Criminal Code

1 About the endnotes 229

2 Abbreviation key 229

Page contents 14 Criminal Code 2002 3 Legislation history 230 4 Amendment history 239 5 Earlier republications 264

An Act relating to the criminal law, and for other purposes

1 Name of Act This Act is the Criminal Code 2002.

3 Dictionary The dictionary at the end of this Act is part of this Act. Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere in this Act. For example, the signpost definition ‘conduct—see section 13.’ means that the expression ‘conduct’ is defined in that section. Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

4 Notes A note included in this Act is explanatory and is not part of this Act. Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

5 Codification (1) The only offences against territory laws are the offences created under this Act or any other Act. Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation Act, s 104). (2) This section does not apply until the application date. (3) Subsection (2) and this subsection expire on the application date.

Purpose and application—ch 2 Part 2.1

Chapter 2 General principles of criminal

6 Purpose—ch 2 (1) The purpose of this chapter is to codify general principles of criminal responsibility under territory laws. (2) It contains all the general principles of criminal responsibility that apply to any offence, irrespective of how the offence is created.

7 Application—ch 2 This chapter applies to all offences against this Act and all other offences against territory laws.

8 Delayed application of ch 2 to certain offences (1) Despite section 7, the provisions of this chapter (other than the applied provisions) do not apply to a pre-2003 offence unless— (a) the offence is omitted and remade (with or without changes); or (b) an Act or subordinate law expressly provides for the provisions to apply to the offence. (2) To remove any doubt, a power to make subordinate laws for an Act includes power to make subordinate laws applying this chapter to, or displacing the application of subsection (1) to, offences against subordinate laws under that Act. (3) In interpreting the applied provisions in relation to an offence, the other provisions of this Act may be considered.

omitted and remade—an offence is not omitted and remade if it is amended without being omitted and remade. pre-2003 offence means an offence in force before 1 January 2003. (5) This section expires on the application date.

10 Definitions—applied provisions and application date application date means a date declared by the Minister. applied provisions means the following provisions of this chapter: • section 15 (5) (which deals with evidence of self-induced intoxication) • division 2.3.1 (Lack of capacity—children) • division 2.3.2 (Lack of capacity—mental impairment) • division 2.3.3 (Intoxication) • part 2.4 (Extensions of criminal responsibility) • part 2.5 (Corporate criminal responsibility) • part 2.6 (Proof of criminal responsibility) • part 2.7 (Geographical application). Note Div 2.3.2 and s 66 (2) (d) became applied provisions on the commencement of the Criminal Code (Mental Impairment) Amendment Act 2006. Pt 2.5 became an applied provision on 9 April 2004. The other applied provisions have been applied provisions since the commencement of the Code on 1 January 2003. (2) A declaration under subsection (1) is a notifiable instrument. (3) This section expires on the application date.

General—pt 2.2 Division 2.2.1

Division 2.2.1 General—pt 2.2

11 Elements (1) An offence consists of physical elements and fault elements. (2) However, the law that creates the offence may provide that there is no fault element for some or all of the physical elements. (3) The law that creates the offence may provide different fault elements for different physical elements.

12 Establishing guilt of offences (1) A person must not be found guilty of committing an offence unless the following is proved: (a) the existence of the physical elements that are, under the law creating the offence, relevant to establishing guilt; (b) for each of the physical elements for which a fault element is required—the fault element or 1 of the fault elements for the physical element. Note 1 See pt 2.6 on proof of criminal responsibility. Note 2 See pt 2.7 on geographical jurisdiction. (2) However, unless the law creating the offence otherwise expressly provides, a person can be found guilty of committing the offence even though, when carrying out the conduct required for the offence, the person is mistaken about, or ignorant of, the existence or content of a law that creates the offence. Note Create, in relation to an offence, is defined in the dictionary.

13 Definitions—conduct and engage in conduct In this Act: conduct means an act, an omission to do an act or a state of affairs. Note Section 363A (Definitions—pt 3.8A) affects the meaning of conduct. engage in conduct means— (a) do an act; or (b) omit to do an act.

14 Physical elements A physical element of an offence may be— (a) conduct; or (b) a result of conduct; or (c) a circumstance in which conduct, or a result of conduct, happens.

15 Voluntariness (1) Conduct can only be a physical element if it is voluntary. (2) Conduct is voluntary only if it is a product of the will of the person whose conduct it is. Examples of conduct that is not voluntary 1 a spasm, convulsion or other unwilled bodily movement 2 an act done during sleep or unconsciousness 3 an act done during impaired consciousness depriving the person of the will to act (3) An omission to do an act is voluntary only if the act omitted is an act that the person can do.

Fault elements Division 2.2.3 (4) If the conduct required for an offence consists only of a state of affairs, the state of affairs is voluntary only if it is a state of affairs over which the person is capable of exercising control. (5) Evidence of self-induced intoxication cannot be considered in deciding whether conduct is voluntary. Note For when intoxication is self-induced, see s 30.

16 Omissions An omission to do an act can only be a physical element if— (a) the law creating the offence makes it a physical element; or (b) the law creating the offence impliedly provides that the offence is committed by an omission to do an act that there is a duty to do under a territory law or a law of a State or the Commonwealth. Note Law, of the Territory, includes the common law (see Legislation Act, dict, pt 1).

17 Fault elements (1) A fault element for a particular physical element may be intention, knowledge, recklessness or negligence. (2) Subsection (1) does not prevent a law that creates an offence from providing other fault elements for a physical element of the offence.

18 Intention (1) A person has intention in relation to conduct if the person means to engage in the conduct. (2) A person has intention in relation to a result if the person means to bring it about or is aware that it will happen in the ordinary course of events.

(3) A person has intention in relation to a circumstance if the person believes that it exists or will exist.

19 Knowledge A person has knowledge of a result or circumstance if the person is aware that it exists or will exist in the ordinary course of events.

20 Recklessness (1) A person is reckless in relation to a result if— (a) the person is aware of a substantial risk that the result will happen; and (b) having regard to the circumstances known to the person, it is unjustifiable to take the risk. (2) A person is reckless in relation to a circumstance if— (a) the person is aware of a substantial risk that the circumstance exists or will exist; and (b) having regard to the circumstances known to the person, it is unjustifiable to take the risk. (3) The question whether taking a risk is unjustifiable is a question of fact. (4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness satisfies the fault element.

Cases where fault elements are not required Division 2.2.4

21 Negligence A person is negligent in relation to a physical element of an offence if the person’s conduct merits criminal punishment for the offence because it involves— (a) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and (b) such a high risk that the physical element exists or will exist.

22 Offences that do not provide fault elements (1) If the law creating an offence does not provide a fault element for a physical element that consists only of conduct, intention is the fault element for the physical element. (2) If the law creating an offence does not provide a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for the physical element. Division 2.2.4 Cases where fault elements are not required

23 Strict liability (1) If a law that creates an offence provides that the offence is a strict liability offence— (a) there are no fault elements for any of the physical elements of the offence; and (b) the defence of mistake of fact under section 36 (Mistake of fact—strict liability) is available. (2) If a law that creates an offence provides that strict liability applies to a particular physical element of the offence— (a) there are no fault elements for the physical element; and

Division 2.2.4 Cases where fault elements are not required (b) the defence of mistake of fact under section 36 is available in relation to the physical element. (3) The existence of strict liability does not make any other defence unavailable.

24 Absolute liability (1) If a law that creates an offence provides that the offence is an absolute liability offence— (a) there are no fault elements for any of the physical elements of the offence; and (b) the defence of mistake of fact under section 36 (Mistake of fact—strict liability) is not available. (2) If a law that creates an offence provides that absolute liability applies to a particular physical element of the offence— (a) there are no fault elements for the physical element; and (b) the defence of mistake of fact under section 36 is not available in relation to the physical element. (3) The existence of absolute liability does not make any other defence unavailable.

Lack of capacity—children Division 2.3.1 Part 2.3 Circumstances where there is no criminal responsibility Division 2.3.1 Lack of capacity—children 25 Children under 14—criminal responsibility (1) A child under 14 years old is not criminally responsible for an (2) However, a child who is 12 years old or older, but under 14 years old, can be criminally responsible for an offence mentioned in schedule 1 (a schedule offence) but only if the child knows that their conduct is wrong. (3) A reference to a schedule offence does not include a reference to— (a) an offence against part 2.4 (Extensions of criminal responsibility) that relates to the schedule offence other than section 46 (Commission by proxy); or (b) an offence against section 717 (Accessory after the fact) that relates to the schedule offence.

26 Children 12 and over but under 14—knowledge that conduct wrong (1) The question of whether a child who is 12 years old or older, but under 14 years old, knows that their conduct is wrong is a question of fact. (2) The burden of proving that a child knows that their conduct is wrong is on the prosecution.

27 Definition—mental impairment mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder. mental illness is an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition (a reactive condition) resulting from the reaction of a healthy mind to extraordinary external stimuli. (3) However, a reactive condition may be evidence of a mental illness if it involves some abnormality and is prone to recur.

28 Mental impairment and criminal responsibility (1) A person is not criminally responsible for an offence if, when carrying out the conduct required for the offence, the person was suffering from a mental impairment that had the effect that— (a) the person did not know the nature and quality of the conduct; or (b) the person did not know that the conduct was wrong; or (c) the person could not control the conduct. (2) For subsection (1) (b), a person does not know that conduct is wrong if the person cannot reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person, is wrong. (3) The question whether a person was suffering from a mental impairment is a question of fact.

Intoxication Division 2.3.3 (4) A person is presumed not to have been suffering from a mental impairment that had an effect mentioned in subsection (1). (5) The presumption is displaced only if it is proved on the balance of probabilities (by the prosecution or defence) that the person was suffering from a mental impairment that had an effect mentioned in subsection (1). (6) The prosecution may rely on this section only if the court gives leave. (7) If the trier of fact is satisfied that a person is not criminally responsible for an offence only because of mental impairment, it must— (a) for an offence dealt with before the Supreme Court—return or enter a special verdict that the person is not guilty of the offence because of mental impairment; or (b) for any other offence—find the person not guilty of the offence because of mental impairment.

