49] [5-s 50] [5-s 51] [5-s 51A] [5-s 51B] [5-s 52] [5-s 53] [5-s 53A] [5-s 54]

DIVISION 1A — STANDARD NON-PAROLE PERIODS What is the standard non-parole period? …. [5-s 54A] Consideration of standard non-parole period in sentencing …. [5-s 54B] Court to give reasons if non-custodial sentence imposed …. [5-s 54C] [page 478]

Section

54D

Title

Exclusions from Division ….

Paragraph

[5-s 54D]

DIVISION 2 — CONCURRENT AND CONSECUTIVE SENTENCES 55 Sentences for offences generally …. [5-s 55] 56 Sentences for offences involving assault by convicted inmate …. [5-s 56] 57 Sentences for offences involving escape by inmates …. [5-s 57] 58 Limitation on consecutive sentences imposed by Local Court …. [5-s 58] 59 Court may vary commencement of sentence on quashing or varying other sentence …. [5-s 59]

60

60A 60B 60C 60D 60E 60F 60G 60H 60I

61 62 63

Application of Division to interstate sentences of imprisonment ….

[5-s 60]

DIVISION 2A — PROVISIONAL SENTENCING FOR CHILD OFFENDERS Definitions …. [5-s 60A] Power to impose provisional sentence …. [5-s 60B] Case plan to be provided …. [5-s 60C] Effect of provisional sentence …. [5-s 60D] Progress reviews …. [5-s 60E] Progress reports to be provided by person responsible for detention of an offender …. [5-s 60F] Final sentence …. [5-s 60G] Time limit for imposition of final sentence …. [5-s 60H] Appeals …. [5-s 60I] DIVISION 3 — MISCELLANEOUS Mandatory life sentences for certain offences …. Warrant of commitment …. Offenders to be photographed and fingerprinted ….

[5-s 61] [5-s 62] [5-s 63]

PART 5 — SENTENCING PROCEDURES FOR INTENSIVE CORRECTION ORDERS

64 65

DIVISION 1 — PRELIMINARY Application …. Definitions ….

[5-s 64] [5-s 65]

DIVISION 2 — RESTRICTIONS ON POWER TO MAKE INTENSIVE CORRECTION ORDERS 66 Intensive correction not available for certain sexual offences …. [5-s 66] 67 Suitability of offender for intensive correction order …. [5-s 67] 68 Concurrent and consecutive sentences …. [5-s 68]

[page 479] Section

69 70

71 72 73 73A

Title

DIVISION 3 — ASSESSMENT REPORTS Referral of offender for assessment …. Assessment of suitability ….

Paragraph

[5-s 69] [5-s 70]

DIVISION 4 — MISCELLANEOUS Commencement of ICOs …. [5-s 71] Explanation of intensive correction order to offender …. [5-s 72] Preparation and service of written notice of intensive correction order …. [5-s 73] Review of ICO provisions …. [5-s 73A]

PART 6 — SENTENCING PROCEDURES FOR HOME DETENTION ORDERS

74 75

76 77 78 79

80 81

DIVISION 1 — PRELIMINARY Application …. Definitions ….

[5-s 74] [5-s 75]

DIVISION 2 — RESTRICTIONS ON POWER TO MAKE HOME DETENTION ORDERS Home detention not available for certain offences …. [5-s 76] Home detention not available for offenders with certain history …. [5-s 77] Suitability of offender for home detention …. [5-s 78] Concurrent and consecutive sentences …. [5-s 79] DIVISION 3 — ASSESSMENT REPORTS Referral of offender for assessment …. Assessment of suitability …. DIVISION 4 — MISCELLANEOUS

[5-s 80] [5-s 81]

82

Court may impose conditions on home detention order …. Explanation of home detention order to offender ….

83

[5-s 82] [5-s 83]

PART 7 — SENTENCING PROCEDURES FOR COMMUNITY SERVICE ORDERS

84 85

DIVISION 1 — PRELIMINARY Application …. Definitions ….

[5-s 84] [5-s 85]

DIVISION 2 — RESTRICTIONS ON POWER TO MAKE COMMUNITY SERVICE ORDERS 86 Suitability of offender for community service work …. [5-s 86] 87 Concurrent and consecutive sentences …. [5-s 87]

88

DIVISION 3 — ASSESSMENT REPORTS Referral of offender for assessment ….

[5-s 88] [page 480]

Section

89

90 91 92 93

Title

Paragraph

Assessment of suitability ….

[5-s 89]

DIVISION 4 — MISCELLANEOUS Conditions of community service orders …. Removal of graffiti …. Explanation of community service order to offender …. Preparation and service of written notice of community service order ….

[5-s 90] [5-s 91] [5-s 92] [5-s 93]

PART 8 — SENTENCING PROCEDURES FOR GOOD BEHAVIOUR BONDS

94 95 95A 95B 96 97 98 99 99A 100

Application …. [5-s 94] Good behaviour bonds …. [5-s 95] Intervention program as condition of good behaviour bond …. [5-s 95A] Referral of offender for assessment …. [5-s 95B] Explanation of good behaviour bond to person under bond …. [5-s 96] Procedure following failure to enter into good behaviour bond …. [5-s 97] Proceedings for breach of good behaviour bond …. [5-s 98] Consequences of revocation of good behaviour bond …. [5-s 99] Right to decide not to participate in intervention program …. [5-s 99A] Action may be taken after good behaviour bond has expired …. [5-s 100]

PART 8A — NON-ASSOCIATION AND PLACE RESTRICTION ORDERS 100A Non-association and place restriction orders not to [5-s restrict certain associations or activities …. 100A] 100B Explanation of non-association and place restriction [5-s orders to offenders …. 100B] 100C Commencement of non-association and place [5-s restriction orders …. 100C] 100D Suspension of non-association and place restriction [5-s orders while offenders in custody …. 100D] 100E Contravention of non-association and place [5-s restriction orders …. 100E] 100F Variation or revocation of non-association and place restriction orders following subsequent conviction [5-s …. 100F] 100G Variation or revocation of non-association and place [5-s restriction orders on application …. 100G] 100H Certain information not to be published or broadcast [5-s …. 100H]

PART 8B — NEW SOUTH WALES SENTENCING COUNCIL 100I Constitution of New South Wales Sentencing Council …. [5-s 100I] 100J Functions of Sentencing Council …. [5-s 100J] [page 481] Section

Title

100K

Committees of Sentencing Council ….

100L

Staff of Sentencing Council ….

Paragraph

[5-s 100K] [5-s 100L]

PART 8C — SENTENCING PROCEDURES FOR INTERVENTION PROGRAM ORDERS

100M

100N

DIVISION 1 — PRELIMINARY Application …. DIVISION 2 — RESTRICTIONS ON POWER TO MAKE INTERVENTION PROGRAM ORDERS Suitability of offender for intervention program ….

100O

Referral of offender for assessment ….

100P

Explanation of intervention program order ….

[5-s 100M]

[5-s 100N] [5-s 100O] [5-s 100P]

DIVISION 3 — ENFORCEMENT OF INTERVENTION PROGRAM ORDER 100Q Procedure following failure to enter into agreement [5-s …. 100Q] 100R Proceedings for breach of order …. [5-s 100R]

100S

Consequences of revocation of order ….

100T

Right to decide not to participate in intervention program ….

101 101A 102 103 104 105 106

107

PART 9 — MISCELLANEOUS 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 ….

[5-s 100S] [5-s 100T]

[5-s 101] [5-s 101A] [5-s 102] [5-s 103] [5-s 104] [5-s 105]

[5-s 106]

[5-s 107] [5-Sch 1] [5-Sch 1A] [5-Sch 2]

[page 483]

Crimes (Sentencing Procedure) Act 1999 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

Occupational Health and Safety Act 2000 No 40

26 June 2000

Crimes Legislation Amendment Act 2000 No 43 Legal Aid Commission Amendment Act 2000 No 98 Crimes (Administration of Sentences) Amendment Act 2000 No 110 Criminal Procedure Amendment (Pretrial Disclosure) Act 2001 No 7 Crimes Legislation Amendment (Existing Life

27 June 2000

13 December 2000

20 December 2000

18 April 2001

27 June 2001

Date of Commencement 1 September 2001 (Gaz 129 of 24 August 2001) 31 July 2000 (Gaz 93 of 21 July 2000) 15 January 2001 (Gaz 10 of 12 January 2001) 16 February 2001 (Gaz 39 of 16 February 2001) 19 November 2001 (Gaz 173 of 9 November 2001) 20 July 2001 (Gaz 113 of 20 July

Sentences) Act 2001 No 29 Crimes Amendment 21 September 2001 (Aggravated Sexual Assault in Company) Act 2001 No 62 Justice Legislation 11 December 2001 Amendment (Nonassociation and Place Restriction) Act 2001 No 100 Criminal Legislation 18 December 2001 Amendment Act 2001 No 117

Justices Legislation Repeal 19 December 2001 and Amendment Act 2001 No 121 Crimes (Sentencing 9 April 2002 Procedure) Amendment (General Sentencing Principles) Act 2002 No 5 Crimes Legislation 2 October 2002 Amendment (Periodic and Home Detention) Act 2002 No 74

2001) 1 October 2001 (Gaz 146 of 28 September 2001) s 3 and Sch 1.1: 22 July 2002 (Gaz 119 of 19 July 2002) 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) 7 July 2003

15 April 2002 (Gaz 74 of 15 April 2002) 2 December 2002 (Gaz 225 of 22 November 2002)

[page 484] Amending Legislation

Date of Assent

Crimes (Sentencing Procedure) Amendment

22 November 2002

Date of Commencement s 3 and Sch 1 (except [5] and [7]) and

(Standard Minimum Sentencing) Act 2002 No 90

Crimes Legislation Amendment (Criminal Justice Interventions) Act 2002 No 100 Crimes Legislation Amendment Act 2002 No 130

29 November 2002

Victims Legislation Amendment Act 2003 No 10

5 June 2003

Crimes Legislation Amendment (Parole) Act 2003 No 25

7 July 2003

Crimes Legislation Amendment Act 2003 No 27

8 July 2003

Crimes Legislation Further Amendment Act 2003 No 85

5 December 2003

17 December 2002

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) s 5 and Sch 3: 24 February 2003 (Gaz 49 of 21 February 2003) s 3 and Sch 5: 13 January 2003 (Gaz 13 of 10 January 2003) s 3 and Sch 1: 23 June 2003 (Gaz 101 of 20 June 2003) s 3 and Sch 1: 3 November 2003 (Gaz 174 of 31 October 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) 14 February 2004 (Gaz 12 of 16 January 2004)

Crimes (Sentencing 17 March 2004 Procedure) Amendment (Victim Impact Statements) Act 2004 No 3

s 3 and Sch 1: 31 July 2004 (Gaz 126 of 30 July 2004)

Crimes Legislation Amendment Act 2004 No 11 Compulsory Drug Treatment Correctional Centre Act 2004 No 42 Courts Legislation Amendment Act 2004 No 68 Crimes (Sentencing Procedure) Amendment (Existing Life Sentences) Act 2005 No 13 Statute Law (Miscellaneous Provisions) Act (No 2) 2005 No 98 Crimes (Sentencing Procedure) Amendment 2006 No 27 Crimes Amendment (Apprehended Violence) Act 2006 No 73

24 March 2004

24 March 2004

6 July 2004

21 July 2006

6 July 2004

s 3 and Sch 4: on assent

6 May 2005

s 3 and Sch 1: on assent

24 November 2005

1 December 2005

26 May 2006

On assent

27 October 2006

Sch 3.7: 12 March 2007

[page 485] Amending Legislation

Date of Assent

Crimes and Courts Legislation Amendment Act 2006 No 107

29 November 2006

Date of Commencement Sch 1(1.11) items (20)–(21): NYP; Sch 1(1.15) items

Victims Support and Rehabilitation Amendment Act 2006 No 127 Crimes (Sentencing Procedure) Amendment Act 2007 No 50 Crimes (Domestic and Personal Violence) Act 2007 No 80 Miscellaneous Acts (Local Court) Amendment Act 2007 No 94

4 December 2006

Crimes (Sentencing Procedure) Amendment (Life Sentences) Act 2008 No 57 Mental Health Legislation Amendment (Forensic Provisions) Act 2008 No 79 Crimes (Sentencing Procedure) Amendment (Victim Impact Statements) Act 2008 No 81 Rail Safety Act 2008 No 97

1 July 2008

(1)–(2): 2 February 2007; Sch 1(1.9) items (5)–(8): 23 February 2007: rem: 29 November 2006 16 February 2007

1 November 2007

Sch 1: 1 January 2008

7 December 2007

Sch 2.8: 10 March 2008 (Gaz 30 of 7 March 2008) 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 s 3 and Sch 1: 1 July 2008

13 December 2007

5 November 2008

5 November 2008

3 December 2008

1 March 2009 (s 2 and Gaz 44 of 27 February 2009, p 1229) 1 January 2009 (s 2 and Gaz 158 of 19 December 2008, p 12304) 1 January 2009 (s 2

Crimes Amendment (Sexual Offences) Act 2008 No 105

8 December 2008

Crimes (Domestic and Personal Violence) Amendment Act 2008 No 119 Criminal Legislation Amendment Act 2009 No 27 Crimes (Sentencing Procedure) Amendment (Council Law Enforcement Officers) Act 2009 No 28 Courts and Other Legislation Amendment Act 2009 No 37 Relationships Register Act 2010 No 19 Weapons and Firearms Legislation Amendment Act 2010 No 40

10 December 2008

and Gaz 158 of 19 December 2008, p 12308) 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) On assent (s 2)

19 May 2009

On assent (s 2)

9 June 2009

On assent (s 2)

19 June 2009

Sch 1.5: 19 June 2009 (s 2)

19 May 2010

Sch 3: on assent (s 2(2)) 9 July 2010 (s 2 and SI 351 of 2010, LW 9 July 2010)

15 June 2010

[page 486] Amending Legislation

Date of Assent

Crimes (Sentencing Legislation) Amendment

28 June 2010

Date of Commencement Sch 1: 1 October 2010 (s 2 and SI

(Intensive Correction Orders) Act 2010 No 48 Crimes (Sentencing Procedure) Amendment Act 2010 No 136

7 December 2010

Courts and Other Legislation Amendment Act 2011 No 8 Statute Law (Miscellaneous Provisions) Act (No 2) 2011 No 62 Crimes (Sentencing Procedure) Amendment (Children in Vehicles) Act 2011 No 64 Work Health and Safety Legislation Amendment Act 2011 No 67 Criminal Case Conferencing Trial Repeal Act 2012 No 4 Graffiti Legislation Amendment Act 2012 No 57

7 June 2011

Crimes Legislation Amendment Act 2012 No 67 Rail Safety (Adoption of National Law) Act 2012 No 82

24 September 2012

532 of 2010, LW 17 September 2010) Schs 1.2 and 2: 14 March 2011 (s 2 and SI 175 of 2011, LW 3 March 2011) Sch 1.1: 7 June 2011 (s 2)

16 November 2011

Sch 3.6: 6 January 2012 (s 2(1))

16 November 2011

Sch 1: 16 November 2011 (s 2)

28 November 2011

Sch 4.4: 1 January 2012 (s 2)

14 March 2012

Sch 1: 14 March 2012 (s 2)

28 August 2012

Sch 1.2: 10 December 2012 (s 2 and SI 599 of 2012, LW 7 December 2012) 24 September 2012 (s 2)

29 October 2012

Sch 2.2: 20 January 2013 (s 2 and SI 646 of 2012, LW 21 December

Crimes (Serious Sex Offenders) Amendment Act 2013 No 4 Crimes (Sentencing Procedure) Amendment (Provisional Sentencing for Children) Act 2013 No 7 Road Transport Legislation (Repeal and Amendment) Act 2013 No 19 Child Protection Legislation Amendment (Children’s Guardian) Act 2013 No 31 Crimes (Sentencing Procedure) Amendment (Standard Non-parole Periods) Act 2013 No 78 Crimes and Courts Legislation Amendment Act 2013 No 80 Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 No 2 Bail (Consequential Amendments) Act 2014 No 5

19 March 2013

2012) 19 March 2013 (s 2)

25 March 2013

25 March 2013 (s 2)

3 April 2013

1 July 2013 (s 2 and SI 329 of 2013, LW 28 June 2013) Sch 3: 15 June 2013 (s 2)

3 June 2013

29 October 2013

29 October 2013 (s 2)

29 October 2013

29 October 2013 (s 2)

31 January 2014

Schs 3 and 6: 31 January 2014 (s 2(1))

12 March 2014

20 May 2014 (s 2 and SI 235 of 2014, LW 24 April 2014) [page 487]

Amending Legislation

Date of Assent

Crimes (Sentencing Procedure) Amendment

20 May 2014

Date of Commencement 1 July 2014 (s 2 and SI 396 of 2014,

(Family Member Victim Impact Statement) Act 2014 No 18 Crimes Legislation 23 October 2014 Amendment Act 2014 No 59 Crimes Legislation 29 June 2015 Amendment (Child Sex Offences) Act 2015 No 13 Statute Law (Miscellaneous 29 June 2015 Provisions) Act 2015 No 15 Crimes (Sentencing Procedure) Amendment (Firearms Offences) Act 2015 No 17 Courts and Other Justice Portfolio Legislation Amendment Act 2015 No 67

21 August 2015

24 November 2015

LW 27 June 2014)

23 October 2014 (s 2)

29 June 2015 (s 2)

Sch 2.12: 8 July 2015 (s 2(1)); Sch 3.17: 15 July 2015 (s 2(3)) 21 August 2015 (s 2)

Sch 1.7: 24 November 2015 (s 2(1))

[page 489]

PART 1 — PRELIMINARY [5-s 1]

Name of Act

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]

community service order means an order referred to in section 8(1). community service work has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999. 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]

convicted inmate has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999.

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. 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]

[page 490] 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]

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 imprisonment that is required to be served otherwise than under an intensive correction order or by way of home detention. [def subst Act 48 of 2010 Sch 1, opn 1 Oct 2010]

function includes a power, authority or duty. good behaviour bond means a bond referred to in section 9(1), 10(1) or 12(1). 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 order means an order referred to in section 6. [def am Act 48 of 2010 Sch 1, opn 1 Oct 2010]

inmate has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999. 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]

intensive correction order means an order referred to in section 7. [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 means a juvenile justice officer employed in the Department of Justice. [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]

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. [page 491] 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 has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999. 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. (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, [page 492] (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: 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. 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.

DIVISION 2 — CUSTODIAL SENTENCES [Div 2 heading insrt Act 42 of 2004 s 4 and Sch 2[2], opn 21 July 2006]

[5-s 5]

Penalties of imprisonment

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. [page 493]

(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 or home detention order. [subs (5) am Act 48 of 2010 Sch 1, opn 1 Oct 2010] 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 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]. [page 494] [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 (1) A court that has sentenced an offender to imprisonment for not more than 18 months may make a home detention order directing that the sentence be served by way of home detention. (2) This section is subject to the provisions of Part 6. [s 7 renum as s 6 by Act 48 of 2010 Sch 1, opn 1 Oct 2010] COMMENTARY ON SECTION 6

Imposing sentences of home detention ….

[5-s 6.1]

Commonwealth offences …. Revocation of home detention orders …. Home detention orders ….

[5-s 6.5] [5-s 6.10] [5-s 6.15]

[5-s 6.1] Imposing sentences of home detention An order cannot be made if the offender is sentenced to imprisonment of more than 18 months, see s 7(1) at [5-s 7]. Nor can an order be made if the offender has certain history, see s 77 at [5-s 77], or if the offender does not meet the suitability requirements set out in s 78, see at [5-s 78]. Furthermore, an order may not be made in respect of a sentence of imprisonment (a new sentence) to be served concurrently or consecutively (or partly concurrently) with any other sentence of imprisonment the subject of a home detention order if the date on which the new sentence will end is more than 18 months after the date on which it was imposed, see s 79 at [5-s 79]. An order also cannot be made in respect of a sentence of imprisonment for the offences listed in s 76, see at [5-s 76]. An order cannot be made by the Local Court unless the offender is present: s 25(1). A court that imposes a sentence of imprisonment of 6 months or less must make a record of its reasons for deciding that no other sentence but imprisonment is appropriate: s 5(2). The court should not tailor a sentence so that it might be served by home detention. The proper procedure is to determine the appropriate sentence ignoring the provision of home detention and to consider home detention only if the sentence to be imposed is less than 18 months: R v Thackray (NSWCCA, Meagher JA, McInerney and Barr JJ, 60259/98, 19 August 1998, unreported, BC9805278); (1998) 5 Crim LN 76 [912]; R v Zamagias [2002] NSWCCA 17; BC200200346; (2002) 9 Crim LN 2 [1394]; Douar v R (2005) 159 A Crim R 154; [2005] NSWCCA 455; BC200511166. In R v Jurisic (1998) 45 NSWLR 209; 29 MVR 49; BC9805254; (1998) 5 Crim LN 81 [903] it was held that the judge in exercising the discretion to order an assessment should take into account that making an order under the section will entail a significant [page 495] watering down of the sentence of imprisonment and may lead to an appellable sentence. It was also held that the sentencing court has a discretion to request an assessment and then a further discretion whether to make the order where a favourable assessment is made. In R v Jurisic, above, the court comprised a bench of five justices in order to settle a controversy as to the nature of an order of home detention: see R v Smith (1997) 95 A Crim R 373 and cf R v Byrne (1998) 104 A Crim R 456; BC9803688; (1998) 5 Crim LN 63 [894]. It was held that a sentence of home detention was a substantially less onerous sentence than one of full-time custody and the nature of the sentence was a matter to be taken into account when assessing the appropriateness of making an order under the section. A court may impose conditions on the home detention order other than for the payment of any money and can include conditions in relation to employment or community service: s 82. [5-s 6.5] Commonwealth offences An offender being sentenced for a Commonwealth offence can be ordered to serve the sentence by home detention by reason of s 20AB of the Crimes Act (Cth) see at [520,295]. [5-s 6.10] Revocation of home detention orders The Parole Board has power to revoke an order that a sentence be served by way of home detention, see Crimes (Administration of Sentences) Act 1999 s 167 at [24-s 167].

[5-s 6.15] Home detention orders See cl 18 of the Crimes (Sentencing Procedure) Regulation 2010, at [5-10,415], concerning the form of a home detention order and service of copies of the order.

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[5-s 7]

Intensive correction orders

7 (1) A court that has sentenced an offender to imprisonment for not more than 2 years may make an intensive correction order directing that the sentence be served by way of intensive correction in the community. (2) If a court makes an intensive correction order directing that a sentence 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 is subject to the provisions of Part 5. [s 7 insrt Act 48 of 2010 Sch 1, opn 1 Oct 2010] 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. COMMENTARY ON SECTION 7

Intensive correction orders ….

[5-s 7.5]

[5-s 7.5] Intensive correction orders An order made under this section is a term of imprisonment for the purposes of the Act. However the court, when imposing a sentence to be served by way of intensive correction order, does not impose a non-parole period. An order cannot be made when sentencing for certain sexual offences; see at [5-s 66]. Before an order can be made the court must have the offender assessed as suitable. It can only seek such an assessment where the court, after considering the alternative, determines that no sentence other than imprisonment is appropriate: see [5-s 69]. This is the first step in determining whether to impose a sentence of imprisonment and is a restatement of the requirement in s 5(1) of the Act; see at [5-s 5]. It is also the first step referred to in R v Douar (2005) 159 A Crim R 154; [2005] NSWCCA 455; BC200511166 at [70] and R v Zamagias [2002] NSWCCA 17; BC200200346 at [25]. But the court must also be satisfied that the sentence is likely to be for a period of less than 2 years. [page 496] The matters to be addressed in the assessment of an offender are set out in cl 14(1) of the Crimes (Sentencing Procedure) Regulation 2010; see at [5-10,300]. Having received an assessment that the offender is suitable the court may, or may not, make an order despite a positive assessment, but must give reasons for declining to make the order in such a case: s 67(5). In any event, before the court imposes any sentence, it must determine the length of the sentence without a consideration of the manner in which the sentence is to be served. This is the second step referred to in Douar at [71] and Zamagias at [26]. It is not a necessary pre-condition for the imposition of an intensive correction order that there be

evidence that the order is necessary for the purpose of the offender’s rehabilitation: R v Pogson, Lapham and Martin [2012] NSWCCA 225; BC201208084; 19(11) Crim LN [3147] in which the decision in R v Boughen [2012] NSWCCA 17; BC201200777 was disapproved by a specially constituted bench and the purpose of such an order and its nature was considered. It was noted that an order is a significant sentence which has a real impact upon the life of an offender and deprives him or her of liberty in a real sense. The imposition of an intensive correction order for serious child pornography offences was considered in R v Porte [2015] NSWCCA 174; BC201505867; 22(8) Crim LN [3570] where it was held that the sentence did not in the circumstances of that particular offending adequately reflect deterrence and denunciation. Having determined the length of the sentence and, if it is not more than 2 years, the court must then determine how the sentence is to be served, taking into account whether the sentence being served, other than by way of full-time custody, will adequately address the purposes of punishment and reflect the objective seriousness of the offence. This is the third step referred to in Douar at [72] and Zamagias at [28]. It has been held to be an error where a judge failed to consider the alternative of an order under this section when sentencing the offender to full time imprisonment: Lambert v R [2015] NSWCCA 22; BC201501009; 22(4) Crim LN [3514]; and see also EF v R [2015] NSWCCA 36; BC201501697; 22(4) Crim LN [3515]. The administration of intensive correction orders is governed by Pt 3 of the Crimes (Administration of Sentences) Act: see at [24-s 80] and following. Those provisions set out certain conditions that must attach to the order: s 81(2). Those conditions are set out in cl 186 of the Crimes (Administration of Sentences) Regulation 2014 at [24-5925]. The court can impose additional conditions under cl 187 of the Regulation at [24-5930]. Breaches of an order are dealt with by the Commissioner of Corrective Services and the Parole Authority: see at [24-s 88] and following. The courts do not deal with breaches. Where an offender breaches an order, the Commission may: issue a formal warning; a sanction in the form of a more stringent application of the conditions; or, finally, the Commissioner can decide to refer serious breaches to the Parole Authority. The Authority can take any action the Commissioner could take, but further can impose a period of up to 7 days home detention or revoke the order so that the sentence of imprisonment is served as full-time custody: see [24-s 90].

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DIVISION 3 — NON-CUSTODIAL ALTERNATIVES [5-s 8]

Community service orders

8 (1) Instead of imposing a sentence of imprisonment on an offender, a court may make a community service order directing the offender to perform community service work for a specified number of hours. (2) The number of hours specified in a community service order in relation to an offence must not exceed 500, or the number of hours prescribed by the

regulations in respect of the class of offences to which the offence belongs, whichever is the lesser. (3) This section does not apply to an offender to whom the Children (Community Service Orders) Act 1987 applies. [page 497] (4) This section is subject to the provisions of Part 7. COMMENTARY ON SECTION 8

Community service orders …. Commonwealth offenders …. Revocation of orders …. Maximum hours’ community service work ….

[5-s 8.1] [5-s 8.5] [5-s 8.10] [5-s 8.15]

[5-s 8.1] Community service orders The opening words of s 8(1) do not confine the availability of community service orders to cases which otherwise would be visited by imposition of a sentence of imprisonment: R v El Masri [2005] NSWCCA 167; BC200502544 at [32]. The provisions in relation to the imposition of a community service order are found in Pt 7 of the Act see at [5-s 84] and following. An order cannot be made unless the offender is found suitable after assessment by a probation and parole officer: s 86(4). An order cannot be made by the Local Court unless the offender is present: s 25(1). The court can impose conditions on the order including undergoing drug testing or assessment for drug and alcohol use but cannot require the offender to pay any money by way of fine or otherwise: s 90. A community service order can include a requirement that an offender participate in a development program of at least 20 hours: s 90(3). See cl 22 of the Crimes (Sentencing Procedure) Regulation 2010, at [5-10,530], concerning the form of a community service order and service of copies of the order. [5-s 8.5] Commonwealth offenders A sentence of community service may be imposed on offenders against Commonwealth laws by reason of s 20AB of the Crimes Act (Cth): see [5-20,295]. [5-s 8.10] Revocation of orders The court which made the order has power to revoke an order of community service and sentence the offender for the original offence and exercise any power which the court could have exercised had the order not been made, see Crimes (Administration of Sentences) Act 1999 s 115 at [24-s 115]. The court must take into account the period spent on the bond and anything done to comply with the conditions of the bond: s 24(b). Being subject to a Community Service order is a form of conditional liberty, see R v Cicekdag (2004) 150 A Crim R 299; [2004] NSWCCA 357; BC200408084. That an offender was subject to any form of conditional liberty when committing an offence is to be taken into account as an aggravating factor when sentencing for the offence committed: R v Cicekdag, above; Morrison v R [2009] NSWCCA 211; BC200907698; Hillier v DPP (NSW) [2009] NSWCCA 312; BC200911891 and s 21A(2)(j) at [5-s 21A].

There is no presumption that a failure to perform a community service order results in a prison term, and there is no mathematical formula to be applied to convert unserved periods of community service into a period of imprisonment. The proper course is to re-exercise the sentencing discretion in respect of the offence committed but taking into account that community service is no longer available. It may follow that there is no alternative to the imposition of a prison sentence, but that is to be determined on the material then available to the sentencing judge: Bonsu v R [2009] NSWCCA 316; BC200912221. The considerations that arise on revocation of a community service order because the offender was unable to complete the order through injury were considered in Director of Public Prosecutions (NSW) v Caita-Mantra [2004] NSWSC 1127; BC200408048; (2005) 12 Crim LN 21 [1832]. [5-s 8.15] Maximum hours’ community service work Clause 23 of the Crimes (Sentencing Procedure) Regulation 2010, at [5-10,535], provides that for the purpose of s 8(2) of the Act, the prescribed number of hours is: (a) 100, for offences for which the maximum term of imprisonment provided by law does not exceed six months, [page 498] (b) 200, for offences for which the maximum term of imprisonment provided by law exceeds six months but does not exceed one year, or (c) 500, for offences for which the maximum term of imprisonment provided by law exceeds one year.

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[5-s 9]

Good behaviour bonds

9 (1) Instead of imposing a sentence of imprisonment on an offender, a court may make an order directing the offender to enter into a good behaviour bond for a specified term. (2) The term of a good behaviour bond must not exceed 5 years. (3) This section is subject to the provisions of Part 8. COMMENTARY ON SECTION 9

Good behaviour bonds …. Breach of bond ….

[5-s 9.1] [5-s 9.5]

[5-s 9.1] Good behaviour bonds The section replaces the use of a recognizance to bind a person over for a period previously found both at common law and under the Crimes Act, see [5-s 101]. A good behaviour bond is an alternative to imprisonment and therefore cannot apply to an offence which is punishable only by way of fine. The provisions relating to good behaviour bonds are found in Pt 8 see [5-s 94] and following. There are certain conditions which must be contained in the bond including that the person be of good behaviour for the term of the bond, see s 95. The bond cannot contain a condition that the person do

community service work or make any payment of money: s 95(c). A fine may be imposed where the bond relates to an offence for which the penalty includes a fine: s 14(1). As to conditions on bonds see [5-s 95]. A condition of a bond can be that the offender participate in an intervention program and submit to an intervention plan; see [5-s 95A]. But only where there has been an assessment made of the suitability of the offender: [5-s 95B]. The court is required to explain the offenders obligations under the bond and the consequences that may follow if the bond is breached: s 96. An order cannot be made by the Local Court unless the offender is present: s 25(1). [5-s 9.5] Breach of bond The procedures for a breach of the bond are set out in s 98. One of the consequences of a breach is that the court may re-sentence the offender for the original offence: s 99(1) (a). The court must take into account the period spent on the bond and anything done to comply with the conditions of the bond: s 24(b). Being subject to a good behaviour bond is a form of conditional liberty, see Sivell v R [2009] NSWCCA 286; BC200910950. That an offender was subject to any form of conditional liberty when committing an offence is to be taken into account as an aggravating factor when sentencing for the offence committed: Morrison v R [2009] NSWCCA 211; BC200907698; Hillier v DPP (NSW) [2009] NSWCCA 312; BC200911891 and s 21A(2)(j) at [5-s 21A].

____________________

[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 on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, [page 499] (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]

(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 release the person on a good behaviour bond. (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. (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 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 [page 500] 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 [520,275]. 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, 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.

____________________

[5-s 10A]

Conviction with no other penalty

10A (1) A court that convicts an offender may dispose of the proceedings without imposing any other penalty. [page 501] (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]

(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]

[page 502] (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 Griffiths 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]. As to the assessment and participation of an offender in an intervention program, see [5-s 95A] and [5-s 95B].

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[5-s 12]

Suspended sentences

12 (1) A court that imposes a sentence of imprisonment on an offender (being a sentence for a term of not more than 2 years) may make an order: [page 503] (a) suspending execution of the whole of the sentence for such period (not exceeding the term of the sentence) as the court may specify in the order, and (b) directing that the offender be released from custody on condition that the offender enters into a good behaviour bond for a term not exceeding the term of the sentence. [subs (1) am Act 27 of 2003 Sch 6[1], opn 8 July 2003]

(2) An order under this section may not be made in relation to a sentence of imprisonment if the offender is subject to some other sentence of imprisonment that is not the subject of such an order. (3) Subject to section 99(1), Part 4 does not apply to a sentence of imprisonment the subject of an order under this section. [subs (3) am Act 90 of 2002 s 3 and Sch 3.2[3], opn 1 Feb 2003; Act 107 of 2006, s 3 and Sch 1.9[2], opn 29 Nov 2006]

(4) An order under this section may be made after a court has decided not to make a home detention order in relation to the sentence of imprisonment. [subs (4) insrt Act 43 of 2000 Sch 3[5], opn 31 July 2000; am Act 90 of 2002 s 3 and Sch 3.2[4], opn 1 Feb 2003] COMMENTARY ON SECTION 12

Suspended sentence …. Breach of bond ….

[5-s 12.1] [5-s 12.5]

[5-s 12.1] Suspended sentence The court may only suspend a sentence where the court has imposed a sentence of imprisonment of a term of not more than 2 years. Section 12(1)(a), as amended in July 2003, provides for the “whole of the sentence” to be suspended, thereby excluding an order of partial suspension which had been held to be available in R v Gamgee (2001) 51 NSWLR 707; 124 A Crim R 469; [2001] NSWCCA 251; BC200105078; (2001) 8 Crim LN 61 [1322]. A sentence cannot be suspended where the offender is serving parole in respect of another sentence: R v Edigarov (2001) 125

A Crim R 551; [2001] NSWCCA 436; BC200106767; (2001) 8 Crim LN 99 [1368]. However, there appears to be power for a court to impose a suspended sentence first and then impose a sentence of imprisonment for another offence even if that latter sentence is to be served concurrently with the suspended sentence: R v Finnie [2002] NSWCCA 533; BC200208375. As to suspended sentences generally, see the article at (2001) 8 Crim LN 81 [1345]. There is a three step process for imposing an alternative form of imprisonment such as a suspended sentence: the first step is to identify whether there are any alternatives to the imposition of a term of imprisonment (applying s 5(1)). If not, the second step is for the court to determine the appropriate term of imprisonment, without regard to the manner in which the sentence is to be served. The third step, after the court has identified the appropriate length of the term of imprisonment to be imposed, is to consider whether any alternative to full time imprisonment, such as a suspended sentence, is available and appropriate: R v Zamagias [2002] NSWCCA 17; BC200200346; (2002) 9 Crim LN 2 [1394]; Douar v R (2005) 159 A Crim R 154; [2005] NSWCCA 455; BC200511166; R v Assaad [2009] NSWCCA 182; BC200906528. In R v Egan [2013] NSWCCA 196; BC201312170, 20(10) Crim LN [3292] the court stressed the importance of determining the length of the sentence before deciding how the sentence should be served, in that case by a suspended sentence. A judge sentencing an offender for multiple offences is to consider questions of totality and to what extent the sentences for different offences should be made concurrent or cumulative, before making any decision to suspend the execution of any of the sentences under this section: R v Burnard [2009] NSWCCA 5; BC200900762 at [111]; (2009) 16(3) Crim LN 36 [2516]. A court that imposes a sentence of imprisonment of 6 months or less must make a record of its reasons for deciding that no other sentence but imprisonment is appropriate: Act s 5(2). [page 504] There is no power to postdate the commencement of a suspended sentence: R v Tolley [2004] NSWCCA 165; BC200403019 at [26]; R v Croaker [2004] NSWCCA 470; BC200409024 at [22]. Where the court suspends the sentence, it must direct that the offender enter into a good behaviour bond for a term not exceeding that of the sentence. As to the conditions that may be placed upon a good behaviour bond, see at [5-s 95]. Part 4 of the Act does not apply when imposing a sentence that is to be suspended apart from s 99. Thus the court does not set a non-parole period at the time of imposing the sentence. A non–parole period is only imposed if the bond imposed under s 12 is breached and the court revokes the order suspending the sentence: see at [5-s 99]. A court imposing a suspended sentence for a Div 1A offence (an offence for which there is a standard non-parole period) must record the reasons why a non-custodial sentence is being imposed: s 54C, see at [5-s 54C]. In R v Thawer [2009] NSWCCA 158; BC200904895; (2009) 16(7) Crim LN 97 [2583] the paucity of reasons for departing from the standard non-parole period and suspending the sentence supported the conclusion that the sentencing discretion miscarried due to a failure to take into account the existence of the standard non-parole period in any real or meaningful sense. The nature of a suspended sentence was considered in Dinsdale v R (2000) 202 CLR 321; 175 ALR 315; [2000] HCA 54; BC200006053; (2000) 7 Crim LN 74 [1197], where it was held that the power to suspend a sentence is not confined wholly, mainly or specially by considerations relating to rehabilitation and, while this may be significant, there may be other relevant matters. It is also used where it is not appropriate to send an offender to gaol for the first time: R v Kruger (1977) 17 SASR 214 at 221–2. It has been held that it would be exceptional for a suspended sentence to be imposed upon an offender who has previously received a suspended sentence: R v Walker (1981) 27 SASR 315 at 320; 3 A Crim R 200, or where the offender has breached a bond: R v Spiers (1983) 34 SASR 546 at

549, or where the offender has engaged in a course of criminality over a long period of time: Benns v Judd (1992) 58 SASR 295 at 297. In R v Blackman, above, it was held that a suspended sentence was appropriate for an armed robbery offence in exceptional circumstances. A suspended sentence is to be regarded as a real sentence and as punishment for the offence: JCE, above at [25]; R v Foster, above at [36]; R v Zamagias, above at [31]. It was wrong for a judge to treat a suspended sentence as “hardly a penalty”: Zaky v R [2015] NSWCCA 161; BC201505602; 22(7) Crim LN [3556]. However, it sometimes has the “mark of a cosmetic rather than a real punishment”: R v H (1993) 66 A Crim R 505; [1993] QCA 240; BC9303187 at 510. A suspended sentence should be regarded as being capable of reflecting both general and specific deterrence depending upon the importance of those factors in the particular case: R v Zamagias, above at [32]; Director of Public Prosecutions (Cth) v Carter [1998] 1 VR 601; (1997) 91 A Crim R 222; BC9700221. It has been held that it is not a pre-condition to suspending a sentence for a drug supply offence that it falls to the bottom of the scale of the criminality or that there are exceptional circumstances: Braithwaite v R [2005] NSWCCA 451; BC200511164; (2006) 13 Crim LN 139 [1983]. [5-s 12.5] Breach of bond Where the offender breaches the good behaviour bond the court must revoke the bond unless it is satisfied that the offender’s failure to comply with the bond was trivial or there are good reasons for excusing the offender’s failure to comply: s 98(3). The matters to be considered when determining whether to revoke a bond on a suspended sentence after breach were considered extensively in R v Bowen [1997] 2 Qd R 379; BC9606135, where it was held that a suspended sentence having been imposed, in circumstances in which a prison term was perfectly justifiable with suspension because of circumstances then prevailing, being conditional upon the offender mending his or her ways and leading a law abiding life, non-revocation of suspended sentences would tend to undermine the integrity of the system of such sentences and their effectiveness as a means of deterring future offenders. In Director of Public Prosecutions v Nouata [2009] NSWSC 72; BC200900868; (2009) 16(3) Crim LN 42 [2523] the sentencing magistrate, when asked to deal with the breach of a suspended [page 505] sentence bond, determined to take no action on the basis that the bond had very nearly expired at the time of the commission of the fresh offence and that it had since expired. It was held that the magistrate erred in failing to attend to the requirements of s 98(3). Where the bond is revoked, Pt 4 of the Act applies in relation to the sentence which was suspended: s 99(1)(c). The court may order that the sentence be served by way of intensive correction order or home detention: s 99(2). Where a person commits a further offence while subject to a suspended sentence, the breach of the suspended sentence should be dealt with before sentence is imposed for the further offence: R v Nicholson [2010] NSWCCA 80; BC201002809 at [13]–[16]; (2010) 17(6) Crim LN 87 [2740]; R v Dinh [2010] NSWCCA 74; BC201002663 at [81]–[86].

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[5-s 13] Community service orders and good behaviour bonds to be alternative penalties only

13 A court may not, in relation to the same offence, make both a community service order and an order that provides for the offender to enter into a good behaviour bond.

DIVISION 4 — FINES [5-s 14] Fines as an additional penalty to good behaviour bond 14 (1) A court may impose a fine on an offender in respect of whom it has made an order that provides for the offender to enter into a good behaviour bond if the offence to which the bond relates is an offence for which the penalty that may be imposed (otherwise than under this section) includes a fine. (2) A fine imposed as referred to in subsection (1) must not exceed the maximum fine that may be imposed apart from this section. (3) Despite subsection (1), a court may not impose a fine on an offender if it has made an order that provides for the offender to enter into a good behaviour bond referred to in section 10(1)(b). COMMENTARY ON SECTION 14

Fines Act ….

[5-s 14.1]

[5-s 14.1] Fines Act The Fines Act 1996 at [29-35,001] and following make general provisions concerning fines and their enforcement.

____________________

[5-s 15] Fines as an additional or alternative penalty to imprisonment for offences dealt with on indictment 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. [page 506]

[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].

____________________

[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] orders

Non-association and place restriction

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: [page 507] (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. (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. 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].

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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. [page 508] (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 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). [page 509]

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. 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, BadgeryParker 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) [page 510] (1988) 164 CLR 465 at 478; 77 ALR 385; BC8802593. The maximum penalty can be imposed on coaccused 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.

____________________

[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, (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,

(b) (c) (ca) (cb)

(d)

(e) (ea) (eb) (f) (g) (h)

(i) (ia)

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 offence involved the actual or threatened use of violence, the offence involved the actual or threatened use of a weapon, the offence involved the actual or threatened use of explosives or a chemical or biological agent, the offence involved the offender causing the victim to take, inhale or be affected by a narcotic drug, alcohol or any other intoxicating substance, 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), the offence was committed in company, the offence was committed in the presence of a child under 18 years of age, the offence was committed in the home of the victim or any other person, the offence involved gratuitous cruelty, the injury, emotional harm, loss or damage caused by the offence was substantial, 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), the offence was committed without regard for public safety, 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), [page 511]

(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, or because of the victim’s occupation (such as a 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. 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]

(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), (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). [subs (3) am Act 50 of 2007 s 3 and Sch 1[6], opn 1 Jan 2008]

(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. [page 512] (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]

(5B) Subsections (5A) and (5AA) have effect despite any Act or rule of law to the contrary.

[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]

(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, 61M, 61N, 61O 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, 66EA, 66EB, 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 (e) an offence of attempting, or of conspiracy or incitement, to commit 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]

[page 513] 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]

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] [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) offence committed in presence of child …. Section 21A(2)(eb) offence occurring in victim’s home …. Section 21A(2)(f) gratuitous cruelty …. Section 21A(2)(g) substantial injury ….

[5-s 21A.1] [5-s 21A.5]

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) position of trust …. Section 21A(2)(l) vulnerability of the 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)(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 …. Exclusion of self-induced intoxication as a mitigating factor …. Special rule for child sexual offences ….

[5-s 21A.10]

[5-s 21A.15] [5-s 21A.20]

[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). 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 [page 514] 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. For example, the fact that 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]. 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]. 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: [page 515]

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], [5220]; (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 [5210]; (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 [5300]; (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] 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]. [page 516] 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 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]. [page 517] 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) offence committed in presence of 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. Section 21A(2)(eb) offence occurring in victim’s home The fact that the offence was a break, enter and steal of a dwelling house and inflicting corporal violence did not prevent the judge from taking into account that the offences took place against the householder under this aggravating factor: Palijan v R [2010] NSWCCA 142; BC201004913; 17(8) Crim LN 120 [2776]. The aggravating factor is not necessarily irrelevant simply because the offender was entitled to be in the home of the victim, for example as the joint occupier: see Melbom v R [2013] NSWCCA 210; BC201303446; 20(10) Crim LN [3299] and Montero v R [2013] NSWCCA 214; BC201312830; 20(10) Crim LN [3300], where the victim was present in the home as a guest. The offence can be aggravated because it is a breach of the “expectation of safety and security” held by the victim being in a home. There is some question about the precise extent of the aggravating factor; for example whether it would apply where the accused, a guest in the premises, had been asked to leave by the victim: Aktar v R [2015] NSWCCA 123; BC201504489; 22(7) Crim LN [3558]. This aggravating factor applies to an offence of aggravated breaking and entering under s 112(2) 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]. 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:

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 [page 518] 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 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 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 [page 519] 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 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]. Section 21A(2)(k) position of trust 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]. Section 21A(2)(l) vulnerability of the 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. [page 520] 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. 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]. 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. 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. 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 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 [page 521] 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. 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]. [5-s 21A.10] Mitigating factors 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 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. 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]. [page 522] 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]. 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]. 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]. [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.

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[5-s 22]

Guilty plea to be taken into account

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]

[page 523] (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. COMMENTARY ON SECTION 22

Discount for guilty plea ….

[5-s 22.1]

[5-s 22.1] 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]. The section was amended to include subpara (c) in subs (1). In respect of that amendment the second reading speech includes the following: 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 [page 524] 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. 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 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 [page 525] 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. 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 [page 526] 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. 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]. 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]. 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. [page 527]

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]. A similar provision applies in respect of the sentencing of children, see the Children (Criminal Proceedings) Act 1987 s 33B at [16-15,565].

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[5-s 22A] Power to reduce penalties for facilitating the administration of justice 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]. [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.

____________________ [page 528]

[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]

(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 ….

[5-s 23.1] [5-s 23.5] [5-s 23.10] [page 529]

[5-s 23.1] Assistance to the authorities 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. 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 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 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. 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.

[page 530] 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 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 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. 2. 3. 4.

The offender carries the burden of proving assistance to the authorities, as a matter going to mitigation. The Crown should assist the offender in the discharge of that burden. 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. 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

5.

basis that the information in it will not be used against the offender, and with its use restricted accordingly. 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. [page 531]

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 24]

Court to take other matters into account

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 service order, good behaviour bond or intervention program order: [page 532] (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 (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 or good behaviour bond, anything done by the offender in compliance with the offender’s obligations under the intervention program order or good behaviour bond, 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] 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 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 [page 533] (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 (whether as a high risk sex offender or as a high risk violent offender). [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]

(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 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) a home detention order, (d) a community service order, (e) an order that provides for the offender to enter into a good behaviour bond, (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]

(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]

[page 534] (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 …. [5-s 25.1] Law Part Code The Law Part Code for s 25(2) is 36612.

[5-s 25.1]

____________________

DIVISION 2 — VICTIM IMPACT STATEMENTS [5-s 26]

Definitions

26 In this Division: 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. member of the primary victim’s immediate family means: (a) the victim’s spouse, or (b) the victim’s de facto partner, or (b1) a person to whom the victim is engaged to be married, or (c) a parent, grandparent, guardian or step-parent of the victim, or (d) a child, grandchild or step-child of the victim or some other child for whom the victim is the guardian, or (e) a brother, sister, half-brother, half-sister, step-brother or stepsister of the victim. Note. “De facto partner” is defined in section 21C of the Interpretation Act 1987. [def am Act 127 of 2006 s 4 and Sch 2(2.1) items [1]–[4], opn 16 Feb 2007; Act 19 of 2010 Sch 3.31, opn 19 May 2010]

personal harm means actual physical bodily harm or psychological or psychiatric harm. [def am Act 81 of 2008 s 3 and Sch 1, opn 1 Jan 2009]

prescribed sexual offence has the same meaning as it has in the Criminal Procedure Act 1986. [def insrt Act 81 of 2008 s 3 and Sch 1, opn 1 Jan 2009]

primary victim, in relation to an offence, means: (a) a person against whom the offence was committed, or [page 535]

(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. [def am Act 81 of 2008 s 3 and Sch 1, opn 1 Jan 2009]

victim means a primary victim or a family victim. victim impact statement means a statement containing particulars of: (a) in the case of a primary victim, any personal harm suffered by the victim as a direct result of the offence, or (b) in the case of a family victim, the impact of the primary victim’s death on the members of the primary victim’s immediate family.

[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. [subs (1) am Act 40 of 2000 s 140 and Sch 2.1[1], opn 1 Sep 2001; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009]

(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 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. [subs (2) am Act 81 of 2008 s 3 and Sch 1, opn 1 Jan 2009; Act 67 of 2011 Sch 4.4[1], opn 1 Jan 2012]

(2A) 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. [subs (2A) insrt Act 40 of 2000 s 140 and Sch 2.1[2], opn 1 Sep 2001; am Act 97 of 2008 s 178 and Sch 4, opn 1 Jan 2009; Act 67 of 2011 Sch 4.4[2], opn 1 Jan 2012; Act 82 of 2012 Sch 2 item 2.2, opn 20 Jan 2013]

(3) 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 [page 536] (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. [subs (3) am Act 3 of 2004 s 3 and Sch 1[1], opn 31 July 2004; Act 81 of 2008 s 3 and Sch 1, opn 1 Jan 2009; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009]

(4) 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.

[5-s 28] When victim impact statements may be received and considered 28 (1) If it considers it appropriate to do so, a court may receive and consider a victim impact statement at any time after it convicts, but before it sentences, an offender. [subs (1) am Act 40 of 2000 s 140 and Sch 2.1[3], opn 1 Sep 2001; Act 3 of 2004 s 3 and Sch 1[2], opn

31 July 2004]

(2) A victim impact statement may also be received and 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) If the primary victim has died as a direct result of the offence, a court must receive a victim impact statement given by a family victim and acknowledge its receipt, and may make any comment on it that the court considers appropriate. [subs (3) am Act 40 of 2000 s 140 and Sch 2.1[3], opn 1 Sep 2001; Act 3 of 2004 s 3 and Sch 1[2], opn 31 July 2004]

(4) A victim impact statement given by a family victim may, on the application of the prosecutor and if the court considers it appropriate to do so, be considered and 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 the primary victim’s death on the members of the primary victim’s immediate family is an aspect of harm done to the community. [subs (4) subst Act 18 of 2014 Sch 1[1], opn 1 July 2014]

(4A) Subsection (4) does not affect the application of the law of evidence in proceedings relating to sentencing. [subs (4A) insrt Act 18 of 2014 Sch 1[1], opn 1 July 2014]

(5) A court may make a victim impact statement available to the prosecutor, to the offender or to any other person on such conditions (which must include conditions preventing the offender from retaining copies of the statement) as it considers appropriate. [subs (5) am Act 40 of 2000 s 140 and Sch 2.1[3], opn 1 Sep 2001; Act 3 of 2004 s 3 and Sch 1[3], opn 31 July 2004]

(6) Despite any other provision of this section, a court must not consider or take into account a victim impact statement under this section unless it has been given by or on behalf of the victim to whom it relates or by or on behalf of the prosecutor. [subs (6) insrt Act 18 of 2014 Sch 1[2], opn 1 July 2014] COMMENTARY ON SECTION 28

Victim impact statements …. Victim impact statements by family victims ….

[5-s 28.1] [5-s 28.5] [page 537]

[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].

____________________

[5-s 29]

Victim impact statements discretionary

29 (1) The giving of a victim impact statement is not mandatory. (2) A victim impact statement may not be received or considered by a court if the victim or any of the victims to whom the statement relates objects to the statement being given to the court. [page 538] (3) The absence of a victim impact statement does not give rise to an inference that an offence had little or no impact on a victim. (4) The absence of a victim impact statement given by a family victim does not give rise to an inference that an offence had little or no impact on the members of the primary victim’s immediate family. [subs (4) insrt Act 18 of 2014 Sch 1[3], opn 1 July 2014]

[5-s 30] Formal requirements for victim impact statements 30 (1) A victim impact statement must be in writing and must comply with such other requirements as are prescribed by the regulations. (1A) Photographs, drawings or other images may be included in the victim impact statement, subject to compliance with any requirements relating to the inclusion of such matters that are prescribed by the regulations. [subs (1A) insrt Act 81 of 2008 s 3 and Sch 1, opn 1 Jan 2009]

(2) If a primary victim is incapable of providing information for or objecting to a victim impact statement about the personal harm suffered by the victim (by reason of age, impairment or otherwise), a person having parental responsibility for the victim, a member of the primary victim’s immediate family or any other representative of the victim may, subject to the regulations, act on behalf of the victim for that purpose. [subs (2) subst Act 81 of 2008 s 3 and Sch 1, opn 1 Jan 2009]

(3) A court may receive and consider a victim impact statement only if it is given in accordance with and complies with the requirements prescribed by or under this Division.

COMMENTARY ON SECTION 30

Formal requirements ….

[5-s 30.1]

[5-s 30.1] Formal requirements See cl 9 of the Crimes (Sentencing Procedure) Regulation 2010, at [510,180], concerning the form of a victim impact statement. See cl 10 of that Regulation, at [5-10,185], concerning the content of a victim impact statement. Clause 8 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 11 Crimes (Sentencing Procedure) Regulation 2005, 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; (2001) 8 Crim LN 23 [1270].

____________________

[5-s 30A] in court

Reading out victim impact statements

30A (1) If a victim impact statement has been duly received by a court, a victim to whom it relates, or a person having parental responsibility for the victim, or a member of the immediate family, or other representative, of the victim, is entitled to read out the whole or any part of the statement to the court. [subs (1) am Act 81 of 2008 s 3 and Sch 1, opn 1 Jan 2009]

(2) The statement may be read out at such time as the court determines after it has convicted, but before it sentences, the offender. [page 539] (3) 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 statement in accordance with those closed-circuit television arrangements. [subs (3) insrt Act 81 of 2008 s 3 and Sch 1, opn 1 Jan 2009]

(4) For the purposes of this section, 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. [subs (4) insrt Act 81 of 2008 s 3 and Sch 1, opn 1 Jan 2009] [s 30A insrt Act 10 of 2003 s 3 and Sch 1[2], opn 23 June 2003]

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, home detention order or community service 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. [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] charges

Prosecutor may file list of additional

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 [page 540] (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]

(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 2010, at [5-10,110]. For the purposes of s 32(5)(b), prescribed persons are police officers, the Commissioner for Fair Trading, Department of Services, Technology and Administration and the Chief Executive Officer of the WorkCover Authority of New South Wales: cl 4(2), Crimes (Sentencing Procedure) Regulation 2010, at [5-10,110].

____________________

[5-s 33] account

Outstanding charges may be taken into

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. [page 541] (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 ….

[5-s 33.1] [5-s 33.5]

[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;

[page 542] [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]. 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 [page 543] 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 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.

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[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] account

Consequences of taking offences into

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. (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 [page 544] 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 offence or offences with which the offender has been charged or committed for trial. 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. (2) A court must not take into account offences specified in a list of additional charges under section 32 in relation to an 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. (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]

(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. [s 35A insrt Act 136 of 2010 Sch 1.2[10], opn 14 Mar 2011]

[page 545] COMMENTARY ON SECTION 35A

Prescribed persons ….

[5-s 35A.5]

[5-s 35A.5] Prescribed persons See cl 7A of the Crimes (Sentencing Procedure) Regulation 2010 at [5-10,130] for persons prescribed for the purpose of s 35A(3).

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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] COMMENTARY ON SECTION 37

Guideline judgments …. Guideline judgments and the standard non-parole period offence scheme ….

[5-s 37.1] [5-s 37.5] [page 546]

[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 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 [page 547]

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].

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[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]

[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]

[page 548] (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.

[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. [subs (1) am Act 117 of 2001 s 3 and Sch 5[7], opn 18 Dec 2001]

[page 549] (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. (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.

[page 550] (6) In this section: impose a penalty includes: (a) impose a sentence of imprisonment or a fine, or (b) make an intensive correction order, home detention order or community service 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, 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] 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. [page 551] [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].

____________________

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 nonparole 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 ….

[5-s 44.1] [5-s 44.5] [5-s 44.10] [5-s 44.15] [5-s 44.20] [page 552]

Fixing the non-parole period for standard non-parole period offences …. Record of reasons …. Consequence of failure to comply with s 44(2) ….

[5-s 44.25] [5-s 44.30] [5-s 44.35]

Life sentence redetermination ….

[5-s 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 nonparole sentencing scheme in Div 1A of Pt 4 of the Act. Note that a court may decline to set a nonparole 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 Moffitt (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]:

[page 553] In R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131; BC200402624 the court held: [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. [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 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 Moffitt (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 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. [page 554] 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 nonparole 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 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 [page 555] 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. 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 [page 556] 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]. [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-Sch1] makes provision for redetermination of a life sentence of imprisonment in certain circumstances: see generally: Pollock v R [2007] NSWSC 148; BC200701139; ASP v R [2007] NSWSC 339; BC200702526.

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[5-s 45] period

Court may decline to set non-parole

45 (1) When sentencing an offender to imprisonment for an offence or, in the case of an aggregate sentence of imprisonment, for offences (other than an offence or offences set out in the Table to Division 1A of this Part), 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]

(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. (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 When a court is sentencing an offender to a term of imprisonment for a standard non-parole period offence under Div 1A of Pt 4 of the Act (see [5-s 54A] and following), s 45 does not apply to permit the court to decline to set a non-parole period. The explanatory note to the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Bill 2002 stated that the amendment to s 45 “avoids the possibility that an offender sentenced under section 45 for an offence subject to a standard non-parole period would actually be subject to a shorter total sentence than an offender who was sentenced for the same offence” under s 44 of the Act.

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[5-s 46] Court not to set non-parole period for sentence of 6 months or less 46 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.

[5-s 47]

Commencement of sentence

47 (1) A sentence of imprisonment commences: (a) subject to section 71 and to any direction under subsection (2), on the day on which the sentence is imposed, or (b) if the execution of the sentence is stayed under section 80, on the day on which the court decides whether or not to make a home detention order in relation to the sentence. [subs (1) am Act 48 of 2010 Sch 1, opn 1 Oct 2010]

(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 [page 558] (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: (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. [subs (5) am Act 136 of 2010 Sch 2[9], opn 14 Mar 2011]

(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 (see [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]. 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 [page 559]

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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[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 [page 560] (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 (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. [subs (2) insrt Act 136 of 2010 Sch 2[13], opn 14 Mar 2011]

[5-s 50]

Making of parole orders by court

50 (1) When a court imposes a sentence of imprisonment for a term of 3 years or less, being a sentence that has a non-parole period, the court must make an order directing the release of the offender on parole at the end of the non-parole period. (2) A parole order may be made under this section even though at the time

it is made it appears that the offender may not be eligible for release at the end of the non-parole period because of some other sentence to which the offender is subject. (3) The failure of a court to comply with the requirements of this section with respect to a sentence does not invalidate the sentence. COMMENTARY ON SECTION 50

Parole orders ….

[5-s 50.1]

[5-s 50.1] Parole orders See cl 5 of the Crimes (Sentencing Procedure) Regulation 2010 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 (1) A court may impose such conditions as it considers appropriate on any parole order made by it. (1A) The conditions of a parole order may include conditions requiring that the offender to whom the order relates be subject to supervision prescribed by the regulations under the Crimes (Administration of Sentences) Act 1999 during the period specified by or under the order or those regulations. [subs (1A) insrt Act 43 of 2000 Sch 3[7], opn 31 July 2000]

(1AA) If, in making a parole order, the court does not impose any such conditions in relation to the supervision of the offender, the parole order is, unless the court expressly states that the offender is not to be subject to supervision, taken to include conditions requiring that the offender be subject to supervision prescribed by the regulations under the Crimes (Administration of Sentences) Act 1999 while released on parole. [subs (1AA) insrt Act 25 of 2003 s 3 and Sch 1, opn 3 Nov 2003]

[page 561]

(1B) [subs (1B) rep Act 48 of 2010 Sch 1, opn 1 Oct 2010] (2) The conditions imposed by the court must not be inconsistent with the standard conditions imposed by the regulations under the Crimes (Administration of Sentences) Act 1999. COMMENTARY ON SECTION 51

Parole conditions ….

[5-s 51.1]

[5-s 51.1] Parole conditions See cl 6(1) of the Crimes (Sentencing Procedure) Regulation 2010, at [510,120], for consultation required before conditions as to residence or treatment are imposed on parole. See cl 6(2) of the Crimes (Sentencing Procedure) Regulation 2010, 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 nonassociation and place restriction 51A (1) The conditions to which a parole order is subject may include either or both of the following: (a) provisions prohibiting or restricting the offender from associating with a specified person, (b) provisions prohibiting or restricting the offender from frequenting or visiting a specified place or district. (2) A condition referred to in subsection (1)(a) or (b) 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 (2) am Act 15 of 2015 Sch 3.17[2], opn 15 July 2015]

(3) An offender does not contravene a prohibition or restriction as to his or her association with a specified person: (a) if the offender does so in compliance with an order of a court, or (b) if, having associated with the person unintentionally, the offender immediately terminates the association. (4) An offender does not contravene a requirement not to frequent or visit a specified place or district if the offender does so in compliance with an order of a court. [s 51A insrt Act 100 of 2001 s 3 and Sch 1.1[6], opn 22 July 2002]

[page 562]

[5-s 51B] Certain information not to be published or broadcast 51B (1) A person must not publish or broadcast: (a) the fact that a named person (other than the offender) is specified in a condition of a parole order referred to in section 51A(1)(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 parole 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 parole order or of any penalty to which the offender is subject while on parole, (e) any person involved in proceedings for an alleged breach of the parole order, (f) any other person specified in the parole order as a person to whom such information may be disclosed,

any other person to whom such information is required to be (g) 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] [s 51B insrt Act 100 of 2001 s 3 and Sch 1.1[6], opn 22 July 2002] COMMENTARY ON 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.

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[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. [page 563]

(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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[5-s 53A]

Aggregate sentences of imprisonment

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] [page 564]

[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 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

4.

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. 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 [page 565]

5.

6.

7.

8.

9.

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]. 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]. 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]. 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]. 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]. 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 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”. 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.

____________________

[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 [page 566] (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]

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] period?

What is the standard non-parole

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 nonparole 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 nonparole 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 of standard non-parole period in sentencing

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. [page 567] (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. (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. [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 nonparole period for an offence that is longer or shorter than the standard nonparole 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]. [page 568] 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 nonparole 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 nonparole 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 proper approach to sentencing for an offence in respect of which a standard non-parole period exists was considered by the High Court in Muldrock v R. Much of the case law on the application of the standard non-parole period as laid down by the NSW Court of Criminal Appeal prior to this decision should now be considered in the light of the reasons of the High Court. In particular, the court held that R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131; BC200402624 should not be followed in its interpretation of the provisions of s 54B. The proper approach to sentencing for an offence in respect of which a standard non-parole period exists was considered by the High Court in Muldrock v R (2011) 281 ALR 652; 85 ALJR 1154; [2011] HCA 39; BC201107577; 18(10) Crim LN [2982]. Much of the case law on the application of the

standard non-parole period as laid down by the NSW Court of Criminal Appeal prior to this decision should now be considered in the light of the reasons of the High Court. In particular, the court held that R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131; BC200402624 should not be followed in its interpretation of the provisions of s 54B. The High Court relevantly held that a two-staged approach to sentencing for standard non-parole period cases was not required and insofar as that approach was suggested by the court in Way — particularly as, subsequently applied, that decision is erroneous. In respect to the reasoning in Way the court in Muldrock held at [25]: it was an error to characterise s 54B(2) as framed in mandatory terms. The court is not required when sentencing for a Div 1A offence to commence by asking whether there are reasons for not imposing the standard non-parole period nor to proceed to an assessment of whether the offence is within the midrange of objective seriousness. The principles that can be extracted from the decision of the High Court in regard to sentencing pursuant to s 54B are: the section applies regardless of whether the offender is convicted after trial or on a plea of guilty; the section does not require or permit a staged, or two-step, approach to sentencing by way either of a separate consideration and classification of the objective seriousness of the offence committed or by first determining whether there are reasons to depart from the standard nonparole period; the standard non-parole period represents the non-parole period for a hypothetical offence in the middle range of objective seriousness without regard to factors affecting the sentence for a particular offender; the sentencing court is to take into account the whole range of relevant circumstances in determining the appropriate sentence but bearing in mind two “legislative guideposts”, being the maximum penalty and the standard non-parole period; full reasons should be given for the specification of the non-parole period, either higher or lower than the standard non-parole period, to assist in appellate review, consistency and public awareness; the existence of a standard non-parole period may in some cases result in an increase in the nonparole period for certain offences coming under the Division. [page 569] The following established principles would appear to be consistent with this approach: the standard non-parole period is not a starting point in determining the sentence but merely a reference or guide: R v Mulato [2006] NSWCCA 282; BC200607186; it is wrong to approach the task by merely adding to, or subtracting from, the relevant standard non-parole period aggravating or mitigating factors: Tidona v R [2005] NSWCCA 410; BC200510433; the sentence should not be described as a percentage of the standard non-parole period: R v Sangalang [2005] NSWCCA 171; BC200502640 and Maxwell v R (2007) 177 A Crim R 498; [2007] NSWCCA 304; BC200709854; 14(11) Crim LN [2307] where the sentencing judge commenced with the sentence based upon the standard non-parole period and deducted from it a period to represent the degree to which the offence fell below an offence of midrange seriousness; it is a relevant consideration in a standard non-parole case that the offence could have been

dealt with in the Local Court where the scheme does not apply: Bonwick v R [2010] NSWCCA 177; BC201006385; the standard non-parole period is not relevant where the scheme does not apply: R v Ohar (2004) 59 NSWLR 596; 145 A Crim R 453; [2004] NSWCCA 83; BC200402130, such as when sentencing a juvenile: AE v R [2010] NSWCCA 203; BC201006706; 17(10) Crim LN [2805]. Muldrock has been considered and interpreted in R v Koloamatangi [2011] NSWCCA 288; BC201110367; 19(2) Crim LN [3023] and Beveridge v R [2011] NSWCCA 249; BC201109100; 19(2) Crim LN [3019]. It has been held that it is not necessarily an error to follow R v Way in a sentence imposed before Muldrock where the court did not fall into an erroneous determination of the non-parole period by an application of a two-step sentencing approach nor made an evaluation of the objective seriousness of the offence at variance with the approach taken by the High Court: Butler v R [2012] NSWCCA 23; BC201201623; 19(4) Crim LN [3045]. There have been a number of cases concerned with the effect of the decision in Muldrock and the over-ruling of R v Way. They include: Bolt v R [2012] NSWCCA 50; BC201202118; 19(5) Crim LN [3054] (as to the misuse of the two-step approach); Zreika v R [2012] NSWCCA 44; BC201202119; 19(5) Crim LN [2057] (the use of a general assessment of objective seriousness of the offence is not to be avoided) and Yang v R [2012] NSWCCA 49; BC201201671; 19(5) Crim LN [3056] (the relevance of personal attributes of the offender, such as mental illness in an assessment of the objective seriousness of an offence). [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. [page 570] (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].

____________________

[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]

[page 571] Table Standard non-parole periods Item Offence No 1A

1B 1 2 3 4 4AA 4AB 4A

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

Standard non-parole period 25 years

25 years 20 years 10 years 10 years 7 years 9 years 9 years 5 years

4B 4C 4D 5 6 7 8 9 9A 9B 10 10A

10B 10C 10D 10E

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) Section 61JA of the Crimes Act 1900 (aggravated sexual assault in company) Section 61M(1) of the Crimes Act 1900 (aggravated indecent assault) Section 61M(2) of the Crimes Act 1900 (aggravated indecent assault) 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)

4 years 4 years 3 years 3 years 5 years 7 years 10 years 15 years 5 years 8 years 15 years 10 years

7 years 9 years 5 years 6 years

[page 572]

Table Standard non-parole periods Item Offence No 10F 10G 10H 10I 10J 10K

10L 10M 10N

10O

10P

11 12

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) Section 112(2) of the Crimes Act 1900 (breaking etc into any house etc and committing serious indictable

Standard non-parole period 5 years 6 years 5 years 5 years 4 years 6 years

6 years 6 years 5 years

6 years

6 years

7 years 5 years

13

14

15

15A 15B 15C

16

offence in circumstances of aggravation) Section 112(3) of the Crimes Act 1900 (breaking etc into any house etc and committing serious indictable offence in circumstances of special aggravation) Section 154C(1) of the Crimes Act 1900 (taking motor vehicle or vessel with assault or with occupant on board) Section 154C(2) of the Crimes Act 1900 (taking motor vehicle or vessel with assault or with occupant on board in circumstances of aggravation) Section 154G of the Crimes Act 1900 (organised car or boat rebirthing activities) Section 203E of the Crimes Act 1900 (bushfires) 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 Section 24(2) of the Drug Misuse and Trafficking Act 1985 (manufacture or production of commercial quantity of prohibited drug), being an offence that:

7 years

3 years

5 years

4 years 5 years 10 years

10 years

[page 573] Table Standard non-parole periods Item Offence No

17

Standard non-parole period

(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 15 years

18

19

20 21 22 23

24

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 (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

10 years

15 years

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]

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 [page 574] (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 nonparole period has not been set. (5) This section does not apply 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 (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. [page 575] 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 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 [page 576] 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. 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].

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[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:

who, when being sentenced, is subject to another sentence of (a) 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. [page 577] (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 nonparole period has not been set. (6) In this section, a reference to another sentence of imprisonment, other sentence 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. [subs (6) insrt Act 130 of 2002 s 3 and Sch 5[5], opn 13 Jan 2003]

[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 nonparole period has not been set. [page 578]

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. 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].

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[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]

(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). [page 579] sentence of imprisonment includes an order referred to in section 33(1) (g) of the Children (Criminal Proceedings) Act 1987. [s 58 subst Act 85 of 2003 s 3 and Sch 2[1], opn 14 Feb 2004] 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 [5Sch 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.

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[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. 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.

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[5-s 60] Application of Division to interstate sentences of imprisonment 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:

the offender was less than 16 years of age when the offence was (a) 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 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. [page 581] (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].

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[5-s 60D]

Effect of provisional sentence

60D (1) A provisional sentence is subject to review and redetermination under this Division. (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. [page 582]

[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 (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 [page 583] (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] sentence

Time limit for imposition of final

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 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.

[page 584]

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. 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. 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 [page 585] 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. 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.

[page 586] (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 or 6 in relation to the making of an intensive correction order or home detention order, or (b) to a sentence of imprisonment the subject of an intensive correction order or home detention order. [subs (4) am Act 48 of 2010 Sch 1, opn 1 Oct 2010] 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 or home detention 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]

(3) Nothing in this section prevents a court from making any other order with respect to the taking of an offender’s identifying particulars. (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]

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. [page 587] COMMENTARY ON SECTION 64

Intensive corrections order …. Administration of the order ….

[5-s 64.1] [5-s 64.5]

[5-s 64.1] Intensive corrections order As to the imposition of intensive corrections orders see at [5-s 7.1]. Administration of an order imposed by the court is governed by Pt 3 of the Crimes (Administration of Sentences) Act: see at [24-s 80] and following. [5-s 64.5] Administration of the order See Part 3 of the Crimes (Administration of Sentences) Act at [24-s 80] and following in relation to the obligations of the person to whom the order relates and the performance of the sentence.

____________________

[5-s 65]

Definitions

65 In this Part: assessment report means a report prepared under section 70. offender’s obligations under an intensive correction order means the obligations that the offender has under section 82 of the Crimes (Administration of Sentences) Act 1999 as a consequence of the making of the order.

DIVISION 2 — RESTRICTIONS ON POWER TO MAKE INTENSIVE CORRECTION ORDERS [5-s 66] Intensive correction not available for certain sexual offences 66 (1) An intensive correction order may not be made in respect of a sentence of imprisonment for a prescribed sexual offence or with respect to an aggregate sentence of imprisonment with respect to 2 or more offences, any one of which is a prescribed sexual offence. [subs (1) am Act 136 of 2010 Sch 2[18], opn 14 Mar 2011]

(2) In this section, 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 that includes the commission of, or an intention to commit, an offence referred to in paragraph (a), or (c) an offence that, at the time it was committed, was a prescribed sexual offence within the meaning of this definition, or (d) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in paragraph (a), (b) or (c).

[5-s 67] Suitability of offender for intensive correction order 67 (1) An intensive correction order may not be made with respect to an offender’s sentence of imprisonment unless the court is satisfied: [page 588] (a) that the offender is of or above the age of 18 years, and (b) that the offender is a suitable person to serve the sentence by way of intensive correction in the community, and (c) that it is appropriate in all of the circumstances that the sentence be served by way of intensive correction in the community, and (d) that the offender has signed an undertaking to comply with the offender’s obligations under the intensive correction order. (2) In deciding whether or not to make an intensive correction order, the court is to have regard to: (a) the contents of the assessment report on the offender (prepared under section 70), and (b) such evidence from the Commissioner of Corrective Services as the court considers necessary for the purpose of deciding whether to make such an order. (3) A court may, for any reason it considers sufficient, decline to make an intensive correction order despite the contents of the assessment report. (4) A court may make an intensive correction order with respect to an

offender’s sentence of imprisonment only if the assessment report states that, in the opinion of the person making the assessment, the offender is a suitable person to serve the sentence by way of intensive correction in the community. (5) If a court declines to make an intensive correction order with respect to an offender’s sentence of imprisonment despite an assessment report that states that the offender is a suitable person to serve the sentence by way of intensive correction in the community, the court must indicate to the offender, and make a record of, its reasons for doing so. (6) A sentence of imprisonment is not invalidated by a failure to comply with subsection (5). COMMENTARY ON SECTION 67

Sentencing after ICO report ….

[5-s 67.1]

[5-s 67.1] Sentencing after ICO report Where a judge ordered an ICO report, which stated that the offender was suitable for an ICO order, there was no lack of procedural fairness when the judge sentenced the offender to full-time custody without a further hearing and where the offender could not have any reasonable expectation of any particular sentence being imposed: Thomson v R [2014] NSWCCA 88; BC201403737; 21(6) Crim LN [3390].

____________________

[5-s 68]

Concurrent and consecutive sentences

68 (1) An intensive correction order may not be made in respect of a sentence of imprisonment (a new sentence) to be served concurrently or consecutively (or partly concurrently and partly consecutively) with any other sentence of imprisonment the subject of an intensive correction order (an existing sentence) if the date on which the new sentence will end is more than 2 years after the date on which it was imposed. (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 limit the operation of section 58. [page 589]

DIVISION 3 — ASSESSMENT REPORTS

[5-s 69]

Referral of offender for assessment

69 (1) Before imposing a sentence of imprisonment on an offender, the court may refer the offender for assessment as to the suitability of the offender for intensive correction in the community. (2) A court is not to refer an offender for such an assessment unless satisfied, having considered all the alternatives, that no sentence other than imprisonment is appropriate and that the sentence is likely to be for a period of no more than 2 years. COMMENTARY ON SECTION 69

Assessment reports ….

[5-s 69.1]

[5-s 69.1] Assessment reports See cl 15 of the Crimes (Sentencing Procedure) Regulation 2010, at [510,305], for the matters to be assessed for the purpose of a s 69 report.

____________________

[5-s 70]

Assessment of suitability

70 (1) When an offender is referred for assessment, the Commissioner of Corrective Services is to investigate and report to the court on the matters referred to in section 67(1) and such other matters as the regulations may require. (2) An offender’s assessment report: (a) must take into account, and specifically address, the matters prescribed by the regulations, and (b) may indicate the nature of any conditions that it would be appropriate for the court to impose on an intensive correction order if such an order is made. (3) The regulations may make provision for or with respect to the conduct of investigations and the preparation of reports for the purposes of this Part.

DIVISION 4 — MISCELLANEOUS [5-s 71]

Commencement of ICOs

71 An intensive correction order commences on the date on which it is made. [s 71 subst Act 67 of 2015 Sch 1.7[1], opn 24 Nov 2015]

[5-s 72] Explanation of intensive correction order to offender 72 (1) Having made an intensive correction order in relation to an offender’s sentence of imprisonment, 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 intensive correction order, and (b) the consequences that may follow if the offender fails to comply with those obligations. (2) An intensive correction order is not invalidated by a failure to comply with this section.

[5-s 73] Preparation and service of written notice of intensive correction order 73 (1) As soon as practicable after making an intensive correction order, a court must cause written notice of the order to be given to the offender and to the Commissioner of Corrective Services. [page 590] (2) The notice must include such information about the intensive correction order as may be prescribed by the regulations. (3) An intensive correction order is not invalidated by a failure to comply with this section. COMMENTARY ON SECTION 73

Warrant of commitment ….

[5-s 73.1]

[5-s 73.1] Warrant of commitment A warrant for committal of an offender referred to in s 73(1) is to be in the approved form: cl 17, Crimes (Sentencing Procedure) Regulation 2010 at [5-10,315].

____________________

[5-s 73A]

Review of ICO provisions

73A (1) The Sentencing Council is to conduct a review of the provisions of this Part and Part 3 of the Crimes (Administration of Sentences) Act 1999 and of any regulations made for the purposes of those provisions in order to ascertain whether any of those provisions (or any other provisions of any other Act or regulations) should be amended. (2) The review is to be undertaken as soon as possible after the period of 5 years from the commencement of this section and a report on the outcome of the review is to be provided to the Minister and to the Minister administering Part 3 of the Crimes (Administration of Sentences) Act 1999 within 12 months after the end of that 5 years. (3) The Minister is to cause a copy of the report to be tabled in each House of Parliament as soon as practicable after the report is received by the Minister.

PART 6 — SENTENCING PROCEDURES FOR HOME DETENTION ORDERS DIVISION 1 — PRELIMINARY [5-s 74]

Application

74 This Part applies in circumstances in which a court is considering, or has made, a home detention order.

[5-s 75]

Definitions

75 In this Part: assessment report means a report prepared under section 81. domestic violence offence has the same meaning as it has in the Crimes (Domestic and Personal Violence) Act 2007. offender’s obligations under a home detention order means the

obligations that the offender has under section 104 of the Crimes (Administration of Sentences) Act 1999 as a consequence of the making of the order. [s 75 am Act 73 of 2006 s 4 and Sch 3.7[1], opn 12 Mar 2007; Act 80 of 2007 s 103 and Sch 2.8[2], opn 10 Mar 2008]

[page 591]

DIVISION 2 — RESTRICTIONS ON POWER TO MAKE HOME DETENTION ORDERS [5-s 76] Home detention not available for certain offences 76 A home detention order may not be made in respect of a sentence of imprisonment for any of the following offences or with respect to an aggregate sentence of imprisonment with respect to 2 or more offences, any one of which is one of the following offences: (a) murder, attempted murder, manslaughter or an offence under section 25A of the Crimes Act 1900, (b) sexual assault of adults or children or sexual offences involving children, (c) armed robbery, (d) any offence involving the use of a firearm, or an imitation firearm, within the meaning of the Firearms Act 1996, (e) assault occasioning actual bodily harm (or any more serious assault, such as malicious wounding or assault with intent to do grievous bodily harm), (f) an offence under section 13 of the Crimes (Domestic and Personal Violence) Act 2007 or section 545AB or 562AB of the Crimes Act 1900 of stalking or intimidating a person with the intention of causing the person to fear personal injury, (g) a domestic violence offence against any person with whom it is likely the offender would reside, or continue or resume a

relationship, if a home detention order were made, (h) an offence under section 23(2), 24(2), 25(2), 26, 27 or 28 of the Drug Misuse and Trafficking Act 1985 involving a commercial quantity of a prohibited plant or prohibited drug within the meaning of that Act, (i) any offence prescribed by the regulations for the purposes of this paragraph. [s 76 am Act 73 of 2006 s 4 and Sch 3.7[2], opn 12 Mar 2007; Act 80 of 2007 s 103 and Sch 2.8[3], opn 10 Mar 2008; Act 40 of 2010 Sch 3, opn 9 July 2010; Act 136 of 2010 Sch 2[19], opn 14 Mar 2011; Act 2 of 2014 Sch 6.2, opn 31 Jan 2014] COMMENTARY ON SECTION 76

Excluded offences ….

[5-s 76.1]

[5-s 76.1] Excluded offences The proper construction of s 76 was considered in R v A2; R v Magennis; R v Vaziri (No 24) [2016] NSWSC 737; BC201604468, where it was held (at [25]–[39]) that a conclusion that home detention was not available because of s 76 can be reached only by use of clear words or necessary implication, applying R v Pogson; R v Lapham; R v Martin (2012) 82 NSWLR 60; 91 ACSR 420; [2012] NSWCCA 225; BC201208084 at [38]–[40].

____________________

[5-s 77] Home detention not available for offenders with certain history 77 (1) A home detention order may not be made for an offender: (a) who has at any time been convicted of any of the following offences: (i) murder, attempted murder or manslaughter, (ii) sexual assault of adults or children or sexual offences involving children, or (b) who has at any time been convicted of an offence under section 13 of the Crimes (Domestic and Personal Violence) Act 2007 or section 545AB or [page 592]

562AB of the Crimes Act 1900 of stalking or intimidating a person with the intention of causing the person to fear personal injury, or (c) who has at any time within the last 5 years been convicted of a domestic violence offence against any person with whom it is likely the offender would reside, or continue or resume a relationship, if a home detention order were made, or (d) who has at any time been convicted of any offence prescribed by the regulations for the purposes of this paragraph, or (e) who is (or has at any time within the last 5 years been) subject to an apprehended violence order (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007), or an apprehended violence order made under Part 15A of the Crimes Act 1900 before its repeal, being an order made for the protection of a person with whom it is likely the offender would reside, or continue or resume a relationship, if a home detention order were made. [subs (1) am Act 80 of 2007 s 103 and Sch 2.8[4],[5], opn 10 Mar 2008; Act 119 of 2008 s 4 and Sch 2.3, opn 10 Dec 2008]

(2) Offences prescribed by regulations made for the purposes of subsection (1)(d) may include offences under a law of the Commonwealth or of another State or a Territory. [s 77 am Act 73 of 2006 s 4 and Sch 3.7[3], opn 12 Mar 2007]

[5-s 78]

Suitability of offender for home detention

78 (1) A home detention order may not be made with respect to an offender’s sentence of imprisonment unless the court is satisfied: (a) that the offender is a suitable person to serve the sentence by way of home detention, and (b) that it is appropriate in all of the circumstances that the sentence be served by way of home detention, and (c) that the persons with whom it is likely the offender would reside, or continue or resume a relationship, during the period of the offender’s home detention have consented in writing to the making of the order, and (d) that the offender has signed an undertaking to comply with the offender’s obligations under the home detention order.

[subs (1) am Act 68 of 2004 s 3 and Sch 4[3], opn 6 July 2004]

(2) In deciding whether or not to make a home detention order, the court is to have regard to: (a) the contents of an assessment report on the offender, and (b) such evidence from a probation and parole officer as the court considers necessary for the purpose of deciding whether to make such an order. (3) A court may, for any reason it considers sufficient, decline to make a home detention order despite the contents of an assessment report. (4) A court may make a home detention order only if an assessment report states that, in the opinion of the person making the assessment, the offender is a suitable person to serve a term of imprisonment by way of home detention. (5) For the purposes of subsection (1)(c): (a) the consent of children below a prescribed age, and (b) the consent of persons suffering a prescribed disability, [page 593] may be given on their behalf by such other persons as the regulations may determine or may, if the regulations so provide and subject to any prescribed conditions, be dispensed with. (6) A home detention order must not be made if the court considers it likely that the offender will commit any sexual offence or any offence involving violence while the order is in force, even though the offender may have no history of committing offences of that nature. (7) If a court declines to make a home detention order with respect to an offender’s sentence of imprisonment despite an assessment report that states that the offender is a suitable person to serve the sentence by way of home detention, the court must indicate to the offender, and make a record of, its reasons for doing so. [subs (7) insrt Act 74 of 2002 s 4 and Sch 2[3], opn 2 Dec 2002] COMMENTARY ON SECTION 78

Consent …. Undertaking ….

[5-s 78.1] [5-s 78.5]

[5-s 78.1] Consent A consent referred to in s 78(1)(c) is to be in the approved form: cl 19(1), Crimes (Sentencing Procedure) Regulation 2010, at [5-10,420]. The consent of a child under 18 years or of a mentally incapacitated person may be given by the Commissioner of Corrective Services: cl 19(2) of the Regulation, at [5-10,420]. [5-s 78.5] Undertaking An undertaking referred to in s 78(1)(d) is to be in the approved form: cl 20, Crimes (Sentencing Procedure) Regulation 2010, at [5-10,425].

____________________

[5-s 79]

Concurrent and consecutive sentences

79 A home detention order may not be made in respect of a sentence of imprisonment (a new sentence) to be served concurrently or consecutively (or partly concurrently and partly consecutively) with any other sentence of imprisonment the subject of a home detention order if the date on which the new sentence will end is more than 18 months after the date on which it was imposed.

DIVISION 3 — ASSESSMENT REPORTS [5-s 80]

Referral of offender for assessment

80 (1) After a court imposes a sentence of imprisonment on an offender, the court may refer the offender for assessment as to the suitability of the offender for home detention. (1A) Despite subsection (1), an offender who has been referred for assessment under section 69 (for intensive correction) is not to be referred for assessment under this section (for home detention) in relation to the same sentence of imprisonment unless the court has decided not to make an intensive correction order with respect to that sentence. [subs (1A) subst Act 48 of 2010 Sch 1, opn 1 Oct 2010]

(2) When a court refers an offender for assessment in relation to a sentence of imprisonment: (a) the referral stays the execution of the sentence and the operation of section 48 in relation to the sentence, and

[page 594] (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 a home detention order. [subs (2) am Act 5 of 2014 Sch 2 item 2.13[4], opn 20 May 2014]

(3) On deciding whether or not to make a home detention order: (a) any stay of execution of sentence under this section comes to an end, and (b) the requirements of section 48 come into operation. COMMENTARY ON SECTION 80

Home detention order …. Administration of the order …. Revocation of home detention orders ….

[5-s 80.1] [5-s 80.5] [5-s 80.10]

[5-s 80.1] Home detention order As to the imposition of a sentence to be served by home detention generally see at [5-s 7.1]. The court is required to ensure that all reasonable steps are taken to explain to the offender his or her obligations under the order and the consequences that may follow breach of the order, see s 83 at [5-s 83]. [5-s 80.5] Administration of the order See Part 4 of the Crimes (Administration of Sentences) Act at [24-s 102] and following in relation to the obligations of the person to whom the order relates and the performance of the sentence. [5-s 80.10] Revocation of home detention orders The Parole Board has power to revoke an order that a sentence be served by way of home detention, see Crimes (Administration of Sentences) Act s 167 at [24-s 167].

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[5-s 81]

Assessment of suitability

81 (1) When an offender is referred for assessment, the Probation and Parole Service is to investigate and report to the court on the matters referred to in section 78(1). (2) An offender’s assessment report: (a) must take into account, and specifically address, the following matters:

any criminal record of the offender, and the likelihood that the (i) offender will re-offend, (ii) any dependency of the offender on illegal drugs, (iii) the likelihood that the offender will commit a domestic violence offence, (iv) whether any circumstances of the offender’s residence, employment, study or other activities would inhibit effective monitoring of a home detention order, (v) whether the persons with whom it is likely the offender would reside, or continue or resume a relationship, understand the requirements of the order and are prepared to live in conformity with them, so far as may be necessary, (vi) whether the making of the order would place at risk of harm any person who would be living with or in the vicinity of the offender, (vii) any matter prescribed by the regulations, and (b) may indicate the nature of any conditions that it would be appropriate for the court to impose on a home detention order if such an order is made. [page 595] (3) If it appears to the officer preparing the assessment report that the offender is homeless: (a) all reasonable efforts must be made by the Probation and Parole Service, in consultation with the offender, to find suitable accommodation, and (b) the report is not to be finalised until those efforts have been made. (4) The regulations may make provision for or with respect to the conduct of investigations and the preparation of reports for the purposes of this Part. COMMENTARY ON SECTION 81

Assessment of effect of order on children ….

[5-s 81.1]

[5-s 81.1] Assessment of effect of order on children If a child under 18 years would be living with an

offender serving home detention, an assessment report must take into account, and specifically address, the effect on the child of that fact: cl 21(1) Crimes (Sentencing Procedure) Regulation 2010 at [510,430]. Clause 21(2) of the Regulation provides for the procedures to apply in an investigation for the purposes of a cl 21(1) report.

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DIVISION 4 — MISCELLANEOUS [5-s 82] Court may impose conditions on home detention order 82 (1) A court may impose such conditions as it considers appropriate on any home detention order made by it, other than conditions requiring the person to whom the order relates to make any payment, whether in the nature of a fine, compensation or otherwise. (2) The conditions imposed by the court: (a) may include conditions relating to the offender’s employment while the home detention order is in force, and (b) may require the offender to perform community service work while not otherwise employed. (3) The conditions imposed by the court must not be inconsistent with the standard conditions imposed by the regulations under the Crimes (Administration of Sentences) Act 1999.

[5-s 83] Explanation of home detention order to offender 83 (1) Having made a home detention order in relation to an offender’s sentence of imprisonment, 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 home detention order, and (b) the consequences that may follow if the offender fails to comply with those obligations.

(2) A home detention order is not invalidated by a failure to comply with this section.

PART 7 — SENTENCING PROCEDURES FOR COMMUNITY SERVICE ORDERS DIVISION 1 — PRELIMINARY [5-s 84]

Application

84 This Part applies in circumstances in which a court is considering, or has made, a community service order. [page 596] COMMENTARY ON SECTION 84

Community service orders …. Administration of the order …. Breach of community service orders ….

[5-s 84.1] [5-s 84.5] [5-s 84.10]

[5-s 84.1] Community service orders As to the power to impose a community service order, see at [5s 8]. The court may impose conditions upon the order: s 90. The court is required to ensure that all reasonable steps are taken to explain to the offender his or her obligations under the order and the consequences that may follow breach of the order, see s 92. [5-s 84.5] Administration of the order See Part 5 of the Crimes (Administration of Sentences) Act at [24-s 107] and following in relation to the obligations of the person to whom the order relates and the performance of the sentence. [5-s 84.10] Breach of community service orders The court which made the order has power to revoke an order of community service and sentence the offender for the original offence and exercise any power which the court could have exercised had the order not been made, see Crimes (Administration of Sentences) Act 1999 s 115 at [24-s 115].

____________________

[5-s 85]

Definitions

85 In this Part: assessment report means a report prepared under section 89. assigned officer has the same meaning as it has in Part 5 of the Crimes (Administration of Sentences) Act 1999. development program means a personal development, educational or other program. offender’s obligations under a community service order means the obligations that the offender has under section 109 of the Crimes (Administration of Sentences) Act 1999 as a consequence of the making of the order. period of a community service order means the period within which the community service work to be performed under the order must be completed.

DIVISION 2 — RESTRICTIONS ON POWER TO MAKE COMMUNITY SERVICE ORDERS [5-s 86] Suitability of offender for community service work 86 (1) A community service order may not be made with respect to an offender unless the court is satisfied: (a) that the offender is a suitable person for community service work, and (b) that it is appropriate in all of the circumstances that the offender be required to perform community service work, and (c) that arrangements exist in the area in which the offender resides or intends to reside, or in another State or Territory (but only if the offender is able and willing to travel to that State or Territory), for the offender to perform community service work, and (d) that community service work can be provided in accordance with those arrangements, and

[page 597] (e) [repealed] [subs (1) am Act 68 of 2004 s 3 and Sch 4[4], opn 6 July 2004; Act 67 of 2015 Sch 1.7[2], opn 24 Nov 2015]

(2) In deciding whether or not to make a community service order, the court must have regard to: (a) the contents of an assessment report on the offender, and (b) such evidence from a probation and parole officer as the court considers necessary for the purpose of deciding whether to make such an order. (3) A court may, for any reason it considers sufficient, decline to make a community service order despite the contents of an assessment report. (4) A court may make a community service order only if an assessment report states that, in the opinion of the person making the assessment, the offender is a suitable person for community service work. (5) If a court makes a community service order in respect of an offender, the offender must, as soon as practicable (having regard to sections 92 and 93) after the order is made, sign an undertaking to comply with the offender’s obligations under the order. If the offender refuses to sign such an undertaking, the offender may be brought before the court and the court may revoke the community service order and impose such other sentence as it considers appropriate. [subs (5) insrt Act 68 of 2004 s 3 and Sch 4[5], opn 6 July 2004] COMMENTARY ON SECTION 86

Undertaking ….

[5-s 86.1]

[5-s 86.1] Undertaking An undertaking referred to in s 86(5) is to be in the approved form: cl 24, Crimes (Sentencing Procedure) Regulation 2010 at [5-10,540].

____________________

[5-s 87]

Concurrent and consecutive sentences

87 (1) A community service order (the new order) may not be made if the sum of:

the number of hours of community service work to be performed (a) under the new order, and (b) the number of hours of community service work remaining to be performed under any other community service order (an existing order), exceeds 500. (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 unless the new order specifies that they are to run consecutively with those to be performed under the existing order. (4) Any amount by which the number of hours of community service work to be performed by the offender has been increased under this or any other Act is to be disregarded for the purposes of this section. [page 598]

DIVISION 3 — ASSESSMENT REPORTS [5-s 88]

Referral of offender for assessment

88 Before a court sentences an offender, the court may refer the offender for assessment as to the suitability of the offender for community service work.

[5-s 89]

Assessment of suitability

89 (1) When an offender is referred for assessment, the Probation and Parole Service is to investigate and report to the court on the matters referred to in section 86(1). (2) The regulations may make provision for or with respect to the conduct

of investigations and the preparation of reports for the purposes of this Part.

DIVISION 4 — MISCELLANEOUS [5-s 90]

Conditions of community service orders

90 (1) A court may impose such conditions as it considers appropriate on any community service order made by it, other than conditions requiring the person to whom the order relates to make any payment, whether in the nature of a fine, compensation or otherwise. (2) The conditions imposed by the court: (a) may require an offender to participate in development programs, and (b) may require the offender to undergo testing or assessment for alcohol or drug use in accordance with the directions of the offender’s assigned officer. (3) A community service order requiring an offender to participate in development programs: (a) must not require the offender to participate more than 3 times in any one week, and (b) must not require the offender to participate for a total period of more than 15 hours in any one week, and (c) must not specify a total period of less than 20 hours for participation. (4) The conditions imposed by the court must not be inconsistent with the standard conditions imposed by the regulations under the Crimes (Administration of Sentences) Act 1999. (5) Except as provided by subsection (6), a community service order in relation to an offender who has been found guilty of a graffiti offence must impose a graffiti clean up condition. [subs (5) insrt Act 57 of 2012 Sch 1 item 1.2, opn 10 Dec 2012]

(6) The court is not required to impose a graffiti clean up condition if the court considers that it is not in the circumstances of the case reasonably practicable for work of that kind to be performed by the offender. [subs (6) insrt Act 57 of 2012 Sch 1 item 1.2, opn 10 Dec 2012]

(7) The court must make a record of its reasons for deciding not to impose a graffiti clean up condition. [subs (7) insrt Act 57 of 2012 Sch 1 item 1.2, opn 10 Dec 2012]

[page 599] (8) In this section: graffiti clean up condition means a condition requiring the offender to perform community service work of the following kind: (a) the removal or obliteration of graffiti from buildings, vehicles, vessels and places, (b) the restoration of the appearance of buildings, vehicles, vessels and places consequent on the removal or obliteration of graffiti from them. [subs (8) insrt Act 57 of 2012 Sch 1 item 1.2, opn 10 Dec 2012]

[5-s 91]

Removal of graffiti

91 A community service order in relation to an offence other than a graffiti offence may recommend that the community service work to be performed by the offender should include: (a) the removal or obliteration of graffiti from buildings, vehicles, vessels and places, and (b) the restoration of the appearance of buildings, vehicles, vessels and places consequent on the removal or obliteration of graffiti from them. [s 91 am Act 57 of 2012 Sch 1 item 1.2, opn 10 Dec 2012]

[5-s 92] Explanation of community service order to offender 92 (1) Having made a community service 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 community service order, and

(b) the consequences that may follow if the offender fails to comply with those obligations. (2) A community service order is not invalidated by a failure to comply with this section.

[5-s 93] Preparation and service of written notice of community service order 93 (1) As soon as practicable after making a community service order, a court must cause written notice of the order to be given to the offender and to the Commissioner of Corrective Services. (2) The notice must include the following information: (a) the place at which, or person to whom, the offender must present himself or herself, in person, for the purpose of enabling the administration of the order to be commenced, (b) the period within which the offender must so present himself or herself. (3) A community service order is not invalidated by a failure to comply with this section. COMMENTARY ON SECTION 93

Notice of community service order ….

[5-s 93.1] [page 600]

[5-s 93.1] Notice of community service order A notice referred to in s 93(1) is to be in the approved form: cl 25(1), Crimes (Sentencing Procedure) Regulation 2010 at [5-10,545]. Clause 25(2) and (3) of that Regulation provide for signature of the notice by the offender and service of copies of the notice.

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PART 8 — SENTENCING PROCEDURES FOR GOOD BEHAVIOUR BONDS

[5-s 94]

Application

94 This Part applies in circumstances in which a court is considering, or has made, an order that provides for an offender to enter into a good behaviour bond.

[5-s 95]

Good behaviour bonds

95 A good behaviour bond: (a) must contain a condition to the effect that the offender to whom the bond relates (the person under bond) will appear before the court if called on to do so at any time during the term of the bond, and (b) must contain a condition to the effect that, during the term of the bond, the person under bond will be of good behaviour, and (c) may contain such other conditions as are specified in the order by which the bond is imposed, other than conditions requiring the person under bond: (i) to perform community service work, or (ii) to make any payment, whether in the nature of a fine, compensation or otherwise. [s 95 am Act 117 of 2001 s 3 and Sch 5[12], opn 21 Dec 2001; Act 121 of 2001 s 4 and Sch 2.75[9], opn 7 July 2003] COMMENTARY ON SECTION 95

Conditions on a bond …. Term of the bond …. Reasons for sentence ….

[5-s 95.1] [5-s 95.5] [5-s 95.10]

[5-s 95.1] Conditions on a bond Although a condition of a bond requiring the person to report to the police periodically was set aside on appeal, it was held that in an appropriate case such a condition could be imposed but it could be needlessly onerous for such a condition to extend to the whole term of the bond: R v Harvey (1989) 40 A Crim R 102; BC8902620. A condition of a bond that the offender “remain away from Wilcannia during the terms of this sentence unless he has, upon prior application to me, been permitted to do so” was held to be inappropriate in R v Bugmy [2004] NSWCCA 258; BC200404869; (2004) 11 Crim LN 89 [1762]. The case stated the following principles in fixing conditions of a bond: First, the discretion as to conditions that may be attached to a bond is broad but not unlimited. The conditions must reasonably relate to the purpose of imposing a bond, that is, the punishment of a particular crime. They must therefore relate either to the character of that crime or the purposes of punishment for that crime, including deterrence and rehabilitation.

Secondly, the conditions must each be certain, defining with reasonable precision conduct which is proscribed. Thirdly, the conditions should not in their operation be unduly harsh or unreasonable or needlessly onerous. [page 601] A condition of a bond that the offender not have unsupervised contact with children under 12 years was held to lack reasonable precision to be enforceable in circumstances where the offender was only 16 years old: R v JJS [2005] NSWCCA 225; BC200504598; (2005) 12 Crim LN [1898]. [5-s 95.5] Term of the bond The term of a good behaviour bond cannot exceed five years: s 9(2). A five year term of a recognisance was found to be unduly onerous where the accused had been on bail for a lengthy period and the term was the equivalent of the maximum penalty for the offence: R v Philp (1999) 108 A Crim R 336; [1999] NSWCCA 253; BC9905090; (1999) 6 Crim LN 72 [1054]. [5-s 95.10] Reasons for sentence The court which is granting a bond should give full reasons for taking this course including where there has been a dispute as to the relevant facts, any determination of facts upon which the sentence is based, so that both the parties and the appeal court know the basis for bond, as does any court before which the accused may come if there is a breach of the bond: R v Smith (1993) 69 A Crim R 47. When granting a bond the court should not make the threat that, as a consequence of a breach of the bond, the accused will be sent to gaol: R v Philp, above, (1999) 6 Crim LN 72 [1054].

