Organised Crime
Participation in Criminal Groups A person is guilty of an offence if they participate in a criminal group, knowing, or reasonably ought to know, that it is a criminal group, and their participation contributes to the occurrence of any criminal activity. Maximum Penalty: Offence Maximum penalty that can be imposed by the Local Court Maximum penalty that can be imposed by the District Court Participate in a criminal group and contribute to the groups criminal activity 2 years imprisonment and/or $5,500 fine 5 years imprisonment Participate in a criminal group and knowing or being reckless as to whether that participation is contributing to the groups criminal activity 2 years imprisonment and/or $11,000 fine 10 years imprisonment Assaulting another person, intending by that action to participate in any criminal activity of a criminal group 2 years imprisonment and/or $11,000 fine 10 years imprisonment Destroying or damaging property, intending by that action to participate in any criminal activity of a criminal group 2 years imprisonment and/or $11,000 fine 10 years imprisonment Assaulting a law officer in the execution of duty, intending by that action to participate in any criminal activity of a criminal group Not applicable 14 years imprisonment Knowingly direct the activities of a criminal group 2 years imprisonment and/or $11,000 fine 15 years imprisonment Knowingly derive a material or financial benefit from the activities of a criminal group 2 years imprisonment and/or $5,500 fine 5 years imprisonment Receiving Material Benefit from Criminal Group Activities Under section 93TA of the Crimes Act 1900 (NSW), It is an offence under this section if a person receives a material benefit from a criminal group, knowing that it is a criminal group and that the benefit is derived from the group’s criminal activities. Maximum Penalty: Offence Maximum penalty that can be imposed by the Local Court Maximum penalty that can be imposed by the District Court Knowingly derive a material or financial benefit from the activities of a criminal group knowing that the benefit is desired from the groups criminal activities 2 years imprisonment and/or $5,500 fine 5 years imprisonment Consorting Under section 93X of the Crimes Act 1900 (NSW), it is a criminal offence if a person (other than a person under the age of 14 years) habitually consorts with convicted offenders, and consorts with those convicted offenders after having been given an official warning in relation to each of those convicted offenders. A person is said to consort with another if they communicate or associate with that individual in any manner, including electronic or other forms of communication. Examples of consorting include meeting, conversing, emailing, or contacting someone via social media. ‘Habitually Consorts’ is defined under the legislation as consorting with at least 2 convicted offenders and consorting with each one of those convicted offenders on at least 2 different occasions. An ‘Official Warning’ is defined under the legislation as an oral or written warning given by a police officer that a certain person is a convicted offender and that habitually consorting with that offender is an offence. Maximum Penalty: Offence Maximum penalty that can be imposed by the Local Court Maximum penalty that can be imposed by the District Court Habitually Consorting with Convicted Offender 2 years imprisonment and/or $5,500 fine 3 years maximum and/or $16,500 fine
Firearm and Explosive Offences
Possession, Supply, or Making of Explosives Under Section 93FA of the Crimes Act 1900, it is a criminal offence to possess, supply, or make explosives without a lawful purpose, in in circumstances that give rise to a reasonable suspicion of unlawful intent. This section also criminalises possessing explosives in a public place without a lawful purpose, regardless of whether there is unlawful intent. Maximum Penalty: Offence Maximum penalty that can be imposed by the Local Court Maximum penalty that can be imposed by the District Court Possessing explosives in a public place 2 years imprisonment and/or $5,500 fine 5 years imprisonment Possess, supply or make explosives for unlawful purpose 2 years imprisonment and/or $5,500 fine 3 years imprisonment and/or $5,500 fine Possession of Dangerous Articles Other Than Firearms Under section 93FB of the Crimes Act 1900, it is a criminal offence to possess a dangerous article, other than a firearm, in a public place. Under this section, a dangerous article is said to mean any of the following things: Anything (not a firearm) capable of discharging an irritant matter in liquid, powder, gas, chemical or smoke form; Anything (not a firearm) capable of discharging a substance capable of causing bodily harm; A fuse capable of use with an explosive or detonator; A detonator; A distress signal, or distress flare, that