29 Mental impairment and other defences (1) A person cannot rely on a mental impairment to deny voluntariness or the existence of a fault element, but may rely on mental impairment to deny criminal responsibility. (2) If the trier of fact is satisfied that a person carried out conduct because of a delusion caused by a mental impairment, the delusion itself cannot be relied on as a defence, but the person may rely on the mental impairment to deny criminal responsibility.

30 Intoxication—interpretation fault element of basic intent means a fault element of intention for a physical element that consists only of conduct.

intoxication means intoxication because of the influence of alcohol, a drug or any other substance. (2) For this Act, intoxication is self-induced unless it came about— (a) involuntarily; or (b) because of fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force; or (c) from the use of a drug for which a prescription is required and that was used in accordance with the directions of the doctor or dentist who prescribed it; or (d) from the use of a drug for which no prescription is required and that was used for a purpose, and in accordance with the dosage level, recommended by the manufacturer. (3) However, subsection (2) (c) and (d) does not apply if the person using the drug knew, or had reason to believe, when the person took the drug that the drug would significantly impair the person’s judgment or control.

31 Intoxication—offences involving basic intent (1) Evidence of self-induced intoxication cannot be considered in deciding whether a fault element of basic intent exists. Note A fault element of intention in relation to a result or circumstance is not a fault element of basic intent (see s 30 (1), def fault element of basic intent). (2) This section does not prevent evidence of self-induced intoxication being considered in deciding whether conduct was accidental. (3) This section does not prevent evidence of self-induced intoxication being considered in deciding whether a person had a mistaken belief about facts if, when carrying out the conduct making up the physical element of the offence, the person considered whether or not the facts existed.

Intoxication Division 2.3.3 (4) A person may be taken to have considered whether or not facts existed when carrying out conduct if— (a) the person had considered, on a previous occasion, whether the facts existed in the circumstances surrounding that occasion; and (b) the person honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as the circumstances surrounding the previous occasion.

32 Intoxication—negligence as fault element (1) If negligence is a fault element for a particular physical element of an offence, in deciding whether the fault element exists for a person who is intoxicated, regard must be had to the standard of a reasonable person who is not intoxicated. (2) However, if intoxication is not self-induced, regard must be had to the standard of a reasonable person intoxicated to the same extent as the person concerned.

33 Intoxication—relevance to defences (1) If any part of a defence is based on actual knowledge or belief, evidence of intoxication may be considered in deciding whether the knowledge or belief exists. (2) However, if— (a) each physical element of an offence has a fault element of basic intent; and (b) any part of a defence is based on actual knowledge or belief; evidence of self-induced intoxication cannot be considered in deciding whether the knowledge or belief exists.

(3) If any part of a defence is based on reasonable belief, in deciding whether the reasonable belief exists, regard must be had to the standard of a reasonable person who is not intoxicated. (4) If a person’s intoxication is not self-induced, in deciding whether any part of a defence based on reasonable belief exists, regard must be had to the standard of a reasonable person intoxicated to the same extent as the person concerned.

34 Involuntary intoxication A person is not criminally responsible for an offence if the person’s conduct making up the offence was as a result of intoxication that was not self-induced.

35 Mistake or ignorance of fact—fault elements other than negligence physical element for which there is a fault element other than negligence if— (a) when carrying out the conduct making up the physical element, the person is under a mistaken belief about, or is ignorant of, facts; and (b) the existence of the mistaken belief or ignorance negates a fault element applying to the physical element. (2) In deciding whether a person was under a mistaken belief about facts, or was ignorant of facts, the trier of fact may consider whether the mistaken belief or ignorance was reasonable in the circumstances.

Mistake and ignorance Division 2.3.4

36 Mistake of fact—strict liability physical element for which there is no fault element if— (a) when carrying out the conduct making up the physical element, the person considered whether or not facts existed, and was under a mistaken but reasonable belief about the facts; and (b) had the facts existed, the conduct would not have been an (2) A person may be taken to have considered whether or not facts existed when carrying out conduct if— (a) the person had considered, on a previous occasion, whether the facts existed in the circumstances surrounding that occasion; and (b) the person honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as the circumstances surrounding the previous occasion. Note Section 24 (Absolute liability) prevents this section applying to offences of absolute liability.

38 Claim of right physical element relating to property if— (a) when carrying out the conduct required for the offence, the person is under a mistaken belief about a proprietary or possessory right; and (b) the existence of the right would negate a fault element for any physical element of the offence. (2) A person is not criminally responsible for any other offence arising necessarily out of the exercise of a proprietary or possessory right that the person mistakenly believes to exist.

(3) This section does not negate criminal responsibility for an offence relating to the use of force against a person.

39 Intervening conduct or event A person is not criminally responsible for an offence that has a physical element to which absolute or strict liability applies if— (a) the physical element is brought about by someone else over whom the person has no control or by a non-human act or event over which the person has no control; and (b) the person could not reasonably have been expected to guard against the bringing about of the physical element.

40 Duress carries out the conduct required for the offence under duress. (2) A person carries out conduct under duress only if the person reasonably believes that— (a) a threat has been made that will be carried out unless an offence is committed; and (b) there is no reasonable way to make the threat ineffective; and (c) the conduct is a reasonable response to the threat. (3) However, the person does not carry out conduct under duress if the threat is made by or on behalf of a person with whom the person is voluntarily associating to carry out conduct of the kind required for the offence.

External factors Division 2.3.5

41 Sudden or extraordinary emergency carries out the conduct required for the offence in response to circumstances of sudden or extraordinary emergency. (2) This section applies only if the person reasonably believes that— (a) circumstances of sudden or extraordinary emergency exist; and (b) committing the offence is the only reasonable way to deal with the emergency; and (c) the conduct is a reasonable response to the emergency.

42 Self-defence carries out the conduct required for the offence in self-defence. (2) A person carries out conduct in self-defence only if— (a) the person believes the conduct is necessary— (i) to defend himself or herself or someone else; or (ii) to prevent or end the unlawful imprisonment of himself or herself or someone else; or (iii) to protect property from unlawful appropriation, destruction, damage or interference; or (iv) to prevent criminal trespass to land or premises; or (v) to remove from land or premises a person committing criminal trespass; and (b) the conduct is a reasonable response in the circumstances as the person perceives them.

(3) However, the person does not carry out conduct in self-defence if— (a) the person uses force that involves the intentional infliction of death or serious harm— (i) to protect property; or (ii) to prevent criminal trespass; or (iii) to remove a person committing criminal trespass; or (b) the person is responding to lawful conduct that the person knows is lawful. (4) Conduct is not lawful for subsection (3) (b) only because the person carrying it out is not criminally responsible for it.

43 Lawful authority A person is not criminally responsible for an offence if the conduct required for the offence is justified or excused under a law.

43A Lawful possession (1) A person is not criminally responsible for an offence of possessing a particular material or thing if— (a) the person is— (i) employed by, or appointed as a member of, a law enforcement or justice agency; or (ii) required to provide technical, professional or expert services to a law enforcement or justice agency; or (iii) a legal practitioner, or a person employed by or required to provide technical, professional or expert services to a legal practitioner; and

Lawful purpose Division 2.3.6 (b) the possession is— (i) for a law enforcement purpose; and (ii) reasonable in the circumstances for that purpose. (2) Possession of a particular material or thing is for a law enforcement purpose if the possession is necessary for, or of assistance in, any of the following: (a) enforcing a law of the Commonwealth, a State or Territory; (b) monitoring compliance with, or investigating a contravention of, a law of the Commonwealth, a State or Territory; (c) the administration of justice. Examples—law enforcement purpose 1 police investigation 2 giving legal advice or providing legal representation 3 carrying out analyses or tests for forensic reasons 4 judicial service (3) In determining a person’s criminal responsibility, the question of whether a person’s possession of a particular material or thing is for a law enforcement purpose is a question of fact.

Part 2.4 Extensions of criminal

44 Attempt (1) If a person attempts to commit an offence, the person commits the offence of attempting to commit that offence. (2) However, a person commits the offence of attempting to commit an offence only if the person carries out conduct that is more than merely preparatory to the commission of the offence attempted. (3) The question whether conduct is more than merely preparatory is a question of fact. (4) A person may be found guilty of attempting to commit an offence even though— (a) it was impossible to commit the offence attempted; or (b) the person committed the offence attempted. (5) For the offence of attempting to commit an offence, intention and knowledge are fault elements for each physical element of the offence attempted. Note Only 1 of the fault elements of intention or knowledge needs to be established for each physical element of the offence attempted (see s 12 (Establishing guilt of offences)). (6) However, any special liability provisions that apply to an offence apply also to the offence of attempting to commit the offence. (7) Any defence, procedure, limitation or qualifying provision applying to an offence applies to the offence of attempting to commit the (8) If a person is found guilty of attempting to commit an offence, the person cannot later be charged with committing the offence.

(9) The offence of attempting to commit an offence is punishable as if the offence attempted had been committed. (10) This section does not apply to an offence against section 45 or section 48 (Conspiracy).

45 Complicity and common purpose (1) A person is taken to have committed an offence if the person aids, abets, counsels, procures, or is knowingly concerned in or a party to, the commission of the offence by someone else. (2) However, the person commits the offence because of this section only if— (a) either— (i) the person’s conduct in fact aids, abets, counsels, or procures the commission of the offence by the other person; or (ii) as a result of the person’s conduct, the person in fact is knowingly concerned in or a party to the commission of the offence by the other person; and (b) when carrying out the conduct, the person either— (i) intends the conduct to aid, abet, counsel, procure, or result in the person being knowingly concerned in or a party to, the commission of any offence (including its fault elements) of the type committed by the other person; or (ii) intends the conduct to aid, abet, counsel, procure, or result in the person being knowingly concerned in or a party to, the commission of an offence by the other person and is reckless about the commission of the offence (including its fault elements) in fact committed by the other person. (3) To remove any doubt, the person is taken to have committed the offence only if the other person commits the offence.