____________________

[5-s 95A] Intervention program as condition of good behaviour bond 95A (1) A good behaviour bond may contain a condition requiring the offender to participate in an intervention program and to comply with any intervention plan arising out of the program. (2) A good behaviour bond may not contain such a condition 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, and

that participation by the offender would reduce the likelihood of the (d) offender committing further offences by promoting the treatment or rehabilitation of the offender. (3) This section does not limit the power of a court under (see section 95(c) to impose a condition on a good behaviour bond as to participation in any program for treatment or rehabilitation that is not an intervention program. (4) This section does not limit the kinds of conditions 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 a condition of a kind referred to in subsection (1) or (3). [s 95A insrt Act 100 of 2002 s 5 and Sch 3[11], opn 24 Feb 2003]

[5-s 95B]

Referral of offender for assessment

95B Before a court makes an order providing for an offender to enter into a good behaviour bond that contains a condition referred to in section 95A(1), the court may refer the offender for assessment as to the suitability of the offender to participate in an intervention program. [page 602] 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. [s 95B insrt Act 100 of 2002 s 5 and Sch 3[11], opn 24 Feb 2003]

[5-s 96] Explanation of good behaviour bond to person under bond 96 (1) A court that makes a direction that provides for an offender to enter into a good behaviour bond 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 good behaviour bond, as referred to in section 95, and (b) the consequences that may follow if the offender fails to comply with those obligations.

(2) A good behaviour bond is not invalidated by a failure to comply with this section.

[5-s 97] Procedure following failure to enter into good behaviour bond 97 If: (a) a court makes an order that provides for an offender to enter into a good behaviour bond, and (b) the offender fails to enter into such a bond 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. COMMENTARY ON SECTION 97

Law Part Code ….

[5-s 97.0]

[5-s 97.0] Law Part Code The Law Part Code for this section is 51196.

____________________

[5-s 98] bond

Proceedings for breach of good behaviour

98 (1) If it suspects that an offender may have failed to comply with any of the conditions of a good behaviour bond: (a) the court with which the offender has entered into the bond, or (b) any other court of like jurisdiction, or (c) with the offender’s consent, any other court of superior jurisdiction, may call on the offender to appear before it. [subs (1) am Act 110 of 2000 s 4 and Sch 2[1], opn 16 Feb 2001; Act 27 of 2003 s 3 and Sch 6[7], opn 18 Aug 2003]

(1A) 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 (1A) insrt Act 110 of 2000 s 4 and Sch 2[2], opn 16 Feb 2001; am Act 121 of 2001 s 4 and Sch 2.75[10], opn 7 July 2003]

(1B) 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: [page 603] (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 (1B) insrt Act 110 of 2000 s 4 and Sch 2[2], opn 16 Feb 2001; am Act 121 of 2001 s 4 and Sch 2.75[10], opn 7 July 2003]

(1C) For the purposes of subsection (1)(c), a court is of superior jurisdiction to the court with which an offender has entered into a good behaviour bond if it is a court to which the offender has (or has had) a right of appeal with respect to the conviction or sentence from which the bond arises. [subs (1B) insrt Act 27 of 2003 s 3 and Sch 6[8], opn 18 Aug 2003]

(2) If it is satisfied that an offender appearing before it has failed to comply with any of the conditions of a good behaviour bond, a court: (a) may decide to take no action with respect to the failure to comply, or (b) may vary the conditions of the bond or impose further conditions on the bond, or (c) may revoke the bond. (3) In the case of a good behaviour bond referred to in section 12, a court must revoke the bond unless it is satisfied: (a) that the offender’s failure to comply with the conditions of the bond was trivial in nature, or (b) that there are good reasons for excusing the offender’s failure to comply with the conditions of the bond. (4) [subs (4) rep Act 121 of 2001 s 4 and Sch 2.75[11], opn 7 July 2003] COMMENTARY ON SECTION 98

Law Part Codes …. Breach of bond …. Breach of bond under s 12 ….

[5-s 98.0] [5-s 98.1] [5-s 98.5]

[5-s 98.0] Law Part Codes The Law Part Codes for s 98(1) are 36771, 51107, 51108. The Law Part Code for s 98(1A)(a) is 44504. The Law Part Code for s 98(3) is 39021. [5-s 98.1] Breach of bond The District Court has no jurisdiction to deal with a breach of a bond that was imposed in the Local Court unless the offender consented, even if the District Court had confirmed the bond on an appeal: Yates v Commissioner of Corrective Services of NSW [2014] NSWSC 653; BC201403983; 21(6) Crim LN [3381]. It is important that the behaviour of the offender who is granted a deferral of sentence be closely monitored and prompt consideration given to call up if there is a breach: R v Kerr (NSWCCA, Kirby P, Badgery-Parker J, Loveday AJ, 12 November 1993, unreported, BC9302221). The sentence on a breach should reflect that, by rejection of trust placed in the offender by the court, he or she has shown a lack of remorse and doubt has been cast on his or her rehabilitation: R v Morris (NSWCCA, Kirby ACJ, Badgery-Parker J, Bruce J, 14 July 1995, unreported, BC9505222); (1995) 2 Crim LN 54 [436]. It is important that breaches of non-custodial orders be brought to the notice of the sentencing court and be dealt with swiftly and in a manner which indicates how serious such breaches are, generally by the imposition of a sentence which reflects the breach of trust involved: R v Doyle (1996) 84 A Crim R 287; BC9600465. Where the offender is called up the court may sentence him for the original offence, but not for the breach: s 99(1)(a) and Champion v R (1992) 64 A Crim R 244; BC9201566. The court must take into account the period spent on the bond and anything done to comply with the conditions of the bond: s 24(b). The procedure to be followed where a bond given after a special hearing had been breached was considered in Smith v R (2007) 169 A Crim R 265; [2007] NSWCCA 39; BC200700957; (2007) 14 Crim LN 39 [2188] where it was

[page 604] held that the court is to continue to deal with the matter under the provisions now contained in the Mental Health (Forensic Provisions) Act 1990. [5-s 98.5] Breach of bond under s 12 The approach to be adopted where there has been a breach of a bond pursuant to s 12, where a sentence of imprisonment is suspended, was considered in Director of Public Prosecutions v Cooke (2007) 168 A Crim R 379; [2007] NSWCA 2; BC200700376; (2007) 14 Crim LN 26. It was held that where the breach is another offence for which the court is sentencing the offender, the breach of the bond must be considered first. The court considered what factors might amount to “good reasons” for not taking action on the breach. The court emphasised that normally the consequence of a breach would be that the bond would be revoked. It was held that subjective circumstances of the offender at the time of the proceedings for the breach will not be relevant nor will the consequences of revoking the bond.

____________________

[5-s 99] Consequences of revocation of good behaviour bond 99 (1) If a court revokes a good behaviour bond: (a) in the case of a bond referred to in section 9, it may re-sentence the offender for the offence to which the bond relates, or (b) in the case of a bond referred to in section 10, it may convict and sentence the offender for the offence to which the bond relates, or (c) in the case of a bond referred to in section 12: (i) the order under section 12(1)(a) ceases to have effect in relation to the sentence of imprisonment suspended by the order, and (ii) Part 4 applies to the sentence, as if the sentence were being imposed by the court following revocation of the good behaviour bond, and section 24 applies in relation to the setting of a non-parole period under that Part. [subs (1) am Act 90 of 2002 s 3 and Sch 3.2[6], opn 1 Feb 2002; Act 107 of 2006, s 3 and Sch 1[3], opn 29 Nov 2006]

(2) Subject to Parts 5 and 6, a court may, on revoking a good behaviour bond referred to in section 12, make an order directing that the sentence of imprisonment to which the bond relates is to be served by way of an intensive correction order or home detention.

[subs (2) am Act 107 of 2006, s 3 and Sch 1[4], opn 29 Nov 2006; Act 48 of 2010 Sch 1, opn 1 Oct 2010]

(3) An order made under subsection (2) is taken to be a home detention order made under section 6 or an intensive correction order made under section 7, as the case requires. [subs (3) subst Act 48 of 2010 Sch 1, opn 1 Oct 2010]

(4) This Act applies to the sentencing or re-sentencing of an offender under this section in the same way as it applies to the sentencing of an offender on a conviction. (5) 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. COMMENTARY ON SECTION 99

Revocation of bond ….

[5-s 99.1]

[5-s 99.1] Revocation of bond If the order of suspension is revoked the court is to apply Pt 4 of the Act. Thus the court will be required to impose a non-parole period or give reason for declining to do so where the sentence is more than 6 months. The court will have to consider [page 605] whether there are special circumstances under s 44 justifying a reduction in the non-parole period from the statutory relationship: see [5-s 44.15]. The sentence commences from the date of the revocation of the order of suspension.

____________________

[5-s 99A] Right to decide not to participate in intervention program 99A (1) An offender may, at any time after entering into a good behaviour bond that contains a condition referred to in section 95A(1) (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 of 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 any action referred to in section 98(1A) or (1B). (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) vary the conditions of the good behaviour bond or impose further conditions on the bond, or (b) revoke the good behaviour bond. (6) A court that revokes a good behaviour bond under subsection (5) may re-sentence the offender for the offence for which the good behaviour bond was imposed. (7) 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. (8) 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. [s 99A insrt Act 100 of 2002 s 5 and Sch 3[12], opn 24 Feb 2003]

[5-s 100] Action may be taken after good behaviour bond has expired 100 Action may be taken under this Part in relation to a good behaviour bond even if the term of the bond has expired, but in respect only of matters arising during the term of the bond.

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. [page 606] (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]

(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 stepsisters, 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]

[page 607] (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.

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. [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:

while the offender is in lawful custody (otherwise than while (a) 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. [page 608]

[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. (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 The Law Part Code for s 100E(1) is 47064.

[5-s 100E.0]

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[5-s 100F] Variation or revocation of nonassociation 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 nonassociation 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 nonassociation order is granted:

[page 609] (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: (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. COMMENTARY ON SECTION 100G

Law Part Code ….

[5-s 100G.0]

[5-s 100G.0] Law Part Code 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.

____________________ [page 610]

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. (2) The Sentencing Council is to consist of 16 members appointed by the Minister, of whom:

(a) (a1) (b) (c)

(d) (e)

(f) (g) (h) (i)

one is to be a retired judicial officer (not being a retired Magistrate), and one is to be a retired Magistrate, and one is to have expertise or experience in law enforcement, and 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 one is to be a person who has expertise or experience in Aboriginal justice matters, and 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 one is to have expertise or experience in corrective services, and one is to have expertise or experience in juvenile justice, and one is to be a representative of the Department of Justice, and 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. [page 611] (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]

[5-s 100K]

Committees of Sentencing Council

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] program

Suitability of offender for intervention

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.

[page 612]

[5-s 100P] order

Explanation of intervention program

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): (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 take any action referred to in section 98(1A) or (1B). (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.

[5-s 100T] Right to decide not to participate in intervention program 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 [page 613]

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 98(1A) or (1B). (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] 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]. [page 614] 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.

[5-s 106] Review of Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 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.

[page 615] (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]

[page 616]

[5-Sch 1]

SCHEDULE 1 — EXISTING LIFE SENTENCES (Section 44)

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. [page 617] 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 nonparole 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. [page 618] (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. [page 619] (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 [page 620] (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].

____________________

[page 621]

[5-Sch 1A]

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 [page 622] (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. [page 623] First meeting 13 The Minister may call the first meeting of the Sentencing Council in such manner as the Minister thinks fit.

[page 624]

[5-Sch 2]

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) Courts and Other Legislation Amendment Act 2011 (but only to the extent that it amends this Act) [page 625] 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. [page 626] 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. [page 627] appointed day means the day on which Part 7 of this Act commences. 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. [page 628] 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. Victim impact statements 24 A victim impact statement prepared before the appointed day in accordance with

[page 629] 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. 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.

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. [page 630] 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 (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.

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 [page 631] 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). 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]

[page 632]

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.

PART 8 — PROVISIONS CONSEQUENT ON CRIMES LEGISLATION AMENDMENT (CRIMINAL JUSTICE INTERVENTIONS) ACT 2002 [Pt 8 insrt Act 100 of 2002 s 3 and Sch 3[15], opn 24 Feb 2003]

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 [page 633] 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]

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. [page 634] (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.

PART 14 — PROVISION CONSEQUENT ON ENACTMENT OF COURTS LEGISLATION AMENDMENT ACT 2004 [Pt 14 insrt Act 68 of 2004 s 3 and Sch 4[8], opn 6 July 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 [page 635] 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:

(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. [page 636]

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 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. [page 637] (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. 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 [page 638] 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. [page 639]

PART 22 — PROVISION CONSEQUENT ON ENACTMENT OF GRAFFITI LEGISLATION AMENDMENT ACT 2012 [Pt 22 subst Act 57 of 2012 Sch 1 item 1.2, opn 10 Dec 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 NONPAROLE 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]

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: [page 640] (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.

[page 641]

Crimes (Sentencing Procedure) Regulation 2010 TABLE OF PROVISIONS Regulation

Title

1

PART 1 — PRELIMINARY Name of Regulation ….

2

Commencement ….

3

Definitions ….

Paragraph

[510,000] [510,005] [510,010]

PART 2 — SENTENCING PROCEDURES GENERALLY

4

DIVISION 1 — GENERAL Lists of additional charges ….

5

Parole orders ….

6

7

Consultation required before conditions as to residence or treatment imposed on parole orders …. Warrants of commitment ….

7A

Consultation with victim and police in relation to

[510,110] [510,115] [510,120] [510,125] [5-

charge negotiations ….

9

DIVISION 2 — VICTIM IMPACT STATEMENTS Persons who may prepare victim impact statement …. Form of victim impact statements ….

10

Content of victim impact statements ….

11

Tendering of victim impact statements ….

8

12 13 14 15

10,130]

[510,175] [510,180] [510,185] [510,190]

PART 3 — SENTENCING PROCEDURES FOR INTENSIVE CORRECTION ORDERS Intensive correction orders …. [510,290] Undertaking to comply with intensive correction [5order …. 10,295] Assessment reports …. [510,300] Notice of intensive correction order …. [510,305]

PART 4 — SENTENCING PROCEDURES FOR HOME DETENTION ORDERS 18 Home detention orders …. [510,415] 19 Consent of persons living with or in relationship [5with offender …. 10,420] 20 Undertaking to comply with home detention order [5…. 10,425] [page 642] Regulation

Title

Paragraph

21

22 23 24 25

26 27

Assessment of effect of order on children ….

[510,430]

PART 5 — SENTENCING PROCEDURES FOR COMMUNITY SERVICE ORDERS Community service orders …. [510,530] Maximum number of hours of community service [5work …. 10,535] Undertaking to comply with community service [5order …. 10,540] Notice of community service order …. [510,545] PART 6 — MISCELLANEOUS Savings provision …. Transitional provision — Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010 ….

[510,645] [510,650]

[page 643]

Crimes (Sentencing Procedure) Regulation 2010 TABLE OF AMENDMENTS Crimes (Sentencing Procedure) Regulation 2010 SI 409, notified on LW 6 August 2010, commenced 1 September 2010, as amended by: Amending Legislation

Notification

Crimes (Sentencing Procedure) Amendment (Intensive Correction Orders) Regulation 2010 SI 408 Crimes (Sentencing Procedure) Amendment (Transitional) Regulation 2010 SI 534 Crimes (Sentencing Procedure) Amendment (Certificates) Regulation 2011 SI 607 Crimes Legislation Amendment Act 2012 No 67 Victims Rights and Support Act 2013 No 37

LW 6 August 2010

Date of Commencement 1 October 2010 (cl 2)

LW 17 September 2010

1 October 2010 (cl 2)

LW 2 December 2011

2 December 2011 (cl 2)

24 September 2012

24 September 2012 (s 2)

3 June 2013

Sch 3.6: 3 June 2013 (s 2)

Crimes (Sentencing Procedure) Amendment (Prescribed Persons) Regulation 2016 SI 279

LW 3 June 2016

3 June 2016 (cl 2)

[page 645]

PART 1 — PRELIMINARY [5-10,000]

Name of Regulation

1 This Regulation is the Crimes (Sentencing Procedure) Regulation 2010.

[5-10,005]

Commencement

2 This Regulation commences on 1 September 2010 and is required to be published on the NSW legislation website. Note. This Regulation replaces the Crimes (Sentencing Procedure) Regulation 2005 which is repealed on 1 September 2010 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. (2) Notes included in this Regulation do not form part of this Regulation.

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

are prescribed: (a) 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) the Chief Executive Officer of the WorkCover Authority of New South Wales, (d) the Director of the WorkCover Legal Group, Compensation Authorities Staff Division of the Government Service, (e) legal officers employed in the Compensation Authorities Staff Division of the Government Service who have a salary not lower than the minimum salary applicable to a grade 1 senior officer’s position in the Public Service, (f) the General Counsel, Department of Finance, Services and Innovation, (g) legal officers employed in the Department of Finance, Services and Innovation who have a salary not lower than the minimum salary applicable to a grade 12 clerk’s position in the Public Service, (h) the Secretary of the Ministry of Health, (i) the Chief Health Officer, Ministry of Health, (j) the General Counsel, Ministry of Health. (k) the Chief Executive Officer of the Food Authority. [page 646] (l)

the Secretary of the Department of Planning and Environment.

[subcl (2) am SI 607 of 2011 Sch 1[1] and [2], opn 2 Dec 2011; Act 67 of 2012 Sch 3.3[1] and [2], opn 24 Sep 2012; SI 279 of 2016 cl 3, opn 3 June 2016]

[5-10,115]

Parole orders

5 (1) A parole order made by a court is to be in the approved form. (2) A copy of the order must be given to the offender, and further copies are to be sent to:

(a) the Commissioner of Corrective Services, and (b) if the sentence to which the order relates is to be served by way of full-time imprisonment, the general manager of the correctional centre to which the offender is committed to serve the sentence.

[5-10,120] Consultation required before conditions as to residence or treatment imposed on parole orders 6 (1) Before a court makes a parole order containing conditions relating to residence or treatment, the court must consider a report from a probation and parole officer as to the offender’s circumstances. Note. Under section 51 of the Act, a court may impose such conditions as it considers appropriate on any parole order made by it.

(2) Before a court makes a parole order containing conditions requiring the co-operation of a person other than the offender or a probation and parole officer, the court must obtain the consent of the person to those conditions in so far as they require the person’s co-operation.

[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 7A For the purposes of section 35A(3) of the Act, the following persons or 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) the General Counsel, Department of Finance, Services and

Innovation, (d) legal officers in the Department of Finance, Services and Innovation who have a salary not lower than the minimum salary applicable to a grade 12 clerk’s position in the Public Service. [cl 7A insrt SI 607 of 2011 Sch 1[3], opn 2 Dec 2011; am Act 67 of 2012 Sch 3.3[3], opn 24 Sep 2012; SI 279 of 2016 cl 3, opn 3 June 2016]

[page 647]

DIVISION 2 — VICTIM IMPACT STATEMENTS [5-10,175] Persons who may prepare victim impact statement 8 (1) A victim impact statement may be prepared by any qualified person designated by: (a) the victim or victims to whom the statement relates, or any such victim’s representative, or (b) the prosecutor in the proceedings to which the statement relates. (2) A victim impact statement may also be prepared by the victim or any of the victims to whom it relates, or any such victim’s representative. (3) 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. [subcl (3) am Act 37 of 2013 Sch 3 item 3.6, opn 3 June 2013]

[5-10,180]

Form of victim impact statements

9 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 http://www.lawlink.nsw.gov.au/vs.

[5-10,185]

Content of victim impact statements

10 (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, and must be signed and dated by that person. (3) If the person who prepared the statement is not a victim to whom it relates (or any such victim’s representative): (a) the statement must indicate that the victim or victims do not object to the statement being given to the court, and (b) the victim or victims (or any such 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 to the primary victim. (5) If a victim’s representative acts on behalf of a primary victim for the purpose of providing information for the 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 to the primary victim. [page 648] (6) A victim impact statement must not contain anything that is offensive, threatening, intimidating or harassing.

[5-10,190]

Tendering of victim impact statements

11 (1) A victim impact statement may be tendered to the court only by the

prosecutor in the proceedings before the court. (2) Only one victim impact statement may be tendered in respect of each victim.

PART 3 — SENTENCING PROCEDURES FOR INTENSIVE CORRECTION ORDERS [Pt 3 subst SI 48 of 2010 Sch 1, opn 1 Oct 2010]

[5-10,290]

Intensive correction orders

12 (1) An intensive correction order is to be in the approved form. (2) A copy of the order must be given to the offender, and a further copy is to be sent to the Commissioner of Corrective Services.

[5-10,295] Undertaking to comply with intensive correction order 13 An undertaking referred to in section 67(1)(d) of the Act is to be in the approved form.

[5-10,300]

Assessment reports

14 (1) An offender’s assessment report must take into account, and specifically address, the following matters: (a) any criminal record of the offender, and the likelihood that the offender will re-offend, (b) any risks associated with managing the offender in the community (taking into account the offender’s response to supervision in the community on previous occasions), (c) the likelihood that the offender will commit a domestic violence offence, (d) whether the offender will have suitable residential accommodation for the duration of an intensive correction order, (e) whether any circumstances of the offender’s residence,

employment, study or other activities would inhibit effective implementation of an intensive correction order, (f) whether the persons with whom it is likely the offender would reside, or continue or resume a relationship, understand the requirements of an intensive correction order and are prepared to live in conformity with them, so far as may be necessary, (g) whether the making of an intensive correction order would place at risk of harm any person who would be living with or in the vicinity of the offender, (h) any dependency of the offender on alcohol or drugs, or other substance abuse, that would affect the offender’s ability to comply with the offender’s obligations under an intensive correction order, (i) any physical or mental health conditions of the offender that would affect the offender’s ability to comply with the offender’s obligations under an intensive correction order, [page 649] (j)

the existence and extent of any self-harm risk, including the likely impact of an intensive correction order on that risk, and the availability in the community of the support and treatment services necessary to manage the risk. (2) If a child under the age of 18 years would be living with an offender serving a sentence of imprisonment by way of intensive correction, the assessment report must take into account, and specifically address, the effect on the child of that fact. (3) If it appears to the officer preparing the assessment report that the offender is homeless: (a) all reasonable efforts must be made by the Commissioner of Corrective Services, in consultation with the offender, to find suitable accommodation for the offender, and (b) the report is not to be finalised until those efforts have been made. (4) An offender’s assessment report must also include an assessment of: (a) factors associated with his or her offending that would be able to be

addressed by targeted interventions under an intensive correction order, and (b) the availability of resources to address those factors by targeted interventions under an intensive correction order, and (c) any issues relevant to the administration of an intensive correction order in respect of the offender that may be relevant to the court’s determination of an appropriate date to be fixed for the commencement of the sentence.

[5-10,305]

Notice of intensive correction order

15 A notice referred to in section 73(1) of the Act is to be in the approved form.

PART 4 — SENTENCING PROCEDURES FOR HOME DETENTION ORDERS [5-10,415]

Home detention orders

18 (1) A home detention order is to be in the approved form. (2) A copy of the order must be given to the offender, and a further copy is to be sent to the Commissioner of Corrective Services.

[5-10,420] Consent of persons living with or in relationship with offender 19 (1) A consent referred to in section 78(1)(c) of the Act is to be in the approved form. (2) The consent of a child under the age of 18 years or of a mentally incapacitated person may be given by the Commissioner of Corrective Services.

[5-10,425] Undertaking to comply with home detention order

20 An undertaking referred to in section 78(1)(d) of the Act is to be in the approved form.

[5-10,430] children

Assessment of effect of order on

21 (1) If a child under the age of 18 years would be living with an offender serving home detention, an assessment report must take into account, and specifically address, the effect on the child of that fact. [page 650] (2) The investigation of the matter must be carried out jointly by a probation and parole officer and an officer within the Department of Family and Community Services, and must be carried out in accordance with child protection risk assessment procedures approved by the Secretary of that Department. [subcl (2) am SI 279 of 2016 cl 3, opn 3 June 2016]

PART 5 — SENTENCING PROCEDURES FOR COMMUNITY SERVICE ORDERS [5-10,530]

Community service orders

22 (1) A community service order is to be in the approved form. (2) A copy of the order must be given to the offender, and a further copy is to be sent to the Commissioner of Corrective Services.

[5-10,535] Maximum number of hours of community service work 23 For the purposes of section 8(2) of the Act, the prescribed number of hours is: (a) 100, for offences for which the maximum term of imprisonment

provided by law does not exceed 6 months, or (b) 200, for offences for which the maximum term of imprisonment provided by law exceeds 6 months but does not exceed 1 year, or (c) 500, for offences for which the maximum term of imprisonment provided by law exceeds 1 year.

[5-10,540] Undertaking to comply with community service order 24 An undertaking referred to in section 86(5) of the Act is to be in the approved form.

[5-10,545]

Notice of community service order

25 (1) A notice referred to in section 93(1) of the Act is to be in the approved form. (2) The offender must sign 3 copies of the notice in the presence of the person who gave it to the offender. (3) Of the 3 copies: (a) one is to be kept by the offender, and (b) one is to be kept by the court that made the relevant community service order, and (c) one is to be sent to the Commissioner of Corrective Services.

PART 6 — MISCELLANEOUS [5-10,645]

Savings provision

26 Any act, matter or thing that, immediately before the repeal of the Crimes (Sentencing Procedure) Regulation 2005, had effect under that Regulation continues to have effect under this Regulation. [page 651]

[5-10,650] Transitional provision — Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010 27 The notice referred to in section 89A(2) of the Fines Act 1996 may be in a form approved by the State Debt Recovery Office until 1 March 2011. [cl 27 insrt SI 534 of 2010 cl 3, opn 1 Oct 2010]

[page 653]

Introduction: Procedure for Hearings On Indictment CONTENTS Paragraph 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 ….

[7-150] [7-155] [7-160] [7-165]

Plea of guilty …. 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 ….

[7-170]

[7-195] [7-200] [7-205] [7-210] [7-215] [7-220] [page 654] Paragraph

Pre-trial hearings …. Subpoenas ….

[7-225] [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 ….

[7-475]

Defence opening address …. Admissions by the accused …. Crown witnesses …. The giving of evidence …. Crown case …. Evidence for the Crown …. Crown reopening its case ….

[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 ….

[7-600] [page 655] 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 Retirement of jury for deliberation …. [7-800] Failure to reach agreement …. [7-805] Verdict …. [7-810]

PROCEEDINGS AFTER VERDICT: PROCEDURE FOR HEARINGS ON INDICTMENT Hearing of related summary offences …. [7-900] Sentencing …. [7-905] Forfeiture, confiscation and disposal of property …. [7-910] Costs …. [7-915]

[page 657]

Introduction: Procedure for Hearings on Indictment 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. [page 658]

[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 [2s 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 Duffield (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 2010 at [2-5055]. See also Practice Note 15 at [2810,005]. See paragraph 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]. [page 659]

INDICTMENT AND NOLLE PROSEQUI [7-100]

The indictment

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 [page 660] 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 [page 661] and continue notwithstanding that there may be a further arraignment: R v Taylor [2003] 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. [page 662] 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 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; Griffiths 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]. [page 663] 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].

PRE-TRIAL DETERMINATIONS AND APPLICATIONS [7-195]

Pre-trial case management and disclosure

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 [2s 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. [page 664]

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.

[7-205] counts

Orders for separate trial and severance of

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 one month where the accused is in custody; see cl 8 of the Criminal Procedure Regulation 2010 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 [page 665] 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 one month where the accused is in custody; see cl 8 of the Criminal Procedure Regulation 2010 at [2-5060].

[7-225]

Pre-trial hearings

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 trial judge is not bound by any ruling made upon the admissibility of evidence by a judge at an earlier trial where that trial has not concluded in a verdict, or where the verdict has been overturned on appeal: R v GK (2001) 53 NSWLR 317; 125 A Crim R 315; BC200106763; [2001] NSWCCA 413; (2001) 8 Crim LN 86 [1351], where a trial judge refused to re-determine the issue of the admissibility of DNA evidence after the jury on the first trial could not agree upon a verdict and where the first judge had excluded the evidence under s 137 of the Evidence Act. However, where a trial judge has rejected evidence on the basis of facts found and a jury has then delivered a verdict, it is an abuse of process for the prosecution to seek to have that finding of fact re-litigated before a second trial judge: Rogers v R (1994) 181 CLR 251; 123 ALR 417; BC9404645; (1994) 1 Crim LN 82 [283]. But that ruling will not bind the second trial judge if it was obtained by fraud, or if there is fresh evidence the acceptance of which will change the findings fundamental to the earlier rulings: R v GK, above. 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]. [page 666]

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 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]. [page 667] 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.

[7-430] orders

Court suppression and non-publication

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.

THE JURY [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 [2950,875]. 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 [page 668] 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 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

[page 669] 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; 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

3.

4.

5. 6.

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. 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. 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. Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence. 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. [page 670]

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 [2825,085] 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 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; [page 671] 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 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 LewisHamilton [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 [2825,130] 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 [page 672] 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]. 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 [page 673] 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]. 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.

[7-500]

Evidence for the Crown

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. [page 674]

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 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. 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: AttorneyGeneral’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. [page 675]

[7-530]

Prasad direction

At any time after the close of the Crown case the accused can ask the trial judge to direct the jury that they are entitled to acquit the accused at any time from then on without hearing the defence case, addresses or the summing up: R v Prasad (1979) 23 SASR 161; 2 A Crim R 45; R v Bilick (1984) 36 SASR 321; 11 A Crim R 452. The power should be used sparingly and only where the evidence lacks cogency: R v Pahuja (1987) 49 SASR 191; 30 Crim R 418. There is no duty on the trial judge to give the jury direction: Ling v R [1981] Tas R 250. The Prasad direction should be given in careful terms to avoid trespassing upon the jury’s function and a decision on an application for such a direction requires an assessment of the evidence in the Crown case but avoidance of conveying the results of that assessment to the jury: R v

Reardon (2002) 186 FLR 1; [2002] NSWCCA 203; BC200202884. There may be a danger in giving a Prasad direction where the jury might not understand the real nature of the Crown case: Seymour v R (2006) 162 A Crim R 576; [2006] NSWCCA 206; BC200605474; (2006) 13 Crim LN 63 [2081] where the Crown case relied upon the principle of common purpose and the judge gave no directions to the jury when advising them of the right to acquit. In summary proceedings the magistrate must give the prosecutor the opportunity to address on whether the quality of the evidence is such that an order dismissing the information should be made notwithstanding that there is a prima facie case as the two decisions are separate and distinct: Director of Public Prosecutions (NSW) v Mikhael [2015] NSWSC 819; BC201505734; 22(7) Crim LN [3551].

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].

[7-555]

Evidence for the defence

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 crossexamination 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. [page 676]

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.

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: [page 677] (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 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].

[7-640] up

Duties of counsel in respect of summing

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. [page 678] 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. 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 [2951,035.1]. 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]. [page 679] 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 nonpublication 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].

PROCEEDINGS AFTER VERDICT: PROCEDURE FOR HEARINGS ON INDICTMENT [7-900]

Hearing of related summary offences

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.

[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]. [page 680]

[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.

[page 681]

Crimes Act 1900 TABLE OF PROVISIONS Section

1 2 3 3A–3B 4 4A 4B 5–6 7 8 9–10

10A 10B 10C 10D 10E 10F

Title

Paragraph

PART 1 — PRELIMINARY AND INTERPRETATION Name of Act …. [8-s 1] Repeals and savings [Repealed] Application of certain provisions of Act …. [8-s 3] [Repealed] Definitions …. [8-s 4] Recklessness …. [8-s 4A] Dishonesty …. [8-s 4B] [Repealed] “Possession” when criminal …. [8-s 7] “Public place” etc …. [8-s 8] [Repealed] PART 1A — GEOGRAPHICAL JURISDICTION 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]

11

12 13–15 16 16A

PART 2 — OFFENCES AGAINST THE SOVEREIGN 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 11] Compassing etc deposition of the Sovereign — overawing Parliament etc …. [8-s 12] [Repealed] Nothing herein to affect 25 Ed III, c 2 …. [8-s 16] Procedure in cases of treason [Repealed] [page 682]

Section

Title

Paragraph

PART 3 — OFFENCES AGAINST THE PERSON DIVISION 1 — HOMICIDE 17 17A 18 19 19A 19B 20 21 22 22A 23 23A 24

[Repealed] Date of death …. Murder and manslaughter defined …. Murder — punishment [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 ….

[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]

25 25A 25B

[Repealed] Assault causing death …. Assault causing death when intoxicated — mandatory minimum sentence ….

[8-s 25A] [8-s 25B]

26

DIVISION 2 — CONSPIRACY TO MURDER Conspiring to commit murder ….

[8-s 26]

27 28 29 30

DIVISION 3 — ATTEMPTS TO MURDER 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 ….

[8-s 27] [8-s 28] [8-s 29] [8-s 30]

31

31A 31B 31C

DIVISION 4 — DOCUMENTS CONTAINING THREATS Documents containing threats …. [8-s 31] DIVISION 5 — SUICIDE 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 Impeding endeavours to escape shipwreck …. [8-s 32] 32A–32C [Repealed] 33 Wounding or grievous bodily harm with intent …. [8-s 33] 33A Discharging firearm etc with intent …. [8-s 33A] [page 683] Section

33B 34 35

Title

Use or possession of weapon to resist arrest etc …. [Repealed] Reckless grievous bodily harm or wounding ….

Paragraph

[8-s 33B] [8-s 35]

35A 36 37 38 38A 39 40 41 41A 42 43 43A 44 45 45A 46 47 48 49 49A 50–51 51A 51B 52A 52AA

Causing dog to inflict grievous bodily harm or actual bodily harm …. Causing a grievous bodily disease [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 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 ….

[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 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]

52AB 52B 52BA

Offence of failing to stop and assist after vehicle impact causing death or grievous bodily harm …. Dangerous navigation: substantive matters …. Dangerous navigation: procedural matters ….

53 54

Injuries by furious driving etc …. Causing grievous bodily harm ….

[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 …. [8-s 55] [page 684] Section

56 57 58 59 59A

Title

Paragraph

DIVISION 8 — ASSAULTS Obstructing member of the clergy in discharge of his or her duties …. [8-s 56] Assault on persons preserving wreck …. [8-s 57] Assault with intent to commit a serious indictable offence on certain officers …. [8-s 58] Assault occasioning actual bodily harm …. [8-s 59] Assault during public disorder …. [8-s 59A]

DIVISION 8A — ASSAULTS AND OTHER ACTIONS AGAINST POLICE AND OTHER LAW ENFORCEMENT OFFICERS 60AA Meaning of “law enforcement officer” …. [8-s 60AA] 60 Assault and other actions against police officers …. [8-s 60] 60A Assault and other actions against law enforcement officers (other than police officers) …. [8-s 60A] 60B Actions against third parties connected with law enforcement officers …. [8-s 60B]

60C

Obtaining of personal information about law enforcement officers ….

[8-s 60C]

60D 60E

DIVISION 8B — ASSAULTS ETC AT SCHOOLS Definitions …. Assaults etc at schools ….

[8-s 60D] [8-s 60E]

61

DIVISION 9 — COMMON ASSAULTS Common assault prosecuted by indictment ….

[8-s 61]

DIVISION 9A — DEFENCE OF LAWFUL CORRECTION 61AA Defence of lawful correction ….

[8-s 61AA]

DIVISION 10 — OFFENCES IN THE NATURE OF RAPE, OFFENCES RELATING TO OTHER ACTS OF SEXUAL ASSAULT ETC 61A–61G [Repealed] 61H Definition of “sexual intercourse” and other terms …. [8-s 61H] 61HA Consent in relation to sexual assault offences …. [8-s 61HA] 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] 61L Indecent assault …. [8-s 61L] 61M Aggravated indecent assault …. [8-s 61M] 61N Act of indecency …. [8-s 61N] 61O Aggravated act of indecency …. [8-s 61O] 61P Attempt to commit offence under sections 61I–61O [8-s 61P] 61Q Alternative verdicts …. [8-s 61Q] [page 685]

Section

61R 61S 61T 61U 62 63 64–66 66A 66B 66C 66D 66E 66EA 66EB

Title

Consent [Repealed] Offenders who are minors …. Offender married to victim …. Circumstances of certain sexual offences to be considered in passing sentence …. Carnal knowledge — proof [Repealed] Common law offences of rape and attempted rape abolished …. [Repealed] 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 …. Attempting, or assaulting with intent, to have sexual intercourse with child between 10 and 16 …. Alternative verdicts …. Persistent sexual abuse of a child ….

Procuring or grooming child under 16 for unlawful sexual activity …. 66F Sexual offences — cognitive impairment …. 67–72A [Repealed] 73 Sexual intercourse with child between 16 and 18 under special care …. 74–76A [Repealed] 77 Consent no defence in certain cases …. 77A–78 [Repealed] 78A Incest …. 78B Incest attempts …. 78C Defences …. 78D–78E [Repealed] 78F Sanction of Attorney-General …. 78G–78T [Repealed] 79 Bestiality ….

Paragraph

[8-s 61S] [8-s 61T] [8-s 61U]

[8-s 63] [8-s 66A] [8-s 66B] [8-s 66C] [8-s 66D] [8-s 66E] [8-s 66EA] [8-s 66EB] [8-s 66F]

[8-s 73] [8-s 77] [8-s 78A] [8-s 78B] [8-s 78C] [8-s 78F] [8-s 79]

80 80A 80AA

Attempt to commit bestiality …. Sexual assault by forced self-manipulation …. Referral to child protection agency ….

80B 80C 80D 80E 80F

DIVISION 10A — SEXUAL SERVITUDE Meaning of “sexual servitude” …. Meaning of “circumstances of aggravation” …. Causing sexual servitude …. Conduct of business involving sexual servitude …. Alternative verdicts ….

[8-s 80] [8-s 80A] [8-s 80AA]

[8-s 80B] [8-s 80C] [8-s 80D] [8-s 80E] [8-s 80F] [page 686]

Section

Title

Paragraph

DIVISION 10B — INCITEMENT TO COMMIT SEXUAL OFFENCE 80G Incitement to commit sexual offence …. [8-s 80G] 81–81B [Repealed] DIVISION 11 — MISCONDUCT WITH REGARD TO CORPSES 81C Misconduct with regard to corpses …. [8-s 81C]

83 84

DIVISION 12 — ATTEMPTS TO PROCURE ABORTION Administering drugs etc to herself by woman with child …. [8-s 82] Administering drugs etc to woman with intent …. [8-s 83] Procuring drugs etc …. [8-s 84]

85

DIVISION 13 — CONCEALING BIRTH OF A CHILD Concealment of birth …. [8-s 85]

82

86 87

DIVISION 14 — KIDNAPPING Kidnapping …. Child abduction ….

[8-s 86] [8-s 87]

88–91

[Repealed] DIVISION 14A — PROCURING FOR PROSTITUTION Procuring etc …. [8-s 91A] Procuring person by drugs etc …. [8-s 91B]

91A 91B

91E 91F

DIVISION 15 — CHILD PROSTITUTION Definitions …. Promoting or engaging in acts of child prostitution …. Obtaining benefit from child prostitution …. Premises not to be used for child prostitution ….

91FA

DIVISION 15A — CHILD ABUSE MATERIAL Definitions ….

91FB

Child abuse material — meaning ….

91G

Children not to be used for production of child abuse material …. [8-s 91G] Production, dissemination or possession of child abuse material …. [8-s 91H] Defences …. [8-s 91HA]

91C 91D

91H 91HA

91I 91J 91K 91L 91M

[8-s 91C] [8-s 91D] [8-s 91E] [8-s 91F]

[8-s 91FA] [8-s 91FB]

DIVISION 15B — VOYEURISM AND RELATED OFFENCES Definitions …. [8-s 91I] Voyeurism …. [8-s 91J] Filming a person engaged in private act …. [8-s 91K] Filming a person’s private parts …. [8-s 91L] Installing device to facilitate observation or filming …. [8-s 91M] [page 687]

Section

Title

Paragraph

DIVISION 16 — BIGAMY 92 93

Bigamy …. Participator in bigamy ….

[8-s 92] [8-s 93]

PART 3A — OFFENCES RELATING TO PUBLIC ORDER

93A 93B 93C 93D 93E

DIVISION 1 — RIOT AND AFFRAY Definition …. Riot …. Affray …. Mental element under sections 93B and 93C …. Offences of riot, rout, affray abolished [Repealed]

[8-s 93A] [8-s 93B] [8-s 93C] [8-s 93D]

DIVISION 2 — EXPLOSIVES AND FIREARMS OFFENCES 93F Interpretation …. [8-s 93F] 93FA Possession, supply or making of explosives …. [8-s 93FA] 93FB Possession of dangerous articles other than firearms [8-s …. 93FB] 93G Causing danger with firearm or spear gun …. [8-s 93G] 93GA Firing at dwelling-houses or buildings …. [8-s 93GA] 93H Trespassing with or dangerous use of firearm or spear gun …. [8-s 93H] 93I Possession of unregistered firearm in public place …. [8-s 93I]

93J 93K 93L 93M

DIVISION 3 — CONTAMINATION OF GOODS 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

[8-s 93J] [8-s 93K] [8-s 93L]

93N 93O 93P

93Q 93R

93S

of goods with intent to cause public alarm or economic loss …. Aggravated circumstances — unwarranted demand …. Aggravated circumstances — death or grievous bodily harm …. Special provisions relating to geographical application of this Division …. DIVISION 4 — BOMB AND OTHER HOAXES Conveying false information that a person or property is in danger …. Leaving or sending an article with intent to cause alarm …. DIVISION 5 — CRIMINAL GROUPS Definitions ….

[8-s 93M] [8-s 93N] [8-s 93O] [8-s 93P]

[8-s 93Q] [8-s 93R]

[8-s 93S] [page 688]

Section

93T 93TA

Title

Paragraph

93U

Participation in criminal groups …. Receiving material benefit derived from criminal activities of criminal groups …. Alternative verdicts ….

[8-s 93T] [8-s 93TA] [8-s 93U]

93V

DIVISION 6 — UNLAWFUL GAMBLING Offence of conducting unlawful gambling operation

[8-s 93V]

93W 93X 93Y

DIVISION 7 — CONSORTING Definitions …. Consorting …. Defence ….

[8-s 93W] [8-s 93X] [8-s 93Y]

PART 4 — STEALING AND SIMILAR OFFENCES

94AA

94 95 96 97 98

DIVISION 1 — GENERAL Property previously stolen …. DIVISION 2 — ROBBERY 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]

[8-s 94] [8-s 95] [8-s 96] [8-s 97] [8-s 98]

DIVISION 3 — DEMANDING PROPERTY WITH INTENT TO STEAL 99 Demanding property with intent to steal [8-s 99] 100–105 [Repealed]

105A 106–108 109 110 111 112 113 114 115 115A

DIVISION 4 — SACRILEGE AND HOUSEBREAKING 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]

[page 689] Section

116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138

Title

DIVISION 5 — LARCENY 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 …. Civil remedies not affected by conviction …. Stealing, destroying etc records etc of any court or

Paragraph

[8-s 116] [8-s 117] [8-s 118] [8-s 119] [8-s 120] [8-s 121] [8-s 122] [8-s 123] [8-s 124] [8-s 125] [8-s 126] [8-s 127] [8-s 128] [8-s 129] [8-s 130] [8-s 131] [8-s 132] [8-s 133] [8-s 134] [8-s 135] [8-s 136] [8-s 137]

139 140 141–147 148 149 150 151 152 153 154 154A 154AA 154B 154C 154D

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 …. Car stealing etc [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 ….

[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] [page 690]

Section

Title

Paragraph

DIVISION 5A — OFFENCES RELATING TO THEFT OF MOTOR VEHICLES AND VESSELS 154E Definitions …. [8-s 154E] 154F Stealing motor vehicle or vessel …. [8-s 154F] 154G Facilitating organised car or boat rebirthing activities [8-s …. 154G]

154H 154I 154J

155 156 157 158 159 160 161 162 163 164–186

187 188 189 189A 189B 190 191 192

Making, using and interfering with unique identifiers [8-s …. 154H] Possession of motor vehicle or vessel where unique identifier has been interfered with …. [8-s 154I] Possession of vehicle identification plate not attached to motor vehicle …. [8-s 154J] DIVISION 6 — EMBEZZLEMENT OR LARCENY 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] 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 ….

[8-s 155] [8-s 156] [8-s 157] [8-s 159] [8-s 160] [8-s 161] [8-s 162] [8-s 163]

[8-s 187] [8-s 188] [8-s 189] [8-s 189A] [8-s 189B] [8-s 190] [8-s 191] [8-s 192]

192A

Verdict where several persons are indicted for jointly receiving ….

[8-s 192A]

PART 4AA — FRAUD

192B

DIVISION 1 — PRELIMINARY Deception ….

192C

Obtaining property belonging to another ….

192D

Obtaining financial advantage or causing financial disadvantage ….

[8-s 192B] [8-s 192C] [8-s 192D] [page 691]

Section

Title

192E

DIVISION 2 — FRAUD AND RELATED OFFENCES Fraud ….

192F 192G 192H

192I 192J 192K 192L

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 …. PART 4AB — IDENTITY OFFENCES Definitions …. Dealing with identification information …. Possession of identification information …. Possession of equipment etc to make identification documents or things ….

Paragraph

[8-s 192E] [8-s 192F] [8-s 192G] [8-s 192H]

[8-s 192I] [8-s 192J] [8-s 192K] [8-s 192L]

192M

Miscellaneous provisions ….

193

[Repealed]

193A

PART 4AC — MONEY LAUNDERING Definitions ….

193B

Money laundering ….

193C

193E

Dealing with property suspected of being proceeds of crime …. Dealing with property that subsequently becomes an instrument of crime …. Alternative verdicts ….

193F

Proof of other offences not required ….

193FA

Combining several contraventions in a single charge …. Transitional provision ….

193D

193G

[8-s 192M]

[8-s 193A] [8-s 193B] [8-s 193C] [8-s 193D] [8-s 193E] [8-s 193F] [8-s 193FA] [8-s 193G]

PART 4ACA — CHEATING AT GAMBLING

193H 193I 193J 193K 193L 193M

DIVISION 1 — PRELIMINARY 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]

193N 193O

DIVISION 2 — OFFENCES Engage in conduct that corrupts betting outcome of event …. Facilitate conduct that corrupts betting outcome of event ….

[8-s 193N] [8-s 193O] [page 692]

Section

Title

193P

Concealing conduct or agreement about conduct that corrupts betting outcome of event …. Use of corrupt conduct information or inside information for betting purposes ….

193Q

Paragraph

[8-s 193P] [8-s 193Q]

PART 4AD — CRIMINAL DESTRUCTION AND DAMAGE

194

195 196 197 198 199 200

DIVISION 1 — INTERPRETATION Interpretation ….

[8-s 194]

DIVISION 2 — CRIMES AGAINST PROPERTY GENERALLY Destroying or damaging property …. [8-s 195] Destroying or damaging property with intent to injure a person …. [8-s 196] Dishonestly destroying or damaging property …. [8-s 197] Destroying or damaging property with intention of endangering life …. [8-s 198] Threatening to destroy or damage property …. [8-s 199] Possession etc of explosive or other article with intent to destroy or damage property …. [8-s 200]

DIVISION 3 — CRIMES RELATING TO PARTICULAR KINDS OF PROPERTY 201 Interfering with a mine …. [8-s 201] 202 Causing damage etc to sea, river, canal and other works …. [8-s 202]

203

[Repealed]

203A

DIVISION 4 — SABOTAGE Definitions ….

203B

Sabotage ….

203C

Threaten sabotage ….

203D

DIVISION 5 — BUSHFIRES Definitions ….

203E

Offence ….

[8-s 203A] [8-s 203B] [8-s 203C]

[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 …. [8-s 204] 205 Prejudicing the safe operation of an aircraft or vessel …. [8-s 205] 206 Assault etc on member of crew of aircraft or vessel …. [8-s 206] 207 Placing etc dangerous articles on board an aircraft or vessel …. [8-s 207] 208 Threatening to destroy etc an aircraft, vessel or vehicle …. [8-s 208] [page 693] Section

209

Title

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

Paragraph

210

an aircraft or vessel …. Destroying, damaging etc an aid to navigation ….

[8-s 209] [8-s 210]

DIVISION 2 — OFFENCES RELATING TO RAILWAYS ETC 211 Criminal acts relating to railways …. [8-s 211] 212 Endangering passengers etc on railway …. [8-s 212] 213 Obstructing a railway …. [8-s 213] 214 Obstructing a railway — verdict of misdemeanour …. [8-s 214] 215–249 [Repealed] PART 4A — CORRUPTLY RECEIVING COMMISSIONS AND OTHER CORRUPT PRACTICES 249A Definitions …. [8-s 249A] 249B Corrupt commissions or rewards …. [8-s 249B] 249C Misleading documents or statements used or made [8-s by agents …. 249C] 249D Corrupt inducements for advice …. [8-s 249D] 249E Corrupt benefits for trustees and others …. [8-s 249E] 249F Aiding, abetting etc …. [8-s 249F] 249G Repayment of value of gift etc …. [8-s 249G] 249H Disqualification for office …. [8-s 249H] 249I Dismissal of trivial case …. [8-s 249I] 249J Custom not a defence …. [8-s 249J]

249K

PART 4B — BLACKMAIL Blackmail offence ….

249L

Unwarranted demands — meaning ….

[8-s 249K] [8-s

249L] 249M

Menaces — meaning ….

249N

Obtaining gain or causing loss — meaning ….

249O

Public duty — meaning ….

[8-s 249M] [8-s 249N] [8-s 249O]

PART 5 — FORGERY

250 251 252

253

DIVISION 1 — PRELIMINARY False document — meaning …. Inducing acceptance of false document …. Interpretative provisions relating to obtaining property, financial advantage and financial disadvantage …. DIVISION 2 — FORGERY Forgery — making false document ….

[8-s 250] [8-s 251]

[8-s 252]

[8-s 253] [page 694]

Section

Title

Paragraph

DIVISION 3 — OFFENCES RELATED TO FORGERY 254 Using false document …. [8-s 254] 255 Possession of false document …. [8-s 255] 256 Making or possession of equipment etc for making false documents …. [8-s 256] 257–307 [Repealed] PART 5A — FALSE AND MISLEADING INFORMATION 307A False or misleading applications ….

[8-s 307A]

307B

False or misleading information ….

307C

False or misleading documents ….

308 308A 308B 308C

308D 308E 308F 308G 308H 308I

309–310

[8-s 307B] [8-s 307C]

PART 6 — COMPUTER OFFENCES General definitions …. [8-s 308] Meaning of access to data, modification of data and [8-s impairment of electronic communication …. 308A] Meaning of unauthorised access, modification or [8-s impairment …. 308B] Unauthorised access, modification or impairment with intent to commit serious indictable offence [8-s …. 308C] Unauthorised modification of data with intent to [8-s cause impairment …. 308D] Unauthorised impairment of electronic [8-s communication …. 308E] Possession of data with intent to commit serious [8-s computer offence …. 308F] Producing, supplying or obtaining data with intent to [8-s commit serious computer offence …. 308G] Unauthorised access to or modification of restricted [8-s data held in computer (summary offence) …. 308H] Unauthorised impairment of data held in computer disk, credit card or other device (summary offence) …. [8-s 308I] [Repealed]

PART 6A — OFFENCES RELATING TO ESCAPE FROM LAWFUL CUSTODY 310A Definitions …. [8-s 310A] 310B Rescuing inmate from lawful custody …. [8-s 310B] 310C Aiding escape …. [8-s

310C] [8-s 310D]

310D

Escaping ….

310E

Tunnels to facilitate escape ….

310F

Permitting escape ….

310G

Harbouring escapee ….

310H

Application of Part ….

[8-s 310E] [8-s 310F] [8-s 310G] [8-s 310H] [page 695]

Section

Title

310I 310J 310K

PART 6B — TERRORISM Definitions …. Membership of terrorist organisation …. Multiplicity of offences ….

310L

Repeal of Part ….

Paragraph

[8-s 310I] [8-s 310J] [8-s 310K] [8-s 310L]

PART 7 — PUBLIC JUSTICE OFFENCES

311 312 313

DIVISION 1 — DEFINITIONS Definitions …. Meaning of “pervert the course of justice” …. Knowledge that offence is a serious indictable offence is unnecessary ….

[8-s 311] [8-s 312] [8-s 313]

DIVISION 2 — INTERFERENCE WITH THE ADMINISTRATION OF JUSTICE 314 False accusations etc …. [8-s 314]

315 315A

Hindering investigation etc …. Threatening or intimidating victims or witnesses ….

316 317 318

Concealing serious indictable offence …. Tampering etc with evidence …. Making or using false official instrument to pervert the course of justice …. General offence of perverting the course of justice ….

319

320 321 322 323 324 325 326

327 328 329 330 331 332 333 334

[8-s 315] [8-s 315A] [8-s 316] [8-s 317] [8-s 318] [8-s 319]

DIVISION 3 — INTERFERENCE WITH JUDICIAL OFFICERS, WITNESSES, JURORS ETC Extended meaning of “giving evidence” …. [8-s 320] Corruption of witnesses and jurors …. [8-s 321] Threatening or intimidating judges, witnesses, jurors etc …. [8-s 322] Influencing witnesses and jurors …. [8-s 323] Increased penalty if serious indictable offence involved …. [8-s 324] Preventing, obstructing or dissuading witness or juror from attending etc …. [8-s 325] Reprisals against judges, witnesses, jurors etc …. [8-s 326] DIVISION 4 — PERJURY, FALSE STATEMENTS ETC Offence of perjury …. [8-s 327] Perjury with intent to procure conviction or acquittal …. [8-s 328] Conviction for false swearing on indictment for perjury …. [8-s 329] False statement on oath not amounting to perjury …. [8-s 330] Contradictory statements on oath …. [8-s 331] Certain technical defects provided for …. [8-s 332] Subornation of perjury …. [8-s 333] General provisions applicable to perjury and false statement offences …. [8-s 334]

[page 696] Section

335 336 337 338 339

340 341 342 343 343A

Title

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 …. DIVISION 5 — MISCELLANEOUS 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 ….

Paragraph

[8-s 335] [8-s 336] [8-s 337] [8-s 338] [8-s 339]

[8-s 340] [8-s 341] [8-s 342] [8-s 343] [8-s 343A]

PART 8 — UNLAWFUL GAMBLING [Repealed] PART 8A — ATTEMPTS 344A

345 346 347 347A 348

Attempts PART 9 — ABETTORS AND ACCESSORIES Principals in the second degree — how tried and punished …. 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 ….

[8-s 344A]

[8-s 345] [8-s 346] [8-s 347] [8-s 347A] [8-s 348]

349

351A

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 ….

351B

Aiders and abettors punishable as principals ….

350 351

[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] [page 697]

Section

417 417A

418 419 420 421 422

Title

Paragraph

DIVISION 2 — LAWFUL AUTHORITY OR EXCUSE Proof of lawful authority or excuse …. [8-s 417] Proof of exceptions …. [8-s 417A] DIVISION 3 — SELF-DEFENCE Self-defence — when available …. Self-defence — onus of proof …. Self-defence — not available if death inflicted to protect property or trespass to property …. Self-defence — excessive force that inflicts death …. Self-defence — response to lawful conduct ….

[8-s 418] [8-s 419] [8-s 420] [8-s 421] [8-s 422]

423 423A– 428

Offences to which Division applies …. [Repealed]

428A

PART 11A — INTOXICATION Definitions ….

428B

Offences of specific intent to which Part applies ….

428C

Intoxication in relation to offences of specific intent …. Intoxication in relation to other offences ….

428D 428E 428F 428G 428H 428I

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 …. Abolition of common law relating to self-induced intoxication …. Application of Part ….

[8-s 423]

[8-s 428A] [8-s 428B] [8-s 428C] [8-s 428D] [8-s 428E] [8-s 428F] [8-s 428G] [8-s 428H] [8-s 428I]

PART 12 — SENTENCES 429–430 431 431A 431B– 447A

[Repealed] Convicted persons not to be liable to death penalty …. Life sentences ….

[8-s 431] [8-s 431A]

[Repealed] PARTS 13–13A — [Repealed]

PART 13B — OFFENCES PUNISHABLE BY THE SUPREME COURT IN ITS SUMMARY JURISDICTION

475A

Offences punishable summarily ….

475B

Election for summary trial ….

[8-s 475A] [8-s 475B]

PART 14 — [Repealed] [page 698] Section

Title

Paragraph

PART 14A — MISCELLANEOUS OFFENCES DIVISION 1 — LARCENY AND SIMILAR SUMMARY OFFENCES 501 [Repealed] 502 Possession of skin etc of stolen cattle …. [8-s 502] 503 Stealing dogs …. [8-s 503] 504 Possessing stolen dog or skin …. [8-s 504] 505 Stealing animals etc ordinarily kept in confinement …. [8-s 505] 506 Stealing animals etc ordinarily kept in confinement — second offence …. [8-s 506] 507 Possession of stolen animals etc …. [8-s 507] 508 Possession of stolen animals etc — second offence …. [8-s 508] 509 Restoration of such stolen animals etc …. [8-s 509] 510 Setting engine for deer etc …. [8-s 510] 511 Killing pigeons [Repealed] 512 Taking fish in waters on private property …. [8-s 512] 513 Stealing shrubs etc …. [8-s 513] 514 [Repealed] 515 Stealing etc live or dead fence etc …. [8-s 515] 516 [Repealed] 517 Unlawful possession of trees, fences etc …. [8-s 517]

518 519 520 521 521A

Stealing dead wood …. [Repealed] Stealing plants etc in gardens …. Stealing plants etc not growing in gardens …. Stealing of rock, stone etc ….

522 523 524 525

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 …. Term “Public Library” …. [Repealed]

526 526A– 527B 527C 528

529 530 531 532– 545AB 545B

Persons unlawfully in possession of property ….

[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]

[Repealed] DIVISION 2 — OTHER OFFENCES Criminal defamation …. Serious animal cruelty …. Killing or seriously injuring animals used for law enforcement …. [Repealed] Intimidation or annoyance by violence or otherwise ….

[8-s 529] [8-s 530] [8-s 531]

[8-s 545B] [page 699]

Section

545C 545D–

Title

Knowingly joining or continuing in etc an unlawful assembly …. [Repealed]

Paragraph

[8-s 545C]

545E 546 546A 546B 546C

Abetting or procuring …. Consorting with convicted persons [Repealed] Convicted persons found with intent to commit offence …. Resisting etc police ….

546D

Impersonation of police officers ….

547– 547A 547B

[Repealed]

547C

Peeping or prying ….

547D

Person apprehended carrying razor etc ….

Public mischief ….

[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 ….

[8-s 556]

PARTS 15–15A — [Repealed]

563–573 574 574A 574B 575–578 578A 578B 578C

PART 16 — MISCELLANEOUS ENACTMENTS [Repealed] Prosecutions for blasphemy …. [Repealed] Prevention of suicide …. [Repealed] Prohibition of publication identifying victims of certain sexual offences …. [Repealed] Publishing indecent articles ….

[8-s 574] [8-s 574B] [8-s 578A] [8-s

578C] 578D 578E 579 580 580A 580B 580C 580D 580E

[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 ….

[8-s 578E] [8-s 579] [8-s 580] [8-s 580A] [8-s 580B] [8-s 580C] [8-s 580D] [8-s 580E] [page 700]

Section

Title

580F

Abolition of penal servitude ….

580G

Abolition of imprisonment with light or hard labour …. Abolition of common law offences and rules ….

580H 581 582

Savings and transitional provisions …. Regulations …. FIRST SCHEDULE [Repealed] SCHEDULE 2 — APPLICATION OF ACT …. SCHEDULE 3 — ABOLISHED COMMON LAW OFFENCES AND RULES …. SCHEDULE 10 — OFFENCES PUNISHABLE BY

Paragraph

[8-s 580F] [8-s 580G] [8-s 580H] [8-s 581] [8-s 582] [8-Sch 2] [8-Sch 3]

THE SUPREME COURT IN ITS SUMMARY JURISDICTION …. SCHEDULE 11 — SAVINGS AND TRANSITIONAL PROVISIONS ….

[8-Sch 10] [8-Sch 11]

[page 701]

Crimes Act 1900 TABLE OF AMENDMENTS 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): Amending Legislation

Date of Assent

Crimes Legislation 24 March 2004 Amendment Act 2004 No 11 Road Transport (Safety and 24 March 2004 Traffic Management) Amendment (Alcohol) Act 2004 No 17 Crimes Amendment (Child 6 July 2004 Neglect) Act 2004 No 41

Crimes Legislation Amendment (Terrorism) Act 2004 No 48

6 July 2004

Statute Law (Miscellaneous Provisions) Act 2004 No 55

6 July 2004

Date of Commencement 24 March 2004

s 4 and Sch 2: 3 May 2004 (Gaz 77 of 30 April 2004) s 3 and Sch 1: 22 October 2004 (Gaz 166 of 22 October 2004) ss 3 and 4; Sch 1 and 2: 12 November 2004 (Gaz 179 of 12 November 2004) s 3 and Sch 2.7: 6 July 2004 (Gaz 120 of 16 July

Classification (Publications, 3 November 2004 Films and Computer Games) Enforcement Amendment (Uniform Classification) Act 2004 No 82 Statute Law (Miscellaneous 10 December 2004 Provisions) Act (No 2) 2004 No 91 Crimes Amendment (Child 15 December 2004 Pornography) Act 2004 No 95

Marine Safety Amendment (Random Breath Testing) Act 2005 No 4 Road Transport (General) Act 2005 No 11

10 March 2005

Crimes Amendment (Grievous Bodily Harm) Act 2005 No 14 Criminal Procedure Further Amendment (Evidence) Act 2005 No 25 Terrorism Legislation Amendment (Warrants) Act 2005 No 54

12 May 2005

14 April 2005

31 July 2005

27 June 2005

2004) Sch 2: 26 May 2005

s 2 and Sch 2: on assent s 3 and Sch 1[11]: on assent; remainder: 1 January 2005 (Gaz 200 of 17 December 2004) 13 May 2005 (Gaz 54 of 13 March 2005) s 247 and Sch 3.33[1]–[3], [15]– [19]: 1 December 2005; rem: 30 September 2005 (Gaz 120 of 30 September 2005) on assent (Gaz 57 of 20 May 2005) 12 August 2005 (Gaz 101 of 12 August 2005) Sch 4: 13 September 2005 (Gaz 113 of 9 September 2005) [page 702]

Amending Legislation

Date of Assent

Confiscation of Proceeds of Crime Amendment Act 2005 No 73

21 October 2005

Crimes Amendment (Road Accidents) (Brendan’s Law) Act 2005 No 74 Defamation Act 2005 No 77

26 October 2005

26 October 2005

Crimes Amendment (Animal 24 November 2005 Cruelty) Act 2005 No 94 Law Enforcement Legislation Amendment (Public Safety) Act 2005 No 119 Crimes Amendment (Organised Car and Boat Theft) Act 2006 No 26 Statute Law (Miscellaneous Provisions) Act 2006 No 58 Crimes Legislation Amendment (Gangs) Act 2006 No 61

15 December 2005

26 May 2006

20 June 2006

28 September 2006

Crimes (Appeal and Review) 19 October 2006 Amendment (DNA Review Panel) Act 2006 No 70 Crimes Amendment 27 October 2006 (Apprehended Violence) Act 2006 No 73 Road Transport Legislation 27 October 2006 Amendment (Drug

Date of Commencement 28 October 2005 (s 5 and Sch 3) (Gaz 132 of 28 October 2005) 13 February 2006 (Gaz 16 of 3 February 2006) 1 January 2006 (Gaz 137 of 4 November 2005) 16 December 2005 (Gaz 158 of 16 December 2005) On assent

1 September 2006 (Gaz 111 of 1 September 2006) On assent

Sch 1: 15 December 2006 (SG 186 of 15 December 2006) 23 February 2007

12 March 2007

15 December 2006

Testing) Act 2006 No 79 Criminal Procedure Amendment (Sexual and Other Offences) Act 2006 No 88 Police Amendment (Miscellaneous) Act 2006 No 94 Aboriginal Land Rights Amendment Act 2006 No 111 Statute Law (Miscellaneous Provisions) (No 2) Act 2006 No 120 Police Powers Legislation Amendment Act 2006 No 128 Criminal Procedure Amendment (Vulnerable Persons) Act 2007 No 6 APEC Meeting (Police Powers) Act 2007 No 14 Crimes Amendment Act 2007 No 38

2 November 2006

1 January 2007

22 November 2006

1 February 2007

4 December 2006

s 4 and Sch 2.1: 1 July 2007

4 December 2006

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

12 December 2006

Sch 4(4.1): on assent

15 June 2007

12 October 2007

4 July 2007

Sch 3: on assent

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)) [page 703]

Amending Legislation

Date of Assent

Date of Commencement

Criminal Legislation Amendment Act 2007 No 57

15 November 2007

Crimes Amendment (Consent — Sexual Assault Offences) Act 2007 No 66 Crimes Amendment (Sexual Procurement or Grooming of Children) Act 2007 No 74 Crimes (Domestic and Personal Violence) Act 2007 No 80 Statute Law (Miscellaneous Provisions) Act (No 2) 2007 No 82 Miscellaneous Acts (Local Court) Amendment Act 2007 No 94

23 November 2007

Law Enforcement and Other Legislation Amendment Act 2007 No 97 Road Transport Legislation (Breath Testing and Analysis) Act 2007 No 99 Crimes Amendment (Drink and Food Spiking) Act 2008 No 1 Crimes Amendment (Rock Throwing) Act 2008 No 18 Courts and Crimes Legislation Amendment Act 2008 No 53

13 December 2007

Sch 3[2]: 7 December 2007; Sch 3[3]– [6]: 15 November 2007 1 January 2008

7 December 2007

18 January 2008 (Gaz 9 of 18 January 2008)

27 August 2007

10 March 2007 (Gaz 30 of 7 March 2008) Sch 2(2.1): on assent

7 December 2007

13 December 2007

13 December 2007

19 March 2008

20 May 2008 1 July 2008

Schs 1.23, 2 and 3: 6 July 2009 (s 2 and SI 314 of 2009, LW 3 July 2009) Sch 1.2: 14 December 2007 s 4 and Sch 3.5[1]– [4]: 25 January 2008 28 March 2008 (Gaz 37 of 28 March 2008) 23 May 2008 (Gaz 57 of 23 May 2008) Sch 6: on assent

Crimes Amendment 28 October 2008 (Cognitive Impairment — Sexual Offences) Act 2008 No 74 Crimes Amendment (Sexual 8 December 2008 Offences) Act 2008 No 105

Courts and Crimes Legislation Further Amendment Act 2008 No 107 Criminal Legislation Amendment Act 2009 No 27 NSW Trustee and Guardian Act 2009 No 49

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) s 3 and Sch 5: 8 December 2008 (s 2)

19 May 2009

On assent (s 2)

26 June 2009

1 July 2009 (s 2 and SI 305 of 2009, LW 1 July 2009) 22 February 2010 (s 2 and SI 41 of 2010, LW 19 February 2010) Sch 2: 8 January 2010 (s 2(2))

Crimes Amendment (Fraud, 14 December 2009 Identity and Forgery Offences) Act 2009 No 99 Statute Law (Miscellaneous Provisions) Act (No 2) 2009 No 106 Crimes Amendment (Police Pursuits) Act 2010 No 2

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

14 December 2009

18 March 2010

On assent (s 2)

[page 704] Amending Legislation

Date of Assent

Crimes Amendment (Child

28 April 2010

Date of Commencement Sch 1: 17 September

Pornography and Abuse Material) Act 2010 No 9 Relationships Register Act 2010 No 19 Health Practitioner Regulation Amendment Act 2010 No 34 Weapons and Firearms Legislation Amendment Act 2010 No 40 Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010 No 48

19 May 2010 15 June 2010

15 June 2010

28 June 2010

Crimes Amendment (Terrorism) Act 2010 No 64 Firearms Legislation Amendment Act 2010 No 92 Courts and Crimes Legislation Further Amendment Act 2010 No 135 Crimes Amendment (Murder of Police Officers) Act 2011 No 20 Statute Law (Miscellaneous Provisions) Act 2011 No 27 Crimes Amendment (Consorting and Organised Crime) Act 2012 No 3

10 September 2010

Crimes Amendment

21 June 2012

2010 (s 2 and SI 517 of 2010) Sch 3: on assent (s 2(2)) Sch 2: 1 July 2010 (s 2(2)) 9 July 2010 (s 2 and SI 351 of 2010, LW 9 July 2010) Sch 5: 1 October 2010 (s 2 and SI 532 of 2010, LW 17 September 2010) 10 September 2010

4 November 2010

Sch 3: 4 February 2011 (s 2(1))

7 December 2010

Sch 9: on assent (s 2)

23 June 2011

23 June 2011 (s 2)

27 June 2011

Sch 3.5: 8 July 2011 (s 2(1))

14 March 2012

Sch 1: 9 April 2012 (s 2 and SI 143 of 2012, LW 5 April 2012) 21 June 2012 (s 2)

(Reckless Infliction of Harm) Act 2012 No 41 Statute Law (Miscellaneous 21 June 2012 Provisions) Act 2012 No 42 Crimes Amendment 13 September 2012 (Cheating at Gambling) Act 2012 No 64 Crime Commission Act 2012 24 September 2012 No 66

Crimes Legislation Amendment Act 2012 No 67 Road Transport Legislation (Repeal and Amendment) Act 2013 No 19 Police Legislation Amendment (Special Constables) Act 2013 No 56 Crimes Amendment (Terrorism) Act 2013 No 64 Crimes Legislation Amendment Act 2013 No 90

24 September 2012

3 April 2013

23 August 2013

12 September 2013

20 November 2013

Sch 1.5: 6 July 2012 (s 2(1)) 13 September 2012 (s 2) Sch 5.1: 5 October 2012 (s 2 and SI 499 of 2012, LW 5 October 2012) 24 September 2012 (s 2) 1 July 2013 (s 2 and SI 329 of 2013, LW 28 June 2013) 1 December 2014 (s 2 and SI 750 of 2014, LW 28 November 2014) 12 September 2013 (s 2) 20 November 2013 (s 2)

[page 705] Amending Legislation

Date of Assent

Crimes and Other Legislation 31 January 2014

Date of Commencement Sch 1: 31 January

Amendment (Assault and Intoxication) Act 2014 No 2 Crimes Amendment (Provocation) Act 2014 No 13 Crimes Amendment (Female Genital Mutilation) Act 2014 No 15 Crimes Amendment (Strangulation) Act 2014 No 23 Crimes Legislation Amendment Act 2014 No 59 Crimes Legislation Amendment (Child Sex Offences) Act 2015 No 13 Crimes Amendment (Offroad Fatal Accidents) Act 2015 No 61 Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Act 2016 No 7 Criminal Legislation Amendment (Organised Crime and Public Safety) Act 2016 No 16 Terrorism (Police Powers) Amendment (Investigative Detention) Act 2016 No 17

2014 (s 2(1))

20 May 2014

20 May 2014

13 June 2014 (s 2 and SI 354 of 2014, LW 13 June 2014) 20 May 2014 (s 2)

5 June 2014

5 June 2014 (s 2)

23 October 2014

23 October 2014 (s 2)

29 June 2015

29 June 2015 (s 2)

24 November 2015

24 November 2015 (s 2)

22 March 2016

Sch 2: 1 June 2016 (s 2 and SI 277 of 2016, LW 1 June 2016)

11 May 2016

Sch 2: 8 September 2016 (cl 2 and SI 577 of 2016, LW 8 September 2016) 16 May 2016 (s 2)

16 May 2016

[page 707] 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]

Repeals and savings 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

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. [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]

[page 708] Court and Judge respectively shall be equally taken to mean the Court in which or the Judge before whom the trial or proceeding is had in respect of which either word is used. Dangerous weapon means: (a) a firearm, 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) 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]

Indictment includes any information presented or filed as provided by law for the prosecution of offences. [page 709] 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]

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. [def insrt Act 94 of 1999 s 5 and Sch 3[20], opn 1 Jan 2000]

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]

[page 710] Prescribed sexual offence proceedings [def rep Act 94 of 1999 s 5 and Sch 3[8], opn 1 Jan 2000]

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]

(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] [page 711] (4) In this Act, except in so far as the context or subject-matter otherwise indicates or requires, a reference to an offence mentioned in a specified provision of this Act that has been amended or repealed is, or includes, a reference to an offence mentioned in the provision as in force before the amendment or repeal. (5) [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]

(8) Notes included in this Act do not form part of this Act. [subs (8) insrt Act 73 of 2006 s 3 and Sch 2[3], opn 12 Mar 2007] 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. [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. [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.

[page 712] [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.

____________________

[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. (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]

[page 713]

[8-s 7]

“Possession” when criminal

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. 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. [page 714] 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 …. Crimes at sea …. Scope of Part 1A ….

[8-s 10A.1] [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.

[page 715] [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.

____________________

[8-s 10B]

Interpretation

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. (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). [page 716] (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 provisions with respect to geographical jurisdiction 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:

(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]

[page 717]

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]

[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 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 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 [25520]. Section 15 was transferred to the Criminal Procedure Act 1986: see Sch 3 cl 5 at [2-5520].

[page 718]

[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”.

Procedure in cases of 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] 18

(1)

Murder and manslaughter defined (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. (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 Mens rea of murder …. Reckless indifference to human life ….

[8-s 18.1] [8-s 18.5] [page 719]

Intention to kill or cause grievous bodily harm …. Act or omission causing death …. Constructive murder …. Murder reduced to voluntary manslaughter …. Self defence …. Intoxication …. MANSLAUGHTER Manslaughter …. Involuntary manslaughter by gross negligence …. Involuntary manslaughter by unlawful and dangerous act …. Involuntary manslaughter by an assault with the intention to injure ….

[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 18.40] [8-s 18.50] [8-s 18.55] [8-s 18.60]

Verdict of manslaughter …. Fact of death …. Attempt murder …. Intoxication ….

[8-s 18.62] [8-s 18.65] [8-s 18.70] [8-s 18.75]

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 ….

[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]

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 18.135] [8-s 18.140] [8-s 18.145] [8-s 18.150] [8-s 18.155] [8-s 18.160] [8-s 18.165] [8-s 18.170] [8-s 18.175] [8-s 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.

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. [page 720] 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. [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. 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 18.10] Intention to kill or cause grievous bodily harm As to intention, generally see [8-s 5.5]. 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. [page 721] 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] Act or omission causing death 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. 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; [page 722] (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”. [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. 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 [page 723] 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. [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 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 … [page 724] 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 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 18.40] 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] 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.CPPN.CM.CAN.S18.1.B [page 725] 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. 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 [page 726] 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 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 [page 727] 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 “Death” is defined in s 33 of the Human Tissue Act 1983 as follows— 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 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 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

[page 728] (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 selfdefence [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 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]. [8-s 18.130] Other relevant provisions

s 17A

s 19A s 23 s 23A s 421

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]

Pt 11A

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 [page 729] (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 [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] Other relevant provisions

s 17A

s 23 s 23A

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]

s 24 s 421

Penalty [8-s 24] Excessive self-defence [8-s 421] ____________________

Murder — punishment 19 [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]

[page 730] (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 [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. 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. [page 731] 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. [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 [8s 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 [page 732] (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] alive

Child murder — when child deemed born

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. COMMENTARY ON SECTION 20

Child murder ….

[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 AttorneyGeneral’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].

____________________

[8-s 21] Child murder by mother — verdict of contributing to death etc 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]

[page 733]

[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 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 [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; [page 734] (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.

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[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 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]

[page 735] COMMENTARY ON SUBSTITUTED SECTION 23

Partial defence of extreme provocation ….

[8-s 23.1]

Provocation …. Penalty for manslaughter ….

[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). 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 [page 736] 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 selfcontrol 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 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. [page 737]

(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 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] of mind

Substantial impairment by abnormality

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. [page 738] (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: 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] COMMENTARY ON SECTION 23A

Abnormality of mind ….

[8-s 23A.1]

Penalty for manslaughter …. Evidence of psychiatrists …. Notification of evidence ….

[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. [page 739] 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. [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 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].

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[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] [8-s 24.5] [8-s 24.10] [8-s 24.15] [8-s 24.30] [page 740]

[8-s 24.1] Manslaughter 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 The proviso to the section was considered and applied in R v Brown (1982) 79 FLR 148. 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] 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].

[page 741] 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 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. [page 742] (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). (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 …. Form of indictment …. 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] [page 743]

Elements of the offences …. Assault causing death …. Assault causing death while intoxicated ….

[8-s 25A.30] [8-s 25A.35] [8-s 25A.40]

[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.

PROOF MATERIAL ON SECTION 25A [8-s 25A.15] Form of indictment [8-s 25A.20] 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.25] 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.30] Elements of the offences [8-s 25A.35] 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.40] 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.

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[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). [page 744] (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]

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

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. 26

[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 ….

[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]

Form of indictment …. Conspiracy to murder …. Solicit to murder …. Necessary averments …. Elements of offence …. Conspiracy to murder …. Solicit to murder ….

[8-s 26.40] [8-s 26.45] [8-s 26.50] [8-s 26.55] [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. [page 745] [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 [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]. [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.

____________________ [page 746]

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]

Acts done to the person with intent to

murder Whosoever: administers to, or causes to be taken by, any person any poison, or other destructive thing, or by any means wounds, or causes grievous bodily harm to any person, with intent in any such case to commit murder, shall be liable to imprisonment for 25 years. 27

[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] [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]

[8-s 27.1] Definitions As to “wounds”, see [8-s 35]. As to “grievous bodily harm” see s 4 at [8-s 4.1]. 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]. [page 747] [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 [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].

[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 27.60] 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. [page 748] [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.

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[8-s 28] murder

Acts done to property with intent to

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, 28

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. 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]. [page 749]

PROOF MATERIAL ON SECTION 28 [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].

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[8-s 29]

Certain other attempts to murder

Whosoever: attempts to administer to, or cause to be taken by, any person any poison, or other destructive thing, or shoots at, or in any manner attempts to discharge any kind of loaded arms at any person, or attempts to drown, suffocate, or strangle any person, with intent in any such case to commit murder, shall, whether any bodily injury is effected or not, be liable to imprisonment for 25 years. 29

[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. 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 29.1] [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 [page 750] 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].

PROOF MATERIAL ON SECTION 29

[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].

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[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.

[page 751] 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]. [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 [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. [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.

____________________ [page 752]

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]. [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 [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].

____________________ [page 753]

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 See s 574B at [8-s 574B].

____________________

[8-s 31A.1]

[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. (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. 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 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]. [page 754] [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 [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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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 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. 32

[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 ….

[8-s 32.1] [8-s 32.5] [8-s 32.10] [8-s 32.15] [page 755]

Elements of offence …. Preventing shipwrecked person saving his/her life …. Preventing rescue of shipwrecked person ….

[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

[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: (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 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]

[page 756]

[8-s 33] intent

Wounding or grievous bodily harm with

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 …. Intent to do grievous bodily harm …. Compellability of spouse …. Intoxication …. Sentence …. Personal violence offence/domestic violence offence …. Form of indictment ….

[8-s 33.1] [8-s 33.3] [8-s 33.5] [8-s 33.10] [8-s 33.15] [8-s 33.20] [8-s 33.25] [8-s 33.30]

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 33.35] [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. [page 757] [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]. 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. [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]. [page 758]

PROOF MATERIAL ON SECTION 33 [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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[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 ….

[8-s 33A.1] [8-s 33A.5] [page 759]

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.10] [8-s 33A.15] [8-s 33A.20] [8-s 33A.25] [8-s 33A.30] [8-s 33A.35] [8-s 33A.40] [8-s 33A.45] [8-s 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].

PROOF MATERIAL ON SECTION 33A [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]; (2) with intent [6-500] to cause grievous bodily harm [8-s 4.1] [8-s 35.5]. [page 760] [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.

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[8-s 33B] arrest etc

Use or possession of weapon to resist

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 …. 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.1] [8-s 33B.3] [8-s 33B.5] [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 33B.45] [8-s 33B.50] [8-s 33B.55] [8-s 33B.60] [8-s 33B.65] [8-s 33B.70] [8-s 33B.75] [page 761]

[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 [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. [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.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]. [page 762]

[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 [6300] 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. [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 [6300] 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] [page 763]

[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 (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] 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]. 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 ….

[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] [page 764]

Reckless wounding – in company …. Reckless wounding …. Alternative verdicts ….

[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 R v Aubrey [2012] NSWCCA 254; BC201209323; 20(1) Crim LN [3153] 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.

PROOF MATERIAL ON SECTION 35 [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]. [page 765] [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].

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[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 (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. [subs (2) subst Act 38 of 2007 s 3 and Sch 1[8], opn 15 Feb 2008]

(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.

[page 766] COMMENTARY ON SECTION 35A

Summary disposal …. Definitions …. Destruction orders …. Control order …. Disqualification from owning a dog …. Personal violence offence/domestic violence offence …. Form of indictment …. Cause dog to inflict grievous bodily harm — s 35A(1) ….

[8-s 35A.1] [8-s 35A.5] [8 s 35A.10] [8-s 35A.15] [8-s 35A.20] [8-s 35A.25] [8-s 35A.30] [8-s 35A.35]

Cause dog to inflict actual bodily harm — s 35A(2) …. Elements of offence …. Cause dog to inflict grievous bodily harm …. Cause dog to inflict actual bodily harm …. Alternative finding ….

[8-s 35A.40] [8-s 35A.45] [8-s 35A.50] [8-s 35A.55] [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]. [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 [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]. [page 767] [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]

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Causing a grievous bodily disease 36 [s 36 rep Act 38 of 2007 s 3 and Sch 1[9], opn 15 Feb 2008]

[8-s 37]

Choking, suffocation and strangulation

37 (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: [page 768] 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: 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 [page 769] 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. 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 [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 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).

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[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, [page 770]

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) 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 [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.

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[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: [page 771] (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.

PROOF MATERIAL ON SECTION 38A [8-s 38A.1] 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.5] 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] 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 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. [page 772] [8-s 38A.10] 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 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 [page 773] 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. [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].

PROOF MATERIAL ON SECTION 39 [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. [page 774] [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]

[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]. [page 775] [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].

PROOF MATERIAL ON SECTION 41 [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 41.35] 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 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.

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[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.

[page 776] 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 AttorneyGeneral 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. [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 [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.

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[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]. [page 777] [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 [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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[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 43.1] 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 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 [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]. [page 778] [8-s 43.20] Elements of offence The elements of the offence are— The accused:

(1) (2) (3) (4)

Intentionally [6-500]; and without reasonable excuse [8-s 43.5]; abandoned or exposed a child; 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: 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 [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 [page 779] [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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[8-s 44] of life

Failure of persons to provide necessities

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. 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. [page 780] [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 [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.

____________________

[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. [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]

(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. [page 781] (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 registered as a student in the medical profession under the Health Practitioner Regulation National Law, 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]

midwifery student means: (a) a person registered as a student in the nursing and midwifery profession under the Health Practitioner Regulation National Law, 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]

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) ….

[8-s 45.5] [8-s 45.10] [8-s 45.15] [8-s 45.20] [page 782]

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 45.25]

[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 Viewed in context, the word “mutilates” in s 45 means injure to any extent: R v A2; R v KM; R v Vaziri (No 2) [2015] NSWSC 1221; BC201511092. [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 [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]. [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 45.40] 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 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.

[page 783] [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: 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 Viewed in context, the word “mutilates” in ss 45 and 45A means injure to any extent: R v A2; R v KM; R v Vaziri (No 2) [2015] NSWSC 1221; BC201511092.

____________________

[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.

[page 784] 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 [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: (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 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, 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. 47

[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] 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 ….

[8-s 47.1] [8-s 47.5]

Intoxication ….

[8-s 47.10] [page 785]

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 47.15] [8-s 47.20] [8-s 47.25] [8-s 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].

PROOF MATERIAL ON SECTION 47 [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: [page 786] (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

[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]. [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

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. 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 ….

[8-s 49.1] [8-s 49.5] [8-s 49.10] [8-s 49.15] [page 787]

Personal violence offence/domestic violence offence …. Form of indictment …. Elements of offence …. Set trap …. Permit trap to remain …. Statutory defence ….

[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 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 [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 dwellinghouse [8-s 49.5] for the protection thereof.

____________________ [page 788]

[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) (b) (c) (d)

a motor vehicle, and a train or tram, and a bicycle, and 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]

[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].

PROOF MATERIAL ON SECTION 49A [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 [page 789] (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. (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 ….

[8-s 51A.1] [8-s 51A.5]

Form of indictment …. Elements of offence …. Statutory limits ….

[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]. [page 790] [8-s 51A.5] Definitions As to “actual bodily harm” see [8-s 59.5].

PROOF MATERIAL ON SECTION 51A [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 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

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. [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. [page 791] (2) Aggravated dangerous driving occasioning death A person is guilty of the offence of aggravated dangerous driving occasioning death if the person commits the offence of dangerous driving occasioning death in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 14 years. (3) Dangerous driving occasioning grievous bodily harm A person is guilty of the offence of dangerous driving occasioning grievous bodily harm if the vehicle driven by the person is involved in an impact occasioning grievous bodily harm to another person and the driver was, at the time of the

impact, driving the vehicle: (a) under the influence of intoxicating liquor or of a drug, or (b) at a speed dangerous to another person or persons, or (c) in a manner dangerous to another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 7 years. (4) Aggravated dangerous driving occasioning grievous bodily harm A person is guilty of the offence of aggravated dangerous driving occasioning grievous bodily harm if the person commits the offence of dangerous driving occasioning grievous bodily harm in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 11 years. (5) When vehicle is involved in impact — generally For the purposes of this section, the circumstances in which a vehicle is involved in an impact occasioning the death of, or grievous bodily harm to, a person include if the death or harm is occasioned through any of the following: (a) the vehicle overturning or leaving a road while the person is being conveyed in or on that vehicle (whether as a passenger or otherwise), (b) an impact between any object and the vehicle while the person is being conveyed in or on that vehicle (whether as a passenger or otherwise), (c) an impact between the person and the vehicle, (d) the impact of the vehicle with another vehicle or an object in, on or near which the person is at the time of the impact, (e) an impact with anything on, or attached to, the vehicle, (f) an impact with anything that is in motion through falling from the vehicle, (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. [page 792] (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): (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. [def am Act 99 of 2007 s 4 and Sch 3.5[2], opn 25 Jan 2008]

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.

[page 793]

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) …. Dangerous driving at a speed dangerous — s 52A(1) (b) or (3)(b) …. Dangerous driving in manner dangerous — s 52A(1) (c) or (3)(c) …. Aggravated form — s 52A(2), (4) and (7) …. Elements of offence …. Dangerous driving occasioning death or grievous bodily harm …. Aggravated dangerous driving occasioning death or grievous bodily harm …. Statutory defence …. Statutory limits …. Alternative verdict ….

[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] [8-s 52A.65] [8-s 52A.70] [8-s 52A.75] [8-s 52A.80] [8-s 52A.85] [8-s 52A.90] [8-s 52A.95] [8-s 52A.100] [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 [page 794] 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: (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] 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”. [page 795] 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. 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). 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; [page 796] [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 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.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.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. [page 797] 4. 5.

6.

7.

The courts must tread warily in showing leniency for good character in such cases: R v MacIntyre at 139. 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. 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. 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) Extent and nature of the injuries inflicted. (ii) Number of people put at risk. (iii) Degree of speed. (iv) Degree of intoxication or of substance abuse. (v) Erratic or aggressive driving. (vi) Competitive driving or showing off. (vii) Length of the journey during which others were exposed to risk. (viii)Ignoring of warnings. (ix) Escaping police pursuit. [page 798] (x) Degree of sleep deprivation. (xi) 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

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 guideline focuses attention on the objective circumstances of the offence. The subjective circumstances of the offender will also require consideration. 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). [page 799] 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 (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 [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

[page 800] 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]. [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.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; [page 801] (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 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].

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[8-s 52AA] matters

Dangerous driving: procedural

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 [page 802] 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 (b) unless the accused proves that there was no such drug in the accused’s blood or urine at the time of the impact. [subs (3B) insrt Act 79 of 2006 s 4 and Sch 2.1[3], opn 15 Dec 2006]

(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]. [page 803] 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 See the Road Transport Act 2013 under the 13 — Road Transport guide card.

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[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].

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[8-s 52B] matters

Dangerous navigation: substantive

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

[page 804] 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 (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. [subs (1) am Act 27 of 2003 s 3 and Sch 3[1], opn 8 July 2003]

(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 [page 805] 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 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.

[page 806] COMMENTARY ON SECTION 52B

Summary disposal …. Definitions …. Form of indictment …. Dangerous navigation under the influence — s 52B(1)(a) or (3)(a) …. 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.1] [8-s 52B.5] [8-s 52B.10] [8-s 52B.15] [8-s 52B.20] [8-s 52B.25] [8-s 52B.30] [8-s 52B.35] [8-s 52B.40] [8-s 52B.45] [8-s 52B.50] [8-s 52B.55] [8-s 52B.60]

[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.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 [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]. [page 807] [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]. [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. [page 808] [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 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].

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[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. [subs (2) am Act 4 of 2005 s 4 and Sch 2.1[2], opn 13 May 2005]

(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 [page 809] (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]

[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]. “Wanton” means unrestrained disregard of consequences of the accused’s actions: R v Bolton (NSW District Court, Cooper DCJ, 14 May 1981, unreported). “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 [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.

____________________ [page 810]

[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. 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 54.5] 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 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 [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.

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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: [page 811] (a) with intent by means thereof to injure, or otherwise commit a serious indictable offence against the person of any one, or (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 As to “possession” see [8-s 7]. As to “serious indictable offence” see [8-s 4]. [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

[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; [page 812] (v) engine; (vi) instrument; or (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.

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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 56

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. [page 813]

[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 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 [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.

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[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.

[page 814] COMMENTARY ON SECTION 57

Summary disposal …. Elements of the offence …. Definitions …. Intoxication …. Form of indictment …. Vessel …. Contents of vessel …. Elements of offence ….

[8-s 57.1] [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 57.5] 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 57.10] 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 [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 [page 815] (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.

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[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 ….

[8-s 58.1] [8-s 58.2] [8-s 58.5] [8-s 58.10] [8-s 58.15] [8-s 58.20] [8-s 58.25] [8-s 58.30] [8-s 58.35] [8-s 58.40] [8-s 58.45] [8-s 58.50] [8-s 58.55] [8-s 58.57] [8-s 58.60] [8-s 58.65] [8-s 58.70] [8-s 58.75] [8-s 58.80] [8-s 58.85] [8-s 58.90]

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 ….

[8-s 58.95] [8-s 58.100] [8-s 58.105] [8-s 58.110] [8-s 58.115] [8-s 58.120] [page 816]

[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 58.2] 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] 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 [page 817] 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. [page 818] [8-s 58.10] Lawful correction Lawful correction is a defence to assault of a child by its parent or of a pupil by his teacher (Cleary v Booth [1893] 1 QB 465) providing that the correction is reasonable in manner and warranted in all the circumstances: R v Griffin (1869) 11 Cox CC 142. The age and health of the child must be considered: R v Mackie [1973] Crim LR 54. It must be administered with a proper instrument and in a decent manner: R v Miles (1842) 6 Jur 243. A husband is not entitled to chastise or imprison his wife: R v Jackson [1891] 1 QB 671. [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] 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 [page 819] 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 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]. [page 820] [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: 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 [8s 546C.5]. [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 58.55] 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]. [page 821] [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 [2s 279]. [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 [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 office 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 officer and office held eg “a constable of police”] while in the execution of [the officer’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]. [page 822]

[8-s 58.120] Assault with intent to resist arrest (1) The accused assaulted [8-s 58.5] the victim; and (2) did so with the intention [6-500] of resisting [8-s 58.45] or preventing the lawful apprehension or detention of any person.

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[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] Editor’s note: For proof material on s 59, see [27-16,450] behind the “27 – Informations and Indictments” guide card in Vol 4. 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 59.40] [8-s 59.45] [8-s 59.50] [8-s 59.55] [8-s 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: [page 823] 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]. [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 [2s 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 [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 As to what is the necessary averment for the element of assault, see [27-16,475.1]. [8-s 59.50] Elements of offence 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]. [page 824] [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 (3) as a consequence of that assault, the victim suffered actual bodily harm [8-s 59.5].

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[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] 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.1] [8-s 59A.5] [8-s 59A.10] [8-s 59A.15] [8-s 59A.20] [8-s 59A.25] [8-s 59A.30] [8-s 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 [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. [page 825]

[8-s 59A.25] Necessary averments As to what is the necessary averment for the element of assault, see [27-16,475.1]. [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].

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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) the Commissioner for the Independent Commission Against Corruption or an Assistant Commissioner for that Commission, 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) the Commissioner for the Police Integrity Commission or an Assistant Commissioner for that Commission, or (e) an officer of the Police Integrity Commission, within the meaning of the Police Integrity Commission Act 1996, who performs investigation or confiscation functions, or

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 probation and parole 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 (f)

[page 826] (m) an Australian legal practitioner who is employed as a member of staff of the Director of Public Prosecutions, or (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. [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]

[8-s 60] officers

Assault and other actions against police

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. [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: (a) as a consequence of, or in retaliation for, actions undertaken by that

police officer in the execution of the officer’s duty, or [page 827] (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

[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 60.70] [8-s 60.75]

public disorder …. Wound/inflict grievous bodily harm …. Wound/inflict grievous bodily harm during public disorder ….

[8-s 60.80] [8-s 60.85] [8-s 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 [2s 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]. 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 [page 828] 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 See the authorities referred to at [8-s 58.55] and [8-s 546C.15]. [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 [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. [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. [page 829] [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]; (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]. [page 830]

[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] and [8-s 58.5]); and (5) the act of the accused was done recklessly [8-s 4A.5].

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[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]. 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 [page 831] 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 [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 (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 [page 832] (4) The victim was acting in the execution of his/her duty [8-s 60A(4)].

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[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. (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) ….

[8-s 60B.1] [8-s 60B.5] [8-s 60B.10] [8-s 60B.15]

Section 60B(2) …. Elements of offence …. Section 60B(1) …. Section 60B(2) ….

[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]. [page 833] [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 [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 officer], a [state type of law enforcement officer], had a domestic relationship, with the intention of causing [name of officer] to fear physical or mental harm as a consequence of, or in retaliation for, actions undertaken by [name of officer] 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 officer], a [state type of law enforcement officer], had a domestic relationship, with the intention of using/permitting the use of the information to cause [name of officer] to fear physical or mental harm as a consequence of, or in retaliation for, actions undertaken by [name of officer] 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 [85020]; (3) with the intention (s 60(4) at [8-s 60]) of causing the law enforcement officer [8-s 60AA] to fear physical or mental harm (s 60B(3) at [8-s 60B]);

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. (i)

[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]); (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].)

____________________ [page 834]

[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 ….

[8-s 60C.1] [8-s 60C.5] [8-s 60C.10]

Elements of offence ….

[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 [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 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.

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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.

[page 835] 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. (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. Editor’s note: For a historical version of this section please see [8A-REP s 60E]. 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) ….

[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] [page 836]

Section 60E(2) …. Section 60E(3) …. Section 60E(4) ….

[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 [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. [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]; [page 837] (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).

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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. 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 61.1] [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]. [8-s 61.5] Definitions 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]. [page 838]

[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 [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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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). [page 839] (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. 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.

DIVISION 10 — OFFENCES IN THE NATURE OF RAPE, OFFENCES RELATING TO OTHER ACTS OF SEXUAL ASSAULT ETC [Div heading insrt Act 53 of 2000 s 3 and Sch 3.3, opn 29 June 2000]

61A–61G [ss 61A–61G rep Act 198 of 1989 s 3 and Sch 1[2], opn 17 Mar 1991]

[8-s 61H] Definition of “sexual intercourse” and other terms 61H (1) 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

[page 840] (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). [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]

(1A) 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. [subs (1A) insrt Act 74 of 2008 s 3 and Sch 1, opn 1 Dec 2008]

(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 an act of indecency, as referred to in section 61N or 61O, is taken to commit an offence on the other person. [subs (3) subst Act 23 of 1995 Sch 1, opn 1 July 1995] [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. [page 841] 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. 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”.

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[8-s 61HA] offences

Consent in relation to sexual assault

61HA (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 and 61JA. [subs (1) am Act 59 of 2014 Sch 1 item 1.1[1], opn 23 Oct 2014]

(2) Meaning of consent A person consents to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse. (3) Knowledge about consent A person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if: (a) the person knows that the other person does not consent to the sexual intercourse, or (b) the person is reckless as to whether the other person consents to the sexual intercourse, or (c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse. For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case: (d) including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse, but (e) not including any self-induced intoxication of the person. (4) Negation of consent A person does not consent to sexual intercourse: (a) if the person does not have the capacity to consent to the sexual intercourse, including because of age or cognitive incapacity, or (b) if the person does not have the opportunity to consent to the sexual intercourse because the person is unconscious or asleep, or [page 842] (c) if the person consents to the sexual intercourse 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 intercourse because the person is unlawfully detained. (5) A person who consents to sexual intercourse with another person: (a) under a mistaken belief as to the identity of the other person, or (b) under a mistaken belief that the other person is married to the person, or (c) under a mistaken belief that the sexual intercourse is for health or hygienic purposes (or under any other mistaken belief about the nature of the act induced by fraudulent means), does not consent to the sexual intercourse. For the purposes of subsection (3), the other person knows that the person does not consent to sexual intercourse if the other person knows the person consents to sexual intercourse under such a mistaken belief. [subs (5) am Act 59 of 2014 Sch 1 item 1.1[2], opn 23 Oct 2014]

(6) The grounds on which it may be established that a person does not consent to sexual intercourse include: (a) if the person has sexual intercourse while substantially intoxicated by alcohol or any drug, or (b) if the person has sexual intercourse because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force, or (c) if the person has sexual intercourse because of the abuse of a position of authority or trust. (7) A person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse. (8) This section does not limit the grounds on which it may be established that a person does not consent to sexual intercourse. [s 61HA insrt Act 66 of 2007 s 3 and Sch 1[1], opn 1 Jan 2008]

[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. 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 ….

[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] [page 843]

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.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 [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 [page 844] 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.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.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 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 [page 845] 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 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]. [page 846]

[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.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] 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). 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. 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].

[page 847]

PROOF MATERIAL ON SECTION 61I [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 (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, 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]

(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] Editor’s note: For proof material on s 61J, see [27-16,650] behind the “27 — Informations and Indictments” guide card in Vol 4.

[page 848] 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 ….

[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]

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.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: 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. [page 849]

[8-s 61J.5] Mens rea of the offence See at [8-s 61I.5]. [8-s 61J.10] Complaint evidence See at [8-s 61I.10]. [8-s 61J.15] Corroboration See at [8-s 61I.15]. [8-s 61J.20] Attempts 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]. [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.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 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.

[page 850] 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 [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 [8-s 61J.85] 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]. [8-s 61J.90] 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].

____________________

[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]

[page 851] (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 ….

[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]

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 …. Inflict actual bodily harm …. Threaten to inflict actual bodily harm …. Deprive victim of his/her liberty …. Alternative verdicts ….

[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] [8-s 61JA.70] [8-s 61JA.75] [8-s 61JA.80] [8-s 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.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.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]. [page 852] [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]. [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 [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 [page 853] 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 (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 (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 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 [page 854] (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].

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[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. COMMENTARY ON SECTION 61K

Definitions …. “By means of an offensive weapon” …. Complaint evidence …. Corroboration …. Attempts ….

[8-s 61K.1] [8-s 61K.5] [8-s 61K.10] [8-s 61K.15] [8-s 61K.20]

Compellability of spouse …. Reading of depositions …. Evidence of other sexual activity by or with the complainant …. Evidence of medical examination of complainant …. Incapacity of minors …. Restrictions on disclosure of evidence …. Effect of marriage …. Sentence …. Intoxication …. Referral to child protection agency …. Personal violence offence/domestic violence offence …. Form of indictment …. Inflicting actual bodily harm — s 61K(a) …. Threaten to inflict actual bodily harm — s 61K(b) …. Elements of offence …. Inflicting actual bodily harm with intent …. Threaten to inflict actual bodily harm with intent ….

[8-s 61K.25] [8-s 61K.30] [8-s 61K.35] [8-s 61K.40] [8-s 61K.45] [8-s 61K.50] [8-s 61K.55] [8-s 61K.60] [8-s 61K.65] [8-s 61K.70] [8-s 61K.75] [8-s 61K.80] [8-s 61K.85] [8-s 61K.90] [8-s 61K.95] [8-s 61K.100] [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. [page 855] [8-s 61K.10] Complaint evidence See at [8-s 61I.10]. [8-s 61K.15] Corroboration See at [8-s 61I.15]. [8-s 61K.20] Attempts 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]. [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.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.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 [page 856] 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

[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: 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 [8s 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].

