Criminal Code Act 1924 (Tas)

Criminal Code Act 1924 An Act to declare, consolidate, and amend the criminal law, and to establish a code of criminal law [Royal Assent 4 April 1924] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: 1. Short title This Act may be cited as the Criminal Code Act 1924 . 2. Establishment of the Criminal Code (1) After the passing of this Act, the provisions contained in the Code of Criminal Law set forth in Schedule 1 , and hereinafter called the Code , shall be the law of this State with respect to the several matters therein dealt with. (2) The said Code may be cited as the Criminal Code . 3. Repeals (1) After the passing of this Act no penal enactment contained in any Imperial Act, not having the force of law in this State otherwise than by virtue of the provisions of section 24 of the Australian Courts Act 1828 , shall continue in force or be applied in the administration of justice in this State. (2) The several Acts mentioned in Schedule 2 shall be repealed to the extent in the said schedule indicated. (3) The repeal of any statute or part of a statute set forth in the said schedule shall not affect the construction of any other statute, or of any other part of the same statute. 4. Construction of statutes (1) After the passing of this Act every statute shall, for the purposes of this Act, be read and construed as if any offence therein mentioned for which the offender may be prosecuted on indictment or information (however such offence may be therein described or referred to) were described or referred to as a crime as defined by the Code ; and all provisions of this Act relating to crimes generally shall apply to every such offence. (2) Where in any statute reference is made to proceedings upon information in the Supreme Court, the same shall be construed as a reference to proceedings upon indictment. (3) Except as provided in section 36 of the Acts Interpretation Act 1931 , nothing contained in this Act or in the Code shall be construed to affect the construction of any statute, or of any provision thereof, creating an offence punishable summarily or referring or relating to summary proceedings. 4A. Appointment of Crown Law officers (1) The Governor may appoint a person to institute or prosecute criminal proceedings in the Supreme Court. (2) On the commencement of this section, section 5 of the Australian Courts Act 1828 ceases to be in force and have effect in respect of this State. (3) For the avoidance of doubt, the fact that section 5 of the Australian Courts Act 1828 ceases to be in force and have effect on the commencement of this section does not affect the validity of a person appointed under that section before the commencement of this section. 5. Trial by magistrate in certain cases (1) Where in any unrepealed statute, passed before the passing of this Act, it is provided that any offence therein created, defined, or made punishable shall be punishable by any term of imprisonment not exceeding 2 years (whether such offence is described as a misdemeanour, or otherwise), or that any offence shall be a misdemeanour, and no specific punishment is thereby provided for the same, every such offence shall be punishable summarily before a magistrate as herein provided. (2) In every such case, as aforesaid, a magistrate shall have power to impose upon any person convicted of any such offence a term of imprisonment not exceeding one year, or such shorter period as may be provided by such statute, in addition to any fine or other punishment, if any, authorized thereby, or otherwise. (3) In any case in which the term of imprisonment authorized by any such statute exceeds one year the magistrate before whom any person is charged with an offence thereunder may – (a) if such person demands to be tried by jury; or (b) if, in his opinion, the charge should be tried upon indictment – commit such person for trial upon indictment under the Code . (4) A person so committed shall thereupon be dealt with under the provisions of the Code relating to proceedings upon indictment, and may be punished in manner provided by such statute as aforesaid. (5) The provisions of this section shall apply only in respect of offences which were intended by the Act constituting the same to be prosecuted upon information or indictment, and in respect of which no other mode of proceeding is provided by such Act or any other Act. 6. Prosecutions at common law abolished After the passing of this Act no person shall be proceeded against as for a crime as defined by the Code , except under the provisions of this Act, or of some other Act, or of some Commonwealth Act, or of some Imperial Act in force in this State. 7. Proceedings to be initiated by indictment Except as otherwise provided by the Code or an Act, proceedings in the Supreme Court against any person for a crime shall be initiated by indictment, and shall be prosecuted in accordance with the provisions of the Code relating thereto. 8. Saving of common law defences All rules and principles of the common law which render any circumstances a justification or excuse for any act or omission, or a defence to a charge upon indictment, shall remain in force and apply to any defence to a charge upon indictment, except in so far as they are altered by, or are inconsistent with, the Code . 9. No remedy in tort for act declared lawful: Civil remedies for crime not suspended (1) Where by the Code any act is declared to be lawful, no action shall be brought in respect thereof. (2) Except as aforesaid, the provisions of this Act shall not affect any right of action which any person would have had against another if this Act had not been passed; nor shall the omission from the Code of any penal provision in respect of any act or omission which, before the passing of this Act, constituted an actionable wrong affect any right of action in respect thereof. (3) No civil remedy for any act or omission shall be suspended by reason that such act or omission amounts to a criminal offence. 