(4) Despite subsection (2), any special liability provisions that apply to an offence apply also to the offence of aiding, abetting, counselling, commission of the offence. (5) A person must not be found guilty of aiding, abetting, counselling, commission of an offence if, before the offence was committed, the person— (a) ended the person’s involvement; and (b) took all reasonable steps to prevent the commission of the (6) A person may be found guilty of aiding, abetting, counselling, commission of an offence even if the person who committed the offence is not prosecuted or found guilty. (7) To remove any doubt, if a person is taken to have committed an (8) If the trier of fact is satisfied beyond reasonable doubt that a defendant committed an offence because of this section or otherwise than because of this section but cannot decide which, the trier of fact may nevertheless find the defendant guilty of the offence.

45A Joint commission (1) A person is taken to have committed an offence if— (a) the person and at least 1 other person enter into an agreement to commit an offence; and

(b) either— (i) an offence is committed in accordance with the agreement; or (ii) an offence is committed in the course of carrying out the agreement. (2) For subsection (1) (b) (i), an offence is committed in accordance with an agreement if— (a) the conduct of 1 or more parties in accordance with the agreement makes up the physical elements consisting of conduct of an offence (the joint offence) of the same type as the offence agreed to; and (b) to the extent that a physical element of the joint offence consists of a result of conduct—the result arises from the conduct engaged in; and (c) to the extent that a physical element of the joint offence consists of a circumstance—the conduct engaged in, or a result of the conduct engaged in, happens in the circumstance. (3) For subsection (1) (b) (ii), an offence is committed in the course of carrying out an agreement if a person is reckless about the commission of an offence (the joint offence) that another person in fact commits in the course of carrying out the agreement. (4) A person commits an offence because of this section only if the person and at least 1 other party to the agreement intend that an offence will be committed under the agreement. (5) An agreement— (a) may consist of a non-verbal understanding; and (b) may be entered into before, or at the same time as, the conduct making up any of the physical elements of the joint offence was engaged in.

(6) A person must not be found guilty of an offence because of this section if, before the conduct making up any of the physical elements of the joint offence concerned was engaged in, the person— (a) ended the person’s involvement; and (b) took all reasonable steps to prevent the conduct from being engaged in. (7) A person may be found guilty of an offence because of this section even if— (a) another party to the agreement is not prosecuted or found guilty; or (b) the person was not present when any of the conduct making up the physical elements of the joint offence was engaged in. (8) Any special liability provisions that apply to the joint offence apply also for the purposes of deciding whether a person commits the offence because of the operation of this section. (9) To remove any doubt, if a person is taken to have committed an

46 Commission by proxy (1) A person is taken to have committed an offence if— (a) the person procures someone else to engage in conduct that (whether or not together with conduct engaged in by the person) makes up the physical elements of the offence consisting of conduct; and (b) any physical element of the offence consisting of a circumstance exists; and (c) any physical element of the offence consisting of a result of the conduct happens; and

(d) when the person procured the other person to engage in the conduct, the person had a fault element applying to each physical element of the offence. (2) To remove any doubt, if a person is taken to have committed an

47 Incitement (1) If a person urges the commission of an offence (the offence incited), the person commits the offence of incitement. Maximum penalty: (a) if the offence incited is punishable by life imprisonment— imprisonment for 10 years, 1 000 penalty units or both; or (b) if the offence incited is punishable by imprisonment for 14 years or more (but not life imprisonment)—imprisonment for 7 years, 700 penalty units or both; or (c) if the offence incited is punishable by imprisonment for 10 years or more (but less than 14 years)—imprisonment for 5 years, 500 penalty units or both; or (d) if the offence incited is punishable by imprisonment for less than 10 years, either or both of the following: (i) the lesser of the maximum term of imprisonment for the offence incited and imprisonment for 3 years; (ii) 300 penalty units; or (e) if the offence incited is not punishable by imprisonment—the number of penalty units equal to the maximum number of penalty units applying to the offence incited.

(2) A person also commits the offence of incitement if the person urges another person to aid, abet, counsel, procure, be knowingly concerned in or a party to, the commission of an offence (the offence incited) by someone else. (3) However, the person commits the offence of incitement only if the person intends that the offence incited be committed. (4) Despite subsection (3), any special liability provisions that apply to an offence apply also to the offence of incitement to commit the (5) A person may be found guilty of the offence of incitement— (a) even if it was impossible to commit the offence incited; and (b) whether or not the offence incited was committed; and (c) even if the person incited was under the age of criminal responsibility for the offence incited. (6) Any defence, procedure, limitation or qualifying provision applying to an offence applies to the offence of incitement in relation to the (7) This section does not apply to an offence against section 44 (Attempt), section 48 (Conspiracy) or this section. (8) In this section: under the age of criminal responsibility—a person is under the age of criminal responsibility for an offence if the person is not criminally responsible under section 25 for the offence.

48 Conspiracy (1) If a person conspires with someone else to commit an offence (the offence conspired) punishable by imprisonment for longer than 1 year or by a fine of 200 penalty units or more (or both), the person commits the offence of conspiracy.

(2) However, the person commits the offence of conspiracy only if— (a) the person entered into an agreement with at least 1 other person; and (b) the person and at least 1 other party to the agreement intend that an offence be committed under the agreement; and (c) the person or at least 1 other party to the agreement commits an overt act under the agreement. (3) Despite subsection (2), any special liability provisions that apply to an offence apply also to the offence of conspiracy to commit the (4) The offence of conspiring to commit an offence is punishable as if the offence conspired had been committed. (5) A person may be found guilty of the offence of conspiracy even though— (a) it was impossible to commit the offence conspired; or (b) the person and each other party to the agreement is a corporation; or (c) each other party to the agreement is— (i) a person who is not criminally responsible; or (ii) a person for whose benefit or protection the offence exists; or (d) all other parties to the agreement are acquitted of the conspiracy (unless to find the person guilty would be inconsistent with their acquittal). (6) A person must not be found guilty of the offence of conspiracy to commit an offence if, before the commission of an overt act under the agreement, the person— (a) withdrew from the agreement; and

(b) took all reasonable steps to prevent the commission of the offence conspired. (7) A person for whose benefit or protection an offence exists cannot be found guilty of conspiracy to commit the offence. (8) Any defence, procedure, limitation or qualifying provision applying to an offence applies to the offence of conspiracy to commit the (9) A court may dismiss a charge of conspiracy if it considers that the interests of justice require it to dismiss the charge. (10) A proceeding for an offence of conspiracy must not be begun without the consent of the Attorney-General or the director of public prosecutions. (11) However, a person may be arrested for, charged with, or remanded in custody or on bail in relation to, an offence of conspiracy before the consent has been given.

Corporate criminal responsibility Part 2.5

49 General principles (1) This Act applies to corporations as well as individuals. Note A law that creates an offence applies to a corporation as well as to an individual (see Legislation Act, s 161). (2) The Act applies to corporations in the same way as it applies to individuals, but subject to the changes made by this part and any other changes necessary because criminal responsibility is being imposed on a corporation rather than an individual.

50 Physical elements A physical element of an offence consisting of conduct is taken to be committed by a corporation if it is committed by an employee, agent or officer of the corporation acting within the actual or apparent scope of his or her employment or within his or her actual or apparent authority.

51 Corporation—fault elements other than negligence (1) In deciding whether the fault element of intention, knowledge or recklessness exists for an offence in relation to a corporation, the fault element is taken to exist if the corporation expressly, tacitly or impliedly authorises or permits the commission of the offence. (2) The ways in which authorisation or permission may be established include— (a) proving that the corporation’s board of directors intentionally, knowingly or recklessly engaged in the conduct or expressly, tacitly or impliedly authorised or permitted the commission of the offence; or

(b) proving that a high managerial agent of the corporation intentionally, knowingly or recklessly engaged in the conduct or expressly, tacitly or impliedly authorised or permitted the commission of the offence; or (c) proving that a corporate culture existed within the corporation that directed, encouraged, tolerated or led to noncompliance with the contravened law; or (d) proving that the corporation failed to create and maintain a corporate culture requiring compliance with the contravened law. (3) Subsection (2) (b) does not apply if the corporation proves that it exercised appropriate diligence to prevent the conduct, or the authorisation or permission. (4) Factors relevant to subsection (2) (c) and (d) include— (a) whether authority to commit an offence of the same or a similar character had been given by a high managerial agent of the corporation; and (b) whether the employee, agent or officer of the corporation who committed the offence reasonably believed, or had a reasonable expectation, that a high managerial agent of the corporation would have authorised or permitted the commission of the (5) If recklessness is not a fault element for a physical element of an offence, subsection (2) does not enable the fault element to be proved by proving that the board of directors, or a high managerial agent, of the corporation recklessly engaged in the conduct or recklessly authorised or permitted the commission of the offence. board of directors, of a corporation, means the body exercising the corporation’s executive authority, whether or not the body is called the board of directors.

Corporate criminal responsibility Part 2.5 corporate culture, for a corporation, means an attitude, policy, rule, course of conduct or practice existing within the corporation generally or in the part of the corporation where the relevant conduct happens. high managerial agent, of a corporation, means an employee, agent or officer of the corporation whose conduct may fairly be assumed to represent the corporation’s policy because of the level of responsibility of his or her duties.

52 Corporation—negligence (1) This section applies if negligence is a fault element in relation to a physical element of an offence and no individual employee, agent or officer of a corporation has the fault element. (2) The fault element of negligence may exist for the corporation in relation to the physical element if the corporation’s conduct is negligent when viewed as a whole (that is, by aggregating the conduct of a number of its employees, agents or officers). Note The test of negligence for a corporation is that set out in s 21 (Negligence).

53 Corporation—mistake of fact—strict liability A corporation may only rely on section 36 (Mistake of fact—strict liability) in relation to the conduct that would make up an offence by the corporation if— (a) the employee, agent or officer of the corporation who carried out the conduct was under a mistaken but reasonable belief about facts that, had they existed, would have meant that the conduct would not have been an offence; and (b) the corporation proves that it exercised appropriate diligence to prevent the conduct.

54 Corporation—intervening conduct or event A corporation may not rely on section 39 (Intervening conduct or event) in relation to a physical element of an offence brought about by someone else if the other person is an employee, agent or officer of the corporation.