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[8-s 61L]

Indecent assault

61L Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 5 years. [s 61L insrt Act 198 of 1989 s 3 and Sch 1[3], opn 17 Mar 1991] Editor’s note: For proof material on s 61L, see [27-16,725] behind the “27 – Informations and Indictments” guide card in Vol 4.

[page 857] COMMENTARY ON SECTION 61L

Summary disposal …. Form of indictment …. Definitions …. Complaint evidence …. Corroboration …. Attempts …. Compellability of spouse …. Reading of depositions …. Evidence of other sexual activity by or with the complainant …. Evidence of medical examination of complainant …. Personal violence offence/domestic violence offence …. Incapacity of minors …. Restrictions on disclosure of evidence …. Referral to child protection agency …. Form of indictment …. Necessary averments …. Elements of offence …. Statutory defence ….

[8-s 61L.1] [8-s 61L.5] [8-s 61L.10] [8-s 61L.15] [8-s 61L.20] [8-s 61L.25] [8-s 61L.30] [8-s 61L.35] [8-s 61L.40] [8-s 61L.42] [8-s 61L.45] [8-s 61L.50] [8-s 61L.55] [8-s 61L.60] [8-s 61L.65] [8-s 61L.70] [8-s 61L.75] [8-s 61L.80]

[8-s 61L.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 61L.5] Form of indictment It is not necessary to state the mode of the assault in the indictment: see at [2-Sch 3] Pt 4 cl 14. [8-s 61L.10] Definitions As to “assault” see [8-s 58.5]. There is no need for separate acts of assault and indecency under this offence. Any assault which in itself could constitute an indecent act will suffice: R v Sorlee (1925) 42 WN (NSW) 152; Fitzgerald v Kennard (1995) 38 NSWLR 184; 84 A Crim R 333; BC9501688. Hostile intent need not be shown to constitute the indecent assault: Faulkner v Talbot [1981] 1 WLR 1528 approving; R v McCormack [1969] 2 QB 442; R v Phillips [1971] ALR 740; (1971) 45 ALJR 467 at 473; Boughey v R (1986) 161 CLR 10 at 29; 65 ALR 609; BC8601432 (the circumstances of the contact of one person with another which makes the contact indecent make it unnecessary to establish some hostility over or above the circumstances of the indecency); Fitzgerald v Kennard, above. The assault element can be committed by the accused laying hands upon the

complainant without his or her consent, ie believing that the complainant was not consenting or reckless as to whether the complainant was consenting or not: R v Kimber [1983] 3 All ER 316. Although the assault normally relied upon is a battery, the offence can be committed without any touching where the conduct of the accused causes the complainant to apprehend immediate and unlawful personal violence: R v Court [1989] AC 28; [1988] 2 All ER 221. In cases where consent is an issue, if there is consent then there is no offence, and, therefore, the issue of whether the accused believed the complainant was consenting or was reckless to that matter must be averted to by a trial judge in directing a jury as to the elements of the offence: R v Bonora (1994) 35 NSWLR 74; R v Kuckailis [2001] NSWCCA 333; BC200105330; (2001) 8 Crim LN 98 [1366]. Recklessness as to consent for the purposes of the section will be satisfied by proof that the accused was indifferent to the feelings of the complainant as to whether or not she consented, and in cases involving physical contact it is enough that the accused failed to advert at all to the question of consent: Fitzgerald v Kennard (1995) 38 NSWLR 184; 84 A Crim R 333; BC9501688. Where by reason of s 77 consent is no defence, it is unnecessary for the Crown to prove an “assault” in the ordinary legal meaning of that word, in that it is not necessary to prove that the [page 858] act was done without consent or against the will of the complainant, but it is sufficient if the act alleged would have amounted to an “assault” within the ordinary meaning of the word if done without consent or against the complainant’s will: R v Beserick (1993) 30 NSWLR 510; 66 A Crim R 419 applying R v Valence (1958) 59 SR (NSW) 138. Where consent is still an element of the offence it is unnecessary that the prosecution prove in every case conduct by way of hostility or compulsion towards the complainant: R v Beserick, above. The indecent assault must have some sexual connotation which can be sufficiently derived from the body area of the victim which is touched by the accused or by the part of the accused’s body which is used to do the touching. The touching of a girl’s breast would therefore be sufficient. The purpose or motive of the accused for behaving in that way is irrelevant. But where there is no such unequivocal sexual connotation then the touching must be accompanied by some intention to obtain sexual gratification: R v Harkin (1989) 38 A Crim R 296; BC8902613. “Acts of indecency” “An indecent act is one which right-minded persons would consider to be contrary to community standards of decency” and although where the act has unequivocal sexual connotations it is unnecessary for the prosecution to prove the purpose of providing sexual gratification, the purpose of the indecent act, such as being artistic or political, is relevant for a consideration as to whether it was in fact indecent although not decisive of the question: R v Manson (NSWCCA, Gleeson CJ, Clarke JA and Sully J, 60773/91, 60820/91, 17 February 1993, unreported, BC9303922). The following have been held to be acts of indecency: (i) Kissing a female against her will accompanied by a suggestion that sexual intercourse should take place: R v Leenan (1968) 52 Cr App R 185; (ii) Touching the genitalia: R v McCormack [1969] 2 QB 442. See also R v Sutton [1977] 3 All ER 476. See generally R v Bolduc and Bird (1967) 61 DLR (2d) 494. Indecency is that which offends against currently accepted standards of decency: Attorney-General v Huber (1971) 2 SASR 142. It was not an error for a trial judge to tell a jury that “indecent” meant contrary to ordinary standards of the morality of respectable persons: R v Harkin (1989) 38 A Crim R 296; BC8902613. All of the surrounding circumstances are to be considered in determining whether a particular act was indecent so that an act may be indecent in some circumstances but not others: Eades v DPP [2010] NSWCA 241; BC201006899; 18(3) Crim LN 37 [2867]. In that case it was also held that the expression “incites a person … to an act of indecency towards that … person” should be read as a

compound expression so that the unlawful inciting is of an act of indecency that is a prospective act that the accused is trying to get the complainant to perform. In determining whether the inciting is of an indecent act the terms of the request and the identity of both the person making the request and the person requested can be taken into account. As to “under authority of another person” see s 61H(2). It is unnecessary that the conduct the subject of the charge of committing an act of indecency “towards” a person be committed in the immediate presence of the complainant: R v Barrass [2005] NSWCCA 131; BC200502092; (2005) 12 Crim LN 42 [1860]. [8-s 61L.15] Complaint evidence See at [8-s 61I.10]. [8-s 61L.20] Corroboration See at [8-s 61I.15]. [8-s 61L.25] Attempts See at [8-s 61I.20]. [8-s 61L.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 61L.35] Reading of depositions In certain cases depositions of evidence may be read in committal proceedings: see at [2-s 288]. [8-s 61L.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 [page 859] 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 61L.42] 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 61L.45] 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 61L.50] 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 61L.55] 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 61L.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]. PROOF MATERIAL ON SECTION 61L [8-s 61L.65] 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.70] 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 61L.75] 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.80] 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 [page 860] 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].

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[8-s 61M]

Aggravated indecent assault

61M (1) Any person who assaults another person in circumstances of aggravation, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 7 years.

(2) Any person who assaults another person, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 10 years, if the other person is under the age of 16 years. [subs (2) am Act 105 of 2008 s 3 and Sch 1, opn 1 Jan 2009]

(3) In this section, circumstances of aggravation means circumstances in which: (a) the alleged offender is in the company of another person or persons, or (b) [repealed] (c) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (d) the alleged victim has a serious physical disability, or (e) the alleged victim has a cognitive impairment. [subs (3) am 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] [s 61M insrt Act 198 of 1989 s 3 and Sch 1[3], opn 17 Mar 1991] Editor’s note: For proof material on s 61M, see [27-16,750] behind the “27 – Informations and Indictments” guide card. Editor’s note: Please see [8A-REP s 61M] for a prior version of this section. COMMENTARY ON SECTION 61M

Summary disposal …. Circumstance of aggravation …. Form of indictment …. Definitions …. Complaint evidence …. Corroboration …. Attempts …. Compellability of spouse …. Reading of depositions …. Evidence of other sexual activity by or with the complainant …. Evidence of medical examination of complainant …. Personal violence offence/domestic violence offence ….

[8-s 61M.1] [8-s 61M.2] [8-s 61M.5] [8-s 61M.10] [8-s 61M.15] [8-s 61M.20] [8-s 61M.25] [8-s 61M.30] [8-s 61M.35] [8-s 61M.40] [8-s 61M.42] [8-s 61M.45]

Incapacity of minors …. Restrictions on disclosure of evidence …. Standard non-parole period provisions …. Referral to child protection agency …. Form of indictment …. Offender in company — s 61M(1) and (3)(a) …. Other circumstances of aggravation (relating to type of victim) — s 61M(1) and (3)(b)–(e) …. Child under 16 years — s 61M(2) …. Necessary averments ….

[8-s 61M.50] [8-s 61M.55] [8-s 61M.60] [8-s 61M.65] [8-s 61M.70] [8-s 61M.75] [8-s 61M.80] [8-s 61M.85] [8-s 61M.90] [page 861]

Elements of offence …. Statutory defence …. Alternative verdict ….

[8-s 61M.95] [8-s 61M.100] [8-s 61M.105]

[8-s 61M.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 penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 61M.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, 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 61M.5] Form of indictment It is not necessary to state the mode of the assault in the indictment: see at [2-Sch 3]. [8-s 61M.10] Definitions As to indecent assault, see at [8-s 61L.10]. As to “person in authority” see s 61H(2) and [8-s 61H.10]. As to “immediately before or after”, see at [8-s 61J.1]. As to “in the company of another person” see [8-s 61J.1]. [8-s 61M.15] Complaint evidence See at [8-s 61I.10]. [8-s 61M.20] Corroboration See at [8-s 61I.15]. [8-s 61M.25] Attempts See at [8-s 61I.20]. [8-s 61M.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 61M.35] Reading of depositions In certain cases depositions of evidence may be read in committal proceedings: see at [2-s 288]. [8-s 61M.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 s 293 of the Criminal Procedure Act 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 or as evidence of relationship, see at [3-s 97.10] and generally (1997) 4 Crim LN 22 [679]. [8-s 61M.42] 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 61M.45] 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 61M.50] 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]. [page 862] [8-s 61M.55] Restrictions on disclosure of evidence 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 61M.60] Standard non-parole period provisions Where an offence under s 61M(1) or s 61M(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 prescribed for an offence under s 61M(1) is five years and under s 61M(2) it is eight 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) at [5-s 54D]. [8-s 61M.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 61M [8-s 61M.70] Form of indictment

[8-s 61M.75] 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]. [8-s 61M.80] 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.85] 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.90] 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.95] 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.100] 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]. [page 863] 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 [8AREP s 77.5] and Crimes Amendment (Sexual Offences) Act 2003 No 9 s 3 and Sch 1[49]. [8-s 61M.105] 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 (1) Any person who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under that age to an act of indecency with or towards that or another person, is liable to imprisonment for 2 years. (2) Any person who commits an act of indecency with or towards a person of the age of 16 years or above, or incites a person of the age of 16 years or above to an act of indecency with or towards that or another person, is liable to imprisonment for 18 months. [subs (2) insrt Act 23 of 1995 Sch 1, opn 1 July 1992] [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] Editor’s note: For proof material on s 61N, see [27-16,800] behind the “27 – Informations and Indictments” guide card in Vol 4. COMMENTARY ON SECTION 61N

Summary disposal …. Definitions …. Scope of the section …. Complaint evidence …. Corroboration …. Attempts …. Compellability of spouse …. Reading of depositions …. Evidence of other sexual activity by or with the complainant …. Evidence of medical examination of complainant …. Personal violence offence/domestic violence offence …. Incapacity of minors …. Restrictions on disclosure of evidence …. Referral to child protection agency …. Form of indictment …. Committing act of indecency with/towards person under 16 years — s 61N(1) …. Inciting person under 16 years to act of indecency with/towards accused or another person — s

[8-s 61N.1] [8-s 61N.5] [8-s 61N.7] [8-s 61N.10] [8-s 61N.15] [8-s 61N.20] [8-s 61N.25] [8-s 61N.30] [8-s 61N.35] [8-s 61N.38] [8-s 61N.40] [8-s 61N.45] [8-s 61N.50] [8-s 61N.55] [8-s 61N.60] [8-s 61N.65]

61N(1) …. Committing act of indecency with/towards person of/above 16 years — s 61N(2) …. Inciting person of/above 16 years to act of indecency with/towards accused or another person — s 61N(2) …. Elements of offence ….

[8-s 61N.70] [8-s 61N.75]

[8-s 61N.80] [8-s 61N.85] [page 864]

Committing act of indecency …. Inciting act of indecency ….

[8-s 61N.90] [8-s 61N.95]

[8-s 61N.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 61N.5] Definitions As to “act of indecency” see at [8-s 61L.10]. The history of this type of offence was considered in Saraswati v R (1991) 172 CLR 1; 100 ALR 193; BC9102595, where it was held that “an act of indecency” cannot include any of the conduct which would constitute an “indecent assault”. [8-s 61N.7] Scope of the section See generally at [8-s 61O.3]. [8-s 61N.10] Complaint evidence See at [8-s 61I.10]. [8-s 61N.15] Corroboration See at [8-s 61I.15]. [8-s 61N.20] Attempts See at [8-s 61I.20]. [8-s 61N.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 61N.30] Reading of depositions In certain cases depositions of evidence may be read in committal proceedings: see at [2-s 288]. [8-s 61N.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 61N.38] 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 61N.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]. [8-s 61N.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 61N.50] 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 also make an order forbidding publication of the whole or any part of the evidence: see at [2s 292]. 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. [page 865] [8-s 61N.55] 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 61N [8-s 61N.60] Form of indictment [8-s 61N.65] 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. [8-s 61N.70] 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.75] 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.80] 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]. [8-s 61N.85] Elements of offence The elements of the offence are—

[8-s 61N.90] 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 [8s 77]. [8-s 61N.95] 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 [8s 77].

____________________

[8-s 61O]

Aggravated act of indecency

61O (1) Any person who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under that age to an act of indecency with or towards that or another person, in either case in circumstances of aggravation, is liable to imprisonment for 5 years. [subs (1) am Act 40 of 1999 s 4 and Sch 2[1], opn 1 Sep 1999]

[page 866] (1A) Any person who commits an act of indecency with or towards a person of the age of 16 years or above, or incites a person of the age of 16 years or above to an act of indecency with or towards that or another person, in either case in circumstances of aggravation, is liable to imprisonment for 3 years. [subs (1A) insrt Act 23 of 1995 Sch 1, opn 1 July 1995]

(2) Any person who commits an act of indecency with or towards a person under the age of 10 years, or incites a person under that age to an act of indecency with or towards that or another person, is liable to imprisonment for 7 years. [subs (2) am Act 40 of 1999 s 4 and Sch 2[1], opn 1 Sep 1999]

(2A) A person: (a) who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under the age of 16 years to an act of indecency with or towards that person or another person, and (b) who knows that the act of indecency is being filmed for the purposes of the production of child abuse material, is guilty of an offence. Maximum penalty: imprisonment for 10 years. [subs (2A) 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]

(3) For the purposes subsections (1) and (1A), 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. [subs (3) am 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]

(4) For the purposes of subsection (2A): (a) child abuse material has the meaning given by Division 15A, and (b) an act of indecency is being filmed if one or more images (whether still or moving) of the act of indecency are being recorded or transmitted for the purpose of enabling those images to be observed by any person (whether during the filming or later). [subs (4) 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] [s 61O insrt Act 198 of 1989 s 3 and Sch 1[3], opn 17 Mar 1991] Editor’s note: For proof material on current s 61O, see [27-16,825] behind the “27 – Informations and Indictments” guide card in Vol 4. COMMENTARY ON SECTION 61O

Summary disposal ….

[8-s 61O.1]

Committing act of indecency towards a person …. Definitions …. Complaint evidence …. Corroboration …. Attempts …. Compellability of spouse …. Reading of depositions …. Evidence of other sexual activity by or with the complainant …. Evidence of medical examination of complainant …. Personal violence offence/domestic violence offence ….

[8-s 61O.3] [8-s 61O.5] [8-s 61O.10] [8-s 61O.15] [8-s 61O.20] [8-s 61O.25] [8-s 61O.30] [8-s 61O.35] [8-s 61O.38] [8-s 61O.40] [page 867]

Incapacity of minors …. Restrictions on disclosure of evidence …. Referral to child protection agency …. Form of indictment …. Committing act of indecency with/towards person under 16 years in company — s 61O(1) and (3)(a) …. Committing other aggravated act of indecency with/towards person under 16 years — s 61O(1) and (3)(b)–(d) …. Inciting person under 16 years to act of indecency with/towards accused or another person, in company — s 61O(1) and (3)(a) …. 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) …. Committing act of indecency with/towards person of/above 16 years in company — s 61O(1A) and (3)(a) …. Committing other aggraveted act of indecency

[8-s 61O.45] [8-s 61O.50] [8-s 61O.55] [8-s 61O.60]

[8-s 61O.65]

[8-s 61O.70]

[8-s 61O.75]

[8-s 61O.80]

[8-s 61O.85]

with/towards person of/above 16 years — s 61O(1A) and (3)(b)–(d) …. Inciting person of/above 16 years to act of indecency with/towards accused or another person, in company — s 61O(1A) and (3)(a) …. 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) …. Committing act of indecency with/towards person under 10 years — s 61O(2) …. Inciting person under 10 years to an act of indecency with/towards accused or another person — s 61O(2) …. Committing act of indecency with/towards person under 16 years for the purposes of child pornography — s 61O(2A) …. Inciting act of indecency with/towards person under 16 years for the purposes of child pornography – s 61O(2A) …. Elements of offence …. Committing aggravated act of indecency …. Inciting act of indecency in circumstances of aggravation …. Act of indecency with/towards person under 16 years for the purposes of child pornography …. Alternative verdict ….

[8-s 61O.90]

[8-s 61O.95]

[8-s 61O.100] [8-s 61O.105]

[8-s 61O.110]

[8-s 61O.115]

[8-s 61O.120] [8-s 61O.125] [8-s 61O.130] [8-s 61O.135] [8-s 61O.140] [8-s 61O.145]

[8-s 61O.1] Summary disposal An offence under s 61O(2) 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 maximum penalty is 2 years imprisonment, see at [2-s 267]. An offence under s 61O(1) and (1A) is a Table 2 offence 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 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 the s 61O(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], Pt 1, cl 2. The maximum penalty for an offence dealt with summarily is imprisonment for 2 years: see s 267(2) at [2-s 267].

[8-s 61O.3] Committing act of indecency towards a person In R v Barrass [2005] NSWCCA 131; BC200502092; (2005) 12 Crim LN 42 [1860] it was held that an offence of committing an act of indecency “towards” another person under s 61O(2) did not require that the [page 868] relevant act of indecency be committed in the immediate physical presence of the victim — there, the offence was committed by the offender (in one vehicle) exposing and manipulating his penis in circumstances where he was within view of girls (in another vehicle) and he intended that they should see what he was doing. In Director of Public Prosecutions (DPP) v Eades [2009] NSWSC 1352; BC200911487; (2010) 17 Crim LN 36 [2689] it was held that an offence under s 61N(1) was made out where the accused had incited a child to send an indecent photo by mobile phone. In determining whether the act is indecent the court is to have regard to all the relevant circumstances including the relative ages of the two persons and the sexual nature of the communication, see Director of Public Prosecutions (DPP) v Eades at [20]–[30] and (2010) 17 Crim LN 22 [2679]. The difference between “with” and “towards” is that in the first case there must be two participants in the indecent act whereas in the second case an act is committed by one person towards a nonparticipant: R v Chonka [2000] NSWCCA 466; BC200006758. [8-s 61O.5] Definitions As to “act of indecency”, see at [8-s 61L.10]. As to “person in authority” see s 61H(2) and [8-s 61H.10]. As to “in the company of another person” see [8-s 61J.1]. [8-s 61O.10] Complaint evidence See at [8-s 61I.10]. [8-s 61O.15] Corroboration See at [8-s 61I.15]. [8-s 61O.20] Attempts See at [8-s 61I.20]. [8-s 61O.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 witness: see s 279 of the Criminal Procedure Act 1986 at [2-s 279]. [8-s 61O.30] Reading of depositions In certain cases depositions of evidence may be read in committal proceedings: see s 93 of the Criminal Procedure Act 1986 at [2-s 93]. [8-s 61O.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 s 293 of the Criminal Procedure Act 1986 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 or as evidence of relationship, see at [3-s 97.10] and generally (1997) 4 Crim LN 22 [679]. [8-s 61O.38] 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 61O.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]. [8-s 61O.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 61O.50] Restrictions on disclosure of evidence As the offence is a prescribed offence under s 3 of the Criminal Procedure Act 1986, 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 [page 869] 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 61O.55] 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 61O [8-s 61O.60] Form of indictment [8-s 61O.65] 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.70] 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. [8-s 61O.75] 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.80] 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.85] 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.90] 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.95] 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]. [page 870] [8-s 61O.100] 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.105] 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.110] 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.115] Committing act of indecency with/towards person under 16 years for the purposes of child pornography — 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 pornography. [8-s 61O.120] Inciting act of indecency with/towards person under 16 years for the purposes of child pornography – 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 pornography.

[8-s 61O.125] Elements of offence The elements of the offence are— [8-s 61O.130] 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]. [8-s 61O.135] 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, 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]. [page 871] [8-s 61O.140] Act of indecency with/towards person under 16 years for the purposes of child pornography (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 pornography (s 61O(4)(a)). [8-s 61O.145] 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].

____________________

[8-s 61P]

Attempt to commit offence under

sections 61I–61O 61P Any person who attempts to commit an offence under section 61I, 61J, 61JA, 61K, 61L, 61M, 61N or 61O is liable to the penalty provided for the commission of the offence. [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] Editor’s note: For proof material on s 61P, see [27-16,850] behind the “27 – Informations and Indictments” guide card in Vol 4. COMMENTARY ON SECTION 61P

Summary disposal …. Referral to child protection agency …. Form of indictment …. Elements of offence ….

[8-s 61P.1] [8-s 61P.10] [8-s 61P.15] [8-s 61P.20]

[8-s 61P.1] Summary disposal A charge of attempting to commit an offence under ss 61I-61O may be heard summarily in a Local Court where a charge of a complete offence under these provisions may be determined summarily. [8-s 61P.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 61P [8-s 61P.15] 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.20] 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.

____________________

[8-s 61Q]

Alternative verdicts

61Q (1) Question of aggravation If on the trial of a person for an offence under section 61J, 61M or 61O the jury is not satisfied that the accused is guilty of the offence

[page 872] charged, but is satisfied on the evidence that the accused is guilty of an offence under section 61I, 61L or 61N, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. (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 61O(2A) 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 61O(2) or 61N, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. [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] COMMENTARY ON SECTION 61Q

Alternative verdicts available …. Referral to child protection agency ….

[8-s 61Q.1] [8-s 61Q.5] [page 873]

[8-s 61Q.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 61Q.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]

____________________

Consent 61R [s 61R rep Act 66 of 2007 s 3 and Sch 1[2], opn 1 Jan 2008]

[8-s 61S]

Offenders who are minors

61S (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] COMMENTARY ON SECTION 61S

Referral to child protection agency ….

[8-s 61S.1]

[8-s 61S.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 61T]

Offender married to victim

61T 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] COMMENTARY ON SECTION 61T

Referral to child protection agency ….

[8-s 61T.1]

[8-s 61T.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]

____________________

[page 874]

[8-s 61U] Circumstances of certain sexual offences to be considered in passing sentence 61U 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] COMMENTARY ON SECTION 61U

Referral to child protection agency ….

[8-s 61U.1]

[8-s 61U.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]

____________________

Carnal knowledge — proof 62 [s 62 rep Act 9 of 2003 s 3 and Sch 1[5] opn 13 June 2003]

[8-s 63] Common law offences of rape and attempted rape abolished 63 (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] COMMENTARY ON SECTION 63

Referral to child protection agency ….

[8-s 63.1]

[8-s 63.1] 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]

____________________ 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]

[page 875]

[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. (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 ….

[8-s 66A.1] [8-s 66A.5] [8-s 66A.10]

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.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 See at [8-s 61I.10]. [8-s 66A.10] Corroboration 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]. [page 876] [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 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]: 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. 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 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]. [page 877]

PROOF MATERIAL ON SECTION 66A(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].

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[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 another person who is under the age of 10 years, or assaults any such person with intent to have sexual intercourse, shall be liable to imprisonment for 25 years. [s 66B am Act 90 of 2002 s 3 and Sch 2[2], opn 1 Feb 2003] 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 ….

[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]

Form of indictment …. Attempt …. Assault with intent …. Elements of offence …. Attempt …. Assault with intent ….

[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 See at [8-s 61I.10]. [8-s 66B.15] Corroboration See at [8-s 61I.15]. [page 878] [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.25] Reading of deposition In certain cases depositions of evidence may be read in committal proceedings: see at [2-s 288]. [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 [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. [page 879] [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].

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[8-s 66C] and 16

Sexual intercourse — child between 10

66C (1) Child between 10 and 14 Any person who has sexual intercourse with another person who is of or above the age of 10 years and under the age of 14 years is liable to imprisonment for 16 years. (2) Child between 10 and 14 — aggravated offence Any person who has sexual intercourse with another person 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. (3) Child between 14 and 16 Any person who has sexual intercourse with another person who is of or above the age of 14 years and under the age of 16 years is liable to imprisonment for 10 years. (4) Child between 14 and 16 — aggravated offence Any person who has sexual intercourse with another person 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. (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 (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 [page 880] (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] Editor’s note: For proof material on s 66C, see [27-17,025] behind the “27 – Informations and Indictments” guide card in Vol 4. 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 ….

[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]

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.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]. [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]. [page 881] [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 See at [8-s 61I.10]. [8-s 66C.20] Corroboration 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 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 [page 882] 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 [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.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.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]. [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]. [page 883] [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].

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[8-s 66D] Attempting, or assaulting with intent, to have sexual intercourse with child between 10 and 16 66D Any person who attempts to commit an offence under section 66C upon another person who is of or above the age of 10 years, and under the age of 16 years, or assaults any such person with intent to commit such an offence, shall be liable to the penalty provided for the commission of the offence. [s 66D insrt Act 149 of 1985 s 5 and Sch 2(5), opn 23 Mar 1986] 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 ….

[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]

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 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] [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]. [page 884] [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.10]. [8-s 66D.20] Corroboration 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 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] [page 885] [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 [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].

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[8-s 66E]

Alternative verdicts

66E (1) 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]

(2) [subs (2) rep Act 13 of 2015 Sch 1[3], opn 29 June 2015] (3) 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. (4) 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. [page 886]

(5) 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. [s 66E subst Act 105 of 2008 s 3 and Sch 1, opn 1 Jan 2009] Editor’s note: Please see [8A-REP s 66E] for a prior version of this section. COMMENTARY ON SECTION 66E

Referral to child protection agency …. Alternative verdicts ….

[8-s 66E.1] [8-s 66E.5]

[8-s 66E.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] PROOF MATERIAL ON SECTION 66E [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].

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[8-s 66EA]

Persistent sexual abuse of a child

66EA (1) A person who, on 3 or more separate occasions occurring on separate days during any period, engages in conduct in relation to a particular child that constitutes a sexual offence is liable to imprisonment for 25 years. [subs (1) am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000]

(2) It is immaterial whether or not the conduct is of the same nature, or constitutes the same offence, on each occasion. (3) It is immaterial that the conduct on any of those occasions occurred outside New South Wales, so long as the conduct on at least one of those occasions occurred in New South Wales. (4) In proceedings for an offence against this section, it is not necessary to specify or to prove the dates or exact circumstances of the alleged occasions

on which the conduct constituting the offence occurred. (5) A charge of an offence against this section: (a) must specify with reasonable particularity the period during which the offence against this section occurred, and (b) must describe the nature of the separate offences alleged to have been committed by the accused during that period. (6) In order for the accused to be convicted of an offence against this section: (a) the jury must be satisfied beyond reasonable doubt that the evidence establishes at least 3 separate occasions, occurring on separate days during the period concerned, on which the accused engaged in conduct constituting a sexual offence in relation to a particular child of a nature described in the charge, and [page 887] (b) the jury must be so satisfied about the material facts of the 3 such occasions, although the jury need not be so satisfied about the dates or the order of those occasions, and (c) if more than 3 such occasions are relied on as evidence of the commission of an offence against this section, all the members of the jury must be so satisfied about the same 3 occasions, and (d) the jury must be satisfied that the 3 such occasions relied on as evidence of the commission of an offence against this section occurred after the commencement of this section. (7) In proceedings for an offence against this section, the judge must inform the jury of the requirements of subsection (6). (8) A person who has been convicted or acquitted of an offence against this section may not be convicted of a sexual offence in relation to the same child that is alleged to have been committed in the period during which the accused was alleged to have committed an offence against this section. This subsection does not prevent an alternative verdict under subsection (10). (9) A person who has been convicted or acquitted of a sexual offence may not be convicted of an offence against this section in relation to the same

child if any of the occasions relied on as evidence of the commission of the offence against this section includes the occasion of that sexual offence. (10) 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, in respect of any of the occasions relied on as evidence of the commission of the offence against this section, committed a sexual offence, the jury may acquit the person of the offence charged and find the person guilty of that sexual offence. The person is liable to punishment accordingly. (11) Proceedings for an offence against this section may only be instituted by or with the approval of the Director of Public Prosecutions. (12) In this section: child means a person under the age of 18 years. sexual offence means any of the following: (a) an offence under section 61I, 61J, 61JA, 61K, 61L, 61M, 61N, 61O, 66A, 66B, 66C, 66D, 66F, 73, 74, 78H, 78I, 78K, 78L, 78N, 78O, 78Q or 80A, (b) an offence of attempting to commit an offence referred to in paragraph (a), (c) 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 paragraph (a) or (b). [subs (12) am Act 62 of 2001 s 3 and Sch 1[9], opn 1 Oct 2001] [s 66EA insrt Act 131 of 1998 s 3 and Sch 1[2], opn 15 Jan 1999] Editor’s note: For proof material on s 66EA, see [27-17,115] behind the “27 – Informations and Indictments” guide card in Vol 4. COMMENTARY ON SECTION 66EA

Complaint evidence …. Restrictions on disclosure of evidence …. Incapacity of minors …. Warnings as to propensity evidence ….

[8-s 66EA.1] [8-s 66EA.5] [8-s 66EA.10] [8-s 66EA.15] [page 888]

Referral to child protection agency ….

[8-s 66EA.20]

Sentencing …. Personal violence offence/domestic violence offence …. Form of indictment …. Necessary averments …. Elements of offence …. Alternative Verdict …. Statutory Limits …. Restrictions on prosecution ….

[8-s 66EA.25] [8-s 66EA.30] [8-s 66EA.35] [8-s 66EA.40] [8-s 66EA.45] [8-s 66EA.50] [8-s 66EA.55] [8-s 66EA.60]

[8-s 66EA.1] Complaint evidence As to admissibility of evidence of complaint and lack of complaint see at [8-s 61I.10]. [8-s 66EA.5] 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 66EA.10] 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 66EA.15] Warnings as to propensity evidence A similar charge to that contained in the section was considered in KRM v R (2001) 206 CLR 221; 178 ALR 385; [2001] HCA 11; BC200100684; (2001) 8 Crim LN 15 [1258], where it was held that there was no necessity to give a propensity warning in respect of such a charge and it will usually be sufficient for the trial judge to tell the jury that they have to find each of the occasions relied upon by the Crown to have been proved beyond reasonable doubt. [8-s 66EA.20] 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 66EA.25] Sentencing The relevant principles in relation to sentencing for an offence under the section were considered in R v Fitzgerald (2004) 59 NSWLR 493; 144 A Crim R 316; [2004] NSWCCA 5; BC200400257; (2004) 11 Crim LN 18 [1661]. It was held that the court should have regard to what sentences would have been imposed for the acts relied upon as the basis for the conviction, taking into account that they were part of a course of criminal conduct and being representative counts as being the appropriate sentence for the single offence under the section. In ARS v R [2011] NSWCCA 266; BC201110713; 19(2) Crim LN [3022] it was held that, where there were more than three incidents of sexual assault relied upon to make out the offence, it was open to the sentencing judge to make a finding about the number of sexual assaults that occurred in order to

determine the seriousness of the particular instance of the offence and was not simply limited to sentencing the offender on the basis of only three incidents. [page 889] [8-s 66EA.30] 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 66EA [8-s 66EA.35] 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.40] 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 66EA.45] 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.50] 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.55] 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.60] 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].

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[8-s 66EB] Procuring or grooming child under 16 for unlawful sexual activity 66EB (1) Definitions In this section: 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. [page 890] 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, 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. (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. (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. [page 891] (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. [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] COMMENTARY ON SECTION 66EB

Summary disposal …. 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 ….

[8-s 66EB.5] [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.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]. PROOF MATERIAL ON SECTION 66EB [8-s 66EB.10] Form of indictment

[8-s 66EB.15] 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.20] 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.25] 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]. [page 892] [8-s 66EB.30] Elements of offence The elements of the offence are— [8-s 66EB.35] 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.40] 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.45] 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.50] 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.55] 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 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].

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[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. [page 893] (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) Attempts A person who attempts to commit an offence under subsection (2) or (3) is guilty of an offence and liable to the penalty provided for the commission of the offence.

(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)–(4). (6) Consent not a defence for indecent assault or act of indecency The consent of a person who has a cognitive impairment is not a defence to a charge for an offence under section 61L, 61M (1), 61N (2) or 61O (1A) (or under section 61P 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. (7) Defences It is a defence to a charge for an offence under subsection (2)–(4) 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]

(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)–(4), (b) an offence referred to in subsection (6) in which the prosecution relies on the operation of that subsection. [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 [8REP s 66F.1]–[8-REP s 66F.50] in the sub-guidecard entitled “8A – Crimes Act: Repealed

Legislation”, volume 1. [page 894] PROOF MATERIAL ON SECTION 66F [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.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.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 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].

____________________ [page 895] 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]

[8-s 73] Sexual intercourse with child between 16 and 18 under special care 73 (1) Any person who has sexual intercourse with another 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. (2) Any person who has sexual intercourse with another 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. (3) For the purposes of this section, a 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 foster parent of the victim or the de facto partner of a parent, guardian or foster parent of the victim, or (b) the offender is a school teacher and the victim is a pupil of the

offender, 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. [subs (3) am Act 67 of 2012 Sch 1[2], opn 24 Sep 2012]

(4) Any person who attempts to commit an offence under subsection (1) or (2) is liable to the penalty provided for the commission of the offence. (5) A person does not commit an offence under this section if the person and the other person to whom the charge relates were, at the time the offence is alleged to have been committed, married to each other. [s 73 subst Act 9 of 2003 s 3 and Sch 1[12], opn 13 June 2003] 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] [page 896]

[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 See at [8-s 61I.10]. [8-s 73.15] Corroboration 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 [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].

____________________

[page 897] 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]

[8-s 77]

Consent no defence in certain cases

77 (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, 66EA, 66EB, 67, 68, 71, 72, 72A, 73, 74 or 76A or, if the child to whom the charge relates was under the age of 16 years at the time the offence is alleged to have been committed, to a charge under section 61E(1), 61L, 61M(1) or 76. [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]

(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] COMMENTARY ON SECTION 77

Referral to child protection agency ….

[8-s 77.1]

[8-s 77.1] 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]

____________________ 77A–78 [s 77A rep Act 94 of 1999 s 5 and Sch 3[10], opn 1 Jan 2000] Editor’s note: Section 77A 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 s 290 at [2-s 290] and see s 291 at [2-s 291]. [s 78 rep Act 2 of 1992 Sch 1[5], opn 3 May 1992]

[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 ….

[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] [page 898]

Referral to child protection agency …. Form of indictment …. Elements of offence …. Statutory defence …. Approval or sanction of proceedings ….

[8-s 78A.35] [8-s 78A.40] [8-s 78A.45] [8-s 78A.50] [8-s 78A.55]

[8-s 78A.1] Definitions As to sexual intercourse, see definition at [8-s 61H]. [8-s 78A.5] Consent Consent is no defence: see [8-s 78C]. [8-s 78A.10] Complaint evidence See at [8-s 61I.10]. [8-s 78A.15] Corroboration See at [8-s 61I.15]. [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 [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].

____________________ [page 899]

[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. 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]

[8-s 78B.1] Attempts 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 [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].

[page 900] [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].

____________________

[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]

[page 901]

[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. 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 79.5] 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 including the avoidance of undue distress or embarrassment to proceedings involving offences of a sexual nature (including Suppression and Non-publication Orders Act 2010 at [29-9130]. There are also restrictions on the disclosure of sexual assault Criminal Procedure Act, see at [2-s 290] and following.

order upon a number of grounds, a party to, or witness in, criminal an act of indecency): s 8 Court communications under Pt 5 of the

[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 [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.

[page 902] 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 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 [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.

____________________

[8-s 80A] Sexual assault by forced selfmanipulation 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

the alleged offender is in the company of another person or (c) persons, or (d) the alleged victim is under the age of 16 years, or [page 903] (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]

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 selfmanipulation, 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 selfmanipulation: (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. [subs (2A) insrt Act 11 of 2004 Sch 4, opn 24 Mar 2004]

(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] [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]

[8-s 80A.1] Complaint evidence See at [8-s 61I.10]. [page 904] [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]. [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 [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 selfmanipulation, 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, [page 905] 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: 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 selfmanipulation [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 engage in selfmanipulation [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.

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[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]

[page 906] 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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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 means: (a) a threat of force, or (b) a threat to cause a person’s deportation, or (c) 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]

[page 907] 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 [8-s 80D.10] Form of indictment [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 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.

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[8-s 80E] servitude

Conduct of business involving sexual

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. (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. [page 908] (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 [8-s 80E.1] Form of indictment [8-s 80E.5] 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.10] 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.15] Elements of offence The elements of the offence are: [8-s 80E.20] 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.25] 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.30] 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].

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[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.

DIVISION 10B — INCITEMENT TO COMMIT SEXUAL OFFENCE [Div 10B insrt Act 105 of 2008 s 3 and Sch 1, opn 1 Jan 2009]

[8-s 80G]

Incitement to commit sexual offence

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. [page 909] (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 against section 61N or 61O that is constituted by inciting another person to an act of indecency, (b) an offence against section 61P, 66B, 66D, 66EB, 66F(4), 73(4), 78B or 80. 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. “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. [page 910]

PROOF MATERIAL ON SECTION 81C [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.

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DIVISION 12 — ATTEMPTS TO PROCURE ABORTION [Div heading insrt Act 53 of 2000 s 3 and Sch 3.3, opn 29 June 2000]

[8-s 82] Administering drugs etc to herself by woman with child 82 Whosoever, being a woman with child, unlawfully administers to herself any drug or noxious thing, or unlawfully uses any instrument or other means, with intent in any such case to procure her miscarriage, shall be liable to imprisonment for ten years. [s 82 am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000] Editor’s note: For proof material on s 82, see [27-17,950] behind the “27 – Informations and Indictments” guide card. COMMENTARY ON SECTION 82

Summary disposal …. Intoxication …. Form of indictment …. Elements of offence ….

[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 [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. [page 911] [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.

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[8-s 83] intent

Administering drugs etc to woman with

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, 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 [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. [page 912] [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 [8s 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).

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[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. 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]. [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. PROOF MATERIAL ON SECTION 84 [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.

[page 913] [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.

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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. (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 [2Sch 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 [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.

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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. 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. [page 915] 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) …. 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 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] [8-s 86.40] [8-s 86.45] [8-s 86.50] [8-s 86.55] [8-s 86.60] [8-s 86.65] [8-s 86.70] [8-s 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. 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. 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]. [page 916] [8-s 86.2] Nature of the offence The history of kidnapping was considered in Davis 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. [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 86.5] 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 86.10] 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]. [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]. [page 917] PROOF MATERIAL ON SECTION 86 [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 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 (2) this was done without the consent of the victim; and [page 918] (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 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]

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) …. Elements of offence …. Intent to remove/keep child …. Intent to steal ….

[8-s 87.1] [8-s 87.5] [8-s 87.10] [8-s 87.15] [8-s 87.20] [8-s 87.25] [8-s 87.30] [8-s 87.35] [8-s 87.40]

[page 919] [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 [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.

____________________

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]

[page 920]

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] Editor’s note: For proof material on s 91A, see [27-18,450] behind the “27 – Informations and Indictments” guide card in Vol 4. 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 [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. [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].

____________________ [page 921]

[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 ….

[8-s 91B.1] [8-s 91B.5] [8-s 91B.10] [8-s 91B.15]

Elements of offence ….

[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 [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. [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].

____________________ [page 922]

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]

[8-s 91C]

Definitions

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 section 61H) for payment or masturbation committed by one person on another for payment, engaged in by a child. child means a person who is under the age of 18 years. 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]

(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.

[page 923] COMMENTARY ON SECTION 91D

Definitions …. Restrictions on disclosure of evidence …. Sentencing …. 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] [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.5] Definitions 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]. PROOF MATERIAL ON SECTION 91D [8-s 91D.25] Form of indictment [8-s 91D.30] 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 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.35] 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.40] 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 91D.45] 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].

____________________ [page 924]

[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 ….

[8-s 91E.5] [8-s 91E.10] [8-s 91E.15] [8-s 91E.20] [8-s 91E.25]

[8-s 91E.5] Definitions 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 [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. [page 925] [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 (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 …. Form of indictment …. Elements of offence …. Statutory defence ….

[8-s 91F.5] [8-s 91F.10] [8-s 91F.15] [8-s 91F.20] [8-s 91F.25]

[8-s 91F.5] Definitions 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]. [page 926] 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 91F [8-s 91F.15] 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.20] 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.25] 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.

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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] [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 [page 927] (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)). (4) The private parts of a person are: (a) a person’s genital area or anal area, or (b) the breasts of a female person. [s 91FB insrt Act 9 of 2010 Sch 1, opn 17 Sep 2010]

[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] [page 928] (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. (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. [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 pornographic purposes — s 91G(1)

[8-s 91G.5] [8-s 91G.10] [8-s 91G.15]

(a) …. Causing or procuring a child to be used for pornographic purposes — s 91G(1)(b) …. Having the care of a child, consenting to or allowing child to be used for pornographic purposes — s 91G(1)(c) …. Elements of offence …. Form of indictment …. Using a child for pornographic purposes — s 91G(2) (a) …. Causing or procuring a child to be used for pornographic purposes — s 91G(2)(b) …. Having the care of a child, consenting to or allowing child to be used for pornographic purposes — s 91G(2)(c) …. Elements of offence ….

[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]

[8-s 91G.5] Definitions As to “child” and “material” see s 91C at [8-s 91C]. As to “procure” see [8-s 91A.5]. [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. PROOF MATERIAL ON SECTION 91G(1) [8-s 91G.15] Form of indictment [8-s 91G.20] Using a child for pornographic purposes — 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 pornographic purposes. [page 929]

[8-s 91G.25] Causing or procuring a child to be used for pornographic purposes — 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 for pornographic purposes. [8-s 91G.30] Having the care of a child, consenting to or allowing child to be used for pornographic purposes — 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 for pornographic purposes. [8-s 91G.35] Elements of offence The elements of the offence are— (1) The accused: (i) used a child for pornographic purposes [8-s 91G(3)]; or (ii) caused or procured [8-s 91A.5] a child to be used for pornographic purposes [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 pornographic purposes [8-s 91G(3)]; and (2) the child was under the age of 14 years. PROOF MATERIAL ON SECTION 91G(2) [8-s 91G.40] Form of indictment [8-s 91G.45] Using a child for pornographic purposes — 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 pornographic purposes. [8-s 91G.50] Causing or procuring a child to be used for pornographic purposes — 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 pornographic purposes. [8-s 91G.55] Having the care of a child, consenting to or allowing child to be used for pornographic purposes — 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 pornographic purposes. [8-s 91G.60] Elements of offence The elements of the offence are— (1) The accused: (i) used a child for pornographic purposes [8-s 91G(3)]; or (ii) caused or procured [8-s 91A.5] a child to be used for pornographic purposes [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 pornographic purposes [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 [page 930] (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. [s 91H subst Act 9 of 2010 Sch 1, opn 17 Sep 2010] COMMENTARY ON SECTION 91H

Sentencing …. 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.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]). PROOF MATERIAL ON SECTION 91H(2) [8-s 91H.5] 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 child pornography by [describe mode of dissemination eg entering into an agreement to or sending, supplying, exhibiting, transmitting or communicating it to or making it available for access by another person]. [8-s 91H.10] Elements of offence The elements of the offence are— (1) The accused either (i) produced; or (ii) disseminated [8-s 91H(1)]; (2) child pornography [8-s 91H(1)]. [8-s 91H.15] Statutory defences It is a defence to a prosecution under the section to prove that the defendant did not know and could not reasonably be expected to have known that he/she had produced or disseminated the child pornography: see s 91H(4)(a) at [8-s 91H]. The section does not make it an offence for a person reasonably acting for a genuine public benefit purpose (eg child protection, scientific, medical, legal etc) or a person involved in law enforcement or material classification to produce or disseminate child pornography in certain circumstances, nor does the section make it an offence for a person to produce or disseminate a film, publication or computer game that is classified other than as RC: see s 91H(4)(b)-(e) at [8-s 91H].

____________________ [page 931]

[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. (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. [s 91HA insrt Act 9 of 2010 Sch 1, opn 17 Sep 2010]

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. [page 932] private parts means a person’s genital area or anal area, whether bare or covered by underwear. (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

knowing that the person being observed does not consent to being (b) 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 (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. [page 933]

PROOF MATERIAL ON SECTION 91J [8-s 91J.1] Form of indictment [8-s 91J.5] 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.10] 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.15] 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.20] Elements of offence [8-s 91J.25] 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.30] 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.35] 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]. [8-s 91J.40] 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)].

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[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: [page 934] (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) …. Aggravated offence — construction or adaption of building to facilitate offence — s 91K(3) …. Elements of offence …. General offence — s 91J(1) …. Aggravated offence — s 91J(3) …. Attempts …. Alternative verdicts ….

[8-s 91K.1] [8-s 91K.5] [8-s 91K.10] [8-s 91K.15] [8-s 91K.20] [8-s 91K.25] [8-s 91K.30] [8-s 91K.35] [8-s 91K.40] [8-s 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. [page 935] PROOF MATERIAL ON SECTION 91K [8-s 91K.5] Form of indictment [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.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. [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].

____________________ [page 936]

[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. PROOF MATERIAL ON SECTION 91L [8-s 91L.1] Form of indictment [8-s 91L.5] 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. [page 937] [8-s 91L.10] 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.15] 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.20] Elements of offence [8-s 91L.25] 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.30] Aggravated offence — s 91L(3) The accused: (1) for the purpose of obtaining sexual arousal or sexual gratification for himself or enabling

(2) (3) (4) (5)

another person to obtain sexual arousal or sexual gratification; filmed the private parts of the victim; the filming was done in circumstances in which a reasonable person would expect the victim’s private parts could not be filmed; the filming was done without the consent of the victim; 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.35] 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.40] 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]. [8-s 91L.45] 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].

____________________ [page 938]

[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 [8-s 91M.1] 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.5] 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.10] 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].

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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 husband or wife, shall be liable to imprisonment for seven years: Provided that no person shall be convicted under this section whose husband or wife has at the time of such second marriage been continually absent from such person for the space of seven years, or, if domiciled in New South Wales at the time of the first marriage, has been continually absent from New South Wales for the space of five years then last past, and was, on reasonable grounds, believed by the accused at the time of the second marriage not to be living, of which facts the proof shall lie on the accused. Editorial note. See Marriage Act 1961 (Commonwealth), section 94.

[s 92 am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000]

[page 939] 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 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] 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].

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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: 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]

[page 940]

[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. [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]

(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. PROOF MATERIAL ON SECTION 93B [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.

[page 941] [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 ….

[8-s 93C.1] [8-s 93C.5] [8-s 93C.10]

Sentencing for affray …. Form of indictment …. Elements of offence ….

[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 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 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. [page 942] [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 cooffender. 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]. PROOF MATERIAL ON SECTION 93C [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.

Offences of riot, rout, affray abolished 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: 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]

[page 943]

(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]

[8-s 93F.1] Definition of firearm See at [14-015].

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[8-s 93FA] explosives

Possession, supply or making of

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) [8-s 93FA.1] 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.5] 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.10] 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].

PROOF MATERIAL ON SECTION 93FA(2) [8-s 93FA.15] 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.20] 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; [page 944] (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 93FA.25] 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 (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 [8-s 93FB.1] Form of charge [8-s 93FB.5] 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. [page 945] [8-s 93FB.10] 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.15] 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.20] Elements of offence The elements of the offence are— [8-s 93FB.25] 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.30] 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.35] Possessing detonator (1) The accused had in his/her possession [8-s 159.20]; (2) in a public place; (3) a detonator.

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[8-s 93G] gun

Causing danger with firearm or spear

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 (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. [page 946] (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. Editor’s note: For proof material on s 93G, see [27-21,000] behind the “27 – Informations and Indictments” guide card. COMMENTARY ON SECTION 93G

Summary disposal …. Definitions …. “Likely to injure” …. Public place …. “So as to endanger life” …. Personal violence offence/domestic violence offence …. 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.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]. [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]. [page 947] [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]. PROOF MATERIAL ON SECTION 93G [8-s 93G.30] Form of indictment [8-s 93G.35] 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.40] 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.45] 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.50] 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 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.55] 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.

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[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 dwellinghouse or other building with reckless disregard for the safety of any person is liable to imprisonment for 16 years. [subs (1A) insrt Act 61 of 2006 s 3 and Sch 1[10], opn 15 Dec 2006]

[page 948] (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) …. 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) ….

[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]

[8-s 93GA.45]

[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. [page 949] PROOF MATERIAL ON SECTION 93GA [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; (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. 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).

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[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 …. Firing …. Statutory defence ….

[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] [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 As to possession see s 7 at [8-s 7]. As to “firearm” see s 93F and [14-015]. PROOF MATERIAL ON SECTION 93H [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]. [page 951] [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.

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[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 (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] 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].

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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] “goods”

Definitions of “contaminate” and

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 person who contaminates goods 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. Editor’s note: For proof material on s 93K, see [27-21,200] behind the “27 – Informations and Indictments” guide card in Vol 4. 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].. [page 953] PROOF MATERIAL ON SECTION 93K [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].

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[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 ….

[8-s 93L.1] [8-s 93L.5] [8-s 93L.10] [8-s 93L.15] [8-s 93L.20]

[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 [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. [page 954] [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 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].

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[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 ….

[8-s 93M.1]

Definitions …. Geographical location of offence …. Form of indictment …. Elements of offence ….

[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]. [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 [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 [page 955] (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].

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[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].. PROOF MATERIAL ON SECTION 93N [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 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].

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[page 956]

[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].. PROOF MATERIAL ON SECTION 93O

[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 [page 957] (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. (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]

[8-s 93Q] Conveying false information that a person or property is in danger 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, [page 958]

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 [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 (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.

[page 959] 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 [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 The elements of the offence are — (1) The accused:

(i) left in any place; or (ii) sent by any means 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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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

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. 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

[page 960] (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: (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 [page 961] (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 ….

[8-s 93T.5] [8-s 93T.10]

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) …. Assault of law enforcement officer with intention to participate in criminal activity of a criminal group — s 93T(4) …. Alternative verdict ….

[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]

[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 [8-s 93T.15] Form of indictment [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. [page 962] [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 (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.

____________________ [page 963]

[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 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]

[8-s 93V] Offence of conducting unlawful gambling operation 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). [page 964] (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

Form of indictment …. Elements of offence ….

[8-s 93V.1] [8-s 93V.5]

[8-s 93V.1] 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. [8-s 93V.5] Elements of offence The elements of the offence are— (1) The accused conducted [8-s 344]; (2) an unlawful gambling operation [8-s 344].

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DIVISION 7 — CONSORTING [Div 7 insrt Act 3 of 2012 Sch 1[9], opn 9 Apr 2012]

[8-s 93W]

Definitions

93W 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). [page 965]

[8-s 93X]

Consorting

93X (1) A person 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. (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) that: (a) a convicted offender is a convicted offender, and (b) consorting with a convicted offender is an offence.

COMMENTARY ON SECTION 93X

Summary disposal …. Consorting ….

[8-s 93X.5] [8-s 93X.10]

[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 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.

____________________

[8-s 93Y]

Defence

93Y 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, [page 966] (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, (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.

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: robs or assaults with intent to rob any person, or steals any chattel, money, or valuable security from the person of another, shall, except where a greater punishment is provided by this Act, be liable to imprisonment for fourteen years. [s 94 am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000] 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 ….

[8-s 94.1] [8-s 94.2] [8-s 94.5] [8-s 94.10] [8-s 94.15] [8-s 94.20] [page 967]

Intoxication …. Alternative verdict …. Form of indictment …. Robbery …. Assault with intent to rob …. Stealing from the person …. Necessary averments …. Elements of offence …. Robbery …. Assault with intent to rob …. Stealing from the person ….

[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 94.60] [8-s 94.65] [8-s 94.70] [8-s 94.75]

[8-s 94.1] Summary disposal The offence under s 94 of robbery or assault with intent to rob any person may only be dealt with on indictment. 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. [page 968] 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. 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]. [page 969] PROOF MATERIAL ON SECTION 94 [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].

[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] from: (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.

[page 970] COMMENTARY ON SECTION 95

Definitions …. Circumstances of aggravation …. Intoxication …. Sentence …. 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 95.1] [8-s 95.2] [8-s 95.5] [8-s 95.10] [8-s 95.15] [8-s 95.20] [8-s 95.25] [8-s 95.30] [8-s 95.35] [8-s 95.40] [8-s 95.45] [8-s 95.50] [8-s 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 [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]. [page 971] [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. [8-s 95.40] Elements of offence 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: (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; 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.

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[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 ….

[8-s 96.1] [8-s 96.5] [8-s 96.10]

[page 972]

Form of indictment …. 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 96.15] [8-s 96.20] [8-s 96.25] [8-s 96.30] [8-s 96.35] [8-s 96.40] [8-s 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 [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. [page 973] [8-s 96.40] Elements of offence The elements of the offence are— [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 [8-s 4] from: (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 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]

[page 974] (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 97.45] [8-s 97.50] [8-s 97.55] [8-s 97.60] [8-s 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]. [page 975] [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 97.10] 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. [page 976] (4) A number of circumstances are particular to the offence of armed robbery, including: (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]. [page 977] 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. [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]. PROOF MATERIAL ON SECTION 97 [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]; (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]. [page 978] [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 …. 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 98.1] [8-s 98.5] [8-s 98.10] [8-s 98.15] [8-s 98.20] [8-s 98.25] [8-s 98.30] [8-s 98.35] [8-s 98.40] [8-s 98.45] [8-s 98.50] [8-s 98.55] [page 979]

[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 98.5] 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 [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]. [page 980] [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] or in company; and (2) the accused with intent [6-500] to steal [8-s 117.5] [27-23,055]; (3) took; (4) property [8-s 4]; (5) from the victim; (6) by the use of violence or the putting of the victim in fear; and (7) 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.

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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.

(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]

[page 981] 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 ….

[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 99.45] [8-s 99.50]

Demanding property etc with intent to steal …. Demanding property etc with intent to steal, in company ….

[8-s 99.55] [8-s 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. [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]. [page 982] PROOF MATERIAL ON SECTION 99 [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, (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, [page 983] (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. [subs (2) am Act 41 of 2012 Sch 1[6], opn 21 June 2012]

(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 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. [page 984] 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 [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]. [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. [page 985] [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.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 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]

[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]

[page 986] (2) Aggravated offence [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-

[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]

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 109.30] [8-s 109.35] [8-s 109.40] [8-s 109.45] [8-s 109.50] [8-s 109.55] [8-s 109.60] [8-s 109.65] [8-s 109.70] [8-s 109.75] [8-s 109.80]

[8-s 109.1] Summary disposal Where (a) the serious indictable offence intended is stealing or maliciously destroying or damaging property, or (b) the serious indictable offence alleged is stealing or maliciously 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]. [8-s 109.5] Definitions As to “enters” see [8-s 111.5]. As to “dwelling-house” see s 4 at [8-s 4]. It does not include a structure which contains a number of flats or units: R v Tahau [1975] 1 NSWLR 479. 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. [page 987] [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]. [8-s 109.15] Sentencing In respect of an aggravated form of the offence, see [8-s 105A.1].

PROOF MATERIAL ON SECTION 109 [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 dwellinghouse. [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]. [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]. [page 988]

[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.

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[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] [8-s 110.5] [8-s 110.10] [8-s 110.15] [8-s 110.20]

[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]. [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 [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]. [page 989] [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 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.

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[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 …. 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 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] [8-s 111.35] [8-s 111.40] [8-s 111.45] [8-s 111.50] [8-s 111.55] [8-s 111.60] [8-s 111.65] [8-s 111.70]

[8-s 111.1] Summary disposal Where the serious indictable offence intended is stealing or maliciously 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]. [page 990] [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 [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 [2722,800]. [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 (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 111.60] 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]. [page 991]

[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.

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[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]

(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 ….

[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 112.40] [8-s 112.45] [page 992]

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 112.50] [8-s 112.55] [8-s 112.60] [8-s 112.65] [8-s 112.70] [8-s 112.75] [8-s 112.80] [8-s 112.85] [8-s 112.90]

[8-s 112.1] Summary disposal Where the serious indictable offence alleged is stealing or maliciously 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]. [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]. 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. 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. [page 993] [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 AttorneyGeneral’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]. PROOF MATERIAL ON SECTION 112 [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.

[page 994] [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 (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 112.80] 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 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.

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[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]

[page 995] (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. COMMENTARY ON SECTION 113

Summary disposal …. Alternative verdicts …. Definitions …. Intoxication …. Sentencing …. Form of indictment …. Breaking and entering into any house etc, with intent

[8-s 113.1] [8-s 113.2] [8-s 113.5] [8-s 113.10] [8-s 113.15] [8-s 113.20]

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 113.25] [8-s 113.30] [8-s 113.35] [8-s 113.40] [8-s 113.45] [8-s 113.50] [8-s 113.55] [8-s 113.60] [8-s 113.65] [8-s 113.70]

[8-s 113.1] Summary disposal Where the serious indictable offence intended is stealing or maliciously 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]. [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]. [page 996] [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. (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)).” PROOF MATERIAL ON SECTION 113 [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 [2722,900]. [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. [page 997]

[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 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.

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[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,

enters or remains in or upon any part of a building or any land (d) 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]

[page 998] 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) …. 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 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] [8-s 114.45] [8-s 114.50] [8-s 114.55] [8-s 114.60] [8-s 114.65] [8-s 114.70] [8-s 114.75]

[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 114.5] 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 [page 999] 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]. [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 [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]. [page 1000] [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. [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.

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[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. [s 115 am Act 94 of 1999 s 5 and Sch 3[34] and [70], opn 1 Jan 2000] 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].

[page 1001] PROOF MATERIAL ON SECTION 115 [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]. [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].

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[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].

____________________ [page 1002]

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.

[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. [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] 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. [page 1003] 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. [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). [page 1004] 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 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. [page 1005] [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. 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 Langham at 52-53; (c) While the belief does not have to be reasonable: Nundah at 485-490; Langham at 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; Langham at 58; Kastratovic at 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 [page 1006] 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) 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: Lopatta at 108, Astor v Hayes (1988) 38 A Crim R 219, Lenard and Williams at 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 117.45] 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 117.50] 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. Semble s 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]. [page 1007] PROOF MATERIAL ON SECTION 117 [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]. [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].

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[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.

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[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: [page 1008] 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 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. [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] 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 [page 1009] 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].

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[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 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

[8-s 123.1]

Definitions …. [8-s 123.1] Definitions As to “serious indictable offence” see [8-s 4].

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[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 [8-s 124.1] 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. [page 1010] [8-s 124.5] Elements of offence The elements of the offence are— [8-s 124.10] 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. [8-s 124.15] 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.

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[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. [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] 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. [page 1011] [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. 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 [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].

____________________ [page 1012]

[8-s 126] steal

Stealing cattle or killing with intent to

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, 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. 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 126.1] [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. [page 1013] [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 [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]

[page 1014]

[8-s 129] stealing

Trial for killing cattle — verdict of

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]

[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] cattle

Unlawfully using etc another person’s

131 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 ….

[8-s 131.1] [8-s 131.5] [8-s 131.10]

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 131.15] [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] . [page 1015] [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. [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 [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].

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[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.

[page 1016] COMMENTARY ON SECTION 132

Summary disposal …. Previous conviction …. Form of indictment …. Steal dog ….

[8-s 132.1] [8-s 132.5] [8-s 132.10] [8-s 132.15]

Unlawfully possess stolen dog or skin …. Necessary averments …. Procedure for indicting the accused …. Elements of offence ….

[8-s 132.20] [8-s 132.25] [8-s 132.30] [8-s 132.35]

[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 132.5] 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 [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 [page 1017] (2) the accused: (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.

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[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 [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.

____________________ [page 1018]

[8-s 134] security

Stealing, destroying etc valuable

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. COMMENTARY ON SECTION 134

Summary disposal …. Definitions …. Civil remedies not affected by conviction …. Form of indictment …. Elements of offence …. Statutory proviso ….

[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 See s 138 of the Crimes Act, but evidence of the conviction is not admissible. PROOF MATERIAL ON SECTION 134 [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].

____________________ [page 1019]

[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 [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]

[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. [page 1020] (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 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. [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 ….

[8-s 138.1] [8-s 138.5] [8-s 138.10] [8-s 138.15]

Unlawfully cancels records etc …. Elements of offence …. Steals or takes records etc …. Unlawfully cancels records etc ….

[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 [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 office], from its place of deposit/from [name of record-keeper etc], then having the lawful custody of the said record/document/writing. [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, [page 1021] 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 ….

[8-s 139.1] [8-s 139.5] [8-s 139.10] [8-s 139.15] [8-s 139.20]

[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 [page 1022]

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]. PROOF MATERIAL ON SECTION 139 [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 pleasuregrounds 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. COMMENTARY ON SECTION 140

Summary disposal …. Intoxication …. Form of indictment ….

[8-s 140.1] [8-s 140.5] [8-s 140.10] [page 1023]

Elements of offence …. Tree etc growing in park etc …. Tree etc growing elsewhere ….

[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 [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; (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 ten dollars.

____________________ [page 1024] 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] Editor’s note: For proof material on s 148, see [27-23,650] behind the “27 – Informations and Indictments” guide card in Vol 4.

COMMENTARY ON SECTION 148

Summary disposal …. Definitions …. Form of indictment …. Elements of offence ….

[8-s 148.1] [8-s 148.5] [8-s 148.10] [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 [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].

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[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.

[page 1025] 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 [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 dwellinghouse.

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[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 As to “process or progress of manufacture” see R v Woodland (1836) 1 M R 549. [page 1026] PROOF MATERIAL ON SECTION 150 [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].

____________________

[8-s 151]

Selling etc materials to be manufactured

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 ….

[8-s 151.1]

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 151.5] [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 [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. [page 1027] [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 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.

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[8-s 152] etc

Stealing from ship in port or on wharfs

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]. [page 1028] PROOF MATERIAL ON SECTION 152 [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 152.15] 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 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.

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[8-s 153] wrecked

Stealing from ship in distress or

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 [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 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 [page 1029] 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.

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[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 [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 (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.

____________________ [page 1030]

[8-s 154A] of owner

Taking a conveyance without consent

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.

[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]

(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. 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.

[page 1031] PROOF MATERIAL ON SECTION 154A [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.

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Car stealing etc 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 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.

[page 1032] 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 ….

[8-s 154B.1] [8-s 154B.5] [8-s 154B.10] [8-s 154B.15]

[8-s 154B.20]

[8-s 154B.25] [8-s 154B.30] [8-s 154B.35] [8-s 154B.40]

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.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 [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 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]. [page 1033] [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.

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[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:

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]

[page 1034] 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] Editor’s note: For proof material on s 154C, see [27-24,120] behind the “27 – Informations and Indictments” guide card in Vol 4. 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)

[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 154C.30]

…. 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.35] [8-s 154C.40] [8-s 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 “Motor vehicle” is defined in s 3 of the Road Transport Act 2013 as follows: 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. [page 1035] 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 [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 (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. [page 1036] [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.

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[8-s 154D]

Stealing firearms

154D (1) A person who steals a firearm is liable to imprisonment for 14 years. (2) In this section: firearm has the same meaning as in the Firearms Act 1996, and includes an imitation firearm within the meaning of that Act. [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].

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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

a motor intended to form part of, or capable of forming part of, (b) 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]

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 [page 1037] (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, (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

[page 1038] (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 …. Form of indictment …. Elements of offence ….

[8-s 154G.5] [8-s 154G.10] [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 [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— (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. [page 1039] 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.

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[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: information includes numbers, letters or symbols. COMMENTARY ON SECTION 154H

Summary disposal …. Form of indictment …. Elements of offence ….

[8-s 154H.1] [8-s 154H.5] [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 [page 1040] 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 154H [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. (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] [page 1041]

[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 [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 (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] [page 1042]

[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]. PROOF MATERIAL ON SECTION 154J [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.

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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. 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

[page 1043] 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 [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 ….

[8-s 157.1]

General deficiency …. Embezzlement …. Form of indictment …. Elements of offence …. Alternative verdicts ….

[8-s 157.5] [8-s 157.10] [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]. [page 1044] [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. [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. PROOF MATERIAL ON SECTION 157 [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.

[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 ….

[8-s 159.1] [8-s 159.5] [8-s 159.10] [8-s 159.15] [8-s 159.20] [8-s 159.25] [page 1045]

“By virtue of his employment” …. Form of indictment …. Elements of offence …. Necessary averments ….

[8-s 159.30] [8-s 159.35] [8-s 159.40] [8-s 159.45]

[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 159.20] 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 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 [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].

____________________ [page 1046]

[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 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 [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. [page 1047] [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; 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].

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[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. [s 161 am Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998] 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.

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[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]

[page 1048]

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. [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.

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[8-s 163] larceny

Trial for embezzlement — verdict of

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]

[page 1049] (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. COMMENTARY ON SECTION 188

Summary disposal …. Scope of section …. Definitions …. Knowing to have been stolen ….

[8-s 188.1] [8-s 188.5] [8-s 188.10] [8-s 188.15]

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 188.25] [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 188.1] 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 188.5] 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 [page 1050] 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. [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 [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

[page 1051] 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]. [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].

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[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] Editor’s note: For proof material on s 189, see [27-25,500] behind the “27 – Informations and Indictments” guide card in Vol 4. COMMENTARY ON SECTION 189

Summary disposal …. Definitions …. Scope of the offence …. Recent possession …. Act of receiving …. Proof of stealing ….

[8-s 189.1] [8-s 189.5] [8-s 189.10] [8-s 189.15] [8-s 189.20] [8-s 189.25]

Form of indictment …. Elements of offence …. Alternative verdict ….

[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). [page 1052] 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]. PROOF MATERIAL ON SECTION 189 [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].

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[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.

[page 1053] COMMENTARY ON SECTION 189A

Summary disposal …. Definitions …. Lawful excuse ….

[8-s 189A.1] [8-s 189A.5] [8-s 189A.10]

Form of indictment …. Elements of offence …. Alternative verdicts ….

[8-s 189A.15] [8-s 189A.20] [8-s 189A.25]

[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. PROOF MATERIAL ON SECTION 189A [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].

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[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 [page 1054] been stolen, it is proved that the property was stolen in the course of transmission between New South Wales and any other jurisdiction or between any other jurisdiction and New South Wales: (a) the person shall be liable to be convicted of the offence without proof that the stealing took place in New South Wales, and (b) for the purpose of determining whether or not the stealing amounts to a 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]]. [page 1055] [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 [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 that animal; (4) knowing that the animal had been so killed. [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].

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[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. [page 1056]

[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. 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 [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]. [page 1057] [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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[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

[8-s 192B]

Deception

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. [page 1058] 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 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.

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[8-s 192C] another

Obtaining property belonging to

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. [page 1059] (5) Without limiting the generality of subsection (4), if: (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].

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[8-s 192D] Obtaining financial advantage or causing financial disadvantage 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 [page 1060] 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 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).

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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]. [page 1061]

[8-s 192E.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 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 see Jamieson 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.

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[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. COMMENTARY ON SECTION 192F

Scope of the section …. Summary disposal …. Definitions ….

[8-s 192F.5] [8-s 192F.10] [8-s 192F.15] [page 1062]

[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].

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[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 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]. [page 1063] [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.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 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.

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[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 …. Summary disposal …. Definitions ….

[8-s 192H.5] [8-s 192H.10] [8-s 192H.15]

[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): [page 1064] 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].

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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): 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 [page 1065] 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. COMMENTARY ON SECTION 192J

Scope of the section …. Summary disposal ….

[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].

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[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 …. Definitions ….

[8-s 192K.5] [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].

____________________ [page 1066]

[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].

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[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 [page 1067] (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. 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. 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 (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. [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. PROOF MATERIAL ON SECTION 193B [8-s 193B.1] Form of indictment [8-s 193B.5] 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. [page 1068] [8-s 193B.10] 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.15] 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.20] Elements of offence [8-s 193B.25] 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.30] Knowingly deal with proceeds of crime — s 193B(2) The elements of the 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. [8-s 193B.35] 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.40] 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 193B.45] 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)].

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[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 [page 1069]

at the time of the dealing, the value of the property is $100,000 or (c) 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, (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. [page 1070] (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 [8-s 193C.1] 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.5] 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.10] 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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[8-s 193D] Dealing with property that subsequently becomes an instrument of crime 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. [page 1071] COMMENTARY ON SECTION 193D

Scope of the offence …. Form of indictment ….

[8-s 193D.10] [8-s 193D.15]

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.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 [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 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) (2) (3) (4)

The accused dealt [8-s 193A]; with property; intending [6-500] that the property will become an instrument of crime [8-s 193A]; and 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. [page 1072] [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. (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]

(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.

[8-s 193F]

Proof of other offences not required

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]

[page 1073]

[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]

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.

____________________ [page 1074]

[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.

[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.

[8-s 193L] Proof of intention to obtain financial advantage or cause financial disadvantage 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 [page 1075]

in the case of an offence against section 193O — the conduct that (b) 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: (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 …. Definitions ….

[8-s 193N.5] [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. [page 1076] (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 …. Definitions ….

[8-s 193O.5] [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]. [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.

____________________

[8-s 193P] Concealing conduct or agreement about conduct that corrupts betting outcome of event 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]. [page 1077] [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 or inside information for betting purposes 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. (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. [page 1078] COMMENTARY ON SECTION 193Q

Summary disposal …. Definitions ….

[8-s 193Q.5] [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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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. [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]

(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 [page 1079] (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 (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 ….

[8-s 195.1] [8-s 195.5]

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 195.10] [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] [page 1080]

[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]. As to “property” see s 4 at [8-s 4] and s 194 at [8-s 194]. The nature of damage for the purposes of this offence was considered in Director of Public Prosecutions v Fraser [2008] NSWSC 244; BC200803020; 15(5) Crim LN 61 [2388]. There it was held not to amount to damage where the accused had caused a conveyor to be temporarily inoperable. Simpson J held that the essential element for damage is “physical derangement” (though not necessarily permanent, or even lasting) to the property in question”. She stated: Interference with functionality alone, without “physical derangement” would, in my opinion, be insufficient to establish damage within the meaning of s 195. Interference with functionality could be proved, for example, by proof of the removal of a key to a motor vehicle, or the erection of physical barricades around a vehicle preventing its use. But here, in my opinion, while they might amount to some other offence, such interference would fall short of amounting to (malicious) damage. Whitewashing a footpath has been held to be damage even though the rain would, eventually, wash it off: Hardman v Chief Constable of Avon Somerset Constabulary [1986] Crim LR 330. To wipe off the program from a computerised saw is also criminal damage: Cox v Riley (1986) 83 Cr App R 54; see also M Wasik, “Criminal Damage and the Computerised Saw” (1986) New LJ 763. Damaging property includes removing, obliterating, defacing or altering the unique identifier of the property: s 194(4) at [8–s 194]. [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 [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.

[page 1081] [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 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]; (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 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]. [page 1082] [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].

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[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 (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) ….

[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] [page 1083]

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 196.60] [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 [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 196.35] 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 196.40] 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]. [page 1084] [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 (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].

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[8-s 197] property

Dishonestly destroying or damaging

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.

[page 1085] 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 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 [8-s 197.15] Form of indictment [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]. [page 1086] [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. [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].

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[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.

[page 1087]

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 [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 [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.

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[8-s 199] property

Threatening to destroy or damage

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.

[page 1088] 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

[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]

199(1) …. Threaten to destroy or damage property during public disorder — s 199(2) ….

[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]. [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 [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]. [page 1089] [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. [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.

____________________

[8-s 200] Possession etc of explosive or other article with intent to destroy or damage property 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]

[page 1090] (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

[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]

200(1) …. Possession etc of explosive or other article during public disorder with intent to destroy or damage property — s 200(2) ….

[8-s 200.40]

[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 117]. [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]. [page 1091] PROOF MATERIAL ON SECTION 200 [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 (ii) the accused and/or the user of the property [8-s 4] [8-s 194], and another person.

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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]

[8-s 201]

Interfering with a mine

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 [page 1092] (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 ….

[8-s 201.1]

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 201.5] [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]. PROOF MATERIAL ON SECTION 201 [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].

[page 1093] [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 (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. 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 202.1] [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 202.35] [8-s 202.40] [8-s 202.45] [8-s 202.50] [8-s 202.55] [8-s 202.60] [8-s 202.65] [page 1094]

[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 [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]. [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; [page 1095] (2) piles or other material that formed part of or had been fixed or placed in position to secure either: (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. [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]

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. 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,

a public place, including any premises, land or water open to the (d) 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. [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 [page 1096] (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 [8-s 203B.1] 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.5] 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].

____________________

[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]. [page 1097] PROOF MATERIAL ON SECTION 203C [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].

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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: 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 Brigades Act 1989 or of any other official firefighting unit (including a unit from outside the State). 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]

[8-s 203E]

Offence

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 14 years. (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. [page 1098] (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 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 [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].

____________________ [page 1099]

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 …. Form of indictment …. Elements of offence ….

[8-s 204.1] [8-s 204.5] [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 [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 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 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.

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[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.

[page 1100] COMMENTARY ON SECTION 205

Definitions …. Intoxication …. Form of indictment …. Elements of offence ….

[8-s 205.1] [8-s 205.5] [8-s 205.10] [8-s 205.15]

[8-s 205.1] Definitions 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 [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]. [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].

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[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].

[page 1101] PROOF MATERIAL ON SECTION 206 [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; (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.

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[8-s 207] Placing etc dangerous articles on board an aircraft or vessel 207 (1) In this section: dangerous article means: (a) a firearm, ammunition for a firearm, a weapon or an explosive, or (b) a substance or thing that, because of its nature or condition, could endanger the safety of an aircraft or vessel or persons on board an aircraft or vessel. (2) A person who: (a) places or carries on board an aircraft or vessel an article knowing that it is a dangerous article, (b) knowing that an article is a dangerous article, delivers the article to a person for the purpose of having the article placed or carried on board an aircraft or vessel, or (c) has possession of an article while on board an aircraft or vessel knowing that the article is a dangerous article, is liable to 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

[page 1102] (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 …. Delivers article to another to have placed on board aircraft etc …. Possesses article whilst on board aircraft etc ….

[8-s 207.1] [8-s 207.5] [8-s 207.10] [8-s 207.15] [8-s 207.20] [8-s 207.25] [8-s 207.30] [8-s 207.35] [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

[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. [page 1103] [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)].

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[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 (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. [subs (2) am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000]

(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 [page 1104] (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 ….

[8-s 208.1] [8-s 208.5] [8-s 208.10] [8-s 208.15] [8-s 208.20]

[8-s 208.25] [8-s 208.30] [8-s 208.35] [8-s 208.40] [8-s 208.45] [8-s 208.50]

[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 [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]. [page 1105] [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 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 208.40] 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 [8s 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 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 [8s 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.

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[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 ….

[8-s 209.1]

Definitions …. Form of indictment …. 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 209.5] [8-s 209.10] [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 [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 [page 1107] 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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[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] Editor’s note: For proof material on s 210, see [27-28,300] behind the “27 – Informations and Indictments” guide card. 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

[8-s 210.1] [8-s 210.5] [8-s 210.10] [8-s 210.15] [8-s 210.20] [8-s 210.25]

210(b) …. Elements of offence …. Destroying, damaging etc …. Act with intent to cause destruction, damage etc ….

[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]. [page 1108] [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 [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 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].

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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, [page 1109] 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 …. Alternative verdict ….

[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] [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 [8-s 211.10] Form of indictment [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 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 [page 1110] (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].

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[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. 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 212.25]

[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 [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 212.25] 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].

____________________ [page 1111]

[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 ….

[8-s 213.1] [8-s 213.5] [8-s 213.10]

Obstructing — s 213(a) …. Assisting to obstruct — s 213(b) …. Elements of offence …. Obstructing …. Assisting to obstruct ….

[8-s 213.15] [8-s 213.20] [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 [8-s 213.10] Form of indictment [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 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]. [page 1112] [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].

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[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. 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]

[page 1113] 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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[8-s 249B]

Corrupt commissions or rewards

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” ….

[8-s 249B.1] [8-s 249B.5] [8-s 249B.10] [page 1114]

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.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 [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. [page 1115] [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 [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 [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],

in relation to the affairs/business of the principal [name of principal]. [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 [page 1116] (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]; (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.

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[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] [page 1117]

[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 [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 respect [8-s 176.15]; (4) with intent [6-500] to defraud the principal of the accused. [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.

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[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, [page 1118] and, at the time the benefit is given, the person who gives the benefit intends the giving of the benefit not be made known to the person advised, the person who gives the benefit is liable to imprisonment for 7 years. (2) If a person corruptly receives a benefit for giving advice to another person, being advice which is likely to influence the other person: (a) to enter into a contract with the person who gave the benefit, or (b) to appoint the person who gave the benefit to any office, and, at the time the benefit is received, the person who receives the benefit intends the giving of the benefit not be made known to the person to be advised, the person who receives the benefit is liable to imprisonment for 7 years. (3) For the purposes of subsections (1) and (2), where a benefit is given or received by anyone with the consent or at the request of another person, the other person shall be deemed to have given or received the benefit. (4) If any person corruptly offers or solicits a benefit for the giving of advice by one person to another: (a) intending that the advice will influence the person advised: (i) to enter into a contract with anyone, or (ii) to appoint anyone to any office, and (b) intending that the giving or receipt of the benefit not be made known to the person advised, the firstmentioned person is liable to imprisonment for 7 years. (5) In this section: (a) a reference to the giving of advice includes a reference to the providing of information orally or in writing, (b) a reference to entering into a contract includes a reference to offering to enter into a contract, and (c) a reference to the appointment of a person includes a reference to:

(i) joining in the appointment of the person, and (ii) voting for or assisting in the election or appointment of the person. 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 [page 1119] 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 [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 [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 office 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.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 office 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 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 office 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. [page 1120] [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] others

Corrupt benefits for trustees and

249E (1) In this section, a reference to a person entrusted with property is a reference to: (a) a trustee of the property, (b) an executor or administrator appointed for the purpose of dealing with the property, (c) a person who, because of a power of attorney or a power of appointment, has authority over the property, and (d) a person 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.

[page 1121] 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 [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 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 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 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. [page 1122] (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 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. [page 1123]

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].

____________________

[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.

[8-s 249M]

Menaces — meaning

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. [page 1124]

[8-s 249N] meaning

Obtaining gain or causing loss —

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.

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. [page 1125]

[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).

DIVISION 2 — FORGERY [8-s 253]

Forgery — making false document

253 A person who makes a false document 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 the offence of forgery. Maximum penalty: Imprisonment for 10 years. 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]. [page 1126] 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]; (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] [page 1127]

[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]. 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]. [8-s 254.25] Elements of offence 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.

[page 1128] 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]. 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. ____________________ [page 1129]

[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. (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): 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 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]. [page 1130] [8-s 256.15] Definitions As to “possession” see [8-s 7.1]. As to a “false document” see [8-s 250]. ____________________ 257–307 [ss 257–259 rep Act 71 of 1989 s 3 and Sch 1(5), opn 16 July 1989] [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]

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 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. (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. [page 1131] (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. PROOF MATERIAL ON SECTION 307A [8-s 307A.1] 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 knowing that or reckless as to whether the statement was false or misleading/omitted any matter or thing, without which the statement was misleading, and the statement was made in connection with an application for an authority or benefit and — the statement was made to a public authority namely [state public authority]/ — the statement was made to [identify person] who was exercising/performing a power, authority, duty or function under or in connection with a law of the State namely [identify the power etc]/ — the statement was made in compliance or purported compliance with a law of the State namely [identify law]. [8-s 307A.5] Elements of offence The elements of the offence are: (1) The accused made a statement (whether orally, in a document or in any other way); and (2) The accused did so knowing that, or reckless as to whether the statement: (i) was false or misleading; or

(ii) omitted any matter or thing without which the statement is misleading, and (3) The statement was made in connection with an application [8-s 307A(5)] for an authority [8-s 307A(5)] or benefit [8-s 307A(5)]; and (4) (i) the statement was made to a public authority; or (ii) the statement was made to a person who was exercising or performing any power, authority, duty or function under, or in connection with, a law of the State; or (iii) the statement was made in compliance or purported compliance with a law of the State. (Note: 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: see [8-s 307A(2)]. 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 [8-s 307A(3)]. The burden of establishing a matter referred to in subsections (2) or (3) lies on the accused person: see [8-s 307A(4)].)

____________________

[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: (i) the information is given to a public authority, [page 1132] (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. 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.” PROOF MATERIAL ON SECTION 307B [8-s 307B.1] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales gave information to [identify person], and did so knowing that the information was false or misleading/omitted any matter or thing without which the information was misleading and — the information was given to a public authority namely [state public authority]/ — the information was given to a person who was exercising or performing a power, authority, duty or function under or in connection with a law of the State namely [identify power etc]/ — the information was given in compliance or purported compliance with a law of the State namely [identify law]. [8-s 307B.5] Elements of offence The elements of the offence are: (1) The accused gave information to another person; (2) The accused did so knowing that the information: (i) was false or misleading; or (ii) omitted any matter or thing without which the statement is misleading, and (3) (i) the information was given to a public authority; or (ii) the information was given to a person who was exercising or performing any power, authority, duty or function under, or in connection with, a law of the State; or (iii) the information was given in compliance or purported compliance with a law of the State.

[page 1133] (Note: Subsection (1) does not apply as a result of subsection (1)(b)(i) if the information was not false or misleading in a material particular: see [8-s 307B(2)]. 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 [8-s 307B(3)]. Subsection (1) does not apply as a result of subsection (1)(c)(i) if, before the information was given by a person to a public authority, the public authority did not take reasonable steps to inform the person of the existence of the offence against subsection (1) [8-s 307B(4)]. 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) [8-s 307B(5)]. The burden of establishing a matter referred to in subsections (2),(3), (4) or (5) lies on the accused person: see [8-s 307B(6)].)

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[8-s 307C]

False or misleading documents

307C (1) A person is guilty of an offence if: (a) the person produces a document to another person, and (b) the person does so knowing that the document is false or misleading, and (c) 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 firstmentioned 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.

PROOF MATERIAL ON SECTION 307C [8-s 307C.1] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales produced a document to [identify person], knowing that the document was false or misleading and the document was produced in compliance or purported compliance with a law of the State, being [identify the law]. [8-s 307C.5] Elements of offence The elements of the offence are: (1) The accused produced a document to another person; and (2) Did so knowing that the document was false or misleading; and (3) The document was produced in compliance or purported compliance with a law of the State. (Note: Subsection (1) does not apply if the document is not false or misleading in a material particular [8-s 307C(2)], or to a person who produces a document if the document is accompanied by a written statement signed by the person or competent officer of the body corporate stating certain things [8-s 307C(3)]. The burden of establishing a matter referred to in subsection (2) or (3) lies on the accused person [8-s 307C(4)].)

____________________ [page 1134]

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]

[page 1135]

[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. [s 308B insrt Act 20 of 2001 s 3 and Sch 1[1], opn 3 Aug 2001] 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. [page 1136] (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. COMMENTARY ON SECTION 308C

Summary disposal …. Definitions …. Form of indictment …. Elements of offence …. Statutory provisions ….

[8-s 308C.1] [8-s 308C.5] [8-s 308C.10] [8-s 308C.15] [8-s 308C.20]

[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]. PROOF MATERIAL ON SECTION 308C [8-s 308C.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 unauthorised computer function, namely [detail unauthorised computer function as defined in s 308C(2)] on [brief details of purpose and

location of computer] knowing that function to be unauthorised and with intent to commit/facilitate the commission of a serious indictable offence, namely [state offence] by [him/her/other person]. [8-s 308C.15] Elements of offence The elements of the offence are— (1) The accused caused an unauthorised computer function [8-s 308C(2)] [8-s 308B] [8-s 308A]; (2) knowing it to be unauthorised [8-s 308B]; and (3) with the intention [6-500] of committing or facilitating the commission of a serious indictable offence [8-s 308C(3)] [8-s 4] by the accused or another person. [8-s 308C.20] Statutory provisions The accused may be found guilty of an offence against this section even if committing the serious indictable offence is impossible, or whether the serious indictable offence is to be committed at the time of the unauthorised conduct or later: see s 308C(4) at [8-s 308C]. It is not an offence to attempt to commit an offence against this section: see s 308C(5) at [8-s 308C].

____________________

[8-s 308D] Unauthorised modification of data with intent to cause impairment 308D (1) A person who: (a) causes any unauthorised modification of data held in a computer, and (b) knows that the modification is unauthorised, and [page 1137] (c) 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 …. Form of indictment …. Intending to cause impairment …. Recklessly causing impairment …. Elements of offence …. Alternative verdict ….

[8-s 308D.1] [8-s 308D.5] [8-s 308D.10] [8-s 308D.15] [8-s 308D.20] [8-s 308D.25] [8-s 308D.30]

[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]. PROOF MATERIAL ON SECTION 308D [8-s 308D.10] Form of indictment [8-s 308D.15] Intending to cause impairment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales caused an unauthorised modification [set out modification as defined in s 308A(2)] of data held in a computer [set out brief details of purpose and location of computer] knowing such modification to be unauthorised and with intent thereby to impair access to/impair the reliability/security/operation of data held in a computer. [8-s 308D.20] Recklessly causing impairment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales caused an unauthorised modification [set out modification as defined in s 308A(2)] of data held in a computer [set out brief details of purpose and location of computer] knowing such modification to be unauthorised and being reckless to the impairment of access to/impairment of the reliability/security/operation of data held in a computer. [page 1138] [8-s 308D.25] Elements of offence The elements of the offence are— (1) The accused caused an unauthorised [8-s 308B] modification of data held in a computer [8-s 308A] [8-s 308]; and

(2) the accused knew that this modification was unauthorised [8-s 308B]; and (3) the accused either: (i) intended [6-500] by the modification to impair access to, or impair the reliability, security or operation of any data held in a computer [8-s 308]; or (ii) was reckless [8-s 5.10] as to any such impairment. [8-s 308D.30] Alternative verdict A conviction for an offence under s 308E is an alternative verdict to a charge for an offence under this section: see s 308E(2) at [8-s 308E].

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[8-s 308E] Unauthorised impairment of electronic communication 308E (1) A person who: (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] Editor’s note: For proof material on s 308E, see [27-34,600] behind the “27 – Informations and Indictments” guide card in Vol 4. COMMENTARY ON SECTION 308E

Summary disposal …. Definitions …. Form of indictment …. Intending to cause impairment ….

[8-s 308E.1] [8-s 308E.5] [8-s 308E.10] [8-s 308E.15]

Recklessly causing impairment …. Elements of offence …. Alternative verdict ….

[8-s 308E.20] [8-s 308E.25] [8-s 308E.30]

[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]. [page 1139] PROOF MATERIAL ON SECTION 308E [8-s 308E.10] Form of indictment [8-s 308E.15] Intending to cause impairment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales caused an unauthorised impairment [set out impairment as defined in s 308A(3)] of electronic communication to/from a computer [set out brief details of purpose and location of computer], knowing such impairment to be unauthorised and with intent to impair electronic communication to/from the computer. [8-s 308E.20] Recklessly causing impairment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales caused an unauthorised impairment [set out impairment as defined in s 308A(3)] of electronic communication to/from a computer [set out brief details of purpose and location of computer], knowing such impairment to be unauthorised and being reckless as to the impairment of electronic communication to/from the computer. [8-s 308E.25] Elements of offence The elements of the offence are— (1) The accused caused an unauthorised [8-s 308B] impairment of electronic communication to or from a computer [8-s 308A] [8-s 308]; and (2) the accused knew that this impairment was unauthorised [8-s 308B]; and (3) the accused either: (i) intended [6-500] to impair electronic communication to or from the computer; or (ii) was reckless [8-s 5.10] as to any such impairment. [8-s 308E.30] Alternative verdict A conviction for an offence against s 308D is an alternative verdict to a charge under this section: see s 308D(2) at [8-s 308D].

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[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. (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.

[page 1140] COMMENTARY ON SECTION 308F

Summary disposal …. Definitions …. Form of indictment …. Elements of offence …. Statutory provisions ….

[8-s 308F.1] [8-s 308F.5] [8-s 308F.10] [8-s 308F.15] [8-s 308F.20]

[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]. PROOF MATERIAL ON SECTION 308F [8-s 308F.10] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales was in possession/control of data [identify data] with intent to commit a serious computer offence/with intent to facilitate the commission of a serious computer offence, namely [state offence] by [him/her/other person]. [8-s 308F.15] Elements of offence The elements of the offence are— (1) The accused was in possession or control of data [8-s 308F]; (2) with intent [6-500] to: (i) commit; or (ii) facilitate the commission of, a serious computer offence [8-s 308] (whether by the accused or by another person). [8-s 308F.20] Statutory provisions The accused may be found guilty of an offence against this section even if committing the serious computer offence concerned is impossible: see s 308F(3) at [8-s 308F]. It is not an offence to attempt to commit an offence against this section: see s 308F(4) at [8-s 308F].

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[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.

[page 1141] (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 …. Form of indictment …. Elements of offence …. Statutory provisions ….

[8-s 308G.1] [8-s 308G.5] [8-s 308G.10] [8-s 308G.15] [8-s 308G.20]

[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]. PROOF MATERIAL ON SECTION 308G [8-s 308G.10] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales produced/supplied/obtained data with intent to commit a serious computer offence/with intent to facilitate the commission of a serious computer offence, namely [state offence] by [him/her/other person]. [8-s 308G.15] Elements of offence The elements of the offence are— (1) The accused: (i) produced; (ii) supplied; or (iii) obtained data [8-s 308G(2)]; (2) with intent [6-500] to: (i) commit; or (ii) facilitate the commission of a serious computer offence (whether by the accused or by another person) [8-s 308].

[8-s 308G.20] Statutory provisions An accused may be found guilty of an offence against this section even if committing the serious computer offence concerned is impossible: see s 308G(3) at [8-s 308G]. It is not an offence to attempt to commit an offence against this section: see s 308G(4) at [8-s 308G].

____________________ [page 1142]

[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] [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 …. Form of charge …. Elements of offence ….

[8-s 308H.1] [8-s 308H.5] [8-s 308H.10] [8-s 308H.15]

[8-s 308H.1] Summary disposal The offence is a summary offence, see s 308H(2) at [8-s 308H]. [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]. PROOF MATERIAL ON SECTION 308H [8-s 308H.10] Form of charge That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales caused an unauthorised access to/modification of restricted data held in a computer [set out access/modification as defined in s 308A; set out brief details of purpose and location of computer] with intent to cause that access/modification and knowing that such access/modification was unauthorised. [8-s 308H.15] Elements of offence The elements of the offence are— (1) The accused caused: (i) an unauthorised access to; or (ii) an unauthorised modification of, restricted data [8-s 308H(3)] held in a computer [8-s 308B] [8-s 308A] [8-s 308]; (2) knowing that the access or modification was unauthorised [8-s 308B]; and (3) intending [6-500] to cause that access or modification.

____________________ [page 1143]

[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 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 …. Form of charge …. Elements of offence ….

[8-s 308I.1] [8-s 308I.5] [8-s 308I.10] [8-s 308I.15]

[8-s 308I.1] Summary disposal The offence is a summary offence, see s 308I(2) at [8-s 308I]. [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]. PROOF MATERIAL ON SECTION 308I [8-s 308I.10] Form of charge That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales caused an unauthorised impairment [set out impairment as defined in s 308A(3)] of the reliability/security/operation of data held on a computer disk/credit card/device used to store data by electronic means [identify device] with intent to cause such impairment and knowing that such impairment was unauthorised. [8-s 308I.15] Elements of offence The elements of the offence are — (1) The accused caused an unauthorised impairment [8-s 308B] of: (i) the reliability; (ii) security; or (iii) operation of any data [8-s 308I] (2) held on: (i) a computer disk; (ii) credit card; or (iii) device used to store data by electronic means; (3) with intent [6-500] to cause such impairment; and (4) knowing that such impairment was unauthorised.

____________________ 309–310 [ss 309–310 rep Act 20 of 2001 s 3 and Sch 1[1], opn 3 Aug

2001] [page 1144]

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]

Form of indictment …. Elements of offence …. Non-application of section ….

[8-s 310B.10] [8-s 310B.15] [8-s 310B.20]

[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. [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. PROOF MATERIAL ON SECTION 310B [8-s 310B.10] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did by force rescue/attempt to rescue [name of inmate], an inmate in lawful custody [identify custody], from such custody. [page 1145] [8-s 310B.15] Elements of offence The elements of the offence are— (1) The accused did: (i) rescue [8-s 310B.1]; or (ii) attempt to rescue an inmate [8-s 310A] [24-s 3] from lawful custody [8-s 310D.10]; and (2) this was done by force. [8-s 310B.20] Non-application of section The section does not apply to an inmate in lawful custody for the purpose of serving a sentence of imprisonment the subject of an intensive correction order or home detention order under the Crimes (Sentencing Procedure) Act 1999, or in respect of a detention centre or a detainee within the meaning of the Children (Detention Centres) Act 1987: see s 310H at [8s 310H].

____________________

[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. Editor’s note: For proof material on s 310C, see [27-35,550] behind the “27 – Informations and Indictments” guide card. COMMENTARY ON SECTION 310C

Aiding escape …. Anything intended to facilitate escape …. Summary disposal …. Form of indictment …. Aiding escape — s 310C(a) …. Conveying to facilitate escape — s 310C(b) …. Elements of offence …. Aiding escape …. Conveying to facilitate escape …. Non-application of section ….

[8-s 310C.1] [8-s 310C.5] [8-s 310C.10] [8-s 310C.15] [8-s 310C.20] [8-s 310C.25] [8-s 310C.30] [8-s 310C.35] [8-s 310C.40] [8-s 310C.45]

[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]. [page 1146] PROOF MATERIAL ON SECTION 310C [8-s 310C.15] Form of indictment [8-s 310C.20] Aiding escape — s 310C(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales aided [name of inmate] being an inmate in lawful custody [identify custody] to escape/attempt to escape from such custody.

[8-s 310C.25] Conveying to facilitate escape — s 310C(b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales conveyed/caused to be conveyed [description of thing] into a correctional centre [name of correctional centre]/to an inmate [name of inmate] with the intent to facilitate the escape of an inmate. [8-s 310C.30] Elements of offence The elements of the offence are— [8-s 310C.35] Aiding escape (1) An inmate [8-s 310A] [24-s 3] in lawful custody [8-s 310D.10]: (i) escaped; or (ii) attempted to escape; and (2) the accused aided this person in this escape or attempt to escape [8-s 310C.1]. [8-s 310C.40] Conveying to facilitate escape (1) The accused: (i) conveyed; or (ii) caused to be conveyed, anything; (2) either: (i) into a correctional centre [8-s 310A] [24-s 3]; or (ii) to an inmate [8-s 310A] [24-s 3]; (3) with intent [6-500] to facilitate the escape [8-s 310C.5] of an inmate [8-s 310A] [24-s 3]. [8-s 310C.45] Non-application of section The section does not apply to an inmate in lawful custody for the purpose of serving a sentence of imprisonment the subject of an intensive correction order or home detention order under the Crimes (Sentencing Procedure) Act 1999, or in respect of a detention centre or a detainee within the meaning of the Children (Detention Centres) Act 1987: see s 310H at [8s 310H].

____________________

[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 …. Common Law …. Inmate …. Lawful custody ….

[8-s 310D.1] [8-s 310D.3] [8-s 310D.5] [8-s 310D.10] [page 1147]

Commonwealth and interstate escapees …. Mental element …. Motive for escape …. Failure to return after temporary release …. Sentencing …. Extension of sentence following unlawful absence from custody …. Form of indictment …. Escaping or attempting to escape — s 310D(a) …. Failing to return to lawful custody — s 310D(b) …. Elements of offence …. Escaping or attempting to escape …. Failing to return to lawful custody …. Non-application of section ….

[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.45] [8-s 310D.50] [8-s 310D.55] [8-s 310D.60] [8-s 310D.65] [8-s 310D.70] [8-s 310D.75]

[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 [page 1148] 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 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. [page 1149] [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. [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). PROOF MATERIAL ON SECTION 310D [8-s 310D.45] Form of indictment [8-s 310D.50] Escaping or attempting to escape — s 310D(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales being an inmate escaped/attempted to escape from lawful custody [identify custody]. [page 1150] [8-s 310D.55] Failing to return to lawful custody — s 310D(b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales being an inmate and temporarily released from lawful custody [identify custody] failed to return to lawful custody at the end of the time for which he/she had been released. [8-s 310D.60] Elements of offence The elements of the offence are— [8-s 310D.65] Escaping or attempting to escape (1) The accused was an inmate [8-s 310A] [24-s 3]; and (2) the accused: (i) escaped; or (ii) attempted to escape; (3) from lawful custody [8-s 310D.10]. [8-s 310D.70] Failing to return to lawful custody (1) The accused was an inmate [8-s 310A] [24-s 3]; and

(2) the accused had been temporarily released from lawful custody [8-s 310D.10]; and (3) the accused failed to return to lawful custody [8-s 310D.10] at the end of the time for which he/she had been released [8-s 310D.30]. [8-s 310D.75] Non-application of section The section does not create an offence for Commonwealth and Interstate escapees: see [8-s 310D.15]. The section does not apply to an inmate in lawful custody for the purpose of serving a sentence of imprisonment the subject of an intensive correction order or home detention order under the Crimes (Sentencing Procedure) Act 1999, or in respect of a detention centre or a detainee within the meaning of the Children (Detention Centres) Act 1987: see s 310H at [8-s 310H].

____________________

[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 ….

[8-s 310E.1]

[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].

____________________

[8-s 310F]

Permitting escape

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.

[page 1151] (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 …. Form of indictment …. Permitting escape — s 310F(1) …. Negligently permitting escape — s 310F(2) …. Elements of offence …. Non-application of section ….

[8-s 310F.1] [8-s 310F.5] [8-s 310F.10] [8-s 310F.15] [8-s 310F.20] [8-s 310F.25] [8-s 310F.30]

[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.

PROOF MATERIAL ON SECTION 310F

[8-s 310F.10] Form of indictment [8-s 310F.15] Permitting escape — s 310F(1) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales being an officer of a correctional centre [name of correctional centre]/ police officer and having actual custody of [name of inmate], an inmate, wilfully permitted him/her to escape from custody [8-s 310F.20] Negligently permitting escape — s 310F(2) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales being an officer of a correctional centre [name of correctional centre]/ police officer and having actual custody of [name of inmate], an inmate, negligently permitted him/her to escape from custody. [8-s 310F.25] Elements of offence The elements of the offence are — (1) The accused was: (i) an officer of a correctional centre [8-s 310F(3)] [24-s 3]; or (ii) a police officer; and (2) the accused had actual custody of an inmate [8-s 310A] [24-s 3] for the time being; and (3) the accused: [page 1152] (i) wilfully permitted; or (ii) negligently permitted, the inmate to escape from custody. [8-s 310F.30] Non-application of section The section does not apply to an inmate in lawful custody for the purpose of serving a sentence of imprisonment the subject of an intensive correction order or home detention order under the Crimes (Sentencing Procedure) Act 1999, or in respect of a detention centre or a detainee within the meaning of the Children (Detention Centres) Act 1987: see s 310H at [8s 310H].