operates by emitting a bright light. Maximum Penalty: Offence Maximum penalty that can be imposed by the Local Court Maximum penalty that can be imposed by the District Court Possess anything capable of discharging an irritant matter in a public place 2 years imprisonment and/or $5,500 fine Not applicable Possess anything capable of discharging a substance that causes bodily harm in a public place 2 years imprisonment and/or $5,500 fine Not applicable Possess a fuse capable for use with an explosive or detonator in a public place 2 years imprisonment and/or $5,500 fine Not applicable Possess a detonator in a public place 2 years imprisonment and/or $5,500 fine Not applicable Possess a distress signal or distress flare that emits a bright light in a public place 2 years imprisonment and/or $5,500 fine Not applicable Causing danger with firearm or speargun Under Section 93G of the Crimes Act 1900, it is a criminal offence to posses a loaded speargun or firearm in a public place or any other place so as to endanger life, fire a speargun or firearm in or near a public place or carry a speargun or firearm in a way that is likely to endanger the safety of yourself or others. Maximum Penalty: Offence Maximum penalty that can be imposed by the Local Court Maximum penalty that can be imposed by the District Court Standard non-parole period Possess loaded firearm or speargun in public place 2 years imprisonment and/or $5,500 fine 10 years imprisonment Not applicable Possess loaded firearm or speargun not in public place 2 years imprisonment and/or $5,500 fine 10 years imprisonment Not applicable Fire firearm or speargun in or near public place 2 years imprisonment and/or $5,500 fine 10 years imprisonment Not applicable Fire/carry firearm or speargun in a manner likely to injure 2 years imprisonment and/or $5,500 fine 10 years imprisonment Not applicable Firing at Dwelling-Houses or Buildings Under Section 93G of the Crimes Act 1900, it is a criminal offence to fire a firearm at a dwelling-house or other building with reckless disregard for the safety of any person who may inside that dwelling-house or building. A dwelling-house is defined under the legislation as any building, structure, boat or vehicle in which a person resides. Maximum Penalty: Offence Maximum penalty that can be imposed by the Local Court Maximum penalty that can be imposed by the District Court Standard non-parole period Fire firearm at a dwelling or building with reckless disregard for safety of others Not applicable 14 years imprisonment 5 years imprisonment Fire firearm at a dwelling or building, during a public disorder, with reckless disregard for safety of others Not applicable 16 years imprisonment 6 years imprisonment Fire firearm at a dwelling or building, in the course of criminal activity, with reckless disregard for the safety of others Not applicable 16 years imprisonment 6 years imprisonment Trespassing with or Dangerous Use of Firearm or Spear Gun Under section 93H of the Crimes Act 1900, it is a criminal offence to possess a firearm or speargun or imitation firearm or speargun and enter any building or land that you or not lawfully authorised to enter. Further, it is also a criminal offence under this section to fire a firearm or speargun at building or land that you are not authorised to fire upon. Maximum Penalty: Offence Maximum penalty that can be imposed by the Local Court Maximum penalty that can be imposed by the District Court Enter building or land with firearm/speargun or imitation firearm/speargun 2 years imprisonment and/or $5,500 fine 5 years imprisonment Fire firearm/speargun into building or land without lawful excuse 2 years imprisonment and/or $5,500 fine 10 years imprisonment Possession of Unregistered Firearm in Public Place Under section 93I of the Crimes Act 1900, it is a criminal offence to posses an unregistered firearm in a public place when not authorised to possess the firearm under the Firearms Act 1996. Under section 60 of the Firearms Act 1996, if a person comes into possession of a firearm, but is not authorised by or under this act to possess the firearm, that person must immediately surrender the firearm to police. If a firearm is surrendered in accordance with this section, the person does not commit a criminal offence. Maximum Penalty: Offence Maximum penalty that can be imposed by the Local Court Maximum penalty that can be imposed by the District Court Possess unregistered firearm in a public place without lawful authority 2 years imprisonment and/or $5,500 fine 10 years imprisonment Possess more than one unregistered firearm in a public place without lawful authority 2 years imprisonment and/or $5,500 fine 14 years imprisonment Possess unregistered prohibited firearm in
Public Order Offences