55 Evidence of negligence or failure to exercise appropriate diligence Negligence, or failure to exercise appropriate diligence, in relation to conduct of a corporation may be evidenced by the fact that the conduct was substantially attributable to— (a) inadequate corporate management, control or supervision of the conduct of 1 or more of the corporation’s employees, agents or officers; or (b) failure to provide adequate systems for giving relevant information to relevant people in the corporation.

Proof of criminal responsibility Part 2.6

56 Legal burden of proof—prosecution (1) The prosecution has the legal burden of proving every element of an offence relevant to the guilt of the person charged. Note See s 11 (Elements) on what elements are relevant to a person’s guilt. (2) The prosecution also has the legal burden of disproving any matter in relation to which the defendant has discharged an evidential burden of proof on the defendant. (3) In this Act: legal burden, in relation to a matter, means the burden of proving the existence of the matter.

57 Standard of proof—prosecution (1) A legal burden of proof on the prosecution must be discharged beyond reasonable doubt. (2) Subsection (1) does not apply if a law provides for a different standard of proof.

58 Evidential burden of proof—defence (1) Subject to section 59 (Legal burden of proof—defence), a burden of proof that a law imposes on a defendant is an evidential burden only. (2) A defendant who wishes to deny criminal responsibility by relying on a provision of part 2.3 (Circumstances where there is no criminal responsibility) has an evidential burden in relation to the matter.

(3) Subject to section 59, a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence (whether or not it accompanies the description of the offence) has an evidential burden in relation to the matter. 1 The XYZ Act 2002, section 10 (1) creates an offence of producing a false or misleading document. Section 10 (2) provides— (2) This section does not apply if the document is not false or misleading in a material particular. rely on the exception has an evidential burden that the document is not false 2 The XYZ Act 2002, section 10 (1) creates an offence of a person making a statement knowing that it omits something without which the statement is misleading. Section 10 (2) provides— (2) This section does not apply if the omission does not make the statement misleading in a material particular. rely on the exception has an evidential burden that the omission did not make the statement misleading in a material particular. 3 The XYZ Act 2002, section 10 (1) creates an offence of disclosing certain information about a restraining order. Section 10 (2) provides— (2) This section does not apply if the disclosure is made to a police officer. rely on the exception has an evidential burden that the disclosure was made to a police officer. (4) To remove any doubt, for a strict liability offence that allows the defence of reasonable excuse, a defendant has an evidential burden in relation to the defence. (5) The defendant no longer has the evidential burden in relation to a matter if evidence sufficient to discharge the burden is presented by the prosecution. (6) The question whether an evidential burden has been discharged is a question of law.

Proof of criminal responsibility Part 2.6 (7) In this Act: evidential burden, in relation to a matter, means the burden of presenting or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

59 Legal burden of proof—defence A burden of proof that a law imposes on the defendant is a legal burden only if the law expressly— (a) provides that the burden of proof in relation to the matter in question is a legal burden; or (b) requires the defendant to prove the matter; or (c) creates a presumption that the matter exists unless the contrary is proved. Example for par (b) The XYZ Act 2002, section 10 (1) creates an offence of exhibiting a film classified ‘R’ to a child. Section 10 (2) provides— (2) It is a defence to a prosecution for an offence against subsection (1) if the defendant proves that the defendant believed on reasonable grounds that the child was an adult. Section 10 (2) provides a defence to an offence against section 10 (1). A defendant who wishes to rely on the defence has a legal burden of proving that the defendant believed on reasonable grounds that the child was an adult.

60 Standard of proof—defence A legal burden of proof on the defendant must be discharged on the balance of probabilities.

61 Use of averments A law that allows the prosecution to make an averment (however expressed) does not allow the prosecution— (a) to aver any fault element of an offence; or (b) to make an averment in prosecuting for an offence that is directly punishable by imprisonment.

Geographical application Part 2.7

62 Application and effect—pt 2.7 (1) This part applies to all offences. (2) This part extends the application of a territory law that creates an offence beyond the territorial limits of the ACT (and Australia) if the required geographical nexus exists for the offence. (3) If a law that creates an offence provides for any geographical consideration for the offence, that provision prevails over any inconsistent provision of this part. Examples for s (3) 1 A law creating an offence may provide that the place of commission of the offence is (explicitly or by necessary implication) an element of the offence. 2 A law creating an offence may provide for its application outside the ACT and exclude (explicitly or by necessary implication) the requirement for a geographical nexus between the ACT and an element of the offence.

63 Interpretation—pt 2.7 (1) For this part, the required geographical nexus is the geographical nexus mentioned in section 64 (2). (2) For this part, the place where an offence is committed is the place where any of the physical elements of the offence happen. (3) For this part, the place where an offence has an effect includes— (a) any place whose peace, welfare or good government is threatened by the offence; and (b) any place where the offence would have an effect (or would cause such a threat) if the offence were committed.

64 Extension of offences if required geographical nexus exists (1) An offence against a law is committed if— (a) disregarding any geographical considerations, all elements of the offence exist; and (b) a geographical nexus exists between the ACT and the offence. (2) A geographical nexus exists between the ACT and an offence if— (a) the offence is committed completely or partly in the ACT, whether or not the offence has any effect in the ACT; or (b) the offence is committed completely outside the ACT (whether or not outside Australia) but has an effect in the ACT.

65 Geographical application—double criminality (1) This part applies to an offence committed partly in the ACT and partly in a place outside the ACT (whether or not outside Australia), even if it is not also an offence in that place. (2) This part applies to an offence committed completely outside the ACT (whether or not outside Australia) only if— (a) it is also an offence in the place where it is committed; or (b) it is not also an offence in that place, but the trier of fact is satisfied that the offence is such a threat to the peace, welfare or good government of the ACT that it justifies criminal punishment in the ACT.

66 Geographical application—procedure (1) The required geographical nexus is conclusively presumed for an offence unless rebutted under subsection (2) or (4).

Geographical application Part 2.7 (2) If a person charged with an offence disputes the existence of the required geographical nexus for the offence, the following provisions apply: (a) the court must proceed with the trial of the offence in the usual way; (b) if, at the end of the trial, the trier of fact is satisfied on the balance of probabilities that the required geographical nexus does not exist, it must make or return a finding to that effect, and the court must dismiss the charge; (c) however, if, disregarding any geographical considerations, the trier of fact would find the person not guilty of the offence (other than because of mental impairment), it must make or return a verdict of not guilty; (d) also, if, disregarding any geographical considerations, the trier of fact would find the person not guilty of the offence only because of mental impairment, it must make or return a verdict that the person is not guilty of the offence because of mental impairment. (3) This section applies to any alternative verdict available by law to the trier of fact in relation to another offence with which the person was not charged. (4) The trier of fact may make or return a finding of guilty in relation to the other offence (mentioned in subsection (3)) unless satisfied on the balance of probabilities that the required geographical nexus does not exist for the other offence. (5) If the issue of whether the required geographical nexus exists for an offence is raised before the trial (including at a special hearing under the Crimes Act 1900, section 316), the issue must be reserved for consideration at the trial.

67 Geographical application—suspicion etc that offence committed (1) This section applies if a person may exercise a function under a law on reasonable suspicion or belief that an offence has been committed. (2) The person may exercise the function if the person suspects or believes, as the case requires, on reasonable grounds that all the elements required for the offence exist. (3) Subsection (2) applies whether or not the person suspects or believes, or has any ground to suspect or believe, that the required geographical nexus exists for the offence.

Interpretation for ch 3 Part 3.1

Chapter 3 Theft, fraud, bribery and related offences

300 Definitions—ch 3 belongs, in relation to property—see section 301. cause a loss means cause a loss to someone else. dishonest means— (a) dishonest according to the standards of ordinary people; and (b) known by the defendant to be dishonest according to the standards of ordinary people. Note 1 The following provisions affect the meaning of dishonest: • s 303 (Dishonesty for pt 3.2) • s 327 (Dishonesty for div 3.3.2) • s 354 (Dishonesty for pt 3.7). Note 2 In a prosecution, dishonesty is a matter for the trier of fact (see s 302). duty, of a person who is a public official, means a function that— (a) is given to the person as a public official; or (b) the person holds himself or herself out as having as a public official. gain means— (a) a gain in property, whether temporary or permanent; or (b) a gain by way of the supply of services; and includes keeping what one has.

loss means a loss in property, whether temporary or permanent, and includes not getting what one might get. obtain includes— (a) obtain for someone else; and (b) induce a third person to do something that results in someone else obtaining. Note The following provisions affect the meaning of obtain: • s 314 (9) (Receiving—meaning of stolen property) • s 328 (Meaning of obtains for div 3.3.2) • s 335 (6) (Obtaining financial advantage from the Territory) • s 355 (Meaning of obtain for pt 3.7) • s 363D (Meaning of obtain—pt 3.8A). public duty means a duty of a public official. public official means a person having public official functions, or acting in a public official capacity, and includes the following: (a) a territory public official; (b) a member of the legislature of the Commonwealth, a State or (c) a member of the executive of the Commonwealth, a State or (d) a member of the judiciary, the magistracy or a tribunal of the (e) a registrar or other officer of a court or tribunal of the (f) an individual who occupies an office under a law of the government;

Interpretation for ch 3 Part 3.1 (g) an officer or employee of the Commonwealth, a State, another Territory or a local government; (h) an officer or employee of an authority or instrumentality of the government; (i) an individual who is otherwise in the service of the Commonwealth, a State, another Territory or a local government (including service as a member of a military or police force or service); (j) a contractor who exercises a function or performs work for the government. services includes any rights (including rights in relation to, and interests in, property), benefits, privileges or facilities, but does not include rights or benefits that are the supply of goods. supply includes— (a) in relation to goods—supply (or re-supply) by way of sale, exchange, lease, hire or hire-purchase; and (b) in relation to services—provide, grant and confer. territory public official means a person having public official functions for the Territory, or acting in a public official capacity for the Territory, and includes the following: (a) a member of the Legislative Assembly; (b) a person employed under the Legislative Assembly (Members’ Staff) Act 1989; (c) a Minister; (d) a judge, magistrate or tribunal member; (e) the registrar or other officer of a court or tribunal;

(f) a public servant; (g) an officer or employee of a territory authority or instrumentality; (h) a statutory office-holder or an officer or employee of a statutory office-holder; (i) a police officer; (j) a contractor who exercises a function or performs work for the Territory, a territory authority or instrumentality or a statutory office-holder; (k) an authorised person, or a territory service authorised person, under the Utilities Act 2000.