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[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] COMMENTARY ON SECTION 310G

Summary disposal …. Scope of the section …. Form of indictment …. Elements of offence …. Non-application of section ….

[8-s 310G.1] [8-s 310G.5] [8-s 310G.10] [8-s 310G.15] [8-s 310G.20]

[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.

PROOF MATERIAL ON SECTION 310G [8-s 310G.10] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did knowingly harbour/maintain/employ [name of inmate] being an escaped inmate. [8-s 310G.15] Elements of offence The elements of the offence are — (1) The accused knowingly: (i) harboured [8-s 310G.5]; (ii) maintained [8-s 310G.5]; or [page 1153] (iii) employed, an escaped inmate; and (2) the accused knew this person to be an escaped inmate [8-s 310A] [24-s 3]. [8-s 310G.20] Non-application of section The section does not apply to an inmate in lawful custody for the purpose of serving a sentence of imprisonment the subject of an intensive correction order or home detention order under the Crimes (Sentencing Procedure) Act 1999, or in respect of a detention centre or a detainee within the meaning of the Children (Detention Centres) Act 1987: see s 310H at [8s 310H].

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[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 or home detention 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]

PART 6B — TERRORISM [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]

[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. (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.

PROOF MATERIAL ON SECTION 310J [8-s 310J.1] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, was intentionally a member of a terrorist organisation, knowing that the organisation was a terrorist organisation. [page 1154] [8-s 310J.5] Elements of offence The elements of the offence are (a) The accused: (i) was intentionally [6-500]; (ii) a member of an organisation; (iii) the organisation was a terrorist organisation [8-s 310I]; (b) The accused knew that the organisation was a terrorist organisation [8-s 310I]. [8-s 310J.10] Statutory defence A person is not guilty of an offence under the section if the person satisfies the court 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: see s 310J(2) at [8-s 310J].

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[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.

[8-s 310L]

Repeal of Part

310L This Part is repealed on 13 September 2019. [s 310L insrt Act 53 of 2008 s 3 and Sch 6[2], opn 1 July 2008; am Act 64 of 2010 s 3, opn 10 Sep 2010; Act 64 of 2013 s 3, opn 12 Sep 2013; Act 17 of 2016 Sch 2, opn 16 May 2016]

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]

[8-s 311]

Definitions

311 (1) In this Part: benefit means any benefit or advantage whether or not in money or money’s worth. judicial officer means a person who is, or who alone or with others constitutes, a judicial tribunal and includes a coroner. judicial proceeding means a proceeding in or before a judicial tribunal in which evidence may be taken on oath. judicial tribunal means a person (including a coroner and an arbitrator), court or body authorised by law, or by consent of parties, to conduct a hearing for the purpose of the determination of any matter or thing and includes a person, court or body authorised to conduct a committal proceeding. public justice official means a person who is a public officer employed in any capacity (other than as a judicial officer) for the investigation, detection or prosecution of offenders. [page 1155] 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 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].

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[8-s 312] justice”

Meaning of “pervert the course of

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 [page 1156] 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.

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[8-s 313] Knowledge that offence is a serious indictable offence is unnecessary 313 If it is an element of an offence under this Part that an offence is a serious indictable offence, it is not necessary for the prosecution to establish that the accused knew that the offence was a serious indictable offence. [s 313 am Act 94 of 1999 s 5 and Sch 3[45], opn 1 Jan 2000]

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 …. Form of indictment …. Elements of offence ….

[8-s 314.1] [8-s 314.5] [8-s 314.10] [8-s 314.15]

[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 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].

PROOF MATERIAL ON SECTION 314 [8-s 314.10] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales made an accusation, namely [set out brief details of accusation] accusing [name of victim] of the offence of [set out brief details of offence], with intent that the victim be the subject of an investigation, he/she the said [name of accused] knowing [name of victim] to be innocent of the offence alleged. [8-s 314.15] Elements of offence The elements of the offence are — (1) The accused made an accusation; (2) intending the victim to be the subject of an investigation for an offence; and (3) knowing that the victim was innocent of that offence.

____________________ [page 1157]

[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 …. Form of indictment …. Elements of offence ….

[8-s 315.1] [8-s 315.5] [8-s 315.10] [8-s 315.15] [8-s 315.20] [8-s 315.25]

[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).

PROOF MATERIAL ON SECTION 315 [8-s 315.20] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, [describe act subject of indictment] with intent to hinder [set of brief details of investigation, discovery of evidence or apprehension] of/for the [page 1158] serious indictable offence of [brief description of serious indictable offence committed by name of offender/s if known/a person unknown]. [8-s 315.25] Elements of offence The elements of the offence are — (1) The accused did any act; (2) intending [6-500] in any way to hinder: (i) the investigation of a serious indictable offence [8-s 4] [8-s 311.1] committed by another person; (ii) the discovery of evidence concerning a serious indictable offence [8-s 4] [8-s 311.1]

committed by another person; or (iii) the apprehension of another person who has committed a serious indictable offence [8-s 4] [8-s 311.1].

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[8-s 315A] witnesses

Threatening or intimidating victims or

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 …. Form of indictment …. Threatening injury or detriment …. Doing or causing injury or detriment …. Elements of offence ….

[8-s 315A.1] [8-s 315A.5] [8-s 315A.10] [8-s 315A.15] [8-s 315A.20]

[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].

PROOF MATERIAL ON SECTION 315A [8-s 315A.5] Form of indictment [8-s 315A.10] Threatening injury or detriment That [name of accused] on [date of alleged offence] at

[locality/suburb] in the State of New South Wales, threatened to do/threatened to cause any injury/detriment [describe the threat] to [name of person] with intent to influence [name of person accused intending to influence] not to bring material information about the indictable offence of [state indictable offence] to the attention of a police officer/[name of other appropriate authority]. [8-s 315A.15] Doing or causing injury or detriment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, did/caused an injury/detriment [describe injury/detriment] to [name of person] with intent to influence [name of [page 1159] person accused intending to influence] not to bring material information about the indictable offence of [state indictable offence] to the attention of a police officer/[name of other appropriate authority]. [8-s 315A.20] Elements of offence The elements of the offence are — (1) That the accused: (i) did or caused; or (ii) threatened to do or cause, an injury or detriment to any other person; and (2) intended [6-500] to influence any person not to bring material information [8-s 315A(2)] about an indictable offence [29-45,200] to the attention of a police officer or other appropriate authority.

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[8-s 316]

Concealing serious indictable offence

316 (1) If a person has committed a serious indictable offence and another person who knows or believes that the offence has been committed and that he or she has information which might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for it fails without reasonable excuse to bring that information to the attention of a member of the Police Force or other appropriate authority, that other person is liable to imprisonment for 2 years. [subs (1) am Act 94 of 1999 s 5 and Sch 3[45], opn 1 Jan 2000]

(2) A person who solicits, accepts or agrees to accept any benefit for himself or herself or any other person in consideration for doing anything that would be an offence under subsection (1) is liable to imprisonment for 5 years. (3) It is not an offence against subsection (2) merely to solicit, accept or agree to accept the making good of loss or injury caused by an offence or the

making of reasonable compensation for that loss or injury. (4) A prosecution for an offence against subsection (1) is not to be commenced against a person without the approval of the Attorney General if the knowledge or belief that an offence has been committed was formed or the information referred to in the subsection was obtained by the person in the course of practising or following a profession, calling or vocation prescribed by the regulations for the purposes of this subsection. [subs (4) insrt Act 85 of 1997 s 3 and Sch 1.2[3], opn 30 Mar 1998]

(5) The regulations may prescribe a profession, calling or vocation as referred to in subsection (4). [subs (5) subst Act 54 of 1998 s 3 and Sch 2.6, opn 30 June 1998] Editor’s note: For proof material on s 316, see [27-36,100] behind the “27 – Informations and Indictments” guide card in Vol 4. COMMENTARY ON SECTION 316

Summary disposal …. Definitions …. Prescribed professions, vocations or callings …. Form of indictment …. Concealing serious indictable offence — s 316(1) …. Soliciting benefit for concealing serious indictable offence — s 316(2) ….

[8-s 316.1] [8-s 316.5] [8-s 316.10] [8-s 316.15] [8-s 316.20] [8-s 316.25] [page 1160]

Elements of offence …. Concealing serious indictable offence …. Soliciting benefit for concealing serious indictable offence …. Approval of Attorney-General ….

[8-s 316.30] [8-s 316.35] [8-s 316.40] [8-s 316.45]

[8-s 316.1] 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 316.5] 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]. [8-s 316.10] Prescribed professions, vocations or callings Clause 4 of the Crimes Regulation 2010 at [8-10,020] prescribes the following professions, callings and vocations for the purposes of s 316(4): (a) a legal practitioner, (b) a medical practitioner, (c) a psychologist, (d) a nurse, (e) a social worker, including: (i) a support worker for victims of crime, and (ii) a counsellor who treats persons for emotional or psychological conditions suffered by them, (f) a member of the clergy of any church or religious denomination, (g) a researcher for professional or academic purposes. (h) if the serious indictable offence referred to in s 316(1) is an offence under s 60E Crimes Act 1900, a school teacher, including a principal of a school, (i) an arbitrator, (j) a mediator.

PROOF MATERIAL ON SECTION 316 [8-s 316.15] Form of indictment [8-s 316.20] Concealing serious indictable offence — s 316(1) Where [name of offender] having committed the serious indictable offence of [name of serious indictable offence], [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, knowing/believing that [name of offender] committed that offence and knowing/believing that he/she has information which might be of material assistance in securing the apprehension/prosecution/conviction of [name of offender] for that offence, without reasonable excuse, failed to bring that information to the attention of a member of the police force/[name of other authority]. [8-s 316.25] Soliciting benefit for concealing serious indictable offence — s 316(2) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, did solicit/accept/agree to accept a benefit namely [describe benefit] for himself/herself/[name of other person], knowing/believing that [name of offender] had on [date of concealed offence] at [location of concealed offence] committed the serious indictable offence of [name of serious indictable offence], he/she [name of offender] having committed that offence, and did fail, without reasonable excuse, to bring information which might be of material assistance in securing the apprehension/prosecution/conviction of [name of offender] to the attention of a member of the police force/[name of other authority]. [8-s 316.30] Elements of offence The elements of the offence are — [page 1161] [8-s 316.35] Concealing serious indictable offence

(1) A person has committed a serious indictable offence [8-s 4] [8-s 316.5]; (2) the accused knew or believed that a person had committed a serious indictable offence [8-s 4] [8-s 316.5]; and (3) had information which might have been of material assistance: (i) in securing the apprehension of the offender; or (ii) in the prosecution or conviction of the offender for it; and (4) failed, without reasonable excuse, to bring that information to the attention of a member of the police force or other appropriate authority. [8-s 316.40] Soliciting benefit for concealing serious indictable offence (1) The accused solicited, accepted or agreed to accept any benefit [8-s 311] for himself/herself or any other person; (2) in consideration for doing anything which is an offence under s 316(1) of the Crimes Act [2736,105.1]. [8-s 316.45] Approval of Attorney-General Note that prosecution for an offence under s 316(1) is not to be commenced against a person without the approval of the Attorney-General in certain circumstances: see s 316(4) at [8-s 316(4)].

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[8-s 317]

Tampering etc with evidence

317 A person who, with intent to mislead any judicial tribunal in any judicial proceeding: (a) suppresses, conceals, destroys, alters or falsifies anything knowing that it is or may be required as evidence in any judicial proceeding, or (b) fabricates false evidence (other than by perjury or suborning perjury), or (c) knowingly makes use of fabricated false evidence, is liable to imprisonment for 10 years. [s 317 am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000] Editor’s note: For proof material on s 317, see [27-36,150] behind the “27 – Informations and Indictments” guide card in Vol 4. COMMENTARY ON SECTION 317

Summary disposal …. Definitions …. Intoxication …. Fabricating false evidence ….

[8-s 317.1] [8-s 317.5] [8-s 317.10] [8-s 317.15]

Form of indictment …. Elements of offence ….

[8-s 317.20] [8-s 317.25]

[8-s 317.1] 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 317.5] Definitions “Judicial proceeding” and “judicial tribunal” are defined in s 311 at [8-s 311]. [8-s 317.10] 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]. [page 1162] [8-s 317.15] Fabricating false evidence The meaning of the term “false evidence” in s 317(b) and (c) was considered in Director of Public Prosecutions v Aydogan (2006) 67 NSWLR 727; [2006] NSWSC 558; BC200604089; (2006) 13 Crim LN 61 [2079], where it was held at [27] that the term was not confined to physical items per se, or to physical items introduced into evidence or intended to be introduced into evidence, but extended to false statements made by police officers even where the statements were not included in the police brief of evidence and were not served on the defendant in the relevant proceedings.

PROOF MATERIAL ON SECTION 317 [8-s 317.20] 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 mislead [name of judicial tribunal] in [set out brief details of proceeding] did [describe conduct giving rise to alleged offence]. [8-s 317.25] Elements of offence The elements of the offence are — (1) The accused, with intent [6-500] to mislead any judicial tribunal [8-s 311] in a judicial proceeding [8-s 311]; (2) either: (i) suppressed, concealed, destroyed, altered or falsified anything, knowing that it was or might have been required as evidence in any judicial proceeding; or (ii) fabricated false evidence (other than by perjury [8-s 327], or suborning perjury [8-s 333]); or (iii) knowingly made use of fabricated false evidence.

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[8-s 318]

Making or using false official

instrument to pervert the course of justice 318 (1) In this section: official instrument means an instrument of a kind that is made or issued by a person in his or her capacity as a public officer or by a judicial tribunal. (2) A person who makes a false official instrument, or who makes a copy of an instrument which the person knows to be a false official instrument, with the intention that: (a) he or she or another person will use it to induce another person to accept the instrument as genuine or to accept the copy as a copy of a genuine official instrument, and (b) that acceptance will pervert the course of justice, is liable to imprisonment for 14 years. [subs (2) am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000]

(3) A person who uses an instrument which the person knows to be a false official instrument, or who uses a copy of an instrument which the person knows to be a false official instrument, with the intention: (a) of inducing another person to accept the instrument as genuine or to accept the copy as a copy of a genuine official instrument, and (b) of thereby perverting the course of justice, is liable to imprisonment for 14 years. [subs (3) am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000]

[page 1163] (4) Section 250 applies to the interpretation of this section. [subs (4) subst Act 99 of 2009 Sch 2, opn 22 Feb 2010] Editor’s note: For proof material on s 318, see [27-36,200] behind the “27 – Informations and Indictments” guide card. COMMENTARY ON SECTION 318

Definitions …. False instruments …. Intoxication ….

[8-s 318.1] [8-s 318.5] [8-s 318.10]

Form of indictment …. Making false official instrument to pervert the course of justice — s 318(2) …. Using false official instrument to pervert the course of justice — s 318(3) …. Elements of offence …. Making false official instrument to pervert the course of justice …. Using false official instrument to pervert the course of justice ….

[8-s 318.15] [8-s 318.20] [8-s 318.25] [8-s 318.30] [8-s 318.35] [8-s 318.40]

[8-s 318.1] Definitions “Judicial tribunal” is defined in s 311 at [8-s 311]. [8-s 318.5] False instruments Section 318(4) provides that the provisions of Div 2 of Pt 5 of the Act (s 299 to 307) relating to false instruments apply to the interpretation of s 318. [8-s 318.10] 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 318 [8-s 318.15] Form of indictment [8-s 318.20] Making false official instrument to pervert the course of justice — s 318(2) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, made a false official instrument/copy of a false instrument, being [describe instrument], he/she the said [name of accused] knowing it to be false, with intent to induce/allow [name of other party] to induce [name of victim] to accept as a genuine instrument/copy of a genuine instrument, whereby such acceptance of the instrument/copy of instrument would have perverted the course of justice. [8-s 318.25] Using false official instrument to pervert the course of justice — s 318(3) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, used an instrument/copy of an instrument, being [describe instrument], he/she the said [name of accused] knowing it to be a false official instrument/copy of a false official instrument, with intent to induce [name of victim] to accept the said instrument/copy of an instrument as a genuine instrument/copy of a genuine instrument, thereby perverting the course of justice. [8-s 318.30] Elements of offence The elements of the offence are — [8-s 318.35] Making false official instrument to pervert the course of justice (1) The accused made a false official instrument [8-s 318.5] or copy of an instrument known by the accused to be a false official instrument [8-s 318.5]; (2) with intent [6-500] that: (i) the accused or another person use it to induce a person to accept the instrument as a

genuine official instrument [8-s 318.5] or accept the copy as a copy of a genuine official instrument; and (ii) that acceptance would have perverted the course of justice [8-s 319.5]. [page 1164] [8-s 318.40] Using false official instrument to pervert the course of justice (1) The accused used an instrument known by the accused to be a false official instrument [8-s 318.5], or used a copy of an instrument known by the accused to be a copy of a false official instrument [8-s 318.5]; (2) with intent [6-500] to: (i) induce another person to accept the instrument as a genuine official instrument [8-s 318.5] or accept the copy as a copy of a genuine official instrument; and (ii) thereby pervert the course of justice [8-s 319.5].

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[8-s 319] of justice

General offence of perverting the course

319 A person who does any act, or makes any omission, intending in any way to pervert the course of justice, is liable to imprisonment for 14 years. [s 319 am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000] Editor’s note: For proof material on s 319, see [27-36,250] behind the “27 – Informations and Indictments” guide card. COMMENTARY ON SECTION 319

Abolition of common law offences …. Perverting the course of justice …. Intoxication …. Sentence …. Form of indictment …. Elements of offence ….

[8-s 319.1] [8-s 319.5] [8-s 319.10] [8-s 319.15] [8-s 319.20] [8-s 319.25]

[8-s 319.1] Abolition of common law offences The common law offences, inter alia, of perverting the course of justice and attempting or conspiring to pervert the course of justice are abolished by s 341. However, a person may be prosecuted for conspiring to commit an offence under Part 7 of the Act: s 342. [8-s 319.5] Perverting the course of justice The gist of the common law offence of attempting to pervert the course of justice is “the doing of some act which has the tendency and is intended to pervert the administration of public justice”: R v Vreones [1891] 1 QB 361. It is conduct which may lead and is

intended to lead to a miscarriage of justice: R v Selvage [1982] QB 372. The phrase “perverting the course of justice” is defined in s 312: see [8-s 312]. The scope of the offence under the section was considered in Einfeld v R (2008) 252 ALR 375; 51 MVR 200; [2008] NSWCCA 215; BC200808949; 15 Crim LN 129 [2456]: see at [8-s 312.1]. Under the statutory offence, it would seem that there is no requirement that the acts done have the tendency to pervert the course of justice provided that the accused had the intention to bring about that result: P Gillies, Criminal Law, 4th ed, LBC Information Services, Sydney, 1997, pp 831–2, 836–7; cf R v Charles (NSWCCA, Gleeson CJ, James and Barr JJ, 60092/97, 23 March 1998, unreported, BC9800880); (1998) 5 Crim LN 19 [826] where s 319 was considered but not in a way which determined whether the statutory offence required the tendency element to be established. In R v Beckett [2015] HCA 38; BC201510237 at [39]–[45], the High Court considered (without deciding) the question whether liability for a s 319 offence requires proof that the accused’s act or omission possesses the tendency to pervert the course of justice. However, the Court observed at [46] that on a trial of a count charging a s 319 offence, it suffices for the judge to instruct the jury in the terms of the section — the prosecution must prove that the accused did the act, or made the omission, and that, at the time of so doing, it was the accused’s intention in any way to obstruct, prevent, pervert or defeat the course of justice. In R v Beckett at [36]–[38], the High Court held that liability for a s 319 offence hinges on the [page 1165] intention to pervert the course of justice and not upon the perversion of a course of justice — there is no reason to confine the reach of s 319 to conduct that is engaged in with the intention of perverting existing proceedings. The course of justice includes committal proceedings: R v Murphy (1985) 158 CLR 596; 61 ALR 139; BC8501073, and police investigations where curial proceedings are imminent or where the investigations could or might bring about proceedings: R v Selvage, above at 380. An act which has the tendency to deflect the police from prosecuting a criminal offence or instituting disciplinary proceedings before a judicial tribunal or from adducing evidence of the true facts is an act tending to pervert the course of justice and it is unnecessary that the prosecution prove that a particular offence has been committed or that a charge of a given nature is to be laid: R v Rogerson (1992) 174 CLR 268; 107 ALR 225; BC9202690, overruling R v Rogerson (1990) 51 A Crim R 359; BC9001650. However, there is a specific offence of hindering a police officer in the investigation of a serious offence under s 315: see [8-s 315]. The offence of perverting the course of justice was committed where a person gave a false account of a crime resulting in the police wasting time in their investigations: R v Manley [1933] 1 KB 529; R v Withers [1975] AC 842. As to persuading witnesses to give false testimony, see R v Andrews [1973] 1 QB 422. Where the accused falsely petitioned the chief justice that he was innocent of a crime for which he had been convicted so that a judicial inquiry under s 475 of the Crimes Act might have been ordered, it was held that there was an attempt to pervert the course of justice: White v R (1906) 4 CLR 152; 13 ALR 102; BC0600034. Where a doctor gave a false medical certificate in order that an adjournment would be obtained before a particular judge, it was held that there was a perversion of the course of justice: R v Edelsten (1990) 21 NSWLR 542; 51 A Crim R 397. It is an attempt to pervert the course of justice to use improper means to secure a plea of guilty notwithstanding that the person pleading guilty might in fact have been guilty of the offence: Meissner v R (1995) 184 CLR 132; 130 ALR 547; [1995] HCA 41;

BC9506447 where it was held that it was sufficient if the conduct had the tendency to induce a person to plead guilty where he or she would not have done so had the person exercised a free choice and that such conduct was accompanied by an intention to pervert the course of justice. It could be a perversion of the course of justice where the Crown alleged that the accused, at a compelled interview with the Office of State Revenue, produced two forged cheques to indicate that she had monies available before she stamped real property transfers and, hence, had not breached the requirements of her duties, and where she had been warned of a possible prosecution before the interview: R v Beckett [2015] HCA 38; BC201510237, approving the correctness of the decision in R v OM (2011) 212 A Crim R 293; [2011] NSWCCA 109; BC201103302. The offence will be committed where an act is done with intent to deflect or frustrate the course of judicial proceedings that the accused contemplates may possibly be instituted. It is not necessary that the judicial proceedings actually be commenced. In order that there can be an intention to pervert the course of justice, the accused must either know that judicial proceedings are on foot, or that they are imminent or might occur: R v Selvage, above. In a case where the offence was an attempt by the accused to have a witness give false evidence, the prosecution was not required to prove as an essential ingredient of the offence the specific nature of the false evidence the witness was to give and, therefore, there was no duplicity in a single offence charged where the Crown was alleging that the accused sought that the witness would give false evidence on two different issues: R v ARD [2000] NSWCCA 443; BC200006761; (2000) 7(10) Crim LN [1210]. Although tampering with evidence was an attempt to pervert the course of justice at common law, there is now a specific statutory offence in s 317: see [8-s 317]. [8-s 319.10] 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 [page 1166] Act 1900 relating to intoxication: see s 428B Crimes Act ff at [8-s 428B]. [8-s 319.15] Sentence It is no less serious to attempt to interfere with sentencing proceedings than to interfere with a determination of guilt and a deliberate attempt to effect a sentencing outcome should not be considered as of low order of seriousness: R v Purtell (2001) 120 A Crim R 317; [2001] NSWCCA 21; BC200100370; (2001) 8 Crim LN 29 [1280]. When the offender is the instigator of the act which is intended to compromise the integrity of the curial process and benefits, or intends to benefit, from the doing of the agreed act, extraordinary circumstances will be required before a custodial sentence is not appropriate: R v Giang [2001] NSWCCA 276; BC200105020. The fact that the offence of perverting the course of justice is committed by a person directly involved in the administration of justice (eg a police officer) is a relevant consideration, even if the conduct does not occur in the course of that person’s official duty: R v Nguyen (2004) 149 A Crim R 343; [2004] NSWCCA 332; BC200406333 at [38]; (2004) 11 Crim LN 102 [1780]. It is a significant factor in sentencing for the offence to take into account the effect that the offence had upon the proceedings that had been perverted: Church v R [2012] NSWCCA 149; BC201205031; 19(8) Crim LN [3103], where the court held there was no error in the sentencing judge having regard to the hypothetical outcome of proceedings in the Local Court had the offender not been party to providing false information to the sentencing magistrate.

PROOF MATERIAL ON SECTION 319 [8-s 319.20] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, did [describe act or omission subject of alleged offence] with intent thereby to pervert the course of justice. [8-s 319.25] Elements of offence The elements of the offence are — (1) The accused did any act or made any omission; (2) with intent [6-500] in any way to pervert the course of justice [8-s 319.5].

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DIVISION 3 — INTERFERENCE WITH JUDICIAL OFFICERS, WITNESSES, JURORS ETC [Div heading am Act 31 of 1999 s 3 and Sch 5.27, opn 7 July 1999]

[8-s 320]

Extended meaning of “giving evidence”

320 In this Division, a reference to the giving of evidence includes a reference to the production of anything to be used as evidence. [s 320 am Act 31 of 1999 s 3 and Sch 5.27, opn 7 July 1999]

[8-s 321]

Corruption of witnesses and jurors

321 (1) A person who confers or procures or offers to confer or procure or attempt to procure any benefit on or for any person: (a) intending to influence any person called or to be called as a witness in any judicial proceeding to give false evidence or withhold true evidence or to not attend as a witness or not produce anything in evidence pursuant to a summons or subpoena, or (b) intending to influence any person (whether or not a particular person) in the person’s conduct as a juror in any judicial proceeding or to not attend as a juror in any judicial proceeding, whether he or she has been sworn as a juror or not, and intending to pervert the course of justice, [page 1167]

is liable to imprisonment for 10 years. [subs (1) am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000]

(2) A person who solicits, accepts or agrees to accept any benefit for himself or herself or any other person: (a) in consideration for any agreement or undertaking that any person will as a witness in any judicial proceeding give false evidence or withhold true evidence or not attend as a witness or not produce anything in evidence pursuant to a summons or subpoena, or (b) on account of anything to be done or omitted to be done by him or her or another person as a juror in any judicial proceeding, or on account of his or her or another person’s not attending as a juror in any judicial proceeding, intending to pervert the course of justice, is liable to imprisonment for 10 years. [subs (2) am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000] Editor’s note: For proof material on s 321, see [27-37,000] behind the “27 – Informations and Indictments” guide card. COMMENTARY ON SECTION 321

Summary disposal …. Abolition of common law offences …. Definitions …. Intoxication …. Form of indictment …. Procuring benefit to influence witness etc — s 321(1)(a) …. Procuring benefit to influence juror — s 321(1)(b) …. Soliciting benefit to withhold evidence — s 321(2) (a) …. Soliciting benefit to influence juror — s 321(2)(b) …. Elements of offence …. Procuring benefit to influence witness etc — s 321(1)(a) …. Procuring benefit to influence juror — s 321(1)(b) ….

[8-s 321.1] [8-s 321.5] [8-s 321.10] [8-s 321.15] [8-s 321.20] [8-s 321.25] [8-s 321.30] [8-s 321.35] [8-s 321.40] [8-s 321.45] [8-s 321.50] [8-s 321.55]

Soliciting benefit to withhold evidence — s 321(2) (a) …. Soliciting benefit to influence juror — s 321(2)(b) ….

[8-s 321.60] [8-s 321.65]

[8-s 321.1] Summary disposal Unless the person charged intended to procure the conviction or acquittal of any person of any serious offence, 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 321.5] Abolition of common law offences The common law offences, inter alia, of using threats or persuasion to witnesses to induce them not to appear or give evidence in courts of justice, and of dissuading, intimidating or preventing, or attempting to dissuade, intimidate or prevent a person who is bound to give evidence in a criminal matter from doing so have been abolished by s 341 at [8-s 341]. [8-s 321.10] Definitions As to “judicial proceedings” see s 311 at [8-s 311]. As to a “person to be called as a witness” see [8-s 323.10]. [8-s 321.15] Intoxication An offence under s 321(1) 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]. [page 1168]

PROOF MATERIAL ON SECTION 321 [8-s 321.20] Form of indictment [8-s 321.25] Procuring benefit to influence witness etc — s 321(1)(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did confer/procure/offer to confer/offer to benefit/attempt to procure [describe benefit] on/for [name of beneficiary] with intent to influence [name of witness/potential witness] in [describe proceeding including name and judicial forum] to give false evidence/to withhold true evidence/not attend as a witness/not produce [describe item and subpoena or summons which ordered production of the item]. [8-s 321.30] Procuring benefit to influence juror — s 321(1)(b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did confer/procure/offer to confer/offer to procure/attempt to procure [describe benefit] on/for [name of beneficiary] with intent to influence [name of juror/potential juror, if known] in [describe proceeding including name and judicial forum] in his/her conduct as a juror/attendance as a juror with intent to pervert the course of justice. [8-s 321.35] Soliciting benefit to withhold evidence — s 321(2)(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did solicit/accept/agree to accept [describe benefit] for [name of accused or other recipient] in consideration of an agreement/undertaking that [name of witness] in [describe proceeding including name and judicial forum] would give false evidence/withhold true evidence/not attend as a witness/not produce [describe

item and subpoena or summons which ordered production of the item]. [8-s 321.40] Soliciting benefit to influence juror — s 321(2)(b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did solicit/accept/agree to accept [described benefit] for [name of accused or other recipient] on account of [name of accused or other person being a juror] doing/omitting to do [describe act or omission] in [describe proceeding including name and judicial forum] attending/not attending as a juror in [describe proceeding including name and judicial forum] with intent to pervert the course of justice. [8-s 321.45] Elements of offence The elements of the offence are — [8-s 321.50] Procuring benefit to influence witness etc — s 321(1)(a) (1) The accused conferred, procured, offered to confer or procure or attempted [6-300] to procure any benefit on or for any person; (2) intending [6-500] to influence any person called or to be called as a witness [8-s 323.10] in any judicial proceeding: (i) to give false evidence; (ii) to withhold true evidence; (iii) not to attend as a witness; or (iv) not to produce anything in evidence pursuant to a summons or subpoena. [8-s 321.55] Procuring benefit to influence juror — s 321(1)(b) (1) The accused conferred, procured, offered to confer or procure or attempted [6-300] to procure any benefit on or for any person; (2) intending [6-500] to influence a person (whether a particular person or not): (i) in that person’s conduct as a juror in any judicial proceeding [8-s 311]; or (ii) not to attend as a juror in any judicial proceeding [8-s 311], whether or not that person has been sworn as a juror; (3) with intent to pervert the course of justice [8-s 319.5]. [8-s 321.60] Soliciting benefit to withhold evidence — s 321(2)(a) [page 1169] (1) The accused solicited, accepted or agreed to accept any benefit for himself/herself or another person; (2) in consideration for any agreement or understanding that any person will as a witness in any judicial proceeding [8-s 311]: (i) give false evidence; (ii) withhold true evidence; (iii) not to attend as a witness; or (iv) not to produce anything in evidence pursuant to a summons or subpoena. [8-s 321.65] Soliciting benefit to influence juror — s 321(2)(b) (1) The accused solicited, accepted or agreed to accept any benefit for himself/herself or another person;

(2) on account of: (i) anything to be done or omitted to be done by the accused or another person as a juror in any judicial proceeding [8-s 311]; or (ii) the accused or another person not attending as a juror in any judicial proceeding [8-s 311]; (3) with intent [6-500] to pervert the course of justice [8-s 319.5].

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[8-s 322] Threatening or intimidating judges, witnesses, jurors etc 322 A person who threatens to do or cause, or who does or causes, any injury or detriment to any person: (a) intending to influence a person called or to be called as a witness in any judicial proceeding to give false evidence or withhold true evidence or to not attend as a witness or not produce anything in evidence pursuant to a summons or subpoena, or (b) intending to influence any person (whether or not a particular person) in the person’s conduct as a juror in any judicial proceeding or to not attend as a juror in any judicial proceeding, whether he or she has been sworn as a juror or not, or (c) intending to influence any person in the person’s conduct as a judicial officer, or (d) intending to influence any person in the person’s conduct as a public justice official in or in connection with any judicial proceeding, is liable to imprisonment for 10 years. [s 322 am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000] Editor’s note: For proof material on s 322, see [27-37,050] behind the “27 – Informations and Indictments” guide card. COMMENTARY ON SECTION 322

Summary disposal …. Abolition of common law offences …. Definitions …. Intoxication …. Sentence ….

[8-s 322.1] [8-s 322.5] [8-s 322.10] [8-s 322.15] [8-s 322.20]

Form of indictment …. Threatening etc witness etc — s 322(a) …. Threatening etc juror etc — s 322(b) …. Threatening etc judicial officer — s 322(c) …. Threatening etc public justice official — s 322(d) ….

[8-s 322.25] [8-s 322.30] [8-s 322.35] [8-s 322.40] [8-s 322.45] [page 1170]

Elements of offence …. Threatening etc witness etc — s 322(a) …. Threatening etc juror etc — s 322(b) …. Threatening judicial officer — s 322(c) …. Threatening public justice official — s 322(d) ….

[8-s 322.50] [8-s 322.55] [8-s 322.60] [8-s 322.65] [8-s 322.70]

[8-s 322.1] Summary disposal Unless the person charged intended to procure the conviction or acquittal of any person of any serious indictable offence, 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 s 267(2) at [2-s 267]. [8-s 322.5] Abolition of common law offences See s 341 at [8-s 341] for certain common law offences now abolished. [8-s 322.10] Definitions As to “judicial proceedings” see s 311 at [8-s 311]. Judicial proceedings in Victoria were not within the scope of the offence: R v Lowe (2003) 57 NSWLR 102; 139 A Crim R 240; [2003] NSWCCA 150; BC200302764; (2003) 10 Crim LN 43 [1557]. As to a “person to be called as a witness” see [8-s 323.10]. As to the words “public justice official in connection with any judicial proceedings” see at [8-s 326.10]. [8-s 322.15] 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 322.20] Sentence The appropriateness of a sentence for an offence under s 322(c) in respect of a threat to a magistrate was considered in R v Schaffer (2005) 153 A Crim R 372; [2005] NSWCCA 193; BC200503226; (2005) 12 Crim LN 65 [1893].

PROOF MATERIAL ON SECTION 322 [8-s 322.25] Form of indictment [8-s 322.30] Threatening etc witness etc — s 322(a) That [name of accused] on [date of alleged

offence] at [locality/suburb] in the State of New South Wales threatened to do/threatened to cause/did/caused an injury/detriment, namely [describe injury or detriment] to [name of victim] with intent to influence [name of witness/potential witness] a witness/potential witness in [describe proceeding including name and judicial forum] to give false evidence/to withhold true evidence/not attend as a witness/not to produce [describe item and subpoena or summons which ordered production of the item]. [8-s 322.35] Threatening etc juror etc — s 322(b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales threatened to do/threatened to cause/did/caused an injury/detriment, namely [describe injury or detriment] to [name of victim] with intent to influence [name of juror/potential juror] a juror/potential juror in [describe proceeding including name and judicial forum] in his/her conduct as a juror/his/her attendance as a juror. [8-s 322.40] Threatening etc judicial officer — s 322(c) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales threatened to do/threatened to cause/did/caused an injury/detriment, namely [describe injury or detriment] to [name of victim] with intent to influence [name and title of judicial officer] in his/her conduct as a judicial officer. [8-s 322.45] Threatening etc public justice official — s 322(d) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales threatened to [page 1171] do/threatened to cause/did/caused an injury/detriment, namely [describe injury or detriment] to [name of victim] with intent to influence [name and title of public justice official] in his/her conduct as a public justice official, in/in connection with a judicial proceeding namely, [describe proceeding including name and judicial forum]. [8-s 322.50] Elements of offence The elements of the offence are — [8-s 322.55] Threatening etc witness etc — s 322(a) (1) The accused threatened to do or cause, or did or caused injury or detriment to a person; (2) with intent [6-500] to influence a person called or to be called as a witness in any judicial proceeding: (i) to give false evidence; (ii) withhold true evidence; (iii) to not attend as a witness; or (iv) to not produce anything in evidence pursuant to a summons or subpoena. [8-s 322.60] Threatening etc juror etc — s 322(b) (1) The accused threatened to do or cause, or did or caused injury or detriment to a person; (2) with intent [6-500] to influence any person (whether or not a particular person): (i) in the person’s conduct as a juror in any judicial proceeding [8-s 311]; or (ii) not to attend as a juror in any judicial proceeding [8-s 311], whether or not he/she had been sworn as a juror. [8-s 322.65] Threatening judicial officer — s 322(c) (1) The accused threatened to do or cause, or did or caused injury or detriment to a person;

(2) with intent [6-500] to influence any person in that person’s conduct as a judicial officer [8-s 311]. [8-s 322.70] Threatening public justice official — s 322(d) (1) The accused threatened to do or cause, or did or caused injury or detriment to a person; (2) with intent [6-500] to influence any person in that person’s conduct as a public justice official [8-s 311]; (3) in or in connection with any judicial proceeding [8-s 311].

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[8-s 323]

Influencing witnesses and jurors

323 A person who does any act: (a) intending to procure, persuade, induce or otherwise cause any person called or to be called as a witness in any judicial proceeding to give false evidence or withhold true evidence or to not attend as a witness or not produce any thing in evidence pursuant to a summons or subpoena; or (b) intending, other than by the production of evidence and argument in open court, to influence any person (whether or not a particular person) in the person’s conduct as a juror in any judicial proceeding, whether he or she has been sworn as a juror or not, is liable to imprisonment for 7 years. Editor’s note: For proof material on s 323, see [27-37,100] behind the “27 – Informations and Indictments” guide card. COMMENTARY ON SECTION 323

Summary disposal …. Abolition of common law offences …. Definitions ….

[8-s 323.1] [8-s 323.5] [8-s 323.10] [page 1172]

Intoxication …. Sentence …. Form of indictment …. Influencing witness — s 323(a) ….

[8-s 323.15] [8-s 323.20] [8-s 323.25] [8-s 323.30]

Influencing juror — s 323(b) …. Elements of offence …. Influencing witness …. Influencing juror ….

[8-s 323.35] [8-s 323.40] [8-s 323.45] [8-s 323.50]

[8-s 323.1] Summary disposal Unless the person charged intended to procure the conviction or acquittal of any person of any serious offence, 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 323.5] Abolition of common law offences See s 341 at [8-s 341] for certain common law offences now abolished. [8-s 323.10] Definitions As to “judicial proceedings” see s 311 at [8-s 311]. The meaning of a “person to be called as a witness” was considered in R v Reid [1999] NSWCCA 355; BC9907386; (1999) 6 Crim LN 89 [1076], where it was held that whether a person comes within that term will depend upon the belief and intention of the accused as to the status of the person and it is unnecessary that a formal witness statement has been taken from that person. [8-s 323.15] 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 323.20] Sentence The essence of a s 323(a) offence is that it strikes at the integrity of the system of justice and some form of custodial sentence is normally appropriate: R v Burton [2008] NSWCCA 128; BC200804752 at [101]; (2008) 15 Crim LN 82 [2411]. A significant element of general deterrence is required where a s 323(a) offence is committed by a domestic violence offender who seeks to criminally dissuade the victim from giving evidence in the proceedings: R v Burton, above at [105].

PROOF MATERIAL ON SECTION 323 [8-s 323.25] Form of indictment [8-s 323.30] Influencing witness — s 323(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did [describe act subject of charge] with intent to procure/persuade/induce/cause [name of witness/potential witness] a witness/potential witness in [describe proceeding including name and judicial forum] to give false evidence/to withhold true evidence/not attend as a witness/not to produce [describe item and subpoena/summons which ordered production of the item]. [8-s 323.35] Influencing juror — s 323(b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did [describe act subject of charge] with intent to influence [name of juror or potential juror, if known] a juror/potential juror in [describe proceeding including name and judicial forum] in his/her conduct as a juror. [8-s 323.40] Elements of offence The elements of the offence are —

[8-s 323.45] Influencing witness (1) The accused did an act; [page 1173] (2) with intent [6-500] to procure, persuade, induce or otherwise cause a person called or to be called as a witness [8-s 323.10] in any judicial proceeding [8-s 311]: (i) to give false evidence; (ii) withhold true evidence; (iii) to not attend as a witness; or (iv) to not produce anything in evidence pursuant to a summons or subpoena. [8-s 323.50] Influencing juror (1) The accused did an act; (2) with intent [6-500] to influence any person (whether or not a particular person) in that person’s conduct as a juror in a judicial proceeding [8-s 311], whether or not that person had been sworn as a juror.

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[8-s 324] Increased penalty if serious indictable offence involved 324 A person who commits an offence against section 321, 322 or 323 (offences concerning interference with witnesses, jurors, judicial officers and public justice officials) intending to procure the conviction or acquittal of any person of any serious indictable offence is liable to imprisonment for 14 years. [s 324 am Act 94 of 1999 s 5 and Sch 3[45], opn 1 Jan 2000; am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000] COMMENTARY ON SECTION 324

Definitions …. Charging aggravated offence ….

[8-s 324.1] [8-s 324.5]

[8-s 324.1] Definitions “Judicial officer” and “public justice official” are defined in s 311 at [8-s 311]. [8-s 324.5] Charging aggravated offence If the prosecution intends to rely upon a matter of aggravation falling within the section it should charge the aggravating circumstance as that is an element of the offence under the section: Warby v R (2007) 171 A Crim R 575; [2007] NSWCCA 173; BC200704755 (2007) 14 Crim LN 95 [2250].

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[8-s 325] Preventing, obstructing or dissuading witness or juror from attending etc 325 (1) A person who without lawful excuse wilfully prevents, obstructs or dissuades a person called as a witness in any judicial proceeding from attending as a witness or from producing anything in evidence pursuant to a summons or subpoena is liable to imprisonment for 5 years. (1A) A person who without lawful excuse wilfully prevents, obstructs or dissuades another person who the person believes may be called as a witness in any judicial proceeding from attending the proceeding is liable to imprisonment for 5 years. [subs (1A) insrt Act 23 of 1995 Sch 1, opn 1 July 1995]

(2) A person who without lawful excuse wilfully prevents, obstructs or dissuades a person summoned as a juror in any judicial proceeding from attending as a juror is liable to imprisonment for 5 years. Editor’s note: For proof material on s 325, see [27-37,150] behind the “27 – Informations and Indictments” guide card in Vol 4.

[page 1174] COMMENTARY ON SECTION 325

Summary disposal …. Abolition of common law offences …. Definitions …. Form of indictment …. Preventing etc witness attending etc — s 325(1) and (1A) …. Preventing etc juror attending etc — s 325(2) …. Elements of offence …. Preventing witness etc attending etc …. Preventing etc juror attending ….

[8-s 325.1] [8-s 325.5] [8-s 325.10] [8-s 325.15] [8-s 325.20] [8-s 325.25] [8-s 325.30] [8-s 325.35] [8-s 325.40]

[8-s 325.1] 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 15. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 325.5] Abolition of common law offences See s 341 at [8-s 341] for certain common law offences now abolished. [8-s 325.10] Definitions As to “judicial proceedings” see s 311 at [8-s 311].

PROOF MATERIAL ON SECTION 325 [8-s 325.15] Form of indictment [8-s 325.20] Preventing etc witness attending etc — s 325(1) and (1A) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, without lawful excuse, wilfully prevented/obstructed/dissuaded [name of witness or potential witness] a witness/potential witness in [describe proceeding including name and judicial forum] from attending as a witness/producing [describe item and subpoena or summons which ordered production of the item]. [8-s 325.25] Preventing etc juror attending etc — s 325(2) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, without lawful excuse, wilfully prevented/obstructed/dissuaded [name of juror or potential juror] a juror/potential juror in [describe proceeding including name and judicial forum] from attending as a juror. [8-s 325.30] Elements of offence The elements of the offence are — [8-s 325.35] Preventing witness etc attending etc (1) The accused, without lawful excuse [8-s 417.1], wilfully prevented, obstructed or dissuaded; (2) either: (i) a person called as a witness in a judicial proceeding [8-s 311]: (a) from attending as a witness; or (b) from producing anything in evidence pursuant to a summons or subpoena; or (ii) a person who the accused believed might be called as a witness in any judicial proceeding from attending the proceeding. [8-s 325.40] Preventing etc juror attending (1) The accused, without lawful excuse [8-s 417.1], wilfully prevented, obstructed or dissuaded; (2) a person summoned as a juror in a judicial proceeding [8-s 311] from attending as a juror.

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[8-s 326]

Reprisals against judges, witnesses,

jurors etc 326 (1) A person who threatens to do or cause, or who does or causes, any injury or detriment to any person on account of anything lawfully done by a person: (a) as a witness or juror in any judicial proceeding, or (b) as a judicial officer, or (c) as a public justice official in or in connection with any judicial proceeding, is liable to imprisonment for 10 years. [subs (1) am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000]

(2) A person who threatens to do or cause, or who does or causes, any injury or detriment to another person because the person believes the other person will or may be or may have been called as a witness, or will or may serve or may have served as a juror, in any judicial proceeding is liable to imprisonment for 10 years. [subs (2) insrt Act 23 of 1995 Sch 1; am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000]

(3) For the purposes of this section, it is immaterial whether the accused acted wholly or partly for a reason specified in subsection (1) or (2). [subs (3) insrt Act 23 of 1995 Sch 1, opn 1 July 1995] Editor’s note: For proof material on s 326, see [27-37,200] behind the “27 – Informations and Indictments” guide card in Vol 4. COMMENTARY ON SECTION 326

Summary disposal …. Abolition of common law offences …. Definitions …. Sentencing …. Form of indictment …. Reprisals against witnesses or jurors — s 326(1)(a) …. Reprisals against judicial officers — s 326(1)(b) …. Reprisals against public justice officials — s 326(1) (c) …. Elements of offence …. Threatening or carrying out reprisals against witnesses or jurors ….

[8-s 326.1] [8-s 326.5] [8-s 326.10] [8-s 326.15] [8-s 326.20] [8-s 326.25] [8-s 326.30] [8-s 326.35] [8-s 326.40] [8-s 326.45]

Threatening or carrying out reprisals against judicial officers …. Threatening or carrying out reprisals against public justice officials ….

[8-s 326.50] [8-s 326.55]

[8-s 326.1] 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 15. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 326.5] Abolition of common law offences See s 341 at [8-s 341] for certain common law offences now abolished. [8-s 326.10] Definitions “Judicial proceeding”, “judicial officer” and “public justice official” are defined in s 311 at [8-s 311]. The words “public justice official” in the section are wide enough to include a police officer: R v Orcher (1999) 48 NSWLR 273; [1999] NSWCCA 356; BC9907387; (1999) 6 Crim LN 86 [1069]. However, it was also held in that case that threats made to an arresting police officer did not come within the scope of the section because the arrest was not part of judicial proceedings and did not come within the scope of the words “in connection with” such proceedings. [8-s 326.15] Sentencing Consideration was given to the seriousness of threats made to a judicial officer for an offence under the section in Linney v R [2013] NSWCCA 251; BC201314326; 21(1) Crim LN [3313]. [page 1176]

PROOF MATERIAL ON SECTION 326 [8-s 326.20] Form of indictment [8-s 326.25] Reprisals against witnesses or jurors — s 326(1)(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, threatened to do/threatened to cause/did/caused an injury/detriment, namely [describe injury or detriment] to [name of victim] on account of [name of witness or juror], a witness/juror [describe act by witness or juror eg giving evidence against X] in a judicial proceeding, namely [describe proceeding including name and judicial forum]. [8-s 326.30] Reprisals against judicial officers — s 326(1)(b) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, threatened to do/threatened to cause/did/caused an injury/detriment, namely [describe injury or detriment] to [name of victim] on account of [name of judicial officer], a judicial officer, [describe act by judicial officer eg passing sentence on X], an act done as a judicial officer. [8-s 326.35] Reprisals against public justice officials — s 326(1)(c) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, threatened to do/threatened to cause/did/caused an injury/detriment, namely [describe injury or detriment] to [name of victim] on

account of [name of public justice official], a public justice official, [describe act by public justice official eg the prosecution of X], an act done as a public justice official in/in connection with a judicial proceeding, namely [describe proceeding including name and judicial forum]. [8-s 326.40] Elements of offence The elements of the offence are — [8-s 326.45] Threatening or carrying out reprisals against witnesses or jurors (1) The accused threatened to do or cause, did or caused an injury or detriment to a person; (2) on account of a witness or juror doing a lawful act in a judicial proceeding [8-s 311]. [8-s 326.50] Threatening or carrying out reprisals against judicial officers (1) The accused threatened to do or cause, did or caused an injury or detriment to a person; (2) on account of a judicial officer [8-s 311] doing a lawful act as a judicial officer [8-s 311]. [8-s 326.55] Threatening or carrying out reprisals against public justice officials (1) The accused threatened to do or cause, did or caused an injury or detriment to a person; (2) on account of a public justice official [8-s 311] [8-s 326.10] doing a lawful act as a public justice official in or in connection with any judicial proceeding [8-s 311].

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DIVISION 4 — PERJURY, FALSE STATEMENTS ETC [Div heading am Act 31 of 1999 s 3 and Sch 5.27, opn 7 July 1999]

[8-s 327]

Offence of perjury

327 (1) Any person who in or in connection with any judicial proceeding makes any false statement on oath concerning any matter which is material to the proceeding, knowing the statement to be false or not believing it to be true, is guilty of perjury and liable to imprisonment for 10 years. [subs (1) am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000]

(2) A statement can be considered to have been made in connection with a judicial proceeding whether or not a judicial proceeding has commenced, or ever commences, in connection with it. [page 1177] (3) The determination of whether a statement is material to a judicial proceeding that has not commenced is to be made on the basis of any judicial proceeding likely to arise in connection with the statement. (4) The question of whether any matter is material to a proceeding is a question of law. Editor’s note: For proof material on s 327, see [27-38,000] behind the “27 – Informations and Indictments” guide card in Vol 4. COMMENTARY ON SECTION 327

Summary disposal …. Perjury …. Materiality of statement …. Corroboration …. Restrictions on prosecution for perjury …. Alternative verdict …. Contradictory statements on oath …. Technical defects …. General provisions applicable …. Perjury under other Acts …. Abolition of common law offence …. Form of indictment ….

[8-s 327.1] [8-s 327.5] [8-s 327.10] [8-s 327.15] [8-s 327.20] [8-s 327.25] [8-s 327.30] [8-s 327.35] [8-s 327.40] [8-s 327.45] [8-s 327.50] [8-s 327.55]

Elements of offence …. Restrictions on prosecution …. Alternative verdict …. Special finding ….

[8-s 327.60] [8-s 327.65] [8-s 327.70] [8-s 327.75]

[8-s 327.1] 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 15. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 327.5] Perjury Section 327(1) sets out the elements of the crime of perjury. The elements are similar in certain respects to those of perjury at common law, cf Russell on Crime, 12th Edition, p 291. “Judicial proceeding” is defined in s 311 at [8-s 311]. The oath must be duly administered. As to the authority to administer oaths, see s 79 of the Interpretation Act at [29-46,425]. As to the presumption of due administration of an oath, see at [2-Sch 3] cl 17. As to the necessary averments in an indictment for perjury, see at [2-Sch 3] cl 20. Each false statement is itself a separate crime and must be charged as a separate count but a compendious false statement may be charged as a single count: R v Traino (1987) 45 SASR 473; 27 A Crim R 271; BC8700292. A statement of belief or an opinion can be the subject of perjury at common law: R v Schlesinger (1847) 10 QB 670. As to the requirement for directions as to the possibility of mistake in a trial for perjury, see R v Liristis (2004) 146 A Crim R 547; [2004] NSWCCA 287; BC200405456; (2004) 11 Crim LN 91 [1767]. [8-s 327.10] Materiality of statement In order to be perjury the statement alleged to be false must be material to the proceedings. It will be material “if it is of such a nature as in any way to affect directly or indirectly the probability of evidence to be determined by the proceeding”: R v Lewis (1914) 10 Tas LR 48. The evidence must be “not only relevant, but practically relevant. A [page 1178] statement of only remote or theoretical relevance may not be material”: R v Davies (1973) 7 SASR 375. As to materiality of evidence before a coroner, see R v Jones (NSWCCA, Lee, Roden and Newman JJ, 441/1987, June 1988, unreported, BC8801835) and [826] where it was indicated that a matter may be material notwithstanding that it does not affect the ultimate outcome of the proceedings. Evidence which goes to the credit of a witness may be material: R v Gibbons (1862) XII CCC 100; R v Overton (1843) 4 QB 83. If the statement is not material then the accused may be convicted of a false swearing, see s 329. [8-s 327.15] Corroboration To support a conviction for perjury there must be evidence which proves the falsity of the statement by at least two witnesses or by one witness who is corroborated: R v Muldoon (1870) 9 SCR (NSW) 116; R v Lineham [1921] VLR 582; 27 ALR 348. However, where there is an admission by the person that he or she committed perjury, that alone is sufficient evidence: R v Sumner [1935] VLR 197; ALR 350.

[8-s 327.20] Restrictions on prosecution for perjury Section 338 at [8-s 338] provides that a person is not to be prosecuted for perjury except by the Director of Public Prosecutions, or at the direction of the Attorney General or by any other person with leave of the judicial officer before whom the alleged perjury occurred, or in his or her absence, with the leave of the Supreme Court. No third party can prosecute for perjury without having given notice to the DPP. [8-s 327.25] Alternative verdict In a prosecution for perjury an alternative verdict can be given for false swearing: see s 329 at [8-s 329]. [8-s 327.30] Contradictory statements on oath Section 331 at [8-s 331] provides that the jury may return a special verdict of guilty where the accused made contradictory statements on oath, one of which was perjured, but the jury cannot say which one. [8-s 327.35] Technical defects Section 332 at [8-s 332] provides that the accused will not be entitled to an acquittal because of certain specified omissions, defects or informalities in the instrument in question. [8-s 327.40] General provisions applicable Section 334 at [8-s 334] provides that certain matters of procedure and form are immaterial for the purpose of a perjury prosecution. [8-s 327.45] Perjury under other Acts Section 339 at [8-s 339] provides that any false oath declared to be perjury by any Act etc is to be considered to be perjury for the purposes of the Crimes Act. [8-s 327.50] Abolition of common law offence Section 341 at [8-s 341] abolishes the common law offence of perjury.

PROOF MATERIAL ON SECTION 327 [8-s 327.55] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, in/in connection with [describe proceeding including name and judicial forum], made a false statement on oath, knowing the statement to be false/not believing it to be true, concerning a matter material to the proceedings, namely [set out brief details of the perjured statement]. [8-s 327.60] Elements of offence The elements of the offence are — (1) The accused in or in connection with a judicial proceeding [8-s 311] made a false statement [8-s 334]; (2) on oath [8-s 327.5]; (3) concerning any matter which was material to the proceeding [8-s 327.10]; (4) knowing the statement [8-s 334] to be false, or not believing it to be true. [page 1179] [8-s 327.65] Restrictions on prosecution Section 338 provides that a person is not to be prosecuted for perjury except by the Director of Public Prosecutions, or at the direction of the Attorney-General or by any other person with leave of the judicial officer before whom the alleged perjury occurred, or in his/her absence, with the leave of the Supreme Court. No third party can prosecute for perjury without

having given notice to the DPP: see s 338 at [8-s 338]. [8-s 327.70] Alternative verdict If on the trial of a person for an offence under this section the jury is not satisfied that the accused is guilty of perjury but is satisfied on the evidence that the accused is guilty of an offence under s 330 it may find the accused not guilty of the offence charged but guilty of the latter offence: see s 329 at [8-s 329]. [8-s 327.75] Special finding A jury may make a finding of a special finding under certain circumstances: see s 331 at [8-s 331].

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[8-s 328] Perjury with intent to procure conviction or acquittal 328 Any person who commits perjury intending to procure the conviction or acquittal of any person of any serious indictable offence is liable to imprisonment for 14 years. [s 328 am Act 94 of 1999 s 5 and Sch 3[45] and [70], opn 1 Jan 2000] Editor’s note: For proof material on s 328, see [27-38,050] behind the “27 – Informations and Indictments” guide card in Vol 4. COMMENTARY ON SECTION 328

Scope of section …. Restrictions on prosecutions for perjury …. Alternative verdict …. Intoxication …. Presumption of authority to administer oath …. Form of indictment …. Elements of offence …. Restrictions on prosecution …. Alternative verdict ….

[8-s 328.1] [8-s 328.5] [8-s 328.10] [8-s 328.15] [8-s 328.25] [8-s 328.30] [8-s 328.35] [8-s 328.40] [8-s 328.45]

[8-s 328.1] Scope of section As to perjury, see [8-s 327.1]. “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 the relationship between the section and s 327, see R v MacKenzie (1995) 82 A Crim R 473 at 486. [8-s 328.5] Restrictions on prosecutions for perjury see s 338 at [8-s 338]. [8-s 328.10] Alternative verdict In a prosecution for perjury an alternative verdict can be given for false swearing: s 329 at [8-s 329].

[8-s 328.15] 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 328.25] Presumption of authority to administer oath See at [2-Sch 3] clause 17.

PROOF MATERIAL ON SECTION 328 [8-s 328.30] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, in [describe proceeding including name and [page 1180] judicial forum], made a false statement on oath, knowing the statement to be false/not believing it to be true, concerning a matter material to the proceedings, namely [set out brief details of the perjured statement] with intent to procure the conviction/acquittal of [name of accused in relevant proceedings] on a charge/charges of [state short title of charge/charges]. [8-s 328.35] Elements of offence The elements of the offence are — (1) The accused in or in connection with a judicial proceeding [8-s 311] made a false statement [8-s 334]; (2) on oath [8-s 327.5]; (3) concerning any matter which was material to the proceedings [8-s 327.10]; (4) knowing the statement [8-s 334] to be false, or not believing it to be true; (5) with intent to procure the conviction or acquittal of any person of a serious indictable offence [8-s 4] [8-s 316.5]. [8-s 328.40] Restrictions on prosecution Section 338 provides that a person is not to be prosecuted for perjury except by the Director of Public Prosecutions, or at the direction of the Attorney-General or by any other person with leave of the judicial officer before whom the alleged perjury occurred, or in his/her absence, with the leave of the Supreme Court. No third party can prosecute for perjury without having given notice to the DPP: see s 338 at [8-s 338]. [8-s 328.45] Alternative verdict If on the trial of a person for an offence under this section the jury is not satisfied that the accused is guilty of perjury but is satisfied on the evidence that the accused is guilty of an offence under s 330 it may find the accused not guilty of the offence charged but guilty of the latter offence: see s 329 at [8-s 329].

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[8-s 329] Conviction for false swearing on indictment for perjury 329 If on the trial of a person for perjury the jury is not satisfied that the

accused is guilty of perjury but is satisfied on the evidence that the accused is guilty of an offence under section 330 (False statement on oath not amounting to perjury) it may find the accused not guilty of the offence charged but guilty of the latter offence and the accused is liable to punishment accordingly.

[8-s 330] False statement on oath not amounting to perjury 330 A person who makes on oath any false statement knowing the statement to be false or not believing it to be true, if it is not perjury, is liable to imprisonment for 5 years. Editor’s note: For proof material on s 330, see [27-38,100] behind the “27 – Informations and Indictments” guide card in Vol 4. COMMENTARY ON SECTION 330

Summary disposal …. Scope of the offence …. Contradictory statements on oath …. Technical defects …. General provisions applicable …. Form of indictment …. Elements of offence …. Special finding ….

[8-s 330.1] [8-s 330.5] [8-s 330.10] [8-s 330.15] [8-s 330.20] [8-s 330.25] [8-s 330.30] [8-s 330.35]

[8-s 330.1] 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 [page 1181] 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 330.5] Scope of the offence The offence is committed only where the making of a false statement would not amount to perjury. There is no requirement that the statement be material so that the offence would be committed where false evidence was given which was irrelevant to the proceedings. The prosecution would have to prove that the evidence was not material in order to prove that the offence of false swearing was committed. If there is any doubt as to the materiality of the evidence then the accused would be acquitted of perjury but be guilty of false swearing.

[8-s 330.10] Contradictory statements on oath See s 331 at [8-s 331] for special verdicts where the accused has made contradictory statements on oath. [8-s 330.15] Technical defects See s 332 at [8-s 332] for provision where certain technical defects arise. [8-s 330.20] General provisions applicable Section 334 at [8-s 334] provides that certain matters are immaterial for the purpose of a prosecution.

PROOF MATERIAL ON SECTION 330 [8-s 330.25] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, in [describe proceeding including name and judicial forum], made a false statement [set out brief details of the false statement], on oath, knowing the statement to be false/not believing it to be true. [8-s 330.30] Elements of offence The elements of the offence are — (1) The accused made, on oath [8-s 327.5]; (2) a false statement, not being perjury [8-s 327.5]; (3) knowing it to be false or not believing it to be true. [8-s 330.35] Special finding A jury may make a finding of a special finding under certain circumstances: see s 331 at [8-s 331].

____________________

[8-s 331]

Contradictory statements on oath

331 If on the trial of a person for perjury or for an offence under section 330 (False statement on oath not amounting to perjury): (a) the trier of fact is satisfied that the accused has made 2 statements on oath and one is irreconcilably in conflict with the other, and (b) the trier of fact is satisfied that one of the statements was made by the accused knowing it was false or not believing it was true but the trier of fact cannot say which statement was so made, the trier of fact may make a special finding to that effect and find the accused guilty of perjury or of an offence under section 330, as appropriate, and the accused is liable to punishment accordingly. [s 331 am Act 57 of 2007 s 3 and Sch 3[3], opn 15 Nov 2007]

[8-s 332]

Certain technical defects provided for

332 If on the trial of a person for perjury or for an offence under section 330 (False statement on oath not amounting to perjury): [page 1182] (a) any affidavit, deposition, examination or declaration offered in evidence is wrongly entitled or otherwise informal or defective, or (b) the jurat to any such instrument is informal or defective, the accused is not entitled to an acquittal because of the omission, defect or informality but the instrument (if otherwise admissible) may be given in evidence and used for all purposes of the trial.

[8-s 333]

Subornation of perjury

333 (1) A person who procures, persuades, induces or otherwise causes a person to give false testimony the giving of which is perjury is guilty of subornation of perjury and liable to imprisonment for 7 years. (2) A person who commits subornation of perjury intending to procure the conviction or acquittal of any person of any serious indictable offence is liable to imprisonment for 14 years. [subs (2) am Act 94 of 1999 s 5 and Sch 3[45] and [70], opn 1 Jan 2000] Editor’s note: For proof material on s 333, see [27-38,150] behind the “27 – Informations and Indictments” guide card. COMMENTARY ON SECTION 333

Summary disposal …. Definitions …. Intoxication …. Form of indictment …. Subornation of perjury — s 333(1) …. Subornation of perjury with intent — s 333(2) …. Elements of offence …. Subornation of perjury …. Subornation of perjury with intent ….

[8-s 333.1] [8-s 333.5] [8-s 333.10] [8-s 333.15] [8-s 333.20] [8-s 333.25] [8-s 333.30] [8-s 333.35] [8-s 333.40]

[8-s 333.1] Summary disposal Unless the person charged intended to procure the conviction or

acquittal of any person of any serious offence, an offence under s 333(1) 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 15. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 333.5] Definitions “Serious indictable offence” is defined in s 4 at [8-s 4]. 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 perjury see [8-s 327] and the annotations. [8-s 333.10] Intoxication An offence under s 333(2) 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 333 [8-s 333.15] Form of indictment [8-s 333.20] Subornation of perjury — s 333(1) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, procured/persuaded/induced/caused [name of witness] to give false testimony, being perjury in [describe proceeding including name and judicial forum]. [page 1183] [8-s 333.25] Subornation of perjury with intent — s 333(2) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, procured/persuaded/induced/caused [name of witness] to give false testimony, being perjury in [describe proceeding including name and judicial forum] with intent to procure the conviction/acquittal of [name of accused in relevant proceedings] on a charge/s of [state short title of charge/s]. [8-s 333.30] Elements of offence The elements of the offence are — [8-s 333.35] Subornation of perjury (1) The accused procured, persuaded, induced or otherwise caused a person to give false testimony [8-s 334]; (2) the giving of which was perjury [8-s 327]. [8-s 333.40] Subornation of perjury with intent (1) The accused procured, persuaded, induced or otherwise caused a person to give false testimony [8-s 334]; (2) the giving of which was perjury [8-s 327]; (3) with intent to procure the conviction or acquittal of any person of a serious indictable offence [8-s 4] [8-s 316.5].

____________________

[8-s 334] General provisions applicable to perjury and false statement offences 334 It is immaterial for the purposes of this Division: (a) whether a statement on oath is given orally or in writing, or (b) which forms and ceremonies are used in administering the oath (or otherwise binding the person giving the testimony to speak the truth) so long as the person assents to the forms and ceremonies actually used, or (c) whether (in the case of a statement made in a judicial proceeding) the judicial tribunal concerned is properly constituted or held in the proper place or not, so long as it actually acts as a judicial tribunal in the proceeding in which the statement is made, or (d) whether the person who makes the statement is a competent witness or not, or whether the statement is admissible in the proceeding or not, or (e) in the case of judicial proceedings in an arbitration, whether the law governing the arbitration agreement or the proceedings, or any other relevant law, is or is not the law of New South Wales. [s 334 am Act 31 of 1999 s 3 and Sch 5.27, opn 7 July 1999] COMMENTARY ON SECTION 334

Definitions ….

[8-s 334.1]

[8-s 334.1] Definitions “Judicial proceeding” and “judicial tribunal” are defined in s 311 at [8-s 311].

____________________

[8-s 335] False statements in evidence on commission 335 If a person, in giving any testimony (either orally or in writing) otherwise than on oath, when required to do so by an order under section 33 (Power of the Supreme Court to give effect to application for assistance) of the Evidence on Commission Act

[page 1184] 1995, makes any statement that is false in a material particular, knowing the statement to be false or not believing it to be true, is liable to imprisonment for 5 years. [s 335 am Act 27 of 1995 s 4 and Sch 1.5, opn 1 Sep 1995] Editor’s note: For proof material on s 335, see [27-38,200] behind the “27 – Informations and Indictments” guide card. COMMENTARY ON SECTION 335

Summary disposal …. Form of indictment …. Elements of offence ….

[8-s 335.1] [8-s 335.5] [8-s 335.10]

[8-s 335.1] 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 15. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267].

PROOF MATERIAL ON SECTION 335 [8-s 335.5] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, pursuant to an order made under s 33 of the Evidence on Commission Act 1995 [3-5735] by [outline why, where and by whom the order was made], in the course of giving oral or written testimony, made a statement which was false in a material particular, namely [set out briefly the false statement], he/she [name of accused] knowing the statement to be false/not believing the statement to be true. [8-s 335.10] Elements of offence The elements of the offence are — (1) The accused, in the course of giving oral or written testimony; (2) having been required to give such testimony by an order under s 33 of the Evidence on Commission Act 1995 [3-5735]; (3) made a statement [8-s 334] that was false in a material particular; (4) knowing the statement [8-s 334] to be false or not believing it to be true.

____________________

[8-s 336]

False entry on public register

336 (1) A person who for an improper purpose makes a statement for the making of an entry in any register kept by a public officer for a public

purpose, knowing the statement to be false or misleading in a material particular, is liable to imprisonment for 5 years. (2) A person who for an improper purpose makes an entry in any register kept by a public officer for a public purpose, knowing the entry to be false or misleading in a material particular, is liable to imprisonment for 5 years. Editor’s note: For proof material on s 336, see [27-38,250] behind the “27 – Informations and Indictments” guide card. COMMENTARY ON SECTION 336

Summary disposal …. Form of indictment …. Making false statement for entry on public register — s 336(1) …. Making false entry on public register — s 336(2) …. Elements of offence …. Making false statement for entry on public register …. Making false entry on public register ….

[8-s 336.1] [8-s 336.5] [8-s 336.10] [8-s 336.15] [8-s 336.20] [8-s 336.25] [8-s 336.30] [page 1185]

[8-s 336.1] 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 15. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267].

PROOF MATERIAL ON SECTION 336 [8-s 336.5] Form of indictment [8-s 336.10] Making false statement for entry on public register — s 336(1) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, for an improper purpose, namely to [describe purpose], made a statement that [outline details of the statement] for entry into a register, namely [describe register indicating by which public officer it was kept and for what public purpose], knowing the statement to be false/misleading in a material particular. [8-s 336.15] Making false entry on public register — s 336(2) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, for an improper purpose, namely to [describe purpose], made an entry into a register, namely [describe register indicating by which public officer it was kept and for what public purpose], knowing the entry to be false/misleading in a material particular.

[8-s 336.20] Elements of offence The elements of the offence are — [8-s 336.25] Making false statement for entry on public register (1) The accused, for an improper purpose, made a statement [8-s 334]; (2) for the making of an entry in a register kept by a public officer for a public purpose; (3) knowing the statement to be false or misleading in a material particular. [8-s 336.30] Making false entry on public register (1) The accused, for an improper purpose, made an entry; (2) in a register kept by a public officer for a public purpose; (3) knowing the entry to be false or misleading in a material particular.

____________________

[8-s 337] officers

False instruments issued by public

337 A public officer who, being authorised or required to issue an instrument whereby any person may be prejudicially affected, issues the instrument for an improper purpose knowing it to be false in a material particular is liable to imprisonment for 5 years. Editor’s note: For proof material on s 337, see [27-38,300] behind the “27 – Informations and Indictments” guide card. COMMENTARY ON SECTION 337

Summary disposal …. Form of indictment …. Elements of offence ….

[8-s 337.1] [8-s 337.5] [8-s 337.10]

[8-s 337.1] 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 15. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267].

PROOF MATERIAL ON SECTION 337 [8-s 337.5] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, being a public officer, namely [describe public [page 1186]

office], who was authorised/required to issue [describe type of instruments], did issue [describe subject instrument] for an improper purpose, knowing it to be false in a material particular, namely [describe false particular], whereby [name of victim] was/could have been prejudicially affected. [8-s 337.10] Elements of offence The elements of the offence are — (1) The accused was a public officer authorised or required to issue an instrument whereby any person could be prejudicially affected; and (2) issued the instrument for an improper purpose; (3) knowing it to be false in a material particular.

____________________

[8-s 338]

Restrictions on prosecutions for perjury

338 (1) A person is not to be prosecuted for perjury except: (a) by the Director of Public Prosecutions, or (b) at the direction of the Attorney General, or (c) by any other person with leave of the judicial officer who constituted the judicial tribunal before which the perjury is alleged to have been committed. (2) If it is impossible or impracticable to apply for leave to prosecute in accordance with subsection (1)(c), the prosecution may be instituted with leave of the Supreme Court. (3) A person is not to be prosecuted for perjury (except by the Director of Public Prosecutions or at the direction of the Attorney General) unless notice of the proposed prosecution has been given to the Director of Public Prosecutions. COMMENTARY ON SECTION 338

Scope of section ….

[8-s 338.1]

[8-s 338.1] Scope of section Section 338 nominates the persons who may commence or give leave to commence a prosecution for perjury. The former s 340 and 341, which permitted a direction to prosecute or grant of leave to prosecute, have been repealed. The nature of the decision to grant leave under the former 341 has been judicially considered: Commissioner of Police v Reid (1989) 16 NSWLR 453. There it was held that a judicial officer granting leave does not have to afford natural justice to the alleged perjurer by giving him notice of the application for leave. The factors that a judicial officer ought to take into account for the purposes of s 338(1)(c) were considered in Bar-Mordecai v Hillston [2003] NSWSC 1269; BC200308531 at [5], [19]–[22].

____________________

[8-s 339] Application of Division to perjury under other Acts 339 Any false oath declared by any Act to be perjury or made punishable as perjury by any Act is to be considered to be perjury for the purposes of this Act.

DIVISION 5 — MISCELLANEOUS [Div heading am Act 31 of 1999 s 3 and Sch 5.27, opn 7 July 1999]

[8-s 340]

Extent of abolition of offences

340 The offences at common law abolished by this Division are abolished for all purposes not relating to offences committed before the commencement of this Part (as substituted by the Crimes (Public Justice) Amendment Act 1990). [s 340 am Act 31 of 1999 s 3 and Sch 5.27, opn 7 July 1999]

[page 1187]

[8-s 341]

Certain common law offences abolished

341 The following offences at common law are abolished: the offence of perverting the course of justice, the offence of attempting or conspiring to pervert the course of justice, the offence of falsely accusing a person of a crime or of procuring a person to falsely accuse a person of a crime, the offence of concealing evidence so that a person is falsely accused of a crime, the offence of attempting to pervert the course of justice by assisting a person to avoid arrest, the offence of persuading a person to make a false statement to police to mislead them in their investigation,

the offence of procuring a person to make a false accusation, the offence of misprision of felony, the offence of compounding a felony, the offence of dissuading, intimidating or preventing, or attempting to dissuade, intimidate or prevent, a person who is bound to give evidence in a criminal matter from doing so, the offence of using threats or persuasion to witnesses to induce them not to appear or give evidence in courts of justice, the offence of perjury, the offence of embracery (attempting to corrupt, influence or instruct a jury or to induce a jury to favour one side more than the other), personating a juror.

[8-s 342]

Certain conspiracy offences not affected

342 The abolition of the common law offence of conspiring to pervert the course of justice does not prevent a prosecution for an offence of conspiring to commit an offence against this Part.

[8-s 343] Certain common law offences not abolished 343 To remove any doubt, it is declared that the following offences at common law are not abolished by this Division: (a) the offence of escaping from lawful custody, (b) the offence of assisting a person to escape from lawful custody, (c) the offence of refusing to assist a peace officer in the execution of his or her duty in preventing a breach of the peace. [s 343 am Act 31 of 1999 s 3 and Sch 5.27, opn 7 July 1999]

[8-s 343A]

Saving of other punishments

343A Nothing in this Part prevents or affects any other punishment, or any forfeiture, provided under any Act.

PART 8 — UNLAWFUL GAMBLING [Repealed] [Pt 8 rep Act 38 of 2007 s 3 and Sch 2[23], opn 27 Sep 2007]

[page 1188]

PART 8A — ATTEMPTS [Pt 8A insrt Act 50 of 1974 s 7]

[8-s 344A]

Attempts

344A (1) Subject to this Act, any person who attempts to commit any offence for which a penalty is provided under this Act shall be liable to that penalty. (2) Where a person is convicted of an attempt to commit an offence and the offence concerned is a serious indictable offence the person shall be deemed to have been convicted of a serious indictable offence. [subs (2) 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[29], opn 1 Jan 2000] COMMENTARY ON SECTION 344A

Summary disposal of certain indictable offences …. Verdict of attempt ….

[8-s 344A.1] [8-s 344A.5]

[8-s 344A.1] Summary disposal of certain indictable offences An attempt to commit an offence under Table 1 of the Criminal Procedure Act 1986 (see Sch 1 to that Act at [2-Sch 1]) is itself a Table 1 offence which shall be dealt with summarily by a Local Court unless an election is made for trial on indictment, see s 260 Criminal Procedure Act 1986 at [2-s 260]. Similarly, an attempt to commit an offence under Table 2 of the Criminal Procedure Act 1986 (see Sch 1 to that Act at [2-Sch 1]) is itself a Table 2 offence which shall be dealt with summarily by a Local Court unless an election is made for trial on indictment by the prosecutor, see s 260 Criminal Procedure Act 1986 at [2-s 260]. [8-s 344A.5] Verdict of attempt On trial for any indictable offence, the accused can be acquitted of the offence charged and be found guilty of an attempt, or of an assault with intent to commit the offence charged: see Criminal Procedure Act 1986 s 162 at [2-s 262]. As to the nature of an attempt see Criminal Responsibility at [6-500].

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PART 9 — ABETTORS AND ACCESSORIES [8-s 345] Principals in the second degree — how tried and punished 345 Every principal in the second degree in any serious indictable offence shall be liable to the same punishment to which the person would have been liable had the person been the principal in the first degree. [s 345 am Act 58 of 1985 Sch 1(3); am Act 94 of 1999 s 5 and Sch 3[46], opn 1 Jan 2000; Act 57 of 2007 s 3 and Sch 3[4], opn 15 Nov 2007] COMMENTARY ON SECTION 345

Serious indictable offence …. Principal in the second degree ….

[8-s 345.1] [8-s 345.5]

[8-s 345.1] Serious indictable offence “Serious indictable offence” is defined by s 4 to mean an indictable offence that is punishable by imprisonment for life or a term of 5 years or more. [8-s 345.5] Principal in the second degree As to principals in the first and second degree, see “6 – Criminal Responsibility” at [6-001]–[6-005].

____________________ [page 1189]

[8-s 346] Accessories before the fact — how tried and punished 346 Every accessory before the fact to a serious indictable offence may be indicted, convicted, and sentenced, either before or after the trial of the principal offender, or together with the principal offender, or indicted, convicted, and sentenced, as a principal in the offence, and shall be liable in either case to the same punishment to which the person would have been liable had the person been the principal offender, whether the principal offender has been tried or not, or is amenable to justice or not. [s 346 am Act 94 of 1999 s 5 and Sch 3[47]–[50], opn 1 Jan 2000; Act 57 of 2007 s 3 and Sch 3[5], opn 15 Nov 2007]

COMMENTARY ON SECTION 346

Summary disposal …. Serious indictable offence …. Accessory before the fact ….

[8-s 346.1] [8-s 346.5] [8-s 346.10]

[8-s 346.1] 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 5 cl 27. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 346.5] Serious indictable offence “Serious indictable offence” is defined by s 4 to mean an indictable offence that is punishable by imprisonment for life of for a term of 5 years or more. [8-s 346.10] Accessory before the fact As to accessory before the fact, see “6 – Criminal Responsibility” at [6-100].

____________________

[8-s 347] Accessories after the fact — how tried and punished 347 Every accessory after the fact to a serious indictable offence may be indicted, convicted, and sentenced as such accessory, either before, or together with, or after the trial of the principal offender, whether the principal offender has been previously tried or not, or is amenable to justice or not. [s 347 am Act 94 of 1999 s 5 and Sch 3[51]–[53], opn 1 Jan 2000] COMMENTARY ON SECTION 347

Summary disposal …. Serious indictable offence …. Accessory after the fact …. Misprision of felony ….

[8-s 347.1] [8-s 347.5] [8-s 347.10] [8-s 347.15]

[8-s 347.1] 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 5 cl 27. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 347.5] Serious indictable offence “Serious indictable offence” is defined by s 4 to mean an indictable offence that is punishable by imprisonment for life of for a term of 5 years or more. [8-s 347.10] Accessory after the fact As to accessory after the fact see Criminal Responsibility at [6105].

[page 1190] [8-s 347.15] Misprision of felony The common law offence of misprision of felony has been abolished: see s 341 [8-s 341]. There is a statutory offence of concealing a serious offence for benefit: see s 316 [8-s 316].

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[8-s 347A] Wife may be accessory after fact to husband’s felony 347A (1) The common law rule granting immunity to a wife against prosecution as an accessory after the fact to a felony committed by her husband is abolished. (2) This section does not apply in respect of any act of, or omission by, a wife if the act or omission occurred before the commencement of this section. [s 347A insrt Act 53 of 1998 s 5 and Sch 3, opn 31 July 1998]

[8-s 348] Punishment of accessories after the fact to certain treason-related offences 348 Every accessory after the fact to an offence under section 12 shall be liable to imprisonment for two years. [s 348 am Act 94 of 1999 s 5 and Sch 3[54], opn 1 Jan 2000]

[8-s 349] Punishment of accessories after the fact to murder etc 349 (1) Every accessory after the fact to murder shall be liable to imprisonment for 25 years. [subs (1) am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000]

(2) Every accessory after the fact to the crime of robbery with arms or in company with one or more person or persons, or the crime of kidnapping referred to in section 86, shall be liable to imprisonment for fourteen years. [subs (2) am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000; Act 84 of 2001 s 3 and Sch 1[14], opn 14 Dec 2001; Act 53 of 2002 s 3 and Sch 2.10[1], opn 4 July 2002] COMMENTARY ON SECTION 349

[8-s 349.1] [8-s 349.5]

Definitions …. Sentencing …. [8-s 349.1] Definitions As to “murder”, see s 18 at [8-s 18]. As to “robbery in arms or company”, see s 97 at [8-s 97].

[8-s 349.5] Sentencing In sentencing for the offence of being accessory after the fact to murder the sentencing judge, when determining the extent of the offender’s criminality, can only take into account that assistance which helps the principal offender to evade justice: R v Dileski (2002) 132 A Crim R 408; [2002] NSWCCA 345; BC200204700; (2002) 9 Crim LN 70 [1473].

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[8-s 350] Punishment of accessories after the fact to other serious indictable offences 350 An accessory after the fact to any other serious indictable offence is liable to imprisonment for 5 years, except where otherwise specifically enacted. [s 350 subst Act 94 of 1999 s 5 and Sch 3[55], opn 1 Jan 2000]

[page 1191]

[8-s 351] Trial and punishment of abettors of minor indictable offences 351 Any person who aids, abets, counsels, or procures, the commission of a minor indictable offence, whether the same is an offence at Common Law or by any statute, may be proceeded against and convicted together with or before or after the conviction of the principal offender and may be indicted, convicted, and punished as a principal offender. [s 351 am Act 50 of 1974 s 7; am Act 94 of 1999 s 5 and Sch 3[42] and [56], opn 1 Jan 2000; Act 121 of 2001 s 4 and Sch 2.72[6], opn 7 July 2003] COMMENTARY ON SECTION 351

Summary disposal …. Minor indictable offence …. Aiding and Abetting ….

[8-s 351.1] [8-s 351.5] [8-s 351.10]

Form of indictment ….

[8-s 351.15]

[8-s 351.1] 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 5 cl 28. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267]. [8-s 351.5] Minor indictable offence “Minor indictable offence” is defined by s 4 to mean an indictable offence that is not a serious indictable offence, that is, an offence which is punishable by imprisonment for a term of less than 5 years. [8-s 351.10] Aiding and Abetting See generally Criminal Responsibility at [6–110]. [8-s 351.15] Form of indictment Although the section provides that an accessory may be indicted as a principal, it is usually preferable to charge the accessory as such: Giorgianni v R (1985) 156 CLR 473 at 497; 58 ALR 641; BC8501134; R v Lanteri (1985) 4 NSWLR 359; R v Browne (1987) 30 A Crim R 278; BC8700895; R v Buckett (1995) 132 ALR 669; 79 A Crim R 303; BC9504678.

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[8-s 351A] Recruiting persons to engage in criminal activity 351A (1) A person (not being a child) who recruits another person to carry out or assist in carrying out a criminal activity is guilty of an offence. Maximum penalty: Imprisonment for 7 years. (2) A person (not being a child) who recruits a child to carry out or assist in carrying out a criminal activity is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (3) In this section: child means a person under the age of 18 years. criminal activity means conduct that constitutes a serious indictable offence. recruit means counsel, procure, solicit, incite or induce. [s 351A subst Act 61 of 2006 s 3 and Sch 1[17], opn 15 Dec 2006] Editor’s note: For proof material on s 351A, see [27-38,700] behind the “27 – Informations and Indictments” guide card in Vol 4.

[page 1192]

COMMENTARY ON SECTION 351A

Summary disposal …. Form of indictment …. Recruiting a person to engage in criminal activity — s 351A(1) …. Recruiting a child to engage in criminal activity — s 351A(2) …. Elements of offence …. Recruiting a person to engage in criminal activity — s 351A(1) …. Recruiting a child to engage in criminal activity — s 351A(2) ….

[8-s 351A.1] [8-s 351A.5] [8-s 351A.10] [8-s 351A.15] [8-s 351A.20] [8-s 351A.25] [8-s 351A.30]

[8-s 351A.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 15A. The maximum penalty which can be imposed is 2 years imprisonment: see at [2-s 267].

PROOF MATERIAL ON SECTION 351A [8-s 351A.5] Form of indictment [8-s 351A.10] Recruiting a person to engage in criminal activity — s 351A(1) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales recruited [name of child], a child, to carry out/assist in carrying out a criminal activity, namely [outline criminal activity]. [8-s 351A.15] Recruiting a child to engage in criminal activity — s 351A(2) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales recruited [name of child], a child, to carry out/assist in carrying out a criminal activity, namely [outline criminal activity]. [8-s 351A.20] Elements of offence The elements of the offence are — [8-s 351A.25] Recruiting a person to engage in criminal activity — s 351A(1) (1) The accused counseled, procured, solicited, incited or induced another person; (2) to carry out or assist in carrying out a criminal activity [8-s 351A(2)]. (3) the criminal activity constitutes a serious indictable offence [8-s 351A(3)]. [8-s 351A.30] Recruiting a child to engage in criminal activity — s 351A(2) (1) The accused, not being a child, counseled, procured, solicited, incited or induced a child [8-s 351A(2)]; (2) to carry out or assist in carrying out a criminal activity [8-s 351A(2)]. (3) the criminal activity constitutes a serious indictable offence [8-s 351A(3)].

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[8-s 351B] principals

Aiders and abettors punishable as

351B (1) Every person who aids, abets, counsels or procures the commission of any offence punishable on summary conviction may be proceeded against and convicted together with or before or after the conviction of the principal offender. (2) On conviction any such person is liable to the penalty and punishment to which the person would have been liable had the person been the principal offender. [subs (2) am Act 57 of 2007 s 3 and Sch 3[6], opn 15 Nov 2007]

(3) This section applies to offences committed before or after the commencement of this section. (4) This section applies to an indictable offence that is being dealt with summarily. [s 351B insrt Act 121 of 2001 s 4 and Sch 2.72[7], opn 7 July 2003]

[page 1193] COMMENTARY ON SECTION 351B

Effect of section …. Abettors and accessories …. Mental element ….

[8-s 351B.1] [8-s 351B.5] [8-s 351B.10]

[8-s 351B.1] Effect of section The effect of s 351B is to assimilate aiders and abettors to principal offenders, so that they may be charged and convicted as having committed the offence as principal offenders. However, if a person is so charged and acquitted he cannot be subsequently charged and convicted as an aider and abettor, and may plead autrefois acquit: Ex parte Homer; Re McElligott (1933) 50 WN (NSW) 158. [8-s 351B.5] Abettors and accessories See [6-110] as to aiding and abetting. See also principals in second degree at [6-005] and [8-s 345], accessories before the fact at [6-100] and [8-s 346], and accessories after the fact at [6-105] and [8-s 347]. The doctrine of common purpose applies to aiders and abettors: Johns v R (1980) 143 CLR 108; 28 ALR 155; BC8000061. A person cannot be convicted of aiding and abetting an offence unless the offence has been committed: Walsh v Sainsbury (1925) 36 CLR 464; [1925] ALR 343; BC2500023; R v Goldie; Ex parte Picklum (1937) 59 CLR 254; [1938] ALR 25; BC3800037. However, where the

principal is relieved of criminal responsibility for some special reason (eg diplomatic immunity) then the person aiding and abetting may still be convicted: R v Bourne (1952) 36 Cr App Rep 125. But in Cain v Douglas (1946) 72 CLR 409; [1946] ALR 490; BC4600012 it was held that a person could not aid and abet an offence by the Commonwealth which itself could not be guilty under the legislation. Notwithstanding that the principal incurs no criminal liability a person who aids and abets may be guilty on the basis of the doctrine of innocent agency so that the aider is treated as a constructive principal: White v Ridley (1978) 140 CLR 342; 21 ALR 661; BC7800071; R v Cogan [1976] QB 217; [1975] 2 All ER 1059. [8-s 351B.10] Mental element The general principle is that a person is not guilty of aiding, abetting, counselling, or procuring unless he had actual knowledge of all essential matters which make the act done a crime. It cannot be said that where a statutory offence requires no proof of intent, actual knowledge of all the essential facts of the offence is unnecessary to secondary participation in its commission. Such knowledge is essential to intent as an ingredient of aiding, abetting, counselling or procuring: Giorgianni v R (1985) 156 CLR 473; 58 ALR 641; BC8501134. See also Von Lieven v Stewart (1990) 21 NSWLR 52; 3 ACSR 118 as to aiding and abetting companies.

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PARTS 10–10B — [Repealed] [Pt 10 rep Act 128 of 2006 s 6 and Sch 4.1[1], opn 12 Dec 2006; Pt 10A rep Act 103 of 2002 s 240 and Sch 4.16[3], opn 1 Dec 2005; Pt 10B rep Act 38 of 2007 s 3 and Sch 2[24], opn 27 Sep 2007] Editor’s note: Part 10 of the Crimes Act was repealed by the Police Powers Legislation Amendment Act 2006 No 128; assented to 12 December 2006 and operational on assent.

Sections 353AC, AD, AE were transferred to the Law Enforcement (Powers and Responsibilities) Act 2002 as sections 138A, 138B and 138C respectively. Section 353C was transferred to the same Act as s 104A. Section 353B was renumbered as s 547D in Div 2 of Pt 14A of the Crimes Act 1900.

PART 11 — CRIMINAL RESPONSIBILITY — DEFENCES [Heading subst Act 116 of 2001 s 3 and Sch 1[2], opn 22 Feb 2002]

DIVISION 1 — [Repealed]

[Heading rep Act 38 of 2007 s 3 and Sch 2[25], opn 27 Sep 2007]

[page 1194] 359–416 [ss 359–375 rep Act 94 of 1999 s 5 and Sch 3, opn 1 Jan 2000] [ss 376–377 rep Act 31 of 1951 s 2] [s 378 rep Act 94 of 1999 s 5 and Sch 3[12], opn 1 Jan 2000] [ss 379–380 rep Act 42 of 1981 Sch 1(13)] [ss 381–396 rep Act 94 of 1999 s 5 and Sch 3[12], opn 1 Jan 2000] [ss 397–398 rep Act 31 of 1951 s 2] [ss 399–400 rep Act 94 of 1999 s 5 and Sch 3[12], opn 1 Jan 2000] [s 401 rep Act 31 of 1951 s 3] [ss 402–403 rep Act 94 of 1999 s 5 and Sch 3[12], opn 1 Jan 2000] [s 404 rep Act 27 of 1995 s 4 and Sch 1.5, opn 1 Sep 1995] [ss 404A–405B rep Act 94 of 1999 s 5 and Sch 3[12], opn 1 Jan 2000] [ss 405C–405FA rep Act 143 of 1997 s 33 and Sch 1.2[1], opn 1 Aug 1999] [s 405G rep Act 17 of 1991] [s 405H–I rep 143 of 1997 s 33 and Sch 1.2[1], opn 1 Aug 1999] [s 406 rep Act 94 of 1999 s 5 and Sch 3[12], opn 1 Jan 2000] [s 407 rep Act 27 of 1995 s 4 and Sch 1.5, opn 1 Sep 1995] [s 407AA rep Act 94 of 1999 s 5 and Sch 3[12], opn 1 Jan 2000] [s 407A rep Act 38 of 2007 s 3 and Sch 2[26], opn 27 Sep 2007] [s 408 rep Act 27 of 1995 s 4 and Sch 1.5, opn 1 Sep 1995] [ss 409–409B rep Act 94 of 1999 s 5 and Sch 3[14], opn 1 Jan 2000] [s 409C rep Act 26 of 1994 s 3 and Sch 1(4), opn 10 June 1994] [s 410 rep Act 27 of 1995 s 4 and Sch 1.5, opn 1 Sep 1995] [s 411 rep Act 94 of 1999 s 5 and Sch 3[14], opn 1 Jan 2000] [ss 412–413C rep Act 27 of 1995 s 4 and Sch 1.5, opn 1 Sep 1995] [ss 414–414B rep Act 94 of 1999 s 5 and Sch 3[14], opn 1 Jan 2000] [ss 415 and 416 rep Act 27 of 1995 s 4 and Sch 1.5, opn 1 Sep 1995] Editor’s note: ss 360, 360A(2), 360A(3), 361–368, 370–375, 381, 383–396, 399–400, 403, 404A– 405B, 406, 407AA, 409–409B, 411, 414–414B were repealed by s 5 and Sch 3 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. They were replaced in the following manner:

s 360 was transferred to the Criminal Procedure Act 1986: see s 16. s 360A(2) was transferred to the Criminal Procedure Act 1986: see s 10(1). s 360A(3) was transferred to the Criminal Procedure Act 1986: see s 10. s 361 was transferred to the Criminal Procedure Act 1986: see s 13.

s 362 was transferred to the Criminal Procedure Act 1986: see s 17. s 363 was transferred to the Criminal Procedure Act 1986: see s 18. s 364 was transferred to the Criminal Procedure Act 1986: see s 19. s 365 was transferred to the Criminal Procedure Act 1986: see s 21. s 366 was transferred to the Criminal Procedure Act 1986: see s 22. s 367 was transferred to the Criminal Procedure Act 1986: see s 22. s 368 was transferred to the Criminal Procedure Act 1986: see s 22. s 370 was transferred to the Criminal Procedure Act 1986: see s 23. s 371 was transferred to the Criminal Procedure Act 1986: see s 24. s 372 was transferred to the Criminal Procedure Act 1986: see s 25. s 373 was transferred to the Criminal Procedure Act 1986: see Sch cl 15. s 374 was transferred to the Criminal Procedure Act 1986: see s 26. s 375 was transferred to the Criminal Procedure Act 1986: see Sch cl 13. s 381 was transferred to the Criminal Procedure Act 1986: see Sch cl 14. s 382 was transferred to the Criminal Procedure Act 1986: see Sch cl 16. s 383 was transferred to the Criminal Procedure Act 1986: see Sch cl 15. s 384 was transferred to the Criminal Procedure Act 1986: see Sch cl 7. s 385 was transferred to the Criminal Procedure Act 1986: see Sch cl 8. s 386 was transferred to the Criminal Procedure Act 1986: see Sch cl 9. s 387 was transferred to the Criminal Procedure Act 1986: see Sch cl 10.

3

3 3 3 3 3 3 3 3

[page 1195] s 388 was transferred to the Criminal Procedure Act 1986: see Sch 3 cl 11.

s 389 was transferred to the Criminal Procedure Act 1986: see Sch 3 cl 12. s 390 was transferred to the Criminal Procedure Act 1986: see Sch 3 cl 18. s 391 was transferred to the Criminal Procedure Act 1986: see Sch 3 cl 19. s 392 was transferred to the Criminal Procedure Act 1986: see Sch 3 cl 20. s 393 was transferred to the Criminal Procedure Act 1986: see Sch 3 cl 21. s 394 was transferred to the Criminal Procedure Act 1986: see s 152. s 394A was transferred to the Criminal Procedure Act 1986: see s 153. s 395 was transferred to the Criminal Procedure Act 1986: see s 154. s 396 was transferred to the Criminal Procedure Act 1986: see s 155. s 399 was transferred to the Criminal Procedure Act 1986: see s 156. s 399A was transferred to the Criminal Procedure Act 1986: see s 157. s 400 was transferred to the Criminal Procedure Act 1986: see s 34. s 403 was transferred to the Criminal Procedure Act 1986: see s 35. s 404A was transferred to the Criminal Procedure Act 1986: see s 31. s 405 was transferred to the Criminal Procedure Act 1986: see s 159 and s 160. s 405AA was transferred to the Criminal Procedure Act 1986: see s 161. s 405A was transferred to the Criminal Procedure Act 1986: see s 150. s 405AB was transferred to the Criminal Procedure Act 1986: see s 151. s 405B was transferred to the Criminal Procedure Act 1986: see s 294. s 406 was transferred to the Criminal Procedure Act 1986: see s 284. s 407AA was transferred to the Criminal Procedure Act 1986: see s 279. s 409 was transferred to the Criminal Procedure Act 1986: see ss

285–289. s 409A was transferred to the Justices Act 1902: see s 41AA. s 409B was transferred to the Criminal Procedure Act 1986: see s 293. s 411 was transferred to the Criminal Procedure Act 1986: see s 278. s 414 was transferred to the Criminal Procedure Act 1986: see s 152. s 414A was transferred to the Criminal Procedure Act 1986: see s 282 and s 283. s 414B was transferred to the Criminal Procedure Act 1986: see s 276.

DIVISION 2 — LAWFUL AUTHORITY OR EXCUSE [Heading insrt Act 116 of 2001 s 3 and Sch 1[3], opn 22 Feb 2002]

[8-s 417]

Proof of lawful authority or excuse

417 Wherever, by this Act, doing a particular act or having a specified article or thing in possession without lawful authority or excuse, is made or expressed to be an offence, the proof of such authority or excuse shall lie on the accused. COMMENTARY ON SECTION 417

Lawful authority or excuse ….

[8-s 417.1]

[8-s 417.1] Lawful authority or excuse “Lawful excuse” is an expression of wider import than “lawful authority” and cannot be defined as each case depends on its facts. However, a “lawful excuse” may be proved though there is no “lawful authority”: Wong Pooh Yin v Public Prosecutor [1955] AC 93. For an examination of the terms “lawful purpose” and “reasonable excuse”, see Taikato v R (1996) 186 CLR 454; 139 ALR 386; [1996] HCA 28; BC9604824.

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[8-s 417A]

Proof of exceptions

417A (1) Any exception, exemption, proviso, excuse or qualification to the offence (whether or not it is in the same provision with a description of an offence in an Act or statutory rule or document creating the offence) need not

be specified or negatived in an indictment or other process commencing proceedings. [page 1196] (2) The exception, exemption, proviso, excuse or qualification may be proved by the accused person. (3) If the exception, exemption, proviso, excuse or qualification is specified or negatived in the indictment, court attendance notice or other process commencing proceedings, the prosecutor is not required to prove it. [s 417A insrt Act 121 of 2001 s 4 and Sch 2.72[22], opn 7 July 2003] COMMENTARY ON SECTION 417A

Exceptions etc ….

[8-s 417A.1]

[8-s 417A.1] Exceptions etc Where a statutory provision contains an exception difficulties arise in deciding whether the exception falls within the provisions of s 417A or alternatively forms part of the offence and is therefore an ingredient, the onus of proof of which lies with the prosecution. In Ex parte Ferguson; Re Alexander (1945) 45 SR (NSW) 64; 62 WN (NSW) 15 at 45 SR (NSW) 66–7 Jordan CJ described the rule of construction as follows: If the offence were defined as consisting of a single concatenation of facts all were regarded as necessary ingredients of the offence, whether they were positive or negative in their nature; but, if the definition were twofold, in the sense that after a definition of the offence there was a distinct and separate provision exempting from liability in a certain event, only the first part was regarded as defining the ingredients of the offence and the second was regarded as a matter of confession and avoidance available by way of a defence. In Vines v Djordjevitch (1955) 91 CLR 512 at 519; [1955] ALR 431; BC5500500 the court held that the prime consideration was the intention to be ascribed to the legislature: When an enactment is stating the ground of some liability that it is imposing or conditions giving rise to some right it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualification exceptions or provisos and it may employ negative as well as positive expressions. On the other hand it may be the purpose of the enactment to lay down some principle of liability which it means to apply generally and then provide for some special ground of excuse, justification or exception depending upon new or additional facts. In Ex parte Wimborne (RJ) Pty Ltd; Re Beale [1958] SR (NSW) 353; 75 WN (NSW) 372 it was held that the Electricity Development Act 1945 s 22(1), “A person shall not undertake or carry out any electrical wiring work unless he is licensed as prescribed, or unless he is in the employment of and carries out such work under the personal supervision of a person so licensed”, imposed an onus on the defence to prove its licence. In R v Garnet-Thomas [1974] 1 NSWLR 702, where s 4A(2)(a) of the Traffic Act provided, inter alia, the length of a public street shall be deemed to be a public street in a built up area if there is a provision for lighting unless a direction that it shall be deemed not to be a

public street in a built up area is in force, it was held that it was necessary for the prosecution to prove that there was no such direction and the absence of such evidence was fatal to a prosecution. See also Francis v Flood [1978] 1 NSWLR 113; Phillips v Cassar [1979] 2 NSWLR 340 and Lynch v Attwood (1983) 3 NSWLR 1.

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DIVISION 3 — SELF-DEFENCE [Div 3 insrt Act 116 of 2001 s 3 and Sch 1[4], opn 22 Feb 2002]

[8-s 418]

Self-defence — when available

418 (1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. [page 1197] (2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary: (a) to defend himself or herself or another person, or (b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or (c) to protect property from unlawful taking, destruction, damage or interference, or (d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them. COMMENTARY ON SECTION 418

Self-defence — statutory test …. Common law principles …. Self-defence — evidentiary matters ….