Riot Under section 93B of the Crimes Act 1900, it is a criminal offence to be a participant in a riot. Under this section, a riot is said to be 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. The legislation also notes the following: The 12 or more persons do not have to use or threaten violence simultaneously for it to be classified as a riot; The common purpose of the group can be inferred from the conduct of the group taken as a whole; A person of reasonable firmness does not have to be present at the scene for it to be classified as a riot; A riot can be committed in both public and private places. Maximum Penalty: Offence Maximum penalty that can be imposed by the Local Court Maximum penalty that can be imposed by the District Court Riot 2 years imprisonment and/or $11,000 fine 15 years imprisonment Affray Under section 93C of the Crimes Act 1900, an affray of committed when 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. The legislation also notes the following: If 2 of more people use or threaten violence, it is the conduct of them taken together that must be considered to determine whether there was an affray; Under this section, a ‘threat’ cannot be made by words alone; No person of reasonable firmness need actually be, or be likely to be, present at the scene for an affray to take place; An affray can be committed in both public and private places. Maximum Penalty: Offence Maximum penalty that can be imposed by the Local Court Maximum penalty that can be imposed by the District Court Affray 2 years imprisonment and/or $11,000 fine 10 years imprisonment
Kidnapping Offences
Kidnapping Under section 86 of the Crimes Act 1900, a kidnapping is defined as an offence that involves taking or detaining a person for ransom, with the intention of committing a serious indictable offence or with the intention of obtaining any advantage. Maximum Penalty: Offence Maximum penalty that can be imposed by the Local Court Maximum penalty that can be imposed by the District Court Maximum penalty that can be imposed by the Supreme Court Taking and detaining a person for ransom Not applicable 14 years imprisonment 14 years imprisonment Taking and detaining a person with the intent of committing a serious indictable offence Not applicable 14 years imprisonment 14 years imprisonment Taking and detaining a person with the intent of obtaining an advantage Not applicable 14 years imprisonment 14 years imprisonment Taking and detaining a person in company for ransom Not applicable 20 years imprisonment 20 years imprisonment Taking and detaining a person in company with the intent of committing a serious indictable offence Not applicable 20 years imprisonment 20 years imprisonment Taking and detaining a person in company with the intent of obtaining an advantage Not applicable 20 years imprisonment 20 years imprisonment Taking and detaining a person for ransom and occasioning actual bodily harm to that person Not applicable 20 years imprisonment 20 years imprisonment Taking and detaining a person with the intent of committing a serious indictable offence and occasioning actual bodily harm to that person Not applicable 20 years imprisonment 20 years imprisonment Taking and detaining a person with the intent of obtaining an advantage and occasioning actual bodily harm to that person Not applicable 20 years imprisonment 20 years imprisonment Taking and detaining a person in company for ransom and occasioning actual bodily harm to that person Not applicable 25 years imprisonment 25 years imprisonment Taking and detaining a person in company with the intent of committing a serious indictable offence and occasioning actual bodily harm to that person Not applicable 25 years imprisonment 25 years imprisonment Taking and detaining a person in company with the intent of obtaining an advantage and occasioning actual bodily harm to that person Not applicable 25 years imprisonment 25 years imprisonment Child Abduction Definition: Under Section 87 of the Crimes Act 1900, it is a criminal offence for a person to take or detain a child under the age of 12 with the intention of removing or keeping the child from the lawful control of any person with parental responsibility for the child, without that person’s consent, or to take or detain a child with the intention of stealing from the child. Maximum Penalty: Offence Maximum penalty that can be imposed by the Local Court Maximum penalty that can be imposed by the District Court Maximum penalty that can be imposed by the Supreme Court Take/detain a child with the intent of removing the child from any person having parental responsibility for the child Not applicable 10 years imprisonment Not applicable Take/detain a child with intent to steal from the child Not applicable 10 years imprisonment Not applicable
Sexual Offences