10. Saving of summary procedure at common law for contempt of court Nothing in this Act shall affect the authority of courts of record to punish a person summarily for the offence commonly known as "contempt of court"; but no person shall be so punished and also punished under the provisions of the Code for the same act or omission. 11. Outlawry, attaint, and forfeiture abolished (1) After the passing of this Act no proceedings in outlawry shall be taken, and no judgment of outlawry shall be pronounced, against any person. (2) No confession, verdict, inquest, conviction, or judgment of or for any treason, felony, or other crime, shall hereafter cause any attainder or corruption of blood or any forfeiture or escheat other than any fine or penalty imposed by the sentence of the Court. 12. Rules of Court (1) The judges, or a majority of them, may make Rules of Court prescribing all such matters and things as are required to be prescribed or as may be necessary or desirable for giving effect to the provisions of the Code . (1A) The Rules of Court may provide for – (a) all matters relating to procedure and practice – (i) on appeals to the Court of Criminal Appeal on questions reserved for the consideration and determination of that Court, or referred to that Court, pursuant to Chapter XLII of the Code; and (ii) on or after the committal of a defendant to the Supreme Court for sentence or trial; and (iii) in all proceedings before courts of trial; and (b) all incidental matters. (2) This section does not authorize the making of provision by a Rule of Court of any matter for which provision may be made under section 12A . 12A. Business and sittings of court (1) The Chief Justice is responsible for ensuring the orderly and expeditious discharge of the business of the criminal jurisdiction of the Supreme Court and the Court of Criminal Appeal and accordingly may, subject to this Act and after such consultation with the judges as is appropriate and practicable, make arrangements as to the judge or judges who is or are to constitute the Court in a particular matter or class of matters. (2) Sittings of the criminal jurisdiction of the Supreme Court and sittings of the Court of Criminal Appeal are to be held from time to time as required at the places at which the registries of the Court are established and at such other places as may be determined by the Chief Justice from time to time. 13. Saving of prerogative of mercy Nothing herein contained shall affect His Majesty's Royal prerogative of mercy. SCHEDULE 1 PART I - Introductory Chapter I - Interpretation 1. Interpretation In the Code, unless the contrary intention appears – aircraft includes any machine that can derive support in the atmosphere from the reactions of the air; bestiality means sexual activity of any kind between a human being and an animal; chapter means chapter of the Code; claim of right means a claim of right which is made in good faith; company means a company incorporated in this State or elsewhere; contaminate, in respect of goods, includes – (a) interfere with the goods; and (b) making it appear that the goods have been contaminated or interfered with; controlled substance has the same meaning as in the Misuse of Drugs Act 2001 ; crime means an offence punishable upon indictment; criminally responsible means liable to punishment as for an offence; and the term criminal responsibility means liability to punishment as for an offence; Crown means – (a) the Crown in right of Tasmania; or (b) the State of Tasmania; Crown Law Officer means the Attorney-General or Solicitor-General, or any person appointed by the Governor to institute or prosecute criminal proceedings in the Supreme Court; explosive substance means any article manufactured for the purpose of producing a practical effect by explosion or intended by the person having it with him for that purpose; female genital mutilation means – (a) a clitoridectomy; or (b) an excision of any other part of the female genital organs; or (c) an infibulation or similar procedure; or (d) any other mutilation of the female genital organs; genitalia includes genitalia that have been surgically constructed or reconstructed; goods includes any substance – (a) whether or not for human consumption; and (b) whether natural or manufactured; and (c) whether or not incorporated or mixed with other goods; grievous bodily harm means any bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause serious injury to health; have in possession includes having under control in any place whatever, whether for the use or benefit of the person of whom the term is used or of another person, and although another person has the actual possession or custody of the thing in question; instigate means to counsel, procure, or command; judicial officer means a person having authority by law to hear and determine any question or matter or to hold any inquiry, and includes an arbitrator or umpire; midwife means a person registered under the Health Practitioner Regulation National Law (Tasmania) in the midwifery profession; motor vehicle has the same meaning as it has in the Vehicle and Traffic Act 1999 ; night means the interval between 9 p.m. and 6 a.m. of the next day; nurse means a registered nurse or an enrolled nurse; offence means any breach of the law for which a person may be punished summarily or otherwise; offensive weapon includes anything that has the appearance of a firearm or a gun or pistol of any kind, whether capable of being discharged or not; owner means His Majesty or any other person or body of persons, corporate, or unincorporate, capable of owning property; penis includes a surgically constructed or reconstructed penis; property includes everything animate or inanimate capable of being the subject of ownership; public officer means a person holding any public office, or who discharges any duty in which the public are interested, whether such person receives payment for his services or not; railway includes every kind