Crimes Act 1900 (NSW)

Crimes Act 1900 No 40 An Act to consolidate the Statutes relating to Criminal Law. Part 1 Preliminary and interpretation 1 Name of Act This Act is the Crimes Act 1900. 2 (Repealed) 3 Application of certain provisions of Act The Parts and sections mentioned in Schedule 2, so far as their provisions can be applied, shall be in force with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to all offences, whether at Common Law or by Statute, whensoever committed and in whatsoever Court tried. 3A, 3B (Repealed) 4 Definitions (1) In this Act, unless the context or subject-matter otherwise indicates or requires— Aircraft includes any machine that can derive support in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. Authorised officer has the same meaning as it has in the Criminal Procedure Act 1986. 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. 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. 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, 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. Dwelling-house includes— (a) any building or other structure intended for occupation as a dwelling and capable of being so occupied, although it has never been so occupied, (b) a boat or vehicle in or on which any person resides, and (c) any building or other structure within the same curtilage as a dwelling-house, and occupied therewith or whose use is ancillary to the occupation of the dwelling-house. Governor means, except in respect of the exercise of the pardoning power, the Governor with the advice of the Executive Council. Grievous bodily harm includes— (a) the destruction (other than in the course of a medical procedure or a termination of a pregnancy in accordance with the Abortion Law Reform Act 2019) of the foetus of a pregnant woman, whether or not the woman suffers any other harm, and (b) any permanent or serious disfiguring of the person, and (c) any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease). Indictment includes any information presented or filed as provided by law for the prosecution of offences. Intoxicating substance includes alcohol or a narcotic drug or any other substance that affects a person's senses or understanding. Intoxication has the same meaning it has in Part 11A. Judge—see Court. Loaded arms means any gun, pistol, or other arms, loaded in the barrel or chamber or magazine with gunpowder or other explosive substance, and with ball, shot, slug, or other destructive material, although the attempt to discharge may fail from want of proper priming, or from any other cause; and every gun, pistol, or other arms, unlawfully presented at any person, shall be deemed to be loaded unless the contrary is shown. Member of the crew in relation to an aircraft means a person having functions or duties on board the aircraft. Minor indictable offence means an indictable offence that is not a serious indictable offence. Money includes all coined money, whether current within New South Wales or not, and all bank notes or instruments ordinarily so called, if current as such, and payable to the bearer. Night means the period of time commencing at nine of the clock in the evening of each day and concluding at six of the clock in the morning of the next succeeding day. Offensive weapon or instrument means— (a) a dangerous weapon, or (b) any thing that is made or adapted for offensive purposes, or (c) any thing that, in the circumstances, is used, intended for use or threatened to be used for offensive purposes, whether or not it is ordinarily used for offensive purposes or is capable of causing harm. 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. Place of Divine worship includes any building or structure ordinarily used for Divine worship. 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, and includes a riot or other civil disturbance at the following— (a) a correctional centre within the meaning of the Crimes (Administration of Sentences) Act 1999, (b) a detention centre within the meaning of the Children (Detention Centres) Act 1987. Railway includes a tramway, and also includes all stations, buildings, structures and equipment belonging to or associated with a railway or tramway. Serious indictable offence means an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more. 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. Note. The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) A dwelling-house does not cease to be a dwelling-house by reason only of being temporarily unoccupied. (3) (Repealed) (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), (6) (Repealed) (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. (7A) In any provision of this Act where a reference to a firearm means a firearm within the meaning of the Firearms Act 1996, that reference is taken to include a paintball marker within the meaning of the Paintball Act 2018 and consequently, being authorised under that Act to possess a paintball marker satisfies any requirement in this Act that possession of the paintball marker be authorised under the Firearms Act 1996. (8) Notes included in this Act do not form part of this Act. 4A Recklessness 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. 4B Dishonesty (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. 4C Mental health impairment (1) For the purposes of this Act, a person has a mental health impairment if— (a) the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and (b) the disturbance would be regarded as significant for clinical diagnostic purposes, and (c) the disturbance impairs the emotional wellbeing, judgment or behaviour of the person. (2) A mental health impairment may arise from any of the following disorders but may also arise for other reasons— (a) an anxiety disorder, (b) an affective disorder, including clinical depression and bipolar disorder, (c) a psychotic disorder, (d) a substance induced mental disorder that is not temporary. (3) A person does not have a mental health impairment for the purposes of this Act if the person's impairment is caused solely by— (a) the temporary effect of ingesting a substance, or (b) a substance use disorder. 5, 6 (Repealed) 7 "Possession" when criminal 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. 8 "Public place" etc 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. 9, 10 (Repealed) Part 1A Geographical jurisdiction 10A Application and effect of Part (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. 10B Interpretation (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). 10C Extension of offences if there is a geographical nexus (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. 10D Provisions relating to double criminality (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. 