Sexual Assault Under section 61 of the Crimes Act 1900, it is a criminal offence to have sexual intercourse with a person without the consent of the other person, knowing that the other person does not consent to the sexual intercourse. Under the legislation “sexual intercourse” is defined as: The penetration to any extent of the genitalia or anus of a person by any body part of another person or using any object manipulated by another person; The introduction of the genitalia of a person into the mouth of another person; The application of the mouth or tongue to the female genitalia. Maximum Penalty: This offence carries a maximum penalty of 14 years imprisonment and a standard non-parole period of 7 years imprisonment. Aggravated Sexual Assault Under section 61J of the Crimes Act 1900, aggravated sexual assault occurs when sexual assault (as defined in Section 61I of the Crimes Act 1900) is committed in circumstances of aggravation. Under this section, circumstances of aggravation can include the following: at the time of, or immediately before or after, the commission of the offence, the accused person intentionally or recklessly inflicts actual bodily harm on the victim or any other person who is present or nearby, or at the time of, or immediately before or after, the commission of the offence, the accused person threatens to inflict actual bodily harm on the victim or any other person who is present or nearby by means of an offensive weapon or instrument, or at the time of, or immediately before or after, the commission of the offence, the accused person threatens to inflict grievous bodily harm or wounding on the victim or any other person who is present or nearby, or the accused person is in the company of another person or persons, or the victim is under the age of 16 years, or the victim is (whether generally or at the time of the commission of the offence) under the authority of the accused person, or the victim has a serious physical disability, or the victim has a cognitive impairment, or the accused person breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence, or the accused person deprives the victim of his or her liberty for a period before or after the commission of the Maximum Penalty: The maximum penalty for aggravated sexual assault is the same in all circumstances of aggravation. The maximum penalty is 20 years imprisonment with a standard non-parole period of 10 years imprisonment. Aggravated Sexual Assault in Company Under section 61JA of the Crimes Act 1900, aggravated sexual assault in company occurs when sexual assault (as defined in Section 61I of the Crimes Act 1900) is committed in circumstances of aggravation and in company of one or more people. Under this section, circumstances of aggravation can include the following: If the offender, immediately before or after, the commission of the offence, intentionally or recklessly inflicts actual bodily harm on the victim or any other person who is present or nearby, or If the offender, immediately before or after, the commission of the offence, threatens to inflict actual bodily harm on the complainant or any other person who is present or nearby by means of an offensive weapon or instrument, or If the offender deprives the complainant of his or her liberty for a period before or after the commission of the offence. Maximum Penalty: The maximum penalty for aggravated sexual assault in company is the same in all circumstances of aggravation. The maximum penalty is life imprisonment imprisonment with a standard non-parole period of 15 years imprisonment. Sexual Touching Under section 61KC of the Crimes Act 1900, it is a criminal offence to sexually touch another person, knowing that the other person does not consent. Under the legislation, the following conduct would amount to sexual touching: If the offender sexually touches another person without their consent; If the offender incites the victim to sexually touch them; If the offender incites another person to sexually touch the victim without their consent; If the offender incites the victim to sexually touch another person. Maximum Penalty: The maximum penalty is the same for all instances of sexual touching without consent (not in circumstances of aggravation). The maximum penalty in the Local Court is 2 years imprisonment and/or a $5,500 fine, and in the District Court, it is 5 years imprisonment. Aggravated Sexual Touching Under section 61KD of the Crimes Act 1900, aggravated sexual touching occurs when sexual touching (as defined in Section 61KC of the Crimes Act 1900) is committed in circumstances of aggravation. Under this section, circumstances of aggravation can include the following: the accused person is in the company of another person or persons during the sexual touching; the victim is (whether generally or at the time of the commission of the offence) under the authority of the accused person; the victim has a serious physical disability; the victim has a cognitive impairment. Maximum Penalty: The maximum penalty is the same for all