301 Person to whom property belongs for ch 3 (1) Property belongs to anyone having possession or control of it, or having any proprietary right or interest in it (other than an equitable interest arising only from an agreement to transfer or grant an interest, or from a constructive trust). (2) This section is subject to section 330 (Money transfers). Note Section 305 (Person to whom property belongs for pt 3.2) affects the meaning of belongs.

302 Dishonesty a matter for trier of fact In a prosecution for an offence against this chapter, dishonesty is a matter for the trier of fact.

Interpretation for pt 3.2 Division 3.2.1

303 Dishonesty for pt 3.2 (1) A person’s appropriation of property belonging to someone else is not dishonest if the person appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps. (2) However, subsection (1) does not apply if the person appropriating the property held it as trustee or personal representative. Note A defendant has an evidential burden in relation to the matters mentioned in s (1) and s (2) (see s 58 (3)). (3) A person’s appropriation of property belonging to someone else can be dishonest even if the person or another person is willing to pay for it.

304 Appropriation of property for pt 3.2 (1) Any assumption of the rights of an owner to ownership, possession or control of property, without the consent of a person to whom the property belongs, is an appropriation of the property. (2) If a person has come by property (innocently or not) without committing theft, subsection (1) applies to any later assumption of those rights without consent by keeping or dealing with it as owner. (3) If property is, or purports to be, transferred or given to a person acting in good faith, a later assumption by the person of rights the person believed the person was acquiring is not an appropriation of property because of any defect in the transferor’s title.

305 Person to whom property belongs for pt 3.2 (1) If property belongs to 2 or more people, a reference to the person to whom the property belongs is taken to be a reference to each of them. (2) If property is subject to a trust— (a) the person to whom the property belongs includes anyone who has a right to enforce the trust; and (b) an intention to defeat the trust is an intention to deprive any such person of the property. (3) Property of a corporation sole belongs to the corporation despite a vacancy in the corporation. (4) If a person (A) receives property from or on account of someone else (B) and is under a legal obligation to B to retain and deal with the property or its proceeds in a particular way, the property or proceeds belong to B, as against A. (5) If a person (A) gets property by someone else’s fundamental mistake and is under a legal obligation to make restoration (in whole or part) of the property, its proceeds or its value— (a) the property or its proceeds belong (to the extent of the obligation and as against A) to the person entitled to restoration (B); and (b) an intention not to make restoration is— (i) an intention to permanently deprive B of the property or proceeds; and (ii) an appropriation of the property or proceeds without B’s consent.

Interpretation for pt 3.2 Division 3.2.1 fundamental mistake, in relation to property, means— (a) a mistake about the identity of the person getting the property; or (b) a mistake about the essential nature of the property; or (c) a mistake about the amount of any money, if the person getting the money is aware of the mistake when getting the money. money includes anything that is equivalent to money. Examples of things equivalent to money 1 a cheque or other negotiable instrument 2 an electronic funds transfer

306 Intention of permanently depriving for pt 3.2 (1) A person (A) has the intention of permanently depriving someone else (B) of property belonging to B if— (a) A appropriates property belonging to B without meaning B to permanently lose the property; and (b) A intends to treat the property as A’s own to dispose of (2) For subsection (1), if A borrows or lends property belonging to B, the borrowing or lending may amount to treating the property as A’s own to dispose of regardless of B’s rights if, but only if, the borrowing or lending is for a period, and in circumstances, making it equivalent to an outright taking or disposal. (3) Without limiting this section, if— (a) A has possession or control (lawfully or not) of property belonging to B; and (b) A parts with the property under a condition about its return that A may not be able to carry out; and

(c) the parting is done for A’s own purposes and without B’s authority; the parting amounts to treating the property as A’s own to dispose of (4) This section does not limit the circumstances in which a person can be taken to have the intention of permanently depriving someone else of property.

307 General deficiency A person may be found guilty of theft of all or any part of a general deficiency in money or other property even though the deficiency is made up of a number of particular amounts of money or items of other property that were appropriated over a period.

308 Theft A person commits an offence (theft) if the person dishonestly appropriates property belonging to someone else with the intention of permanently depriving the other person of the property. Note For alternative verdict provisions applying to this offence, see s 370, s 371 and s 372.

309 Robbery A person commits an offence (robbery) if— (a) the person commits theft; and (b) when committing the theft, or immediately before or immediately after committing the theft, the person— (i) uses force on someone else; or

(ii) threatens to use force then and there on someone else; with intent to commit theft or to escape from the scene. Note Theft means an offence against s 308 or s 321.

310 Aggravated robbery A person commits an offence (aggravated robbery) if the person— (a) commits robbery in company with 1 or more people; or (b) commits robbery and, at the time of the robbery, has an offensive weapon with him or her. Note Robbery means an offence against s 309.

311 Burglary (1) A person commits an offence (burglary) if the person enters or remains in a building as a trespasser with intent— (a) to commit theft of any property in the building; or (b) to commit an offence that involves causing harm, or threatening to cause harm, to anyone in the building; or (c) to commit an offence in the building that— (i) involves causing damage to property; and (ii) is punishable by imprisonment for 5 years or longer. (2) In subsection (1) (b) and (c), offence includes an offence against a Commonwealth law.

(3) Absolute liability applies to subsection (1) (c) (ii). (4) For this section, a person is not a trespasser only because the person is permitted to enter or remain in the building— (a) for a purpose that is not the person’s intended purpose; or (b) because of fraud, misrepresentation or someone else’s mistake. building includes the following: (a) a part of any building; (b) a mobile home or caravan; (c) a structure (whether or not moveable), vehicle, or vessel, that is used, designed or adapted for residential purposes.

312 Aggravated burglary A person commits an offence (aggravated burglary) if the person— (a) commits burglary in company with 1 or more people; or (b) commits burglary and, at the time of the burglary, has an offensive weapon with him or her. Maximum penalty: 2 000 penalty units, imprisonment for 20 years

313 Receiving (1) A person commits an offence (receiving) if the person dishonestly receives stolen property, knowing or believing the property to be stolen. Note For an alternative verdict provision applying to receiving, see s 371.

(2) A person cannot be found guilty of both theft (or a related offence) and receiving in relation to the same property if the person retains custody or possession of the property. (3) For this section— (a) it is to be assumed that section 308 to section 312 and section 326 had been in force at all times before the commencement of this section; and (b) property that was appropriated or obtained before the commencement of this section, does not become stolen property unless the property was appropriated or obtained in circumstances that (apart from paragraph (a)) amounted to an offence against a territory law in force at that time. (e) obtaining property by deception.

314 Receiving—meaning of stolen property For section 313, property is stolen property if it is property obtained in a way that is an appropriation of property under section 304.

315 Going equipped for theft etc (1) A person commits an offence if the person, in any place other than the person’s home, has with the person an article with intent to use it in the course of or in relation to theft or a related offence. (e) an offence against section 318 (Taking etc motor vehicle without consent); (f) obtaining property by deception.

316 Going equipped with offensive weapon for theft etc (1) A person commits an offence if the person, in any place other than the person’s home, has with the person an offensive weapon with intent to use it in the course of or in relation to theft or a related

(d) aggravated burglary.

318 Taking etc motor vehicle without consent (a) dishonestly takes a motor vehicle belonging to someone else; and (b) does not have consent to take the vehicle from a person to whom it belongs. Note 1 Pt 2.3 (Circumstances where there is no criminal responsibility) provides for defences that apply to offences under the Code. These include the defence of lawful authority (see s 43). Note 2 For the meaning of dishonest, see s 300. (a) the person dishonestly drives or rides in or on a motor vehicle belonging to someone else; and (b) the vehicle was dishonestly taken by someone without the consent of a person to whom it belongs. Note For alternative verdict provisions applying to an offence against this section, see s 370.

319 Dishonestly taking territory property (1) A person (A) commits an offence if— (a) on a particular occasion, A dishonestly takes 1 or more items of property belonging to someone else; and (b) the other person is the Territory; and (c) A does not have consent to take the item or any of the items from a person who has the authority to consent; and (d) either— (i) the property has a replacement value or total replacement value of more than $500 when it is taken; or (ii) the absence of the item or any of the items from the custody, possession or control of the person who would otherwise have had custody, possession or control would be likely to cause substantial disruption to activities carried on by or for the Territory. (2) Absolute liability applies to subsection (1) (b) and (d). Territory includes the following: (a) a territory authority; (b) a territory-owned corporation; (c) a territory instrumentality that is not a territory authority or a territory-owned corporation.

320 Dishonestly retaining territory property (1) A person (A) commits an offence if— (a) on a particular occasion, A takes 1 or more items of property belonging to someone else; and (b) the other person is the Territory; and (c) A dishonestly retains any or all of the items; and (d) A does not have consent to retain the item or any of the items dishonestly retained from a person who has the authority to consent; and (e) either— (i) the property dishonestly retained had a replacement value or total replacement value of more than $500 when it was taken; or (ii) the absence of the item, or any of the items, dishonestly retained from the custody, possession or control of the person who would otherwise have had custody, possession or control is likely to cause substantial disruption to activities carried on by or for the Territory. (2) Absolute liability applies to subsection (1) (b) and (d).

321 Minor theft (1) A person commits an offence (also theft) if— (a) the person dishonestly appropriates property belonging to someone else with the intention of permanently depriving the other person of the property; and (b) the property has a replacement value of $2 000 or less when it is appropriated. (3) This section does not prevent a person being charged with an offence against section 308 (Theft) if the replacement value of the property appropriated is $2 000 or less.