[8-s 418.1] [8-s 418.5] [8-s 418.10]

[8-s 418.1] Self-defence — statutory test This Division applies to an offence if proceedings for the offence (other than committal proceedings) were instituted after the commencement of the Division, as

to which see 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. The Home Invasion (Occupants Protection) Act 1998 and the Workplace (Occupants Protection) Act 2001 were repealed on 22 February 2002. As to a consideration of self-defence under the first of those Acts, see R v Munro (2001) 51 NSWLR 540; [2001] NSWCCA 187; BC200102436; (2001) 8 Crim LN 41 [1291]. Section 418 does not represent the common law as stated in Zecevic v DPP (Vic) (1987) 162 CLR 645; 71 ALR 641; BC8701784 and the questions now to be considered by the jury when self-defence is raised are: (i) is there a reasonable possibility that the accused believed that his or her conduct was necessary in order to defend himself or herself; and (ii) if there was, is there also a reasonable possibility that what the accused did was a reasonable response to the circumstances as he or she perceived them?: R v Katarzynski [2002] NSWSC 613; BC200203724; (2002) 9 Crim LN 54 [1445]. It was also held that the first question is determined from a completely subjective point of view considering all the personal characteristics of the accused at the time he or she carried out the conduct. The second question is determined by an entirely objective assessment of the proportionality of the accused’s response to the situation the accused subjectively believed he or she faced. The Crown would negative self-defence if it proves beyond reasonable doubt either: (a) that the accused did not genuinely believe that it was necessary to act as he or she did in his or her own defence; or (b) that what the accused did was not a reasonable response to the danger, as he or she perceived it to be. The relevance of self-induced intoxication to self-defence was also considered in R v Katarzynski, above, where it was held that the law as stated in R v Conlon (1993) 69 A Crim R 92; (1995) 19 Crim LJ 44 did not apply to the section. Intoxication is relevant to the first question to be determined by the jury, that is whether it is reasonably possible that the accused believed it was necessary to do what was done in self-defence, but not to the second question, being whether the response was reasonable. A claim of self-defence was not open to anti-war protesters who painted “no war” on the roof of the Sydney Opera House: R v Burgess (2005) 152 A Crim R 100; [2005] NSWCCA 52; BC200500489; (2005) 12 Crim LN 14 [1822] as there was insufficient connection between the [page 1198] conduct of the government and the actions of the offenders such that it could be concluded that their actions were a reasonable response to the conduct of the government in authorising military action. The obligation of a judge to raise self-defence for the jury’s consideration was discussed in Douglas v R [2005] NSWCCA 419; BC200511150; (2006) 13 Crim LN 151 [2001] where it was held that there must be a real evidentiary basis for the issue to be raised and the judge was not required to leave the issue where the accused denied the conduct alleged against him and the issue was not raised in any meaningful way. [8-s 418.5] Common law principles See [8-s 58.20], [8-s 58.25] and [8-s 58.27] for common law principles concerning self-defence, defence of other persons and defence of property with respect to cases to which Div 3 of Pt 11 (ss 418–423) has no application. [8-s 418.10] Self-defence — evidentiary matters See at [8–s 58.29].

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[8-s 419]

Self-defence — onus of proof

419 In any criminal proceedings in which the application of this Division is raised, the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self-defence.

[8-s 420] Self-defence — not available if death inflicted to protect property or trespass to property 420 This Division does not apply if the person uses force that involves the intentional or reckless infliction of death only: (a) to protect property, or (b) to prevent criminal trespass or to remove a person committing criminal trespass. COMMENTARY ON SECTION 420

Scope of the section ….

[8-s 420.1]

[8-s 420.1] Scope of the section The section is a limitation upon the availability of the Division to conduct by an accused person in defence of property or to prevent or remove a trespasser, so that a person cannot rely upon the defence where the person has acted with an intent to kill or with reckless indifference to human life. It should be noted that the words in the section “uses force that involves the intentional or reckless infliction of death only” also appear in s 421 in relation to excessive self-defence on a charge of murder.

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[8-s 421] Self-defence — excessive force that inflicts death 421 (1) This section applies if: (a) the person uses force that involves the infliction of death, and (b) the conduct is not a reasonable response in the circumstances as he or she perceives them, but the person believes the conduct is necessary: (c) to defend himself or herself or another person, or (d) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person.

[subs (1) am Act 130 of 2002 s 3 and Sch 4[6], opn 13 Jan 2003]

[page 1199] (2) The person is not criminally responsible for murder but, on a trial for murder, the person is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter. COMMENTARY ON SECTION 421

Manslaughter by reason of excessive self-defence ….

[8-s 421.1]

[8-s 421.1] Manslaughter by reason of excessive self-defence The section provides that where a person is charged with the offence of murder and a jury believes that there is a reasonable possibility that the accused was acting in self-defence, but is satisfied beyond reasonable doubt that the accused’s conduct was unreasonable because it was excessive or for any other reason, the jury is to find the accused not guilty of murder but guilty of manslaughter.

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[8-s 422] conduct

Self-defence — response to lawful

422 This Division is not excluded merely because: (a) the conduct to which the person responds is lawful, or (b) the other person carrying out the conduct to which the person responds is not criminally responsible for it.

[8-s 423]

Offences to which Division applies

423 (1) This Division applies to offences committed before or after the commencement of this Division, except as provided by this section. (2) This Division does not apply to an offence if proceedings for the offence (other than committal proceedings) were instituted before the commencement of this Division. 423A–428 [ss 423A–427 rep Act 94 of 1999 s 5 and Sch 3, opn 1 Jan 2000] [s 428 rep Act 16 of 1912 s 23, opn 16 Apr 1912] Editor’s note: ss 423A–427 were repealed by Act 94 of 1999:

Section 423A was transferred see s 164. Section 424 was transferred to s 42. Section 424A was transferred see s 281. Section 426 was transferred to s 163. Section 427 was transferred to s 162.

to the Criminal Procedure Act 1986: the Criminal Procedure Act 1986: see to the Criminal Procedure Act 1986: the Criminal Procedure Act 1986: see the Criminal Procedure Act 1986: see

PART 11A — INTOXICATION [Pt 11A insrt Act 6 of 1996 s 3 and Sch 1.2, opn 16 Aug 1996]

[8-s 428A]

Definitions

428A In this Part: drug includes a drug within the meaning of the Drug Misuse and Trafficking Act 1985 and a poison, restricted substance or drug of addiction within the meaning of the Poisons and Therapeutic Goods Act 1966. [def am Act 106 of 2009 Sch 2, opn 8 Jan 2010]

intoxication means intoxication because of the influence of alcohol, a drug or any other substance. offence includes an attempt to commit the offence. [page 1200] offence of specific intent is defined in section 428B. relevant conduct means an act or omission necessary to constitute the actus reus of an offence. self-induced intoxication means any intoxication except intoxication that:

(a) is involuntary, or (b) results from fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force, or (c) results from the administration of a drug for which a prescription is required in accordance with the prescription of a medical practitioner, a registered nurse whose registration is endorsed under the Health Practitioner Regulation National Law as being qualified to practise as a nurse practitioner, a registered midwife whose registration is endorsed under the Health Practitioner Regulation National Law as being qualified to practise as a midwife practitioner, or dentist, or of a drug for which no prescription is required administered for the purpose, and in accordance with the dosage level recommended, in the manufacturer’s instructions. [def am Act 34 of 2010 Sch 2, opn 1 July 2010] [s 428A insrt Act 6 of 1996 s 3 and Sch 1.2, opn 16 Aug 1996; am Act 102 of 1998 s 5 and Sch 3.2, opn 29 Oct 1999; Act 45 of 2003 s 4 and Sch 2.1[3], opn 1 Aug 2004] COMMENTARY ON SECTION 428A

Self-induced intoxication ….

[8-s 428A.1]

[8-s 428A.1] Self-induced intoxication A provision similar to s 428A was considered in Hadba v R (2004) 182 FLR 472; 146 A Crim R 291; BC200404608 where it was held that the section is not concerned with the voluntary consumption of alcohol and drugs per se, but it is the cause of the intoxication that is decisive, and in determining that matter a “common sense” approach is to be adopted to the issue of causation. The case provides comments upon how that issue is to be resolved.

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[8-s 428B] Offences of specific intent to which Part applies 428B (1) An offence of specific intent is an offence of which an intention to cause a specific result is an element. (2) Without limiting the generality of subsection (1), the offences referred to in the Table to this section are examples of offences of specific intent. TABLE (a) an offence under the following provisions of this Act: 19A Murder 27 Acts done to the person with intent to murder 28 Acts done to property with intent to murder 29 Certain other attempts to murder 30 Attempts to murder by other means 33 Wounding or grievous bodily harm with intent 33A Discharging firearm etc with intent 33B Use of weapon to resist arrest etc [page 1201]

37(2) 38 41 41A 47 48 49 55

TABLE Choking, suffocation or strangulation with intent to commit or assist in committing another indictable offence Using chloroform etc to commit an offence Administering poison etc to injure or to cause distress or pain Poisoning etc of water supply Using etc explosive substance or corrosive fluid etc Placing gunpowder near a building etc Setting trap etc Possessing etc gunpowder etc with intent to injure the person

61K 82 83 86 87 99 110 111 113

Assault with intent to have sexual intercourse Administering drugs etc to herself by woman with child Administering drugs etc to woman with intent Kidnapping Child abduction Demanding property with intent to steal Breaking, entering and assaulting with intent to murder etc Entering dwelling-house Breaking etc into any house etc with intent to commit serious indictable offence 114 (a) (c) (d) Being armed etc with intent to commit offence 158 Destruction, falsification of accounts etc by clerk or servant 172 Trustees fraudulently disposing of property 174 Directors etc omitting certain entries 175 Director etc wilfully destroying etc books of company etc 176 Director or officer publishing fraudulent statements 178BB Obtaining money etc by false or misleading statements 179 False pretences etc 180 Causing payment etc by false pretences etc 181 False pretence of title 184 Fraudulent personation 185 Inducing persons by fraud to execute instruments 190 Receiving etc cattle unlawfully killed, or carcass etc 196 Destroying or damaging property with intent to injure a person 198 Destroying or damaging property with intention of endangering life 199 Threatening to destroy or damage property 200 Possession etc of explosive or other article with intent to destroy or damage property 202 (c) Interfering or damaging etc bed or bank of river with intent of obstructing etc navigation 205 Prejudicing the safe operation of an aircraft or vessel 210 (b) Acting with intention of destroying etc aids to navigation 211 Criminal acts relating to railways

249C

Misleading documents or statements used or made by agents [page 1202]

TABLE 249D Corrupt inducements for advice 298 Demanding property on forged instruments 300 Making or using false instruments 301 Making or using copies of false instruments 302 Custody of false instruments etc 302A Making or possession of implements for making false instruments 309 (2) Unlawful access to data in computer [Repealed] 314 False accusations etc 315 Hindering investigation etc 317 Tampering etc with evidence 318 Making or using false official instrument to pervert the course of justice 319 General offence of perverting the course of justice 321 (1) Corruption of witnesses and jurors 322 Threatening or intimidating judges, witnesses, jurors etc 323 Influencing witnesses and jurors 328 Perjury with intent to procure conviction or acquittal 333 (2) Subornation of perjury (b) an offence under the following provisions of this Act to the extent that an element of the offence requires a person to intend to cause the specific result necessary for the offence: 57 (assault on persons preserving wreck) 58 (assault with intent to commit serious indictable offence on certain officers) 66B (assaulting with intent to have sexual intercourse with child under 10) 66D (assaulting with intent to have sexual intercourse with child

between 10 and 16) 78I (assault with intent to have homosexual intercourse with male under 10) 78L (assault with intent to have homosexual intercourse with male between 10 and 18) 78O (assault with intent to have homosexual intercourse with pupil etc) 91 (taking child with intent to steal) 94 (assault with intent to rob person) 95 (assault with intent to rob in circumstances of aggravation) 96 (assault with intent to rob with wounding) 97 (assault with intent to rob with arms) 98 (assault with intent to rob) 109 (entering with intent, or stealing etc in dwelling-house and breaking out) 126 (killing with intent to steal) 139 (destroys, damages, breaks with intent to steal) 140 (destroys, damages, breaks with intent to steal) 197 (dishonestly destroying or damaging property with a view to gain) 204 (destruction of, or damage to, an aircraft or vessel with intent) (c) any other offence by or under any law (including the common law) prescribed by the regulations. [page 1203] [s 428B insrt Act 6 of 1996 s 3 and Sch 1.2, opn 16 Aug 1996; am Act 137 of 1996 s 4 and Sch 2.3, opn 8 Mar 1997; am Act 94 of 1999 s 5 and Sch 3[21] and [62], opn 1 Jan 2000; Act 20 of 2001 s 3 and Sch 1[2], opn 3 Aug 2001; Act 84 of 2001 s 3 and Sch 1[16], opn 14 Dec 2001; Act 53 of 2002 s 3 and Sch 2.10[2], opn 4 July 2002; Act 38 of 2007 s 3 and Sch 1[24], opn 15 Feb 2008; Act 23 of 2014 Sch 1[2], opn 5 June 2014] COMMENTARY ON SECTION 428B

Offences of specific intent ….

[8-s 428B.1]

[8-s 428B.1] Offences of specific intent Murder is an offence of specific intent 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]. With respect to offences of specific intent, it is necessary for the Crown to prove that the accused had the requisite intention, and the effect of alcohol on the accused may be relevant to that question. Reference to the effect of alcohol on the accused’s capacity to form the requisite intent is unnecessary and confusing: R v Makisi (2004) 151 A Crim R 245; [2004] NSWCCA 333; BC200406846; (2004) 11 Crim LN 103 [1781]. See also Bellchambers v R [2008] NSWCCA 235; BC200809092; 15 Crim LN 133 [2459] where it was held that it is insufficient to tell the jury that the Crown must prove intention — the jury must be informed of the relevance of intoxication in deciding whether the accused had the specific intention charged.

____________________

[8-s 428C] Intoxication in relation to offences of specific intent 428C (1) Evidence that a person was intoxicated (whether by reason of self-induced intoxication or otherwise) at the time of the relevant conduct may be taken into account in determining whether the person had the intention to cause the specific result necessary for an offence of specific intent. (2) However, such evidence cannot be taken into account if the person: (a) had resolved before becoming intoxicated to do the relevant conduct, or (b) became intoxicated in order to strengthen his or her resolve to do the relevant conduct. [s 428C insrt Act 6 of 1996 s 3 and Sch 1.2, opn 16 Aug 1996]

[8-s 428D] offences

Intoxication in relation to other

428D In determining whether a person had the mens rea other than an offence of specific intent, evidence that intoxicated at the time of the relevant conduct: (a) if the intoxication was self-induced — cannot account, or (b) if the intoxication was not self-induced — may

for an offence a person was be taken into be taken into

account. [s 428D insrt Act 6 of 1996 s 3 and Sch 1.2, opn 16 Aug 1996]

[8-s 428E] Intoxication in relation to murder, manslaughter and assault causing death 428E (1) If evidence of intoxication at the time of the relevant conduct results in a person being acquitted of murder: (a) in the case of intoxication that was self-induced — evidence of that intoxication cannot be taken into account in determining whether the person had the requisite mens rea for manslaughter or for an offence under section 25A, or [page 1204] (b) in the case of intoxication that was not self-induced — evidence of that intoxication may be taken into account in determining whether the person had the requisite mens rea for manslaughter or for an offence under section 25A. (2) An offence under section 25A is not an offence of specific intent for the purposes of this Part. [subs (2) insrt Act 2 of 2014 Sch 1[4], opn 31 Jan 2014]

If evidence of intoxication at the time of the relevant conduct results in a person being acquitted of murder: [s 428E insrt Act 6 of 1996 s 3 and Sch 1.2, opn 16 Aug 1996; am Act 2 of 2014 Sch 1[3], opn 31 Jan 2014]

[8-s 428F] Intoxication in relation to the reasonable person test 428F If, for the purposes of determining whether a person is guilty of an offence, it is necessary to compare the state of mind of the person with that of a reasonable person, the comparison is to be made between the conduct or state of mind of the person and that of a reasonable person who is not intoxicated.

[s 428F insrt Act 6 of 1996 s 3 and Sch 1.2, opn 16 Aug 1996]

[8-s 428G] offence

Intoxication and the actus reus of an

428G (1) In determining whether a person has committed an offence, evidence of self-induced intoxication cannot be taken into account in determining whether the relevant conduct was voluntary. [subs (1) am Act 149 of 1998 s 3 and Sch 1[1], opn 8 Feb 1999]

(2) However, a person is not criminally responsible for an offence if the relevant conduct resulted from intoxication that was not self-induced. [s 428G insrt Act 6 of 1996 s 3 and Sch 1.2, opn 16 Aug 1996] COMMENTARY ON SECTION 428G

Voluntariness ….

[8-s 428G.1]

[8-s 428G.1] Voluntariness The operation of a provision similar to s 428G(1) was considered in Hadba v R (2004) 182 FLR 472; 146 A Crim R 291; [2004] ACTSC 62; BC200404608 where it was held that a magistrate was correct in refusing to allow an accused to raise involuntariness where the intoxication was self-induced.

____________________

[8-s 428H] Abolition of common law relating to self-induced intoxication 428H The common law relating to the effect of intoxication on criminal liability is abolished. [s 428H insrt Act 6 of 1996 s 3 and Sch 1.2, opn 16 Aug 1996]

[8-s 428I]

Application of Part

428I This Part applies to any offence (whether under this Act or otherwise) committed after the commencement of this Part. [s 428I insrt Act 6 of 1996 s 3 and Sch 1.2, opn 16 Aug 1996]

[page 1205]

PART 12 — SENTENCES 429–430 [s 429–430 rep Act 31 of 1951 s 3, opn 4 December 1951; Act 16 of 1955 s 5, opn 12 May 1955]

[8-s 431] Convicted persons not to be liable to death penalty 431 (1) This section applies to offences under: (a) an Act, (b) an Imperial Act so far as it applies in New South Wales, or (c) a rule of law, whether committed before or after the commencement of the Crimes (Death Penalty Abolition) Amendment Act 1985. (2) A person is not liable to the punishment of death for an offence to which this section applies. (3) Where, but for this subsection, no penalty would be provided for an offence to which this section applies that was formerly punishable by death, that offence shall be punishable by imprisonment for 25 years. [subs (3) am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000]

[8-s 431A]

Life sentences

431A (1) This section applies to offences under: (a) an Act, or (b) an Imperial Act so far as it applies in New South Wales, or (c) a rule of law. (2) A person is not liable to the punishment of imprisonment for life for any offence to which this section applies except for the offence of murder, for an offence under section 61JA, for an offence under section 66A or for an offence carrying that punishment under the Drug Misuse and Trafficking Act 1985. [subs (2) am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000; Act 62 of 2001 s 3 and Sch 1[10], opn 1 Oct 2001; Act 55 of 2004 s 3 and Sch 2.7, opn 6 July 2004; Act 105 of 2008 s 3 and Sch 1, opn 1 Jan 2009; Act 13 of 2015 Sch 1[5], opn 29 June 2015]

(3) Where, but for this subsection, no penalty would be provided for an

offence to which this section applies that was formerly punishable by imprisonment for life, that offence is punishable by imprisonment for 25 years. [subs (3) am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000]

(4) This section applies to offences committed before or after the commencement of this section. However, this section does not apply where committal proceedings (or proceedings by way of ex officio indictment) for the offence were instituted against the convicted person before the commencement of this section. (5) Any amendment made by the Crimes (Life Sentences) Amendment Act 1989 altering the penalty for an offence under this Act from imprisonment for life to imprisonment for 25 years applies to an offence committed before or after the commencement of the amendment. However, the amendment does not apply where committal proceedings (or proceedings by way of ex officio indictment) for the offence were instituted against the convicted person before the commencement of the amendment. [subs (5) am Act 94 of 1999 s 5 and Sch 3[70], opn 1 Jan 2000]

[page 1206] (6) [subs (6) rep Act 53 of 2000 s 3 and Sch 3.3, opn 29 June 2000] 431B–447A [ss 431B–436 rep Act 94 of 1999 s 5 and Sch 3[4], opn 3 Apr 2000] [s 433 rep Act 10 of 1924 s 21, opn 30 November 1924] [ss 434-435 rep Act 50 of 1974 s 9, opn 2 Aug 1974] [s 436 rep Act 31 of 1951 s 3, opn 2 August 1974] [ss 437-437A rep Act 238 of 1987 s 4 and Sch 1, opn 15 Feb 1988] [ss 438–440 rep Act 94 of 1999 s 5 and Sch 3[4], opn 3 Apr 2000] [s 440A rep Act 198 of 1989 s 3 and Sch 2[2], opn 17 Mar 1991] [ss 440AA–446 rep Act 94 of 1999 s 5 and Sch 3[4], opn 3 Apr 2000] [s 447 rep Act 77 of 1967 s 4, opn 12 Jan 1968] [s 447A rep Act 94 of 1999 s 5 and Sch 3[4], opn 3 Apr 2000]

PARTS 13–13A — [Repealed] [Pt 13 rep Act 94 of 1999 s 5 and Sch 3[5], opn 3 Apr 2000; Pt 13A rep Act 70 of 2006 s 4 and Sch 2,

opn 23 Feb 2006] Editor’s note: Pt 13A Divs 2, 3,4 and 5 were moved to the Crimes (Appeal and Review) Act and renumbered as Part 7. Part 13A Divs 1 and 6 have been repealed.

PART 13B — OFFENCES PUNISHABLE BY THE SUPREME COURT IN ITS SUMMARY JURISDICTION [Pt 13B renum Act 64 of 1993 s 3 and Sch 1(4)]

[8-s 475A]

Offences punishable summarily

475A (1) Subject to subsection (2) and section 475B but notwithstanding any other law, proceedings for any offence mentioned in Schedule 10 may, pursuant to Part 5 of Chapter 4 of the Criminal Procedure Act 1986 by the Attorney-General or the Director of Public Prosecutions, be taken before the Supreme Court in its summary jurisdiction. [subs (1) am Act 121 of 2001 s 4 and Sch 2.72[24], opn 7 July 2003; Act 38 of 2007 s 3 and Sch 2[27], opn 27 Sep 2007]

(2) Proceedings for an offence mentioned in paragraph (f) of Schedule 10 may not be taken under subsection (1) unless, in the application made under section 246 of the Criminal Procedure Act 1986 in respect of the offence, the person against whom the offence is charged is also charged with an offence mentioned in paragraph (a), (b), (c), (d), (d1) or (e) of that Schedule. [subs (2) am Act 121 of 2001 s 4 and Sch 2.72[25], opn 7 July 2003; Act 38 of 2007 s 3 and Sch 2[27], opn 27 Sep 2007]

(3) A person may be convicted of an offence mentioned in paragraph (f) of Schedule 10 notwithstanding that the person is not convicted of the offence mentioned in paragraph (a), (b), (c), (d), (d1) or (e) of that Schedule that was also charged in the application made under section 246 of the Criminal Procedure Act 1986 in respect of the offence mentioned in paragraph (e) of that Schedule. [subs (3) am Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998; Act 121 of 2001 s 4 and Sch 2.72[25], opn 7 July 2003; Act 38 of 2007 s 3 and Sch 2[27], opn 27 Sep 2007]

(4) The penalty that may be imposed by the Supreme Court in its summary jurisdiction on a person convicted of an offence mentioned in Schedule 10 is the penalty

[page 1207] provided by law (other than this subsection), except that any fine imposed shall not exceed 100 penalty units and any term of imprisonment imposed shall not exceed 10 years, whether the penalty imposed is either a fine or a term of imprisonment. [subs (4) am Act 112 of 1992 s 3 and Sch 1; am Act 94 of 1999 s 5 and Sch 3[66], opn 1 Jan 2000; Act 38 of 2007 s 3 and Sch 2[27], opn 27 Sep 2007]

(5) Subsection (1) does not prevent proceedings for any offence referred to in that subsection from being taken otherwise than before the Supreme Court in its summary jurisdiction. (6) The reference in subsection (1) to the Attorney-General or the Director of Public Prosecutions includes, in relation to any proceedings, a reference to any person who is authorised in writing by the Attorney-General or Director to act, for the purposes of that subsection, on behalf of the Attorney-General or Director in relation to those proceedings as in relation to proceedings for all offences mentioned in Schedule 10. (7) A document purporting to be signed: (a) by the Attorney-General or the Director of Public Prosecutions and to authorise a person specified in the document to act as referred to in subsection (6) is, in any proceedings referred to in subsection (1), admissible in evidence as prima facie evidence that the person is authorised so to act, or (b) by the Attorney-General or the Director of Public Prosecutions for the purpose of any proceedings referred to in subsection (1) is admissible in evidence as prima facie evidence that the AttorneyGeneral or the Director of Public Prosecutions signed the document. COMMENTARY ON SECTION 475A

Tenth Schedule ….

[8-s 475A.1]

[8-s 475A.1] Tenth Schedule The Tenth Schedule appears at [8-Sch 10].

____________________

[8-s 475B]

Election for summary trial

475B (1) Section 475A(1) applies only if, upon the completion of the pretrial procedures in any proceedings in respect of an offence to which an application under section 246 of the Criminal Procedure Act 1986 relates, being procedures prescribed by rules made under that Act, the defendant makes an election to be tried for that offence in the Supreme Court in its summary jurisdiction. [subs (1) am Act 121 of 2001 s 4 and Sch 2.72[26], opn 7 July 2003]

(2) Notwithstanding subsection (1) where the defendant in any proceedings is the subject of an application (not being an application referred to in subsection (3)), under section 246 of the Criminal Procedure Act 1986 relating to 2 or more offences, he or she is not entitled to make an election under subsection (1) unless he or she makes it in respect of every offence to which the application relates. [subs (2) am Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998; Act 121 of 2001 s 4 and Sch 2.72[26], opn 7 July 2003]

(3) Where 2 or more defendants are the subject of an application under section 246 of the Criminal Procedure Act 1986, an election under subsection (1) made by one of the defendants in respect of any offence to which the application relates and alleged to have been committed by him or her has no effect for the purposes of this section unless such an election is made by that defendant in respect of every other offence to which the [page 1208] application relates and which is alleged to have been committed by him or her and by each of the other defendants in respect of every offence to which the application relates and which is alleged to have been committed by each of them. [subs (3) am Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998; Act 121 of 2001 s 4 and Sch 2.72[26], opn 7 July 2003]

(4) A reference in subsection (1), (2) or (3) to an offence to which an application under section 246 of the Criminal Procedure Act 1986 relates does not include a reference to such an offence to which the person charged with the offence has, upon such an application, pleaded guilty.

[subs (4) am Act 121 of 2001 s 4 and Sch 2.72[26], opn 7 July 2003]

(5) Where the defendant does not make an election under subsection (1): (a) the Supreme Court shall order that the proceedings for the offence to which the election relates shall be tried in the Supreme Court otherwise than in its summary jurisdiction, and (b) the provisions of section 475A(1) shall cease to apply to or in respect of the proceedings for that offence. (6) A person tried pursuant to an order under subsection (5)(a) shall for all purposes, be deemed to be tried on indictment and if convicted to have been convicted on indictment. (7) A reference in this section to a plea of guilty does not include a reference to such a plea if the plea has been withdrawn or has not been accepted.

PART 14 — [Repealed] [Pt heading am Act 53 of 2000 s 3 and Sch 3.3, opn 29 June 2000; rep Act 38 of 2007 s 3 and Sch 2[28], opn 29 Sep 2007] Explanatory note: This Part is now spent.

PART 14A — MISCELLANEOUS OFFENCES [Pt heading insrt Act 53 of 2000 s 3 and Sch 3.3, opn 29 June 2000; am Act 77 of 2005 s 48 and Sch 5.1[1], opn 1 Jan 2006]

DIVISION 1 — LARCENY AND SIMILAR SUMMARY OFFENCES [Div heading insrt Act 53 of 2000 s 3 and Sch 3.3, opn 29 June 2000; am Act 77 of 2005 s 48 and Sch 5.1[2], opn 1 Jan 2006]

501 [s 501 renum as s 496 by Act 81 of 1988 s 3 and Sch 5(4), opn 19 Feb 1989]

[8-s 502]

Possession of skin etc of stolen cattle

502 Whosoever, in whose possession there has been found the skin or

carcass of any stolen cattle, or of any cattle reasonably suspected to have been stolen, or any part of any such skin or carcass, may be brought before or may be summoned to appear before the Local Court to show in what manner he or she became possessed of the same, and if there is reasonable cause to believe that he or she has dishonestly come by the same, and if he or she fails to satisfy the Court before whom the case is heard that he or she obtained the same without any knowledge or reasonable ground to suspect that the same [page 1209] was the skin or carcass, or part of the skin or carcass, of any stolen cattle, he or she shall be liable to imprisonment for six months, or to pay a fine of 5 penalty units, or both. [s 502 am Act 31 of 1951 s 4; Act 50 of 1974 s 11; Act 112 of 1992 s 3 and Sch 1; Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998; Act 121 of 2001 s 4 and Sch 2.72[35], [36], opn 7 July 2003; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009] Editor’s note: For proof material on s 502, see [27-42,000] behind the “27 – Informations and Indictments” guide card in Vol 4. COMMENTARY ON SECTION 502

Definitions …. “Found in possession” …. “Reasonably suspected” …. Form of charge …. Elements of offence ….

[8-s 502.1] [8-s 502.5] [8-s 502.10] [8-s 502.15] [8-s 502.20]

[8-s 502.1] Definitions As to “cattle” see s 4 at [8-s 4]. As to “stolen” see [8-s 117]. As to “possession” see [8-s 159.20]. [8-s 502.5] “Found in possession” See Ex parte Pritchard (1914) 31 WN (NSW) 104; R v Rowland [1910] 1 KB 458. [8-s 502.10] “Reasonably suspected” It is not necessary to prove ownership of the skin or carcass or that it came from a particular animal: Cordwell v Lincoln [1914] QSR 186.

PROOF MATERIAL ON SECTION 502 [8-s 502.15] Form of charge That [name of accused] on [date of alleged offence] at [locality/suburb]

in the State of New South Wales, had in his/her possession (part of) the skin/carcass of a stolen cattle, namely a [describe cattle]/cattle reasonably suspected of having been stolen. [8-s 502.20] Elements of offence The elements of the offence are — (1) The accused was found in possession [8-s 7] [8-s 502.5] [8-s 159.20]; (2) of (part of) the skin or carcass of cattle [8-s 4] which had been stolen [27-23,055] or were known or reasonably suspected [8-s 502.10] to be stolen [27-23,055].

____________________

[8-s 503]

Stealing dogs

503 Whosoever steals any dog shall, on conviction by the Local Court, be liable to imprisonment for six months, or to pay a fine of 5 penalty units, or both. [s 503 am Act 10 of 1924 s 23; Act 50 of 1974 s 11; Act 112 of 1992 s 3 and Sch 1; Act 121 of 2001 s 4 and Sch 2.72[37], opn 7 July 2003; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009] Editor’s note: For proof material on s 503, see [27-42,050] behind the “27 – Informations and Indictments” guide card in Vol 4. COMMENTARY ON SECTION 503

Definitions …. Subsequent offence …. Form of charge …. Element of offence ….

[8-s 503.1] [8-s 503.5] [8-s 503.10] [8-s 503.15]

[8-s 503.1] Definitions As to “steals” see [8-s 117]. [page 1210] [8-s 503.5] Subsequent offence Where an accused has been convicted of an offence under this section and commits a second offence of a similar nature he may be prosecuted for an offence under s 132 of the Act.

PROOF MATERIAL ON SECTION 503 [8-s 503.10] Form of charge That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, stole a dog, namely [describe stolen dog], the property of [name of owner]. [8-s 503.15] Element of offence The element of the offence is — (1) The accused stole [27-23,055] a dog.

____________________

[8-s 504]

Possessing stolen dog or skin

504 Whosoever has unlawfully in his or her possession any stolen dog, or the skin of any such dog, knowing the dog to have been stolen, shall, on conviction by the Local Court, be liable to pay a fine of 5 penalty units. [s 504 am Act 50 of 1974 s 11; Act 112 of 1992 s 3 and Sch 1; Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998; Act 121 of 2001 s 4 and Sch 2.72[37], opn 7 July 2003; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009] Editor’s note: For proof material on s 504, see [27-42,100] behind the “27 – Informations and Indictments” guide card in Vol 4. COMMENTARY ON SECTION 504

Definitions …. Subsequent offence …. Form of charge …. Elements of offence ….

[8-s 504.1] [8-s 504.5] [8-s 504.10] [8-s 504.15]

[8-s 504.1] Definitions As to “stolen” see [8-s 117]. [8-s 504.5] Subsequent offence See s 132 at [8-s 132].

PROOF MATERIAL ON SECTION 504 [8-s 504.10] Form of charge That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, unlawfully had in his/her possession a stolen dog/the skin of a stolen dog, namely [describe stolen dog], the property of [name of owner], knowing the said dog to be stolen. [8-s 504.15] Elements of offence The elements of the offence are — (1) The accused unlawfully had in possession [8-s 7] [8-s 159.20]; (2) a stolen [27-23,055] dog or skin; (3) knowing the dog to be stolen [27-23,055].

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[8-s 505] Stealing animals etc ordinarily kept in confinement 505 Whosoever: steals any animal or bird ordinarily kept in a state of confinement, or

for any domestic purpose, but not being the subject of larceny at Common Law, or kills any such animal or bird with intent to steal the same, or any part thereof, [page 1211] shall, on conviction by the Local Court, be liable to imprisonment for six months, or to pay a fine of 5 penalty units, or both. [s 505 am Act 10 of 1924 s 23; Act 50 of 1974 s 11; Act 112 of 1992 s 3 and Sch 1; Act 121 of 2001 s 4 and Sch 2.72[37], opn 7 July 2003; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009] Editor’s note: For proof material on s 505, see [27-42,150] behind the “27 – Informations and Indictments” guide card in Vol 4. COMMENTARY ON SECTION 505

Definitions …. Subsequent offence …. Restoration to owner …. Larceny at common law …. Form of charge …. Stealing animals etc …. Killing animals etc with intent …. Elements of offence …. Stealing animals etc …. Killing animals etc with intent ….

[8-s 505.1] [8-s 505.5] [8-s 505.10] [8-s 505.15] [8-s 505.20] [8-s 505.25] [8-s 505.30] [8-s 505.35] [8-s 505.40] [8-s 505.45]

[8-s 505.1] Definitions As to “steals” see [8-s 117]. [8-s 505.5] Subsequent offence See s 506 at [8-s 506]. [8-s 505.10] Restoration to owner The court has power to restore the bird or animal to the owner: see s 509 at [8-s 509]. [8-s 505.15] Larceny at common law Animals ferae naturae could not be stolen because by nature they were wild. Dogs and cats were regarded as being of no value and therefore not the subject of larceny. Wild animals could be stolen from the person who captured them or, if they were killed, from the person who owned the property on which they were killed. Note the provisions of the Fisheries and Oyster Farms Act 1935 and the National Parks and Wildlife Act 1974.

PROOF MATERIAL ON SECTION 505

[8-s 505.20] Form of charge [8-s 505.25] Stealing animals etc That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales stole an animal/bird ordinarily kept in a state of confinement/for a domestic purpose, not being the subject of larceny at common law, namely [describe animal] the property of [name of owner]. [8-s 505.30] Killing animals etc with intent That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales killed an animal/bird ordinarily kept in a state of confinement/for a domestic purpose, namely [describe animal or bird], the property of [name of owner], with intent to steal (a part of) the same. [8-s 505.35] Elements of offence The elements of the offence are — [8-s 505.40] Stealing animals etc (1) The accused stole [27-23,055] an animal or bird; (2) which was ordinarily kept in a state of confinement or for a domestic purpose; (3) not being the subject of larceny at common law [8-s 505.15]. [8-s 505.45] Killing animals etc with intent (1) The accused killed an animal or bird; [page 1212] (2) which was ordinarily kept in a state of confinement or for a domestic purpose; (3) with intent [6-500] to steal [27-23,055] the same or a part of same.

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[8-s 506] Stealing animals etc ordinarily kept in confinement — second offence 506 Whosoever, having been convicted under this or any former Act of any such offence as is mentioned in section 505, afterwards commits any offence in the said section mentioned shall, on conviction by the Local Court, be liable to imprisonment for one year. [s 506 am Act 31 of 1951 Sch; Act 121 of 2001 s 4 and Sch 2.72[37], opn 7 July 2003; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009] Editor’s note: For proof material on s 506, see [27-42,200] behind the “27 – Informations and Indictments” guide card in Vol 4.

PROOF MATERIAL ON SECTION 506

[8-s 506.1] Form of charge That [name of accused], having on [date of previous conviction] been convicted at [court of previous conviction] of having stolen/killed with intent to steal (a part of) a certain animal/bird, which was ordinarily kept in confinement or for a domestic purpose, namely [describe animal or bird], the property of [name of owner], after committing the said offence, on [date of alleged offence] at [locality/suburb] in the State of New South Wales, did [use form of charge in [2742,150.1] or [27-42,150.5]]. [8-s 506.5] 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]. [8-s 506.10] Elements of offence The elements of the offence are — (1) The accused, having been convicted of an offence mentioned in s 505 [8-s 505]; (2) afterward committed an offence mentioned in s 506 [8-s 506] [27-42,155]. [8-s 506.15] Procedure for indicting the accused The accused should not be indicted for the offence under this section until he/she has been convicted of the subsequent offence and, when he/she has been so convicted, the indictment under s 506 should be presented: see s 152 Criminal Procedure Act 1986 at [2-s 152].

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[8-s 507]

Possession of stolen animals etc

507 Whosoever in whose possession there has been found any such animal or bird as in section 505 mentioned, or the skin thereof, respectively, which to his or her knowledge has been stolen, or is the skin of a stolen animal or bird, shall, on conviction by the Local Court, be liable to imprisonment for six months, or to pay a fine of 5 penalty units, or both. [s 507 am Act 10 of 1924 s 23; Act 50 of 1974 s 11; Act 112 of 1992 s 3 and Sch 1; Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998; Act 121 of 2001 s 4 and Sch 2.72[37], opn 7 July 2003; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009] Editor’s note: For proof material on s 507, see [27-42,250] behind the “27 – Informations and Indictments” guide card in Vol 4. COMMENTARY ON SECTION 507

Definitions …. Subsequent offence ….

[8-s 507.1] [8-s 507.5] [page 1213]

Restoration to owner …. Form of charge …. Necessary averments ….

[8-s 507.10] [8-s 507.15] [8-s 507.20]

Elements of offence …. Procedure for indicting the accused ….

[8-s 507.25] [8-s 507.30]

[8-s 507.1] Definitions As to “possession” see [8-s 159.20]. As to “stolen” see [8-s 117]. [8-s 507.5] Subsequent offence See s 508 at [8-s 508]. [8-s 507.10] Restoration to owner The court has power to restore the animal or skin to the owner: see s 509 at [8-s 509].

PROOF MATERIAL ON SECTION 507 [8-s 507.15] Form of charge That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, had in his/her possession (the skin of) a certain animal/bird ordinarily kept in confinement/for a domestic purpose namely [describe animal or bird], the property of [name of owner] knowing that the said animal/bird/skin was stolen. [8-s 507.20] 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]. [8-s 507.25] Elements of offence The elements of the offence are — (1) The accused had in his/her possession [8-s 7] [8-s 159.20]: (i) an animal or bird which was ordinarily kept in confinement or for a domestic purpose; or (ii) the skin of such an animal or bird; (2) knowing the same to be stolen [27-23,055]. [8-s 507.30] Procedure for indicting the accused The accused should not be indicted for the offence under this section until he/she has been convicted of the subsequent offence and, when he/she has been so convicted, the indictment under s 508 should be presented: see s 152 Criminal Procedure Act 1986 at [2-s 152].

____________________

[8-s 508] Possession of stolen animals etc — second offence 508 Whosoever, having been convicted, under this or any former Act, of any such offence as is mentioned in section 507, afterwards commits any offence in the said section mentioned, shall, on conviction by the Local Court, be liable to imprisonment for one year. [s 508 am Act 31 of 1951 Sch; Act 121 of 2001 s 4 and Sch 2.72[37], opn 7 July 2003; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009]

Editor’s note: For proof material on s 508, see [27-42,300] behind the “27 – Informations and Indictments” guide card in Vol 4.

PROOF MATERIAL ON SECTION 508 [8-s 508.1] Form of charge That [name of accused], having on [date of previous conviction] been convicted at [court of previous conviction] of having in his/her possession (the skin of) a certain animal/bird ordinarily kept in confinement or for a domestic purpose namely [describe animal or bird], the property of [name of owner], knowing that the said animal/bird/skin was stolen, after committing the said offence, on [date of alleged offence] at [locality/suburb] in the [page 1214] State of New South Wales, did [use form of charge in [27-42,250]]. [8-s 508.5] Elements of offence The elements of the offence are — (1) The accused, having been convicted of an offence mentioned in s 507; (2) afterward committed any offence mentioned in s 508.

____________________

[8-s 509]

Restoration of such stolen animals etc

509 Any such animal or bird as is mentioned in section 505, or the skin thereof, which has been found in the possession of any person may be restored to the owner thereof by the order of the Local Court. [s 509 am Act 121 of 2001 s 4 and Sch 2.72[38], opn 7 July 2003; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009]

[8-s 510]

Setting engine for deer etc

510 Whosoever: unlawfully and wilfully sets, or uses, any snare, or engine, for the purpose of taking or killing deer upon any inclosed land in the occupation of the owner of such deer, or unlawfully and wilfully destroys any part of the fence of any land where deer are then kept shall, on conviction by the Local Court, be liable to pay a fine of 5 penalty units. [s 510 am Act 50 of 1974 s 11; Act 112 of 1992 s 3 and Sch 1; Act 121 of 2001 s 4 and Sch 2.72[37],

opn 7 July 2003; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009] Editor’s note: For proof material on s 510, see [27-42,350] behind the “27 – Informations and Indictments” guide card in Vol 4.

PROOF MATERIAL ON SECTION 510 [8-s 510.1] Form of charge [8-s 510.5] Setting snare etc That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, unlawfully and wilfully set/used a snare/engine for the purpose of taking/killing deer upon the inclosed land in the occupation of [name of owner], the owner of such deer. [8-s 510.10] Destroying fence That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, unlawfully and wilfully destroyed a part of the fence of land where deer are kept in the occupation of [name of owner], the owner of such deer. [8-s 510.15] Elements of offence The elements of the offence are — [8-s 510.20] Setting snare etc (1) The accused unlawfully and wilfully set or used a snare or engine; (2) for the purpose of taking or killing deer; (3) upon inclosed land in the occupation of the owner of such deer. [8-s 510.25] Destroying fence (1) The accused unlawfully and wilfully destroyed a part of a fence on land; (2) upon which deer were then kept.

____________________ [page 1215]

Killing pigeons 511 [s 511 rep Act 38 of 2007 s 3 and Sch 1[25], opn 15 Feb 2008]

[8-s 512] property

Taking fish in waters on private

512 Whosoever unlawfully and wilfully takes, or destroys, any fish in any water being private property, shall, on conviction by the Local Court, be liable to pay the value of the fish taken or destroyed, in addition to a fine of

0.1 penalty unit. [s 512 am Act 10 of 1924 s 23; Act 112 of 1992 s 3 and Sch 1; Act 121 of 2001 s 4 and Sch 2.72[37], opn 7 July 2003; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009] Editor’s note: For proof material on s 512, see [27-42,450] behind the “27 – Informations and Indictments” guide card in Vol 4.

PROOF MATERIAL ON SECTION 512 [8-s 512.1] Form of charge That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, unlawfully and wilfully took/destroyed fish in certain waters, namely [describe waters] being the private property of [name of owner], the property of the said [name of owner]. [8-s 512.5] Elements of offence The elements of the offence are — (1) The accused unlawfully and wilfully took or destroyed fish; (2) which were in private waters.

____________________

[8-s 513]

Stealing shrubs etc

513 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 shall, on conviction by the Local Court, be liable to imprisonment for six months, or to pay a fine of 5 penalty units, or both. [s 513 am Act 10 of 1924 s 23; Act 50 of 1974 s 11; Act 112 of 1992 s 3 and Sch 1; Act 121 of 2001 s 4 and Sch 2.72[37], opn 7 July 2003; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009] Editor’s note: For proof material on s 513, see [27-42,500] behind the “27 – Informations and Indictments” guide card in Vol 4. COMMENTARY ON SECTION 513

Definitions …. Stealing from public places …. Form of charge …. Elements of offence ….

[8-s 513.1] [8-s 513.5] [8-s 513.10] [8-s 513.15]

[8-s 513.1] Definitions As to “steals” see [8-s 117.5]. [8-s 513.5] Stealing from public places Where the shrub etc, is growing in “any square or street or place dedicated to public use or ornament” it is unnecessary to allege that it is the property of any person: see at [2-Sch 3] cl 16.

PROOF MATERIAL ON SECTION 513 [8-s 513.10] Form of charge That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, stole/destroyed/damaged with intent to steal the whole/a part of a tree/sapling/shrub/plant/underwood, the property of [name of owner]. [page 1216] [8-s 513.15] Elements of offence The elements of the offence are — (1) The accused stole [27-23,055], destroyed or damaged with intent [6-500] to steal; (2) any part of a tree, sapling, shrub, plant or underwood.

____________________ 514 [s 514 rep Act 50 of 1974 s 11(x), opn 2 Aug 1974]

[8-s 515]

Stealing etc live or dead fence etc

515 Whosoever steals, or cuts, breaks, or throws down with intent to steal, any part of any live or dead fence, or any material set up, or used, as a fence, or any stile, or gate, or any part thereof, respectively, shall, on conviction by the Local Court, be liable to pay the value of the property stolen, or the amount of injury done, in addition to a fine of 1 penalty unit. [s 515 am Act 10 of 1924 s 23; Act 50 of 1974 s 11; Act 112 of 1992 s 3 and Sch 1; Act 121 of 2001 s 4 and Sch 2.72[37], opn 7 July 2003; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009] Editor’s note: For proof material on s 515, see [27-42,550] behind the “27 – Informations and Indictments” guide card in Vol 4.

PROOF MATERIAL ON SECTION 515 [8-s 515.1] Form of charge That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, stole/(cut/broke/threw down with intent to steal) part of a certain live/dead fence/certain material set up/used as a fence/(part of) a stile/(part of) a gate, the property of [name of owner]. [8-s 515.5] Elements of offence The elements of the offence are — (1) The accused stole [27-23,055], cut, broke or threw down with intent [6-500] to steal; (2) any part of: (i) a live or dead fence; or (ii) material set up or used as a fence; or (iii) a stile; or

(iv) a gate.

____________________ 516 [s 516 rep Act 50 of 1974 s 11(z), opn 2 Aug 1974]

[8-s 517]

Unlawful possession of trees, fences etc

517 Whosoever, in whose possession the whole or any part of any tree, sapling, or shrub, or any underwood, or any part of any live or dead fence, or any post, pale, wire, rail, stile, or gate, or any part thereof has been found, on being taken or summoned before the Local Court fails to satisfy the Court that he or she came lawfully by the same, shall on conviction be liable to pay the value of the property found, in addition to a fine of 1 penalty unit. [s 517 am Act 10 of 1924 s 23; Act 50 of 1974 s 11; Act 112 of 1992 s 3 and Sch 1; Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998; Act 121 of 2001 s 4 and Sch 2.72[39], opn 7 July 2003; Act 82 of 2003 s 3 and Sch 2.6[1] and [2], opn 27 Nov 2003; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009] Editor’s note: For proof material on s 517, see [27-42,600] behind the “27 – Informations and Indictments” guide card in Vol 4. COMMENTARY ON SECTION 517

Definitions …. Form of charge …. Elements of offence ….

[8-s 517.1] [8-s 517.5] [8-s 517.10] [page 1217]

[8-s 517.1] Definitions As to “possession” see [8-s 159.15].

PROOF MATERIAL ON SECTION 517 [8-s 517.5] Form of charge That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, was found in possession of (a part of) a certain tree/sapling/shrub/underwood/live fence/dead fence/post/pale/wire/rail/stile/gate. [8-s 517.10] Elements of offence The elements of the offence are — (1) The accused was found in the possession [8-s 7] [8-s 159.20] of: (i) the whole or any part of any tree, sapling, or shrub; (ii) any underwood; (iii) any part of a live or dead fence; or (iv) the whole or any part of any post, pale, wire, rail, stile or gate.

____________________

[8-s 518]

Stealing dead wood

518 Whosoever steals, or destroys, or damages with intent to steal, any dead wood, lying on land in the occupation of another person shall, on conviction by the Local Court, be liable to pay the value of the wood, in addition to a fine of 1 penalty unit. [s 518 am Act 10 of 1924 s 23; Act 50 of 1974 s 11; Act 112 of 1992 s 3 and Sch 1; Act 121 of 2001 s 4 and Sch 2.72[37], opn 7 July 2003; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009] Editor’s note: For proof material on s 518, see [27-42,650] behind the “27 – Informations and Indictments” guide card in Vol 4. COMMENTARY ON SECTION 518

Definitions …. Stealing from public places …. Form of charge …. Elements of offence ….

[8-s 518.1] [8-s 518.5] [8-s 518.10] [8-s 518.15]

[8-s 518.1] Definitions As to “steals” see [8-s 117]. [8-s 518.5] Stealing from public places See [8-s 513.5].

PROOF MATERIAL ON SECTION 518 [8-s 518.10] Form of charge That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, stole/(destroyed/damaged with intent to steal) certain dead wood, then lying on land in the occupation of [name of occupier], such wood being the property of [name of owner]. [8-s 518.15] Elements of offence The elements of the offence are — (1) The accused stole [27-23,055], destroyed or damaged with intent [6-500] to steal; (2) any dead wood lying on land in the occupation of another person.

____________________ 519 [s 519 rep Act 50 of 1974 s 11(cc), opn 2 Aug 1974]

[8-s 520]

Stealing plants etc in gardens

520 Whosoever steals, or destroys, or damages with intent to steal, any

plant, root, fruit, or vegetable produce, growing in any garden, orchard, pleasure-ground, [page 1218] nursery-ground, hothouse, greenhouse, or conservatory, shall, on conviction by the Local Court, be liable to imprisonment for six months, or to pay a fine of 5 penalty units, or both. [s 520 am Act 112 of 1992 s 3 and Sch 1; Act 121 of 2001 s 4 and Sch 2.72[37], opn 7 July 2003; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009] Editor’s note: For proof material on s 520, see [27-42,660] behind the “27 – Informations and Indictments” guide card in Vol 4. COMMENTARY ON SECTION 520

Definitions …. Form of charge …. Elements of offence ….

[8-s 520.1] [8-s 520.5] [8-s 520.10]

[8-s 520.1] Definitions As to “steal”, see [8-s 117.5]. As to “damage”, see [8-s 195.5].

PROOF MATERIAL ON SECTION 520 [8-s 520.5] Form of charge That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales stole/destroyed/damaged with intent to steal a plant/root/fruit/vegetable produce the property of [name of person] growing in a garden/orchard/pleasure-ground/nurseryground/hothouse/greenhouse/conservatory. [8-s 520.10] Elements of offence The elements of the offence are — (1) The accused did: (i) steal [27-23,055]; or (ii) destroy; or (iii) damage [8-s 195.5] with intent to steal; a plant, root, fruit or vegetable produce; and (2) this item was growing in a: (i) garden; (ii) orchard; (iii) pleasure-ground; (iv) nursery-ground; (v) hothouse;

(vi) greenhouse; or (vii) conservatory.

____________________

[8-s 521] gardens

Stealing plants etc not growing in

521 Whosoever steals, or destroys, or damages with intent to steal, any cultivated root, or plant, used for the food of man or beast, or for medicine, or for distilling, or dyeing, or for any manufacture, and growing in any inclosed land, not being a garden, orchard, pleasure-ground, or nursery-ground, shall, on conviction by the Local Court be liable to pay a fine of 2 penalty units. [s 521 am Act 10 of 1924 s 23; Act 50 of 1974 s 11; Act 112 of 1992 s 3 and Sch 1; Act 121 of 2001 s 4 and Sch 2.72[37], opn 7 July 2003; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009] Editor’s note: For proof material on s 521, see [27-42,670] behind the “27 – Informations and Indictments” guide card in Vol 4. COMMENTARY ON SECTION 521

Definitions …. Form of charge …. Elements of offence ….

[8-s 521.1] [8-s 521.5] [8-s 521.10] [page 1219]

[8-s 521.1] Definitions As to “steals” see [8-s 117.5].

PROOF MATERIAL ON SECTION 521 [8-s 521.5] Form of charge That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales stole/destroyed/damaged with intent to steal a cultivated root/plant the property of [name of person] used for the food of man or beast/medicine/distilling/dyeing/manufacture which was at the time growing in an inclosed land not being a garden/orchard/pleasure-ground/nurseryground. [8-s 521.10] Elements of offence The elements of the offence are — (1) The accused did: (i) steal [27-23,055]; (ii) destroy; or (iii) damage [8-s 195.5] with intent [6-500] to steal;

a cultivated root or plant; and (2) this cultivated root or plant was used for: (i) the food of man or beast; (ii) medicine; (iii) distilling; (iv) dyeing; or (v) manufacture; and (3) this cultivated root or plant was growing in an inclosed land [12-25,005.1]; and (4) this inclosed land was not a: (i) garden; (ii) orchard; (iii) pleasure-ground; or (iv) nursery-ground.

____________________

[8-s 521A]

Stealing of rock, stone etc

521A Whosoever steals: (a) any rock or rocks, (b) any stone or stones, or (c) any gravel, soil, sand or clay, that is or are in, on or under, or forms or form part of any land shall, on conviction by the Local Court, be liable to imprisonment for 6 months, or to pay a fine of 5 penalty units, or both. [s 521A insrt Act 53 of 1980 Sch 1(9); am Act 112 of 1992 s 3 and Sch 1; Act 121 of 2001 s 4 and Sch 2.72[40], opn 7 July 2003; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009] Editor’s note: For proof material on s 521A, see [27-42,680] behind the “27 – Informations and Indictments” guide card in Vol 4. COMMENTARY ON SECTION 521A

Definitions …. Form of charge …. Elements of offence ….

[8-s 521A.1] [8-s 521A.5] [8-s 521A.10]

[8-s 521A.1] Definitions As to “steals” see [8-s 117.5].

PROOF MATERIAL ON SECTION 521A [8-s 521A.5] Form of charge That [name of accused] on [date of alleged offence] at [locality/suburb]

in the State of New South Wales did steal (a) rock(s)/ stone(s)/ gravel, soil, sand or clay the property of [name of person] which was/were in/on/under/form(ed) part of some land. [page 1220] [8-s 521A.10] Elements of offence The elements of the offence are — (1) The accused did steal [27-23,055] a/some: (a) rock(s); (b) stone(s); or (c) gravel, soil, sand or clay; (2) which was in, on, under or formed part of some land.

____________________

[8-s 522]

Possession of shipwrecked goods

522 Whosoever in whose possession any article belonging to a vessel in distress, or wrecked, stranded, or cast on shore, has been found, on being summoned before the Local Court, fails to satisfy them that he or she came lawfully by the same, shall be liable to imprisonment for six months, or to pay a fine of 5 penalty units, or both: And such article shall, by the order of the Local Court, be delivered to or for the use of the owner. [s 522 am Act 10 of 1924 s 23; Act 50 of 1974 s 11; Act 112 of 1992 s 3 and Sch 1; Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998; Act 121 of 2001 s 4 and Sch 2.72[39], [41], opn 7 July 2003; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009] Editor’s note: For proof material on s 522, see [27-42,700] behind the “27 – Informations and Indictments” guide card in Vol 4. COMMENTARY ON SECTION 522

Definitions …. Form of charge …. Elements of offence ….

[8-s 522.1] [8-s 522.5] [8-s 522.10]

[8-s 522.1] Definitions As to “possession” see [8-s 159.15].

PROOF MATERIAL ON SECTION 522 [8-s 522.5] Form of charge That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, did unlawfully possess a certain article, namely [describe article] to the value of [state value] belonging to [name of vessel] which was in distress/wrecked/stranded/cast on

shore at [location of shipwreck]. [8-s 522.10] Elements of offence The elements of the offence are — (1) The accused unlawfully possessed [8-s 7]; (2) any article belonging to a vessel in distress, or wrecked, stranded or cast on shore.

____________________

[8-s 523]

Offering shipwrecked goods for sale

523 Whosoever offers for sale any article unlawfully taken, or reasonably suspected to have been so taken, from any vessel in distress, or wrecked, stranded, or cast on shore, and who, on being summoned before the Local Court, fails to satisfy them that he or she came lawfully by such article, or received the same without knowing or having cause to suspect that it had been so taken as aforesaid, shall be liable to imprisonment for six months, or to pay a fine of 5 penalty units, or both. [page 1221] And such article shall, by the order of the Local Court, be delivered to or for the use of the owner upon payment of a reasonable reward, to be ascertained by them, to the person who seized the same. [s 523 am Act 10 of 1924 s 23; Act 50 of 1974 s 11; Act 112 of 1992 s 3 and Sch 1; Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998; Act 121 of 2001 s 4 and Sch 2.72[39], [41], opn 7 July 2003; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009] Editor’s note: For proof material on s 523, see [27-42,750] behind the “27 – Informations and Indictments” guide card in Vol 4. COMMENTARY ON SECTION 523

Seizure of articles …. Form of charge …. Elements of offence ….

[8-s 523.1] [8-s 523.5] [8-s 523.10]

[8-s 523.1] Seizure of articles Any articles mentioned in the section may be seized by the person to whom they are offered or any police or customs officer: s 524.

PROOF MATERIAL ON SECTION 523

[8-s 523.5] Form of charge That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, did offer for sale a certain article, namely [describe article] to the value of [state value], unlawfully taken/reasonably suspected to have been unlawfully taken from the [name of vessel] which was in distress/wrecked/stranded/cast on shore at [location of shipwreck]. [8-s 523.10] Elements of offence The elements of the offence are — (1) The accused offered for sale any article; (2) which was unlawfully taken or reasonably suspected to have been so taken from any vessel in distress, or wrecked, stranded, or cast on shore.

____________________

[8-s 524]

Seizure of such goods

524 Any person, to whom any article mentioned in section 523 is offered, or any officer of customs or police, may seize the same, and shall carry it to, or give notice of such seizure to, a Magistrate or an authorised officer. [s 524 am Act 121 of 2001 s 4 and Sch 2.72[42], opn 7 July 2003]

[8-s 525] Stealing or damaging books and other things in public library and other places 525 Whosoever steals, or removes, secretes, or damages with intent to steal, any book, print, manuscript, or other article, or any part thereof, kept for the purposes of reference, or exhibition, or of art, science, or literature, in any public library, or in any building belonging to the Queen, or to any university or college, or a council (within the meaning of the Local Government Act 1993), shall, on conviction by the Local Court, be liable to imprisonment for one year, and to pay a fine of 10 penalty units in addition to a fine equal to four times the value of the article stolen, or intended to have been stolen. [s 525 am Act 50 of 1974 s 11; Act 112 of 1992 s 3 and Sch 1; Act 121 of 2001 s 4 and Sch 2.72[37], opn 7 July 2003; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009] Editor’s note: For proof material on s 525, see [27-42,800] behind the “27 – Informations and Indictments” guide card in Vol 4.

[page 1222] COMMENTARY ON SECTION 525

Definitions …. Stealing from public places …. Form of charge …. Elements of offence …. [8-s 525.1] Definitions As to “steals” see [8-s 117]. As to “public library” see s 526. [8-s 525.5] Stealing from public places See [8-s 513.5].

[8-s 525.1] [8-s 525.5] [8-s 525.10] [8-s 525.15]

PROOF MATERIAL ON SECTION 525 [8-s 525.10] Form of charge That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, stole/(removed/secreted/damaged with intent to steal) part of/a certain book/print/manuscript/article, namely [describe book], kept for the purpose of reference/exhibition/art/science/literature in a certain public library, namely [name, location and owner of library] the property of [name of owner]. [8-s 525.15] Elements of offence The elements of the offence are — (1) The accused stole [27-23,055], or removed, secreted, or damaged with intent to steal; (2) any or any part of a book, print, manuscript, or article; (3) which was kept for reference, exhibition, art, science or literature in a public library [8-s 526], or in a building belonging to the Queen, or to any university or college, or a council within the meaning of the Local Government Act 1993.

____________________

[8-s 526]

Term “Public Library”

526 Every collection of books, prints, manuscripts, or similar articles, kept in any school-of-arts, or mechanics-institute, or in any building, or room, occupied or habitually used by the members of any association, or the residents of any area (within the meaning of the Local Government Act 1993), as a reading-room, or library, shall be deemed a public library within the meaning of section 525. [s 526 am Act 11 of 1995 Sch 1]

526A–527B [s 526A rep Act 2 of 1992 s 3 and Sch 1, opn 3 May 1992] [s 526B rep Act 59 of 1951 s 4(b)] [ss 527–527B rep Act 99 of 2009 Sch 2, opn 22 Feb 2010]

[8-s 527C] property

Persons unlawfully in possession of

527C (1) Any person who: (a) has any thing in his or her custody, (b) has any thing in the custody of another person, (c) has any thing in or on premises, whether belonging to or occupied by himself or herself or not, or whether that thing is there for his or her own use or the use of another, or

gives custody of any thing to a person who is not lawfully entitled (d) to possession of the thing, which thing may be reasonably suspected of being stolen or otherwise unlawfully obtained, is liable on conviction before the Local Court: [page 1223] (a) if the thing is a motor vehicle or a motor vehicle part, or a vessel or a vessel part, to imprisonment for 1 year, or to a fine of 10 penalty units, or both, or (b) in the case of any other thing, to imprisonment for 6 months, or to a fine of 5 penalty units, or both. [subs (1) am Act 9 of 1985 s 2 and Sch 1(2); Act 112 of 1992 s 3 and Sch 1; Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998; Act 31 of 1999 s 3 and Sch 4.20[3], opn 7 July 1999; Act 84 of 2001 s 3 and Sch 1[17], opn 14 Dec 2001; Act 121 of 2001 s 4 and Sch 2.72[19], opn 7 July 2003; Act 26 of 2006 s 3 and Sch 1[11], opn 1 Sep 2006; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009]

(1A) A prosecution for an offence under subsection (1) involving the giving of custody of a motor vehicle to a person who is not lawfully entitled to possession of the motor vehicle may be commenced at any time within 2 years after the date of commission of the offence. [subs (1A) insrt Act 23 of 1995 Sch 1]

(2) It is a sufficient defence to a prosecution for an offence under subsection (1) if the defendant satisfies the court that he or she had no reasonable grounds for suspecting that the thing referred to in the charge was stolen or otherwise unlawfully obtained. [subs (2) am Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998]

(3) In this section: motor vehicle has the same meaning as it has in Division 5A of Part 4. [def am Act 26 of 2006 s 3 and Sch 1[12], opn 1 Sep 2006; Act 99 of 2009 Sch 2, opn 22 Feb 2010]

premises includes any structure, building, vehicle, vessel or place, whether built on or not, and any part of any such structure, building, vehicle, vessel or place. [def am Act 26 of 2006 s 3 and Sch 1[13], opn 1 Sep 2006]

vessel means a vessel within the meaning of the Marine Safety Act 1998. [def insrt Act 26 of 2006 s 3 and Sch 1[14], opn 1 Sep 2006]

[subs (3) subst Act 84 of 2001 s 3 and Sch 1[18], opn 14 Dec 2001] [s 527C insrt Act 72 of 1979 s 4 and Sch 5] Editor’s note: For proof material on s 527C, see [27-43,000] behind the “27 – Informations and Indictments” guide card in Vol 4. COMMENTARY ON SECTION 527C

Definitions …. Time of custody …. “Reasonably suspected of being stolen” …. “Otherwise unlawfully obtained” …. Defence …. Custody of money …. Giving custody to another person …. Has a thing in or on premises …. Form of charge …. Having goods in custody …. Giving custody of goods to another not lawfully entitled Elements of offence …. Statutory defence ….

[8-s 527C.1] [8-s 527C.5] [8-s 527C.10] [8-s 527C.15] [8-s 527C.20] [8-s 527C.25] [8-s 527C.30] [8-s 527C.35] [8-s 527C.40] [8-s 527C.45] [8-s 527C.50] [8-s 527C.55] [8-s 527C.60]

[8-s 527C.1] Definitions As to “stolen” see [8-s 117.5]. “Custody” is “the immediate de facto control or charge of the article in question”: Ex parte McPherson (1933) 50 WN (NSW) 25. “Any thing” can include bank notes: R v Dittmar [1973] 1 NSWLR 722, but not money in a bank account: Grant v R (1981) 147 CLR 503; 35 ALR 97. [page 1224] The thing must itself be suspected of having been stolen and not to be the proceeds of the stealing: Brebner v Seager [1926] VLR 166; Grant v R, above where it was held that the word “thing” in the section is a reference to the same physical object throughout, and it is that object to which the reasonable suspicion of being stolen or otherwise unlawfully obtained must attach. [8-s 527C.5] Time of custody A person cannot be convicted for an offence under s 527C(1)(a) where, at the time of arrest, the person did not have custody of the property which is the subject of the charge: R v English (1989) 17 NSWLR 149. However, where the police have taken possession of the goods in order to investigate the circumstances of the defendant’s possession and to see whether a reasonable suspicion may or may not arise, then the defendant may still be convicted of the offence, notwithstanding that he may not have custody of the goods at the time of arrest or apprehension: Ex parte Miller; Re Hamilton (1934) 51 WN

(NSW) 101, cited with approval in R v English at 155 only so far as this point was concerned. [8-s 527C.10] “Reasonably suspected of being stolen” It is for the magistrate to decide at the time of the hearing, whether there is a reasonable suspicion that the goods were stolen or unlawfully obtained and any evidence available at the time of the hearing if relevant is admissible: Ex parte Patmoy; Re Jack (1944) 44 SR (NSW) 351. It is not necessary for the possession or custody of the goods and the suspicion that the goods are stolen to be co-existent: R v Abbrederis (1981) 36 ALR 109; [1981] 1 NSWLR 530. The situation under this provision is to be contrasted with that in other States; see also Cleary v Hammond [1976] 1 NSWLR 111; Pittman v Di Francesco (1985) 4 NSWLR 133. The offence is not limited to those cases where there is only a suspicion as this is the minimum requirement for the section to operate: R v Grace (1930) 30 SR (NSW) 158; 47 WN (NSW) 51. The suspicion must attach to the goods and not to the person in whose custody they are found: O’Sullivan v Tregaskis [1948] SASR 12. Evidence not available to the police at the time of arrest is admissible to prove a reasonable suspicion at the time of the hearing. It is for the magistrate to decide on all the evidence before him, whether there is a reasonable suspicion that the goods were unlawfully obtained: Cleary v Hammond [1976] 1 NSWLR 111; Parker v Todhunter (1987) 26 A Crim R 169. The relevance of hearsay to the determination of whether a reasonable suspicion exists was considered in Tucs v Manley (1985) 62 ALR 460 in respect of an offence under the Customs Act where expert opinion based on hearsay evidence was allowed on the question of whether there was a reasonable suspicion that goods were imported, applying R v Lavelle (1987) 2 Crim LJ 105, a case concerned with a narcotics agent’s reasonable suspicion to found the power of arrest. The nature of suspicion and what is necessary to be proved for the purpose of the section were considered in Anderson v Judges of the District Court (NSW) (1992) 27 NSWLR 701; 62 A Crim R 277 and R v Chan (1992) 28 NSWLR 421. The question for the court is to determine whether at the end of all the evidence before the court there was a reasonable suspicion connected with the goods and the prosecution are entitled to cross-examine the defendant to show that the property was unlawfully obtained in any way: Haken v Johnson (NSWSC, Wood J, 15 October 1993, unreported, BC9302396). It is not necessary in considering a case under the section for the court to be concerned as to whether the offence of larceny or any other offence may have been committed, as the selection of the charge is a matter for the prosecuting authority: R v Carter (NSWCCA, 9 March 1978, unreported); (1978) 4 Petty SR 1859. The offence is not limited to a case where there is “suspicion and no more”, as a reasonable suspicion is the minimum requirement under the section, and it is not the case that a person should escape liability under the section if there were some stronger feeling of mind than suspicion: R v Grace (1930) 30 SR (NSW) 158; 47 WN (NSW) 51. It is not necessary that the prosecution prove a reasonable suspicion that the goods had been stolen or unlawfully obtained in the State of New SouthWales: R v Porter (2004) 61 NSWLR 384; 186 FLR 350; [2004] NSWCCA 353; BC200406904; (2004) 11 Crim LN 109 [1788]. The offence under s 527C is geographically confined in the sense that a person must be found with a “thing in [page 1225] his custody” and that thing must answer the description of a “thing” which “may be reasonably suspected of being stolen or otherwise unlawfully obtained”: Porter at [22]. The geographical provenance of the goods in custody may be unknown: Porter at [28]. [8-s 527C.15] “Otherwise unlawfully obtained” The section is not restricted to offences of a dishonest nature, but relates to any unlawful activity such as the sale of drugs: Purdon v Dittmar [1972] 1 NSWLR 94.

[8-s 527C.20] Defence The defendant has to satisfy the court on the balance of probabilities that he had no reasonable grounds for suspecting that the goods were stolen or unlawfully obtained: Ex parte Patmoy; Re Jack, above; Tegge v Caldwell (1988) 15 NSWLR 226. The standard of proof upon the defendant to satisfy the court is the civil standard. [8-s 527C.25] Custody of money Whilst bank notes and coins can be the subject of a charge under the section (R v Dittmar [1973] 1 NSWLR 722) money should not be charged as a total amount but should be particularised in the information. However if it is not, this does not mean that the information is bad, but better particulars may be required: Edens v Cleary [1975] 1 NSWLR 278. It is not necessary that the reasonable suspicion pertain to all the money in the custody of the defendant so long as some of the money attracted the suspicion: Edens v Cleary, above. If the evidence shows that a defined portion or a number of things could not be reasonably suspected of being stolen, then it is preferable that the defendant be recharged but it is not necessary to do so. The nature of the section and what it was necessary for the prosecution to prove in relation to banknotes were considered in Anderson v Judges of the District Court (NSW) (1992) 27 NSWLR 701; 62 A Crim R 277 and R v Chan (1992) 28 NSWLR 421. [8-s 527C.30] Giving custody to another person Section 527(C)(1)(d) was considered in Gilroy v Jebara (1992) 29 NSWLR 20 where it was held that the subsection contemplates the giving of custody, whether temporary or permanent, and whether for consideration or not, and is not restricted to a bailment situation. Further it was held that the lawful entitlement to possession of the goods must exist before custody of the goods is given to another, so that an offence under this provision may be committed where the defendant sells or disposes of the goods to a bona fide purchaser for value. [8-s 527C.35] Has a thing in or on premises The element of having a thing in or on premises for the purpose of s 527C(1)(c) is satisfied where the defendant has knowledge that the thing was in or on premises and exercises some degree of control in respect of the presence of the thing in or on the premises; the defendant’s purpose for having the thing is not relevant: Sturdy v Katarzynski (NSWSC, Sperling J, 17 March 1997, unreported; BC9708272) applying JAL and LL, In the Appeals of (1974) 3 DCR 182 at 187–8 190.

PROOF MATERIAL ON SECTION 527C [8-s 527C.40] Form of charge [8-s 527C.45] Having goods in custody That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales had [brief description of property] in his/her custody/in the custody of [name of third party]/in/on premises at [location of premises] which [brief description of property] was reasonably suspected of being stolen or otherwise unlawfully obtained. [8-s 527C.50] Giving custody of goods to another not lawfully entitled That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales gave custody of [brief description of property] to [name of third party], the said [name of third party] being not lawfully entitled to possession of the said [brief description of property] which was reasonably suspected of being stolen or otherwise unlawfully obtained. [page 1226]

[8-s 527C.55] Elements of offence The elements of the offence are — (1) The accused either: (i) had anything in his/her custody [8-s 527C.1]; (ii) had anything in the custody [8-s 527C.1] of another person; (iii) had anything in or on premises [8-s 527C(3)] whether belonging to or occupied by the accused or whether the thing was there for the use of the accused or the use of another person; or (iv) gave custody [8-s 527C.1] of anything to any person who was not lawfully entitled to possession [8-s 7] [8-s 159.20] of the thing; and (2) the thing may be reasonably suspected of being stolen [8-s 527C.10] [8-s 117.5] or otherwise unlawfully obtained [8-s 527C.15]. [8-s 527C.60] Statutory defence It is a sufficient defence if the accused satisfies the court that he/she had no reasonable grounds for suspecting that the thing referred to in the charge was stolen or otherwise unlawfully obtained: see s 527C(2) at [8-s 527C].

____________________ 528 [s 528 rep Act 99 of 2009 Sch 2, opn 22 Feb 2010]

DIVISION 2 — OTHER OFFENCES [Div heading insrt Act 53 of 2000 s 3 and Sch 3.3, opn 29 June 2000; am Act 77 of 2005 s 48 and Sch 5.1[3], opn 1 Jan 2006]

[8-s 529]

Criminal defamation

529 (1) Common law misdemeanour of criminal libel abolished The common law misdemeanour of criminal libel remains abolished. (2) Blasphemous, seditious or obscene libel not affected Subsection (1) does not affect the law relating to blasphemous, seditious or obscene libel. (3) Offence of criminal defamation A person who, without lawful excuse, publishes matter defamatory of another living person (the victim): (a) knowing the matter to be false, and (b) with intent to cause serious harm to the victim or any other person or being reckless as to whether such harm is caused, is guilty of an offence. Maximum penalty: 3 years imprisonment. (4) Lawful excuse A defendant in proceedings for an offence under this section has a lawful excuse for the publication of defamatory matter about the

victim if, and only if, the defendant would, having regard only to the circumstances happening before or at the time of the publication, have had a defence for the publication if the victim had brought civil proceedings for defamation against the defendant. (5) Prosecution to negative lawful excuse The prosecution bears the onus of negativing the existence of a lawful excuse if, and only if, evidence directed to establishing the excuse is first adduced by or on behalf of the defendant. (6) Functions of jury On a trial before a jury for an offence under this section: (a) the question of whether the matter complained of is capable of bearing a defamatory meaning is a question for determination by the judicial officer presiding, and (b) the question of whether the matter complained of does bear a defamatory meaning is a question for the jury, and [page 1227] (c) the jury may give a general verdict of guilty or not guilty on the issues as a whole. (7) DPP to consent to proceedings Proceedings in a court for an offence under this section cannot be instituted without the written consent of the Director of Public Prosecutions. (8) Evidence of consent of DPP In those proceedings, a consent purporting to have been signed by the Director of Public Prosecutions is, without proof of the signature, evidence of that consent. (9) Proceedings for an offence do not bar civil proceedings The commencement of criminal proceedings for an offence under this section does not prevent: (a) the commencement of civil proceedings for defamation against the defendant in the criminal proceedings, or (b) the determination of the civil proceedings pending the determination of the criminal proceedings. (10) Proof of convictions for offences If the question whether or not a

person committed an offence (other than offence under this section) arises in proceedings for an offence under this section, section 42 of the Defamation Act 2005 applies to the proof of the commission of that offence in the same way as it applies to such proof in civil proceedings for defamation. (11) Interpretation In this section, publish and defamatory have the meanings that they have in the law of tort (as modified by the Defamation Act 2005) relating to defamation. [s 529 insrt Act 77 of 2005 s 48 and Sch 5.1[4], opn 1 Jan 2006]

PROOF MATERIAL ON SECTION 529 [8-s 529.1] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did, without lawful excuse, publish matter defamatory of [name of victim], in circumstances where he/she knew the matter to be false and with the intention of causing serious harm to [name of victim]/was reckless as to whether serious harm would be caused to [name of victim]. [8-s 529.5] Elements of offence The elements of the offence are — (1) The accused, without lawful excuse [8-s 529(4)]; (2) published defamatory matter; (3) of another living person; (4) knowing [6-515] the matter to be false; and (5) (a) with the intention [6-500] of causing; or (b) being reckless [6-505] as to whether it will cause serious harm to the living person.

____________________

[8-s 530]

Serious animal cruelty

530 (1) A person who, with the intention of inflicting severe pain: (a) tortures, beats or commits any other serious act of cruelty on an animal, and (b) kills or seriously injures or causes prolonged suffering to the animal, is guilty of an offence. Maximum penalty: Imprisonment for 5 years. [page 1228]

(2) A person is not criminally responsible for an offence against this section if: (a) the conduct occurred in accordance with an authority conferred by or under the Animal Research Act 1985 or any other Act or law, or (b) the conduct occurred in the course of or for the purposes of routine agricultural or animal husbandry activities, recognised religious practices, the extermination of pest animals or veterinary practice. (3) In this section: animal means a mammal (other than a human being), a bird or a reptile. [s 530 insrt Act 94 of 2005 s 3 and Sch 1, opn 16 Dec 2005]

PROOF MATERIAL ON SECTION 530 [8-s 530.1] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did, with the intention of inflicting severe pain, torture / beat / commit a serious act of cruelty on an animal, causing death / serious injury / prolonged suffering to the animal. [8-s 530.5] Elements of offence The elements of the offence are— (1) The accused, with the intention [6-500] of inflict inflicting severe pain on an animal [8-s 530(3)]: (a) tortured; or (b) beat; or (c) committed a serious act of cruelty on; the animal; and (2) the act or omission of the accused caused: (a) the death of; (b) seriously injury to; (c) prolonged suffering to; the animal.

____________________

[8-s 531] Killing or seriously injuring animals used for law enforcement 531 (1) A person who intentionally kills or seriously injures an animal: (a) knowing that the animal is being used by a law enforcement officer in the execution of the officer’s duty, or

(b) as a consequence of, or in retaliation for, the use of the animal by a law enforcement officer while in the execution of the officer’s duty, is guilty of an offence. Maximum penalty: Imprisonment for 5 years. (2) In this section: animal means a dog, horse or other mammal (other than a human being). law enforcement officer means: (a) a police officer (including a member of the police force of the Commonwealth or another State or Territory), or (b) any other official of this State, the Commonwealth or another State or Territory who is authorised to use an animal in connection with the detention of persons or the enforcement of the laws of this State, the Commonwealth or another State or Territory. [s 531 insrt Act 94 of 2005 s 3 and Sch 1, opn 16 Dec 2005]

[page 1229]

PROOF MATERIAL ON SECTION 531 [8-s 531.1] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales killed / seriously injured an animal being used by a law enforcement officer in the execution of the officer’s duty, knowing that the animal was being used by a law enforcement officer in the execution of the officer’s duty / as a consequence of / in retaliation for the use of the animal by a law enforcement officer in the execution of the officer’s duty. [8-s 531.5] Elements of offence The elements of the offence are— (1) The accused: (a) killed; or (b) seriously injured; an animal [8-s 531(2)]; and (2) the act or omission of the accused was intentional [6-500]; and the animal. (3) the animal was being used by a law enforcement officer [8-s 531(2)] in the execution the officer’s duty; and (4) the act or omission was done by the accused: (a) with knowledge [6-515] that the animal was being used by a law enforcement officer in the execution the officer’s duty; or

(b) (i) as a consequence of; or (ii) in retaliation for; the use of the animal by a law enforcement officer in the execution the officer’s duty.

____________________ 532–545AB [ss 532–538 rep Act 31 of 1951 s 4] [ss 539–545 rep Act 50 of 1974 s 12] [s 545A rep Act 99 of 2009 Sch 2, opn 22 Feb 2010] [s 545AB rep Act 38 of 2007 s 103 and Sch 2.7[2], opn 10 Mar 2008]

[8-s 545B] Intimidation or annoyance by violence or otherwise 545B (1) Whosoever: (a) with a view to compel any other person to abstain from doing or to do any act which such other person has a legal right to do or abstain from doing, or (b) in consequence of such other person having done any act which he had a legal right to do, or of his having abstained from doing any act which he had a legal right to abstain from doing, wrongfully and without legal authority: (i) uses violence or intimidation to or toward such other person or his wife, child, or dependant, or does any injury to him or to his wife, child, or dependant, or (ii) follows such other person about from place to place, or (iii) hides any tools, clothes, or other property owned or used by such other person, or deprives him of or hinders him in the use thereof, or (iv) [repealed] (v) follows such other person with two or more other persons in a disorderly manner in or through any street, road, or public place, [page 1230]

is liable, on conviction before the Local Court, to imprisonment for 2 years, or to a fine of 50 penalty units, or both. [subs (1) am Act 112 of 1992 s 3 and Sch 1; Act 101 of 1993 s 3 and Sch 2; Act 6 of 1996 s 3 and Sch 1.2, opn 16 Aug 1996; Act 121 of 2001 s 4 and Sch 2.72[44], opn 7 July 2003; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009]

(2) In this section: Intimidation means the causing of a reasonable apprehension of injury to a person or to any member of his family or to any of his dependants, or of violence or damage to any person or property, and intimidate has a corresponding meaning. Injury includes any injury to a person in respect of his property, business, occupation, employment, or other source of income, and also includes any actionable wrong of any nature. [subs (2) am Act 6 of 1996 s 3 and Sch 1.2, opn 16 Aug 1996; Act 82 of 2007 s 3 and Sch 2(2.1)(1)– (2), opn 7 Dec 2007] COMMENTARY ON SECTION 545B

Scope of section …. Hindering another person ….

[8-s 545B.1] [8-s 545B.5]

[8-s 545B.1] Scope of section Section 545B was amended in 1996 by the repeal of s 545B(1)(b)(iv) and the replacement of s 545B(2). The offence of watching and besetting, considered in R v Van der Lubbe (1949) 66 WN (NSW) 140; (1949) 49 SR (NSW) 309, has been repealed. [8-s 545B.5] Hindering another person The elements of the offence where a person hinders another in carrying out what the other person had a legal right to do were considered in R v Keenan (1994) 76 A Crim R 374; (1995) 2 Crim LN 3 [320].

____________________

[8-s 545C] Knowingly joining or continuing in etc an unlawful assembly 545C (1) Whosoever knowingly joins an unlawful assembly or continues in it shall be taken to be a member of that assembly, and shall, on conviction before the Local Court, be liable to imprisonment for a term not exceeding six months or to a fine not exceeding 5 penalty units, or both. [subs (1) am Act 112 of 1992 s 3 and Sch 1; Act 31 of 1999 s 3 and Sch 4.20[3], opn 7 July 1999; Act 121 of 2001 s 4 and Sch 2.72[19], opn 7 July 2003; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009]

(2) Whosoever being armed with any weapon or loaded arms, or with

anything which used as a weapon of offence is likely to cause death or grievous bodily harm, is a member of an unlawful assembly, shall be liable, on conviction before the Local Court, to imprisonment for a term not exceeding twelve months or to a fine not exceeding 10 penalty units, or both. [subs (2) am Act 112 of 1992 s 3 and Sch 1; Act 31 of 1999 s 3 and Sch 4.20[3], opn 7 July 1999; Act 121 of 2001 s 4 and Sch 2.72[19], opn 7 July 2003; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009]

(3) Any assembly of five or more persons whose common object is by means of intimidation or injury to compel any person to do what the person is not legally bound to do or to abstain from doing what the person is legally entitled to do, shall be deemed to be an unlawful assembly. [s 545C insrt Act 31 of 1929 s 2; am Act 50 of 1974 s 12; Act 53 of 1980 Sch 2(29); Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998] Editor’s note: For proof material on s 545C, see [27-43,100] behind the “27 – Informations and Indictments” guide card in Vol 4.

[page 1231] COMMENTARY ON SECTION 545C

Public assemblies …. Unlawful assembly …. Proof of the offence …. Form of charge …. Joining or continuing in unlawful assembly — s 545C(1) …. Member of unlawful assembly being armed with weapon — s 545C(2) …. Elements of offence …. Joining or continuing in unlawful assembly …. Member of unlawful assembly being armed with weapon

[8-s 545C.1] [8-s 545C.5] [8-s 545C.10] [8-s 545C.15] [8-s 545C.20] [8-s 545C.25] [8-s 545C.30] [8-s 545C.35] [8-s 545C.40]

[8-s 545C.1] Public assemblies See Summary Offences Act ss 22-27 at [11-525]. [8-s 545C.5] Unlawful assembly The basis of an unlawful assembly is the intent to do an act which is a breach of the peace and a lawful assembly may thereby become unlawful: Kamara v DPP [1974] AC 104. The relationship between offences created by this section and unlawful assembly at common law has been considered: Black v Corkery (1988) 33 A Crim R 134; BC8802238, overturned on appeal in Corkery v Black (NSWCA, 2 August 1989, unreported, BC8901886) but not in relation to this matter.

[8-s 545C.10] Proof of the offence See Munday v Gill (1930) 44 CLR 38; BC3000017.

PROOF MATERIAL ON SECTION 545C [8-s 545C.15] Form of charge [8-s 545C.20] Joining or continuing in unlawful assembly — s 545C(1) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, did knowingly join/continue in a certain unlawful assembly, namely [describe unlawful assembly]. [8-s 545C.25] Member of unlawful assembly being armed with weapon — s 545C(2) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, while being armed with a weapon [describe weapon] was a member of an unlawful assembly, namely [describe unlawful assembly]. [8-s 545C.30] Elements of offence The elements of the offence are — [8-s 545C.35] Joining or continuing in unlawful assembly (1) The accused knowingly joined in or continued in an unlawful assembly [8-s 545C.5]. [8-s 545C.40] Member of unlawful assembly being armed with weapon (1) The accused, being armed with a weapon or loaded arms [8-s 4] or with anything which when used as a weapon of offence is likely to cause death or grievous bodily harm s 1; (2) was a member of an unlawful assembly [8-s 545C.5].

____________________ 545D–545E [ss 545D–545E rep Act 48 of 2004 s 3 and Sch 1, opn 12 Nov 2004] Editor’s note: s 545E was renumbered as s 93FB.

[8-s 546]

Abetting or procuring

546 Whosoever, where any offence is by this Act punishable on summary conviction, aids, abets, counsels, or procures the commission of such offence, shall, on [page 1232] conviction by the Local Court, be guilty in the same degree, and liable to the same forfeiture, and punishment, as the principal offender. [s 546 am Act 50 of 1974 s 12; Act 121 of 2001 s 4 and Sch 2.72[37], opn 7 July 2003; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009]

COMMENTARY ON SECTION 546

Aiding and abetting ….

[8-s 546.1]

[8-s 546.1] Aiding and abetting See generally Criminal Responsibility at [6–110].

____________________

Consorting with convicted persons 546A [s 546A rep Act 3 of 2012 Sch 1[10], opn 9 Apr 2012] Editor’s note: See [8A-REP s 546A] for a historical version of this legislation.

[8-s 546B] Convicted persons found with intent to commit offence 546B (1) Any person who, having been convicted of an indictable offence, is found in or near any premises or public place with intent to commit an indictable offence shall be liable on conviction before the Local Court to imprisonment for 6 months, or to a fine of 4 penalty units. [subs (1) am Act 112 of 1992 s 3 and Sch 1; Act 31 of 1999 s 3 and Sch 4.20[3], opn 7 July 1999; Act 121 of 2001 s 4 and Sch 2.72[19], opn 7 July 2003; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009]

(2) In this section, premises includes any structure, building, vehicle, vessel or place, whether built upon or not, and any part thereof. [subs (2) am Act 26 of 2006 s 3 and Sch 1[15], opn 1 Sep 2006] [s 546B insrt Act 72 of 1979 s 4 and Sch 5] Editor’s note: For proof material on s 546B, see [27-43,250] behind the “27 – Informations and Indictments” guide card in Vol 4. COMMENTARY ON SECTION 546B

Definitions …. Form of charge …. Elements of offence ….

[8-s 546B.1] [8-s 546B.5] [8-s 546B.10]

[8-s 546B.1] Definitions “Found” means “seen” or “discovered” in or near a public place: R v Yates [1963] SR (NSW) 477; (1963) 80 WN (NSW) 744. As to “public place” see s 8 at [8-s 8].

PROOF MATERIAL ON SECTION 546B [8-s 546B.5] Form of charge That [name of accused] on [date of alleged offence] at [locality/suburb]

in the State of New South Wales, having been convicted of an indictable offence, namely [describe previous offence] on [date of conviction] at [location and jurisdiction of court], was found in/near premises/a public place [describe place] with intent to commit an indictable offence. [8-s 546B.10] Elements of offence The elements of the offence are — (1) The accused, having previously been convicted of an indictable offence [29-45,200]; (2) was found [8-s 546B.1] in or near premises [8-s 546B(2)] or a public place [8-s 8]; (3) with intent [6-500] to commit an indictable offence [29-45,200].

____________________ [page 1233]

[8-s 546C]

Resisting etc police

546C Any person who resists or hinders or incites any person to assault, resist or hinder a police officer in the execution of his or her duty shall be liable on conviction before the Local Court to imprisonment for 12 months or to a fine of 10 penalty units, or both. [s 546C insrt Act 72 of 1979 s 4 and Sch 5; am Act 51 of 1990 s 3 and Sch 1(4); Act 112 of 1992 s 3 and Sch 1; Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998; Act 31 of 1999 s 3 and Sch 4.20[3], opn 7 July 1999; Act 121 of 2001 s 4 and Sch 2.72[19], opn 7 July 2003; Act 94 of 2006 s 4 and Sch 3[2], opn 22 Nov 2006; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009] Editor’s note: For proof material on s 546C, see [27-43,300] behind the “27 – Informations and Indictments” guide card in Vol 4. COMMENTARY ON SECTION 546C

Elements of offence …. Resist …. Hinder …. Execution of duty …. Form of charge …. Resisting or hindering police …. Inciting another to resist etc …. Elements of offence …. [8-s 546C.1] Elements of offence A person shall be guilty of an offence if he: (a) resists or hinders, (b) incites another to assault, resist or hinder (c) a member of the police force

[8-s 546C.1] [8-s 546C.5] [8-s 546C.10] [8-s 546C.15] [8-s 546C.20] [8-s 546C.25] [8-s 546C.30] [8-s 546C.35]

(d) in the execution of his duty. See also ss 58 and 494 of the Crimes Act. [8-s 546C.5] Resist To resist is to oppose by force a course of action which the person resisted is undertaking: R v Galvin (No 2) [1961] VR 740; but see R v Reynhoudt (1962) 107 CLR 381; [1962] ALR 483; BC6200250. Excessive authority may be lawfully resisted but no more force than is necessary is permitted: Piddington v Bates [1960] 3 All ER 660; [1961] 1 WLR 162; Donnelly v Jackman [1970] 1 WLR 562; 1 All ER 987. [8-s 546C.10] Hinder A constable is hindered by an obstruction or interference that makes his duty substantially more difficult in performance: Plunkett v Kroemer [1934] SASR 124 at 127; Leonard v Morris (1975) 10 SASR 528; Jones v Daire (1983) 32 SASR 369. The defendant must either intend substantially to impede a police officer in the execution of his duty (whether or not the defendant knows him to be a police officer or that he is acting in the execution of his duty) or else he must, being aware that what he is doing or about to do is likely so to impede that individual, decide nevertheless to do it or go on doing it: Leonard v Morris, above at 531 per Bray CJ, applied in Worsley v Aitken (Sully J, 16 March 1990, unreported); (1990) 9 Petty SR 4074. [8-s 546C.15] Execution of duty A police officer reasonably believing that a breach of the peace is about to take place is entitled to take some steps as are necessary to prevent it, including reasonable use of force: Piddington v Bates, above; Albert v Lavin [1981] 2 WLR 1070; Rice v Connolly [1966] 2 QB 414; 2 All ER 649. A police officer may act in the execution of his duty whether in his ordinary working hours or not. He has a continuing duty to assist in preventing breaches of the peace: Horne v Coleman (1929) 46 WN (NSW) 30. 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 as long as he is [page 1234] engaged in that task until it is completed, provided he does nothing outside the ambit of his duty so as to cease to be so acting: Director of Public Prosecutions Reference No 1 of 1993; R v K (1993) 118 ALR 596; 46 FCR 336. A police officer who exercises the power of arrest contrary to s 99(3) of the Law Enforcement (Powers and Responsibilities) Act 2002 is not acting in the exercise of his or her duty: Williams v DPP(NSW) [2011] NSWSC 1085; BC201107318; 18(10) Crim LN [2972]. It is not necessary to prove that the defendant knew the police officer was a member of the police force at the time of the hindering or resisting. A defence of honest and reasonable mistake is available: R v Reynhoudt (1962) 107 CLR 381; [1962] ALR 483; BC6200250. 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 (Jensen v Eleftheriou [1982] VR 184), nor is it necessary that a charge relating to the events arising out of which the arrest was taking place be brought: McLachlan v Mesics (1966) 116 CLR 340; BC6600790. Nor does an arrest become unlawful when the person is charged with an offence other than one upon which he is arrested: Wiltshire v Barrett [1966] 1 QB 312; [1965] 2 All ER 271; Weekes v Lahood (NSWSC, Grove J, 31 July 1992, unreported, BC9201717); (1992) 10 Petty SR 4501.

PROOF MATERIAL ON SECTION 546C

[8-s 546C.20] Form of charge [8-s 546C.25] Resisting or hindering police That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did resist/hinder [name and rank of police officer], a member of the police force in the execution of his/her duty. [8-s 546C.30] Inciting another to resist etc That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales did incite [name of other party] to assault/resist/hinder [name and rank of police officer], a member of the police force in the execution of his/her duty. [8-s 546C.35] Elements of offence The elements of the offence are — (1) The accused resisted [8-s 546C.5] or hindered [8-s 546C.10], or incited another person to assault, resist or hinder; (2) a member of the police force; (3) in the execution of his/her duty [8-s 546C.15].

____________________

[8-s 546D]

Impersonation of police officers

546D (1) General offence A person who impersonates a police officer is guilty of an offence. Maximum penalty: Imprisonment for 2 years, or a fine of 100 penalty units, or both. (2) Aggravated offence A person who, with intent to deceive: (a) impersonates a police officer, and (b) purports to exercise a power or function as a police officer, is guilty of an offence. Maximum penalty: Imprisonment for 7 years. (3) An offence against subsection (1) is a summary offence. (4) In this section: impersonation does not include conduct engaged in solely for satirical purposes. [s 546D insrt Act 94 of 2006 s 4 and Sch 3[3], opn 1 Feb 2007]

[page 1235]

547–547A [s 547 rep Act 94 of 1999 s 5 and Sch 3[6], opn 3 Apr 2000] [s 547AA rep Act 184 of 1987 Sch 1, opn 21 Feb 1988] [s 547A rep Act 99 of 2009 Sch 2, opn 22 Feb 2010]

[8-s 547B]

Public mischief

547B (1) Any person who, by any means, knowingly makes to a police officer any false representation that an act has been, or will be, done or that any event has occurred, or will occur, which act or event as so represented is such as calls for an investigation by a police officer, shall be liable on conviction before the Local Court to imprisonment for 12 months, or to a fine of 50 penalty units, or both. [subs (1) am Act 112 of 1992 s 3 and Sch 1; Act 31 of 1999 s 3 and Sch 4.20[3], opn 7 July 1999; Act 121 of 2001 s 4 and Sch 2.72[19], opn 7 July 2003; Act 94 of 2006 s 4 and Sch 3[4], opn 1 Feb 2007; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009]

(2) For the purposes of subsection (1), a person shall be deemed to make a representation to a police officer if the person makes the representation to any other person and the nature of the representation reasonably requires that other person to communicate it to a police officer and that person does so communicate it. [s 547B insrt Act 50 of 1974 s 12; am Act 51 of 1990 s 3 and Sch 1(5); Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998; Act 94 of 2006 s 4 and Sch 3[4], opn 1 Feb 2007] Editor’s note: For proof material on s 547B, see [27-43,350] behind the “27 — Informations and Indictments” guide card in Vol 4.

PROOF MATERIAL ON SECTION 547B [8-s 547B.1] Form of charge That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, did knowingly make to [name of informee] a (deemed) member of the police force, a false representation that [set out representation] which alleged act/event so represented called for an investigation by a member of the police force. [8-s 547B.5] Elements of offence The elements of the offence are — (1) The accused knowingly made to a member or deemed member of the police force; (2) a false representation that an act has been or will be done or that any event has occurred or will occur; (3) which, so represented, called for an investigation by a member of the police force.

____________________

[8-s 547C]

Peeping or prying

547C Any person who is in, on or near a building without reasonable cause with intent to peep or pry upon another person shall be liable on conviction before the Local Court to imprisonment for 3 months, or to a fine of 2 penalty units. [s 547C insrt Act 72 of 1979 s 4 and Sch 5; am Act 112 of 1992 s 3 and Sch 1; Act 31 of 1999 s 3 and Sch 4.20[3], opn 7 July 1999; Act 121 of 2001 s 4 and Sch 2.72[19], opn 7 July 2003; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009] Editor’s note: For proof material on s 547C, see [27-43,400] behind the “27 – Informations and Indictments” guide card.

PROOF MATERIAL ON SECTION 547C [8-s 547C.1] Form of charge That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, was in/on/near a building situated at [address [page 1236] of building] without reasonable cause and with intent to peep/pry upon another person, namely [name of victim]. [8-s 547C.5] Elements of offence The elements of the offence are — (1) The accused was in, on or near a building; (2) without reasonable cause; (3) with intent to peep or pry on the victim.

____________________

[8-s 547D] etc

Person apprehended carrying razor

547D Where a person is in lawful custody upon a charge of committing any crime or offence and is found to have been carrying at the time or immediately before the person was apprehended any razor, razor blade or other cutting weapon, the person shall, unless the court is satisfied that the person was carrying the same for a lawful purpose the proof of which shall lie upon the accused, be liable to imprisonment for a term not exceeding six months, or to a fine of 5 penalty units, or both. [s 547D insrt Act 128 of 2006 s 6 and Sch 4.1[1]; am Act 128 of 2006 s 6 and Sch 4.1[2]opn 12 Dec

2006] Editor’s note: For proof material on s 547D, see [27-44,000] behind the “27 – Informations and Indictments” guide card. COMMENTARY ON SECTION 547D

Person in lawful custody carrying weapon …. Offensive implements …. Lawful purpose …. Form of charge …. Elements of offence ….

[8-s 547D.1] [8-s 547D.5] [8-s 547D.10] [8-s 547D.15] [8-s 547D.20]

[8-s 547D.1] Person in lawful custody carrying weapon Section 547D operates only where a person who is already in lawful custody is then found, pursuant to a search of his person authorised by s 353A(1), to have been carrying a razor, razor blade or other cutting weapon: Pittman v Di Francesco (1985) 4 NSWLR 133. [8-s 547D.5] Offensive implements For a summary offence of having offensive implements in custody in a public place see s 11B of the Summary Offences Act at [11–230]. [8-s 547D.10] Lawful purpose Lawful purpose is not restricted solely to the immediate circumstances associated with the time and place at which a person is in lawful custody. It may encompass events both before and after the events of the time and place in particular question. Thus a person who carried a knife for use in his farming activities, a lawful purpose, and who did not think to remove it on the night in question was nevertheless carrying the knife for a lawful purpose. It may be that in appropriate circumstances the failure to take advantage of opportunity to remove the knife might throw doubt upon the reason why and the purpose for which the knife continued to be carried; but that opportunity alone cannot necessarily preclude a finding that a lawful purpose continued or existed: Bell v Atwell (1988) 32 A Crim R 181. Generally, as to “lawful purpose”, see Taikato v R (1996) 186 CLR 454; 139 ALR 386; [1996] HCA 28; BC9604824.

PROOF MATERIAL ON SECTION 547D [8-s 547D.15] Form of charge That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, being lawfully in police custody, had at the time of/immediately before coming into police custody, on his/her person, without lawful purpose, a razor/razor blade/cutting weapon. [page 1237] [8-s 547D.20] Elements of offence The elements of the offence are — (1) The accused, having been taken into lawful custody [8-s 547D.1] on a charge of having committed any crime or offence; (2) was found to have, at the time of or immediately before apprehension, a razor, razor blade or other cutting weapon; (3) without a lawful purpose [8-s 547D.10].

____________________

DIVISION 3 — GENERAL [Div heading insrt Act 53 of 2000 s 3 and Sch 3.3, opn 29 June 2000]

548–555 [s 548 rep Act 94 of 1999 s 5 and Sch 3, opn 3 Apr 2000] [s 548A rep Act 50 of 1974 s 12, opn 2 Aug 1974] [s 549 rep Act 94 of 1999 s 5 and Sch 3, opn 3 Apr 2000] [s 550–551 rep Act 94 of 1999 s 5 and Sch 3, opn 1 Jan 2000] [s 552–555 rep Act 94 of 1999 s 5 and Sch 3, opn 3 Apr 2000] Editor’s note: ss 548, 549–555 were repealed by Act 94 of 1999:

Section 550 was transferred to the Criminal Procedure Act 1986: see Sch 3, cl 16. Section 551 was transferred to the Criminal Procedure Act 1986: see Sch 3, cl 13.