instances of aggravated sexual touching without consent. The maximum penalty in the Local Court is 2 years imprisonment and/or a $11,000 fine, and in the District Court, it is 7 years imprisonment with a standard non-parole period of 7 years imprisonment. Carrying out a sexual act with or towards another Under section 61KE of the Crimes Act 1900, a person commits a criminal offence if they, without the consent of another person (the victim), and knowing that the victim does not consent, intentionally carries out a sexual act with or towards the victim. Under the legislation, the following would amount to a sexual act: Carrying out a sexual act with or towards another person without their consent; Inciting the victim to carry out a sexual act with or towards you; Inciting a third person to carry out a sexual act with or towards the victim; Inciting the victim to carry out a sexual act with or towards a third person. Under the legislation, a “sexual act” means an act (other than sexual touching) carried out in circumstances where a reasonable person would consider the act to be sexual. Maximum Penalty: The maximum penalty is
Assault
Common Assault Under section 61 of the Crimes Act 1900, it is a criminal offence to assault a person, although not occasioning actual bodily harm. The term “Common Assault” is not defined under the legislation, however, generally occurs when a person, intentionally or recklessly, inflicts unlawful force on another person, or makes threats of immediate violence, causing the victim to fear imminent harm. Maximum Penalty: The maximum penalty for common assault in the Local Court is 2 years imprisonment and/or a $5,500 fine, and in the District Court, it is 2 years imprisonment. Assault Occasioning Actual Bodily Harm (ABH) Under section 59 of the Crimes Act 1900, an assault occasioning actual bodily harm occurs when a person unlawfully assaults another, causing actual bodily harm. Actual bodily harm includes any injury that is more than transient or trifling (e.g., bruises, cuts) but does not extend to causing permanent disfigurement, serious injury, or bodily disease. Maximum Penalty: Offence Maximum penalty that can be imposed by the Local Court Maximum penalty that can be imposed by the District Court Assault occasioning actual bodily harm 2 years imprisonment and/or $5,500 fine 5 years imprisonment Actual bodily harm whilst in company of others 2 years imprisonment and/or $5,500 fine 7 years imprisonment Assaults and other actions against police officer Under section 60 of the Crimes Act 1900, it is a criminal offence to assault, hinder or resist a police officer in the execution of the officer’s duties. Maximum Penalty: Offence Maximum penalty that can be imposed by the Local Court Maximum penalty that can be imposed by the District Court Standard non-parole period Hinder/rest a police officer in the execution of their duties 12 months imprisonment and/or $2,200 fine Not applicable Not applicable Assault/harass/intimidate/stalk police officer in the execution of their duties 2 years imprisonment and/or $5,500 fine 5 years imprisonment Not applicable Assault/harass/intimidate/stalk police officer in the execution of their duties during a public disorder 2 years imprisonment and/or $5,500 fine 7 years imprisonment Not applicable Assault and cause Actual Bodily Harm to a police officer in the execution of their duties 2 years imprisonment and/or $11,000 fine 7 years imprisonment 3 years imprisonment Assault and cause Actual Bodily Harm to a police officer in the execution of their duties during public disorder 2 years imprisonment and/or $11,000 fine 9 years imprisonment Not applicable Assault and cause grievous bodily harm to a police officer in the execution of their duties Not applicable 12 years imprisonment 5 years imprisonment Assault and cause grievous bodily harm to a police officer in the execution of their duties during public disorder Not applicable 14 years imprisonment Not applicable Murdering a police officer in the execution of their duties Not applicable Mandatory life sentence (term of persons natural life) Not applicable Reckless Grievous Bodily Harm or Wounding Under section 35 of the Crimes Act 1900, it is a criminal offence to recklessly inflicting grievous bodily harm (GBH) or wounding another person. Wounding is not defined under the legislation, however, means the breaking open of the skin and involves more than a scratch, scrape or bruise. Grievous bodily harm is defined under the legislation as meaning: The destruction (other than in the course of a medical procedure) of the foetus of a pregnant women, whether or not the woman suffers any harm, or Any permanent or serious disfigurement of a person, or Causing another person to contract any grievous bodily disease. Maximum Penalty: Offence Maximum penalty that can be imposed by the Local Court Maximum penalty that