of way on which vehicles are borne upon a rail or rails, whatever may be the means of propulsion; section means section of the Code; ship includes every kind of vessel used in navigation not propelled by oars; terminate, except in section 64 , means to discontinue a pregnancy so that it does not progress to birth by – (a) using an instrument or a combination of instruments; or (b) using a drug or a combination of drugs; or (c) any other means – but does not include – (d) the supply or procurement of any thing for the purpose of discontinuing a pregnancy; or (e) the administration of a drug or a combination of drugs for the purpose of discontinuing a pregnancy by a nurse or midwife acting under the direction of a medical practitioner; trafficable quantity has the same meaning as in the Misuse of Drugs Act 2001 ; vagina includes a surgically constructed or reconstructed vagina; valuable security includes every document forming the title, or evidence of the title, to any property of any kind whatever; vessel includes a ship, or boat, and every other kind of vessel used in navigation; writing includes anything expressed in words, characters, or symbols, and intended to be read. 1A. Definitions for purposes of sections 130 , 130A , 130B , 130C , 130D , 130E , 130F , 130G and 337C For the purposes of sections 130 , 130A , 130B , 130C , 130D , 130E , 130F , 130G and 337C – access, in relation to material, includes the display of the material by an electronic medium or any other output of the material by an electronic medium; child exploitation material means material that describes or depicts, in a way that a reasonable person would regard as being, in all the circumstances, offensive, a person who is or who appears to be under the age of 18 years – (a) engaged in sexual activity; or (b) in a sexual context; or (c) as the subject of torture, cruelty or abuse (whether or not in a sexual context); electronic medium means any thing that contains data from which text, images or sound can be generated; material includes any film, printed matter, electronic data and any other thing of any kind (including any computer image or other depiction); person includes part of a person; produce includes make, film, print, photograph and record. 2. Definition of attempts (1) An attempt to commit a crime is an act or omission done or made with intent to commit that crime, and forming part of a series of events which if it were not interrupted would constitute the actual commission of the crime. (2) The offence of attempting to commit a crime may be committed, although the offender voluntarily desists from the actual commission of the crime itself, and whether under the circumstances it was possible to commit such crime or not. (3) The point at which such a series of events as aforesaid begins depends upon the circumstances of each particular case. (4) Whether an act or omission is, or is not, too remote to constitute an attempt to commit a crime is a question of law. 2A. Consent (1) In the Code, unless the contrary intention appears, "consent" means free agreement. (2) Without limiting the meaning of "free agreement", and without limiting what may constitute "free agreement" or "not free agreement", a person does not freely agree to an act if the person – (a) does not say or do anything to communicate consent; or (b) agrees or submits because of force, or a reasonable fear of force, to him or her or to another person; or (c) agrees or submits because of a threat of any kind against him or her or against another person; or (d) agrees or submits because he or she or another person is unlawfully detained; or (e) agrees or submits because he or she is overborne by the nature or position of another person; or (f) agrees or submits because of the fraud of the accused; or (g) is reasonably mistaken about the nature or purpose of the act or the identity of the accused; or (h) is asleep, unconscious or so affected by alcohol or another drug as to be unable to form a rational opinion in respect of the matter for which consent is required; or (i) is unable to understand the nature of the act. (2A) Without limiting the application of subsection (2) to an act of sexual intercourse, a person does not freely agree to an act of sexual intercourse with another person if the person says or does anything to communicate to the other person that a condom must be used for that sexual intercourse and the other person intentionally – (a) does not use a condom; or (b) tampers with the condom; or (c) removes the condom – before or during the sexual intercourse. (3) If a person, against whom a crime is alleged to have been committed under chapters XIV or XX , suffers grievous bodily harm as a result of, or in connection with, such a crime, the grievous bodily harm so suffered is evidence of the lack of consent on the part of that person unless the contrary is shown. 2B. Sexual intercourse (1) In this Code – sexual intercourse means – (a) the penetration, to the least degree, of a person's vagina, genitalia, anus or mouth by a penis; or (b) the penetration, to the least degree, of a person's vagina, genitalia or anus by a body part of a person other than a penis; or (c) the penetration, to the least degree, of a person's vagina, genitalia or anus by an object held or manipulated by, or attached to, another person; or (d) the continuation of an act of penetration referred to in paragraph (a), (b) or (c) of this definition. (2) In this section – penetration does not include penetration carried out for a proper medical purpose, for the purposes of hygiene or for any purpose that is authorised by law. Chapter II - Persons Subject to Punishment for a Crime 3. Which parties to crimes to be deemed principals in the first degree (1) Where a crime is committed, each of the following persons is deemed to be a party to, and to be guilty of, the crime, and may be charged with actually committing it: (a) every person who actually commits the crime; (b) every person who does any act or makes any omission for the purpose of enabling or aiding another person to commit the crime; (c) every person who abets another person in committing the crime; (d) every person who instigates any other person to commit the crime. (2) Any person who instigates another to do any act or make any omission of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted a crime on his part, is guilty of the same crime as if he had himself done the act or made the omission; and may be charged with himself committing that crime. 