[8-s 556] Summary conviction a bar to further proceedings 556 (1) Where any person, summarily convicted under this Act, pays the sum or sums adjudged to be paid, together with costs, or receives a remission thereof from the Crown, or suffers the imprisonment provided for nonpayment thereof, or the imprisonment adjudged in the first instance, he or she shall not be liable: (a) to any other criminal proceedings for the same cause, (b) to any civil proceedings for the same cause at the suit of the person laying the information upon which he or she was summarily convicted under this Act. [subs (1) am Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998]

(2) Any person against whom civil proceedings have been taken in respect of any act or thing done or omitted to be done by him or her which is an offence of which he or she might have been convicted summarily without consent under this Act shall be released from all criminal proceedings for the same cause on the information of the person by whom the civil proceedings were taken. [s 556 am Act 16 of 1955 s 4; Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998]

COMMENTARY ON SECTION 556

Scope of the section ….

[8-s 556.1]

[8-s 556.1] Scope of the section The section is designed to prevent multiplicity of actions and to put a person aggrieved by an act which is both a crime and a tort to an election to institute either civil or criminal proceedings: Knezevic v Markovic (1985) 5 FCR 219; 59 ALR 557, where the history and purpose of the section were considered. As to offences for which a person can be convicted without consent, see ss 495, 496 and 496A. The effect of s 556(2) was considered in Holloway v R [2015] NSWCCA 207; BC201507292; 22(9) Crim LN [3586] where it was held that a trial judge was right to reject an application for a stay in respect of Table 1 offences, where the party has to elect summary proceedings rather than consent to those proceedings. It was held the word “information” in the section is to be given its technical meaning. Thus the section does not apply to a trial of offences on indictment. [page 1238] The following propositions emerge from the decisions in Ritson v Myers [2013] NSWCA 176; BC201303074 and Holloway v R [2015] NSWCCA 207; BC201507292; 22(9) Crim LN [3586]: (a) the purpose of s 556(2) is to prohibit summary criminal proceedings being taken by an aggrieved person against a person for a particular act when civil proceedings have already been taken by that aggrieved person for the same act: Holloway v R at [15]–[21]; (b) the bar to criminal proceedings applies to relatively minor offences and to criminal prosecutions “for the same cause on the information of the person by whom the civil proceedings were taken”, requiring the person aggrieved to elect to institute either civil or criminal proceedings: Ritson v Myers at [12]; Holloway v R at [22]–[23]; (c) the provision does not prevent criminal proceedings being taken separately by the police: Holloway v R at [16]; (d) the words “without consent under this Act” in s 556(2) refer to the previous legislative position when certain offences could be heard summarily if certain conditions were met and the defendant consented — the regimen of “consent” was substantially altered when, under s 260 Criminal Procedure Act 1986, parties could elect to have an offence dealt with on indictment (Table 1 offences) and by the prosecutor electing to have the offence dealt with on indictment (Table 2 offences): Holloway v R at [25]–[27]; and (e) there is no sound basis to conclude that the replacement of the former regime, by one turning on the right of either party to elect, expanded the protection given by s 556(2): Holloway v R at [27]–[28].

____________________

PARTS 15–15A — [Repealed] [Pt 15 rep Act 94 of 1999 s 5 and Sch 3[7], opn 3 Apr 2000; Pt 15A rep Act 80 of 2007 s 103 and Sch 2.7[3], opn 10 Mar 2008]

PART 16 — MISCELLANEOUS ENACTMENTS 563–573 [s 563 rep Act 103 of 2002 s 240 and Sch 4.16[7], opn 1 Dec 2005] [ss 564–567A rep Act 94 of 1999 s 5 and Sch 3[17], opn 1 Jan 2000] [ss 568–571 rep Act 9 of 1973 Schs 1–2, opn 1 July 1973] [s 572 rep Act 212 of 1986 Sch 1, opn 13 July 1987] [s 573 rep Act 6 of 1996 s 3 and Sch 1.2, opn 16 Aug 1996] Editor’s note: Sections 564–567A were repealed by s 5 and Sch 3 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. Section 564 was transferred to the Criminal Procedure Act 1986: see s 307 at [2-s 307]. Section 566 was transferred to the Criminal Procedure Act 1986: see s 308 at [2-s 308]. Section 567 was transferred to the Criminal Procedure Act 1986: see s 27 at [2-s 27].

[8-s 574]

Prosecutions for blasphemy

574 No person shall be liable to prosecution in respect of any publication by him or her orally, or otherwise, of words or matter charged as blasphemous, where the same is by way of argument, or statement, and not for the purpose of scoffing or reviling, nor of violating public decency, nor in any manner tending to a breach of the peace. [s 574 am Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998]

574A [s 574A rep Act 94 of 1999 s 5 and Sch 3[17], opn 1 Jan 2000] Editor’s note: Section 574A 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 22 at [2-Sch 3].

[page 1239]

[8-s 574B]

Prevention of suicide

574B It shall be lawful for a person to use such force as may reasonably be necessary to prevent the suicide of another person or any act which the person believes on reasonable grounds would, if committed, result in that suicide. 575–578 [ss 575–578 rep Act 94 of 1999 s 5 and Sch 3[17], opn 1 Jan 2000] Editor’s note: Sections 575–578 were repealed by s 5 and Sch 3 of the Crimes Legislation Amendment (Sentencing) Act 1999 No 94. Section 577 was transferred to the Criminal Procedure Act 1986: see s 30 at [2-s 30]. Section 577A was transferred to the Criminal Procedure Act 1986: see s 280 at [2-s 280]. Section 578 was transferred to s 292 (since repealed) of the Criminal Procedure Act 1986.

[8-s 578A] Prohibition of publication identifying victims of certain sexual offences 578A (1) In this section: complainant has the same meaning as in Division 1 of Part 5 of Chapter 6 of the Criminal Procedure Act 1986. [def subst Act 25 of 2005 s 4 and Sch 2, opn 12 Aug 2005]

matter includes a picture. prescribed sexual offence has the same meaning as in the Criminal Procedure Act 1986. [def insrt Act 53 of 2000 s 3 and Sch 3.3, opn 29 June 2000]

publish includes: (a) broadcast by radio or television, or (b) disseminate by any other electronic means such as the internet. [subs (1) am Act 88 of 2006 s 3 and Sch 2, opn 1 Jan 2007]

(2) A person shall not publish 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. Penalty: In the case of an individual — 50 penalty units or imprisonment for 6 months, or both; in the case of a corporation — 500 penalty units. (3) This section applies even though the prescribed sexual offence proceedings have been finally disposed of. (4) This section does not apply to: (a) a publication authorised by the Judge or Justice presiding in the proceedings concerned, (b) a publication made with the consent of the complainant (being a complainant who is of or over the age of 14 years at the time of publication), (c) a publication authorised by the court concerned under section 11 of the Children (Criminal Proceedings) Act 1987 in respect of a complainant who is under the age of 16 years at the time of publication, (d) an official law report of the prescribed sexual offence proceedings or any official publication in the course of, and for the purposes of, those proceedings,

(e) the supply of transcripts of the prescribed sexual offence proceedings to persons with a genuine interest in those proceedings or for genuine research purposes, or [page 1240] (f)

a publication made after the complainant’s death.

[subs (4) am Act 34 of 1992 s 3 and Sch 1]

(5) A Judge or Justice shall not authorise a publication under subsection (4)(a) unless the Judge or Justice: (a) has sought and considered any views of the complainant, and (b) is satisfied that the publication is in the public interest. (6) The prohibition contained in this section applies in addition to any other prohibition or restriction imposed by law on the publication of any matter relating to prescribed sexual offence proceedings. (7) Proceedings for an offence against this section shall be dealt with summarily before: (a) the Local Court, or (b) the Supreme Court in its summary jurisdiction. [subs (7) am Act 121 of 2001 s 4 and Sch 2.72[19], opn 7 July 2003; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009]

(8) If proceedings for an offence against this Act are brought before the Local Court, the maximum penalty that the Local Court may impose on a corporation is 50 penalty units. [subs (8) am Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009] [s 578A insrt Act 184 of 1987 s 3 and Sch 3(11)] Editor’s note: For proof material on s 578A, see [27-48,000] behind the “27 – Informations and Indictments” guide card. COMMENTARY ON SECTION 578A

Children (Criminal Proceedings) Act …. Form of charge …. Elements of offence …. Non-application of section ….

[8-s 578A.1] [8-s 578A.5] [8-s 578A.10] [8-s 578A.15]

[8-s 578A.1] Children (Criminal Proceedings) Act Section 11 of the Children (Criminal Proceedings)

Act appears at [16-15,230].

PROOF MATERIAL ON SECTION 578A [8-s 578A.5] Form of charge That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales published some matter which identified/was likely to lead to the identification of the complainant in prescribed sexual offence proceedings being [state the proceedings]. [8-s 578A.10] Elements of offence The elements of the offence are — (1) The accused published [8-s 578A(1)] some matter [8-s 578A(1)]; and (2) this material identified, or was likely to lead to the identification, of a person; and (3) this person was a complainant [8-s 578A(1)] in prescribed sexual offence [8-s 578A(1)] proceedings. [8-s 578A.15] Non-application of section The section does not apply to publications made in certain circumstances: see s 578A(4) at [8-s 578A].

____________________ 578B [s 578B rep Act 95 of 2004 s 3 and Sch 1[5], opn 1 Jan 2005] [page 1241]

[8-s 578C]

Publishing indecent articles

578C (1) In this section: article includes any thing: (a) that contains or embodies matter to be read or looked at, or (b) that is to be looked at, or (c) that is a record, or (d) that can be used, either alone or as one of a set, for the production or manufacture of any thing referred to in paragraphs (a), (b) or (c), but it does not include: (e) any film that is classified (other than as RC or X 18+) under the Commonwealth Act, or (f) any publication that is classified Unrestricted, Category 1

restricted or Category 2 restricted under the Commonwealth Act, or (g) any computer game that is classified (other than as RC) under the Commonwealth Act, or (h) any film, publication or computer game that is the subject of an exemption under Division 3 of Part 6 of the Classification (Publications, Films and Computer Games) Enforcement Act 1995. [def am Act 82 of 2004 s 4 and Sch 2.2, opn 26 May 2005]

child pornography [def rep Act 95 of 2004 s 3 and Sch 2[6], opn 1 Jan 2005]

Commonwealth Act means the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth. computer game, film and publication each have the same meanings, respectively, as in the Commonwealth Act. publish includes: (a) distribute, disseminate, circulate, deliver, exhibit, lend for gain, exchange, barter, sell, offer for sale, let on hire or offer to let on hire, or (b) have in possession or custody, or under control, for the purpose of doing an act referred to in paragraph (a), or (c) print, photograph or make in any other manner (whether of the same or of a different kind or nature) for the purpose of doing such an act. record means a gramophone record or a wire or tape, or a film, and any other thing of the same or of a different kind or nature, on which is recorded a sound or picture and from which, with the aid of a suitable apparatus, the sound or picture can be produced (whether or not it is in a distorted or altered form). [subs (1) am Act 82 of 2004 s 4 and Sch 2, opn 26 May 2005]

(2) A person who publishes an indecent article is guilty of an offence. Maximum penalty: in the case of an individual — 100 penalty units or imprisonment for 12 months (or both), and in the case of a corporation — 200 penalty units. [subs (2) am Act 142 of 1997 s 3 and Sch 1[7], opn 25 Jan 1998; Act 95 of 2004 s 3 and Sch 1[7], opn 1 Jan 2005]

(2A)–(2C) [subs (2A)–(2C) rep Act 95 of 2004 s 3 and Sch 1[8], opn 1 Jan 2005] (3) Nothing in this section makes it an offence for: (a) a person to publish an indecent article for the purposes of an application for classification under the Commonwealth Act, [page 1242] (b) for any member or officer of a law enforcement agency (within the meaning of the Criminal Records Act 1991) to publish an indecent article in the exercise or performance of a power, function or duty conferred or imposed on the member or officer by or under any Act or law. (3A) A person cannot be convicted of an offence against this section and section 91H in respect of the same matter. [subs (3A) insrt Act 95 of 2004 s 3 and Sch 1[9], opn 1 Jan 2005]

(4) For the purposes of this section, an article may be indecent even though part of it is not indecent. (5) Proceedings for an offence under subsection (2) are to be dealt with summarily before the Local Court. [subs (5) am Act 142 of 1997 s 3 and Sch 1[9], opn 25 Jan 1998; Act 121 of 2001 s 4 and Sch 2.72[19], opn 7 July 2003; Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009]

(5A) [subs (5A) rep Act 95 of 2004 s 3 and Sch 1[8], opn 1 Jan 2005] (6) In any proceedings for an offence under this section in which indecency is in issue, the opinion of an expert as to whether or not an article has any merit in the field of literature, art, medicine or science (and if so, the nature and extent of that merit) is admissible as evidence. (7) If a corporation contravenes, whether by act or omission, another provision of this section, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the provision if the person knowingly authorised or permitted the contravention. [subs (7) insrt Act 142 of 1997 s 3 and Sch 1[10], opn 25 Jan 1998]

(8) A person may be proceeded against and convicted under a provision pursuant to subsection (7) whether or not the corporation has been proceeded against or been convicted under that provision.

[subs (8) insrt Act 142 of 1997 s 3 and Sch 1[10], opn 25 Jan 1998]

(9) Nothing in subsection (7) or (8) affects any liability imposed on a corporation for an offence committed by the corporation under a provision of this section. [subs (9) insrt Act 142 of 1997 s 3 and Sch 1[10], opn 25 Jan 1998] [s 578C insrt Act 63 of 1995 s 66 and Sch 2] [s 578C am Act 82 of 2004 s 4 and Sch 2, opn 26 May 2005] Editor’s note: For proof material on s 578C, see [27-49,000] behind the “27 – Informations and Indictments” guide card in Vol 4. COMMENTARY ON SECTION 578C

Summary disposal …. Form of indictment …. Elements of offence …. Statutory defences ….

[8-s 578C.1] [8-s 578C.5] [8-s 578C.10] [8-s 578C.15]

[8-s 578C.1] Summary disposal An offence under s 578C(2A) 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 6 cl 10. The maximum penalty which can be imposed in the case of an individual is 2 years imprisonment, or a fine of 50 penalty units, or both, and in the case of a corporation, a fine of 200 penalty units: see at [2-s 268].

PROOF MATERIAL ON SECTION 578C [8-s 578C.5] Form of indictment That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales published an indecent article. [page 1243] [8-s 578C.10] Elements of offence The elements of the offence are — (1) The accused published [8-s 578C(1)]; (2) an indecent article [8-s 578C(1)]. [8-s 578C.15] Statutory defences The section does not make it an offence for a person involved in law enforcement or material classification to publish an indecent article in certain circumstances: see s 578C(3) at [8-s 578C]. A person cannot be convicted of an offence against this section and section 91H (which deals with production, dissemination or possession of child pornography) in respect of the same matter: see s 578C(3A) at [8-s 578C].

____________________

578D [s 578D rep Act 103 of 2002 s 240 and Sch 4.16[8], opn 1 Dec 2005]

[8-s 578E] Offences relating to advertising or displaying products associated with sexual behaviour 578E (1) This section applies to products (such as articles, compounds, preparations or devices, but not printed matter) that are primarily concerned with, or intended to be used in connection with, sexual behaviour. (2) Any person who carries on, or who is engaged in, the business of selling or disposing of products to which this section applies must not: (a) advertise, or cause another person to advertise, in any manner the nature of that business, or (b) exhibit or display any such products: (i) to a person who has not consented to or requested the exhibition or display, or (ii) in a manner so that they can be seen from outside the premises of the business by members of the public. Maximum penalty: in the case of an individual — 100 penalty units or imprisonment for 12 months (or both), and in the case of a corporation — 200 penalty units. (3) Nothing in this section makes it an offence for a person who carries on (or who is engaged in) the business of selling or disposing of products to which this section applies to advertise the nature of that business to a person who carries on (or who is engaged in) a business or profession that ordinarily involves selling or disposing of, or advising on or prescribing the use of, such products. (4) This section does not apply: (a) to any person who carries on (or who is engaged in) a business that sells or disposes of contraceptive devices or compounds (but not any other type of product to which this section applies), or (b) to such persons, or classes of persons, as the Minister may, by notice published in the Gazette, specify for the purposes of this section.

(5) A person can rely on the exemption provided by subsection (4)(a) only if the contraceptive devices or compounds are not displayed or exhibited to public view in any window or entrance to the premises of the business. [page 1244] (6) Proceedings for an offence under this section are to be dealt with summarily before the Local Court. [subs (6) Act 94 of 2007 s 4 and Sch 2, opn 6 July 2009] [s 578E insrt Act 63 of 1995 s 66 and Sch 2; Act 121 of 2001 s 4 and Sch 2.72[19], opn 7 July 2003] Editor’s note: For proof material on s 578E, see [27-49,050] behind the “27 – Informations and Indictments” guide card in Vol 4.

PROOF MATERIAL ON SECTION 578E [8-s 578E.1] Form of charge [8-s 578E.5] Advertising — s 578E(2)(a) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, being a person who carried on/was engaged in the business of selling/disposing of products primarily concerned with/intended to be used in connection with sexual behaviour, advertised/caused another person to advertise the nature of this business. [8-s 578E.10] Displaying — s 578E(2)(b)(i) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, being a person who carried on/was engaged in the business of selling/disposing of products primarily concerned with/intended to be used in connection with sexual behaviour, exhibited/displayed such products to [name of person], a person who had not consented to/requested the exhibition/display. [8-s 578E.15] Displaying to public — s 578E(2)(b)(ii) That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, being a person who carried on/was engaged in the business of selling/disposing of products primarily concerned with/intended to be used in connection with sexual behaviour, exhibited/displayed such products in a manner so that they could be seen from outside the premises of the business by members of the public. [8-s 578E.20] Elements of offence The elements of the offence are — (1) The accused was a person who carried on or was engaged in the business of selling or disposing of products; and (2) these products [8-s 578E(1)] were primarily concerned with or intended to be used in connection with sexual behaviour; and (3) the accused either: (i) advertised or caused another person to advertise in any manner the nature of this business; (ii) exhibited or displayed such products to a person who had not consented to or requested

the exhibition or display; or (iii) exhibited or displayed such products in a manner so that they could be seen from outside the premises of the business by members of the public. [8-s 578E.25] Statutory defence The section does not apply to a person who carries on or is engaged in a business that sells or disposes of contraceptive devices or compounds (as long as they are not displayed or exhibited to public view in a window or entrance to the premises of the business), or to persons or classes of persons as the Minister may, by notice published in the Gazette, specify for the purposes of the section: see s 578E(4) and (5) at [8-s 578E]. The section does not make it an offence for someone carrying on or engaged in the business of selling or disposing of products the subject of the section to advertise the nature of that business to a person who carries on or is engaged in a business or profession that ordinarily involves selling or disposing of, or advising on or prescribing the use of, such products: see s 578E(3) at [8-s 578E].

____________________ [page 1245]

[8-s 579] Evidence of proceedings dealt with by way of recognizance after 15 years 579 (1) Where, following the conviction of any person for an offence or a finding that a charge of an offence has been proved against any person, whether the conviction or finding was before or after the commencement of the Crimes (Amendment) Act 1961: (a) sentence in respect of the conviction was suspended or deferred upon the person entering into a recognizance or, in substitution for sentence in respect of the conviction, the person was required to enter into a recognizance, or no conviction in respect of the finding was made and the person was discharged conditionally on his or her entering into a recognizance, and (b) a period of fifteen years has elapsed since the recognizance was entered into: (i) without the recognizance having been forfeited during that period or a court having found during that period that the person failed to observe any condition of the recognizance, and (ii) without the person having, during that period, been convicted

of an indictable offence on indictment or otherwise or of any other offence punishable by imprisonment or without a finding during that period that a charge of such an indictable or other offence has been proved against the person, the conviction or finding shall, where that period expired before the commencement of the Crimes (Amendment) Act 1961, as on and from that commencement, or, where that period expires or has expired after that commencement, as on and from the expiration of that period: (c) be disregarded for all purposes whatsoever, and (d) without prejudice to the generality of paragraph (c), be inadmissible in any criminal, civil or other legal proceedings as being no longer of any legal force or effect. Without prejudice to the generality of the foregoing provisions of this section, any question asked of or concerning that person in or in relation to any criminal, civil or other legal proceedings otherwise than by his or her Australian legal practitioner, his or her agent or other person acting on his or her behalf may be answered as if the conviction or finding had never taken place or the recognizance had never been entered into. [subs (1) am Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998; Act 121 of 2001 s 4 and Sch 2.72[62], opn 7 July 2003; Act 120 of 2006 s 3 and Sch 3.6[3], opn 4 Dec 2006]

(2) Notwithstanding the provisions of subsection (1), where in any criminal, civil or other legal proceedings the person first referred to in that subsection, by himself or herself, his or her Australian legal practitioner, his or her agent or other person acting on his or her behalf, otherwise than in answer to a question that can, in accordance with the last paragraph of that subsection, be answered in the negative, makes an assertion that denies the fact that the conviction or finding took place or that the recognizance was entered into, then the conviction, finding or recognizance is admissible: (a) in those proceedings, as to the character, credit or reputation of the person so referred to, (b) in any prosecution for perjury or false swearing founded on the assertion. The non-disclosure of the conviction, finding or recognizance in the making or giving of a statement or evidence as to the good character, credit or reputation of the person so

[page 1246] referred to shall not of itself be taken, for the purposes of this subsection, to mean that the statement or evidence contains such an assertion. [subs (2) am Act 147 of 1997 s 3 and Sch 3.11, opn 17 Mar 1998; Act 120 of 2006 s 3 and Sch 3.6[3], opn 4 Dec 2006]

(3) In this section legal proceedings includes any application for a licence, registration, authority, permit or the like under any statute. (4) This section does not affect the operation of section 529(10), or the operation of section 178 (Convictions, acquittals and other judicial proceedings) of the Evidence Act 1995, for the purposes of section 529(10). [subs (4) subst Act 77 of 2005 s 48 and Sch 5.1[5], opn 1 Jan 2006]

[8-s 580] Certain charges not to be brought at common law 580 A person may not be charged with any common law offence in respect of any act committed upon or in relation to another person, being an act which could, but for the amendment of sections 79 and 80 and the repeal of sections 81, 81A and 81B by the Crimes (Amendment) Act 1984, have been the subject of a charge for an offence under any of those sections.

[8-s 580A] Abolition of offence of being a common nightwalker 580A (1) The common law offence of being a common nightwalker is abolished. (2) This section does not apply to an offence committed before the date of assent to the Crimes (Common Nightwalkers) Amendment Act 1993. [s 580A insrt Act 52 of 1993 s 3, opn 24 Sep 1993]

[8-s 580B] Abolition of offences of eavesdropping and being a common scold 580B The common law offences of eavesdropping and being a common scold are abolished.

[s 580B insrt Act 23 of 1995 Sch 1, opn 8 Dec 1995]

[8-s 580C] Abolition of common law offences relating to brothels 580C (1) The common law offence of keeping a common bawdy house or brothel is abolished. (2) A person cannot be convicted after the commencement of this section of an offence referred to in subsection (1) whether committed before or after that commencement. (3) A person cannot be convicted after the commencement of this section of the common law offence of keeping a common, ill-governed and disorderly house, whether committed before or after that commencement, solely because: (a) the relevant premises were used for the purposes of prostitution, or (b) the person had control of or managed, or took part or assisted in the control or management of, premises used for the purposes of prostitution. [s 580C insrt Act 53 of 1995 s 4 and Sch 2.1, opn 8 Dec 1995]

[page 1247]

[8-s 580D] Abolition of rule that husband and wife cannot be guilty of conspiracy 580D Any common law rule that a husband and wife cannot be found guilty of conspiracy together is abolished. [s 580D insrt Act 149 of 1998 s 3 and Sch 1[7], opn 8 Feb 1999]

[8-s 580E] Abolition of distinction between felony and misdemeanour 580E (1) All distinctions between felony and misdemeanour are abolished. (2) In all matters in which a distinction has previously been made between

felony and misdemeanour, the law and practice in regard to indictable offences is to be the law and practice applicable, immediately before the commencement of this section, to misdemeanours. (3) Any proceedings for an offence that were commenced before the commencement of this section (being proceedings for an offence that was previously a felony or misdemeanour) are to continue to be dealt with, and to be disposed of, as if the Crimes Legislation Amendment (Sentencing) Act 1999 had not been enacted. (4) Subject to the regulations, in any Act or instrument: (a) a reference to a felony is taken to be a reference to a serious indictable offence, and (b) a reference to a misdemeanour is taken to be a reference to a minor indictable offence. (5) This section does not affect the operation of any Act or instrument that restricts the commencement of proceedings against any person in respect of any offence. [s 580E insrt Act 94 of 1999 s 5 and Sch 3[68], opn 1 Jan 2000]

[8-s 580F]

Abolition of penal servitude

580F (1) The punishment of penal servitude is abolished. (2) Any sentence of penal servitude that was in force, immediately before the commencement of this section, is to be taken to be a sentence of imprisonment and is to continue in force as such for the remainder of the term for which the sentence of penal servitude would, but for this section, have continued in force. (3) Subject to the regulations, in any Act or instrument, a reference to penal servitude is taken to be a reference to imprisonment. [s 580F insrt Act 94 of 1999 s 5 and Sch 3[68], opn 1 Jan 2000]

[8-s 580G] Abolition of imprisonment with light or hard labour 580G (1) The punishments of imprisonment with light labour and imprisonment with hard labour are abolished. (2) Any sentence of imprisonment with light labour or imprisonment with

hard labour that was in force, immediately before the commencement of this section, is to be taken to be a sentence of imprisonment only and is to continue to have effect as such for the remainder of the term for which the sentence of imprisonment with light labour or imprisonment with hard labour would, but for this section, have had effect. [s 580G insrt Act 94 of 1999 s 5 and Sch 3[68], opn 1 Jan 2000]

[page 1248]

[8-s 580H] rules

Abolition of common law offences and

580H Schedule 3 has effect. [s 580H insrt Act 38 of 2007 s 3 and Sch 2[29], opn 27 Sep 2007]

[8-s 581]

Savings and transitional provisions

581 The Schedule 11 has effect. [s 581 insrt Act 198 of 1989 s 3 and Sch 1[13, opn 17 Mar 1991; am Act 38 of 2007 s 3 and Sch 2[30], opn 27 Sep 2007]

[8-s 582]

Regulations

582 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. [s 582 insrt Act 135 of 1997 s 3 and Sch 1, opn 16 Jan 1998]

[page 1249]

FIRST SCHEDULE [Sch 1 rep Act 94 of 1999 s 5 and Sch 3[18], opn 1 Jan 2000]

[8-Sch 2]

SCHEDULE 2 — APPLICATION OF ACT (Section 3)

[Second Sch subst Act 94 of 1999 s 5 and Sch 3[19], opn 1 Jan 2000; am Act 43 of 2000 Sch 1[10], opn 31 July 2000; Act 89 of 2002 s 3 and Sch 1[2], opn 5 Dec 2002; Act 70 of 2006 s 4 and Sch 2, opn 23 Feb 2006; am Act 38 of 2007 s 3 and Sch 2[31], [32], opn 27 Sep 2007]

Part 1. Part 1A. Sections 23, 34, 40, 61AA, 62 and 77 (in Part 3). Sections 116, 118–124, 128–130, 163, 183, 191, 193 and 194 (in Part 4). Sections 250 and 251 (in Part 5). Section 310B (in Part 6A). Sections 345–347 and 351 (in Part 9). Parts 10, 10A, 10B, 11 and 12. Part 16. COMMENTARY ON SCHEDULE 2

Operation of Schedule ….

[8-Sch 2.1]

[8-Sch 2.1] Operation of Schedule The sections mentioned in this schedule, so far as their provisions can be applied, shall be in force with respect to all offences, whether at common law or by statute, whensoever committed and in whatsoever court tried: s 3 at [8-s 3]. See, for example, Fleming v White [1981] 2 NSWLR 719 at 722–5; (1981) 7 A Crim R 448.

____________________

[8-Sch 3]

SCHEDULE 3 — ABOLISHED COMMON LAW OFFENCES AND RULES

(Section 580H) [Sch 3 insrt Act 38 of 2007 s 3 and Sch 2[33], opn 27 Sep 2007; am Act 27 of 2011 Sch 3.5, opn 8 July 2011; Act 67 of 2012 Sch 1[4], opn 24 Sep 2012]

1. Arson (1) The common law offence of arson is abolished. (2) This clause does not apply to an offence committed before the commencement of section 3 of the Crimes (Criminal Destruction and Damage) Amendment Act 1987. 2. Forgery (1) The common law offence of forgery is abolished. (2) This clause does not apply to an offence committed before 16 July 1989 (the date of commencement of the Crimes (Computers and Forgery) Amendment Act 1989). 3. Riot, rout and affray (1) The common law offences of riot, rout and affray are abolished. (2) This clause does not apply to an offence committed before 19 February 1989 (the date of commencement of the Crimes (Amendment) Act 1988). 4. Coercion of wife by husband (1) Any presumption of law that an offence committed by a wife in the presence of her husband is committed under coercion of the husband is abolished. (2) This clause does not apply to an offence committed before 1 October 1924 (the date of commencement of the Crimes (Amendment) Act 1924). [page 1250] 5. Maintenance (including champerty) (1) The common law offence of maintenance (including champerty) is abolished. (2) Subclause (1) re-enacts section 3 of the Maintenance, Champerty and Barratry Abolition Act 1993 and is a transferred provision to which section 30A of the Interpretation Act 1987 applies. Note. The tort of maintenance (including champerty) is also abolished. See

clause 2 of Schedule 2 to the Civil Liability Act 2002. 6. Common barrator (1) The common law offence of being a common barrator is abolished. (2) Subclause (1) re-enacts section 4A of the Maintenance, Champerty and Barratry Abolition Act 1993 and is a transferred provision to which section 30A of the Interpretation Act 1987 applies. 7. Person who fails to disclose crime committed by the person’s husband or wife or de facto partner (1) Any common law rule that a person cannot be found guilty of an offence involving failing to disclose a crime committed by the person’s husband or wife or de facto partner is abolished. (2) This clause applies only to or in respect of an offence involving failing to disclose such a crime if the offence is committed, or alleged to have been committed, on or after the commencement of this clause. Editor’s note: the Fourth and Fifth Schedules were repealed by Act 94 of 1999, effective 1 January 2000; the Sixth Schedule was repealed by Act 50 of 1974, effective 2 August 1974; the Seventh Schedule was repealed by Act 58 of 1985, effective 15 May 1985; the Eighth Schedule was repealed by Act 50 of 1974, effective 2 August 1974; the Ninth Schedule was repealed by Act 40 of 1989, effective 13 August 1989.

[8-Sch 10]

SCHEDULE 10 — OFFENCES PUNISHABLE BY THE SUPREME COURT IN ITS SUMMARY JURISDICTION (Section 475A)

[Sch 10 am Act 51 of 1990 s 3 and Sch 1(6); am Act 53 of 2000 s 3 and Sch 3.3, opn 29 June 2000; Act 38 of 2007 s 3 and Sch 2[34], opn 27 Sep 2007]

1. Offences punishable by the Supreme Court in its summary jurisdiction (a) Any offence arising under, or the common law offence of attempting, or of conspiracy, to commit any offence arising under, section 173, 174, 175, 176, 176A or 179 of this Act; any offence arising under section 185A(1) or (2) of this Act; the common law offence of attempting to commit any offence arising under section 185A(1) of this Act. (b) Any offence arising under, or the common law offence of attempting, or of conspiracy, to commit any offence arising under, section 124, 374A(1)

or (3), 374B, 374C(2), 374G, 375(2), 375A or 376(2) of the Companies Act 1961. (c) Any offence arising under, or the common law offence of attempting, or of conspiracy, to commit any offence arising under, section 14(1), 27, 59(7), 109(1) or (2), 110, 111, 112(1), (2), (3), (4), (5) or (6) or 121(1) of the Securities Industry Act 1975. (d) Any offence arising under, or the common law offence of attempting, or of conspiracy, to commit any offence arising under, section 70, 71(1) or (3), 72(1) or 73 of the Securities Industry Act 1970. (d1) Any offence arising under, or the common law offence of attempting, or of conspiracy, to commit any offence arising under: (i) section 37(1), 73(7), 124(1) or (2), 125, 126, 128(1), (2), (3), (4), (5) or (6) or 137 of the Securities Industry (New South Wales) Code, or (ii) section 16(1) of the National Companies and Securities Commission (State Provisions) Act 1981. (e) The common law offence of conspiracy to cheat and defraud. (f) Subject to section 475A(2) of this Act, any offence arising under, or the common law offence of attempting, or of conspiracy, to commit any offence arising under: [page 1251] (i) (ii)

(iii) (iv) (v)

section 165, 166, 168, 169, 170, 172, 178A, 178BA, 178BB, 178C, 184A, 185, 327, 330 or 335 of this Act, section 47(1), 51(3), 64(10), 86(1), 163(1) (being an offence committed as referred to in section 163(3)), 179A(1), 180J(1) or (1A), 180W or 374F(1) or (2) of the Companies Act 1961, section 12(6), 25(1), 54(1) or 58(1), (2), (3) or (4) of the Securities Industry Act 1975, section 14(6), 34(1), 68(1) or 72(1), (2), (3) or (4) of the Securities Industry (New South Wales) Code, section 44 or 53 of the Companies (Acquisition of Shares) (New South Wales) Code, or

(vi) section 108(1), 123(11), 174(1), 276(1) (being an offence committed as referred to in section 276(1)(b)), 310(1), 559 or 560 of the Companies (New South Wales) Code. (vii) A reference in this Schedule to a provision of this Act is a reference to the provision as in force immediately before the commencement of the Crimes Amendment Act 2007. COMMENTARY ON SCHEDULE 10

Offences punishable by Supreme Court in its summary jurisdiction.

[8-Sch 10.1]

[8-Sch 10.1] Offences punishable by Supreme Court in its summary jurisdiction See s 475A at [8-s 475A].

____________________

[8-Sch 11]

SCHEDULE 11 — SAVINGS AND TRANSITIONAL PROVISIONS (Section 581)

[Sch 11 insrt Act 198 of 1989 s 3 and Sch 1[14] opn 17 Mar 1991; am Act 2 of 1992 s 3 and Sch 1; Act 115 of 1997 s 4 and Sch 4.4[6], opn 29 June 1998; Act 149 of 1998 s 3 and Sch 1[12], opn 8 Feb 1999; Act 43 of 2000 Sch 1[11], opn 31 July 2000; Act 130 of 2002 Sch 4[8], opn 13 Jan 2003; Act 9 of 2003 Sch 1[7], [22], opn 13 June 2003; Act 27 of 2003 Sch 3[10], opn 8 July 2003; Act 11 of 2004 Sch 4[5], opn 24 Mar 2004; Act 95 of 2004 s 3 and Sch 1[11], opn 15 Dec 2004; Act 61 of 2006 s 3 and Sch 1[19], opn 15 Dec 2006; Act 73 of 2006 s 3 and Sch 2[6], opn 12 Mar 2007; Act 38 of 2007 s 3 and Sch 2[36], opn 27 Sep 2007]

PART 1A — CRIMES (SEXUAL ASSAULT) AMENDMENT ACT 1981 [Pt 1A insrt Act 27 of 2003 s 3 and Sch 3[10], opn 8 July 2003]

Application of section 30 of Interpretation Act 1987 1A Section 30 of the Interpretation Act 1987 applies to and in respect of the abolition by section 63 of the common law offences of rape and attempted rape in the same way as it applies to and in respect of the repeal of an Act or statutory rule.

Construction of certain references 1B In any other Act or instrument made under an Act: (a) a reference to rape, the crime of rape, the offence of rape or an offence under section 63 is to be read and construed as a reference to an offence under section 61B, 61C or 61D, and (b) a reference to attempted rape, attempting to commit rape, attempting to commit the crime of rape, attempting to commit the offence of rape or an offence under section 65 is to be read and construed as a reference to the offence of attempting to commit an offence under section 61B, 61C or 61D, [page 1252] but a reference to a crime or misdemeanour which was punishable by death immediately before the commencement of the Crimes (Amendment) Act 1955 is to be read and construed as not including a reference to an offence under section 61B, 61C or 61D.

Statement for purposes of section 30A of Interpretation Act 1987 1C (1) Clauses 1A and 1B re-enact (with modifications) section 4 of the Crimes (Sexual Assault) Amendment Act 1981. (2) Clauses 1A and 1B are transferred provisions to which section 30A of the Interpretation Act 1987 applies. (3) Clauses 1A and 1B are taken to have commenced on the commencement of the Crimes (Sexual Assault) Amendment Act 1981.

PART 1 — CRIMES (AMENDMENT) ACT 1989 References in legislation 1 (1) In any other Act, in any instrument made under any Act or in any document of any kind: (a) a reference (however expressed) to sexual intercourse within the meaning of section 61A is to be taken to be a reference to sexual intercourse within the meaning of section 61H, and (b) a reference to an offence under section 61B or 61C is to be taken to include a reference to an offence under section 61K, and (c) a reference to an offence under section 61D is to be taken to include a reference to an offence under section 61I or 61J, and (d) a reference to an offence under section 61E is to be taken to include a reference to an offence under section 61L, 61M, 61N or 61O, and (e) a reference to an attempt referred to in section 61F is to be taken to include a reference to an attempt referred to in section 61P. (2) Subclause (1) does not apply in relation to offences committed or alleged to have been committed before the commencement of Schedule 1(2) to the Crimes (Amendment) Act 1989.

Omitted provisions 2 Sections 61A–61G as in force before their repeal by the Crimes

(Amendment) Act 1989 continue to apply to offences committed or alleged to have been committed before the repeal.

PART 2 — CRIMINAL LEGISLATION (AMENDMENT) ACT 1992 Sexual intercourse 3 It is declared that, from 14 July 1981 (being the date of commencement of the amendments made by the Crimes (Sexual Assault) Amendment Act 1981) until the commencement of the amendment made by the Criminal Legislation (Amendment) Act 1992 to section 61H, an act has been an act of sexual intercourse within the meaning of this Act at the relevant time if the act has comprised sexual intercourse within the meaning of section 61H, as amended by the Criminal Legislation (Amendment) Act 1992. [page 1253]

Consent to sexual intercourse 4 The amendments to section 61R made by the Criminal Legislation (Amendment) Act 1992 apply only in respect of offences committed after the commencement of the amendments.

Application of amendment to section 409 5 The amendment made by the Criminal Legislation (Amendment) Act 1992 to section 409, to the extent to which it applies to a written statement the whole or a part of which was tendered as evidence on a plea of guilty under section 51A of the Justices Act 1902, applies to such a statement tendered after the commencement of the amendment.

Operation of amendments relating to taking of vehicles without consent and other indictable offences 6 (1) The amendments to sections 476 and 496A made by the Criminal Legislation (Amendment) Act 1992 apply only in respect of proceedings for offences committed after the commencement of the amendments. (2) This Act applies in respect of proceedings for offences committed before the commencement of any such amendments as if the amendments had not been made. (3) Section 526A continues to apply to offences committed before that section was repealed as if the section is still in force.

Reduction of sentences for assistance to authorities 7 Section 442B of this Act and section 5DA of the Criminal Appeal Act 1912, as inserted by the Criminal Legislation (Amendment) Act 1992, apply only to a sentence imposed after the commencement of the section concerned, but so apply whether the offence in relation to which the sentence is imposed was committed before or after that commencement.

PART 3 — CRIMES (REGISTRATION OF INTERSTATE RESTRAINT ORDERS) AMENDMENT ACT 1993 [Pt 3 insrt Act 6 of 1993 s 3 and Sch 1(5), opn 1 Aug 1993]

Interstate restraint orders 8 Part 15A, as amended by the Crimes (Registration of Interstate Restraint Orders) Amendment Act 1993, extends to an interstate restraint order (within the meaning of that Part) made before the commencement of that Act.

PART 4 — CRIMES LEGISLATION (REVIEW OF CONVICTIONS) AMENDMENT ACT 1993 [Pt 4 insrt Act 64 of 1993 s 3 and Sch 1(6), opn 14 Nov 1993]

Definition 9 In this Part, appointed day means the day appointed under section 2 of the Crimes Legislation (Review of Convictions) Amendment Act 1993. [page 1254]

Matters arising under section 475 10 (1) Any matter that was pending, immediately before the appointed day, under section 475 (as in force before the appointed day) is to be finally disposed of in accordance with that section as if that section were still in force. (2) However, section 474H(2) (which enables a prescribed person to refer matters to the Court of Criminal Appeal) extends to a prescribed person conducting an inquiry under section 475. (3) Despite subclause (1), subsections (2), (3) and (4) of section 474G (which confer certain powers on a person conducting an inquiry under Division 4 of Part 13A) extend to a prescribed person conducting an inquiry under section 475 and to any witness summoned by or before the prescribed person. [subcl (3) insrt Act 108 of 1993 s 3 and Sch 1, opn 2 Dec 1993]

Matters arising under section 26 of Criminal Appeal Act 1912 11 Any matter that was pending, immediately before the appointed day, under section 26 of the Criminal Appeal Act 1912 (as in force before the appointed day) is to be finally disposed of in accordance with that section as if that section were still in force.

Application of Part 13A to past convictions 12 (1) Part 13A extends to convictions recorded before the appointed day. (2) Section 474J extends to free pardons granted before the appointed day and to free pardons granted on or after the appointed day as a consequence of an inquiry that is disposed of under section 475, as referred to in clause 10.

Application of further amendments made by Crimes Amendment (Review of Convictions and Sentences) Act 1996 12A Part 13A, as amended by the Crimes Amendment (Review of Convictions and Sentences) Act 1996, extends to convictions recorded and sentences imposed before the commencement of that Act. [cl 12A insrt Act 65 of 1996 s 3 and Sch 1[14], opn 4 Oct 1996]

PART 5 — CRIMES LEGISLATION (UNSWORN EVIDENCE) AMENDMENT ACT 1994 [Pt 5 insrt Act 26 of 1994 s 3 and Sch 1(5), opn 10 June 1994; am Act 95 of 1994 s 3 and Sch 1, opn 12 Dec 1994]

Application of abolition of accused person’s right to give unsworn evidence or to make unsworn statement 13 Section 404A, and the amendments to sections 405, 405A and 409C made by the Crimes Legislation (Unsworn Evidence) Amendment Act 1994, apply to the trial of a person charged with an offence on or after the commencement of that section and those amendments.

PART 6 — CRIMES (HOME INVASION) AMENDMENT ACT 1994

[Pt 6 insrt Act 84 of 1994 s 3 and Sch 1(16), opn 23 Dec 1994]

Section 476 (indictable offences punishable summarily with consent of accused) 14 A reference in section 476(6)(ea), (f) or (g) to an offence mentioned in section 109(1), 111(1), 112(1) or 113(1) of the kind described in the paragraph concerned is [page 1255] taken to include a reference to an offence mentioned in section 109, 111, 112 or 113 (as in force before the commencement of the amendment made to that paragraph by the Crimes (Home Invasion) Amendment Act 1994) of that kind and committed before that commencement.

PART 7 — CRIMINAL LEGISLATION AMENDMENT ACT 1995 [Pt 7 insrt Act 23 of 1995 Sch 1, opn 1 July 1995]

Forensic samples 15 Section 353A, as amended by the Criminal Legislation Amendment Act 1995, extends to a person in lawful custody on the commencement of the amendment to section 353A made by that Act.

Apprehended violence orders — s 562G 16 Section 562G, as amended by the Criminal Legislation Amendment Act 1995, extends to orders made by Local Courts before the commencement of the amendment to section 562G made by that Act.

Summons for appearance or arrest of defendant — s 562K

17 Section 562K, as amended by the Criminal Legislation Amendment Act 1995, extends to warrants issued before the commencement of the amendment to section 562K made by that Act.

Registration of interstate restraint orders — s 562U 18 Section 562U, as amended by the Criminal Legislation Amendment Act 1995, extends to orders registered before the commencement of the amendment to section 562U made by that Act.

Abolition of offences of eavesdropping and being a common scold — s 580B 19 Section 580B does not apply to an offence committed before the commencement of that section.

PART 8 — CRIMES AMENDMENT (APPREHENDED VIOLENCE ORDERS) ACT 1996 [Pt 8 insrt Act 93 of 1996 s 3 and Sch 1[25], opn 1 Mar 1997]

Definitions 20 In this Part: AVO Amendment Act 1996 means the (Apprehended Violence Orders) Act 1996. order has the meaning given it in section 562A.

Crimes

Amendment

Order must be made on conviction for certain offences 21 Section 562BE applies in respect of a conviction for an offence on or after the commencement of that section even if proceedings for the offence were commenced before the commencement of that section.

[page 1256]

Order must be made on charge for certain offences 22 Section 562BF does not apply in respect of proceedings before a court that the court started to hear before the commencement of that section. Section 562O continues to apply in respect of any such proceedings as if that section had not been amended by the AVO Amendment Act 1996.

Consent orders 23 Subsection (3) of section 562BA (which was inserted by the AVO Amendment Act 1996) applies to any proceedings for an order of the kind referred to in section 562BA, whether the proceedings were commenced before, on or after the commencement of that subsection, but not to proceedings before a court that the court started to hear before the commencement of that subsection.

Specification of restricted premises or place in order 24 The amendment to section 562D contained in the AVO Amendment Act 1996 extends to any order made before the commencement of that amendment that is the subject of an application for variation at any time on or after the commencement of that amendment.

Application for variation or revocation of order 25 An amendment to section 562F contained in the AVO Amendment Act 1996 does not apply in respect of an application for variation or revocation of order that was made before the commencement of that amendment.

Time limit for making of complaint for order by District Court 26 (1) Subsection (1) of section 562GA (which was inserted by the AVO

Amendment Act 1996) does not apply in respect of a complaint for an order by the District Court that was made before the commencement of that subsection. (2) Subsection (1) of section 562GA applies to a complaint for an order by the District Court that is made on or after the commencement of that subsection, even if it relates to an earlier complaint that was dismissed by a Local Court or the Children’s Court before the commencement of that subsection. For the purposes of the application of section 562GA to such an earlier complaint, the earlier complaint is taken to have been dismissed on the date of commencement of that subsection.

Proceedings for an order by District Court 27 Subsections (2) and (3) of section 562GA (as inserted by the AVO Amendment Act 1996) apply to any proceedings in the District Court for an order that are commenced before, on or after the commencement of those subsections, except proceedings before the Court that the Court started to hear before the commencement of those subsections.

Telephone interim orders 28 The amendments to section 562H (made by the AVO Amendment Act 1996) do not apply in respect of a telephone interim order that was made before the commencement of those amendments. Section 562H (as in force immediately before the commencement of those amendments) continues to apply in respect of such a telephone interim order. [page 1257]

Measures to protect children in AVO proceedings 29 A provision of section 562NA (which was inserted by the AVO Amendment Act 1996), other than subsection (2), does not apply in respect of proceedings before a court that the court started to hear before the commencement of the provision. However, the remainder of any such proceedings are to be heard in the absence of the public if the court so directs.

PART 9 — CRIMES AMENDMENT (CHILDREN’S EVIDENCE) ACT 1996 [Repealed] [Pt 9 rep Act 143 of 1997 s 33 and Sch 1.2[3], opn 1 Aug 1999]

PART 9A — TRAFFIC LEGISLATION AMENDMENT ACT 1997 [Pt 9A insrt Act 115 of 1997 s 4 and Sch 4.4[6], opn 29 June 1998]

Regulations of a savings nature 29A (1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the Traffic Legislation Amendment Act 1997, but only in relation to the amendments made to this Act. (2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date. (3) To the extent to which any such 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 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. [cl 29A insrt Act 115 of 1997 s 4 and Sch 4.4[6], opn 29 June 1998]

PART 10 — CRIMES LEGISLATION AMENDMENT ACT 1997 [Pt 10 insrt Act 85 of 1997 s 3 and Sch 1.2[6], opn 30 Mar 1998]

Offenders who are minors

30 The amendment made to section 61S by the Crimes Legislation Amendment Act 1997 does not apply in respect of an act or omission giving rise to proceedings for an offence that occurred before the amendment commenced.

Increase in time limit for prosecutions for offences relating to unlawful access to data in computer 31 The amendment made to section 309 by the Crimes Legislation Amendment Act 1997 does not apply in respect of an act or omission giving rise to proceedings for an offence referred to in that section that occurred before that amendment commenced.

Orders under section 353A(4) 32 Section 353A(7)(b), as amended by the Crimes Legislation Amendment Act 1997, does not apply in relation to an offence found proved before the commencement of the amendment made to that paragraph by that Act. [page 1258]

Plea of autrefois convict or autrefois acquit 33 Section 399(2), as inserted by the Crimes Legislation Amendment Act 1997, does not apply to a plea of autrefois convict or autrefois acquit made before the commencement of that subsection.

PART 11 — CRIMES AMENDMENT (CHILD PORNOGRAPHY) ACT 1997 [Pt 11 insrt Act 142 of 1997 s 3 and Sch 1[10], opn 25 Jan 1998]

Operation of amendments in relation to use or employment of a child for pornographic purposes 34 Section 91G, as amended by Schedule 1[2]–[4] to the Crimes Amendment (Child Pornography) Act 1997, does not apply in respect of an act giving rise to proceedings for an offence that occurred before that amendment commenced.

PART 12 — CRIMES AMENDMENT (DETENTION AFTER ARREST) ACT 1997 [Pt 12 insrt Act 48 of 1997 s 3 and Sch 1[6], opn 9 Feb 1998]

Application of Act

35 Part 10A does not apply in respect of the arrest of a person before the commencement of that Part.

PART 13 — CRIMES AMENDMENT (DIMINISHED RESPONSIBILITY) ACT 1997 [Pt 13 insrt Act 106 of 1997 s 3 and Sch 1[3], opn 3 Apr 1998]

Replacement of defence of diminished responsibility — application of new defence 36 Section 23A, as substituted by the Crimes Amendment (Diminished Responsibility) Act 1997, does not apply to or in respect of a murder that is alleged to have been committed before that substitution. This Act continues to apply to and in respect of such an alleged murder as if the Crimes Amendment (Diminished Responsibility) Act 1997 had not been enacted.

Application of requirement to give notice of defence 37 Section 405AB, as inserted by the Crimes Amendment (Diminished Responsibility) Act 1997, does not apply to or in respect of a trial for murder if the murder is alleged to have been committed before the commencement of that section.

PART 14 — CRIMES LEGISLATION FURTHER AMENDMENT ACT 1998 [Pt 14 insrt Act 149 of 1998 s 3 and Sch 1[12], opn 8 Feb 1999]

Power of registrar to extend interim apprehended violence orders 38 The power conferred on a registrar of a court to vary an interim order by the amendment made to section 562BB by the Crimes Legislation Further Amendment Act 1998 extends to interim orders made under that section before the commencement of that amendment.

[cl 38 insrt Act 149 of 1998 s 3 and Sch 1[12], opn 8 Feb 1999]

[page 1259]

Abolition of common law rule that husband and wife cannot be found guilty of conspiracy 39 Section 580D, as inserted by the Crimes Legislation Further Amendment Act 1998, does not apply in respect of any act of, or omission by, a husband or wife if the act or omission occurred before the commencement of that section. [cl 39 insrt Act 149 of 1998 s 3 and Sch 1[12], opn 8 Feb 1999]

Other amendments 40 An amendment made to section 428G or the Second Schedule by the Crimes Legislation Further Amendment Act 1998 does not apply in respect of any trial commenced before the amendment commences. [cl 40 insrt Act 149 of 1998 s 3 and Sch 1[12], opn 8 Feb 1999]

PART 15 — ROAD TRANSPORT (SAFETY AND TRAFFIC MANAGEMENT) AMENDMENT (CAMERA DEVICES) ACT 1999 [Pt 15 insrt Act 82 of 1999 s 4 and Sch 2[5], opn 24 Dec 1999]

Application of amendments 41 (1) Proceedings for offences committed, or alleged to have been committed, before the commencement of Schedule 2 to the Road Transport (Safety and Traffic Management) Amendment (Camera Devices) Act 1999 are to be determined as if that Act had not been enacted. (2) Accordingly, the law (including any relevant provision of this Act) that would have been applicable to the proceedings had Schedule 2 to the Road Transport (Safety and Traffic Management) Amendment (Camera Devices)

Act 1999 not been enacted continues to apply to the proceedings as if that Act had not been enacted. [cl 41 insrt Act 82 of 1999 s 4 and Sch 2[5], opn 24 Dec 1999]

PART 16 — CRIMES AMENDMENT (APPREHENDED VIOLENCE) ACT 1999 [Pt 16 insrt Act 88 of 1999 s 3 and Sch 1[46], opn 26 Apr 2000]

Definitions 42 (1) In this Part: amending Act means the Crimes Amendment (Apprehended Violence) Act 1999. (2) Words and expressions used in this Part have the same meanings as in Part 15A. [cl 42 insrt Act 88 of 1999 s 3 and Sch 1[46], opn 26 Apr 2000]

Existing orders 43 (1) An apprehended violence order in force immediately before the omission of section 562B by the amending Act is taken to be an apprehended violence order issued under Part 15A as amended by the amending Act. (2) An apprehended violence order in force immediately before the omission of section 562B by the amending Act is taken to be: (a) an apprehended domestic violence order, if the protected person (or at least one of the protected persons) for whose protection the order was made has a domestic relationship with the person against whom it was issued, or [page 1260] (b) an apprehended personal violence order, if the protected person (or each of the protected persons) for whose protection the order was made does not have a domestic relationship with the person against

whom it was issued. (3) An order (other than an order referred to in subclause (1) or (2)) in force under Part 15A immediately before the commencement of an amendment made by the amending Act is taken to have been made under that Part as amended by the amending Act. (4) A registered interstate restraint order within the meaning of Part 15A immediately before its amendment by the amending Act is taken to be a registered external protection order within the meaning of section 562RA as inserted by the amending Act. [cl 43 insrt Act 88 of 1999 s 3 and Sch 1[46], opn 26 Apr 2000]

Existing complaints and applications 44 (1) A complaint for an apprehended violence order pending immediately before the omission of section 562B by the amending Act is taken to be: (a) a complaint for an apprehended domestic violence order, if the protected person (or at least one of the protected persons) for whose protection the order is sought has a domestic relationship with the person against whom it is sought, or (b) a complaint for an apprehended personal violence order, if the protected person (or each of the protected persons) for whose protection the order is sought does not have a domestic relationship with the person against whom it is sought. (2) An application (other than a complaint referred to in subclause (1)) pending under a provision of Part 15A immediately before the commencement of an amendment made by the amending Act is taken to have been made under that Part as amended by the amending Act. [cl 44 insrt Act 88 of 1999 s 3 and Sch 1[46], opn 26 Apr 2000]

References to interstate restraint orders 45 (1) A reference (however expressed) in any other Act, in any instrument under any Act or in any other document of any kind to an interstate restraint order within the meaning of Part 15A is taken to be a reference to an external protection order within the meaning of section 562RA as inserted by the amending Act.

(2) A reference (however expressed) in any other Act, in any instrument under any Act or in any other document of any kind to a registered interstate restraint order within the meaning of Part 15A is taken to be a reference to a registered external protection order within the meaning of section 562RA as inserted by the amending Act. [cl 45 insrt Act 88 of 1999 s 3 and Sch 1[46], opn 26 Apr 2000]

Regulations 46 (1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the amending Act. (2) Any such provision may, if the regulations so provide, take effect from the date of assent to the amending Act or a later date. (3) To the extent to which any such 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: [page 1261] (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. [cl 46 insrt Act 88 of 1999 s 3 and Sch 1[46], opn 26 Apr 2000]

PART 17 — CRIMES LEGISLATION AMENDMENT ACT 2000 Application of amendments relating to geographical jurisdiction 47 Part 1A and sections 178BA(3) and 178BB(2), as inserted by the

Crimes Legislation Amendment Act 2000, do not apply in respect of any act or omission occurring before their commencement. Sections 3A and 3B (as in force before their repeal by that Act) continue to apply to any such act or omission. [cl 47 insrt Act 43 of 2000 Sch 1[11], opn 31 July 2000]

PART 18 — CRIMES LEGISLATION AMENDMENT ACT 2002 [Pt 18 insrt Act 130 of 2002 s 3 and Sch 4[8], opn 13 Jan 2003]

Regulations 48 (1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the Crimes Legislation Amendment Act 2002 (but only to the extent that it amends this Act). (2) Any such provision may, if the regulations so provide, take effect from the date of assent to that Act or a later date. (3) To the extent to which any such 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 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 19 — CRIMES AMENDMENT (SEXUAL OFFENCES) ACT 2003 [Pt 19 insrt Act 9 of 2003 s 3 and Sch 1[7] and [22], opn 13 June 2003]

Defence under section 77(2) 49 Section 77(2), as in force before its repeal by the Crimes Amendment (Sexual Offences) Act 2003, continues to apply to offences committed before its repeal.

Defence under section 91D(2) 50 Section 91D(2), as in force before its repeal by the Crimes Amendment (Sexual Offences) Act 2003, continues to apply to offences committed before its repeal.

Trial for rape — verdict of carnal knowledge 51 Where on the trial of a person for rape committed before the commencement of Schedule 1 to the Crimes (Sexual Assault) Amendment Act 1981, the jury are satisfied [page 1262] that the female was a girl under the age of sixteen years, but above the age of ten years, and that the accused had carnal knowledge of her, but are not satisfied that carnal knowledge was had without her consent, they may acquit him of the rape charged and find him guilty of an offence under section 71, and he shall be liable to punishment accordingly.

Trial for carnal knowledge — girl in fact over 10 52 Where on the trial of a person for an offence under section 67 the jury are satisfied that the girl was of or above the age of ten years, but under the age of sixteen years, and that the accused had carnal knowledge of such girl, they may acquit him of the offence charged and find him guilty of an offence under section 71, and he shall be liable to punishment accordingly.

Trial for carnal knowledge — verdict of assault with intent 53 Where on the trial of a person for an offence under section 67 the jury are satisfied that the girl was of or above the age of ten years, but under the age of sixteen years, but are not satisfied that the accused had carnal knowledge of the girl, and are satisfied that he was guilty of an offence under

section 72, they may acquit him of the offence charged and find him guilty of an offence under the said last-mentioned section, and he shall be liable to punishment accordingly.

Rape or attempt — verdict of incest or attempt 54 If on the trial of any male person for an offence under section 63 or 65 the jury are not satisfied that he is guilty of the offence charged, but are satisfied that he is guilty of an offence under section 78A or under section 78B, they may acquit such person of the offence charged, and find him guilty of an offence under section 78A or under section 78B, and he shall be liable to punishment accordingly.

Limitations 55 (cf ss 78, 78F) (1) [subs (1) rep Act 2 of 1992 s 3 and Sch 1, opn 3 May 1992] (2) No prosecution for an offence under section 78H, 78I, 78K, 78L, 78M, 78N, 78O or 78Q or for an offence of attempting, or of conspiracy or incitement, to commit an offence under any of those sections shall, if the accused was at the time of the alleged offence under the age of 18 years, be commenced without the sanction of the Attorney General.

PART 20 — CRIMES LEGISLATION (AMENDMENT) ACT 2004 [Pt 20 insrt Act 11 of 2004 Sch 4, opn 24 Mar 2004]

Dangerous driving and dangerous navigation 56 (1) Section 52A, as in force immediately before its amendment by the Crimes Legislation Amendment Act 2004, continues to apply to circumstances arising before the commencement of that amendment as if that amendment had not been made. (2) Section 52B, as in force immediately before its amendment by the Crimes Legislation Amendment Act 2004, continues to apply to circumstances arising before the commencement of that amendment as if that

amendment had not been made. [page 1263]

Sexual assault by forced self-manipulation 57 Section 80A, as in force immediately before its amendment by the Crimes Legislation Amendment Act 2004, continues to apply to an offence committed before the commencement of those amendments as if those amendments had not been made.

PART 21 — CRIMES AMENDMENT (CHILD PORNOGRAPHY) ACT 2004 [Pt 21 insrt Act 95 of 2004 s 3 and Sch 1[11], opn 15 Dec 2004]

Classification of films, publications or computer games 58 (1) In this clause, the amending Act means the Crimes Amendment (Child Pornography) Act 2004. (2) To avoid doubt, section 578B(4)(b) (as in force before its repeal by the amending Act) does not prevent (and is taken never to have prevented), in respect of an alleged offence against that section: (a) a court attendance notice or other process being issued, or (b) a court attendance notice or other process being served, or (c) a person pleading guilty or a plea of guilty being accepted, or (d) sentence being passed for the offence on an offender who has pleaded guilty to the offence, without the film, publication or computer game concerned having been classified under the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth. (3) This clause extends to offences against section 578B in respect of which anything mentioned in subclause (2) occurred before the repeal of that

section by the amending Act.

PART 22 — CRIMES LEGISLATION AMENDMENT (GANGS) ACT 2006 [Pt 22 insrt Act 61 of 2006 s 3 and Sch 1[19], opn 15 Dec 2006]

Limitation period for consorting 59 Section 546A(2), as inserted by the Crimes Legislation Amendment (Gangs) Act 2006, applies only to an offence against section 546A that is committed, or is alleged to have been committed, after the commencement of that subsection.

PART 23 — CRIMES AMENDMENT (APPREHENDED VIOLENCE) ACT 2006 [Pt 23 insrt Act 73 of 2006 s 3 and Sch 2[6], opn 12 Mar 2007]

Definitions 60 In this Part: amending Act means the Crimes Amendment (Apprehended Violence) Act 2006. commencement means the day on which new Part 15A commences. new Part 15A means Part 15A as inserted by the amending Act. old Part 15A means Part 15A as in force before its substitution by the amending Act. [page 1264]

Regulations 61 (1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the amending Act.

(2) Any such provision may, if the regulations so provide, take effect from the date of assent to the amending Act or a later date. (3) To the extent to which any such 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 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.

Existing apprehended violence orders 62 (1) An apprehended domestic violence order (including an interim order) made under the old Part 15A and in force immediately before the commencement is taken to have been made under the new Part 15A. (2) An apprehended personal violence order (including an interim order) made under the old Part 15A and in force immediately before the commencement is taken to have been made under the new Part 15A. (3) Despite subclauses (1) and (2), section 562H (9)–(10) of the old Part 15A continue to apply in relation to a telephone interim order made under the old Part 15A and in force immediately before the commencement. (4) An external protection order registered under Division 3 of the old Part 15A is taken to have been registered under Division 10 of the new Part 15A. (5) Any order taken by this clause to have been made under the new Part 15A has effect for the same period as it would have had under the provisions of the old Part 15A but may be varied or revoked in accordance with the new Part 15A.

Pending applications 63 An application for an order under the old Part 15A that has not been determined at the commencement is taken to be an application for the same type of order under the new Part 15A.

References to repealed offences 64 A reference in the new Part 15A to section 545AB includes a reference to section 562AB (as in force before its repeal by the amending Act).

PART 24 — CRIMES AMENDMENT ACT 2007 [Pt 24 insrt Act 38 of 2007 s 3 and Sch 1[26], opn 15 Feb 2008]

Repeal of definition of “Maliciously” 65 The repeal of section 5 of this Act by the Crimes Amendment Act 2007 does not affect the operation of any provision of this Act (including a repealed provision) that refers to “malicious” or “maliciously” or of any indictment or charge in which malice is by law an ingredient of the crime. [page 1265]

PART 25 — CRIMES AMENDMENT (CONSENT — SEXUAL ASSAULT OFFENCES) ACT 2007 [Pt 25 insrt Act 66 of 2007 s 3 and Sch 1[4], opn 1 Jan 2008]

Application of amendments 66 An amendment made by the Crimes Amendment (Consent — Sexual Assault Offences) Act 2007 applies only in respect of an offence committed after the commencement of the amendment.

Review of amendments 67 (1) The Minister is to review the amendments made to this Act by the Crimes Amendment (Consent — Sexual Assault Offences) Act 2007 to determine whether the policy objectives of the Crimes Amendment (Consent — Sexual Assault Offences) Act 2007 remain valid and whether the terms of the amendments made by that Act remain appropriate for securing those

objectives. (2) The review is to be undertaken as soon as possible after the period of 4 years from the date of commencement of section 61HA (as inserted by the Crimes Amendment (Consent — Sexual Assault Offences) Act 2007). (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 4 years.

PART 26 — CRIMES AMENDMENT (COGNITIVE IMPAIRMENT — SEXUAL OFFENCES) ACT 2008 [Pt 26 insrt Act 74 of 2008 s 3 and Sch 1, opn 1 Dec 2008]

68 Amendments An amendment made to this Act by the Crimes Amendment (Cognitive Impairment — Sexual Offences) Act 2008 does not apply in respect of an offence committed before the commencement of the amendment.

PART 27 — CRIMES AMENDMENT (SEXUAL OFFENCES) ACT 2008 [Pt 27 insrt Act 105 of 2008 s 3 and Sch 1, opn 1 Jan 2009]

69 Application of amendments An amendment made to this Act by the Crimes Amendment (Sexual Offences) Act 2008 applies in respect of an offence committed, or alleged to have been committed, on or after the commencement of the amendment.

PART 28 — CRIMINAL LEGISLATION AMENDMENT ACT 2009 [Pt 28 insrt Act 27 of 2009 Sch 1, opn 19 May 2009]

Application of amendments 70 An amendment made to this Act by the Criminal Legislation

Amendment Act 2009 applies only in respect of an offence committed, or alleged to have been committed, on or after the commencement of the amendment. [page 1266]

PART 29 — CRIMES AMENDMENT (CONSORTING AND ORGANISED CRIME) ACT 2012 [Pt 29 insrt Act 3 of 2012 Sch 1[11], opn 9 Apr 2012]

Report by Ombudsman on consorting offence 71 (1) As soon as practicable after the end of the period of 3 years from the commencement of Division 7 of Part 3A (as inserted by the Crimes Amendment (Consorting and Organised Crime) Act 2012), the Ombudsman must prepare a report on the operation of that Division. [subcl (1) am Act 90 of 2013 Sch 1 item 1.2, opn 20 Nov 2013]

(2) For that purpose, the Commissioner of Police is to ensure that the Ombudsman is provided with information about any prosecutions brought under section 93X. (3) The Ombudsman may at any time require the Commissioner of Police, or any public authority, to provide any information or further information the Ombudsman requires for the purposes of preparing the report under this clause. (4) The Ombudsman must furnish a copy of the report to the Attorney General and to the Commissioner of Police. (5) The Attorney General is to lay (or cause to be laid) a copy of the report before both Houses of Parliament as soon as practicable after the Attorney General receives the report. (6) If a House of Parliament is not sitting when the Attorney General seeks to lay a report before it, the Attorney General may present copies of the report to the Clerk of the House concerned.

(7) The report: (a) is, on presentation and for all purposes, taken to have been laid before the House, and (b) may be printed by authority of the Clerk of the House, and (c) if so printed, 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.

PART 30 — CRIMES AMENDMENT (RECKLESS INFLICTION OF HARM) ACT 2012 [Pt 30 insrt Act 41 of 2012 Sch 1[7], opn 21 June 2012]

Application of amendments 72 An amendment made by the Crimes Amendment (Reckless Infliction of Harm) Act 2012 applies only in respect of an offence committed, or alleged to have been committed, on or after the commencement of the amendment. [page 1267]

PART 31 — CRIMES AMENDMENT (CHEATING AT GAMBLING) ACT 2012 [Pt 31 insrt Act 64 of 2012 Sch 1[2], opn 13 Sep 2012]

Review of amendments

73 (1) The Minister is to review the operation of Part 4ACA (Cheating at gambling) to determine whether the policy objectives of that Part remain valid and whether the terms of the Part remain appropriate for securing those objectives. (2) The review is to be undertaken as soon as possible after the period of 3 years from the commencement of that Part. (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 3 years.

PART 32 — CRIMES LEGISLATION AMENDMENT ACT 2012 [Pt 32 insrt Act 67 of 2012 Sch 1[5], opn 24 Sep 2012]

Application of amendments 74 An amendment to section 73 or 86 made by the Crimes Legislation Amendment Act 2012 applies only in respect of an offence committed, or alleged to have been committed, on or after the commencement of the amendment.

PART 33 — CRIMES AND OTHER LEGISLATION AMENDMENT (ASSAULT AND INTOXICATION) ACT 2014 [Pt 33 insrt Act 2 of 2014 Sch 1[5], opn 31 Jan 2014]

Review of operation of amendments made by amending Act 75 (1) For the purposes of this clause, the relevant Ministers are the Attorney General and the Minister for Police and Emergency Services. (2) The relevant Ministers are to review the operation of the amendments made by the Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014. The Ministers may engage persons to assist in the

review. (3) The review is to be undertaken as soon as practicable and within 3 years after the date of assent to that Act. (4) The relevant Ministers are to report to the Premier on the outcome of the review as soon as practicable after the review is completed.

PART 34 — CRIMES LEGISLATION AMENDMENT (CHILD SEX OFFENCES) ACT 2015 [Pt 34 insrt Act 13 of 2015 Sch 1[6], opn 29 June 2015]

Application of amendments 76 An amendment made by the Crimes Legislation Amendment (Child Sex 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.

[page 1269]

Crimes (Domestic and Personal Violence) Act 2007 TABLE OF PROVISIONS Section

1 2 3 4 5 6 7 8

Title

PART 1 — PRELIMINARY Name of Act …. Commencement …. Definitions …. Meaning of “personal violence offence” …. Meaning of “domestic relationship” …. Meaning of “relative” …. Meaning of “intimidation” …. Meaning of “stalking” ….

Paragraph

[8-5000] [8-5005] [8-5010] [8-5015] [8-5020] [8-5025] [8-5030] [8-5035]

PART 2 — OBJECTS OF ACT IN RELATION TO DOMESTIC AND PERSONAL VIOLENCE 9 Objects of Act in relation to domestic violence …. [8-5135] 10 Object of Act in relation to personal violence …. [8-5140]

11 12 13

PART 3 — DOMESTIC VIOLENCE AND OTHER OFFENCES Meaning of “domestic violence offence” …. [8-5240] Recording of domestic violence offences …. [8-5245] Stalking or intimidation with intent to cause fear of physical or mental harm …. [8-5250]

14

Offence of contravening apprehended violence order ….

[8-5255]

PART 4 — APPREHENDED DOMESTIC VIOLENCE ORDERS 15 Application for making of apprehended domestic violence order by court …. [8-5355] 16 Court may make apprehended domestic violence order …. [8-5360] 17 Matters to be considered by court …. [8-5365] PART 5 — APPREHENDED PERSONAL VIOLENCE ORDERS 18 Application for making of apprehended personal violence order by court …. [8-5465] 19 Court may make apprehended personal violence order …. [8-5470] 20 Matters to be considered by court …. [8-5475] [page 1270] Section

21

22 23 24 24A

25 26

Title

Referral of matters to mediation …. PART 6 — INTERIM COURT ORDERS Interim court orders …. Interim court orders made by Registrar with consent …. Interim court order ceases when final court order made or served …. Referral of matters to mediation …. PART 7 — PROVISIONAL ORDERS Application by telephone, facsimile or other communication device …. When application may be made ….

Paragraph

[8-5480]

[8-5580] [8-5585] [8-5590] [8-5595]

[8-5690] [8-5695]

27 28 28A 29 30 31 32 33 33A 34 34A

Obligation to apply for provisional order in certain circumstances …. Making of provisional order by authorised officer …. Making of provisional order by senior police officer …. Provisional order taken to be application for court order …. Recording of provisional order …. Service …. Duration …. Variation or revocation of provisional order on application of police officer …. Variation or revocation of provisional order on application of defendant …. Purported renewal or continuance …. Defects in interim apprehended domestic violence orders ….

[8-5700] [8-5705] [8-5707] [8-5710] [8-5715] [8-5720] [8-5725] [8-5730] [8-5733] [8-5735] [8-5740]

PART 8 — CONTENT AND EFFECT OF APPREHENDED VIOLENCE ORDERS 35 Prohibitions and restrictions imposed by apprehended violence orders …. [8-5835] 36 Prohibitions taken to be specified in every apprehended violence order …. [8-5840] 37 Ancillary property recovery orders may be made …. [8-5845] PART 9 — ADDITIONAL MEASURES FOR SUPPORT AND PROTECTION OF CHILDREN AND OTHERS IN PROCEEDINGS 38 Apprehended violence orders made by court or authorised officer can also protect persons with whom person seeking protection has a domestic relationship …. [8-5945] 39 Final order to be made on guilty plea or guilt finding for serious offence …. [8-5950] 40 Interim apprehended violence order must be made on

charge for certain offences ….

[8-5955] [page 1271]

Section

40A 41 41A 42 43

44

45

46

Title

Apprehended violence order may be made in care proceedings …. Measures to protect children in apprehended violence order proceedings …. Questioning child witness in apprehended domestic violence order proceedings …. Consideration of contact with children …. Non-inclusion of protected person’s residential address in application for apprehended domestic violence order or in apprehended domestic violence order …. Non-inclusion of health care provider’s residential address in application for apprehended personal violence order or in apprehended personal violence order …. Publication of names and identifying information about children and other persons involved in apprehended violence order proceedings …. Right to presence of supportive person when giving evidence ….

Paragraph

[8-5957] [8-5960] [8-5963] [8-5965]

[8-5970]

[8-5975]

[8-5980] [8-5985]

PART 10 — APPLICATIONS FOR FINAL APPREHENDED VIOLENCE ORDERS AND INTERIM COURT ORDERS AND ASSOCIATED PROCEEDINGS

47

DIVISION 1 — PRELIMINARY Definitions …. DIVISION 2 — APPLICATION FOR ORDER

[8-6085]

48 49 49A

50 51 52 53 54 55 56

Making of application for an order …. Circumstances in which police must make application for order …. False or misleading applications for apprehended personal violence order ….

[8-6105] [8-6110] [8-6115]

DIVISION 3 — COMMENCEMENT OF APPLICATION PROCEEDINGS Commencement of proceedings by application notice …. [8-6130] Commencement of proceedings by police officer …. [8-6135] Commencement of proceedings by protected person …. [8-6140] Discretion to refuse to issue process in apprehended personal violence order matters …. [8-6145] Application notice to be for one matter only …. [8-6150] Service of application notice …. [8-6155] When proceedings commence …. [8-6160]

DIVISION 4 — HEARING OF APPLICATION PROCEEDINGS 57 Time for hearing …. [8-6180] 57A Procedure if party not present on hearing date …. [8-6183] 58 Proceedings to be open to public …. [8-6185] [page 1272] Section

59 60 61 62 63 64

Title

Change of venue …. Right to defend action …. Right of representation …. Conduct of case …. Evidence to be on oath …. Recording of evidence ….

Paragraph

[8-6190] [8-6195] [8-6200] [8-6205] [8-6210] [8-6215]

65 66 67 68 69 70 71

Adjournments …. Irregularity …. Power to dispense with rules …. Power to stay proceedings …. Arrest of defendant during proceedings …. Witnesses and production of evidence …. Warrants of arrest and warrants of commitment ….

[8-6220] [8-6225] [8-6230] [8-6235] [8-6240] [8-6245] [8-6250]

DIVISION 5 — VARIATION OR REVOCATION OF FINAL APPREHENDED VIOLENCE ORDERS OR INTERIM COURT ORDERS 72 Definitions …. [8-6270] 72A Making of application — general …. [86270A] 72B Making of application — police-initiated order [8where protected person is child …. 6270B] 72C Commissioner must be notified if application relates [8to police-initiated order …. 6270C] 72D Notification of application if protected person is [8child …. 6270D] 73 Variation or revocation of final apprehended violence orders and interim court orders …. [8-6275] 74 Variation or revocation of final apprehended violence orders and interim court orders where more than one protected person …. [8-6280] 75 Variation may be made on guilty plea or guilt finding for certain offences …. [8-6285]

76 77

78 79 80

DIVISION 6 — ANCILLARY PROVISIONS Explanation of final apprehended violence orders, interim court orders and variations …. Service of copy of apprehended violence order, interim court order or variation or revocation of any such order …. Orders made with consent of parties …. Duration of final apprehended violence orders …. Enforcement of orders for payment of money ….

[8-6305]

[8-6310] [8-6315] [8-6320] [8-6325]

81 82 83

Concurrent criminal proceedings …. Arrangements regarding classification of orders …. Application of Bail Act 2013 ….

[8-6330] [8-6335] [8-6340] [page 1273]

Section

Title

Paragraph

85

DIVISION 7 — APPEALS Review and appeal provisions concerning making etc of apprehended violence orders …. Presumption against stay of order ….

[8-6360] [8-6365]

86 87

DIVISION 8 — RULES Rules in application proceedings …. Forms ….

[8-6385] [8-6390]

84

PART 11 — WARRANTS AND POWERS OF POLICE TO DETAIN DEFENDANTS 88 Warrant for arrest of defendant in final apprehended violence order matters …. [8-6490] 89 Detention of defendant for making and service of interim apprehended personal violence order …. [8-6495] 89A Detention of defendant for making and service of interim apprehended domestic violence order …. [8-6497] 90 Detention of defendant for service of order or variation …. [8-6500] 90A Period for which person may be directed to remain or be detained …. [8-6505] 90B Detention of person at police station or other place or in vehicle …. [8-6510] 90C Searching detained persons …. [8-6515] 90D Records required to be kept …. [8-6520] PART 12 — JURISDICTION OF COURTS

91 92 93

Courts authorised to make orders and determine applications …. Jurisdiction of Supreme Court under this Act …. Jurisdiction of District Court under this Act ….

[8-6600] [8-6605] [8-6610]

PART 13 — REGISTRATION OF EXTERNAL PROTECTION ORDERS 94 Definitions …. [8-6710] 95 Application for registration of external protection order …. [8-6715] 96 Registration of external protection order …. [8-6720] 97 Effect of registration of external protection order …. [8-6725] 98 Variation etc of registered external protection orders …. [8-6730] PART 13A — INFORMATION SHARING

98A 98B

DIVISION 1 — PRELIMINARY Definitions …. Meaning of “primary person” and “associated respondent” ….

[8-6740] [8-6742] [page 1274]

Section

Title

Paragraph

DIVISION 2 — GENERAL DEALINGS WITH INFORMATION 98C Definition …. [8-6744] 98D Disclosure of information by all agencies in case of threat …. [8-6746] 98E Disclosure by Local Court …. [8-6748] 98F Central referral point …. [8-6750] 98G Local co-ordination points …. [8-6752] 98H Support agencies …. [8-6754] 98I Access to information collected under Division …. [8-6756] 98J Agency must comply with protocols …. [8-6758]

98K 98L

98M 98N

98O 98P 98Q

Relationship with other laws …. Regulations ….

[8-6760] [8-6762]

DIVISION 3 — DEALINGS WHERE SERIOUS THREAT Dealings if serious domestic violence threat …. [8-6764] Access to information collected in respect of serious threat …. [8-6766] DIVISION 4 — MISCELLANEOUS Protocols and other orders of Minister …. Delegation …. Review of Part ….

[8-6768] [8-6770] [8-6772]

PART 14 — MISCELLANEOUS 99 99A

Costs …. Limitations on professional costs being awarded ….

100

Parts 2 and 3 of Crimes (Appeal and Review) Act 2001 …. Regulations …. Savings, transitional and other provisions …. Amendment of other Acts and regulations [Repealed] Review of Act …. SCHEDULE 1 — SAVINGS, TRANSITIONAL AND OTHER PROVISIONS ….

101 102 103 104

[8-6830] [86830A] [8-6835] [8-6840] [8-6845]

[8-6855] [8-6870]

[page 1275]

Crimes (Domestic and Personal Violence) Act 2007 TABLE OF AMENDMENTS Crimes (Domestic and Personal Violence) Act 2007 No 80, received assent on 7 December 2007, commenced 10 March 2008, as amended by: Amending Legislation

Date of Assent

Courts and Crimes Legislation Amendment Act 2008 No 53 Statute Law (Miscellaneous Provisions) Act (No 2) 2008 No 114 Crimes (Domestic and Personal Violence) Amendment Act 2008 No 119 Crimes (Appeal and Review) Amendment Act 2009 No 4 Criminal Legislation Amendment Act 2009 No 27 Statute Law (Miscellaneous Provisions) Act 2009 No

1 July 2008

Date of Commencement Sch 8: 1 July 2008

10 December 2008

Sch 4: on assent (s 2(1))

10 December 2008

On assent (s 2)

30 March 2009

All (Sch 1[15] excepted): on assent (s 2(1)) On assent (s 2)

19 May 2009

1 July 2009

Sch 1.9: 17 July 2009 (s 2(2))

56 Statute Law (Miscellaneous Provisions) Act (No 2) 2009 No 106 Relationships Register Act 2010 No 19 Residential Tenancies Act 2010 No 42

Crimes Legislation Amendment Act 2012 No 67 Crimes (Domestic and Personal Violence) Amendment (Information Sharing) Act 2013 No 28 Crimes (Domestic and Personal Violence) Amendment Act 2013 No 87 Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 No 2 Bail (Consequential Amendments) Act 2014 No 5

14 December 2009

Sch 4: 8 January 2010 (s 2(2))

19 May 2010

Sch 3: on assent (s 2(2)) Sch 3.3: 31 January 2011 (s 2 and SI 658 of 2010, LW 3 December 2010) 24 September 2012 (s 2)

17 June 2010

24 September 2012

27 May 2013

11 November 2013

15 September 2014 (s 2 and SI 591 of 2014, LW 5 September 2014) 20 May 2014 (s 2 and SI 256 of 2014, LW 16 May 2014)

31 January 2014

Sch 6: 31 January 2014 (s 2(1))

12 March 2014

20 May 2014 (s 2 and SI 235 of 2014, LW 24 April 2014) [page 1276]

Amending Legislation

Date of Assent

Crimes Legislation Amendment Act 2014 No

23 October 2014

Date of Commencement 23 October 2014 (s 2)

59 Statute Law (Miscellaneous 28 November 2014 Provisions) Act (No 2) 2014 No 88 Legal Profession Uniform 9 June 2015 Law Application Legislation Amendment Act 2015 No 7 Crimes (Domestic and 28 June 2016 Personal Violence) Amendment (Review) Act 2016 No 33

Sch 2.14: 8 January 2015 (s 2(1)) Sch 2.9: 1 July 2015 (s 2(2) and SI 299 of 2015, LW 19 June 2015) Sch 1: 22 August 2016 (s 2 and SI 513 of 2015, LW 19 August 2016)

[page 1277]

PART 1 — PRELIMINARY [8-5000]

Name of Act

1 This Act is the Crimes (Domestic and Personal Violence) Act 2007.

[8-5005]

Commencement

2 This Act commences on a day or days to be appointed by proclamation. COMMENTARY ON SECTION 2

Operation of Act …. Objects of Act ….

[8-5005.1] [8-5005.5]

[8-5005.1] Operation of Act The Crimes (Domestic and Personal Violence) Act 2007 commenced on 10 March 2008. The Act repeals and re-enacts Pt 15A of the Crimes Act 1900 “as a principal stand alone Act, with some modifications” (Agreement in Principle speech, Legislative Assembly, 16 November 2007, p 4327). An apprehended domestic violence order or apprehended personal violence order made under the old Pt 15A and in force immediately before the repeal of that Part on 10 March 2008 is taken to have been made under the 2007 Act: cl 3(1) and (2), Sch 1 at [8-6870]. An interim order made by a court or registrar under the old Pt 15A and in force immediately before the repeal of that Part on 10 March 2008 is taken to be an interim court order made under the 2007 Act: cl 3(3) Sch 1 at [8-6870]. A telephone interim order made under the old Pt 15A and in force immediately before the repeal of that Part on 10 March 2008 is taken to be a provisional order made under the 2007 Act: cl 3(4) Sch 1 at [8-6870]. An external protection order registered under Div 1 of the old Pt 15A is taken to have been registered under Pt 13 of the 2007 Act: cl 3(5) Sch 1 at [8-6870]. Any order taken by cl 3 Sch 1 to have been made under the 2007 Act has effect for the same period as it would have had under the provisions of the old Pt 15A but may be varied or revoked in accordance with the 2007 Act: cl 3(6) Sch 1 at [8-6870]. An application for an order under the old Pt 15A that has not been determined before the repeal of that Part on 10 March 2008 is taken to be an application for the same type of order under the 2007 Act: cl 4 Sch 1 at [8-6870]. [8-5005.5] Objects of Act Section 9 at [8-5135] contains the objects of the Act in relation to domestic violence. Section 10 at [8-5140] contains the objects of the Act in relation to personal violence.

The Agreement in Principle speech (Legislative Assembly, 16 November 2007, p 4327) included the following statements: “The legislative reforms are aimed at reducing stress and trauma for victims of domestic violence when progressing a matter through the criminal justice system and ensuring a clear statement is made about the aggravated nature of an offence of violence that is committed in the context of a domestic relationship. … Many other states and territories have designated Acts for protection orders, restraining orders and breaches. These laws have been regarded as easy to find and user friendly for both police and practitioners. The proposed stand-alone Act will have the benefit also of a clearly stated [page 1278] and prominent objectives clause and a readily accessible index. The separate Act will create a onestop legal manual for practitioners and will mean that the Act is easier to amend in the future if amending is necessary. It will now be easier for women and children to obtain apprehended violence orders [AVOs]. Under the reforms victims will automatically be protected by an apprehended violence order if their alleged attacker is charged with certain serious personal violence offences. The automatic apprehended violence orders will be extended to all victims in these types of cases, irrespective of whether they are involved in a relationship with the person. The defendant will not be entitled to contest the order in court until the concurrent criminal charges have been finalised. This will spare victims of violence the trauma of being cross-examined at the hearing for an apprehended violence order as well as at the hearing of the criminal charges. The reforms will also ensure children of domestic violence victims are better protected. Previously, when a victim of domestic violence took out an apprehended violence order, the children were not necessarily included on the order. Under the new changes the presumption will be that children are included on the victim’s apprehended violence order unless there are good reasons for them not to be. This will ensure that the focus of all parties will be on the best interests of the child and it will guarantee that the safety of the child and victim is taken into consideration. This bill also introduces a new offence of domestic violence to help identify repeat offenders. Currently offences of violence such as common assault do not specify whether the offence was committed in a domestic situation, which can make it difficult to track habitual offenders. Being convicted of the new offence of domestic violence would leave a permanent stain on a person’s record and would be readily identifiable by a sentencing court or a court making a bail determination. Other changes to domestic violence laws include allowing police to search for a greater range of potential weapons at premises where a domestic violence offence has occurred, and giving police the power to demand the name of a person suspected of being the subject of an AVO.”

____________________

[8-5010]

Definitions

3 (1) In this Act: applicant officer — see section 25. [def insrt Act 87 of 2013 Sch 1[2], opn 20 May 2014]

apprehended domestic violence order means an order under Part 4. apprehended personal violence order means an order under Part 5. apprehended violence order means: (a) a final apprehended violence order, or (b) an interim apprehended violence order. apprehended violence order proceedings means proceedings under this Act in relation to an apprehended violence order or an application for an apprehended violence order. authorised officer has the same meaning as in the Law Enforcement (Powers and Responsibilities) Act 2002 and includes the Registrar of the Children’s Court. child means a person under the age of 16 years. Children’s Magistrate includes the President of the Children’s Court. [def insrt Act 33 of 2016 Sch 1[1], opn 22 Aug 2016]

[page 1279] court means: (a) the Local Court, or (b) the Children’s Court, exercising jurisdiction under section 91. [def am Act 53 of 2008 s 3 and Sch 8, opn 1 July 2008]

defendant means the person against whom an apprehended violence order is made or is sought to be made. domestic relationship — see section 5. domestic violence offence — see section 11. final apprehended violence order means an apprehended domestic violence order or an apprehended personal violence order. interim apprehended domestic violence order means an interim apprehended domestic violence order made by a court or Registrar

under Part 6 or an authorised officer or senior police officer under Part 7. [def am Act 87 of 2013 Sch 1[1], opn 20 May 2014]

interim apprehended personal violence order means an interim apprehended personal violence order made by a court or Registrar under Part 6 or an authorised officer under Part 7. interim apprehended violence order means an interim court order or a provisional order. interim court order means an interim apprehended domestic violence order or an interim apprehended personal violence order made by a court or registrar of a court under Part 6. intimidation — see section 7. issuing officer — see section 25. [def insrt Act 87 of 2013 Sch 1[2], opn 20 May 2014]

parent has the same meaning as in the Children and Young Persons (Care and Protection) Act 1998. [def insrt Act 33 of 2016 Sch 1[1], opn 3 Dec 2016]

personal violence offence — see section 4. property recovery order means a property recovery order made under section 37. protected person means the person for whose protection an apprehended violence order is sought or made. provisional order means an interim apprehended domestic violence order or an interim apprehended personal violence order made under Part 7. [def subst Act 87 of 2013 Sch 1[3], opn 20 May 2014]

Registrar means a Registrar of the Local Court or the Registrar of the Children’s Court. relative — see section 6. senior police officer means a police officer of or above the rank of sergeant. [def insrt Act 87 of 2013 Sch 1[2], opn 20 May 2014]

stalking — see section 8.

[page 1280] (2) If an apprehended violence order is varied, a reference in this Act to the order is a reference to the order as so varied. (3) A reference in this Act to a person being present in court includes a reference to a person being present in court by way of audio visual link, being facilities (including closed-circuit television) that enable audio and visual communication between persons at different places. (4) A reference in this Act to a finding of guilt includes a reference to the making of an order under section 10 of the Crimes (Sentencing Procedure) Act 1999. (5) Notes included in this Act do not form part of this Act.

[8-5015]

Meaning of “personal violence offence”

4 In this Act, personal violence offence means: (a) an offence under, or mentioned in, section 19A, 24, 25, 26, 27, 28, 29, 30, 31, 33, 33A, 35, 35A, 37, 38, 39, 41, 43, 43A, 44, 45, 45A, 46, 47, 48, 49, 58, 59, 61, 61B, 61C, 61D, 61E, 61I, 61J, 61JA, 61K, 61L, 61M, 61N, 61O, 65A, 66A, 66B, 66C, 66D, 66EA, 73, 78A, 80A, 80D, 86, 87, 93G, 93GA, 110, 195, 196, 198, 199, 200, 562I (as in force before its substitution by the Crimes Amendment (Apprehended Violence) Act 2006) or 562ZG of the Crimes Act 1900, or (b) an offence under section 13 or 14 of this Act, or (b1) an offence under section 109, 111, 112, 113, 114, 115 or 308C of the Crimes Act 1900, but only if the serious indictable offence or indictable offence referred to in those sections is an offence referred to in paragraph (a) or (b), or (c) an offence of attempting to commit an offence referred to in paragraph (a), (b) or (b1). [s 4 am Act 119 of 2008 s 3 and Sch 1, opn 10 Dec 2008; Act 2 of 2014 Sch 6.1[1], opn 31 Jan 2014; Act 33 of 2016 Sch 1[2]–[6], opn 22 Aug 2016]

[8-5020]

Meaning of “domestic relationship”

5 (1) For the purposes of this Act, a person has a domestic relationship with another person if the person: (a) is or has been married to the other person, or (b) is or has been a de facto partner of that other person, or (c) has or has had an intimate personal relationship with the other person, whether or not the intimate relationship involves or has involved a relationship of a sexual nature, or (d) is living or has lived in the same household as the other person, or (e) is living or has lived as a long-term resident in the same residential facility as the other person and at the same time as the other person (not being a facility that is a correctional centre within the meaning of the Crimes (Administration of Sentences) Act 1999 or a detention centre within the meaning of the Children (Detention Centres) Act 1987), or (f) has or has had a relationship involving his or her dependence on the ongoing paid or unpaid care of the other person, or (g) is or has been a relative of the other person, or [page 1281] (h) in the case of an Aboriginal person or a Torres Strait Islander, is or has been part of the extended family or kin of the other person according to the Indigenous kinship system of the person’s culture. Note. “De facto partner” is defined in section 21C of the Interpretation Act 1987.

(2) Two persons also have a domestic relationship with each other for the purposes of this Act if they have both had a domestic relationship of a kind set out in subsection (1)(a), (b) or (c) with the same person. Note. A woman’s ex-partner and current partner would therefore have a domestic relationship with each other for the purposes of this Act even if they had never met. [subs (2) insrt Act 33 of 2016 Sch 1[7], opn 3 Dec 2016] [s 5 am Act 19 of 2010 Sch 3.30, opn 19 May 2010]

[8-5025]

Meaning of “relative”

6 For the purposes of this Act, a person is a relative of another person (the other person): (a) if the person is: (i) a father, mother, grandfather, grandmother, step-father, stepmother, father-in-law or mother-in-law, or (ii) a son, daughter, grandson, grand-daughter, step-son, stepdaughter, son-in-law or daughter-in-law, or (iii) a brother, sister, half-brother, half-sister, step-brother, stepsister, brother-in-law or sister-in-law, or (iv) an uncle, aunt, uncle-in-law or aunt-in-law, or (v) a nephew or niece, or (vi) a cousin, of the other person, or (b) where the person has a de facto partner (the person’s partner) — if the other person is: (i) a father, mother, grandfather, grandmother, step-father or stepmother, or (ii) a son, daughter, grandson, grand-daughter, step-son or stepdaughter, or (iii) a brother, sister, half-brother, half-sister, step-brother or stepsister, or (iv) an uncle or aunt, or (v) a nephew or niece, or (vi) a cousin, of the person’s partner. [s 6 am Act 19 of 2010 Sch 3.30, opn 19 May 2010]

[8-5030]

Meaning of “intimidation”

7 (1) For the purposes of this Act, intimidation of a person means: (a) conduct amounting to harassment or molestation of the person, or (b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for

his or her safety, or (c) any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property. [page 1282] (2) For the purpose of determining whether a person’s conduct amounts to intimidation, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person’s behaviour.

[8-5035]

Meaning of “stalking”

8 (1) In this Act, stalking includes the following of a person about or the watching or frequenting of the vicinity of, or an approach to, a person’s place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity. (2) For the purpose of determining whether a person’s conduct amounts to stalking, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person’s behaviour.

PART 2 — OBJECTS OF ACT IN RELATION TO DOMESTIC AND PERSONAL VIOLENCE [8-5135] violence

Objects of Act in relation to domestic

9 (1) The objects of this Act in relation to domestic violence are: (a) to ensure the safety and protection of all persons, including children, who experience or witness domestic violence, and (b) to reduce and prevent violence by a person against another person where a domestic relationship exists between those persons, and (c) to enact provisions that are consistent with certain principles underlying the Declaration on the Elimination of Violence against

Women, and (d) to enact provisions that are consistent with the United Nations Convention on the Rights of the Child. (2) This Act aims to achieve those objects by: (a) empowering courts to make apprehended domestic violence orders to protect people from domestic violence, intimidation (including harassment) and stalking, and (b) ensuring that access to courts is as safe, speedy, inexpensive and simple as is consistent with justice. (3) In enacting this Act, Parliament recognises: (a) that domestic violence, in all its forms, is unacceptable behaviour, and (b) that domestic violence is predominantly perpetrated by men against women and children, and (c) that domestic violence occurs in all sectors of the community, and (d) that domestic violence extends beyond physical violence and may involve the exploitation of power imbalances and patterns of abuse over many years, and (e) that domestic violence occurs in traditional and non-traditional settings, and (f) the particularly vulnerable position of children who are exposed to domestic violence as victims or witnesses, and the impact that such exposure can have on their current and future physical, psychological and emotional well-being, and (f1) the particular impact of domestic violence on Aboriginal persons and Torres Strait Islanders, persons from culturally and linguistically diverse backgrounds, persons from gay, lesbian, bisexual, transgender and intersex communities, older persons and persons with disabilities, and [page 1283] (g) that domestic violence is best addressed through a co-ordinated legal and social response of assistance and prevention of violence

and, in certain cases, may be the subject of appropriate intervention by the court. [subs (3) am Act 33 of 2016 Sch 1[8], opn 3 Dec 2016]

(4) A court that, or person who, exercises any power conferred by or under this Act in relation to domestic violence must be guided in the exercise of that power by the objects referred to in this section. COMMENTARY ON SECTION 9

Objects ….

[8-5135.1]

[8-5135.1] Objects The objects referred to in the predecessor provision to s 9 were considered in John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512; 220 ALR 248; [2005] NSWCA 101; BC200501968 at [20]–[26] and R v Hamid (2006) 164 A Crim R 179; [2006] NSWCCA 302; BC200607457 at [80], [87]; 13(9) Crim LN [2114]. See R v Hamid at [80]–[88] concerning the interrelationship between sentencing principles for domestic violence offenders and the legislative scheme for apprehended domestic violence orders.

____________________

[8-5140] violence

Object of Act in relation to personal

10 (1) The object of this Act in relation to personal violence is to ensure the safety and protection of all persons who experience personal violence outside a domestic relationship. (2) This Act aims to achieve that object by: (a) empowering courts to make apprehended personal violence orders in appropriate circumstances to protect people from violence, intimidation (including harassment) and stalking, and (b) ensuring that access to courts is as safe, speedy, inexpensive and simple as is consistent with justice, and (c) ensuring that other avenues of dispute resolution are encouraged where appropriate.

PART 3 — DOMESTIC VIOLENCE AND OTHER OFFENCES

[8-5240]

Meaning of “domestic violence offence”

11 (1) In this Act, domestic violence offence means an offence committed by a person against another person with whom the person who commits the offence has (or has had) a domestic relationship, being: (a) a personal violence offence, or (b) an offence (other than a personal violence offence) that arises from substantially the same circumstances as those from which a personal violence offence has arisen, or (c) an offence (other than a personal violence offence) the commission of which is intended to coerce or control the person against whom it is committed or to cause that person to be intimidated or fearful (or both). (2) In this section, offence includes an offence under the Criminal Code Act 1995 of the Commonwealth. [s 11 subst Act 33 of 2016 Sch 1[9], opn 3 Dec 2016]

[page 1284]

[8-5245]

Recording of domestic violence offences

12 (1) The charge in respect of an offence may indicate that the offence is a domestic violence offence. (2) If a person pleads guilty to an offence or is found guilty of an offence and the court is satisfied that the offence was a domestic violence offence, the court is to direct that the offence be recorded on the person’s criminal record as a domestic violence offence. (3) If the court makes a direction under this section to record an offence as a domestic violence offence, the prosecution may make an application to the court requesting that the court direct that specified offences in respect of which the person has previously pleaded guilty or been found guilty be recorded as domestic violence offences. (4) Any such application is to include sufficient information in support of the request to enable the court to make a decision as to whether such a recording is appropriate.

(5) The court may require the prosecutor to provide further information to enable it to make a determination as to whether to direct a recording to be made under this section. (6) If satisfied after considering an application under subsection (3) that an offence referred to in the application was a domestic violence offence, the court is to direct that the offence be recorded on the criminal record of the person concerned as a domestic violence offence. (7) A victim of an offence is not compellable in any proceedings before the court to determine whether the court should make a direction under this section to record an offence as a domestic violence offence. (8) A court that directs a recording to be made under this section or is required to take such a recording into account may, on application or on its own motion, correct the recording if it considers that there is an error in the recording. (9) Regulations may be made for or with respect to the recording of offences under this section, including the manner in which and time within which such recordings are to be made. Note. An indication in the charge for an offence that a person has committed a domestic violence offence will be relevant in bail proceedings. The recording on a person’s criminal record that an offence is a domestic violence offence will be relevant to sections 7 and 8 of this Act, where previous behaviour constituting a domestic violence offence is taken into account for the purpose of determining whether a person’s behaviour amounts to intimidation or stalking, and to sections 27 and 49 of this Act, which require police to make applications for apprehended domestic violence orders in situations where the person in question has already committed a domestic violence offence. Section 21A of the Crimes (Sentencing Procedure) Act 1999 provides that a record of previous convictions is an aggravating factor to be taken into account when determining the appropriate sentence for an offence.

[8-5250] Stalking or intimidation with intent to cause fear of physical or mental harm 13 (1) A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence. Maximum penalty: Imprisonment for 5 years or 50 penalty units, or both. (2) For the purposes of this section, causing a person to fear physical or mental harm includes causing the person to fear physical or mental harm to another person with whom he or she has a domestic relationship.

[page 1285] (3) 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. (4) For the purposes of this section, the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm. (5) A person who attempts to commit an offence against subsection (1) is guilty of an offence against that subsection and is punishable as if the offence attempted had been committed. [subs (5) insrt Act 27 of 2009 Sch 1, opn 19 May 2009]

[8-5255] Offence of contravening apprehended violence order 14 (1) A person who knowingly contravenes a prohibition or restriction specified in an apprehended violence order made against the person is guilty of an offence. Maximum penalty: Imprisonment for 2 years or 50 penalty units, or both. (2) A person is not guilty of an offence against subsection (1) unless: (a) in the case of an apprehended violence order made by a court, the person was served with a copy of the order or was present in court when the order was made, or (b) in any other case, the person was served with a copy of the apprehended violence order. (3) A person is not guilty of an offence against subsection (1) if the contravention of the prohibition or restriction concerned: (a) was necessary in order to attend mediation under section 21, or (b) was done in compliance with the terms of a property recovery order. (4) Unless the court otherwise orders, a person who is convicted of an offence against subsection (1) must be sentenced to a term of imprisonment if the act constituting the offence was an act of violence against a person.