322 Removal of articles on public exhibition (a) the person dishonestly removes an article from premises; and (b) the premises are at any time open to the public; and (c) the article is publicly exhibited, or kept for public exhibition, at the premises; and (d) the person does not have the consent to remove the article from a person entitled to give the consent. (2) Absolute liability applies to subsection (1) (b) and (c). (3) This section does not apply in relation to an article that is publicly exhibited, or kept for public exhibition, for the purpose of selling, or any other commercial dealing with, the article or articles of that kind.

premises includes any building or part of a building.

322A Making off without payment (a) the person knows he or she is required or expected to make immediate payment for goods or services supplied by someone else; and (b) the person dishonestly makes off— (i) without having paid the amount owing; and (ii) with intent to avoid payment of the amount owing. (2) This section does not apply in relation to a supply of goods or services that is contrary to law. immediate payment includes payment when collecting goods in relation to which a service has been supplied.

323 Making off without payment—minor offence (a) the person knows he or she is required or expected to make immediate payment for goods or services supplied by someone else; and (b) the person dishonestly makes off— (i) without having paid the amount owing; and (ii) with intent to avoid payment of the amount owing; and

(c) the amount owing is $2 000 or less. (3) This section does not apply in relation to a supply of goods or services that is contrary to law. (4) This section does not prevent a person being charged with an offence against section 322A (Making off without payment) if the amount owing is $2 000 or less. immediate payment includes payment when collecting goods in relation to which a service has been supplied.

324 Unlawful possession of stolen property (i) has property in the person’s possession; or (ii) has property in someone else’s possession; or (iii) has property in or on any premises (whether or not the premises belong to or are occupied by the person or the property is there for the person’s own use); or (iv) gives possession of property to someone who is not lawfully entitled to possession of it; and (b) the property is reasonably suspected of being stolen property or otherwise unlawfully obtained property.

(3) It is a defence to a prosecution for an offence against this section if the defendant proves that the defendant had no reasonable grounds for suspecting that the property concerned was stolen property or otherwise unlawfully obtained property. premises includes any aircraft, building, structure, vehicle or vessel, or any place (whether built on or not), and any part of an aircraft, building, structure, vehicle, vessel or place. stolen property means property obtained in a way that is an appropriation of property under section 304.

325 Definitions—pt 3.3 account means an account (including a loan account, credit card account or similar account) with a bank or other financial institution. deception means an intentional or reckless deception, whether by words or other conduct, and whether as to fact or law, and includes— (a) a deception about the intention of the person using the deception or anyone else; and (b) conduct by a person that causes a computer, a machine or an electronic device to make a response that the person is not authorised to cause it to do.

326 Obtaining property by deception A person commits an offence (obtaining property by deception) if the person, by deception, dishonestly obtains property belonging to someone else with the intention of permanently depriving the other person of the property. Note For alternative verdict provisions applying to obtaining property by deception, see s 371 and s 372.

327 Dishonesty for div 3.3.2 A person’s obtaining of property belonging to someone else can be dishonest even if the person or another person is willing to pay for it.

Obtaining property by deception Division 3.3.2

328 Meaning of obtains for div 3.3.2 (1) For this division, and for the application of section 313 (Receiving) to this division, a person obtains property if— (a) the person obtains ownership, possession or control of it for the person or someone else; or (b) the person enables ownership, possession or control of it to be retained by the person or someone else; or (c) the person induces a third person to pass ownership, possession or control of it to someone else; or (d) the person induces a third person to enable someone else to retain ownership, possession or control of it; or (e) section 330 (2) or (3) (Money transfers) applies. (2) The definition of obtain in section 300 does not apply to this division, or for the application of section 313 (Receiving) to this division.

329 Intention of permanently depriving—div 3.3.2 (1) A person (A) has the intention of permanently depriving someone else (B) of property belonging to B if— (a) A obtains property belonging to B without meaning B to permanently lose the property; and (b) A intends to treat the property as A’s own to dispose of (2) For subsection (1), if A borrows or lends property belonging to B, the borrowing or lending may amount to treating the property as A’s own to dispose of regardless of B’s rights if, but only if, the borrowing or lending is for a period, and in circumstances, making it equivalent to an outright taking or disposal.

(3) Without limiting this section, if— (a) A has possession or control (lawfully or not) of property belonging to B; and (b) A parts with the property under a condition about its return that A may not be able to carry out; and (c) the parting is done for A’s own purposes and without B’s authority; the parting amounts to treating the property as A’s own to dispose of (4) This section does not limit the circumstances in which a person can be taken to have the intention of permanently depriving someone else of property.

330 Money transfers (1) This section applies for this division and for the application of section 313 (Receiving) to this division. (2) If a person (A) causes an amount to be transferred from an account held by someone else (B) to an account held by A— (a) the amount is taken to have been property that belonged to B; and (b) A is taken to have obtained the property for A with the intention of permanently depriving B of the property. (3) If a person (A) causes an amount to be transferred from an account held by someone else (B) to an account held by a third person (C)— (a) the amount is taken to have been property that belonged to B; and (b) A is taken to have obtained the property for C with the intention of permanently depriving B of the property.

Other indictable offences for pt 3.3 Division 3.3.3 (4) An amount is transferred from an account (account 1) to another account (account 2) if— (a) a credit is made to account 2; and (b) a debit is made to account 1; and (c) the credit results from the debit or the debit results from the credit. (5) A person causes an amount to be transferred from an account if the person induces someone else to transfer the amount from the account (whether or not the other person is the account holder).

331 General deficiency for div 3.3.2 A person may be found guilty of an offence of obtaining property by deception involving all or any part of a general deficiency in money or other property even though the deficiency is made up of a number of particular amounts of money or items of other property that were obtained over a period.

332 Obtaining financial advantage by deception A person commits an offence if the person, by deception, dishonestly obtains a financial advantage from someone else.

333 General dishonesty obtaining a gain from someone else; and

causing a loss to someone else; and (4) Absolute liability applies to subsection (3) (b). (5) A person commits an offence if— (i) dishonestly causes a loss, or a risk of loss, to someone else; and (ii) knows or believes that the loss will happen or that there is a substantial risk of the loss happening; and (6) Absolute liability applies to subsection (5) (b). (7) A person commits an offence if— influencing a public official in the exercise of the official’s duty as a public official; and (b) the public official is a territory public official; and

Other indictable offences for pt 3.3 Division 3.3.3 (c) the duty is a duty as a territory public official. (8) Absolute liability applies to subsection (7) (b) and (c). (9) In this section:

334 Conspiracy to defraud (1) A person commits an offence if the person conspires with someone else with the intention of dishonestly obtaining a gain from a third person. (2) A person commits an offence if the person conspires with someone else with the intention of dishonestly causing a loss to a third person. (3) A person commits an offence if the person— (a) conspires with someone else to dishonestly cause a loss, or a risk of loss, to a third person; and (b) knows or believes that the loss will happen, or that there is a substantial risk of the loss happening.

(4) A person commits an offence if the person conspires with someone else with the intention of dishonestly influencing a public official in the exercise of the official’s duty as a public official. (5) A person commits an offence against this section (conspiracy to defraud) only if— (a) the person enters into an agreement with at least 1 other person; and (b) the person and at least 1 other party to the agreement intend to do the thing under the agreement; and (c) the person or at least 1 other party to the agreement commits an overt act under the agreement. (6) A person may be found guilty of conspiracy to defraud even if— (a) it was impossible to obtain the gain, cause the loss or risk of loss, or influence the public official; or (b) the person and each other party to the agreement is a corporation; or (c) each other party to the agreement is— (i) a person who is not criminally responsible; or (ii) for an agreement to commit an offence—a person for whose benefit or protection the offence exists; or (d) all other parties to the agreement are acquitted of the offence (unless to find the person guilty would be inconsistent with their acquittal).

Summary offences for pt 3.3 Division 3.3.4 (7) A person must not be found guilty of conspiracy to defraud if, before the commission of an overt act under the agreement, the person— (a) withdrew from the agreement; and (b) took all reasonable steps to prevent the doing of the thing. (8) A person must not be found guilty of an offence of conspiracy to defraud in relation to an agreement to commit an offence (an agreed offence) if the person is someone for whose benefit or protection the agreed offence exists. (9) Any defence, procedure, limitation or qualifying provision applying to an agreed offence applies also to an offence of conspiracy to defraud in relation to the agreed offence. (10) A court may dismiss a charge of conspiracy to defraud if it considers that the interests of justice require it to dismiss the charge. (11) A proceeding for an offence of conspiracy to defraud must not be begun without the consent of the Attorney-General or the director of public prosecutions. (12) However, a person may be arrested for, charged with or remanded in custody or released on bail in relation to an offence of conspiracy to defraud before the consent is given.

335 Obtaining financial advantage from the Territory (a) the person engages in conduct that results in the person obtaining a financial advantage from someone else; and (b) the person knows or believes that the person is not eligible to receive the financial advantage; and

(c) the other person is the Territory. (a) the person engages in conduct that results in the person obtaining a financial advantage for someone else (B) from a third person; and (b) the person knows or believes that B is not eligible to receive the financial advantage; and (c) the third person is the Territory. (4) Absolute liability applies to subsection (3) (c). (5) For subsection (3), a person (A) is taken to have obtained a financial advantage for someone else from the Territory if A induces the Territory to do something that results in the other person obtaining the financial advantage. (6) The definition of obtain in section 300 does not apply to this section.

336 Passing valueless cheques (a) the person obtains property, a financial advantage or other benefit from someone else by passing a cheque; and

Summary offences for pt 3.3 Division 3.3.4 (i) does not have reasonable grounds for believing that the cheque will be paid in full on presentation; or (ii) intends to dishonestly obtain the property, financial advantage or benefit from someone else. (2) A person may be found guilty of an offence against this section even though, when the cheque was passed, there were some funds to the credit of the account on which the cheque was drawn.

Part 3.4 False or misleading statements, information and documents

336A Making false statements on oath or in statutory declarations (a) the person makes a statement on oath or in a statutory declaration; and (c) the person knows the statement is false. Note Oath includes affirmation and take an oath includes make an affirmation (see Legislation Act, dict, pt 1).