4. Crimes committed in prosecution of common purpose Where 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose a crime is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the crime. 5. In case of instigators, mode of execution immaterial Where a person instigates another to commit a crime, and a crime is actually committed after such instigation by the person instigated, it is immaterial whether the crime actually committed is the same as that instigated or not, or whether the crime is committed in the manner suggested or not; provided in either case that the facts constituting the crime actually committed are a probable consequence of carrying out the instigation. In any such case the instigator is deemed to have himself committed the crime actually committed. 6. Accessories after the fact: When wives and husbands not so (1) A person who receives or assists another who is, to his knowledge, guilty of a crime, in order to enable him to escape punishment, is said to become an accessory after the fact to such crime. (2) A married woman does not become an accessory after the fact to a crime of which her husband is guilty, by receiving or assisting him in order to enable him to escape punishment; nor by receiving or assisting, in her husband's presence and by his authority, another person who is guilty of a crime in the commission of which her husband has taken part, in order to enable that other person to escape punishment; nor does a husband become accessory after the fact to a crime of which his wife is guilty by receiving or assisting her in order to enable her to escape punishment. Chapter III - Application of Criminal Law 7. Effect of changes in statute law (1) No person shall be punished as for a crime if at the time of his trial the act or omission with which he is charged no longer constitutes a crime. (2) If the law in force when a crime was committed differs from that in force at the time of the conviction therefor, the offender shall not be punished to any greater extent than was authorized by the former law, or than is authorized by the latter law. 8. . . . . . . . . 9. Instigation in this State of crimes committed elsewhere (1) Any person who in this State instigates another to do an act or make an omission outside this State, which act or omission would constitute a crime on his part both in this State, if done or made by him here, and in the place where it occurs, if done or made by him there – is guilty of the same crime as if he had himself done the act or made the omission in this State, but the punishment shall not exceed that provided by the law in force in the place where the act or omission was done or made. (2) No person shall be prosecuted under the provisions of this section except at the request of the Government of the State having jurisdiction where such act or omission is done or made. 10. Military and naval forces Officers and men of the military and naval forces are at all times subject to the provisions of the Code. 11. Person not to be twice punished for same crime Where a person is punishable under the Code, and also under any other statute, or under 2 or more sections of the Code or of any other statute, he may be tried and punished under the Code or such other statute or under either of such sections, as the case may be; but he shall not be punished twice in respect of the same act or omission, unless his act or omission renders him guilty of unlawfully causing the death of any person, and such death occurs after he has been once punished. Chapter IV - Criminal Responsibility 12. Ignorance of law The fact that an offender is ignorant of the law is not an excuse for any offence committed by him, but it may be relevant to the question whether or not an act or omission which would constitute an offence if accompanied by a certain intention or state of mind was in fact accompanied by that intention or state of mind. 13. Intention and motive (1) No person shall be criminally responsible for an act, unless it is voluntary and intentional; nor, except as hereinafter expressly provided, for an event – (a) that the person does not intend or foresee as a possible consequence; and (b) that an ordinary person would not reasonably foresee as a possible consequence. (1A) However, under subsection (1)(b) , a person is not excused from criminal responsibility for death, or grievous bodily harm, that results to a victim because of a defect, weakness or abnormality of the victim. (2) Except as otherwise expressly provided, no person shall be criminally responsible for an omission, unless it is intentional. (3) Any person who with intent to commit an offence does any act or makes any omission which brings about an unforeseen result which, if he had intended it, would have constituted his act or omission some other offence, shall, except as otherwise provided, incur the same criminal responsibility as if he had effected his original purpose. (4) Except where it is otherwise expressly provided, the motive by which a person is induced to do any act or make any omission is immaterial. 14. Mistake of fact Whether criminal responsibility is entailed by an act or omission done or made under an honest and reasonable, but mistaken, belief in the existence of any state of facts the existence of which would excuse such act or omission, is a question of law, to be determined on the construction of the statute constituting the offence. 