(5) Subsection (4) does not apply if the person convicted was under 18 years of age at the time of the alleged offence. (6) Where the court determines not to impose a sentence of imprisonment, it must give its reasons for not doing so. (7) A person is not guilty of an offence of aiding, abetting, counselling or procuring the commission of an offence against subsection (1) if the person is a protected person under the order concerned. (8) A police officer is to make a written record of the reasons for: (a) a decision by the police officer not to initiate criminal proceedings against a person for an alleged contravention of subsection (1) or (9) (whether or not the person is arrested), or (b) a decision by the police officer not to proceed with criminal proceedings against a person for an alleged contravention of subsection (1) or (9), if the police officer or another police officer suspects on reasonable grounds that the person has committed an offence against either subsection or if an alleged contravention of either subsection by the person has been reported to the police officer or another police officer. [subs (8) am Act 27 of 2009 Sch 1, opn 19 May 2009]

[page 1286] (9) A person who attempts to commit an offence against subsection (1) is guilty of an offence against that subsection and is punishable as if the offence attempted had been committed. [subs (9) insrt Act 27 of 2009 Sch 1, opn 19 May 2009] Note. The Law Enforcement (Powers and Responsibilities) Act 2002 contains powers of police officers in relation to suspected offences, including a power to arrest a person, without warrant, if the police officer suspects on reasonable grounds that a person has committed an offence.

PART 4 — APPREHENDED DOMESTIC VIOLENCE ORDERS

[8-5355] Application for making of apprehended domestic violence order by court 15 (1) An application may be made in accordance with Part 10 for an apprehended domestic violence order for the protection of: (a) a person against another person with whom he or she has or has had a domestic relationship, or (b) two or more persons against another person with whom at least one of those persons has or has had a domestic relationship. (2) An application is to be treated as an application for an apprehended personal violence order if none of the persons for whose protection the order would be made has or has had a domestic relationship with the person against whom it is sought. (3) Subsection (2) does not apply to a provisional order that is made by a senior police officer and treated as an application for an order pursuant to section 29. [subs (3) insrt Act 87 of 2013 Sch 1[4], opn 20 May 2014] COMMENTARY ON SECTION 15

Practice Note ….

[8-5355.5]

[8-5355.5] Practice Note See Local Court Practice Note No 2 of 2012 at [28-15,210] for procedures concerning domestic and personal violence proceedings.

____________________

[8-5360] Court may make apprehended domestic violence order 16 (1) A court may, on application, make an apprehended domestic violence order if it is satisfied on the balance of probabilities that a person who has or has had a domestic relationship with another person has reasonable grounds to fear and in fact fears: (a) the commission by the other person of a domestic violence offence against the person, or (b) the engagement of the other person in conduct in which the other person:

intimidates the person or a person with whom the person has a domestic relationship, or (ii) stalks the person, being conduct that, in the opinion of the court, is sufficient to warrant the making of the order. (i)

[subs (1) am Act 33 of 2016 Sch 1[10], opn 3 Dec 2016]

[page 1287] (2) Despite subsection (1), it is not necessary for the court to be satisfied that the person for whose protection the order would be made in fact fears that such an offence will be committed, or that such conduct will be engaged in, if: (a) the person is a child, or (b) the person is, in the opinion of the court, suffering from an appreciably below average general intelligence function, or (c) in the opinion of the court: (i) the person has been subjected on more than one occasion to conduct by the defendant amounting to a personal violence offence, and (ii) there is a reasonable likelihood that the defendant may commit a personal violence offence against the person, and (iii) the making of the order is necessary in the circumstances to protect the person from further violence, or (d) the court is satisfied on the balance of probabilities that the person has reasonable grounds to fear the commission of a domestic violence offence against the person. [subs (2) am Act 33 of 2016 Sch 1[11], [12], opn 3 Dec 2016]

(2A) An apprehended domestic violence order that is made in reliance on subsection (2)(d) cannot impose prohibitions or restrictions on the behaviour of the defendant other than those prohibitions that are taken to be specified in the order by section 36. [subs (2A) insrt Act 33 of 2016 Sch 1[13], opn 3 Dec 2016]

(3) For the purposes of this section, conduct may amount to intimidation of

a person even though: (a) it does not involve actual or threatened violence to the person, or (b) it consists only of actual or threatened damage to property belonging to, in the possession of or used by the person. Note. Part 8 provides for the matters that may be included in orders. Part 9 contains additional provisions relevant to the making of orders. COMMENTARY ON SECTION 16

Making an apprehended domestic violence order ….

[8-5360.1]

[8-5360.1] Making an apprehended domestic violence order Section 17 at [8-5360] provides for matters to be considered by a court in deciding whether or not to make a s 16 order. Section 48 at [8-6105] provides for the making of an application for a s 16 order.

____________________

[8-5365]

Matters to be considered by court

17 (1) In deciding whether or not to make an apprehended domestic violence order, the court must consider the safety and protection of the protected person and any child directly or indirectly affected by the conduct of the defendant alleged in the application for the order. (2) Without limiting subsection (1), in deciding whether or not to make an apprehended domestic violence order, the court is to consider: (a) in the case of an order that would prohibit or restrict access to the defendant’s residence — the effects and consequences on the safety and protection of the protected person and any children living or ordinarily living at the residence if an order prohibiting or restricting access to the residence is not made, and [page 1288] (b) any hardship that may be caused by making or not making the order, particularly to the protected person and any children, and (c) the accommodation needs of all relevant parties, in particular the protected person and any children, and

(d) any other relevant matter. (3) When making an apprehended domestic violence order, the court is to ensure that the order imposes only those prohibitions and restrictions on the defendant that, in the opinion of the court, are necessary for the safety and protection of the protected person, and any child directly or indirectly affected by the conduct of the defendant alleged in the application for the order, and the protected person’s property. (4) If an application is made for an apprehended domestic violence order that prohibits or restricts access by the defendant to any premises or place and the court hearing proceedings in respect of the application decides to make an order without the prohibition or restriction sought, the court is to give reasons for that decision.

PART 5 — APPREHENDED PERSONAL VIOLENCE ORDERS [8-5465] Application for making of apprehended personal violence order by court 18 (1) An application may be made in accordance with Part 10 for an apprehended personal violence order for the protection of one or more persons against another person. (2) An application is to be treated as an application for an apprehended domestic violence order if one or more of the persons for whose protection the order would be made has or has had a domestic relationship with the person against whom it is sought. COMMENTARY ON SECTION 18

Practice Note ….

[8-5465.5]

[8-5465.5] Practice Note See Local Court Practice Note No 2 of 2012 at [28-15,210] for procedures concerning domestic and personal violence proceedings.

____________________

[8-5470]

Court may make apprehended personal

violence order 19 (1) A court may, on application, make an apprehended personal violence order if it is satisfied on the balance of probabilities that a person has reasonable grounds to fear and in fact fears: (a) the commission by the other person of a personal violence offence against the person, or (b) the engagement of the other person in conduct in which the other person: (i) intimidates the person, or (ii) stalks the person, being conduct that, in the opinion of the court, is sufficient to warrant the making of the order. (2) Despite subsection (1), it is not necessary for the court to be satisfied that the person for whose protection the order would be made in fact fears that such an offence will be committed, or that such conduct will be engaged in, if: (a) the person is a child, or [page 1289] (b) the person is, in the opinion of the court, suffering from an appreciably below average general intelligence function. (3) For the purposes of this section, conduct may amount to intimidation of a person even though: (a) it does not involve actual or threatened violence to the person, or (b) it consists only of actual or threatened damage to property belonging to, in the possession of or used by the person. Note. Part 8 provides for the matters that may be included in orders. Part 9 contains additional provisions relevant to the making of orders. COMMENTARY ON SECTION 19

Making an apprehended personal violence order ….

[8-5470.1]

[8-5470.1] Making an apprehended personal violence order Section 20 at [8-5475] provides for

matters to be considered by a court in deciding whether or not to make a s 19 order. At any time when considering whether to make an apprehended personal violence order or after making such an order, a court may refer the parties for mediation: s 21 at [8-5480].

____________________

[8-5475]

Matters to be considered by court

20 (1) In deciding whether or not to make an apprehended personal violence order, the court must consider the safety and protection of the person seeking the order and any child directly or indirectly affected by the conduct of the defendant alleged in the application for the order. (2) Without limiting subsection (1), in deciding whether or not to make an apprehended personal violence order, the court is to consider: (a) in the case of an order that would prohibit or restrict access to the defendant’s residence — the effects and consequences on the safety and protection of the protected person and any children living or ordinarily living at the residence if an order prohibiting or restricting access to the residence is not made, and (b) any hardship that may be caused by making or not making the order, particularly to the protected person and any children, and (c) the accommodation needs of all relevant parties, in particular the protected person and any children, and (d) any other relevant matter. (3) When making an apprehended personal violence order, the court is to ensure that the order imposes only those prohibitions and restrictions on the defendant that, in the opinion of the court, are necessary for the safety and protection of the protected person, and any child directly or indirectly affected by the conduct of the defendant alleged in the application for the order, and the protected person’s property. (4) If an application is made for an apprehended personal violence order that prohibits or restricts access by the defendant to any premises or place and the court hearing proceedings in respect of the application decides to make an order without the prohibition or restriction sought, the court is to give reasons for that decision.

[8-5480]

Referral of matters to mediation

21 (1) If an application for an apprehended personal violence order is made to a court, the court: [page 1290] (a) when considering whether to make the order — is to refer the protected person and the defendant for mediation under the Community Justice Centres Act 1983 unless it is satisfied that there is good reason not to do so, and (b) at any other time — may refer the protected person and the defendant for mediation under that Act. [subs (1) subst Act 87 of 2013 Sch 2[1], opn 20 May 2014]

(2) Without limiting subsection (1), in determining whether there is good reason not to refer a matter to mediation, the court is to consider whether: (a) there has been a history of physical violence to the protected person by the defendant, or (b) the protected person has been subjected to conduct by the defendant amounting to a personal violence offence, or (c) the protected person has been subjected to conduct by the defendant amounting to an offence under section 13, or (d) the defendant has engaged in conduct amounting to harassment relating to the protected person’s race, religion, homosexuality, transgender status, HIV/AIDS infection or disability, or (e) there has been a previous attempt at mediation in relation to the same matter and the attempt was not successful. [subs (2) am Act 87 of 2013 Sch 2[2], opn 20 May 2014]

(2A) The existence of any one or more of the factors referred to in subsection (2) does not prevent a court from referring a matter to mediation. [subs (2A) insrt Act 87 of 2013 Sch 2[3], opn 20 May 2014]

(3) Nothing in this section affects section 24 of the Community Justice Centres Act 1983. Note. Section 24 of the Community Justice Centres Act 1983 enables the Director of Community

Justice Centres to decline to consent to the acceptance of a dispute for mediation and enables the Director or a mediator to terminate a mediation session at any time.

(4) The Director of Community Justice Centres is to provide a written report on the outcome of the mediation or attempted mediation to the court that referred the matter for mediation. (5) On receiving a report under subsection (4), the court is to take such action in accordance with this Act as it considers appropriate in relation to the matter concerned and in doing so may take into account the contents of the report. (6) If a matter is referred to mediation under this section without an order having been made, any proceedings in relation to the application are taken to have been stayed until a report is provided under subsection (4). (7) If the Director of Community Justice Centres provides a report under subsection (4) or a mediator conducts a mediation of a matter referred under this section, the Director or the mediator is taken, for the purposes of the provisions of the Community Justice Centres Act 1983, to be exercising those functions for the purpose of executing that Act.

PART 6 — INTERIM COURT ORDERS [8-5580]

Interim court orders

22 (1) A court may, on application made in accordance with Part 10, make an interim apprehended domestic violence order or an interim apprehended personal violence order if it appears to the court that it is necessary or appropriate to do so in the circumstances. [page 1291] (2) An interim apprehended domestic violence order or an interim apprehended personal violence order made on application under this Part is referred to in this Act as an interim court order. (3) An interim court order may be made by a court whether or not: (a) the defendant is present at the proceedings, or

(b) the defendant has been given notice of the proceedings. (4) A court may, in deciding whether to make an interim court order, admit affidavit evidence or a written statement by a police officer that is tendered on behalf of the person for whose protection the order would be made if: (a) the person is unable, for any good reason, to be present at the proceedings, and (b) the court is satisfied that the matter requires urgent consideration by the court. (5) If an interim court order is made by a court: (a) the court is to require the defendant to appear at a further hearing of the matter by the court as soon as practicable after the interim court order is made, and (b) the court may, at the further hearing or an adjourned further hearing, make a final apprehended violence order in the same terms as the interim court order or with variations or may revoke the interim court order (whether or not the defendant appears at any such further hearing). (6) An interim court order has, while it remains in force, the same effect as a final apprehended violence order.

[8-5585] Interim court orders made by Registrar with consent 23 (1) A Registrar may, on application, make an interim apprehended domestic violence order or an interim apprehended personal violence order if satisfied that the protected person and the defendant consent to the making of the order. (2) Section 78 (Orders made with consent of parties) applies in relation to the making of an order by a Registrar under this section in the same way as it applies to the making of an interim court order by a court. (3) If an interim court order is made by a Registrar: (a) the Registrar is to require the defendant to appear at a further hearing of the matter before a court as soon as practicable after the interim court order is made, and (b) the court may, at the further hearing or an adjourned hearing, make

a final apprehended violence order in the same terms as the interim court order or with variations or may revoke the interim court order. (4) An interim court order made by a Registrar of a court under this section is taken to have been made by the court and has effect accordingly. (5) Section 76 applies to a Registrar who makes an interim court order under this section.

[8-5590] Interim court order ceases when final court order made or served 24 (1) An interim court order remains in force until: (a) it is revoked, or (b) it ceases to have effect under subsection (2), or [page 1292] (c) the application for a final apprehended violence order is withdrawn or dismissed, whichever first occurs. (2) If a final apprehended violence order is made in respect of an interim court order (whether with or without variation), the interim court order ceases to have effect: (a) in a case where the defendant is present at court — when the final apprehended violence order is made, or (b) in any other case — when the defendant is served in accordance with this Act with a copy of the final apprehended violence order.

[8-5595]

Referral of matters to mediation

24A Section 21 applies in relation to an interim apprehended personal violence order in the same way as it applies in relation to an apprehended personal violence order. [s 24A insrt Act 87 of 2013 Sch 2[4], opn 20 May 2014]

PART 7 — PROVISIONAL ORDERS [8-5690] Application by telephone, facsimile or other communication device 25 (1) A police officer may apply by telephone, facsimile or other communication device: (a) to an authorised officer or senior police officer for an interim apprehended domestic violence order, or (b) to an authorised officer for an interim apprehended personal violence order. (2) In this Act: (a) an interim apprehended domestic violence order or an interim apprehended personal violence order made on an application under this section is referred to as a provisional order, and (b) the police officer who applies for a provisional order is referred to as the applicant officer, and (c) the authorised officer or senior police officer who makes a provisional order is referred to as the issuing officer. (3) An application for a provisional order: (a) may be made at the request of the protected person or on the applicant officer’s own initiative, and (b) may be transmitted to the authorised officer or senior police officer by another person on behalf of the applicant officer if it is not practicable for the application to be made by the applicant officer by telephone, facsimile or other communication device directly to the authorised officer or senior police officer. [s 25 subst Act 87 of 2013 Sch 1[5], opn 20 May 2014]

[8-5695]

When application may be made

26 (1) An application may be made by telephone, facsimile or other communication device if: (a) an incident occurs involving the person against whom the provisional order is sought to be made and the person who would

be protected by the provisional order, and [page 1293] (b) a police officer has good reason to believe a provisional order needs to be made immediately to ensure the safety and protection of the person who would be protected by the provisional order or to prevent substantial damage to any property of that person. (2) An application may be made at any time and whether or not the court is sitting.

[8-5700] Obligation to apply for provisional order in certain circumstances 27 (1) An application must be made for a provisional order if: (a) a police officer investigating the incident concerned suspects or believes that: (i) a domestic violence offence or an offence against section 13 has recently been or is being committed, or is imminent, or is likely to be committed, against the person for whose protection an order would be made, or (ii) an offence under section 227 (Child and young person abuse) of the Children and Young Persons (Care and Protection) Act 1998 (but only in relation to a child) has recently been or is being committed, or is imminent, or is likely to be committed, against the person for whose protection an order would be made, or (iii) proceedings have been commenced against a person for an offence referred to in subparagraph (i) or (ii) committed against the person for whose protection an order would be made, and (b) the police officer has good reason to believe an order needs to be made immediately to ensure the safety and protection of the person who would be protected by the order or to prevent substantial

damage to any property of that person. (2) The application may be made by any police officer. (3) An application need not be made in the circumstances referred to in subsection (1) if an apprehended violence order is already in force against the defendant for the protection of the person concerned. (4) An application need not be made in the circumstances referred to in subsection (1) if the person for whose protection an order would be made is at least 16 years of age at the time of the incident and a police officer investigating the incident believes: (a) that the person intends to make an application for an apprehended violence order, or (b) that there is good reason not to make the application. (5) However, if the police officer investigating the incident believes that there is good reason not to make the application, the police officer must make a written record of the reason. (6) For the purposes of subsection (4), the reluctance of the person to make an application does not, on its own, constitute a good reason for a police officer not to make an application if the police officer reasonably believes that: (a) the person has been the victim of violence or there is a significant threat of violence to the person, or (b) the person has an intellectual disability and has no guardian. [page 1294]

[8-5705] Making of provisional order by authorised officer 28 (1) An authorised officer to whom an application is made for a provisional order may, if satisfied that there are reasonable grounds for doing so, make the provisional order. (2) Section 21 (Referral of matters to mediation) applies to an authorised officer when considering whether to make a provisional order that is an interim personal apprehended violence order or after making such an order in

the same way as it applies to a court. (3) Section 81 applies to the making of a provisional order by an authorised officer in the same way as that section applies to other orders. [subs (3) am Act 87 of 2013 Sch 1[6], opn 20 May 2014]

[8-5707] Making of provisional order by senior police officer 28A (1) A senior police officer to whom an application is made for a provisional order may, if satisfied that there are reasonable grounds for doing so, make the provisional order. (2) However, a senior police officer may not make a provisional order in circumstances where he or she is the applicant officer. (3) The provisional order is to contain the address or facsimile number of the Local Area Commander of Police at which the defendant may serve an application for variation or revocation of the order. [s 28A insrt Act 87 of 2013 Sch 1[7], opn 20 May 2014]

[8-5710] Provisional order taken to be application for court order 29 (1) A provisional order is taken, for the purposes of this Act, to be an application for an order under Part 10. (2) The provisional order is to contain a direction for the appearance of the defendant at a hearing of the application by an appropriate court on a date specified in the order by the issuing officer. [subs (2) subst Act 87 of 2013 Sch 1[8], opn 20 May 2014]

(3) The specified date must be: (a) the next date on which the matter can be listed on a domestic violence list at the appropriate court, and (b) in any case, a date that is not more than 28 days after the making of the provisional order. [subs (3) insrt Act 87 of 2013 Sch 1[8], opn 20 May 2014]

[8-5715]

Recording of provisional order

30 (1) The issuing officer who makes a provisional order is to inform the applicant of the terms of the order and the date and time when the order was made. [subs (1) am Act 87 of 2013 Sch 1[9], opn 20 May 2014]

(2) The applicant is to complete a form of order in the terms so indicated and write on it the name of the issuing officer, the date and time when the order was made and the date of the hearing of the application. [subs (2) am Act 87 of 2013 Sch 1[9], opn 20 May 2014]

(3) When the form of order is completed, it is taken to be a provisional order. [page 1295] (4) An issuing officer may, instead of proceeding under subsection (1), furnish the provisional order to the applicant. [subs (4) am Act 87 of 2013 Sch 1[9], opn 20 May 2014]

(5) An applicant who is furnished with a provisional order under subsection (4) is to include in the order the date of the hearing of the application.

[8-5720]

Service

31 (1) A provisional order is to be served personally on the defendant by a police officer as soon as practicable after it is made. (2) A provisional order is to be served personally on the protected person by a police officer as soon as practicable after it is made unless it is impractical to do so. [subs (2) insrt Act 119 of 2008 s 3 and Sch 1, opn 10 Dec 2008]

[8-5725]

Duration

32 (1) A provisional order remains in force until: (a) it is revoked, or (b) it ceases to have effect under subsection (2), or (c) the application for a final apprehended violence order is withdrawn

or dismissed, whichever first occurs. (2) If an interim court order or final apprehended violence order is made in respect of a provisional order (whether with or without variation), the provisional order ceases to have effect: (a) in a case where the defendant is present at court — when the interim court order or final apprehended violence order is made, or (b) in any other case — when the defendant is served in accordance with this Act with a copy of the interim court order or final apprehended violence order. [s 32 subst Act 33 of 2016 Sch 1[14], opn 22 Aug 2016]

[8-5730] Variation or revocation of provisional order on application of police officer 33 (1) A provisional order made by an authorised officer may be varied or revoked by: (a) the authorised officer who made it or any other authorised officer, or (b) any court dealing with an application for an apprehended violence order against the same defendant. [subs (1) am Act 87 of 2013 Sch 1[10], opn 20 May 2014]

(2) A provisional order may be varied: (a) by amending or deleting any prohibitions or restrictions specified in the order, or (b) by specifying additional prohibitions or restrictions in the order. (3) An application for a variation or the revocation of a provisional order under this section may be made only by a police officer. [subs (3) am Act 87 of 2013 Sch 1[11], opn 20 May 2014]

(4) If there is more than one protected person under a provisional order, the order may be varied or revoked in its application to all of the protected persons or in relation to any one or more of the protected persons. [page 1296]

(5) Notice of the variation or revocation is to be served on the defendant, each protected person affected by the variation or revocation and the Commissioner of Police. (6) [subs (6) rep Act 33 of 2016 Sch 1[15], opn 3 Dec 2016] (7) This section does not apply to the variation or revocation of a provisional order in accordance with section 33A. [subs (7) insrt Act 87 of 2013 Sch 1[12], opn 20 May 2014]

[8-5733] Variation or revocation of provisional order on application of defendant 33A (1) A provisional order made by a senior police officer may be varied or revoked on the application of the defendant by any court that deals, or is to deal, with an application for an apprehended violence order against that defendant. (2) Despite subsection (1), an application for variation or revocation of a provisional order must be made by a police officer if the protected person or one of the protected persons under the order is a child at the time of the application. (3) Sections 73(1), (2), (4) and (6), 74(1) and (2), 76(2), (4) and (5) and 77(2)–(8) apply to the variation or revocation of a provisional order under this section in the same way as they apply to the variation or revocation of a final apprehended violence order or interim court order. (4) In addition to the requirements of section 73(4), a provisional order is not to be varied or revoked on the application of the defendant under this section unless notice of the application has been served on the Local Area Commander of Police. (5) The applicant officer or another police officer is entitled to appear in proceedings for a variation or revocation of the provisional order under this section. [s 33A insrt Act 87 of 2013 Sch 1[13], opn 20 May 2014]

[8-5735]

Purported renewal or continuance

34 (1) A provisional order may not be renewed and a further provisional order may not be made in respect of the same incident.

(2) If a court purports to renew or continue a provisional order: (a) the order is taken to be an interim court order made by the court at that time, and (b) further service of the order is not required.

[8-5740] Defects in interim apprehended domestic violence orders 34A (1) This section applies if a senior police officer has, in good faith, purported to make a provisional order as an interim apprehended domestic violence order but none of the persons for whose protection the order was made has or has had a domestic relationship with the person against whom the order was sought. (2) If a provisional order has such a defect, no action lies against any police officer or any other person merely because of that defect in respect of anything done or omitted to be done by the police officer or other person in good faith in reliance on the provisional order or any ancillary property recovery order. [s 34A insrt Act 87 of 2013 Sch 1[14], opn 20 May 2014]

[page 1297]

PART 8 — CONTENT AND EFFECT OF APPREHENDED VIOLENCE ORDERS [8-5835] Prohibitions and restrictions imposed by apprehended violence orders 35 (1) When making an apprehended violence order, a court may impose such prohibitions or restrictions on the behaviour of the defendant as appear necessary or desirable to the court and, in particular, to ensure the safety and protection of the person in need of protection and any children from domestic or personal violence. (2) Without limiting the generality of subsection (1), an apprehended

violence order made by a court may impose any or all of the following prohibitions or restrictions: (a) prohibiting or restricting approaches by the defendant to the protected person, (b) prohibiting or restricting access by the defendant to any or all of the following: (i) to any premises occupied by the protected person from time to time or to any specified premises occupied by the protected person, (ii) to any place where the protected person works from time to time or to any specified place of work of the protected person, (iii) to any specified premises or place frequented by the protected person, whether or not the defendant has a legal or equitable interest in the premises or place, (c) prohibiting or restricting the defendant from approaching the protected person, or any such premises or place, within 12 hours of consuming intoxicating liquor or illicit drugs, (c1) prohibiting or restricting the defendant from locating or attempting to locate the protected person, (d) prohibiting or restricting the possession of all or any specified firearms or prohibited weapons (within the meaning of the Weapons Prohibition Act 1998) by the defendant, (e) prohibiting the defendant from destroying or deliberately damaging or interfering with the protected person’s property, (f) prohibiting or restricting specified behaviour by the defendant that might affect the protected person. [subs (2) am Act 119 of 2008 s 3 and Sch 1, opn 10 Dec 2008; Act 33 of 2016 Sch 1[16], opn 3 Dec 2016]

(3) A provisional order may impose any or all of the prohibitions or restrictions specified in subsection (2)(a)–(e) if the issuing officer is satisfied that there are reasonable grounds for the order doing so and the defendant is not a child. [subs (3) am Act 87 of 2013 Sch 1[15], [16], opn 20 May 2014]

(4) [subs (4) rep Act 119 of 2008 s 3 and Sch 1, opn 10 Dec 2008]

(5) A reference in this section to a court includes a reference to a Registrar. Note. Section 23 of the Firearms Act 1996 provides for the automatic suspension of a licence under that Act on the making of an interim apprehended violence order against the licence holder and section 24 of that Act provides for the automatic revocation of a licence on the making of a final apprehended violence order against the licence holder. Section 17 of the Weapons Prohibition Act 1998 provides for the automatic suspension of a permit under that Act on the making of an interim apprehended violence order against the permit holder and section 18 of that Act provides for the automatic revocation of a permit on the making of a final apprehended violence order against the permit holder. On the suspension or revocation of such licences or permits, the relevant firearms or weapons must be surrendered to the police and may be seized by the police. Note. Section 79 of the Residential Tenancies Act 2010 terminates the tenancy of a tenant or co-tenant under a residential tenancy agreement if a final apprehended violence order is made that prohibits the tenant or co-tenant from having access to the residential premises under the agreement. [s 35 am Act 119 of 2008 s 3 and Sch 1, opn 10 Dec 2008; Act 42 of 2010 Sch 3, opn 31 Jan 2011]

[page 1298]

[8-5840] Prohibitions taken to be specified in every apprehended violence order 36 Every apprehended violence order is taken to specify that the defendant is prohibited from doing any of the following: (a) assaulting or threatening the protected person or a person with whom the protected person has a domestic relationship, (b) stalking, harassing or intimidating the protected person or a person with whom the protected person has a domestic relationship, (c) intentionally or recklessly destroying or damaging any property that belongs to, or is in the possession of, the protected person or a person with whom the protected person has a domestic relationship. [s 36 subst Act 33 of 2016 Sch 1[17], opn 3 Dec 2016]

[8-5845] be made

Ancillary property recovery orders may

37 (1) A property recovery order may be made by a court or authorised officer:

when making an apprehended domestic violence order or interim (a) apprehended domestic violence order, or (b) in relation to an interim apprehended domestic violence order that has been made by a senior police officer. [subs (1) subst Act 87 of 2013 Sch 1[17], opn 20 May 2014]

(1A) A court or authorised officer may make a property recovery order only if satisfied that: (a) the protected person has left personal property at premises which the defendant occupies, or (b) the defendant has left personal property at premises which the protected person occupies. [subs (1A) subst Act 87 of 2013 Sch 1[17], opn 20 May 2014]

(1B) A property recovery order may be made under this section: (a) on the motion of a court or authorised officer when making an apprehended domestic violence order or interim apprehended domestic violence order, or (b) on the application of a police officer, the protected person or the defendant. [subs (1B) insrt Act 87 of 2013 Sch 1[17], opn 20 May 2014]

(1C) An application for a property recovery order made by a protected person or a defendant must include details of the following: (a) any relevant order with respect to property made under the Family Law Act 1975 of the Commonwealth (a family law property order) of which the applicant is aware, (b) any pending application for a family law property order of which the applicant is aware. [subs (1C) insrt Act 33 of 2016 Sch 1[18], opn 3 Dec 2016]

(1D) Before making a property recovery order, a court or authorised officer is to: (a) make such inquiries of the parties about any relevant family law property orders as the court or officer considers to be appropriate, and (b) if any such order is brought to the attention of the court or authorised officer, take the order into consideration. [subs (1D) insrt Act 33 of 2016 Sch 1[18], opn 3 Dec 2016]

[page 1299] (2) A property recovery order may do any or all of the following: (a) direct the person who occupies the premises concerned to allow access to the premises to the person who has left the personal property at the premises (and any police officer or person who is authorised by the order to accompany the person) to enable the removal of the property, (b) provide that the access to the premises concerned is to be at a time or times arranged between the occupier of the premises and a police officer (whether or not the order requires the person recovering the property to be accompanied by a police officer), (c) require the person who has left the personal property at the premises to be accompanied by a police officer when removing the property from the premises, (d) provide that the person who has left the personal property at the premises may be accompanied by any other specified person, (e) specify the type or types of property to which the order relates. (3) A property recovery order does not authorise entry to any premises by means of force. (4) A property recovery order does not confer any right on a person to take property that the person does not own or have a legal right to possess even if the type of property is specified in the order. (5) A property recovery order in respect of personal property left by the defendant on premises may not be made in the absence of the defendant. (6) A person must not, without reasonable excuse, contravene a property recovery order or obstruct a person who is attempting to comply with a property recovery order. Maximum penalty: 50 penalty units. (7) The onus of proof of reasonable excuse in proceedings for an offence against subsection (6) lies on the person accused of the offence. COMMENTARY ON SECTION 37

Scope of the section ….

[8-5845.5]

[8-5845.5] Scope of the section The section was considered in Franks v Franks [2012] NSWCA 209; BC201205181 where it was held that there was no appeal from an order made under the section to the District Court. However, an order could be the subject of review in the Supreme Court under s 69 of the Supreme Court Act 1970. It was further held to apply where identified property was left on the premises and there was no factual limitation to when the order could be made.

____________________

PART 9 — ADDITIONAL MEASURES FOR SUPPORT AND PROTECTION OF CHILDREN AND OTHERS IN PROCEEDINGS [8-5945] Apprehended violence orders made by court or authorised officer can also protect persons with whom person seeking protection has a domestic relationship 38 (1) The power of a court or an issuing officer under this Act to make an apprehended violence order for the protection of a person extends to authorise the [page 1300] making of such an order for the protection of a person with whom the person for whose protection the order was sought has a domestic relationship. [subs (1) am Act 87 of 2013 Sch 1[9], opn 20 May 2014]

(2) If the court makes an apprehended domestic violence order, or the court or issuing officer makes an interim apprehended domestic violence order, for the protection of a person of or above 18 years of age, the court or issuing officer must include as a protected person under the order any child with whom the person of or above 18 years of age has a domestic relationship. [subs (2) am Act 87 of 2013 Sch 1[9], opn 20 May 2014]

(3) A court or issuing officer is not required to comply with subsection (2) if satisfied that there are good reasons for not doing so. However, in that case

the court or issuing officer is to give the reasons for not doing so. [subs (3) am Act 87 of 2013 Sch 1[9], opn 20 May 2014]

(4) For the avoidance of doubt, subsections (2) and (3) are subject to sections 41 and 42. (5) An apprehended violence order may be made by a court for the protection of a child in accordance with this section even though an application for the order was not made by a police officer. [s 38 subst Act 119 of 2008 s 3 and Sch 1, opn 10 Dec 2008]

[8-5950] Final order to be made on guilty plea or guilt finding for serious offence 39 (1) If a person pleads guilty to, or is found guilty of, a serious offence, the court hearing the proceedings must make a final apprehended violence order for the protection of the person against whom the offence was committed regardless of whether an interim apprehended violence order has been made or whether an application for an apprehended violence order has been made. (2) However, the court need not make a final apprehended violence order if it is satisfied that it is not required (for example, because a final apprehended violence order has already been made against the person). (3) In this section: court includes the District Court. serious offence has the same meaning as in section 40. [s 39 subst Act 33 of 2016 Sch 1[19], opn 3 Dec 2016]

[8-5955] Interim apprehended violence order must be made on charge for certain offences 40 (1) When a person is charged with an offence that appears to the court to be a serious offence, the court must make an interim court order against the defendant for the protection of the person against whom the offence appears to have been committed whether or not an application for an order has been made. (2) If an interim court order is made by the court, the court is to summon the defendant to appear at a further hearing of the matter on the determination

of the charge against the person (instead of as soon as practicable after the order is made, as required by section 22(5)(a)). [page 1301] (3) However, the court need not make an interim court order if it is satisfied that it is not required (for example, because an apprehended violence order has already been made against the person). (4) The transcript of proceedings and any evidence admitted in the District Court or the Supreme Court in respect of a serious offence is admissible in the Local Court or Children’s Court for the purposes of determining any one or more of the following: (a) an application for the variation or revocation of an interim court order made under this section in respect of the serious offence, (b) an application for a final apprehended violence order to be made in respect of any such interim court order, (c) an application for the variation or revocation of any such final apprehended violence order. [subs (4) subst Act 33 of 2016 Sch 1[20], opn 3 Dec 2016]

(4A) In this section court includes the District Court and the Supreme Court. [subs (4A) insrt Act 33 of 2016 Sch 1[20], opn 3 Dec 2016]

(5) In this section, a serious offence means: (a) attempted murder, or (b) a domestic violence offence (other than murder, manslaughter or an offence under section 25A of the Crimes Act 1900), or (c) an offence under, or mentioned in, section 33, 35, 61I, 61J, 61JA, 61K, 61L, 61M, 63, 65, 66A, 66B, 66C, 66D, 66EA or 66F of the Crimes Act 1900, or (d) an offence of attempting to commit an offence referred to in paragraph (b) or (c), or (e) an offence under section 13, or (f) an offence under the law of the Commonwealth, another State or a Territory or of another country that is similar to an offence referred

to in paragraph (a), (b), (c), (d) or (e). [subs (5) am Act 2 of 2014 Sch 6.1[2], opn 31 Jan 2014]

[8-5957] Apprehended violence order may be made in care proceedings 40A (1) The Children’s Court may, during care proceedings, make an apprehended violence order for the protection of: (a) the child to whom the care proceedings relate, and (b) any person who is a relative of, or who resides on the same property as, the child, or may vary or revoke any existing order that protects any of those persons. (2) The Children’s Court may make, vary or revoke an order on the application of a party to the care proceedings or on its own motion if the Court considers that the circumstances justify making, varying or revoking the order. (3) The Children’s Court is not to make or vary an order under this section that protects a person if the Court is aware that the defendant is subject to criminal proceedings before another court and those criminal proceedings arose out of some or all of the circumstances that justify the making of the order. (4) Before making, varying or revoking an order under this section, the Children’s Court is to notify the Commissioner of Police and the Secretary of the Department of Family and Community Services and give the Commissioner and Secretary standing to appear in the proceedings. [page 1302] (5) Before varying or revoking a police-initiated order under this section the Children’s Court is to notify the Commissioner of Police and give the Commissioner standing to appear in the proceedings. (6) Sections 48(3) and 72B do not apply to an application made under subsection (2). (7) The parties to the care proceedings and the defendant against whom the

apprehended violence order is proposed to be made all have standing to appear in respect of the making of the apprehended violence order. (8) Subject to the regulations, section 91 (Appeals) of the Children and Young Persons (Care and Protection) Act 1998 applies to an apprehended violence order made under this section. (9) In this section: care proceedings has the same meaning as in the Children and Young Persons (Care and Protection) Act 1998. child includes a young person within the meaning of the Children and Young Persons (Care and Protection) Act 1998. police-initiated order has the same meaning as in section 72. relative of a child has the same meaning as in the Children and Young Persons (Care and Protection) Act 1998. reside on a property has the same meaning as in the Child Protection (Working with Children) Act 2012. [s 40A insrt Act 33 of 2016 Sch 1[21], opn 3 Dec 2016]

[8-5960] Measures to protect children in apprehended violence order proceedings 41 (1) This section applies to the following proceedings or part of proceedings: (a) proceedings in which an apprehended violence order is sought or proposed to be made for the protection of a child, (b) proceedings in relation to an application for the variation or revocation of an apprehended violence order if the protected person or one of the protected persons is a child, (c) any part of proceedings in which an apprehended violence order is sought or proposed to be made in which a child appears as a witness, (d) any part of proceedings in relation to an application for the variation or revocation of an apprehended violence order in which a child appears as a witness. (2) Proceedings or any part of proceedings to which this section applies are to be heard in the absence of the public unless the court hearing the

proceedings otherwise directs. (3) Even if proceedings or a part of proceedings to which this section applies are open to the public, the court hearing the proceedings may direct any person (other than a person who is directly interested in the proceedings) to leave the place where the proceedings are being heard during the examination of any witness. (4) In any proceedings referred to in subsection (1)(a), (b), (c) or (d), a child should not be required to give evidence in any manner about a matter unless the court is of the opinion that it is in the interests of justice for the child to do so. [page 1303] (5) If a child is required to give evidence under this section, the evidence should be required to be given only in accordance with Divisions 3 and 4 of Part 6 of Chapter 6 of the Criminal Procedure Act 1986. (6) For the purposes of subsection (5), Division 3 of Part 6 of Chapter 6 of the Criminal Procedure Act 1986 applies to proceedings in relation to an application for an apprehended violence order, or a variation or revocation of such an order, in the same way as it applies to criminal proceedings.

[8-5963] Questioning child witness in apprehended domestic violence order proceedings 41A (1) A child who appears as a witness in any of the following proceedings cannot be questioned by a defendant directly but only by the defendant’s Australian legal practitioner or other Australian legal practitioner or a suitable person appointed by the court: (a) proceedings in which an apprehended domestic violence order is sought or proposed to be made, (b) proceedings in relation to an application for the variation or revocation of an apprehended domestic violence order. (2) This section applies in addition to the protections set out in section 41. [s 41A insrt Act 33 of 2016 Sch 1[22], opn 3 Dec 2016]

[8-5965]

Consideration of contact with children

42 (1) A person who applies for, or for a variation of, a final apprehended violence order or interim court order must inform the court of: (a) any relevant parenting order of which the person is aware, or (b) any pending application for a relevant parenting order of which the person is aware. The court is required to inform the applicant of the obligation of the applicant under this subsection. (2) In deciding whether or not to make or vary a final apprehended violence order or interim court order, the court is to consider the safety and protection of the protected person and any child directly or indirectly affected by domestic or personal violence. (3) Without limiting subsection (2), in deciding whether or not to make or vary a final apprehended violence order or interim court order, the court is to: (a) consider whether contact between the protected person, or between the defendant, and any child of either of those persons is relevant to the making or variation of the order, and (b) have regard to any relevant parenting order of which the court has been informed. (4) A final apprehended violence order or interim court order, or a variation of such an order, is not invalid merely because of a contravention of this section. (5) In this section, relevant parenting order means a parenting order (within the meaning of Division 5 of Part VII of the Family Law Act 1975 of the Commonwealth) that relates to contact between the protected person, or between the defendant, and any child of either of those persons. [page 1304]

[8-5970] Non-inclusion of protected person’s residential address in application for apprehended domestic violence order or in apprehended domestic

violence order 43 (1) The address at which the protected person resides must not be stated in an application for an apprehended domestic violence order or interim apprehended domestic violence order unless: (a) where the protected person is of or above the age of 16 years — the protected person consents to the address being included in the application, or (b) where the application is made by a police officer — the police officer is satisfied that the defendant knows the address. (2) The address at which the protected person resides, or intends to reside, must not be stated in an apprehended domestic violence order or interim apprehended domestic violence order unless the court or issuing officer is satisfied that: (a) the defendant knows the address, or (b) it is necessary to state the address in order to achieve compliance with the order and the personal safety of the protected person would not be seriously threatened, or damage would not be likely to be caused to any property of the protected person, by stating the address, or (c) where the protected person is of or above the age of 16 years — the protected person consents to the address being stated in the order. [subs (2) am Act 87 of 2013 Sch 1[9], opn 20 May 2014]

(3) A reference in this section to an apprehended domestic violence order or interim apprehended domestic violence order includes a reference to any other order relating to such an order. (4) In this section, court includes a Registrar.

[8-5975] Non-inclusion of health care provider’s residential address in application for apprehended personal violence order or in apprehended personal violence order 44 (1) The address at which a protected health care provider resides must not be stated in any application for an apprehended personal violence order or

interim apprehended personal violence order unless: (a) the protected health care provider consents to the address being included in the application, or (b) if the application is made by a police officer — the police officer is satisfied that the defendant knows the address. (2) The address at which a protected health care provider resides, or intends to reside, must not be stated in an apprehended personal violence order or interim apprehended personal violence order unless the court or issuing officer is satisfied that: (a) the defendant knows the address, or (b) it is necessary to state the address in order to achieve compliance with the order and the personal safety of the protected health care provider would not be seriously threatened, or damage would not be likely to be caused to any property of the protected health care provider, by stating the address, or (c) the protected health care provider consents to the address being stated in the order. [subs (2) am Act 87 of 2013 Sch 1[9], opn 20 May 2014]

[page 1305] (3) If the address at which a protected health care provider resides or intends to reside must not be stated in an application or order because of this section, the address at which the protected health care provider ordinarily provides health care services is to be stated instead in the application or order. (4) A reference in this section to an apprehended personal violence order or interim apprehended personal violence order includes a reference to any other order relating to such an order. (5) In this section: court includes a Registrar. protected health care provider means a person who is employed or engaged to provide any care, treatment, advice or service in respect of the physical or mental health of any protected person.

[8-5980] Publication of names and identifying information about children and other persons involved in apprehended violence order proceedings 45 (1) The name of a person, being a child: (a) for whose protection or against whom an apprehended violence order is sought in any apprehended violence order proceedings, or (b) who appears, or is reasonably likely to appear, as a witness before a court in any apprehended violence order proceedings, or (c) who is, or is reasonably likely to be, mentioned or otherwise involved in any apprehended violence order proceedings, must not be published or broadcast before the proceedings are commenced or after the proceedings have been commenced and before they are disposed of. (2) A court may direct that the name of a person (other than a child to whom subsection (1) applies): (a) for whose protection or against whom an apprehended violence order is sought in any apprehended violence order proceedings, or (b) who appears, or is reasonably likely to appear, as a witness before a court in any apprehended violence order proceedings, or (c) who is, or is reasonably likely to be, mentioned or otherwise involved in any apprehended violence order proceedings, must not be published or broadcast before the proceedings are commenced or after the proceedings have been commenced and before they are disposed of. (3) A person who publishes or broadcasts the name of a person in contravention of subsection (1) or in contravention of a direction under subsection (2) is guilty of an offence. Maximum penalty: Imprisonment for a period not exceeding 2 years, or 200 penalty units, or both (in the case of an individual) or 2,000 penalty units (in the case of a corporation). (4) This section does not prohibit: (a) the publication or broadcasting of an official report of the proceedings of a court that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section, or

(b)

the publication or broadcasting of the name of a person with the consent of the person or of the court. [page 1306]

(5) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material: (a) that identifies the person, or (b) that is likely to lead to the identification of the person. (6) The offence created by this section is an offence of strict liability. (7) A court may vary or revoke a direction given by a court under this section. However, only the District Court may vary or revoke a direction given by the District Court. (8) In this section, court includes a Registrar.

[8-5985] Right to presence of supportive person when giving evidence 46 (1) In this section, party to apprehended violence order proceedings means the person for whose protection the relevant order is sought or the defendant. (2) A party to apprehended violence order proceedings is entitled to choose a person whom the party would like to have present near him or her when giving evidence. (3) Without limiting a party’s right to choose such a person, that person: (a) may be a parent, guardian, relative, friend or support person of the party, and (b) may be with the party as an interpreter, for the purpose of assisting the party with any difficulty in giving evidence associated with a disability, or for the purpose of providing the party with other support. (4) 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 party’s decision to have such a person present near the party, and within the party’s

sight, when the party is giving evidence. (5) The court may permit more than one support person to be present with the party if the court thinks that it is in the interests of justice to do so. Note. Section 306ZK of the Criminal Procedure Act 1986 contains similar provisions to section 46 of this Act in relation to the giving of evidence in apprehended violence order proceedings by vulnerable persons, that is children and intellectually impaired persons.

Section 294B of the Criminal Procedure Act 1986 enables a protected person in apprehended violence order proceedings who is the alleged victim of a prescribed sexual offence (within the meaning of that Act) by the defendant to give evidence from a place other than the courtroom by means of closed-circuit television facilities or other communication facilities or to give evidence in the courtroom if certain measures have been taken to restrict contact with the accused person.

PART 10 — APPLICATIONS FOR FINAL APPREHENDED VIOLENCE ORDERS AND INTERIM COURT ORDERS AND ASSOCIATED PROCEEDINGS DIVISION 1 — PRELIMINARY [8-6085]

Definitions

47 In this Part: application for an order means an application to a court for the making of a final apprehended violence order or an interim court order. [page 1307] application proceedings means proceedings in relation to an application for an order. authorised officer has the same meaning as in the Criminal Procedure

Act 1986 and includes the Registrar of the Children’s Court. court means the Local Court or the Children’s Court. Magistrate includes a Children’s Magistrate. rules means rules of court made under the Local Court Act 2007 or the Children’s Court Act 1987.

DIVISION 2 — APPLICATION FOR ORDER [8-6105]

Making of application for an order

48 (1) An application for an order is to be made in accordance with this Part, despite any provision of any other Act or law (whether or not enacted or made before or after the commencement of this section). (2) An application for an order may be made only by: (a) a person for whose protection the order would be made, or (a1) the guardian of the person for whose protection the order would be made, in the case of a person in respect of whom a guardianship order within the meaning of the Guardianship Act 1987 is in force, or (b) a police officer. [subs (2) am Act 67 of 2012 Sch 3.1[1], opn 24 Sep 2012]

(3) Despite subsection (2), an application for an order may be made only by a police officer if, at the time the application is made, each person for whose protection the order would be made is a child. [subs (3) subst Act 33 of 2016 Sch 1[23], opn 3 Dec 2016]

(4) An application for an order: (a) may be made by more than one person, and (b) if made by a police officer, may be made on behalf of more than one person, and (c) if made by a person for whose protection the order would be made (the applicant), may also be made by the applicant on behalf of any other person with whom the applicant has a domestic relationship. [subs (4) subst Act 119 of 2008 s 3 and Sch 1, opn 10 Dec 2008]

(4A) A court may refer an application for an order to the Commissioner of Police at any time if:

(a) the applicant is not a police officer, and (b) a person for whose protection the order would be made is a child at the time of the application, and (c) the court considers that it would be in the best interests of the child for a police officer to appear in the application. [subs (4A) insrt Act 33 of 2016 Sch 1[24], opn 3 Dec 2016]

(5) A court may deal with an application even though the court has only a facsimile transmission or other copy of the application. (6) An applicant for an order who is 16 years of age or over, but under 18 years of age, has full capacity to make the application and to apply for a variation or revocation of the order. [page 1308] (7) A reference in sections 52, 55(2), 73(4), 77(7), 78(1) and 84(6) to a protected person includes a reference to the guardian of the person in the case of an application for an order made by the guardian of a person on the person’s behalf (as referred to in subsection (2)(a1)). [subs (7) insrt Act 67 of 2012 Sch 3.1[2], opn 24 Sep 2012]

[8-6110] Circumstances in which police must make application for order 49 (1) An application for an order must be made if a police officer investigating the matter concerned suspects or believes that: (a) a domestic violence offence or an offence against section 13 has recently been or is being committed, or is imminent, or is likely to be committed, against the person for whose protection an order would be made, or (b) an offence under section 227 (Child and young person abuse) of the Children and Young Persons (Care and Protection) Act 1998 (but only in relation to a child) has recently been or is being committed, or is imminent, or is likely to be committed, against the person for whose protection an order would be made, or

proceedings have been commenced against a person for an offence (c) referred to in paragraph (a) or (b) against the person for whose protection an order would be made. (2) The application may be made by any police officer. (3) An application need not be made in the circumstances referred to in subsection (1) if an apprehended violence order is already in force for the protection of the person concerned or if an application has been made for a provisional order for the protection of the person. (4) An application need not be made in the circumstances referred to in subsection (1) if the person for whose protection an apprehended violence order would be made is at least 16 years of age at the time and the police officer investigating the matter believes: (a) that the person intends to make the application, or (b) that there is good reason not to make the application. (5) However, if the police officer investigating the matter believes that there is good reason not to make the application, the police officer must make a written record of the reason. (6) For the purposes of subsection (4), the reluctance of the person to make an application does not, on its own, constitute a good reason for a police officer not to make an application if the police officer reasonably believes that: (a) the person has been the victim of violence or there is a significant threat of violence to the person, or (b) the person has an intellectual disability and has no guardian.

[8-6115] False or misleading applications for apprehended personal violence order 49A 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 [page 1309]

(b) the person does so knowing that the statement is false or misleading in a material particular, and (c) the statement is made to a Registrar or Magistrate for the purpose of making an application for an apprehended personal violence order under section 18. Maximum penalty: Imprisonment for 12 months or 10 penalty units, or both. [s 49A insrt Act 87 of 2013 Sch 2[5], opn 20 May 2014]

DIVISION 3 — COMMENCEMENT OF APPLICATION PROCEEDINGS [8-6130] Commencement of proceedings by application notice 50 (1) Application proceedings are to be commenced in a court by the issuing and filing of an application notice in accordance with this Division. (2) The regulations may make provision for or with respect to the form of an application notice for an apprehended violence order under this Division or for the information to be included in the application notice. [subs (2) subst Act 33 of 2016 Sch 1[25], opn 3 Dec 2016]

(3) Without limiting subsection (2), the regulations may require inclusion of the following information in an application notice for an apprehended personal violence order: (a) whether there is an existing commercial relationship between the applicant and the defendant, (b) whether there is an outstanding debt owed by the defendant to the applicant or by the applicant to the defendant, (c) whether there have been previous civil or criminal proceedings between the applicant and the defendant, (d) that it is an offence under this Act to make a statement in the application that the applicant knows is false or misleading in a material particular. [subs (3) subst Act 33 of 2016 Sch 1[25], opn 3 Dec 2016]

(4) Without limiting subsection (2), the regulations may require inclusion

of the following information in an application notice for an apprehended domestic violence order: (a) whether there are any current proceedings under the Family Law Act 1975 of the Commonwealth that may be relevant to the application, (b) whether any property orders have been made or are being sought under that Act that may be relevant to the application and the terms of those orders, (c) if a parenting order has been made under that Act and the application may affect that order — the basis on which the parenting order was made and the reasons why the applicant believes that the court (to which the application is being made) should intervene. [subs (4) insrt Act 33 of 2016 Sch 1[25], opn 3 Dec 2016]

[8-6135] officer

Commencement of proceedings by police

51 If an application for an order is made by a police officer, the police officer may commence the proceedings by issuing an application notice and filing the notice in accordance with this Division. [page 1310]

[8-6140] Commencement of proceedings by protected person 52 If an application for an order is made by a protected person, the person may commence the proceedings by issuing an application notice, signed by a registrar, and filing the notice in accordance with this Division.

[8-6145] Discretion to refuse to issue process in apprehended personal violence order matters

53 (1) An authorised officer or a Registrar may, in accordance with this section, refuse to issue process where an application for an apprehended personal violence order is made unless the application was made by a police officer. (2) An authorised officer refuses to issue process by deciding not to issue a warrant referred to in section 88. (3) A Registrar refuses to issue process by deciding not to sign and file an application notice. (4) An authorised officer or a Registrar may refuse to issue process if satisfied that the application: (a) is frivolous, vexatious, without substance or has no reasonable prospect of success, or (b) could be dealt with more appropriately by mediation or other alternative dispute resolution. (5) Unless satisfied that there are compelling reasons for doing so, an authorised officer or a Registrar is not to refuse to issue process if the application discloses allegations of any of the following: (a) a personal violence offence, (b) an offence under section 13, (c) harassment relating to the protected person’s race, religion, homosexuality, transgender status, HIV/AIDS infection or disability. (6) In determining whether or not to issue process, the authorised officer or Registrar must take the following matters into account: (a) the nature of the allegations, (b) whether the matter is amenable to mediation or other alternative dispute resolution, (c) whether the parties have previously attempted to resolve the matter by mediation or other means, (d) the availability and accessibility of mediation or other alternative dispute resolution services, (e) the willingness and capacity of each party to resolve the matter otherwise than through an application for an apprehended personal violence order,

(f) the relative bargaining powers of the parties, (g) whether the application is in the nature of a cross application, (h) any other matters that the authorised officer or Registrar considers relevant. (7) If the authorised officer or Registrar refuses to issue process under this section, the authorised officer or Registrar must record the reasons for doing so in writing. (8) If a Registrar refuses to accept an application notice for filing, the question of whether the application notice is to be accepted for filing is to be determined by a Magistrate on the application of the applicant. [subs (8) am Act 87 of 2013 Sch 2[6], opn 20 May 2014]

[page 1311]

[8-6150] only

Application notice to be for one matter

54 An application notice may not relate to more than one matter.

[8-6155]

Service of application notice

55 (1) An application notice issued by a police officer must be served by a police officer in accordance with the rules. (2) An application notice issued by a protected person must be served by a person authorised by the rules in accordance with the rules. (3) A copy of an application notice must be filed in the relevant court in accordance with the rules.

[8-6160]

When proceedings commence

56 Application proceedings are taken to have commenced on the date on which an application notice is filed.

DIVISION 4 — HEARING OF APPLICATION

PROCEEDINGS [8-6180]

Time for hearing

57 (1) On the first return date for an application notice in any 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. (2) The court must notify the defendant of the date, time and place, if the defendant is not present. (3) However, if the defendant is not present at the first return date, the court may proceed to hear and determine the matter on that day at its discretion. Note. The powers of the court to adjourn proceedings are set out in section 65. COMMENTARY ON SECTION 57

Time for hearing ….

[8-6180.1]

[8-6180.1] Time for hearing The statutory predecessor to s 57 (s 46 of the now repealed Local Courts Act 1982 in its application to apprehended domestic violence orders) was considered in Underhill v Murden (2007) 173 A Crim R 336; [2007] NSWSC 761; BC200705473.

____________________

[8-6183] Procedure if party not present on hearing date 57A (1) In this section, party to application proceedings means the person for whose protection the relevant order is sought or the defendant. (2) If one or more parties to application proceedings are not present on the day and at the time and place set for the hearing 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 those parties if the court is satisfied that: (a) each absent party had reasonable notice of the first return date or the date, time and place of the hearing, and (b) it is otherwise in the interests of justice to do so.

[page 1312] (3) Before determining the matter, the court must consider the grounds set out in the application notice (if any) and any written statement provided to the court by a police officer. [s 57A insrt Act 33 of 2016 Sch 1[26], opn 3 Dec 2016]

[8-6185]

Proceedings to be open to public

58 (1) Application proceedings before the court are to be heard in open court. (2) This section is subject to Part 9 and the provisions of any other Act or law.

[8-6190]

Change of venue

59 The court may make an order changing the venue of the proceedings if it thinks it appropriate in the circumstances.

[8-6195]

Right to defend action

60 A defendant in application proceedings may defend the action and any proceedings ancillary to the action.

[8-6200]

Right of representation

61 (1) An applicant or defendant may appear personally or by an Australian legal practitioner or other representative empowered by an Act or other law to appear for the applicant or defendant. (2) An applicant who is a police officer may appear personally or by a person permitted by subsection (1) or by a police prosecutor.

[8-6205]

Conduct of case

62 (1) The applicant’s case may be conducted by the applicant or by the applicant’s Australian legal practitioner or any other representative permitted to appear for the applicant (whether under this or any other Act).

(2) The defendant’s case may be conducted by the defendant or by the defendant’s Australian legal practitioner or any other representative permitted to appear for the defendant (whether under this or any other Act).

[8-6210]

Evidence to be on oath

63 The usual oath must be administered to a witness before the witness is examined. Note. For the form of oaths and declarations see the Oaths Act 1900.

[8-6215]

Recording of evidence

64 (1) The evidence of each witness in application 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.

[8-6220]

Adjournments

65 (1) The court may at any stage of proceedings adjourn the proceedings to a specified time and place. (2) An adjournment of proceedings may be in such terms as the court thinks fit. [page 1313]

[8-6225]

Irregularity

66 (1) If, in or in connection with application proceedings or the commencement of application proceedings, there is a failure to comply with any requirement of this Act or the rules, the failure is to be treated as an irregularity and does not nullify the proceedings or any step taken in the proceedings, or any judgment, document or order in the proceedings. (2) Subsection (1) applies to a failure to comply with a requirement

relating to time, place, manner, form or content or any other failure. (3) In the case of an irregularity, the court may, on terms, set aside wholly or in part the proceedings or any step taken in the proceedings or any document, judgment or order in the proceedings or exercise its powers under the rules to allow judgments and to make orders dealing with the proceedings generally. (4) The court must not take action under subsection (3) on the application of a party unless that application is made within a reasonable time and before the party has taken any fresh step after becoming aware of the irregularity.

[8-6230]

Power to dispense with rules

67 (1) In relation to particular application proceedings, the court may, if of the opinion that it is in the interests of justice to do so, dispense with or vary a requirement of the rules. (2) For the purposes of subsection (1), the court may make directions as to the conduct of application proceedings. (3) The power conferred by this section does not extend to any rule declared by the rules to be mandatory.

[8-6235]

Power to stay proceedings

68 (1) Subject to the rules, the court may at any time and from time to time, by order, stay any application proceedings before it, either permanently or until a specified day. (2) The power to stay proceedings includes power to order a stay of the enforcement of an order.

[8-6240]

Arrest of defendant during proceedings

69 (1) A Magistrate may, at any time when or after a matter is first before the court and before it is finally disposed of by the court, issue a warrant to arrest a defendant if the defendant fails to appear personally or to appear by an Australian legal practitioner or other representative and the Magistrate is satisfied that the defendant had notice of the date, time and place of the proceedings. (2) A Magistrate, Registrar or authorised officer before whom a defendant

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 defendant to a correctional centre or other place of security, and (b) ordering the defendant to be brought before the court at the date, time and place specified in the order. (3) The Magistrate, Registrar or authorised officer must give notice of the date, time and place set to the applicant. [page 1314]

[8-6245]

Witnesses and production of evidence

70 The provisions of Part 3 of Chapter 4 of the Criminal Procedure Act 1986 apply, with any necessary modifications, to application proceedings in the same way as they apply to proceedings for summary offences under that Act.

[8-6250] Warrants of arrest and warrants of commitment 71 The provisions of Part 4 of Chapter 4 of the Criminal Procedure Act 1986 apply, with any necessary modifications, to warrants of arrest, or warrants of commitment, issued under this Act in the same way as they apply to warrants of arrest or warrants of commitment issued under that Act.

DIVISION 5 — VARIATION OR REVOCATION OF FINAL APPREHENDED VIOLENCE ORDERS OR INTERIM COURT ORDERS [8-6270]

Definitions

72 In this Division:

application means an application for the variation or revocation of a final apprehended violence order or interim court order. interested party, in relation to an order, means each of the following: (a) each protected person under the order (whether or not the protected person made the application for the original order), (b) each guardian of a protected person under the order, in the case of a protected person in respect of whom a guardianship order within the meaning of the Guardianship Act 1987 is in force, (c) in the case of a protected person who is a child: (i) each parent of a protected person under the order, and (ii) the Secretary of the Department of Family and Community Services, (d) the defendant. police-initiated order means a final apprehended violence order or an interim court order where: (a) the application for the order was made by a police officer, or (b) a police officer was a party to the application proceedings for the order. [s 72 subst Act 33 of 2016 Sch 1[27], opn 3 Dec 2016]

[8-6270A]

Making of application — general

72A (1) An application may be made to a court at any time. (2) An application may be made only by a police officer or by an interested party in relation to the order. (3) An application must set out the grounds on which the application is made and, in the case of a variation, the nature of the variation sought. This subsection does not limit the powers of the court. [s 72A insrt Act 33 of 2016 Sch 1[27], opn 3 Dec 2016]

[page 1315]

[8-6270B]

Making of application — police-

initiated order where protected person is child 72B (1) An interested party in relation to a police-initiated order requires leave of a court to make an application to the court in respect of the order if the protected person (or one of the protected persons) under the order is a child. (2) The court may grant leave for the interested party to make the application if the court is satisfied of any one or more of the following: (a) that there has been a significant change in circumstances since the order was made (or was last varied), (b) that the application is proposed to be made by the Secretary of the Department of Family and Community Services on the basis that a care plan (within the meaning of the Children and Young Persons (Care and Protection) Act 1998) for the child is inconsistent with the police-initiated order, (c) that it is otherwise in the interests of justice to do so. (3) The court is not to grant leave if it is of the opinion that the application, if successful, would significantly increase the risk of harm to the child. [s 72B insrt Act 33 of 2016 Sch 1[27], opn 3 Dec 2016]

[8-6270C] Commissioner must be notified if application relates to police-initiated order 72C (1) The court must decline to hear an application in respect of a police-initiated order unless: (a) the application is made by a police officer, or (b) the court is satisfied that notice of the application has been served on the Commissioner of Police in accordance with the rules of the court. (2) The Commissioner of Police has standing to appear in proceedings for the variation or revocation of any police-initiated order. [s 72C insrt Act 33 of 2016 Sch 1[27], opn 3 Dec 2016]

[8-6270D] Notification of application if protected person is child

72D The court may notify an application to the Commissioner of Police and any interested party and give the Commissioner and interested party standing to appear in proceedings if the protected person (or one of the protected persons) under the order is a child at the time of the application and the court considers it to be in the best interests of the child to do so. [s 72D insrt Act 33 of 2016 Sch 1[27], opn 3 Dec 2016]

[8-6275] Variation or revocation of final apprehended violence orders and interim court orders 73 (1) The court may, if satisfied that in all the circumstances it is proper to do so, vary or revoke a final apprehended violence order or interim court order. (2) In particular, a final apprehended violence order or interim court order may be varied under this section in any one or more of the following ways: (a) by extending or reducing the period during which the order is to remain in force, [page 1316] (b) by amending or deleting any prohibitions or restrictions specified in the order, (c) by specifying additional prohibitions or restrictions in the order. (3) The court may decline to hear an application in respect of an order or interim court order if the court is satisfied that there has been no change in the circumstances on which the making of the order was based and that the application is in the nature of an appeal against the order. [subs (3) am Act 33 of 2016 Sch 1[28], opn 3 Dec 2016]

(4) A final apprehended violence order or interim court order is not to be varied or revoked on the application of the defendant unless notice of the application has been served on each protected person to whom the order relates. (5) A final apprehended violence order or interim court order is not to be

varied or revoked on the application of the applicant for the original order or protected person unless notice of the application has been served on the defendant. (6) Notice of an application must be served personally or in such other manner as the court hearing the application directs. (7) Despite subsection (5), the court may make an order extending the period during which the final apprehended violence order or interim court order is to remain in force without notice of the relevant application having been served on the defendant, if the applicant lodged the application before the day on which the apprehended violence order or interim court order is due to expire. (8) If an application for the extension of a final apprehended violence order or interim court order is made before the order expires, the order is taken to continue in force until the application is dealt with by the court. (9) Unless sooner revoked, an order extended under subsection (7) ceases to have effect 21 days after the order extending it is made or on an earlier date specified in the order extending it. However, further orders may be made from time to time under that subsection before the extended order ceases to have effect.

[8-6280] Variation or revocation of final apprehended violence orders and interim court orders where more than one protected person 74 (1) This section applies to a final apprehended violence order or interim court order if there is more than one protected person under the order. (2) An order to which this section applies may be varied or revoked in its application to all of the protected persons or in relation to any one or more of the protected persons. (3) If an application in respect of an order to which this section applies is made by one of the protected persons under the order, none of the other protected persons can be the subject of the variation or revocation unless the court is satisfied that he or she is at least 16 years of age and has consented to the variation or revocation. [subs (3) am Act 33 of 2016 Sch 1[29], opn 3 Dec 2016] [s 74 am Act 33 of 2016 Sch 1[30], opn 3 Dec 2016]

[8-6285] Variation may be made on guilty plea or guilt finding for certain offences 75 (1) If a person pleads guilty to, or is found guilty of, an offence against section 13 or a domestic violence offence, the court may vary a final apprehended [page 1317] violence order or an interim court order for the purpose of providing greater protection for the person against whom the offence was committed whether or not an application to vary the order has been made under this Division. (2) A reference in this section to a court extends to the District Court when exercising jurisdiction apart from under section 91.

DIVISION 6 — ANCILLARY PROVISIONS [8-6305] Explanation of final apprehended violence orders, interim court orders and variations 76 (1) A court that makes a final apprehended violence order or interim court order must explain to the defendant and the protected person (if either of them is present at the time the order is made): (a) the effect of the order (including any prohibitions and restrictions imposed by the order), and (b) the consequences that may follow from a contravention of the order, and (c) the rights of the defendant and the protected person in relation to the order. (2) A court that varies a final apprehended violence order or interim court order must explain to the defendant and the protected person (if either of them is present at the time the variation is made): (a) the effect of the variation, and

the consequences that may follow from a contravention of the order (b) as varied. (3) A court that makes a final apprehended violence order or interim court order is also to cause a written explanation of the matters required to be explained under this section to be given to the defendant and protected person. (4) In so far as it is reasonably practicable to do so, an explanation under this section is to be given in a language that is likely to be readily understood by the person being given the explanation. (5) A failure to comply with this section in relation to an order does not affect the validity of the order.

[8-6310] Service of copy of apprehended violence order, interim court order or variation or revocation of any such order 77 (1) The Registrar of a court that makes a final apprehended violence order or interim court order is to prepare a written copy of the order. (2) The Registrar of a court that varies or revokes a final apprehended violence order or interim court order is to prepare a written record of the variation or revocation. (3) The Registrar of the court is to serve a copy of the order or of the record of the variation or revocation of the order personally on the defendant if the defendant is present in court. (4) If the defendant is not present at the time the order is made, the Registrar is to arrange for a copy of the order or the record of the variation or revocation to be served personally on the defendant by a police officer or such other person as the Registrar thinks fit. (5) If the defendant is present at the time the order is made but the Registrar is unable to serve a copy of the order or the written record of the variation or revocation [page 1318]

personally on the defendant, the Registrar is to arrange for a copy of the order or record to be sent by post to the defendant or to such other person as the Registrar thinks fit. (6) Service on the defendant of the copy of the order or record concerned may be effected in such other manner as the court directs. (7) The Registrar of the court is to cause a copy of the order or record, and a copy of any application for an order or variation or revocation, to be forwarded to the Commissioner of Police and (unless it is impracticable or unnecessary to do so) to be given to or sent by post to each protected person. (8) The Commissioner of Police is to make a record of the details of the material forwarded to the Commissioner under this section and is to retain that record for at least 10 years after the order to which it relates ceases to be in force.

[8-6315]

Orders made with consent of parties

78 (1) A court may make a final apprehended violence order, or an interim court order, without being satisfied as to the matters that are prerequisites to the making of those orders if the protected person and the defendant consent to the making of the order. (2) Such an order may be made whether or not the defendant admits to any or all of the particulars of the application. (3) Before making such an order, the court may conduct a hearing in relation to the particulars of the application but only if: (a) the order to be made by the court is a final apprehended violence order, and (b) the court is of the opinion that the interests of justice require it to conduct the hearing. (4) In this section: court includes the District Court. [subs (4) insrt Act 33 of 2016 Sch 1[31], opn 3 Dec 2016]

[8-6320] orders

Duration of final apprehended violence

79 (1) A final apprehended violence order remains in force for such period as is specified in the order by the court. (2) The period specified in the order by the court is to be as long as is necessary, in the opinion of the court, to ensure the safety and protection of the protected person. (3) If the court fails to specify a period in the order, the order remains in force for a period of 12 months after the date that the order is made. (4) This section is subject to section 73 (Variation or revocation of final apprehended violence orders and interim court orders).

[8-6325] money

Enforcement of orders for payment of

80 An order for the payment of money by a party to application proceedings (including an order as to payment of costs) may be enforced in a court of competent jurisdiction as if it were a debt due to the person to whom the money is ordered to be paid.

[8-6330]

Concurrent criminal proceedings

81 A court may make an apprehended violence order, and a senior police officer may make a provisional order, against a defendant even though proceedings have been [page 1319] commenced against the defendant for an offence arising out of the same conduct as that out of which the application for the order arose. [s 81 am Act 87 of 2013 Sch 1[18], opn 20 May 2014]

[8-6335] orders

Arrangements regarding classification of

82 (1) If a court is at any time unable to determine whether to make an apprehended domestic violence order or an apprehended personal violence

order, it may make whichever apprehended violence order it thinks fit. (2) If a court is at any time unable to determine whether an apprehended violence order was made, or should have been made, as an apprehended domestic violence order or apprehended personal violence order, it may treat the order as having been made as whichever type of apprehended violence order it thinks fit. (3) If an apprehended violence order is made or treated as having been made as an apprehended domestic violence order or an apprehended personal violence order but should have been made as another type of apprehended violence order, the order is not invalid on that ground and is taken to have been made as that other type of apprehended violence order.

[8-6340]

Application of Bail Act 2013

83 If an application for a final apprehended violence order or interim court order is made, the Bail Act 2013 applies to the defendant as if: (a) where the defendant is arrested pursuant to a warrant issued under this Act or first appears before a court in answer to a direction to appear given under this Act — the defendant were an accused person charged with an offence, and (b) proceedings in respect of the application or order were proceedings in respect of an offence for which there is a right to release under Part 3 of the Bail Act 2013. [s 83 am Act 5 of 2014 Sch 2 item 2.11[1], [2], opn 20 May 2014]

DIVISION 7 — APPEALS [8-6360] Review and appeal provisions concerning making etc of apprehended violence orders 84 (1) An application may be made under Part 2 of the Crimes (Appeal and Review) Act 2001 by the defendant for the annulment of an apprehended violence order made by the Local Court or the Children’s Court in the same way as an application may be made under that Part by a defendant for the

annulment of a conviction arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986. [subs (1) am Act 4 of 2009 Sch 2.1, opn 30 Mar 2009]

(1A) A person who applied to the Local Court or the Children’s Court for an apprehended violence order may apply to the Court for the annulment of the dismissal of the application for the order by the Court, but only if the person was not in attendance before the Court when the application was dismissed. [subs (1A) insrt Act 4 of 2009 Sch 2.1, opn 30 Mar 2009; am Act 106 of 2009 Sch 4, opn 8 Jan 2010]

[page 1320] (1B) The Local Court or the Children’s Court may grant an application for an annulment made under subsection (1A) if it is satisfied that, having regard to the circumstances of the case, there is just cause for doing so. If such an application is granted, the Court may deal with the application for the apprehended violence order as if the application for the order had not been dismissed. [subs (1B) insrt Act 4 of 2009 Sch 2.1, opn 30 Mar 2009; am Act 106 of 2009 Sch 4, opn 8 Jan 2010]

(2) An appeal may be made to the District Court: (a) by the defendant against the making of an apprehended violence order by the Local Court or the Children’s Court, or (a1) by the applicant for an apprehended violence order (or, if the applicant was a police officer, either the applicant or the person for whose protection the order would have been made) against the dismissal of the application by the Local Court or the Children’s Court, or (b) by the applicant for an order or a defendant against the awarding of costs under section 99 of this Act, or (c) by a party to an apprehended violence order against the variation or revocation of the order by the Local Court or the Children’s Court, or (d) by a party to an apprehended violence order against a refusal by the Local Court or the Children’s Court to vary or revoke the order. [subs (2) am Act 53 of 2008 s 3 and Sch 8, opn 1 July 2008]

(3) An appeal under subsection (2): (a) may be made under Part 3 of the Crimes (Appeal and Review) Act 2001 in the same way as an application may be made under that Part by a defendant against a conviction arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986, and (b) may be made only by leave of the District Court in the case of an appeal against the making of an apprehended violence order that was made with the consent of the defendant. [subs (3) am Act 4 of 2009 Sch 2.1, opn 30 Mar 2009]

(4) The Crimes (Appeal and Review) Act 2001 applies to an application or appeal arising under this section with such modifications as are made by or in accordance with the regulations under that Act. (5) For the purposes of this section and the Crimes (Appeal and Review) Act 2001, an order made by a Registrar of a court is taken to have been made by the court. (5A) Part 6 (Interim court orders) applies to proceedings with respect to an appeal to the District Court under subsection (2) in the same way as it applies to an application to the Local Court or the Children’s Court under Part 4 or 5. [subs (5A) insrt Act 53 of 2008 s 3 and Sch 8, opn 1 July 2008; am Act 106 of 2009 Sch 4, opn 8 Jan 2010]

(5B) If the District Court allows an appeal made under this section against the refusal to annul an apprehended violence order and remits the matter to the Local Court or the Children’s Court, the District Court must, unless the District Court is satisfied that it is not necessary to do so, make an interim court order under Part 6 as if an application for such an order had been duly made. [subs (5B) insrt Act 4 of 2009 Sch 2.1, opn 30 Mar 2009; am Act 56 of 2009 Sch 1.9, opn 17 July 2009]

(6) In this section, party to an apprehended violence order means: (a) the protected person (whether or not the applicant), but only if the protected person is of or above the age of 16 years, or [page 1321]

(b) if the applicant was a police officer, that or any other police officer, or (c) the defendant. COMMENTARY ON SECTION 84

Appeals …. Appeal to District Court ….

[8-6360.1] [8-6360.5]

[8-6360.1] Appeals See Pts 2 and 3 Crimes (Appeal and Review) Act 2001 at [4-s 4] and following. There is no appeal to the District Court from an order made under s 37 of the Act but relief may be sought in the Supreme Court under s 69 of the Supreme Court Act 1970: Franks v Franks [2012] NSWCA 209; BC201205181. [8-6360.5] Appeal to District Court See annotations at [4-s 18.1], Dyason v Butterworth [2015] NSWCA 52; BC201501468 and Veness v Hodge [2015] NSWCA 20; BC201500890 concerning the nature and operation of appeals to the District Court against the making of an apprehended personal violence order.

____________________

[8-6365]

Presumption against stay of order

85 (1) The lodging of a notice of appeal under section 84 does not have the effect of staying the operation of the order concerned. (2) The original court may, on application by the defendant, stay the operation of the order, if satisfied that it is safe to do so, having regard to the need to ensure the safety and protection of the protected person or any other person. (3) A stay on the operation of the order continues until the appeal is finally determined, subject to any order or direction of the District Court. (4) This section has effect despite section 84 of this Act and section 63 of the Crimes (Appeal and Review) Act 2001. (5) A stay on the operation of the order does not have effect if the appellant is in custody when the appeal is made, unless and until the appellant is entitled to be released on bail under section 14 of the Bail Act 2013 or bail is dispensed with under that Act. In the application of the Bail Act 2013 to the appellant, the appellant is taken to be an accused person who, because of the prohibitions and restrictions imposed by the order, is in custody. [subs (5) subst Act 5 of 2014 Sch 2 item 2.11[3], opn 20 May 2014]

(6) In this section: original court, in relation to an order, means: (a) the Local Court, if the order was made by the Local Court or a Registrar of the Local Court, or (b) the Children’s Court, if the order was made by the Children’s Court or the Registrar of the Children’s Court.

DIVISION 8 — RULES [8-6385]

Rules in application proceedings

86 (1) The rules may make provision for or with respect to the following matters relating to application proceedings: (a) the practice and procedure in the court and in proceedings before a Registrar, [page 1322] (b) the recording of evidence, including the manner in which the evidence may be recorded and the authentication of evidence or of transcripts of evidence given in proceedings, (c) the filing and service (including substituted service) of notices under this Act, (d) additional requirements for the form of warrants, (e) the functions of Registrars, (f) the hearing of proceedings, including the procedure to be followed and the orders to be made, when a party fails to attend, (g) empowering the court to dispense with rules of evidence for proving any matter that is not genuinely in dispute in any proceedings and to dispense with rules of evidence that might cause expense or delay in proceedings if those rules were applied in specified circumstances, (h) prescribing matters relating to expert evidence, including the

disclosure, by providing copies of reports or otherwise, of the nature of expert evidence to be given, and including the exclusion of expert evidence in the case of non-compliance with the rules relating to expert evidence or with any order for disclosure of the nature of expert evidence, (i) providing for any matter relating to the costs of proceedings. (2) Without limiting subsection (1), the rules made for the purposes of this Act may adopt, with or without modification, the provisions of any rules made under the Civil Procedure Act 2005. (3) This section does not give power to make rules with respect to any matter relating to costs that is regulated by the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014). [subs (3) am Act 7 of 2015 Sch 2.9, opn 1 July 2015]

[8-6390]

Forms

87 (1) The Chief Magistrate of the Local Court or the President of the Children’s Court: (a) may approve forms for documents to be used in connection with application proceedings, and (b) in the case of documents filed with the court, or issued by the court, by means of an ECM system within the meaning of the Electronic Transactions Act 2000, may approve the format in which such documents are to be filed or issued. [subs (1) am Act 33 of 2016 Sch 1[32], opn 3 Dec 2016]

(2) Copies of the approved forms are to be made available for public inspection at each registry of the court and on the court’s internet website. (3) If a form is approved in relation to a document to be used in connection with proceedings in the court, a document that is filed with or issued by the court is to be in that form.

PART 11 — WARRANTS AND POWERS OF POLICE TO DETAIN DEFENDANTS

[8-6490] Warrant for arrest of defendant in final apprehended violence order matters 88 (1) If an application for a final apprehended violence order is made, an authorised officer may issue a warrant for the arrest of the defendant. [page 1323] (2) The authorised officer may issue a warrant for the arrest of the defendant even though the defendant is not alleged to have committed an offence. (3) The authorised officer must issue a warrant for the arrest of the defendant if it appears to the authorised officer that the personal safety of the person for whose protection the order is sought will be put at risk unless the defendant is arrested for the purpose of being brought before the court. (4) A warrant may not be executed more than 12 months after the date on which it is issued, unless the court otherwise orders before the end of the 12month period.

[8-6495] Detention of defendant for making and service of interim apprehended personal violence order 89 (1) A police officer who is making or is about to make an application for a provisional order that is an interim apprehended personal violence order may give either of the following directions to the person against whom the order is sought: (a) that the person remain at the scene where the incident occurred that was the reason for making the application, (b) in a case where the person has left the scene of that incident — that the person remain at another place where the police officer locates the person. (2) If a person refuses or fails to comply with a direction under this section, the police officer who gave the direction or another police officer may detain

the person at the scene of the incident or other place, or detain the person and take the person to a police station. [s 89 subst Act 87 of 2013 Sch 1[19], opn 20 May 2014]

[8-6497] Detention of defendant for making and service of interim apprehended domestic violence order 89A (1) A police officer who is making or is about to make an application for a provisional order that is an interim apprehended domestic violence order may give any of the following directions to the person against whom the order is sought: (a) that the person remain at the scene where the incident occurred that was the reason for making the application, (b) in a case where the person has left the scene of that incident — that the person remain at another place where the police officer locates the person, (c) that the person go to and remain at another place that has been agreed to by the person, (d) that the person go to and remain at a specified police station, (e) that the person accompany a police officer to a police station and remain at the police station, (f) that the person accompany a police officer to another place that has been agreed to by the person, or to another place (whether or not agreed to by the person) for the purpose of receiving medical attention, and remain at that other place. (2) If a person refuses or fails to comply with a direction under this section, the police officer who gave the direction or another police officer may detain the person at the scene of the incident or other place, or detain the person and take the person to a police station. [page 1324] (3) If a direction is given under subsection (1)(e) or (f), the police officer

may detain the person in the vehicle in which the person accompanies the police officer to the police station or other place for so long as is necessary to transport the person to the police station or other place. (4) In considering whether to detain a person under subsection (3), a police officer may have regard to the following matters: (a) the need to ensure the safety of the person for whose protection the interim apprehended domestic violence order is sought, including the need to: (i) ensure the service of the order, and (ii) remove the defendant from the scene of the incident, and (iii) prevent substantial damage to property, (b) the circumstances of the defendant, (c) any other relevant matter. [s 89A insrt Act 87 of 2013 Sch 1[19], opn 20 May 2014]

[8-6500] Detention of defendant for service of order or variation 90 (1) A police officer who reasonably suspects that a person is the defendant in relation to an apprehended violence order may direct the person to remain where the person is for the purpose only of serving on the person a copy of the order, or a variation of the order, that is required to be served personally under this Act. (2) If a person refuses or fails to comply with a direction under this section, the police officer who gave the direction or another police officer may detain the person at the place where the person is, or detain the person and take the person to a police station, for the purpose only of serving the order or variation on the person. Note. Division 1A of Part 3 of the Law Enforcement (Powers and Responsibilities) Act 2002 enables a police officer to require the name of a person who the police officer suspects on reasonable grounds may be the defendant in relation to an apprehended violence order. Section 87 of that Act provides that if a police officer enters a dwelling under a power conferred by that Act and believes on reasonable grounds that a dangerous article or dangerous implement that may have been used or may be used to commit a domestic violence offence is in the dwelling, the police officer may search for the article or implement and seize and detain it. [subs (2) subst Act 87 of 2013 Sch 1[20], opn 20 May 2014]

[8-6505] Period for which person may be directed to remain or be detained 90A (1) A person may be directed under this Part to remain at a place for as long as is reasonably necessary for: (a) in the case of a direction under section 89 or 89A — the application for the provisional order to be made and the provisional order to be served on the person, or (b) in the case of a direction under section 90 — a copy of the apprehended violence order or variation of the order to be served on the person. (2) A person may be detained under this Part for no longer than: (a) the time it takes for: (i) in the case of detention under section 89 or 89A — the application for the provisional order to be made and the provisional order to be served on the person, or [page 1325] (ii) in the case of detention under section 90 — a copy of the apprehended violence order or variation of the order to be served on the person, or (b) 2 hours (excluding any reasonable amount of time for travel to the place or police station), whichever is the lesser. [s 90A insrt Act 87 of 2013 Sch 1[21], opn 20 May 2014]

[8-6510] Detention of person at police station or other place or in vehicle 90B (1) A person who is detained under this Part at a police station or other place or in a vehicle may be detained there by any police officer. (2) As far as is reasonably practicable, a person who is detained under this Part at a police station:

(a) must be given an opportunity by the person in charge of the police station to contact a friend, relative, guardian or independent person (other than a protected person), and (b) must be kept separately from any person detained at the police station in connection with the commission or alleged commission of an offence, and (c) if the person is apparently under the age of 18 years — must be kept separately from any person over that age detained at the police station, and (d) must not be detained in a cell at the police station unless it is necessary to do so, and (e) must be provided with necessary food, drink, bedding and blankets appropriate to the person’s needs. (3) As far as is reasonably practicable, a person who is detained under this Part in a place other than a police station or vehicle: (a) must be given an opportunity by the person in charge of the place to contact a friend, relative, guardian or independent person (other than a protected person), and (b) must be provided with necessary food, drink, bedding and blankets appropriate to the person’s needs. (4) As far as is reasonably practicable, a person who is to be detained under this Part in a vehicle must be given an opportunity by the person in charge of the vehicle to contact a friend, relative, guardian or independent person (other than a protected person) before being detained in the vehicle. [s 90B insrt Act 87 of 2013 Sch 1[21], opn 20 May 2014]

[8-6515]

Searching detained persons

90C (1) A police officer by whom a person is detained under this Part may: (a) conduct a search of the person or of articles in the possession of the person that may include: (i) requiring the person to remove only his or her overcoat, coat or jacket or similar article of clothing and any gloves, shoes, socks and hat, and

(ii) an examination of those items, and (b) take possession of any personal belongings found in the person’s possession. (2) A person is entitled to the return of the personal belongings taken from the person under this section when the person ceases to be detained under this Part. [s 90C insrt Act 87 of 2013 Sch 1[21], opn 20 May 2014]

[page 1326]

[8-6520]

Records required to be kept

90D (1) Records must be made in accordance with the regulations in relation to the detention of a person under this Part. (2) A person who has custody of a record required to be made by this section must retain the record for a period of 3 years after it is made. (3) A person who has the custody of a record made under this section must, when required to do so by a person authorised by the Minister for the purposes of this subsection, make it available for inspection by that person. (4) This section does not require a person to make a record of a matter in relation to the detention or search of a person, if another person has already made a record of that matter as required by this section. [s 90D insrt Act 87 of 2013 Sch 1[21], opn 20 May 2014]

PART 12 — JURISDICTION OF COURTS [8-6600] Courts authorised to make orders and determine applications 91 (1) The following courts have jurisdiction (in the circumstances specified) to make orders and determine applications under this Act: (a) the Local Court — except where the defendant is less than 18 years of age at the time the application is made, (b) the Children’s Court — where the defendant is less than 18 years of

age at the time the application is made. (c) [repealed] [subs (1) am Act 53 of 2008 s 3 and Sch 8, opn 1 July 2008]

(2) The Local Court has jurisdiction to vary or revoke an order made by it or any other court (except where the defendant is less than 18 years of age at the time the application for the variation or revocation is made). (3) The Children’s Court has jurisdiction to vary or revoke an order made by it irrespective of the age of the defendant at the time the application for variation or revocation is made. (4) An order made by the Local Court for the purposes of this Act is not invalid on the ground that it was made in the mistaken belief that the defendant was of or above 18 years of age at the time the application was made. (5) This section does not apply to provisional orders.

[8-6605] this Act

Jurisdiction of Supreme Court under

92 The jurisdiction conferred on the Supreme Court by this Act is conferred on the Court in its criminal jurisdiction. [s 92 insrt Act 33 of 2016 Sch 1[33], opn 22 Aug 2016]

[8-6610] Act

Jurisdiction of District Court under this

93 The jurisdiction conferred on the District Court by this Act is conferred on the Court in its criminal jurisdiction. [page 1327]

PART 13 — REGISTRATION OF EXTERNAL PROTECTION ORDERS

[8-6710]

Definitions

94 In this Part: appropriate court, in relation to an external protection order, means: (a) the Local Court if the person against whom the order has been made is 18 or more years of age, or (b) the Children’s Court if the person against whom the order has been made is less than 18 years of age, on the day on which an application is made under this Part for the registration of the order. external protection order means an order made by a court of another State or Territory or New Zealand that has been made to prevent a person from acting in a manner specified in section 16 or 19, and includes an order made by such a court that is of a kind prescribed by the regulations. registered external protection order means an external protection order registered under this Part.

[8-6715] Application for registration of external protection order 95 (1) A person may apply to a Registrar of the appropriate court for the registration of an external protection order. (2) An application is: (a) to be made in a form approved by the Registrar of the appropriate court, and (b) to be accompanied by a copy of the external protection order, and (c) to be accompanied by such evidence of effective service of the external protection order on the person against whom it has been made as the Registrar considers appropriate.

[8-6720]

Registration of external protection order

96 (1) On receipt of an application under section 95, the Registrar of the appropriate court must:

register the external protection order to which the application (a) relates, or (b) refer the external protection order to a Magistrate (or a Children’s Magistrate if the appropriate court is the Children’s Court) for adaptation or modification. (2) On the referral of an external protection order, the Magistrate or Children’s Magistrate may do either or both of the following: (a) vary the period during which the order has effect in its operation in New South Wales, (b) make such other adaptations or modifications to the order as the Magistrate or Children’s Magistrate considers necessary or desirable for its effective operation in New South Wales. (3) The Registrar of the appropriate court must register an external protection order that has been adapted or modified under subsection (2). (4) On registering an external protection order, the Registrar of the appropriate court must provide the Commissioner of Police with a copy of the registered external protection order. [page 1328] (5) Notice of the registration of an external protection order is not to be served on the person against whom the order has been made unless the person who applied for that registration has consented to that service. (6) A registered external protection order is registered for the period during which the order, or the order as adapted or modified, is in force.

[8-6725] Effect of registration of external protection order 97 (1) An external protection order that has been registered under section 96: (a) has the same effect as an apprehended violence order made under this Act, and (b) may be enforced against a person as if it were an apprehended

violence order which had been made under this Act and as if a copy of the order had been served on that person in accordance with section 77. (2) The variation or revocation of an external protection order by a court of the State, Territory or country in which it was made after the order has been registered under section 96 has no effect in New South Wales. (3) An external protection order that has been registered under section 96 (and anything done to effect the registration of the order) is not invalid on the ground that the order has, due to the age of the defendant at the time the application was made, been registered in the wrong court.

[8-6730] Variation etc of registered external protection orders 98 (1) In this section, prescribed person means: (a) a person for whose protection a registered external protection order has been made, or (b) a person against whom a registered external protection order has been made, or (c) a police officer, or (d) a person to whom the appropriate court in which the external protection order has been registered has granted leave to make an application under this section. (2) A prescribed person may apply to the appropriate court for one or more of the following: (a) the variation of a registered external protection order as it applies in New South Wales, (b) the extension or reduction of the period during which a registered external protection order has effect in its operation in New South Wales, (c) the revocation of the registration of a registered external protection order. (3) The appropriate court may determine the application by doing one or more of the following: (a) by varying the order as it applies in New South Wales,

(b) by extending or reducing the period during which the order has effect in its operation in New South Wales, (c) by revoking the registration. (4) A registered external protection order is not to be varied or revoked on the application of a person referred to in subsection (1)(a), (c) or (d) unless notice of the application has been served on the person against whom the order has been made. (5) A registered external protection order is not to be varied or revoked on the application of the person against whom the order has been made unless notice of the application has been served on the person for whose protection the order has been made. [page 1329] (6) Notice of an application is to be served personally or in such other manner as the appropriate court hearing the application directs. (7) A registered external protection order varied under subsection (3)(a) or (b) is registered for the period during which the order, as varied, has effect in its operation in New South Wales.

PART 13A — INFORMATION SHARING [Pt 13A insrt Act 28 of 2014 Sch 1[1], opn 15 Sep 2014]

DIVISION 1 — PRELIMINARY [8-6740]

Definitions

98A In this Part: agency means: (a) a public sector agency within the meaning of the Privacy and Personal Information Protection Act 1998, or (b) an organisation within the meaning of the Health Records and Information Privacy Act 2002 to which that Act applies.

associated respondent — see section 98B. central referral point means the Secretary of the Department of Justice. [def am Act 88 of 2014 Sch 2 item 2.14, opn 8 Jan 2015]

domestic violence support services means services (including welfare, health, counselling, housing and accommodation and legal assistance services) provided to persons in relation to the commission or possible commission of domestic violence offences against those persons. domestic violence threat means a threat to the life, health or safety of a person that occurs because of the commission or possible commission of a domestic violence offence. health information has the same meaning that it has in the Health Records and Information Privacy Act 2002. local co-ordination point means a support agency or non-government support service nominated as a local co-ordination point by the Minister under section 98O(4). non-government support service means a person or body (other than an agency) that provides domestic violence support services but does not include an individual. Note. The Interpretation Act 1987 defines person to include an individual, a corporation and a body corporate or politic.

personal information has the same meaning that it has in the Privacy and Personal Information Protection Act 1998. primary person — see section 98B. privacy legislation means the Privacy and Personal Information Protection Act 1998 or the Health Records and Information Privacy Act 2002 and any regulation or code of practice made under either of those Acts. [page 1330] support agency means an agency that provides domestic violence support services and includes the central referral point and each local co-ordination point.

[8-6742] Meaning of “primary person” and “associated respondent” 98B In this Part: (a) the primary person is: (i) in relation to an apprehended domestic violence order, the person for whose protection the order is sought or made, or (ii) in relation to a charge for a domestic violence offence, the person who is alleged to be the victim of the offence, and (b) the associated respondent is: (i) in relation to a primary person protected or sought to be protected by an apprehended domestic violence order — the person against whom the order is sought or made, or (ii) in relation to a primary person who is a victim, or an alleged victim, of a domestic violence offence for which a person has been charged — the person so charged.

DIVISION 2 — GENERAL DEALINGS WITH INFORMATION [8-6744]

Definition

98C (1) In this Division: contact purposes means contacting a primary person to seek the primary person’s consent to either or both of the following: (a) the provision of domestic violence support services to the primary person, (b) the further use and disclosure of information in relation to the provision of any such services to the primary person. (2) For the avoidance of doubt, a non-government support service that is also a local co-ordination point is taken, for the purposes of this Division, to be a support agency and not a non-government support service.

[8-6746]

Disclosure of information by all agencies

in case of threat 98D (1) This section applies if an agency believes on reasonable grounds that a person (the threatened person) is subject to a domestic violence threat. (2) The agency may disclose personal information and health information about the threatened person and any person that the agency reasonably believes is a cause of the threat (the threatening person) to the central referral point or a local co-ordination point for contact purposes. (3) Any such disclosure requires the consent of the threatened person. No consent is required from the threatening person. (4) In such a case: (a) the threatened person is taken, for the purposes of this Division, to be a primary person, and (b) the threatening person is taken, for the purposes of this Division, to be an associated respondent. [page 1331]

[8-6748]

Disclosure by Local Court

98E (1) This section applies if an application is made to the Local Court for: (a) an interim apprehended domestic violence order (but only if the order is made), or (b) an apprehended domestic violence order, by a person for whose protection the order would be made or by the guardian of such a person. (2) The Local Court may disclose personal information or health information about a primary person and any associated respondent in respect of the application to the central referral point unless the primary person expressly objects to the disclosure. No consent is required from the associated respondent.

[8-6750]

Central referral point

98F (1) The central referral point may collect personal information or health information about a primary person and any associated respondent if the information is disclosed to the central referral point: (a) in accordance with section 98D or 98E, or (b) lawfully by the NSW Police Force for contact purposes. (2) The central referral point may disclose information that it is authorised to collect under this section without the consent of the primary person or associated respondent if the information is disclosed to a local co-ordination point for contact purposes. Note. The central referral point is a support agency, therefore section 98H also applies.

[8-6752]

Local co-ordination points

98G A local co-ordination point may collect personal information or health information about a primary person and any associated respondent if the information is disclosed to the local co-ordination point: (a) in accordance with section 98D or 98F, or (b) lawfully by the NSW Police Force for contact purposes. Note. Local co-ordination points are support agencies, therefore section 98H also applies.

[8-6754]

Support agencies

98H (1) A support agency may collect personal information or health information about a primary person and any associated respondent if the information is disclosed to the support agency: (a) in accordance with section 98D, or (b) lawfully by the NSW Police Force for contact purposes, or (c) by another support agency in accordance with this section, or (d) by the primary person (no consent is required from the associated respondent), or (e) by a non-government support service with the consent of the primary person (no consent is required from the associated respondent).

(2) A support agency may use information that it is authorised to collect under this Division: (a) for contact purposes — without the consent of the primary person or the associated respondent, or [page 1332] (b) to provide domestic violence support services to the primary person — with the consent of the primary person (no consent is required from the associated respondent). (3) A support agency may disclose information that it is authorised to collect under this Division to another support agency, or to a non-government support service, for the purposes of that other agency or service providing domestic violence support services to the primary person, but only if: (a) the primary person consents to the disclosure (no consent is required from the associated respondent), and (b) it is reasonably necessary to disclose the information to the other agency or service for the provision of those services.

[8-6756] Division

Access to information collected under

98I An agency is not required to take any steps to make an associated respondent aware of any matter about any information that it is authorised to collect under this Division and it is not required to provide the associated respondent with any access to the information.

[8-6758]

Agency must comply with protocols

98J An agency that collects, uses or discloses information under this Division must comply with any protocols made by the Minister under section 98O.

[8-6760]

Relationship with other laws

98K (1) This Division has effect despite any provision of the privacy legislation. (2) Nothing in this Division restricts or prevents the disclosure of information under any other Act or law, including the privacy legislation or the Government Information (Public Access) Act 2009.

[8-6762]

Regulations

98L (1) The regulations may prescribe additional circumstances in which an agency may, despite the privacy legislation, collect, use or disclose personal information or health information about a primary person and any associated respondent. (2) The Minister is to consult with the Privacy Commissioner before recommending the making of a regulation under this section. Failure to comply with this subsection does not invalidate the regulation.

DIVISION 3 — DEALINGS WHERE SERIOUS THREAT [8-6764] threat

Dealings if serious domestic violence

98M (1) In this section: dealing with information means the collection, use or disclosure of the information. (2) An agency may, despite the privacy legislation, deal with information about a person without the consent of the person if the agency believes on reasonable grounds that: [page 1333] (a) the particular dealing is necessary to prevent or lessen a domestic violence threat to the person or any other person, and (b) the threat is a serious threat, and

(c) the person has refused to give consent or it is unreasonable or impractical to obtain the person’s consent.

[8-6766] Access to information collected in respect of serious threat 98N An agency that is authorised to collect information about a person under section 98M in respect of a threat is not required to take any steps to make the person aware of any matter about that information and it is not required to provide the person with any access to the information if the agency believes on reasonable grounds that the person is a cause of the threat.

DIVISION 4 — MISCELLANEOUS [8-6768]

Protocols and other orders of Minister

98O (1) The Minister may, by order, make protocols dealing with any matter relating to the collection, use or disclosure by an agency of personal information or health information about a primary person or an associated respondent, including the following: (a) procedures for seeking consent from a primary person, (b) procedures for sharing information between agencies and between agencies and non-government support services, (c) complaint handling procedures, (d) compliance audits. (2) The protocols may contain recommended privacy standards for nongovernment support services and may prohibit the disclosure of information under Division 2 to services that do not adopt those standards. (3) The Minister is to seek the advice of the Privacy Commissioner when making protocols. (4) The Minister may, by order, nominate particular support agencies or non-government support services to be local co-ordination points for the purposes of this Part. (5) An order under this section is to be published in the Gazette.

[8-6770]

Delegation

98P The Secretary of the Department of Justice may delegate the exercise of any function of the Secretary under this Part (other than this power of delegation) to: (a) any member of staff of that Department, or (b) any person, or any class of persons, authorised for the purposes of this section by the regulations. [s 98P am Act 88 of 2014 Sch 2 item 2.14, opn 8 Jan 2015]

[8-6772]

Review of Part

98Q (1) The Minister is to review this Part to determine whether the policy objectives of the Part remain valid and whether the terms of the Part remain appropriate for securing those objectives. [page 1334] (2) The review is to be undertaken as soon as possible after the period of 2 years from the commencement of this Part. (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 14 — MISCELLANEOUS [8-6830]

Costs

99 (1) In this section: professional costs means costs relating toprofessionalexpenses and disbursements (including witnesses’ expenses) in respect of proceedings before a court (but not court fees payable to a court). (2) Costs, other than professional costs, are not to be awarded in apprehended violence order proceedings. (3) A court may, subject to section 99A, award professional costs in apprehended violence order proceedings to the applicant for the order or

decision concerned or the defendant in accordance with this section. (4) If professional costs are awarded against a person under this section, the costs must be paid by the person to the registrar of the court, for payment to: (a) the defendant, in the case of costs awarded against an applicant, or (b) the applicant, in the case of costs awarded against a defendant. (5) A court may make an order as to professional costs at the end of apprehended violence order proceedings or following the adjournment of the proceedings. (6) An order as to professional costs may be made following the adjournment of the proceedings 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. (7) An order as to professional costs made following the adjournment of proceedings may be made whatever the result of the proceedings and may provide for the determination of the amount at the end of the proceedings. (8) An order as to professional costs may specify the amount of any professional costs payable or may specify that it is to be the amount as agreed or assessed. (9) The State is to indemnify a police officer, who acts in his or her capacity as a police officer in apprehended violence order proceedings, for any professional costs awarded against the police officer personally. (10) This section applies to apprehended violence order proceedings, including apprehended violence order proceedings conducted in the absence of one or more of the parties. [s 99 subst Act 33 of 2016 Sch 1[34], opn 3 Dec 2016] COMMENTARY ON SECTION 99

Costs ….