337 Making false or misleading statements (a) the person makes a statement (whether orally, in a document or in any other way); and (c) the person knows that the statement— (ii) omits anything without which the statement is false or (d) the statement is made in or in relation to an application or claim for a statutory entitlement or a benefit; and

False or misleading statements, information and documents Part 3.4 (e) any of the following applies: (i) the statement is made to the Territory; (ii) the statement is made to a person who is exercising a function under a territory law; (iii) the statement is made in compliance or purported (2) Absolute liability applies to subsection (1) (e) (i), (ii) and (iii). (a) the person makes a statement (whether orally, in a document or in any other way); and (c) the person is reckless about whether the statement— (ii) omits anything without which the statement is false or (d) the statement is made in or in relation to an application or claim for a statutory entitlement or a benefit; and (e) any of the following applies: (i) the statement is made to the Territory; (ii) the statement is made to a person who is exercising a function under a territory law; (iii) the statement is made in compliance or purported

(4) Absolute liability applies to subsection (3) (e) (i), (ii) and (iii). (5) Subsections (1) (b), (1) (c) (i), (3) (b) and (3) (c) (i) do not apply if the statement is not false or misleading in a material particular. (6) Subsections (1) (b), (1) (c) (ii), (3) (b) and (3) (c) (ii) do not apply if the omission does not make the statement false or misleading in a material particular. Note A defendant has an evidential burden in relation to the matters mentioned in s (5) and s (6) (see s 58 (3)). statutory entitlement includes an accreditation, approval, assessment, authority, certificate, condition, decision, determination, exemption, licence, permission, permit, registration or other prescribed thing giving a status, privilege or benefit under a law (whether or not required under the law for doing anything). Note For an alternative verdict provision applying to this offence, see s 374.

338 Giving false or misleading information (a) the person gives information to someone else; and (b) the information is false or misleading; and (c) the person knows that the information— (ii) omits anything without which the information is false or (d) any of the following applies: (i) the person to whom the information is given is the Territory;

False or misleading statements, information and documents Part 3.4 (ii) the person to whom the information is given is a person who is exercising a function under a territory law; (iii) the information is given in compliance or purported (2) Absolute liability applies to subsection (1) (d) (i), (ii) and (iii). (3) Subsection (1) (b) and (c) (i) does not apply if the information is not false or misleading in a material particular. (4) Subsection (1) (b) and (c) (ii) does not apply if the omission does not make the information false or misleading in a material particular. (5) Subsection (1) (d) (i) does not apply if, before the information was given by the person to the Territory, the Territory did not take reasonable steps to tell the person about the existence of the offence against subsection (1). (6) Subsection (1) (d) (ii) does not apply if, before the information was given by a person (A) to the person mentioned in that subparagraph (B), B did not take reasonable steps to tell A about the existence of the offence against subsection (1). (7) For subsections (5) and (6), it is sufficient if the following form of words is used: ‘Giving false or misleading information is a serious offence’. (8) In this section:

339 Producing false or misleading documents (a) the person produces a document to someone else; and (b) the document is false or misleading; and (c) the person knows that the document is false or misleading; and (d) the document is produced in compliance or purported (2) Subsection (1) (b) and (c) does not apply if the document is not false (3) Subsection (1) does not apply to a person who produces a document if the document is accompanied by a signed statement— (a) stating that the document is, to the signing person’s knowledge, (b) setting out, or referring to, the material particular in which the document is, to the signing person’s knowledge, false or misleading. (4) The statement under subsection (3) must be signed by— (a) the person; or (b) if the person who produces the document is a corporation—a competent officer of the corporation.

Blackmail Part 3.5

340 Meaning of menace for pt 3.5 (1) A menace includes— (a) an express or implied threat of action that is detrimental or unpleasant to someone else; or (b) a general threat of detrimental or unpleasant action that is implied because the person making the demand is a public official. (2) A threat against an individual is a menace only if— (a) the threat would be likely to cause an individual of normal stability and courage to act unwillingly; or (b) the threat would be likely to cause the individual to act unwillingly because of a particular vulnerability of which the maker of the threat is aware. (3) A threat against an entity other than an individual is a menace only if— (a) the threat would ordinarily cause an unwilling response; or (b) the threat would be likely to cause an unwilling response because of a particular vulnerability of which the maker of the threat is aware.

341 Meaning of unwarranted demand with a menace for pt 3.5 (1) A person makes an unwarranted demand with a menace of someone else only if the person— (a) makes a demand with a menace of the other person; and (b) does not believe that he or she has reasonable grounds for making the demand; and

(c) does not reasonably believe that the use of the menace is a proper means of reinforcing the demand. (2) The demand need not be a demand for money or other property. (3) It does not matter whether the menace relates to action to be taken by the person making the demand.

342 Blackmail A person commits an offence if the person makes an unwarranted demand with a menace of someone else with the intention of— (a) obtaining a gain; or (b) causing a loss; or (c) influencing the exercise of a public duty.

Interpretation for pt 3.6 Division 3.6.1

343 Definitions—pt 3.6 document includes any of the following: (a) anything on which there are figures, marks, numbers, perforations, symbols or anything else that can be responded to by a computer, machine or electronic device; (b) a credit card or debit card; (c) a formal or informal document. Note For further definition of document, see the Legislation Act, dict, pt 1. false document—see section 344.

344 Meaning of false document etc for pt 3.6 (1) A document is false only if the document, or any part of the document, purports— (a) to have been made in the form in which it is made by a person who did not make it in that form; or (b) to have been made in the form in which it is made on the authority of a person who did not authorise its making in that form; or (c) to have been made in the terms in which it is made by a person who did not make it in those terms; or (d) to have been made in the terms in which it is made on the authority of a person who did not authorise its making in those terms; or

(e) to have been changed in any way by a person who did not change it in that way; or (f) to have been changed in any way on the authority of a person who did not authorise it to be changed in that way; or (g) to have been made or changed by an existing person who did not exist; or (h) to have been made or changed on the authority of an existing person who did not exist; or (i) to have been made or changed on a date on which, at a time or place at which, or otherwise in circumstances in which it was not made or changed. (2) For this part, making a false document includes changing the document so as to make it a false document under subsection (1) (whether or not it already was false in some other way). (3) For this section, a document that purports to be a true copy of another document is to be treated as if it were the original document.

345 Inducing acceptance that document genuine For section 346 (Forgery), section 347 (Using false document) and section 348 (Possessing false document)— (a) a reference to inducing a person to accept a document as genuine includes a reference to causing a computer, machine or electronic device to respond to the document as if it were genuine; and (b) it is not necessary to prove an intention to induce a particular person to accept the false document as genuine.

346 Forgery A person commits an offence (forgery) if the person makes a false document with the intention that the person or someone else will use it— (a) to dishonestly induce another person (C) to accept it as genuine; and (b) because C accepts it as genuine, to dishonestly— (i) obtain a gain; or (ii) cause a loss; or (iii) influence the exercise of a public duty.

347 Using false document A person commits an offence if the person uses a false document, knowing that it is false, with the intention of— (a) dishonestly inducing someone else to accept it as genuine; and (b) because the other person accepts it as genuine, dishonestly— (i) obtaining a gain; or (ii) causing a loss; or (iii) influencing the exercise of a public duty.

348 Possessing false document A person commits an offence if the person has in the person’s possession a false document, knowing that it is false, with the intention that the person or someone else will use it— (a) to dishonestly induce another person (C) to accept it as genuine; and (b) because C accepts it as genuine, to dishonestly— (i) obtain a gain; or (ii) cause a loss; or (iii) influence the exercise of a public duty.

349 Making or possessing device etc for making false document (1) A person commits an offence if the person makes or adapts a device, material or other thing— (a) knowing that the thing is designed or adapted for making a false document (whether or not it is designed or adapted for another purpose); and (b) with the intention that the person or someone else will use the thing to commit forgery. (a) the person knows that a device, material or other thing is designed or adapted for making a false document (whether or not it is designed or adapted for another purpose); and

(b) the person has the device, material or other thing in the person’s possession with the intention that the person or someone else will use it to commit forgery. (3) A person commits an offence if the person makes or adapts a device, material or other thing knowing that it is designed or adapted for making a false document (whether or not it is designed or adapted for another purpose). (4) A person commits an offence if the person has in the person’s possession a device, material or other thing knowing that it is designed or adapted for making a false document (whether or not it is designed or adapted for another purpose). (5) Subsection (4) does not apply if the person has a reasonable excuse.

350 False accounting (a) the person dishonestly damages, destroys or conceals an accounting document; and (b) the person does so with the intention of obtaining a gain or causing a loss.

(i) makes, or concurs in making, in an accounting document an entry that is false or misleading in a material particular; or (ii) omits, or concurs in omitting, a material particular from an accounting document; and (b) the person does so with the intention of obtaining a gain or causing a loss. (3) A person commits an offence if, in giving information for any purpose— (a) the person dishonestly produces to someone, or makes use of, an accounting document that is false or misleading in a material particular; and (b) the person is reckless about whether the accounting document is (c) the person produces or makes use of the accounting document with the intention of obtaining a gain or causing a loss. accounting document means any account, record or other document made or required for an accounting purpose.

351 False statement by officer of body (1) An officer of a body commits an offence if— (a) the officer dishonestly publishes or concurs in the publishing of a document containing a statement or account that is false or misleading in a material particular; and (b) the officer is reckless about whether the statement or account is (c) the officer publishes or concurs in the publishing of the document with the intention of deceiving members or creditors of the body about its affairs. creditor, of a body, includes a person who has entered into a security for the benefit of the body. officer, of a body, includes— (a) any member of the body who is concerned in its management; and (b) anyone purporting to act as an officer of the body.

352 Definitions—pt 3.7 agent—see section 353. favour—an agent provides a favour if the agent— (a) is influenced or affected in the exercise of his or her function as agent; or (b) does or does not do something as agent, or because of his or her position as agent; or (c) causes or influences his or her principal, or another agent of the principal, to do or not do something. function, of an agent, includes a function the agent holds himself or herself out as having as agent. principal—see section 353.