can be imposed by the District Court Standard non-parole period Recklessly inflict grievous bodily harm 2 years imprisonment and/or $11,000 fine 10 years imprisonment 4 years imprisonment Recklessly inflict grievous bodily harm in company 2 years imprisonment and/or $11,000 fine 14 years imprisonment 5 years imprisonment Recklessly wound another 2 years imprisonment and/or $11,000 fine 7 years imprisonment 3 years imprisonment Recklessly wound another in company 2 years imprisonment and/or $11,000 fine 10 years imprisonment 4 years imprisonment Wounding or Grievous Bodily Harm with Intent Under section 33 of the Crimes Act 1900, a person commits a criminal offence if they cause grievous bodily harm (GBH) or wounding to another person with an intent to cause that harm. Wounding is not defined under the legislation, however, means the breaking open of the skin and involves more than a scratch, scrape or bruise. Grievous bodily harm is defined under the legislation as meaning: The destruction (other than in the course of a medical procedure) of the foetus of a pregnant women, whether or not the woman suffers any harm, or Any permanent or serious disfigurement of a person, or Causing another person to contract any grievous bodily disease. Maximum Penalty: Offence Maximum penalty that can be imposed by the District Court Maximum penalty that can be imposed by the Supreme Court Standard non-parole period Wound another person with an intent to cause grievous bodily harm Not applicable 25 years imprisonment 7 years imprisonment Cause grievous bodily harm to another person with intent to cause grievous bodily harm Not applicable 25 years imprisonment 7 years imprisonment Wound another person with intent to resist arrest Not applicable 25 years imprisonment 7 years imprisonment Cause grievous bodily harm to another person with intent to resist arrest Not applicable 25 years imprisonment 7 years imprisonment
Homicide
Murder Under section 18(1)(a) of the Crimes Act 1900, it is a criminal offence to commit murder. Murder is defined under this section as being a voluntary and unlawful act or omission of the accused which causes the death of another person, and that act or omission is committed: With an intent to inflict grievous bodily harm, or With an intent to kill, or With a reckless indifference to human life, or By the accused or some accomplice in an attempt to commit, or during or immediately after the commission of an offence punishable by a term of imprisonment of no less than 25 years. An accused person who unlawfully kills another is not guilty of murder unless they do the act or omission which causes the death with one of the four specific intents (mentioned above). These intents are essential mental elements which are required for a person to be convicted of murder, beyond a reasonable doubt. Maximum Penalty: The maximum penalty for murder is life imprisonment with a standard non-parole period of 20 years imprisonment. Attempted Murder/Conspiracy to Murder Under sections 26, 27, 28, 29 and 30 of the Crimes Act 1900, it a criminal offence to attempt to murder someone (by any means), to conspire and agree to commit murder or to persuade and encourage another person to commit murder. Maximum Penalty: The maximum penalty for these offences is 25 years imprisonment with a standard non-parole period of 10 years imprisonment. Manslaughter Under section 18(1)(b) of the Crimes Act 1900, manslaughter is defined as “every other punishable homicide” that is not considered murder. There are two types of manslaughter, namely, voluntary and involuntary manslaughter. Voluntary Manslaughter: In cases of voluntary manslaughter, the elements of murder are present, but the culpability of the offender’s conduct is reduced by reason of extreme provocation (section 23 of the Crimes Act 1900), excessive self-defence (section 421 of the Crimes Act 1900) or a substantial impairment by abnormality of mind (section 23A of the Crimes Act 1900). Involuntary manslaughter: Voluntary manslaughter can be caused by an unlawful and dangerous act that occurs where the accused causes the death of the deceased. A dangerous act is an act that a reasonable person in the position of the accused would have appreciated was an act that exposed another person to a risk of serious injury. Voluntary manslaughter can also be caused by criminal negligence that occurs, that is when an accused owed a legal duty of care to the deceased. In order to establish manslaughter by criminal negligence, it is sufficient if the prosecution shows that the act which caused the death was done by the accused consciously and voluntarily, without any intention of causing death or grievous bodily harm but 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 merited criminal punishment. Maximum Penalty for Manslaughter: The maximum penalty for manslaughter is 25 years imprisonment.