[8-6830.5]

[8-6830.5] Costs The restriction on awarding costs against a police officer under s 99 does not prevent the court from being able to make a costs order against a police officer under ss 213(3)(b) and 214(1) (d) of the Criminal Procedure Act 1986 in relation to procedural misconduct: Redman v Willcocks (2010) 79 NSWLR 226; [2010] NSWSC 1268; BC201008932. [page 1335]

The complexities of making orders for costs under this section because of its interaction with s 215 of the Criminal Procedure Act 1986 and s 353 of the Legal Profession Act 2004, which two sections are potentially conflicting, were noted in Garde v Dowd [2011] NSWCA 115; BC201103235. There it was held that an order for costs “as agreed or assessed” under the section was not invalid despite s 215(3) of the Criminal Procedure Act (which requires that the amount of costs be specified) because it was consistent with s 353(4) of the Legal Profession Act which permits an application to be made for an assessment of an unspecified amount of costs in respect of an order under the Crimes (Domestic and Personal Violence) Act.

____________________

[8-6830A] awarded

Limitations on professional costs being

99A (1) A court cannot, in apprehended violence order proceedings, award professional costs against an applicant who is a protected person in respect of the order unless satisfied that the application was frivolous or vexatious. (2) A court cannot, in apprehended domestic violence order proceedings, award professional costs against an applicant who is a police officer unless satisfied that: (a) the applicant made the application knowing it contained matter that was false or misleading in a material particular, or (b) the applicant has deviated from the reasonable case management of the proceedings so significantly as to be inexcusable. (3) The mere fact that a protected person does any one or more of the following in relation to apprehended domestic violence order proceedings does not give rise to a ground to award costs against an applicant who is a police officer and who made the application in good faith: (a) indicating that he or she will give unfavourable evidence, (b) indicating that he or she does not want an apprehended domestic violence order or that he or she has no fears, (c) giving unfavourable evidence or failing to attend to give evidence. (4) This section has effect despite section 99 or any other provision of this or any other Act or law. (5) In this section: apprehended domestic violence order proceedings means proceedings under this Act in relation to an apprehended domestic violence order

or an application for an apprehended domestic violence order. professional costs has the same meaning as in section 99. [s 99A insrt Act 33 of 2016 Sch 1[34], opn 3 Dec 2016]

[8-6835] Parts 2 and 3 of Crimes (Appeal and Review) Act 2001 100 Except as expressly provided by this Act, nothing in this Act affects the operation that Parts 2 and 3 of the Crimes (Appeal and Review) Act 2001 would have if this Act had not been enacted.

[8-6840]

Regulations

101 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. [page 1336]

[8-6845] Savings, transitional and other provisions 102 Schedule 1 has effect.

Amendment of other Acts and regulations 103 [s 103 rep Act 114 of 2008 s 4 and Sch 4, opn 10 Dec 2008]

[8-6855]

Review of Act

104 (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 3

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 3 years.

[page 1337]

[8-6870]

SCHEDULE 1 — SAVINGS, TRANSITIONAL AND OTHER PROVISIONS (Section 102)

PART 1 — GENERAL Regulations 1 (1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts: this Act Crimes (Domestic and Personal Violence) Amendment Act 2008 any other Act that amends this Act [subcl (1) am Act 119 of 2008 s 3 and Sch 1, opn 10 Dec 2008; Act 28 of 2014, Sch 1[2], opn 15 Sep 2014]

(2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date. (3) To the extent to which any such 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 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

ENACTMENT OF THIS ACT Preliminary 2 (1) In this Part: commencement means the day on which this Act commences. old Part 15A means Part 15A of the Crimes Act 1900 as in force at any time before its repeal by this Act. [def am Act 119 of 2008 s 3 and Sch 1, opn 10 Dec 2008]

(2) The provisions of this Part are subject to the regulations.

Existing apprehended violence orders and interim orders 3 (1) An apprehended domestic violence order made under the old Part 15A before the repeal of that Part by this Act is taken to have been made under this Act. [subcl (1) am Act 119 of 2008 s 3 and Sch 1, opn 10 Dec 2008]

(2) An apprehended personal violence order made under the old Part 15A before the repeal of that Part by this Act is taken to have been made under this Act. [subcl (2) am Act 119 of 2008 s 3 and Sch 1, opn 10 Dec 2008]

(3) An interim order made by a court or registrar under the old Part 15A before the repeal of that Part by this Act is taken to be an interim court order made under this Act. [subcl (3) am Act 119 of 2008 s 3 and Sch 1, opn 10 Dec 2008]

[page 1338] (4) A telephone interim order made under the old Part 15A before the repeal of that Part by this Act is taken to be a provisional order made under this Act. [subcl (4) am Act 119 of 2008 s 3 and Sch 1, opn 10 Dec 2008]

(5) An external protection order registered under Division 10 of the old Part 15A is taken to have been registered under Part 13 of this Act. (6) Any order taken by this clause to have been made under this Act has effect for the same period as it would have had under the provisions of the

old Part 15A but may be varied or revoked in accordance with this Act.

Pending applications 4 An application for an order under the old Part 15A that has not been determined before the repeal of that Part by this Act is taken to be an application for the same type of order under this Act.

References to repealed provisions 5 (1) A reference in any other Act or instrument to Part 15A of the Crimes Act 1900 includes a reference to this Act. (2) A reference to this Act in any other Act or instrument includes a reference to old Part 15A. (3) A reference in this Act or any other Act or instrument to section 13 of this Act includes a reference to sections 545AB and 562AB of the Crimes Act 1900 (as in force before their repeal). (4) A reference in this Act or any other Act or instrument to section 14 of this Act includes a reference to sections 562I (as in force before its substitution by the Crimes Amendment (Apprehended Violence) Act 2006) and 562ZG (as in force before its repeal) of the Crimes Act 1900. (5) A reference in this or any other Act or instrument to a final apprehended violence order made under this Act includes a reference to a final order within the meaning of old Part 15A. (6) A reference in this or any other Act or instrument to an interim apprehended violence order made under this Act includes a reference to an interim order made by a court under old Part 15A or a telephone interim order within the meaning of old Part 15A. (7) A reference in this or any other Act or instrument to an application for an order under this Act includes a reference to a complaint or application for an order under old Part 15A. (8) A reference in this or any other Act or instrument to apprehended violence order proceedings within the meaning of this Act includes a reference to proceedings under old Part 15A in relation to an apprehended violence order or an application or complaint for an apprehended violence order. [cl 5 subst Act 119 of 2008 s 3 and Sch 1, opn 10 Dec 2008]

Recording of domestic violence offences 6 Section 12 extends to: (a) enabling the making of an application to record a domestic violence offence occurring before the commencement of that section, and [page 1339] (b) authorising the recording of domestic violence offences occurring before the commencement of that section.

PART 3 — PROVISIONS CONSEQUENT ON ENACTMENT OF CRIMES (DOMESTIC AND PERSONAL VIOLENCE) AMENDMENT ACT 2008 [Pt 3 insrt Act 119 of 2008 s 3 and Sch 1, opn 10 Dec 2008]

Definition 7 In this Part, relevant amendment means: (a) an amendment made to Part 2 of this Schedule by the Crimes (Domestic and Personal Violence) Amendment Act 2008, or (b) an amendment made to an Act or regulation by Schedule 2 to the Crimes (Domestic and Personal Violence) Amendment Act 2008.

Effect of certain savings and transitional amendments 8 (1) Anything done or omitted to be done on or after the commencement of this Act, but before the commencement of a relevant amendment, that would have been valid if the amendment had been in force at the time that it was done or omitted is taken to have been validly done or omitted. (2) Anything done or omitted to be done before the commencement of this Act in purported compliance with the Firearms Act 1996 that would have been valid if, at the time that the thing was done or omitted, the definition of interim apprehended violence order in section 4(1) of that Act included a reference to a telephone interim order within the meaning of Part 15A of the

Crimes Act 1900 is taken to have been validly done or omitted. (3) Anything done or omitted to be done before the commencement of this Act in purported compliance with the Weapons Prohibition Act 1998 that would have been valid if, at the time that the thing was done or omitted, the definition of interim apprehended violence order in section 4(1) of that Act included a telephone interim order within the meaning of Part 15A of the Crimes Act 1900 is taken to have been validly done or omitted. (4) Subclauses (1)–(3) do not affect any decision of a court or tribunal made before the commencement of this clause or any proceedings before a court or tribunal commenced before the commencement of this clause.

Service of provisional order on defendant 9 Section 31(2) (as inserted by the Crimes (Domestic and Personal Violence) Amendment Act 2008) does not apply to a provisional order made before the commencement of the subsection.

PART 4 — PROVISIONS CONSEQUENT ON ENACTMENT OF CRIMES (DOMESTIC AND PERSONAL VIOLENCE) AMENDMENT (REVIEW) ACT 2016 [Pt 4 insrt Act 33 of 2016 Sch 1[35], opn 3 Dec 2016]

Definition 10 In this Part: amending Act means the Crimes (Domestic and Personal Violence) Amendment (Review) Act 2016. [page 1340]

Amendments do not extend to current applications 11 In this clause: application means an application for a final apprehended violence order

or an application within the meaning of section 72. (2) The amendment of a provision of the Act by the amending Act does not affect an application made but not finally dealt with before the amendment nor does it affect any proceedings arising from any such application even if those proceedings take place after the amendment and, in any such case, the provision as in force immediately before its amendment is taken to continue to apply. (3) Subclause (2) is subject to the other provisions of this Part.

Duration of provisional orders 12 Section 32, as substituted by the amending Act, extends to a provisional order that is in force immediately before that substitution.

Orders made on guilty plea or finding of guilt 13 Section 39, as substituted by the amending Act, applies in respect of a guilty plea or finding of guilt in proceedings even if the proceedings commenced before that substitution.

Evidence of serious offence admissible 14 The transcript of proceedings and any evidence admitted in the District Court or the Supreme Court in respect of a serious offence is admissible in the Local Court or Children’s Court for the purposes of determining an application referred to in section 40(4) even if the proceedings to which the transcript or evidence relates took place before the substitution of section 40(4) by the amending Act.

Orders made during care proceedings 15 Section 40A applies in respect of care proceedings (and any appeal arising from those proceedings) even if the care proceedings were commenced before the commencement of that section.

Questioning child directly 16 Section 41A applies in respect of proceedings even if the proceedings were commenced before the commencement of that section. However, this clause does not cause evidence given before that commencement to be

inadmissible.

Costs 17 (1) Section 99, as substituted by the amending Act, does not apply to proceedings that commenced before that substitution and that section, as in force immediately before its substitution, continues to apply to any such proceedings as if it had not been substituted. (2) Section 99A does not apply to proceedings that commenced before the commencement of that section. Editor’s note: Schedule 2 was repealed by s 4 and Sch 4 of Act 114 of 2008 as of 10 December 2008.

[page 1341]

Crimes Regulation 2015 TABLE OF PROVISIONS Regulation

1 2 3 4 5

Title

Name of Regulation …. Commencement …. Definitions …. Concealment of offences by certain persons …. Savings ….

Paragraph

[8-8000] [8-8005] [8-8010] [8-8015] [8-8020]

[page 1343]

Crimes Regulation 2015 TABLE OF AMENDMENTS Crimes Regulation 2015 SI 520, published on LW 28 August 2015, commenced 1 September 2015 (cl 2), as amended by: Amending Legislation

Notification

Date of Commencement

[page 1345]

[8-8000]

Name of Regulation

1 This Regulation is the Crimes Regulation 2015.

[8-8005]

Commencement

2 This Regulation commences on 1 September 2015 and is required to be published on the NSW legislation website. Note. This Regulation replaces the Crimes Regulation 2010 which is repealed on 1 September 2015 by section 10(2) of the Subordinate Legislation Act 1989.

[8-8010]

Definitions

3 (1) In this Regulation: the Act means the Crimes Act 1900. (2) Notes included in this Regulation do not form part of this Regulation.

[8-8015] persons

Concealment of offences by certain

4 For the purposes of section 316(5) of the Act, the following professions, callings or vocations are prescribed: (a) a legal practitioner, (b) a medical practitioner, (c) a psychologist, (d) a nurse, (e) a social worker, including: (i) a support worker for victims of crime, and (ii) a counsellor who treats persons for emotional or psychological conditions suffered by them, (f) a member of the clergy of any church or religious denomination,

(g) a researcher for professional or academic purposes, (h) if the serious indictable offence referred to in section 316(1) of the Act is an offence under section 60E of the Act, a school teacher, including a principal of a school, (i) an arbitrator, (j) a mediator.

[8-8020]

Savings

5 Any act, matter or thing that, immediately before the repeal of the Crimes Regulation 2010, had effect under that Regulation continues to have effect under this Regulation.

[page 1347]

Crimes (High Risk Offenders) Act 2006 TABLE OF PROVISIONS Section

1 2 3 4 5 5A

Title

PART 1 — PRELIMINARY Name of Act …. Commencement …. Objects of Act …. Definitions …. Definitions of “serious sex offence” and “offence of a sexual nature” …. Definition of “serious violence offence” ….

[29-950] [29-951] [29-952] [29-953] [29-954] [29954A]

PART 1A — SUPERVISION AND DETENTION OF HIGH RISK OFFENDERS

5B 5C 5D

DIVISION 1 — HIGH RISK SEX OFFENDERS High risk sex offender …. Extended supervision orders for high risk sex offenders …. Continuing detention orders for high risk sex offenders ….

[29954B] [29954C] [29954D]

5E 5F 5G

DIVISION 2 — HIGH RISK VIOLENT OFFENDERS High risk violent offender …. [29-954E] Extended supervision orders for high risk violent offenders …. [29-954F] Continuing detention orders for high risk violent [29offenders …. 954G] PART 2 — EXTENDED SUPERVISION ORDERS

DIVISION 1 — APPLICATION FOR EXTENDED SUPERVISION ORDER 5H State may apply for order …. [29954H] 5I Application for high risk sex offender extended supervision order …. [29-954I] 5J Application for high risk violent offender extended supervision order …. [29-954J] 6 Requirements with respect to application …. [29-955] 7 Pre-trial procedures …. [29-956] 8 Interim supervision orders [Repealed] …. [29-957] [page 1348] Section

9 10

10A 10B

Title

DIVISION 2 — DETERMINATION OF APPLICATION Determination of application for extended supervision order …. [29-958] Term of extended supervision order …. [29-959] DIVISION 3 — INTERIM SUPERVISION ORDERS Interim supervision order — high risk sex offender Interim supervision order — high risk violent offender ….

[29959A] [29959B]

10C

11 12 13

Term of interim supervision order …. DIVISION 4 — GENERAL Conditions that may be imposed on supervision order …. Breach of supervision order …. Supervision order may be varied or revoked ….

[29959C]

[29-960] [29-961] [29-962]

PART 3 — CONTINUING DETENTION ORDERS DIVISION 1 — APPLICATION FOR CONTINUING DETENTION ORDER 13A State may apply for order …. [29962A] 13B Application for high risk sex offender continuing [29detention order …. 962B] 13C Application for high risk violent offender continuing [29detention order …. 962C] 14 Requirements with respect to application …. [29-963] 14A Application for continuing detention order on breach of extended supervision order or interim supervision order [Repealed] …. [29-964] 15 Pre-trial procedures …. [29-965] 16 Interim detention orders [Repealed] …. [29-966]

17 17A 18

DIVISION 2 — DETERMINATION OF APPLICATION Determination of application for continuing detention order …. [29-967] Special provisions relating to parole [Repealed] …. [29-968] Term of continuing detention order …. [29-969]

18A

DIVISION 3 — INTERIM DETENTION ORDERS Interim detention order — high risk sex offender ….

18B

Interim detention order — high risk violent offender

[29969A] [29-

18C

18CA 18CB 18CC

…. Term of interim detention order ….

969B] [29969C]

DIVISION 3A — EMERGENCY DETENTION ORDERS Ex parte application for emergency detention order [29…. 969CA] Making of emergency detention orders …. [29969CB] Requirements with respect to application …. [29969CC] [page 1349]

Section

18CD

Title

Term of emergency detention order ….

19 20

DIVISION 4 — GENERAL Detention order causes any supervision order to cease to have effect …. Detention order may be varied or revoked …. Warrant of committal ….

21 21A

PART 4 — SUPREME COURT PROCEEDINGS Nature of proceedings …. Victim statements ….

22 23 24

Right of appeal …. Costs not to be awarded against offender …. Preservation of Supreme Court jurisdiction ….

18D

[29969CD]

[29969D] [29-970] [29-971]

[29-972] [29972A] [29-973] [29-974] [29-975]

PART 4A — HIGH RISK OFFENDERS ASSESSMENT COMMITTEE AND INTER-AGENCY CO-OPERATION 24AA Meaning of “relevant agency” …. [29-

24AB 24AC

Establishment and membership of Assessment Committee …. Functions of Assessment Committee ….

24AD

Sub-committees of Assessment Committee ….

24AE 24AF 24AG

Furnishing of reports and information …. Inter-agency co-operation …. Exchange of information and co-operative management of offenders ….

25A

PART 5 — MISCELLANEOUS Attorney General etc to act on behalf of State …. Attorney General may require provision of certain information …. Proceedings for offences ….

25B

Orders may be made at same time ….

25C

Violent offenders to be warned about application of Act …. Protection of certain persons from liability …. Hearings …. Bail Act 2013 does not apply …. Rules of court …. Regulations …. Amendments and savings and transitional provisions [Repealed] …. Review of extension of Act …. SCHEDULE 2 — SAVINGS, TRANSITIONAL AND OTHER PROVISIONS ….

24A 25

26 27 28 29 30 31 32

975A] [29975B] [29975C] [29975D] [29-975E] [29-975F] [29975G]

[29-976] [29-977] [29977A] [29977B] [29977C] [29-978] [29-979] [29-980] [29-981] [29-982] [29-983] [29-984] [29-985]

[page 1351]

Crimes (High Risk Offenders) Act 2006 TABLE OF AMENDMENTS Crimes (High Risk Offenders) Act 2006 No 7, assented to 3 April 2006, commenced on assent (s 2). This Act was formerly known as the Crimes (Serious Sex Offenders) Act 2006 — it was renamed by the Crimes (Serious Sex Offenders) Amendment Act 2013 No 4, effective 19 March 2013. This Act has been amended by: Amending Legislation

Date of Assent

Crimes (Administration of Sentences) Amendment Act 2007 No 85 Law Enforcement and Other Legislation Amendment Act 2007 No 97 Courts and Crimes Legislation Amendment Act 2008 No 53 Crimes Amendment (Sexual Offences) Act 2008 No 105

7 December 2007

Health Practitioner

15 June 2010

Date of Commencement 7 December 2007 (on assent)

13 December 2007

Sch 3: 21 December 2007

1 July 2008

s 3 and Sch 9: on assent

8 December 2008

Sch 2: 1 January 2009 (s 2(1) and Gaz 158 of 19 December 2008, p 12303) Sch 2: 1 July 2010 (s

Regulation Amendment Act 2010 No 34 Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010 No 48 Crimes (Sentencing Procedure) Amendment Act 2010 No 136 Crimes (Serious Sex Offenders) Amendment Act 2010 No 137 Crimes Legislation Amendment Act 2012 No 67 Crimes (Serious Sex Offenders) Amendment Act 2013 No 4 Crimes Legislation Amendment Act 2013 No 90 Bail (Consequential Amendments) Act 2014 No 5 Crimes (High Risk Offenders) Amendment Act 2014 No 58

2(2)) 28 June 2010

7 December 2010

Sch 5: 1 October 2010 (s 2 and SI 532 of 2010, LW 17 September 2010) Sch 1.3: on assent (s 2)

7 December 2010

7 December 2010 (s 2)

24 September 2012

24 September 2012 (s 2)

19 March 2013

19 March 2013 (s 2)

20 November 2013

20 November 2013 (s 2)

12 March 2014

20 May 2014 (s 2 and SI 235 of 2014, LW 24 April 2014) 7 January 2015 (s 2 and SI 831 of 2014, LW 19 December 2014)

23 October 2014

[page 1352] Amending Legislation

Date of Assent

Crimes (High Risk

7 June 2016

Date of Commencement 7 June 2016 (s 2)

Offenders) Amendment Act 2016 No 24

[page 1353] An Act to provide for the supervision and detention of high risk sex offenders and high risk violent offenders; and for other purposes. [Preamble am Act 4 of 2013 Sch 1[1], opn 19 Mar 2013]

PART 1 — PRELIMINARY [29-950]

Name of Act

1 This Act is the Crimes (High Risk Offenders) Act 2006.1. [s 1 am Act 4 of 2013 Sch 1[2], opn 19 Mar 2013] COMMENTARY ON SECTION 1

History of Act …. The Act in 2013 ….

[29-950.5] [29-950.10]

[29-950.5] History of Act The Crimes (Serious Sex Offenders) Act was enacted in 2006. In 2013, the Act was re-named the Crimes (High Risk Offenders) Act 2006, when the Crimes (Serious Sex Offenders) Amendment Act 2013 No 4 commenced on assent on 19 March 2013. As enacted originally, the Act applied to “serious sex offenders”. The scope and operation of the Act were considered in decisions such as Attorney-General (NSW) v Tillman [2007] NSWCA 119; BC200703909; Tillman v Attorney-General (NSW) (2007) 70 NSWLR 448; 178 A Crim R 133; [2007] NSWCA 327; BC200710210 and Cornwall v Attorney-General (NSW) [2007] NSWCA 347; BC200711457 and, after amendments were made to the Act in 2010, in New South Wales v Conway [2011] NSWSC 976; BC201106939 at [23]–[39] and New South Wales v Darrego [2011] NSWSC 1449; BC201109226 at [13]–[28]. [29-950.10] The Act in 2013 The Act as amended in 2013 now applies to “high risk sex offenders” and “high risk violent offenders”. In the second reading speech (Hansard, Legislative Assembly, 20 February 2013), the Attorney General, Mr Smith, stated that the NSW Sentencing Council report on high risk violent offenders had noted a gap in the NSW legislative framework, and that the bill closes that gap by extending the scheme to high risk violent offenders. According to the second reading speech, significant changes made to the Act include the following: (a) the definitions of “sex offender” and “violent offender” in s 4 include offences committed by the person as a child where a sentence of imprisonment was imposed; (b) the definition of “violent offender” relates to the commission of a “serious violence offence” as defined in s 5A; (c) an extended supervision order or continuing detention order can be made by the Supreme Court in respect of a “high risk violent offender” if the court is satisfied, to a high degree of

probability, that the person poses an unacceptable risk of committing a serious violence offence if not kept under supervision — the test replicates the existing test of risk applied by the Supreme Court for serious sex offenders and, in coming to a decision, the court must take into account the same listed factors (as are relevant) currently taken into account in assessing an application for a serious sex offender order; (d) the amendments remake the existing provisions with respect to the making and determination of applications and the variation and revocation of orders — the procedures that apply to applications and orders for serious sex offenders will remain essentially unchanged, and will also apply to high risk violent offenders; [page 1354] (e) the provisions clarify that the Supreme Court may revoke an extended supervision or continuing detention order, if satisfied that circumstances have changed so as to render the order unnecessary (ss 13(1B) and 19(1B)); (f) section 25C(1) requires a court that sentences a person for a serious violence offence to cause that person to be advised of the existence of the Crimes (High Risk Offenders) Act 2006 and of its application to the offence — the Attorney General stated that offenders “will be on notice from the earliest possible opportunity that an order may be sought against them at the end of their sentence if they pose a high risk of serious violent reoffending. Offenders will therefore know that there may be implications for refusing to participate in programs that address their offending behaviour … This is in keeping with the principal Act’s objective of encouraging high-risk offenders to undertake rehabilitation”; (g) the issuing of a s 25C warning “does not place any obligation on Corrective Services NSW to deal with the offender in a particular way. It will be a matter for Corrective Services to assess each offender and determine how best to address his or her rehabilitative needs. However, the opportunities given to and taken by an offender to participate in rehabilitation programs will be relevant to the Supreme Court in determining an application for an extended supervision or continuing detention order”; (h) a failure by a court to comply with s 25C(1) does not affect the validity of a sentence or prevent the making of an order against the person under the Act (s 25C(2)). The high risk violent offender scheme applies to offences committed, and sentences imposed, before its commencement on 19 March 2013: cl 11, Sch 2 at [29-985]. Provision is made for the saving of orders made before the commencement of the 2013 amendments: cl 12, Sch 2 at [29-985]. The proper construction of the term “unacceptable risk” in this statutory context was considered in Lynn v New South Wales [2016] NSWCA 57; BC201601901. 1.Editor’s

note: Schedule 1 of the Act has not been reproduced.

____________________

[29-951]

Commencement

2 This Act commences on the date of assent.

[29-952]

Objects of Act

3 (1) The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community. [subs (1) am Act 4 of 2013 Sch 1[3], opn 19 Mar 2013]

(2) Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation. [subs (2) am Act 4 of 2013 Sch 1[3], opn 19 Mar 2013] [s 3 subst Act 97 of 2007 s 3 and Sch 3[1], opn 21 Dec 2007]

[29-953]

Definitions

4 In this Act: adult means a person who is not a child. Assessment Committee means the High Risk Offenders Assessment Committee established by section 24AB. [def insrt Act 58 of 2014 Sch 1[1], opn 7 Jan 2015]

business day means any day that is not a Saturday, Sunday or public holiday. [page 1355] child means a person who is under the age of 16 years. continuing detention order means an order for the detention of an offender made under section 5D or 5G. [def subst Act 4 of 2013 Sch 1[4], opn 19 Mar 2013]

correctional centre has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999. Corrective Services NSW has the same meaning it has in the Crimes (Administration of Sentences) Act 1999. [def insrt Act 137 of 2010 Sch 1, opn 7 Dec 2010]

corrective services officer means a member of staff of the Corrective Services NSW. [def am Act 137 of 2010 Sch 1, opn 7 Dec 2010]

emergency detention order means an emergency order for the detention of an offender made under section 18CB. [def insrt Act 58 of 2014 Sch 1[1], opn 7 Jan 2015]

extended supervision order means an order for the supervision of an offender made under section 5C or 5F. [def subst Act 4 of 2013 Sch 1[4], opn 19 Mar 2013]

high risk offender means a high risk violent offender or a high risk sex offender. [def insrt Act 58 of 2014 Sch 1[1], opn 7 Jan 2015]

high risk sex offender — see section 5B. [def insrt Act 4 of 2013 Sch 1[4], opn 19 Mar 2013]

high risk sex offender continuing detention order means a continuing detention order made under section 5D. [def insrt Act 4 of 2013 Sch 1[4], opn 19 Mar 2013]

high risk sex offender extended supervision order means an extended supervision order made under section 5C. [def insrt Act 4 of 2013 Sch 1[4], opn 19 Mar 2013]

high risk violent offender — see section 5E. [def insrt Act 4 of 2013 Sch 1[4], opn 19 Mar 2013]

high risk violent offender continuing detention order means a continuing detention order made under section 5G. [def insrt Act 4 of 2013 Sch 1[4], opn 19 Mar 2013]

high risk violent offender extended supervision order means an extended supervision order made under section 5F. [def insrt Act 4 of 2013 Sch 1[4], opn 19 Mar 2013]

interim detention order means an interim order for the detention of an offender made under section 18A or 18B. [def subst Act 4 of 2013 Sch 1[4], opn 19 Mar 2013]

interim supervision order means an interim order for the supervision of an offender made under section 10A or 10B. [def subst Act 4 of 2013 Sch 1[4], opn 19 Mar 2013]

Justice Health and Forensic Mental Health Network means the statutory health corporation of that name specified in Schedule 2 to the Health Services Act 1997. [def insrt Act 58 of 2014 Sch 1[1], opn 7 Jan 2015]

[page 1356] offender means a sex offender or a violent offender. [def insrt Act 4 of 2013 Sch 1[4], opn 19 Mar 2013]

offence of a sexual nature — see section 5 (2). qualified psychiatrist means a registered medical practitioner who is a fellow of the Royal Australian and New Zealand College of Psychiatrists. registered psychologist [def rep Act 34 of 2010 Sch 2, opn 1 July 2010]

sentencing court, in relation to an offender serving a sentence of imprisonment, means: (a) the court by which the sentence was imposed, and (b) any court that heard an appeal in respect of that sentence. [def insrt Act 137 of 2010 Sch 1, opn 7 Dec 2010]

serious offence means: (a) in the context of a high risk sex offender — a serious sex offence, or (b) in the context of a high risk violent offender — a serious violence offence. [def insrt Act 58 of 2014 Sch 1[1], opn 7 Jan 2015]

serious sex offence — see section 5 (1). serious violence offence — see section 5A. [def insrt Act 4 of 2013 Sch 1[4], opn 19 Mar 2013]

sex offender means a person over the age of 18 years who has at any time been sentenced to imprisonment following his or her conviction of a serious sex offence. [def subst Act 4 of 2013 Sch 1[4], opn 19 Mar 2013]

supporting documentation, in relation to proceedings under Part 2 or 3, means the documentation referred to in section 6 (3) or 14 (3), as the case requires. violent offender means a person over the age of 18 years who has at any time been sentenced to imprisonment following his or her conviction for a serious violence offence. [def insrt Act 4 of 2013 Sch 1[4], opn 19 Mar 2013]

[29-954] Definitions of “serious sex offence” and “offence of a sexual nature” 5 (1) For the purposes of this Act, a serious sex offence means any of the following offences: (a) an offence under Division 10 of Part 3 of the Crimes Act 1900, where: (i) in the case of an offence against an adult or a child, the offence is punishable by imprisonment for 7 years or more, and (ii) in the case of an offence against an adult, the offence is committed in circumstances of aggravation (within the meaning of the provision under which the offence arises), (a1) an offence under section 61K or section 66EA of the Crimes Act 1900, (b) an offence under section 38, 86(1)(a1), 111, 112, 113 or 114(1)(a), (c) or (d) of the Crimes Act 1900 that has been committed with intent to commit an offence under Division 10 of Part 3 of the Crimes Act 1900, where the offence intended to be committed is punishable by imprisonment for 7 years or more, [page 1357] and includes: (c) an offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be a serious sex offence for the purposes of this Act, and (c1) an offence by a person that, at the time it was committed, was not a serious sex offence for the purposes of this Act but which was committed in circumstances that would make the offence a serious sex offence if it were committed at the time an application for an order against the person is made under this Act, and (d) any other offence that, at the time it was committed, was a serious

sex offence for the purposes of this Act. [subs (1) am Act 53 of 2008 s 3 and Sch 9, opn 1 July 2008; Act 137 of 2010 Sch 1, opn 7 Dec 2010; Act 67 of 2012 Sch 3.4[1], opn 24 Sep 2012]

(2) For the purposes of this Act, an offence of a sexual nature means any of the following offences: (a) an offence under Division 10 of Part 3 of the Crimes Act 1900, (b) an offence under section 38, 111, 112 or 113 of the Crimes Act 1900 that has been committed with intent to commit an offence referred to in paragraph (a), (c) an offence under Division 15 or 15A of Part 3 of the Crimes Act 1900, (d) an offence under section 11G of the Summary Offences Act 1988, (e) an offence under section 91J, 91K, 91L or 91M of the Crimes Act 1900 in relation to the observing or filming of a child, (f) an offence under section 17 or 18 of the Child Protection (Offenders Registration) Act 2000, (g) an offence under section 13 of the Child Protection (Offenders Prohibition Orders) Act 2004, (h) an offence under section 12 of this Act, and includes: (i) an offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be an offence of a sexual nature for the purposes of this Act, and (j) any other offence that, at the time it was committed, was an offence of a sexual nature for the purposes of this Act. [subs (2) am Act 105 of 2008 s 4 and Sch 2, opn 1 Jan 2009]

[29-954A]

Definition of “serious violence offence”

5A (1) For the purposes of this Act, a serious violence offence is a serious indictable offence that is constituted by a person: (a) engaging in conduct that causes the death of another person or grievous bodily harm to another person, with the intention of causing, or while being reckless as to causing, the death of another person or grievous or actual bodily harm to another person, or

attempting to commit, or conspiring with or inciting another person (b) to commit, an offence of a kind referred to in paragraph (a). (2) An offence that includes the elements referred to in subsection (1)(a) is a serious violence offence regardless of how those elements are expressed, and whether or not the offence includes other elements. (2A) A reference in subsection (1)(a) to: (a) conduct that causes the death of another person with the intention of causing [page 1358] the death of another person includes a reference to murder by an act done (by a person or an accomplice) in an attempt to commit, or during or immediately after the commission of, a serious crime, and (b) conduct that causes the death of another person while being reckless as to causing the death of another person includes a reference to manslaughter caused by an unlawful and dangerous act, and (c) conduct that causes grievous bodily harm to another person includes conduct that causes the wounding of another person, but only if the conduct was engaged in with the intention of causing the death of another person or grievous bodily harm to another person. [subs (2A) insrt Act 24 of 2016 Sch 1[1], opn 7 June 2016]

(3) A serious indictable offence is: (a) an offence committed in New South Wales that was a serious indictable offence (within the meaning of the Crimes Act 1900) at the time that it was committed, or (b) an offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be a serious indictable offence within the meaning of the Crimes Act 1900 at the time that it was committed, or (c) an offence that, at the time that it was committed, was not a serious indictable offence but which was committed in circumstances that would make the offence a serious indictable offence if it were

committed at the time an application for an order against the person is made under this Act. [s 5A insrt Act 4 of 2013 Sch 1[5], opn 19 Mar 2013]

PART 1A — SUPERVISION AND DETENTION OF HIGH RISK OFFENDERS [Pt 1A insrt Act 4 of 2013 Sch 1[6], opn 19 Mar 2013]

DIVISION 1 — HIGH RISK SEX OFFENDERS [29-954B]

High risk sex offender

5B (1) An offender can be made the subject of a high risk sex offender extended supervision order or a high risk sex offender continuing detention order as provided for by this Act if and only if the offender is a high risk sex offender. (2) An offender is a high risk sex offender if the offender is a sex offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision. (3) The Supreme Court is not required to determine that the risk of a person committing a serious sex offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious sex offence. COMMENTARY ON SECTION 5B

“Unacceptable risk” ….

[29-954B.5]

[29-954B.5] “Unacceptable risk” See annotations at [29-954E.5].

____________________ [page 1359]

[29-954C] Extended supervision orders for high risk sex offenders 5C (1) The Supreme Court may, on application under this Act, make an order for the supervision of an offender if the offender is a high risk sex offender. (2) An order made under this section is an extended supervision order. (3) An extended supervision order made under this section may also be referred to as a high risk sex offender extended supervision order.

[29-954D] Continuing detention orders for high risk sex offenders 5D (1) The Supreme Court may, on application under this Act, make an order for the detention of an offender if the offender is a high risk sex offender and the Supreme Court is satisfied that adequate supervision will not be provided by an extended supervision order. (2) An order made under this section is a continuing detention order. (3) A continuing detention order made under this section may also be referred to as a high risk sex offender continuing detention order.

DIVISION 2 — HIGH RISK VIOLENT OFFENDERS [29-954E]

High risk violent offender

5E (1) An offender can be made the subject of a high risk violent offender extended supervision order or a high risk violent offender continuing detention order as provided for by this Act if and only if the offender is a high risk violent offender. (2) An offender is a high risk violent offender if the offender is a violent offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious violence offence if he or she is not kept under supervision. (3) The Supreme Court is not required to determine that the risk of a person committing a serious violence offence is more likely than not in order

to determine that the person poses an unacceptable risk of committing a serious violence offence. COMMENTARY ON SECTION 5E

“Unacceptable risk” ….

[29-954E.5]

[29-954E.5] “Unacceptable risk” A finding that a person poses an unacceptable risk within the meaning of s 5E(2) is the gateway to the power to make an order under s 5F or s 5G and applies to an assessment of likelihood (unacceptable risk) in the absence of any supervision: New South Wales v Donovan [2015] NSWCA 280; BC201508975 at [24]; Lynn v New South Wales [2016] NSWCA 57; BC201601901 at [55]. The right of an offender to his or her personal liberty, at the expiry of the sentence of imprisonment being served, is not relevant to the determination of whether a person poses an “unacceptable risk” for the purposes of s 5E(2): Lynn v New South Wales at [44], [55]–[58], [148]. In determining whether and what order to make, the Court is required to take into account the factors specified in s 9(3), as well as any other matter it considers relevant — this may include the fact that the proposed order will place constraints on the individual’s liberty and privacy: Lynn v New South Wales at [48], [131], [149]. There are particular problems in relying upon interstate cases concerning the meaning of [page 1360] “unacceptable risk”, given differences between the interstate provisions and those of the NSW Act: Lynn v New South Wales at [62]–[70], [132]–[137]. Likewise, no assistance to the construction of s 5E(2) is to be obtained from consideration of the term “unacceptable risk” in the Bail Act 2013: Lynn v New South Wales at [71]–[74], [148].

____________________

[29-954F] Extended supervision orders for high risk violent offenders 5F (1) The Supreme Court may, on application under this Act, make an order for the supervision of an offender if the offender is a high risk violent offender. (2) An order made under this section is an extended supervision order. (3) An extended supervision order made under this section may also be referred to as a high risk violent offender extended supervision order.

[29-954G]

Continuing detention orders for high

risk violent offenders 5G (1) The Supreme Court may, on application under this Act, make an order for the detention of an offender if the offender is a high risk violent offender and the Supreme Court is satisfied that adequate supervision will not be provided by an extended supervision order. (2) An order made under this section is a continuing detention order. (3) A continuing detention order made under this section may also be referred to as a high risk violent offender continuing detention order.

PART 2 — EXTENDED SUPERVISION ORDERS DIVISION 1 — APPLICATION FOR EXTENDED SUPERVISION ORDER [Div 1 heading insrt Act 4 of 2013 Sch 1[7], opn 19 Mar 2013]

[29-954H]

State may apply for order

5H The State may apply to the Supreme Court for an extended supervision order against an offender. [s 5H insrt Act 4 of 2013 Sch 1[7], opn 19 Mar 2013; am Act 58 of 2014 Sch 1[2], opn 7 Jan 2015]

[29-954I] Application for high risk sex offender extended supervision order 5I (1) An application for a high risk sex offender extended supervision order may be made only in respect of a supervised sex offender. (2) A supervised sex offender is a sex offender who, when the application for the order is made, is in custody or under supervision (referred to in this Part as the offender’s current custody or supervision): (a) while serving a sentence of imprisonment: (i) for a serious sex offence, or (ii) for an offence of a sexual nature, or

[page 1361] (iii) for another offence which is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment referred to in subparagraph (i) or (ii), or (b) pursuant to an existing extended supervision order or continuing detention order. (3) A person is taken to be serving a sentence of imprisonment whether the sentence is being served by way of full-time detention, intensive correction in the community or home detention and whether the offender is in custody or on release on parole. [s 5I insrt Act 4 of 2013 Sch 1[7], opn 19 Mar 2013]

[29-954J] Application for high risk violent offender extended supervision order 5J (1) An application for a high risk violent offender extended supervision order may be made only in respect of a supervised violent offender. (2) A supervised violent offender is a violent offender who, when the application for the order is made, is in custody or under supervision (referred to in this Part as the offender’s current custody or supervision): (a) while serving a sentence of imprisonment: (i) for a serious violence offence, or (ii) for an offence under section 12, or (iii) for another offence which is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment referred to in subparagraph (i) or (ii), or (b) pursuant to an existing extended supervision order or continuing detention order. (3) A person is taken to be serving a sentence of imprisonment whether the sentence is being served by way of full-time detention, intensive correction in the community or home detention and whether the offender is in custody or on release on parole.

[s 5J insrt Act 4 of 2013 Sch 1[7], opn 19 Mar 2013]

[29-955] Requirements with respect to application 6 (1) An application for an extended supervision order must indicate whether the extended supervision order sought is a high risk sex offender extended supervision order or a high risk violent offender extended supervision order. [subs (1) subst Act 4 of 2013 Sch 1[8], opn 19 Mar 2013]

(2) An application may not be made until the last 6 months of the offender’s current custody or supervision. (3) An application must be supported by documentation: (a) that addresses each of the matters referred to in section 9 (3), and (b) that includes a report (prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner) that assesses the likelihood of the offender committing: (i) a further serious sex offence (in the case of an application for a high risk sex offender extended supervision order), or (ii) a further serious violence offence (in the case of an application for a high risk violent offender extended supervision order). [subs (3) am Act 4 of 2013 Sch 1[9], opn 19 Mar 2013]

[page 1362] (4) An application may indicate the kinds of conditions that are considered to be appropriate for inclusion under section 11 in the event that an extended supervision order is made. [subs (4) am Act 97 of 2007 s 3 and Sch 3[3], opn 21 Dec 2007]

[29-956]

Pre-trial procedures

7 (1) An application for an extended supervision order must be served on the offender concerned within 2 business days after the application is filed in the Supreme Court or within such further time as the Supreme Court may

allow. [subs (1) am Act 4 of 2013 Sch 1[10], opn 19 Mar 2013]

(2) The State must disclose to the offender such documents, reports and other information as are relevant to the proceedings on the application (whether or not intended to be tendered in evidence): (a) in the case of anything that is available when the application is made, as soon as practicable after the application is made, and (b) in the case of anything that subsequently becomes available, as soon as practicable after it becomes available. Note. Section 21A(6) provides that the State must not disclose a victim statement to the offender unless the person who made the statement consents to the disclosure. [subs (2) am Act 97 of 2007 s 3 and Sch 3[4], opn 21 Dec 2007; Act 137 of 2010 Sch 1, opn 7 Dec 2010; Act 58 of 2014 Sch 1[2], opn 7 Jan 2015]

(3) A preliminary hearing into the application is to be conducted by the Supreme Court within 28 days after the application is filed in the Supreme Court or within such further time as the Supreme Court may allow. (4) If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must make orders: (a) appointing: (i) 2 qualified psychiatrists, or (ii) 2 registered psychologists, or (iii) 1 qualified psychiatrist and 1 registered psychologist, or (iv) 2 qualified psychiatrists and 2 registered psychologists, to conduct separate psychiatric or psychological examinations (as the case requires) of the offender and to furnish reports to the Supreme Court on the results of those examinations, and (b) directing the offender to attend those examinations. [subs (4) am Act 53 of 2008 s 3 and Sch 9, opn 1 July 2008]

(5) If, following the preliminary hearing, it is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must dismiss the application. COMMENTARY ON SECTION 7

Preliminary Hearing ….

[29-956.5]

[29-956.5] Preliminary Hearing The task of the court, at the preliminary hearing stage, is not to weigh up the documentation or to predict the ultimate result or to consider what evidence the defendant might call at the final hearing: Attorney General (NSW) v Tillman [2007] NSWCA 119; BC200703909 at [98]. The question is to be considered without taking into account any evidence [page 1363] called by the defendant at the preliminary hearing — that evidence may go to relevant discretionary matters, but would not cast light upon what is alleged in the supporting documentation: Attorney General (NSW) v Tillman at [98]. It has been said that the test to be applied at this stage is similar to the prima facie case test applied by magistrates in committal proceedings: Attorney-General (NSW) v Hayter [2007] NSWSC 983; BC200708445 at [6]; New South Wales v Manners [2008] NSWSC 1242; BC200810289 at [8]. Even if the defendant does not oppose the orders sought at the preliminary hearing, it remains a matter for the court, given the terms of s 7(4)–(5), to determine whether the statutory criteria have been satisfied: Attorney-General (NSW) v Hayter at [4]; New South Wales v Manners at [4]. The purposes of the preliminary hearing procedure include the filtering out of unmeritorious applications at an early stage and, where an order for examination is made, giving the court the benefit of the expert opinions of two independent witnesses before a decision is made at a final hearing: New South Wales v Manners at [9].

____________________

[29-957]

Interim supervision orders

8 [s 8 rep Act 4 of 2013 Sch 1[11], opn 19 Mar 2013]

DIVISION 2 — DETERMINATION OF APPLICATION [Div 2 heading insrt Act 4 of 2013 Sch 1[12], opn 19 Mar 2013]

[29-958] Determination of application for extended supervision order 9 (1) The Supreme Court may determine an application for an extended supervision order: (a) by making an extended supervision order, or

(b) by dismissing the application. (2) [subs (2) rep Act 4 of 2013 Sch 1[13], opn 19 Mar 2013] (2A) [subs (2A) rep Act 4 of 2013 Sch 1[13], opn 19 Mar 2013] (3) In determining whether or not to make an extended supervision order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant: (a) the safety of the community, (b) the reports received from the persons appointed under section 7(4) to conduct examinations of the offender, and the level of the offender’s participation in any such examination, (c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further relevant offence, the willingness of the offender to participate in any such assessment, and the level of the offender’s participation in any such assessment, (d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further relevant offence, (d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community, [page 1364] (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender’s participation in any such programs, (f) the level of the offender’s compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order, (g) the level of the offender’s compliance with any obligations to which he or she is or has been subject under the Child Protection

(Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004, (h) the offender’s criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history, (h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (i) any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature (in the case of an application for a high risk sex offender extended supervision order) or serious violence offences (in the case of an application for a high risk violent offender extended supervision order). [subs (3) am Act 53 of 2008 s 3 and Sch 9, opn 1 July 2008; Act 137 of 2010 Sch 1, opn 7 Dec 2010; Act 4 of 2013 Sch 1[14], [15], opn 19 Mar 2013]

(4) In this section, a relevant offence means: (a) in the case of an application for a high risk sex offender extended supervision order — a serious sex offence, or (b) in the case of an application for a high risk violent offender extended supervision order — a serious violence offence. [subs (4) insrt Act 4 of 2013 Sch 1[16], opn 19 Mar 2013]

[29-959]

Term of extended supervision order

10 (1) An extended supervision order commences when it is made, or when the offender’s current custody or supervision expires, whichever is the later. [subs (1) subst Act 137 of 2010 Sch 1, opn 7 Dec 2010]

(1A) An extended supervision order expires at the end of: (a) such period (not exceeding 5 years from the day on which it commences) as is specified in the order, or (b) if the order is suspended for any period, the period specified in paragraph (a) plus each period during which the order is suspended. [subs (1A) insrt Act 137 of 2010 Sch 1, opn 7 Dec 2010]

(2) An offender’s obligations under an extended supervision order are

suspended while the offender is in lawful custody, whether under this or any other Act or law. [subs (2) am Act 137 of 2010 Sch 1, opn 7 Dec 2010]

(3) Nothing in this section prevents the Supreme Court from making a second or subsequent extended supervision order against the same offender. [page 1365]

DIVISION 3 — INTERIM SUPERVISION ORDERS [Div 3 insrt Act 4 of 2013 Sch 1[17], opn 19 Mar 2013]

[29-959A] Interim supervision order — high risk sex offender 10A The Supreme Court may make an order for the interim supervision of an offender if, in proceedings for an extended supervision order, it appears to the Court: (a) that the offender’s current custody or supervision will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk sex offender extended supervision order.

[29-959B] Interim supervision order — high risk violent offender 10B The Supreme Court may make an order for the interim supervision of an offender if, in proceedings for an extended supervision order, it appears to the Court: (a) that the offender’s current custody or supervision will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk violent offender extended

supervision order.

[29-959C]

Term of interim supervision order

10C (1) An interim supervision order commences on the day fixed in the order for its commencement (or if no such day is fixed, as soon as it is made) and expires at the end of: (a) such period (not exceeding 28 days from the day on which it commences) as is specified in the order, or (b) if the order is suspended for any period — the period specified in paragraph (a) plus each period during which the order is suspended. [subs (1) subst Act 58 of 2014 Sch 1[3], opn 7 Jan 2015]

(1A) An interim supervision order, and the offender’s obligations under that interim supervision order, are suspended during any period the offender is in lawful custody, whether under this or any other Act or law. [subs (1A) insrt Act 58 of 2014 Sch 1[3], opn 7 Jan 2015]

(2) An interim supervision order may be renewed from time to time, but not so as to provide for the supervision of the offender under such an order for periods totalling more than 3 months. (3) Any day or part of a day on which an interim supervision order is suspended does not count towards the 3-month limit referred to in subsection (2). [subs (3) insrt Act 58 of 2014 Sch 1[4], opn 7 Jan 2015]

DIVISION 4 — GENERAL [Div 4 heading insrt Act 4 of 2013 Sch 1[18], opn 19 Mar 2013]

[29-960] Conditions that may be imposed on supervision order 11 An extended supervision order or interim supervision order may direct an offender to comply with such conditions as the Supreme Court considers appropriate, including (but not limited to) directions requiring the offender: [page 1366]

(a) to permit any corrective services officer to visit the offender at the offender’s residential address at any time and, for that purpose, to enter the premises at that address, or (a1) to permit any corrective services officer to access any computer or related equipment that is at the offender’s residential address or in the possession of the offender, or (b) to make periodic reports to a corrective services officer, or (c) to notify a corrective services officer of any change in his or her address, or (d) to participate in treatment and rehabilitation programs, or (e) to wear electronic monitoring equipment, or (ea) to reside at an address approved by the Commissioner of Corrective Services, or (f) not to reside in or resort to specified locations or classes of locations, or (g) not to associate or make contact with specified persons or classes of persons, or (h) not to engage in specified conduct or classes of conduct, or (i) not to engage in specified employment or classes of employment, or (j) not to change his or her name, or (k) to report to police and provide information to police about the conditions imposed on the extended supervision order or interim supervision order and the offender’s residential address, or (l) to comply with any obligation that could be imposed on the offender under Part 3 of the Child Protection (Offenders Registration) Act 2000 if the offender were a registrable person within the meaning of that Act and were not the subject of an interim supervision order or an extended supervision order, or (m) to comply with specified requirements in connection with the offender’s access to and use of the internet, or (n) to provide any corrective services officer with requested information in relation to any employment or any financial affairs of the offender. [s 11 am Act 85 of 2007 s 5 and Sch 3, opn 7 Dec 2007; Act 97 of 2007 s 3 and Sch 3[5], opn 21 Dec

2007; Act 137 of 2010 Sch 1, opn 7 Dec 2010; Act 58 of 2014 Sch 1[5], opn 7 Jan 2015] COMMENTARY ON SECTION 11

Conditions on supervision order ….

[29-960.5]

[29-960.5] Conditions on supervision order Section 11 does not require that the proposed condition must have a specific demonstrated link to past offending. Rather, s 11 requires that the court be satisfied, having regard to the scope, purpose and objects of the Act, that it is appropriate to impose a particular condition so as to address the risk of future reoffending of the kind that formed the basis of the extended supervision order. It may be appropriate to impose particular conditions under s 11 notwithstanding that the past offences did not involve conduct of the type constrained by such conditions: Wilde v NSW [2015] NSWCA 28; BC201500929 at [53]–[54].

____________________

[29-961]

Breach of supervision order

12 A person who fails to comply with the requirements of an extended supervision order or interim supervision order is guilty of an offence. Maximum penalty: 500 penalty units or imprisonment for 5 years, or both. [s 12 am Act 58 of 2014 Sch 1[6], opn 7 Jan 2015]

[page 1367]

[29-962] revoked

Supervision order may be varied or

13 (1) The Supreme Court may at any time vary or revoke an extended supervision order or interim supervision order on the application of the State or the offender. [subs (1) am Act 97 of 2007 s 3 and Sch 3[6], opn 21 Dec 2007; Act 58 of 2014 Sch 1[2], opn 7 Jan 2015]

(1A) The period of an order must not be varied so that the period is greater than that otherwise permitted under this Part. [subs (1A) insrt Act 137 of 2010 Sch 1, opn 7 Dec 2010]

(1B) Without limiting the grounds for revoking an extended supervision order or interim supervision order, the Supreme Court may revoke an extended supervision order or interim supervision order if satisfied that

circumstances have changed sufficiently to render the order unnecessary. [subs (1B) insrt Act 4 of 2013 Sch 1[19], opn 19 Mar 2013]

(2) For the purpose of ascertaining whether to make such an application in relation to an extended supervision order, the Commissioner of Corrective Services must provide the Attorney General with a report on the offender at intervals of not more than 12 months. (3) The report must indicate whether the Commissioner considers the continuation of the extended supervision order to be necessary and appropriate. [subs (3) insrt Act 4 of 2013 Sch 1[20], opn 19 Mar 2013]

PART 3 — CONTINUING DETENTION ORDERS DIVISION 1 — APPLICATION FOR CONTINUING DETENTION ORDER [Div 1 heading insrt Act 4 of 2013 Sch 1[21], opn 19 Mar 2013]

[29-962A]

State may apply for order

13A The State may apply to the Supreme Court for a continuing detention order against an offender. [s 13A insrt Act 4 of 2013 Sch 1[21], opn 19 Mar 2013; am Act 58 of 2014 Sch 1[2], opn 7 Jan 2015]

[29-962B] Application for high risk sex offender continuing detention order 13B (1) An application for a high risk sex offender continuing detention order may be made only in respect of: (a) a detained sex offender, or (b) a supervised sex offender. (2) A detained sex offender is a sex offender who, when the application for a continuing detention order is made, is in custody in a correctional centre (referred to in this Part as the offender’s current custody): (a) while serving a sentence of imprisonment by way of full-time

detention: (i) for a serious sex offence, or (ii) for an offence of a sexual nature, or (iii) for another offence which is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment referred to in subparagraph (i) or (ii), or [page 1368] (b) pursuant to an existing continuing detention order or emergency detention order. [subs (2) am Act 58 of 2014 Sch 1[7], opn 7 Jan 2015]

(3) An application in respect of a detained sex offender may not be made more than 6 months before: (a) the end of the offender’s total sentence, or (b) the expiry of the existing continuing detention order or emergency detention order, as appropriate. [subs (3) am Act 58 of 2014 Sch 1[7], opn 7 Jan 2015]

(4) A supervised sex offender is a sex offender the subject of an extended supervision order or an interim supervision order who: (a) has been found guilty of an offence under section 12 in respect of that order, or (b) because of altered circumstances, cannot be provided with adequate supervision under an extended supervision order or interim supervision order. (5) An application in respect of a supervised sex offender who is serving a sentence of imprisonment by way of full-time detention may not be made more than 6 months before the end of the person’s total sentence. (6) In determining an application in respect of a person referred to in subsection (4)(b), the Supreme Court must not make a continuing detention order unless it is satisfied that circumstances have altered since the making of the extended supervision order or interim supervision order and those altered circumstances mean that adequate supervision of the offender cannot be

provided under an extended supervision order or an interim supervision order. [s 13B insrt Act 4 of 2013 Sch 1[21], opn 19 Mar 2013]

[29-962C] Application for high risk violent offender continuing detention order 13C (1) An application for a high risk violent offender continuing detention order may be made only in respect of: (a) a detained violent offender, or (b) a supervised violent offender. (2) A detained violent offender is a violent offender who, when the application for a continuing detention order is made, is in custody in a correctional centre (referred to in this Part as the offender’s current custody): (a) while serving a sentence of imprisonment by way of full-time detention: (i) for a serious violence offence, or (ii) for an offence under section 12, or (iii) for another offence which is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment referred to in subparagraph (i) or (ii), or (b) pursuant to an existing continuing detention order or emergency detention order. [subs (2) am Act 58 of 2014 Sch 1[8], opn 7 Jan 2015]

(3) An application in respect of a detained violent offender may not be made more than 6 months before: (a) the end of the offender’s total sentence, or [page 1369] (b) the expiry of the existing continuing detention order or emergency detention order, as appropriate. [subs (3) am Act 58 of 2014 Sch 1[8], opn 7 Jan 2015]

(4) A supervised violent offender is a violent offender the subject of an extended supervision order or an interim supervision order who: (a) has been found guilty of an offence under section 12 in respect of that order, or (b) because of altered circumstances, cannot be provided with adequate supervision under an extended supervision order or interim supervision order. (5) An application in respect of a supervised violent offender who is serving a sentence of imprisonment by way of full-time detention may not be made more than 6 months before the end of the person’s total sentence. (6) The Supreme Court must not make a continuing detention order on an application referred to in subsection (4)(b) unless it is satisfied that circumstances have altered since the making of the extended supervision order or interim supervision order and those altered circumstances mean that adequate supervision of the offender cannot be provided under an extended supervision order or an interim supervision order. [s 13C insrt Act 4 of 2013 Sch 1[21], opn 19 Mar 2013]

[29-963] Requirements with respect to application 14 (1) An application for a continuing detention order must indicate whether the continuing detention order sought is a high risk sex offender continuing detention order or a high risk violent offender continuing detention order. [subs (1) subst Act 4 of 2013 Sch 1[22], opn 19 Mar 2013]

(2) [subs (2) rep Act 4 of 2013 Sch 1[22], opn 19 Mar 2013] (2A) [subs (2A) rep Act 4 of 2013 Sch 1[22], opn 19 Mar 2013] (2B) [subs (2B) rep Act 4 of 2013 Sch 1[22], opn 19 Mar 2013] (3) An application must be supported by documentation: (a) that addresses each of the matters referred to in section 17(4) (to the extent relevant to the application), and (b) that includes a report (prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner) that assesses the likelihood of the offender committing:

a further serious sex offence (in the case of an application for a high risk sex offender continuing detention order), or (ii) a further serious violence offence (in the case of an application for a high risk violent offender continuing detention order). (i)

[subs (3) subst Act 4 of 2013 Sch 1[23], opn 19 Mar 2013]

(4) An application may indicate the kinds of conditions that are considered to be appropriate for inclusion under section 11 in the event that an extended supervision order is made. [subs (4) am Act 97 of 2007 s 3 and Sch 3[8], opn 21 Dec 2007]

[29-964] Application for continuing detention order on breach of extended supervision order or interim supervision order 14A [s 14A rep Act 137 of 2010 Sch 1, opn 7 Dec 2010] [page 1370]

[29-965]

Pre-trial procedures

15 (1) An application under this Part for a continuing detention order must be served on the offender concerned within 2 business days after the application is filed in the Supreme Court or within such further time as the Supreme Court may allow. [subs (1) am Act 97 of 2007 s 3 and Sch 3[10], opn 21 Dec 2007; Act 4 of 2013 Sch 1[24], opn 19 Mar 2013]

(2) The State must disclose to the offender such documents, reports and other information as are relevant to the proceedings on the application (whether or not intended to be tendered in evidence): (a) in the case of anything that is available when the application is made, as soon as practicable after the application is made, and (b) in the case of anything that subsequently becomes available, as soon as practicable after it becomes available. [subs (2) am Act 97 of 2007 s 3 and Sch 3[11], opn 21 Dec 2007; Act 58 of 2014 Sch 1[2], opn 7 Jan 2015]

(3) A preliminary hearing into the application is to be conducted by the Supreme Court within 28 days after the application is filed in the Supreme Court or within such further time as the Supreme Court may allow. (4) If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or extended supervision order, the Supreme Court must make orders: (a) appointing: (i) 2 qualified psychiatrists, or (ii) 2 registered psychologists, or (iii) 1 qualified psychiatrist and 1 registered psychologist, or (iv) 2 qualified psychiatrists and 2 registered psychologists, to conduct separate psychiatric or psychological examinations (as the case requires) of the offender and to furnish reports to the Supreme Court on the results of those examinations, and (b) directing the offender to attend those examinations. [subs (4) am Act 53 of 2008 s 3 and Sch 9, opn 1 July 2008]

(5) If, following the preliminary hearing, it is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or extended supervision order, the Supreme Court must dismiss the application. COMMENTARY ON SECTION 15

Preliminary Hearing ….

[29-965.5]

[29-965.5] Preliminary Hearing The task of the court, at the preliminary hearing stage, is not to weigh up the documentation or to predict the ultimate result or to consider what evidence the defendant might call at the final hearing: Attorney General (NSW) v Tillman [2007] NSWCA 119; BC200703909 at [98]. The question is to be considered without taking into account any evidence called by the defendant at the preliminary hearing — that evidence may go to relevant discretionary matters, but would not cast light upon what is alleged in the supporting documentation: Attorney General (NSW) v Tillman at [98]. It has been said that the test to be applied at this stage is similar to the prima facie case test applied by magistrates in committal proceedings: Attorney-General (NSW) v Hayter [2007] NSWSC 983; BC200708445 at [6]; New South Wales v Manners [2008] NSWSC 1242; BC200810289 at [8]. [page 1371] Even if the defendant does not oppose the orders sought at the preliminary hearing, it remains a matter for the court, given the terms of s 7(4)–(5), to determine whether the statutory criteria have been

satisfied: Attorney-General (NSW) v Hayter at [4]; New South Wales v Manners at [4]. The purposes of the preliminary hearing procedure include the filtering out of unmeritorious applications at an early stage and, where an order for examination is made, giving the court the benefit of the expert opinions of two independent witnesses before a decision is made at a final hearing: New South Wales v Manners at [9].

____________________

[29-966]

Interim detention orders

16 [s 16 rep Act 4 of 2013 Sch 1[25], opn 19 Mar 2013]

DIVISION 2 — DETERMINATION OF APPLICATION [Div 2 heading insrt Act 4 of 2013 Sch 1[26], opn 19 Mar 2013]

[29-967] Determination of application for continuing detention order 17 (1) The Supreme Court may determine an application under this Part for a continuing detention order: (a) by making an extended supervision order, or (b) by making a continuing detention order, or (c) by dismissing the application. [subs (1) am Act 97 of 2007 s 3 and Sch 3[14], opn 21 Dec 2007]

(2) [subs (2) rep Act 4 of 2013 Sch 1[27], opn 19 Mar 2013] (3) [subs (3) rep Act 4 of 2013 Sch 1[27], opn 19 Mar 2013] (3A) [subs (3A) rep Act 4 of 2013 Sch 1[27], opn 19 Mar 2013] (4) In determining whether or not to make a continuing detention order or extended supervision order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant: (a) the safety of the community, (b) the reports received from the persons appointed under section 15(4) to conduct examinations of the offender, and the level of the offender’s participation in any such examination,

the results of any other assessment prepared by a qualified (c) psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further relevant offence, the willingness of the offender to participate in any such assessment, and the level of the offender’s participation in any such assessment, (d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further relevant offence, (d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community, (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender’s participation in any such programs, [page 1372] (f)

the level of the offender’s compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an interim supervision order or an extended supervision order, (g) the level of the offender’s compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004, (h) the offender’s criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history, (h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (i) any other information that is available as to the likelihood that the

offender will in future commit offences of a sexual nature (in the case of an application for a high risk sex offender continuing detention order) or serious violence offences (in the case of an application for a high risk violent offender continuing detention order), (j) in the case of an application made on the basis that the offender has been found guilty of an offence of failing to comply with the requirements of an extended supervision order or interim supervision order — the nature of the failure to comply with those requirements and the likelihood of further failures to comply, (k) in the case of an application made on the basis that circumstances have altered since the making of an extended supervision order or interim supervision order against the offender — whether circumstances have altered since the making of the order and whether those altered circumstances mean that adequate supervision cannot be provided under an extended supervision order or an interim supervision order. [subs (4) am Act 53 of 2008 s 3 and Sch 9, opn 1 July 2008; Act 137 of 2010 Sch 1, opn 7 Dec 2010; Act 137 of 2010 Sch 1, opn 7 Dec 2010; Act 4 of 2013 Sch 1[28]–[30], opn 19 Mar 2013]

(4A) [subs (4A) rep Act 4 of 2013 Sch 1[31], opn 19 Mar 2013] (4B) [subs (4B) rep Act 4 of 2013 Sch 1[31], opn 19 Mar 2013] (5) In this section, a relevant offence means: (a) in the case of an application for a high risk sex offender continuing detention order — a serious sex offence, or (b) in the case of an application for a high risk violent offender continuing detention order — a serious violence offence. [subs (5) subst Act 4 of 2013 Sch 1[31], opn 19 Mar 2013]

[29-968]

Special provisions relating to parole

17A [s 17A rep Act 137 of 2010 Sch 1, opn 7 Dec 2010]

[29-969]

Term of continuing detention order

18 (1) A continuing detention order: (a) commences when it is made, or when the offender’s current

custody expires, whichever is the later, and (b) expires at the end of such period (not exceeding 5 years from the day on which it commences) as is specified in the order. [page 1373] (1A) Despite subsection (1), a continuing detention order made on application under this Part in respect of a supervised sex offender or supervised violent offender who is not in custody commences when it is made and expires at the end of such period (not exceeding 5 years from the day on which it commences) as is specified in the order. [subs (1A) insrt Act 97 of 2007 s 3 and Sch 3[17], opn 21 Dec 2007; am Act 137 of 2010 Sch 1, opn 7 Dec 2010; Act 4 of 2013 Sch 1[32], opn 19 Mar 2013]

(2) An offender’s custody under a continuing detention order is suspended while the offender is in lawful custody under any other Act or law, but that suspension does not affect the expiry date of the order. (3) Nothing in this section prevents the Supreme Court from making a second or subsequent continuing detention order against the same offender.

DIVISION 3 — INTERIM DETENTION ORDERS [Div 3 insrt Act 4 of 2013 Sch 1[33], opn 19 Mar 2013]

[29-969A] Interim detention order — high risk sex offender 18A The Supreme Court may make an order for the interim detention of an offender if, in proceedings on an application for a continuing detention order, it appears to the Court: (a) that the offender’s current custody (if any) will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk sex offender extended supervision order or a high risk sex offender continuing detention order.

[29-969B] Interim detention order — high risk violent offender 18B The Supreme Court may make an order for the interim detention of an offender if, in proceedings on an application for a continuing detention order, it appears to the Court: (a) that the offender’s current custody (if any) will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk violent offender extended supervision order or a high risk violent offender continuing detention order.

[29-969C]

Term of interim detention order

18C (1) An interim detention order commences on the day fixed in the order for its commencement (or, if no such day is fixed, as soon as it is made) and expires at the end of such period (not exceeding 28 days from the day on which it commences) as is specified in the order. (2) An interim detention order may be renewed from time to time, but not so as to provide for the detention of the offender under such an order for periods totalling more than 3 months.

DIVISION 3A — EMERGENCY DETENTION ORDERS [Div 3A insrt Act 58 of 2014 Sch 1[9], opn 7 Jan 2015]

[29-969CA] Ex parte application for emergency detention order 18CA (1) The State may apply to the Supreme Court for an order (an emergency detention order) for the detention of an offender who is the subject of an extended

[page 1374] supervision order or an interim supervision order and who, because of altered circumstances, cannot be provided with adequate supervision under the extended supervision order or interim supervision order. (2) The Supreme Court may hear an application for an emergency detention order in the absence of the offender concerned.

[29-969CB] orders

Making of emergency detention

18CB (1) The Supreme Court may make an emergency detention order if it appears to the Court that the matters alleged in support of the application for the order would, if proved, establish that: (a) because of altered circumstances, the offender cannot be provided with adequate supervision under the extended supervision order or interim supervision order to which the offender is currently subject, and (b) without adequate supervision, the offender poses an imminent risk of committing a serious offence. (2) The Supreme Court is not to make more than one emergency detention order in respect of the same occasion of altered circumstances.

[29-969CC] application

Requirements with respect to

18CC An application for an emergency detention order must be supported by an affidavit of the Commissioner of Corrective Services NSW, or of a corrective services officer of or above the rank of Assistant Commissioner, that addresses each of the following matters: (a) the altered circumstances that give rise to the application, (b) the reasons why the offender cannot be provided with adequate supervision under the extended supervision order or interim supervision order because of the altered circumstances, (c) the reasons why there are no other practicable and available means

of ensuring that the offender does not pose an imminent risk of committing a serious offence (other than detention).

[29-969CD]

Term of emergency detention order

18CD (1) An emergency detention order can be made to have effect for no longer than is reasonably necessary to enable action to be taken under this Act to ensure that the offender is provided with adequate supervision under an extended supervision order or continuing detention order. (2) An emergency detention order commences as soon as it is made and expires at the end of such period (not exceeding 120 hours from when it commences) as is specified in the order or at such earlier time as may be specified by the Supreme Court when making the order.

DIVISION 4 — GENERAL [Div 4 heading insrt Act 4 of 2013 Sch 1[33], opn 19 Mar 2013]

[29-969D] Detention order causes any supervision order to cease to have effect 18D (1) On the making of a continuing detention order in respect of a person, any interim supervision order or extended supervision order in respect of the person expires and ceases to have effect. [page 1375] (2) On the making of an interim detention order in respect of a person, any interim supervision order or extended supervision order in respect of the person is suspended and ceases to have effect until such time as the interim detention order expires. (3) On the making of an emergency detention order in respect of a person, any interim supervision order or extended supervision order in respect of the person is suspended and ceases to have effect until such time as the emergency detention order expires.

[subs (3) insrt Act 58 of 2014 Sch 1[10], opn 7 Jan 2015] [s 18A insrt Act 137 of 2010 Sch 1, opn 7 Dec 2010; renum as s 18D Act 4 of 2013 Sch 1[34], opn 19 Mar 2013]

[29-970] revoked

Detention order may be varied or

19 (1) The Supreme Court may at any time vary or revoke a continuing detention order, interim detention order or emergency detention order on the application of the State or the offender. [subs (1) am Act 97 of 2007 s 3 and Sch 3[18], opn 21 Dec 2007; Act 58 of 2014 Sch 1[2], [11], opn 7 Jan 2015]

(1A) The period of an order must not be varied so that the period is greater than that otherwise permitted under this Part. [subs (1A) insrt Act 137 of 2010 Sch 1, opn 7 Dec 2010]

(1B) Without limiting the grounds for revoking a continuing detention order, interim detention order or emergency detention order, the Supreme Court may revoke a continuing detention order or interim detention order if satisfied that circumstances have changed sufficiently to render the order unnecessary. [subs (1B) insrt Act 4 of 2013 Sch 1[35], opn 19 Mar 2013; Act 58 of 2014 Sch 1[11], opn 7 Jan 2015]

(2) For the purpose of ascertaining whether to make an application under this section in relation to a continuing detention order, the Commissioner of Corrective Services must provide the Attorney General with a report on the offender at intervals of not more than 12 months. [subs (2) am Act 137 of 2010 Sch 1, opn 7 Dec 2010]

(3) The report must indicate whether the Commissioner considers the continuation of the continuing detention order to be necessary and appropriate. [subs (3) insrt Act 4 of 2013 Sch 1[36], opn 19 Mar 2013]

[29-971]

Warrant of committal

20 (1) As soon as practicable after making a continuing detention order, interim detention order or emergency detention order against an offender, the Supreme Court must issue a warrant for the committal of the offender to a correctional centre for the period specified in the order. [subs (1) am Act 58 of 2014 Sch 1[12], opn 7 Jan 2015]

(2) A warrant under this section is sufficient authority: (a) for any police officer to convey, or arrest and convey, the offender to the correctional centre identified in the warrant, and (b) for the governor of the correctional centre to keep the offender in his or her custody in accordance with the terms of the warrant. [subs (2) am Act 97 of 2007 s 3 and Sch 3[19], opn 21 Dec 2007]

[page 1376]

PART 4 — SUPREME COURT PROCEEDINGS [29-972]

Nature of proceedings

21 Proceedings under this Act (including proceedings on an appeal under this Act) are civil proceedings and, to the extent to which this Act does not provide for their conduct, are to be conducted in accordance with the law (including the rules of evidence) relating to civil proceedings.

[29-972A]

Victim statements

21A (1) As soon as practicable after an application for an order under this Act is made in respect of an offender, the person acting on behalf of the State for the purposes of the application must take such steps as are reasonable to ensure that written notice of the application is given to: (a) each victim of the offender, or (b) if any such victim is under 18 years of age or lacks legal capacity — that victim’s parent or guardian. [subs (1) Act 58 of 2014 Sch 1[2], opn 7 Jan 2015]

(2) The notice must inform the person that the person may provide, before the date stated in the notice, a written statement setting out: (a) the person’s views about the order and any conditions to which the order may be subject, and (b) any other matters prescribed by the regulations. (3) It is sufficient for the notice to be sent to the person at the person’s last

known address as recorded in the Victims Register. (4) Any statement received before the final hearing date in respect of the application may be placed before the Supreme Court for consideration in respect of the application. (5) A person who makes a statement may amend or withdraw the statement. (6) The Supreme Court and the State must not disclose a statement to the offender to which the application relates unless the person who made the statement consents to the disclosure. [subs (6) am Act 58 of 2014 Sch 1[2], opn 7 Jan 2015]

(7) If consent is not provided the Supreme Court may: (a) reduce the weight given to the statement, and (b) take reasonable steps to disclose to the offender, or the offender’s legal representative, the substance of the statement but only if the Court is satisfied that those steps could not reasonably be expected to lead to the identification of the victim or the person who made the statement. (8) In this section: victim of an offender means a victim who is recorded on the Victims Register in respect of the offender and who is a victim of an offence committed by the offender for which the offender is currently serving, or most recently served, a sentence of imprisonment. Victims Register has the same meaning it has in the Crimes (Administration of Sentences) Act 1999. [s 21A insrt Act 137 of 2010 Sch 1, opn 7 Dec 2010]

[page 1377]

[29-973]

Right of appeal

22 (1) An appeal to the Court of Appeal lies from any determination of the Supreme Court to make, or to refuse to make, an extended supervision order, continuing detention order or emergency detention order. [subs (1) am Act 58 of 2014 Sch 1[13], opn 7 Jan 2015]

(2) An appeal may be on a question of law, a question of fact or a question of mixed law and fact. (3) An appeal against the decision of the Supreme Court may be made, as of right, within 28 days after the date on which the decision was made or, by leave, within such further time as the Court of Appeal may allow. (4) The making of an appeal does not stay the operation of an extended supervision order, continuing detention order or emergency detention order. [subs (1) am Act 58 of 2014 Sch 1[13], opn 7 Jan 2015]

(4A) If the Court of Appeal remits a matter to the Supreme Court for decision after an appeal is made, the extended supervision order, continuing detention order or emergency detention order the subject of the appeal continues in force, subject to any order made by the Court of Appeal. [subs (4A) insrt Act 97 of 2007 s 3 and Sch 3[20], opn 21 Dec 2007; am Act 58 of 2014 Sch 1[13], opn 7 Jan 2015]

(4B) Without limiting any other jurisdiction it may have, if the Court of Appeal remits a matter to the Supreme Court for decision after an appeal is made, the Court of Appeal may make an interim order revoking or varying an extended supervision order, continuing detention order or emergency detention order the subject of the appeal. [subs (4B) insrt Act 97 of 2007 s 3 and Sch 3[20], opn 21 Dec 2007; am Act 58 of 2014 Sch 1[14], opn 7 Jan 2015]

(5) This section does not limit any right of appeal that may exist apart from this Act. COMMENTARY ON SECTION 22

Nature of appeal ….

[29-973.5]

[29-973.5] Nature of appeal The nature of the appeal to the Court of Appeal under s 22 was considered in New South Wales v Donovan [2015] NSWCA 280; BC201508975 at [16] and Lynn v New South Wales [2016] NSWCA 57; BC201601901 at [81]–[97].

____________________

[29-974]

Costs not to be awarded against offender

23 An order for costs may not be made against an offender in relation to any proceedings under this Act (including proceedings on an appeal under this Act).

[29-975] Preservation of Supreme Court jurisdiction 24 Nothing in this Act limits the jurisdiction of the Supreme Court apart from this Act.

PART 4A — HIGH RISK OFFENDERS ASSESSMENT COMMITTEE AND INTERAGENCY CO-OPERATION [Pt 4A insrt Act 58 of 2014 Sch 1[15], opn 7 Jan 2015]

[29-975A]

Meaning of “relevant agency”

24AA For the purposes of this Part, each of the following is a relevant agency: [page 1378] (a) (b) (c) (d) (e) (f) (g)

Corrective Services NSW, the Department of Family and Community Services, the Justice Health and Forensic Mental Health Network, the Department of Justice, the NSW Police Force, the Ministry of Health, any other public sector agency that is prescribed by the regulations as a relevant agency.

[29-975B] Establishment and membership of Assessment Committee 24AB (1) There is to be a High Risk Offenders Assessment Committee. (2) The Assessment Committee is to consist of the following members:

the Commissioner of Corrective Services NSW, or a nominee of the Commissioner, who is to be the Chairperson of the Committee, (b) another representative of Corrective Services NSW, nominated by the Commissioner of Corrective Services NSW, (c) a representative of the Department of Family and Community Services, nominated by the Secretary of that Department, (d) a representative of Housing NSW, nominated by the Secretary of the Department of Family and Community Services, (e) a representative of Ageing, Disability and Home Care, nominated by the Secretary of the Department of Family and Community Services, (f) a representative of the Justice Health and Forensic Mental Health Network, nominated by the Chief Executive of that Network, (g) a representative of the Department of Justice, nominated by the Secretary of that Department, (h) a representative of the NSW Police Force, nominated by the Commissioner of Police, (i) a representative of the Ministry of Health, nominated by the Secretary of that Ministry, (j) such other members as the Minister may appoint to represent public sector agencies or other organisations that the Minister considers to have a relevant expertise or involvement in the provision of services in connection with the management of risk and supervision in the community of high risk offenders, (k) such other members as the Minister may appoint on the basis of relevant expertise in connection with the management of risk and supervision in the community of high risk offenders. (3) The regulations may make provision for or with respect to the constitution and procedure of the Assessment Committee. (a)

[29-975C]

Functions of Assessment Committee

24AC The Assessment Committee has the following functions: (a) to review the risk assessments of sex offenders and violent offenders and make recommendations to the Commissioner of

Corrective Services NSW for the taking of action by the State under this Act in respect of those offenders, (b) to facilitate co-operation between and the co-ordination of relevant agencies in [page 1379]

(c)

(d) (e) (f)

(g)

(h)

the exercise of their functions in connection with risk assessment and management of high risk offenders (the high risk offender functions of relevant agencies), to monitor and provide expert oversight of the exercise of the high risk offender functions of relevant agencies for the purpose of identifying opportunities for improved outcomes in individual cases and opportunities for systemic improvement and removal of interagency barriers to the effective exercise of high risk offender functions, to facilitate information sharing between relevant agencies in connection with the exercise of their high risk offender functions, to develop best practice standards and guidelines for the exercise by relevant agencies of their high risk offender functions, to identify gaps in resourcing, service provision and training that may impact on the proper and effective exercise of high risk offender functions, to conduct research into the effectiveness of this Act in ensuring the safety and protection of the community and to disseminate the results of that research, such other functions in connection with the operation of this Act as the Minister may from time to time direct.

[29-975D] Sub-committees of Assessment Committee 24AD (1) The Assessment Committee may form sub-committees to exercise specific functions of the Assessment Committee.

(2) The procedure of a sub-committee is to be as determined by the Assessment Committee.

[29-975E]

Furnishing of reports and information

24AE (1) The Assessment Committee must keep the Minister informed of the general conduct of its operations in the exercise of its functions. (2) If the Minister requests the Assessment Committee to provide to the Minister information concerning a specific matter relating to the Committee’s operations in the exercise of its functions, the Assessment Committee must comply with the request.

[29-975F]

Inter-agency co-operation

24AF (1) Each relevant agency is under a duty to co-operate with other relevant agencies in the exercise of the functions of the agency that are concerned with risk assessment and management of high risk offenders (high risk offender functions). (2) The duty to co-operate includes the following duties: (a) the duty to disclose information to another relevant agency that is likely to be of assistance to the other agency in the exercise of its high risk offender functions, (b) the duty to provide reasonable assistance and support to another relevant agency in connection with the exercise by the other relevant agency of its high risk offender functions, (c) the duty to co-operate in connection with the exercise of the functions of the Assessment Committee. (3) Co-operation between relevant agencies in the exercise of high risk offender functions can include (but is not limited to) any of the following: [page 1380] (a) the development of multi-agency management plans for high risk offenders, (b) providing assistance and support to high risk offenders through

joint programs.

[29-975G] Exchange of information and cooperative management of offenders 24AG (1) Two or more relevant agencies may enter into arrangements (cooperative protocols) with each other to enable information held by each of the agencies concerned to be shared or exchanged between those agencies and the co-operative management of offenders. (2) The information to which a co-operative protocol may relate is limited to the following: (a) information concerning offenders, (b) any other information that may be prescribed by the regulations. (3) Under a co-operative protocol, each relevant agency the subject of the arrangement is authorised: (a) to request and receive information held by any other relevant agency the subject of the arrangement, and (b) to disclose information to any of those relevant agencies, without the consent of any person concerned, but only to the extent that the information is reasonably necessary to assist in the exercise of functions under this Act or the functions of the relevant agencies concerned. (4) This section does not limit the operation of any Act under which the relevant agency is authorised or required to disclose information to another person or body.

PART 5 — MISCELLANEOUS [29-976] State

Attorney General etc to act on behalf of

24A The Attorney General (or any other person prescribed by the regulations) is entitled to act on behalf of the State for the purposes of applications made under this Act. [s 24A insrt Act 97 of 2007 s 3 and Sch 3[21], opn 21 Dec 2007; am Act 58 of 2014 Sch 1[2], opn 7 Jan 2015]

[29-977] Attorney General may require provision of certain information 25 (1) The Attorney General may, by order in writing served on any person, require that person to provide to the Attorney General any document, report or other information in that person’s possession, or under that person’s control, that relates to the behaviour, or physical or mental condition, of any offender. [subs (1) am Act 4 of 2013 Sch 1[37], opn 19 Mar 2013]

(2) A person who fails to comply with the requirements of an order under this section is guilty of an offence. Maximum penalty: 100 penalty units or imprisonment for 2 years, or both. (2A) The Attorney General may request a court to provide to the Attorney General any document, report or other information held by the court that relates to the behaviour, or physical or mental condition, of any offender. [subs (2A) am Act 90 of 2013 Sch 1 item 1.4[1], opn 20 Nov 2013]

[page 1381] (3) Despite any Act or law to the contrary, any document or report of a kind referred to in subsection (1) or (2A), or any copy of any such document or report, is admissible in proceedings under this Act. [subs (3) am Act 90 of 2013 Sch 1 item 1.4[2], opn 20 Nov 2013]

[29-977A]

Proceedings for offences

25A (1) Proceedings for an offence under this Act (except section 12) or the regulations are to be dealt with summarily before the Local Court. (2) Chapter 5 of the Criminal Procedure Act 1986 (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 section 12. [s 25A subst Act 58 of 2014 Sch 1[16], opn 7 Jan 2015]

[29-977B]

Orders may be made at same time

25B (1) Nothing in this Act prevents the Supreme Court from making an extended supervision order in respect of a person at the same time that it makes a continuing detention order in respect of the person. (2) In such a case, despite section 10 (1), the extended supervision order commences on the expiry of the continuing detention order and expires: (a) at the end of such period (not exceeding 5 years from the day on which it commences) as is specified in the order, or (b) if the order is suspended for any period, the period specified in paragraph (a) plus each period during which the order is suspended. [s 25B insrt Act 137 of 2010 Sch 1, opn 7 Dec 2010]

[29-977C] Violent offenders to be warned about application of Act 25C (1) A court that sentences a person for a serious violence offence is to cause the person to be advised of the existence of this Act and of its application to the offence. (2) A failure by a court to comply with this section does not affect the validity of a sentence or prevent the making of an order against a person under this Act. [s 25C insrt Act 4 of 2013 Sch 1[38], opn 19 Mar 2013]

[29-978] liability

Protection of certain persons from

26 No action lies against any person (including the State) for or in respect of any act or omission done or omitted by the person if it was done or omitted in good faith for the purposes of, or in connection with the administration or execution of, this Act.

[29-979]

Hearings

27 This Act does not affect the right of any party to proceedings under this Act: (a) to appear, either personally or by the party’s legal representative, or (b) to call witnesses and give evidence, or

(c) to cross-examine witnesses, or (d) to make submissions to the Court on any matter connected with the proceedings. [page 1382]

[29-980]

Bail Act 2013 does not apply

28 The Bail Act 2013 does not apply to or in respect of a person who is a defendant in proceedings under this Act, other than proceedings for an offence under section 12 or 25 (2). [s 28 am Act 5 of 2014 Sch 2 item 2.12, opn 20 May 2014]

[29-981]

Rules of court

29 (1) Rules of court may be made under the Supreme Court Act 1970 for regulating the practice and procedure of the Supreme Court in respect of proceedings under this Act. (2) This section does not limit the rule-making powers conferred by the Supreme Court Act 1970.

[29-982]

Regulations

30 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.

[29-983] Amendments and savings and transitional provisions 31 [s 31 rep Act 137 of 2010 Sch 1, opn 7 Dec 2010]

[29-984]

Review of extension of Act

32 (1) The Minister is to review the amendments made to this Act by the

Crimes (Serious Sex Offenders) Amendment Act 2013 to determine whether the policy objectives of those amendments remain valid and whether the terms of this Act, as amended, remain appropriate for securing those objectives. (2) For the purposes of the review, the Minister may require the Commissioner of Corrective Services to provide information as to how the Commissioner’s functions in relation to the administration of this Act are being, and have been, exercised. (3) The review is to be undertaken as soon as possible after the period of 3 years from the date of assent to the Crimes (Serious Sex Offenders) Amendment Act 2013. (4) 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 3 years. [s 32 subst Act 4 of 2013 Sch 1[39], opn 19 Mar 2013]

[page 1383]

[29-985]

SCHEDULE 2 — SAVINGS, TRANSITIONAL AND OTHER PROVISIONS

[Sch 2 am Act 137 of 2010 Sch 1, opn 7 Dec 2010]

PART 1 — GENERAL Regulations 1 (1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act or any Act that amends this Act. [subcl (1) subst Act 67 of 2012 Sch 3.4[2], opn 24 Sep 2012]

(2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date. (3) To the extent to which any such 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 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 ENACTMENT OF THIS ACT Application of Act to past offences 2 This Act applies to and in respect of offences committed before the date of assent to this Act in the same way as it applies to and in respect of offences

committed after that date. Application of Act to persons serving existing sentences of imprisonment 3 This Act applies to and in respect of a person who is serving a sentence of imprisonment that commenced before the date of assent to this Act in the same way as it applies to and in respect of a person who is serving a sentence of imprisonment that commences after that date.

PART 3 — PROVISIONS CONSEQUENT ON ENACTMENT OF LAW ENFORCEMENT AND OTHER LEGISLATION AMENDMENT ACT 2007 Definition 4 In this Part: 2007 amending Act means the Law Enforcement and Other Legislation Amendment Act 2007. Application of 2007 amending Act 5 (1) The amendments made to this Act by the 2007 amending Act apply to and in respect of offences committed before the commencement of this clause in the same way as they apply to and in respect of offences committed on or after that commencement. [page 1384] (2) This Act, as amended by the 2007 amending Act, applies to and in respect of a person who is subject to an order under this Act, that commenced before the commencement of this clause in the same way as it applies to and in respect of a person who is made subject to an order under this Act after that commencement.

PART 4 — PROVISION CONSEQUENT ON ENACTMENT OF COURTS AND CRIMES

LEGISLATION AMENDMENT ACT 2008 [Pt 4 insrt Act 53 of 2008 s 3 and Sch 9, opn 1 July 2008]

Application of amendment 6 Section 5(1)(a1), as inserted by Schedule 9[1] to the Courts and Crimes Legislation Amendment Act 2008, applies to and in respect of offences committed before the commencement of that amendment in the same way as it applies to and in respect of offences committed after that commencement.

PART 5 — PROVISIONS CONSEQUENT ON ENACTMENT OF CRIMES (SERIOUS SEX OFFENDERS) AMENDMENT ACT 2010 [Pt 5 insrt Act 137 of 2010 Sch 1, opn 7 Dec 2010]

Definition 7 In this Part: 2010 amending Act means the Crimes (Serious Sex Offenders) Amendment Act 2010. Application of 2010 amending Act 8 (1) The amendments made to this Act by the 2010 amending Act apply to and in respect of offences committed before the commencement of this clause in the same way as they apply to and in respect of offences committed on or after that commencement. (2) This Act, as amended by the 2010 amending Act, applies to and in respect of a person who is subject to an order under this Act that commenced before the commencement of this clause in the same way as it applies to and in respect of a person who is made subject to an order under this Act after that commencement.

PART 6 — PROVISION CONSEQUENT ON ENACTMENT OF CRIMES LEGISLATION

AMENDMENT ACT 2012 [Pt 6 insrt Act 67 of 2012 Sch 3.4[3], opn 24 Sep 2012]

Application of amendment 9 The amendment made to section 5 by the Crimes Legislation Amendment Act 2012 applies only to and in respect of an offence committed on or after the commencement of Schedule 3.4 to that Act.

PART 7 — PROVISIONS CONSEQUENT ON ENACTMENT OF CRIMES (SERIOUS SEX OFFENDERS) AMENDMENT ACT 2013 [Pt 7 insrt Act 4 of 2013 Sch 1[40], opn 19 Mar 2013]

Definition 10 In this Part: amending Act means the Crimes (Serious Sex Offenders) Amendment Act 2013. [page 1385] Extension of scheme 11 The amendments made to this Act by the amending Act extend: (a) to offences committed before the date of assent to that Act, and (b) to persons serving a sentence of imprisonment that commenced before the date of assent to that Act. Saving of existing orders 12 (1) An extended supervision order made under section 9 or 17 before the amendments made by the amending Act, and in force immediately before the commencement of those amendments, is taken to be an extended supervision order under section 5C. (2) An interim supervision order made under section 8 before the repeal of

that section by the amending Act, and in force immediately before that repeal, is taken to be an interim supervision order under section 10A. (3) A continuing detention order made under section 17 before the amendments made by the amending Act, and in force immediately before the commencement of those amendments, is taken to be a continuing detention order under section 5D. (4) An interim detention order made under section 16 before the repeal of that section by the amending Act, and in force immediately before that repeal, is taken to be an interim detention order under section 18A.

PART 8 — PROVISIONS CONSEQUENT ON ENACTMENT OF CRIMES (HIGH RISK OFFENDERS) AMENDMENT ACT 2014 [Pt 8 insrt Act 58 of 2014 Sch 1[17], opn 7 Jan 2015]

Definition 13 In this Part: amending Act means the Crimes (High Risk Offenders) Amendment Act 2014. Extension of scheme 14 The amendments made to this Act by the amending Act extend: (a) to offences committed before the date of commencement of the amendments, and (b) to persons serving a sentence of imprisonment that commenced before the date of commencement of the amendments, and (c) to persons subject to an extended supervision order, interim supervision order, continuing detention order or interim detention order immediately before the date of commencement of the amendments.

PART 9 — PROVISION CONSEQUENT ON ENACTMENT OF CRIMES (HIGH RISK

OFFENDERS) AMENDMENT ACT 2016 [Pt 9 insrt Act 24 of 2016 Sch 1[2], opn 7 June 2016]

Application of amendment to definition of “serious violence offence” 15 Section 5A(2A), as inserted by the Crimes (High Risk Offenders) Amendment Act 2016, extends: (a) to offences committed before the date of commencement of that Act, and [page 1386] (b) to persons serving a sentence of imprisonment that commenced before the date of commencement of that Act.

[page 1387]

Bail Act 2013 TABLE OF PROVISIONS Section

Title

1 2 3 4 5 6

PART 1 — PRELIMINARY Name of Act …. Commencement …. Purpose of Act …. Definitions …. Proceedings for an offence …. Conclusion of proceedings ….

7 8 9 10 11 12 13 14

PART 2 — GENERAL PROVISIONS What is bail …. Bail decisions that can be made …. Decision to release without bail …. Decision to dispense with bail …. Decision to grant or refuse bail …. Duration of bail …. Requirement to appear …. Limitation on entitlement to be at liberty ….

Paragraph

[9-s 1] [9-s 2] [9-s 3] [9-s 4] [9-s 5] [9-s 6]

[9-s 7] [9-s 8] [9-s 9] [9-s 10] [9-s 11] [9-s 12] [9-s 13] [9-s 14]

PART 3 — MAKING AND VARIATION OF BAIL DECISIONS

15

DIVISION 1 — PRELIMINARY Bail decision to be made in accordance with this Part

16

16A 16B

…. Flow charts — key features of bail decisions ….

[9-s 15] [9-s 16]

DIVISION 1A — SHOW CAUSE REQUIREMENT Accused person to show cause for certain serious offences …. [9-s 16A] Offences to which the show cause requirement applies …. [9-s 16B]

DIVISION 2 — UNACCEPTABLE RISK TEST — ALL OFFENCES 17 Assessment of bail concerns …. [9-s 17] 18 Matters to be considered as part of assessment …. [9-s 18] 19 Refusal of bail — unacceptable risk …. [9-s 19] 20 Accused person to be released if no unacceptable risks …. [9-s 20] 20A Imposition of bail conditions …. [9-s 20A] [page 1388] Section

Title

Paragraph

DIVISION 2A — SPECIAL RULES FOR CERTAIN OFFENCES 21 Special rule for offences for which there is a right to release …. [9-s 21] 22 General limitation on court’s power to release …. [9-s 22]

23 24 25 26 27 28

DIVISION 3 — BAIL CONDITIONS When bail conditions can be imposed …. General rules for bail conditions [Repealed] …. Bail conditions can impose conduct requirements …. Bail conditions can require security to be provided …. Bail conditions can require character acknowledgments …. Bail condition can impose accommodation

[9-s 23] [9-s 24] [9-s 25] [9-s 26] [9-s 27]

29 30

31 32

requirements …. Limitation on power to impose pre-release requirements …. Bail conditions may include enforcement conditions …. DIVISION 4 — PROCEDURAL REQUIREMENTS Rules of evidence do not apply …. Matters to be decided on balance of probabilities ….

[9-s 28] [9-s 29] [9-s 30]

[9-s 31] [9-s 32]

PART 4 — PROCEDURES AFTER DECISION IS MADE OR VARIED

33 34 35 36 37 38 39

40 41 42

DIVISION 1 — FUNCTIONS OF BAIL AUTHORITIES Bail acknowledgment to be given on grant of bail …. Notice of refusal of bail to be given …. Notice of variation of bail conditions to be given …. Information to be provided about bail security agreements …. Information to be provided about character acknowledgments …. Reasons for decision to be recorded …. Power to issue warrant of commitment …. DIVISION 2 — GENERAL Stay of release decision if detention sought …. Limitation on length of adjournments if bail refused …. Notice required if accused person granted bail remains in custody ….

[9-s 33] [9-s 34] [9-s 35] [9-s 36] [9-s 37] [9-s 38] [9-s 39]

[9-s 40] [9-s 41] [9-s 42]

PART 5 — POWERS TO MAKE AND VARY BAIL DECISIONS

43 44

DIVISION 1 — POWERS OF POLICE OFFICERS Police power to make bail decision at a police station …. Bail decision to be made after person is charged ….

[9-s 43] [9-s 44]

45 46

Procedures after bail decision is made …. Duties if bail refused or accused person not released ….

[9-s 45] [9-s 46] [page 1389]

Section

47

Title

Review of police decision by senior police officer ….

Paragraph

[9-s 47]

DIVISION 2 — POWERS OF COURTS AND AUTHORISED JUSTICES — BAIL APPLICATIONS 48 Powers of courts and authorised justices to hear bail applications …. [9-s 48] 49 Accused person may make release application …. [9-s 49] 50 Prosecutor may make detention application …. [9-s 50] 51 Interested person may make variation application …. [9-s 51] 52 Powers of authorised justices to vary court decisions …. [9-s 52]

53 54 55 56

DIVISION 3 — ADDITIONAL POWERS OF COURTS AND AUTHORISED JUSTICES Discretion to make or vary bail decision without bail application …. [9-s 53] Discretion to refuse bail if no application is made …. [9-s 54] Variation of bail decision if accused person remains in custody …. [9-s 55] Discretion to defer decision if accused person is intoxicated …. [9-s 56]

DIVISION 4 — RESTRICTIONS ON POWERS OF COURTS AND AUTHORISED JUSTICES 57 Bail conditions not to be varied contrary to court direction …. [9-s 57]

58

Authorised justice must not vary or impose enforcement conditions ….

[9-s 58]

PART 6 — POWERS TO HEAR BAIL APPLICATIONS

59 60

61 62 63

64 65 66 67

DIVISION 1 — INTERPRETATION Meaning of pending proceedings …. Part applies to bail applications only …. DIVISION 2 — GENERAL POWERS Power to hear bail application if proceedings are pending in court …. Power to hear bail application if sentence or conviction appealed …. Power to hear variation application for own decision …. DIVISION 3 — ADDITIONAL POWERS Powers specific to Local Court and authorised justices …. Powers specific to District Court …. Powers specific to Supreme Court …. Powers specific to Court of Criminal Appeal ….

[9-s 59] [9-s 60]

[9-s 61] [9-s 62] [9-s 63]

[9-s 64] [9-s 65] [9-s 66] [9-s 67] [page 1390]

Section

68 69 70

Title

DIVISION 4 — RESTRICTIONS ON POWERS Limited powers when proceedings pending in another court …. Limited powers when decision made by Supreme Court or Court of Criminal Appeal …. Authorised justice cannot revoke or grant bail contrary to decision of court ….

Paragraph

[9-s 68] [9-s 69] [9-s 70]

PART 7 — GENERAL PROVISIONS ABOUT BAIL APPLICATIONS 71 Bail applications to be dealt with expeditiously …. [9-s 71] 72 Application by accused person must be heard on first appearance …. [9-s 72] 73 Discretionary grounds to refuse to hear bail application …. [9-s 73] 74 Multiple release or detention applications to same court not permitted …. [9-s 74] 75 Fresh application to be dealt with as new hearing …. [9-s 75] 76 Regulations relating to bail applications …. [9-s 76]

77 78 79 80 81

82 83 84 85 86 87 88

89

PART 8 — ENFORCEMENT OF BAIL REQUIREMENTS Actions that may be taken to enforce bail requirements …. [9-s 77] Powers of bail authorities …. [9-s 78] Offence of failing to appear …. [9-s 79] Proceedings for fail to appear offence …. [9-s 80] Giving of directions under enforcement conditions …. [9-s 81] PART 9 — GENERAL PROVISIONS ABOUT SECURITY REQUIREMENTS Deposit of bail money or bail security …. [9-s 82] Bail guarantor may apply to be discharged of liability …. [9-s 83] Bail guarantor must not dispose of bail security …. [9-s 84] Revocation of bail if bail security no longer intact …. [9-s 85] Offence of indemnifying bail guarantor …. [9-s 86] Bail guarantor does not have right to arrest …. [9-s 87] Return of bail money and security …. [9-s 88] PART 10 — MISCELLANEOUS Restrictions on publication of association conditions ….

[9-s 89]

90 91 92 93 94 95

Bail for contempt not affected …. Powers in relation to writs of habeas corpus not affected …. Time from which accused person is in custody of court …. Facilitation of proof of bail acknowledgments and decisions …. Facilitation of proof of failure to appear …. Exercise of functions of bail authority by appropriate officers ….

[9-s 90] [9-s 91] [9-s 92] [9-s 93] [9-s 94] [9-s 95] [page 1391]

Section

96 97 98 99 100 101

Title

Court attendance notices and warrants …. Proceedings for offences …. Regulations …. Court rules …. Repeal of Bail Act 1978 No 161 …. Review of Act …. SCHEDULE 1 — APPLICATION OF ACT TO NON-OFFENDERS …. SCHEDULE 2 — FORFEITURE OF SECURITY …. SCHEDULE 3 — SAVINGS, TRANSITIONAL AND OTHER PROVISIONS ….

Paragraph

[9-s 96] [9-s 97] [9-s 98] [9-s 99] [9-s 100] [9-s 101] [9-Sch 1] [9-Sch 2] [9-Sch 3] [page 1393]

Bail Act 2013

TABLE OF AMENDMENTS Bail Act 2013 No 26, received assent 27 May 2013, commenced 20 May 2014 (s 2 and SI 234 of 2014, LW 24 April 2014). This Act has been amended by: Amending Legislation Fines Amendment Act 2013 No 82 Bail (Consequential Amendments) Act 2014 No 5

Date of Assent 29 October 2013 12 March 2014

Bail Amendment Act 2014 No 52

25 September 2014

Date of Commencement 1 December 2013 (s 2) 20 May 2014 (s 2 and SI 235 of 2014, LW 24 April 2014) 28 January 2015 (s 2 and SI 12 of 2015, LW 16 January 2015)

[page 1395] An Act to make provision for bail in connection with criminal and other proceedings. Preamble The Parliament of New South Wales, in enacting this Act, has regard to the following: (a) the need to ensure the safety of victims of crime, individuals and the community, (b) the need to ensure the integrity of the justice system, (c) the common law presumption of innocence and the general right to be at liberty. [Preamble insrt Act 52 of 2014 Sch 1[1], opn 28 Jan 2015]

PART 1 — PRELIMINARY [9-s 1]

Name of Act

1 This Act is the Bail Act 2013. COMMENTARY ON SECTION 1

The Bail Act 2013 as amended in 2014 …. Bail Act 2013 a code concerning bail …. Bail for federal offences …. Transitional provisions …. Supreme Court bail applications ….

[9-s 1.5] [9-s 1.10] [9-s 1.15] [9-s 1.20] [9-s 1.25]

[9-s 1.5] The Bail Act 2013 as amended in 2014 The Bail Act 2013 commenced on 20 May 2014. The Bail Act 1978 was thereupon repealed: s 100 Bail Act 2013 at [9-s 100]. The 2013 Act was amended in significant respects by the Bail Amendment Act 2014, which commenced on 28 January 2015. The 2013 A