14A. Mistake as to consent in certain sexual offences (1) In proceedings for an offence against section 124 , 125B , 127 or 185 , a mistaken belief by the accused as to the existence of consent is not honest or reasonable if the accused – (a) was in a state of self-induced intoxication and the mistake was not one which the accused would have made if not intoxicated; or (b) was reckless as to whether or not the complainant consented; or (c) did not take reasonable steps, in the circumstances known to him or her at the time of the offence, to ascertain that the complainant was consenting to the act. (2) In proceedings for an offence of attempting to commit an offence against section 124 , 125B or 185 , absence of intention to commit the attempted offence is not a defence if it is established that the absence of intent was due to – (a) self-induced intoxication; or (b) a failure to take reasonable steps in the circumstances known to the accused at the time of the offence to ascertain that the complainant would have consented to the act constituting the offence against section 124 , 125B or 185 . 14B. Mistake as to age of victim in relation to certain sexual offences (1) In this section – relevant offence means – (a) an offence against section 124 , 125B , 125C , 125D or 127 ; and (b) an offence of attempting to commit an offence against section 124 , 125B , 125C , 125D or 127 . (2) In proceedings for a relevant offence, by an accused, in respect of a person who is under the age of 13 years, a mistaken belief by the accused as to the age of the person does not excuse the accused from criminal responsibility for any act or omission done or made under such a mistaken belief. (3) In proceedings for a relevant offence, by an accused, in respect of a person who is under the age of 17 years, a mistaken belief by the accused as to the age of the person is not honest or reasonable if – (a) the accused did not take all reasonable steps to ascertain the age of the person; or (b) the accused was in a state of self-induced intoxication and the mistake was not one which the accused would have made if not intoxicated. (4) For the avoidance of doubt, in proceedings for a relevant offence, by an accused, in respect of a person who is under the age of 17 years but not under the age of 13 years, an honest and reasonable but mistaken belief by the accused as to the age of the person may be relied on for the purpose of a defence referred to in section 124(3) , section 125B(3) , section 125C(4) , section 125D(5) or section 127(2) . 15. Presumption of sanity Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved. 16. Insanity (1) A person is not criminally responsible for an act done or an omission made by him – (a) when afflicted with mental disease to such an extent as to render him incapable of – (i) understanding the physical character of such act or omission; or (ii) knowing that such act or omission was one which he ought not to do or make; or (b) when such act or omission was done or made under an impulse which, by reason of mental disease, he was in substance deprived of any power to resist. (2) The fact that a person was, at the time at which he is alleged to have done an act or made an omission, incapable of controlling his conduct generally, is relevant to the question whether he did such act or made such omission under an impulse which by reason of mental disease he was in substance deprived of any power to resist. (3) A person whose mind at the time of his doing an act or making an omission is affected by a delusion on some specific matter, but who is not otherwise exempted from criminal responsibility under the foregoing provisions of this section, is criminally responsible for the act or omission to the same extent as if the fact which he was induced by such delusion to believe to exist really existed. (4) For the purpose of this section the term mental disease includes natural imbecility. 17. Intoxication (1) The provisions of section 16 shall apply to a person suffering from disease of the mind caused by intoxication. (2) Evidence of such intoxication as would render the accused incapable of forming the specific intent essential to constitute the offence with which he is charged shall be taken into consideration with the other evidence in order to determine whether or not he had that intent. (3) Evidence of intoxication not amounting to any such incapacity as aforesaid shall not rebut the presumption that a person intends the natural and probable consequences of his acts. 18. Immature age (1) No act or omission done or made by a person under 10 years of age is an offence. (2) No act or omission done or made by a person under 14 years of age is an offence unless it be proved that he had sufficient capacity to know that the act or omission was one which he ought not to do or make. (3) . . . . . . . . 19. Judicial officers A judicial officer is not criminally responsible for anything done or omitted to be done by him in good faith in the exercise of his judicial functions, although the act done is in excess of his judicial authority, or although he is bound to do the act omitted to be done. 20. When compulsion a defence (1) Except as provided by section 64 , compulsion by threats of immediate death or grievous bodily harm, from a person actually present at the commission of the offence, shall be an excuse for the commission, by a person subject to such threats, and who believes that such threats will be executed, and who is not a party to any association or conspiracy the being a party to which rendered him subject to compulsion, of any offence other than treason, murder, piracy, offences deemed to be piracy, attempting to murder, rape, forcible abduction, aggravated armed robbery, armed robbery, aggravated robbery, robbery, causing grievous bodily harm, and arson. (2) A married woman shall be in the same position as regards compulsion by her husband as if she were unmarried. 21. Execution of sentences, process, and warrants to arrest or detain declared lawful (1) It is lawful for a person who is