Criminal Defences in Australia
In Australia, individuals charged with a criminal offence may rely on a range of legal and factual defences. A criminal defence is an argument or justification that explains why an individual committed a particular offence. These defences are typically divided into two main categories: complete defences and partial defences. Complete Defences A complete defence, if accepted by the court, results in complete exoneration from any criminal liability. This means the accused will be found ‘not guilty’ of the charges. Some complete defences are specific to certain offences and are laid out in corresponding legislative instruments; however, most originate in common law. Mistake of Fact The defence of mistake of fact requires demonstrating that: You held a mistaken belief or were ignorant of the facts or circumstances surrounding an act or omission. Due to this mistaken belief, you did not possess the ‘mental element’ required to commit the offence. Had the facts been as you reasonably believed at the time, no criminal offence would have been committed. The belief you held was honest and reasonable in the given circumstances. It’s crucial to note that this defence applies only to mistakes of fact, not law; ignorance of relevant laws in your jurisdiction does not constitute a criminal defence. Example: Kylie arrives at Sydney Airport from New Zealand and waits at the corresponding baggage carousel for her checked baggage to emerge. When a pink Barbie bag identical to hers appears, she takes it, believing it to be hers. Once home, she discovers it’s not her bag. In this situation, Kylie’s honest and reasonable belief that she was collecting her own bag could support a defence of mistake of fact. Claim of Right A claim of right defence can be raised when an individual is recovering property or money they believe belongs to them or someone else. This defence isn’t limited to the specific item previously held by the person attempting recovery but can extend to property of equal value. Moreover, it’s available to a person acting on behalf of another whom they believe has an honest claim to that property. It should be noted, however, that although this defence may apply, a person cannot commit further criminal acts (e.g., assault or trespass) while attempting to recover property. Consent The latin maxim volenti non fit injuria — “no injury is done to one who consents” — underlies the common law defence of consent, defined as giving permission or agreement for an action to occur. While consent is a well-established legal principle, it applies to a limited range of offences. Certain crimes, such as incest, sexual offences with minors, slavery, female genital mutilation, and bestiality, do not permit consent as a defence. In situations where consent is available as a defence, the lack of consent can turn otherwise lawful acts into criminal offences. Examples include: Sexual intercourse becoming the offence of rape, Sparring or boxing becoming assault, Surgery becoming wounding, Taking property becoming stealing, Abortion or euthanasia becoming murder, Mural paintings becoming damaging property, Entering another’s property becoming trespass. Necessity Also referred to as ‘sudden or extraordinary emergency’, the defence of necessity applies when an unlawful act is committed to respond to an immediate, significant threat. For this defence to succeed, the court assesses whether the unlawful act was the only reasonable way to address the emergency and whether the response was proportionate given the circumstances. Duress and Coercion The defence of duress protects a person from criminal liability if the offence was committed to avoid serious, imminent harm to themselves or others. When invoking duress, the court considers whether: The accused faced genuine imminent threats of death or serious injury to themselves, a family member, or another person, A reasonable person would have acted similarly in response to the threat, The accused had no other lawful means to counter the threat. If these conditions are met, duress may be a valid defence. If any condition fails, the defence of duress is unavailable. Self-Defence Self-defence absolves an individual of criminal responsibility when force is used to protect oneself or others, as long as the force is necessary and reasonable in response to an imminent, perceived threat. The threat does not need to have materialised; one may act pre-emptively in anticipation of the imminent threat. This defence is applicable when the force used is minimal and proportionate to the perceived level of threat. In cases where self-defence leads to death, section 421 of the Crimes Act 1900 provides that excessive force may reduce a murder charge to manslaughter. Section 419 of the Crimes Act 1900 specifies that, once raised, the burden shifts to the prosecution to disprove the defence. Intoxication Historically, self-intoxication served as a common law defence until the late 1900s, but most Australian states and territories have since enacted legislative provisions addressing intoxication. In New South Wales, Part 11A of the Crimes Act 1900 provides that, for specific intent offences, intoxication may be considered if the intent was formed during and as a result of the intoxication. However, this defence will not succeed if the intent to commit the offence was established prior to becoming intoxicated. If this defence is successfully argued for a specific intent offence, the individual would instead be convicted of a less serious offence. Mental Illness The mental illness defence applies when a person has such a severe mental illness or cognitive impairment that they cannot be held fully responsible for their actions, making punishment inappropriate. This is due to the loss of deterrence and retribution as justifiable purposes of punishment. For most offences, mental illness acts as a complete defence. Section 23A of the Crimes Act 1900 states that in cases where mental impairment would otherwise result in a murder conviction, the charge is instead reduced to manslaughter. Proving this defence requires evidence of significant cognitive and emotional impairments, such as the inability to distinguish between right and wrong and impaired self-control. Automatism Automatism, or involuntary actions performed without conscious volition, can act as a defence if the
New Affirmative Sexual Consent Laws