10E Procedural and other provisions (1) The existence of the necessary geographical nexus for an offence is to be presumed and the presumption is conclusive unless rebutted under subsection (2). (2) If a person charged with an offence disputes the existence of the necessary geographical nexus, the court is to proceed with the trial of the offence in the usual way. If, at the conclusion of the trial, the trier of fact is satisfied on the balance of probabilities that the necessary geographical nexus does not exist, it must (subject to subsection (3)) make or return a finding to that effect and the charge is to be dismissed. (3) If the trier of fact would, disregarding any geographical considerations, find the person not guilty of the offence, it must make or return a finding of not guilty. The trier of fact must make or return a finding of act proven but not criminally responsible because of mental health impairment or cognitive impairment in any such case if they were the only grounds on which the trier of fact would have found the person not criminally responsible. (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). (7) In this section— cognitive impairment has the same meaning as in section 23A. 10F Special provisions with respect to geographical jurisdiction (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. Part 2 Offences against the Sovereign 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 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. 12 Compassing etc deposition of the Sovereign—overawing Parliament etc 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. 13–15 (Repealed) 16 Nothing herein to affect 25 Ed III, c 2 Nothing contained in this Part shall lessen the force of, or in any matter affect, anything enacted by the Statute passed in the twenty-fifth year of King Edward the Third "A declaration which offences shall be adjudged Treason". 16A (Repealed) Part 3 Offences against the person Division 1 Homicide 17 (Repealed) 17A Date of death (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. 18 Murder and manslaughter defined (1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years. (b) Every other punishable homicide shall be taken to be manslaughter. (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. 19 (Repealed) 19A Punishment for murder (1) A person who commits the crime of murder is liable to imprisonment for life. (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. (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). (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. 19B Mandatory life sentences for murder of police officers (1) A court is to impose a sentence of imprisonment for life for the murder of a police officer if the murder was committed— (a) while the police officer was executing his or her duty, or (b) as a consequence of, or in retaliation for, actions undertaken by that or any other police officer in the execution of his or her duty, and if the person convicted of the murder— (c) knew or ought reasonably to have known that the person killed was a police officer, and (d) intended to kill the police officer or was engaged in criminal activity that risked serious harm to police officers. (2) A person sentenced to imprisonment for life under this section is to serve the sentence for the term of the person's natural life. (3) This section does not apply to a person convicted of murder— (a) if the person was under the age of 18 years at the time the murder was committed, or (b) if the person had a significant cognitive impairment at that time (not being a temporary self-induced impairment). (4) If this section requires a person to be sentenced to imprisonment for life, nothing in section 21 (or any other provision) of the Crimes (Sentencing Procedure) Act 1999 or in any other Act or law authorises a court to impose a lesser or alternative sentence. (5) Nothing in this section affects the obligation of a court to impose a sentence of imprisonment for life on a person convicted of murder in accordance with section 61 of the Crimes (Sentencing Procedure) Act 1999. (6) Nothing in this section affects the prerogative of mercy. (7) This section applies to offences committed after the commencement of this section. 20 Child murder—when child deemed born alive 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. 21 Child murder by mother—verdict of contributing to death etc 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. 22 Trial for child murder—verdict of concealment of birth 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. 22A Infanticide (1) A woman is guilty of infanticide and not of murder if— (a) the woman by an act or omission causes the death of a child, in circumstances that would constitute murder, within 12 months of giving birth to the child, and (b) at the time of the act or omission, the woman had a mental health impairment that was consequent on or exacerbated by giving birth to the child. (2) A jury may, at the trial of a woman for the murder of her child, find the woman guilty of infanticide and not of murder if the jury is of the opinion that— (a) the woman by an act or omission caused the death of the child, in circumstances that would constitute murder, within 12 months of giving birth to the child, and (b) at the time of the act or omission, the woman had a mental health impairment that was consequent on or exacerbated by giving birth to the child. (3) A woman found guilty of infanticide under this section may be dealt with and punished as if the woman had been guilty of the offence of manslaughter of the child. (4) Nothing in this section affects the power of the jury on an indictment for the murder of a child to return— (a) a verdict of manslaughter, or (b) a special verdict of act proven but not criminally responsible (within the meaning of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020), or (c) concealment of birth. 23 Trial for murder—partial defence of extreme provocation (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. 23A Substantial impairment because of mental health impairment or cognitive impairment (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 a mental health impairment or a cognitive impairment, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. (2) For the purposes of subsection (1) (b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible. (3) If a person was intoxicated at the time of the acts or omissions causing the death concerned, and the intoxication was self-induced intoxication (within the meaning of section 428A), the effects of that self-induced intoxication are to be disregarded for the purpose of determining whether the person is not liable to be convicted of murder by virtue of this section. (4) The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section. (5) A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder is to be convicted of manslaughter instead. (6) The fact that a person is not liable to be convicted of murder in respect of a death by virtue of this section does not affect the question of whether any other person is liable to be convicted of murder in respect of that death. (7) If, on the trial of a person for murder, the person contends— (a) that the person is entitled to be acquitted on the