What is sexual consent? Under the Crimes Act 1900, sexual consent is defined as a person freely and voluntarily agreeing to engage in sexual activity at the time of the act. Sexual activity, in this context, includes sexual intercourse, sexual touching, or other sexual acts as specified by the legislation. Legislative Reforms On 1 June 2022, the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 introduced significant changes to New South Wales’ sexual consent laws. These reforms added Part 3, Division 10, subdivision 1A to the Crimes Act 1900. These reforms emphasise that affirmative consent requires active participation and ongoing communication between all parties involved in sexual activity. A key reform is the adoption of affirmative, communicative consent language. The new laws make it clear that consent must be expressed through words or actions, and individuals are responsible for taking active steps to ensure the other person is consenting. In explaining how consent may be freely and voluntarily conveyed, the Attorney General noted that this could include “reciprocating body language or affirming remarks throughout a sexual encounter” (Second Reading Speech, Legislative Assembly, Debates, 20 October 2021, p. 7507). As a result, consent can no longer be inferred from a lack of physical or verbal resistance to sexual activity. The case of R v Lazarus [2017] highlighted the need for this shift and was a key motivator for the Attorney General in passing the new affirmative consent laws. These legislative amendments place the responsibility on each person to obtain positive confirmation of consent from the other party or parties, through either words or actions, to ensure they are willing participants. If a defendant seeks to argue at trial that consent was given, the onus is on the defendant to demonstrate that the complainant gave affirmative consent through their words or actions. Key Takeaways from the Changes to Consent Legislation Consent is a free and voluntary agreement that should not be assumed based on a lack of verbal or physical resistance. Instead, both parties must say or do something to affirm their consent to sexual activity. Consent cannot be presumed based on prior encounters; consent for one occasion does not imply consent for future occasions. Consent is invalid if obtained through misleading identity or fraudulent inducement. Fraudulent inducement does not include misrepresentations about a person’s feelings, wealth, income, or the use of “pick-up lines” or minor deceptions. Consent is not present if participation is due to coercion, blackmail, or abuse. Consent is absent if a person is asleep, unconscious, or impaired by alcohol or other drugs. If you or a loved one has been charged with a sexual offence, please reach out to our team for a free consultation.
Possession of illicit objects located within a property or vehicle
The legal concept of possession involves having intentional control over an object at a given time, either individually or jointly with others. To establish possession, the individual and any co-possessors must also hold the right to exclude others from access to the object. When these criteria are met, an individual is considered to possess the object, whether solely or jointly with others. Vehicles There may be instances where you are driving, controlling, or merely a passenger in a vehicle you do not own or that is shared with others. In such situations, you might not be fully aware of all the vehicle’s contents. This lack of knowledge can lead to significant complications if police conduct a search and discover illicit items (such as drugs or firearms) in hidden compartments or areas not readily visible to the driver or passengers. Relevant case law can assist in determining whether a driver or passenger is legally deemed to possess these items. For instance, in R v Amanatidis [2001] NSWCCA 400, drugs were found in a vehicle driven by the appellant. Although it was established that as the driver and keyholder he had physical control over the drugs, his knowledge of their presence could not be proven. Police often infer a person’s knowledge or possession of an illicit object if certain conditions are present, including: Presence of the person’s DNA or fingerprints on the object, or The illicit object’s visibility or accessibility to the driver or passenger, or Mentions of the illicit object in text messages, phone calls, or recordings from surveillance devices, or The person’s behaviour before the discovery of the object, such as if they were caught supplying drugs and drugs were subsequently found in their vehicle. Property When residing in or visiting a property shared with others, you may not be fully aware of the contents in certain areas, especially if you do not have regular access to or use specific parts of the property. This lack of awareness can cause serious issues if police conduct a search and discover illicit items (such as drugs or firearms) in concealed or otherwise inaccessible areas of the property. Again, relevant case law can assist in determining whether a visitor or occupant is deemed to possess illicit items within a property. In R v Filipetti (1984) 13 A Crim R 335, drugs were discovered in the lounge room of a home occupied by six individuals, each of whom had access to the space. The court concluded that exclusive physical control of the drugs (by one of or all of the occupants) could not be established, and shared control could not be inferred, preventing police from identifying which of the six occupants possessed the drugs. Generally, police will infer a person’s knowledge or possession of an illicit object within a property in certain circumstances, such as: If the person’s personal belongings are near or in the room where the object is found, or Presence of the person’s DNA or fingerprints on or close to the object, or Visibility or accessibility of the object to the person, or References to the object by the person in text messages, phone calls, or recordings from surveillance devices, or The person’s actions preceding the object’s discovery, such as if they were caught supplying drugs and drugs were found in the property they were occupying or visiting immediately afterward. If you or a loved one have been present in a vehicle or property where police discovered illicit items, please reach out to our team for a free consultation.