353 Meaning of agent and principal for pt 3.7 (1) An agent (and the principal of the agent) includes the following: item agent column 3 principal of the agent 1 a person acting for someone else with that other person’s actual or implied authority that other person 2 a public official the government or other body for which the official acts 3 an employee the employer 4 a lawyer acting for a client the client

item agent column 3 principal of the agent 5 a partner the partnership 6 an officer of a corporation (whether or not employed by it) the corporation 7 an officer of another body (whether or not employed by it) the body 8 a consultant to a person that person (2) A person is an agent or principal if the person is, or has been or intends to be, an agent or principal.

354 Dishonesty for pt 3.7 The provision of a benefit can be dishonest even if the provision of the benefit is customary in a trade, business, profession or calling.

355 Meaning of obtain for pt 3.7 (1) For this part, a person (A) is taken to obtain a benefit for someone (2) The definition of obtain in section 300 does not apply to this part.

356 Bribery (i) provides a benefit to an agent or someone else; or (ii) causes a benefit to be provided to an agent or someone else; or

(iii) offers to provide, or promises to provide, a benefit to an agent or someone else; or of the provision of a benefit, to be made to an agent or (b) the person does so with the intention that the agent will provide a favour. (2) An agent commits an offence if— (a) the agent dishonestly— (i) asks for a benefit for the agent or someone else; or (ii) obtains a benefit for the agent or someone else; or (iii) agrees to obtain a benefit for the agent or someone else; and (b) the agent does so with the intention— (i) that the agent will provide a favour; or (ii) of inducing, fostering or sustaining a belief that the agent will provide a favour.

357 Other corrupting benefits (i) provides a benefit to an agent or someone else; or (ii) causes a benefit to be provided to an agent or someone else; or (iii) offers to provide, or promises to provide, a benefit to an agent or someone else; or of the provision of a benefit, to be made to an agent or (b) obtaining, or expecting to obtain, the benefit would tend to influence the agent to provide a favour. (2) An agent commits an offence if— (a) the agent dishonestly— (i) asks for a benefit for the agent or someone else; or (ii) obtains a benefit for the agent or someone else; or (iii) agrees to obtain a benefit for the agent or someone else; and (b) obtaining, or expecting to obtain, the benefit would tend to influence the agent to provide a favour. (3) For this section, it does not matter whether the benefit is in the nature of a reward.

358 Payola (a) the person holds the person out to the public as being engaged in a business or activity of— (i) making disinterested selections or examinations; or (ii) expressing disinterested opinions in relation to property or services; and (b) the person dishonestly asks for or obtains, or agrees to obtain, a benefit for the person or someone else in order to influence the selection, examination or opinion.

359 Abuse of public office (1) A public official commits an offence if— (a) the official— (i) exercises any function or influence that the official has as a public official; or (ii) fails to exercise any function the official has as a public official; or (iii) engages in any conduct in the exercise of the official’s duties as a public official; or (iv) uses any information that the official has gained as a public official; and

(b) the official does so with the intention of— (i) dishonestly obtaining a benefit for the official or someone else; or (ii) dishonestly causing a detriment to someone else. (a) the person has ceased to be a public official in a particular capacity; and (b) the person uses any information the person gained in that capacity; and (c) the person does so with the intention of— (i) dishonestly obtaining a benefit for the person or someone else; or (ii) dishonestly causing a detriment to someone else. (3) Subsection (2) (a) applies to a person— (a) whether the person ceased to be a public official as mentioned in the paragraph before, at or after the commencement of this section; and (b) whether or not the person continues to be a public official in another capacity. (4) For subsection (2), a public official includes the associate judge.

associate judge means the Master of the Supreme Court under the Supreme Court Act 1933, as in force at any time before the day the Courts Legislation Amendment Act 2023, section 23 commences. Note The Courts Legislation Amendment Act 2023, s 23 omitted the Supreme Court Act 1933, pt 3, which provided for the Master of the Supreme Court (known as the Associate Judge).

Impersonation or obstruction of territory public officials Part 3.8 Part 3.8 Impersonation or obstruction of territory public officials

360 Impersonating territory public official (a) on a particular occasion, impersonates someone else in the other person’s capacity as a territory public official; and (b) does so— (i) knowing it to be in circumstances when the official is likely to be performing his or her duty; and (ii) with intent to deceive. (a) falsely represents the person to be a territory public official in a particular capacity (whether or not that capacity exists or is fictitious); and (b) does so in the course of doing an act, or attending a place, in the assumed capacity of such an official. (3) A person commits an offence if the person— (a) either— (i) impersonates someone else in the other person’s capacity as a territory public official; or

Part 3.8 Impersonation or obstruction of territory public officials (ii) falsely represents himself or herself to be a territory public official in a particular capacity (whether or not that capacity exists or is fictitious); and (b) does so— (i) with the intention of obtaining a gain, causing a loss or influencing the exercise of a public duty; and (ii) if paragraph (a) (i) applies—also with intent to deceive. (4) To remove any doubt, in this section: false representation does not include conduct engaged in solely for impersonation does not include conduct engaged in solely for

361 Obstructing territory public official (a) the person obstructs, hinders, intimidates or resists a public official in the exercise of his or her functions as a public official; and (b) the person knows that the public official is a public official; and (c) the public official is a territory public official; and (d) the functions are functions as a territory public official. (3) Strict liability applies to the circumstance that the public official was exercising the official’s functions as a public official.

Impersonation or obstruction of territory public officials Part 3.8 function— (a) in relation to a person who is a public official—means a function that is given to the person as a public official; and (b) in relation to a person who is a territory public official—means a function given to the person as a territory public official.

362 Impersonating police officer (1) A person who is not a police officer commits an offence if the person wears a uniform or badge of a police officer. (2) A person who is not a police officer commits an offence if the person represents himself or herself to be a police officer. (3) An offence against subsection (1) or (2) is a strict liability offence. (4) A person who is not a police officer commits an offence if the person wears clothing or a badge and is reckless about whether the clothing or badge would cause someone to believe that the person is a police officer. (5) This section does not apply to conduct engaged in solely for

Part 3.8 Impersonation or obstruction of territory public officials

363 Obstructing territory public official—minor offence (a) the person obstructs, hinders, intimidates or resists a public official in the exercise of his or her functions as a public official; and (b) the person is reckless about whether the public official is a public official; and (c) the public official is a territory public official; and (d) the functions are functions as a territory public official. (2) Absolute liability applies to subsection (1) (c) and (d). (3) Strict liability applies to the circumstance that the public official was exercising the official’s functions as a public official. function—see section 361.

Interpretation—pt 3.8A Division 3.8A.1

363A Definitions—pt 3.8A bet, by a person on an event, includes placement, acceptance or withdrawal of a bet by the person on the event. cause, in relation to an occurrence or state of affairs—see section 363B. conduct means an act or an omission to do an act. corrupts a betting outcome—see section 363C. encourage, a person, includes command, request, propose, advise, incite, induce, persuade, authorise, urge, threaten or place pressure on the person. event means an event, or contingency connected to an event, (in the ACT or elsewhere) on which it is lawful to bet under a territory law or a law of a State or the Commonwealth. financial advantage means a permanent or temporary financial advantage. financial disadvantage means a permanent or temporary financial disadvantage. obtain—see section 363D. (2) The definition of conduct in section 13 does not apply to this part.

363B Meaning of cause—pt 3.8A cause, in relation to an occurrence or state of affairs, means substantially contribute (directly or indirectly) to making the occurrence or state of affairs happen. (2) The definition of cause in section 300 does not apply to this part.

363C Meaning of corrupts a betting outcome—pt 3.8A corrupts a betting outcome—conduct corrupts a betting outcome for an event if the conduct affects or is likely to affect the outcome of any type of betting on the event contrary to the standards of integrity reasonably expected of a person in a position to affect the outcome of any type of betting on the event.

363D Meaning of obtain—pt 3.8A obtain includes— (a) get or keep for oneself (directly or indirectly); or (b) get or keep for another person (directly or indirectly). (2) The definition of obtain in section 300 does not apply to this part.

363E Proof of certain matters not required for offences against part 3.8A (1) In a proceeding for an offence against section 363F, a person (the accused person) is taken to intend obtaining a financial advantage or causing a financial disadvantage in connection with a bet on an event if, and only if, it is proved that the accused person— (a) intended to obtain a financial advantage or cause financial disadvantage in connection with betting on the event; or

Offences—pt 3.8A Division 3.8A.2 (b) was aware that another person intended to obtain a financial advantage or cause financial disadvantage in connection with betting on the event, as a result of the conduct that the accused person engaged in. (2) In a proceeding for an offence against section 363F, it is not necessary to prove that a financial advantage was actually obtained or a financial disadvantage was actually caused. (3) In a proceeding for an offence against section 363G or section 363H it is not necessary to prove that— (a) a bet by a person was made personally by the person; or (b) a person who was encouraged to bet, or to whom information was communicated, in relation to an event actually bet on the event; or (c) a person who was encouraged to bet was encouraged to bet in a particular way.

363F Conduct that corrupts betting outcome A person (the first person) commits an offence if— (a) the first person engages in conduct; and (b) the conduct corrupts a betting outcome on an event; and (c) the first person is reckless about whether the conduct corrupts a betting outcome for the event; and Note The fault element of recklessness can be satisfied by proof of intention, knowledge or recklessness (see s 20 (4)).

(d) the first person intends— (i) obtaining a financial advantage for the first person or another person from a bet on the event; or (ii) causing a financial disadvantage to another person who bets on the event.

363G Bet with information about corrupt betting outcome (1) A person (the first person) commits an offence if— (a) the first person engages in conduct that results in— (i) a bet by the first person on an event; or (ii) another person being encouraged to bet on an event; or (iii) information being communicated to another person who the first person knows would, or would be likely to, bet on an event; and (b) at the time of the conduct the first person— (i) possesses corrupt conduct information for the event; and (ii) is reckless about whether the information is corrupt conduct information. Note The fault element of recklessness can be satisfied by proof of intention, knowledge or recklessness (see s 20 (4)). corrupt conduct information, for an event, means information about— (a) conduct that corrupts a betting outcome for the event; or

Offences—pt 3.8A Division 3.8A.2 (b) proposed conduct that would corrupt a betting outcome for the event.

363H Bet with inside information (1) A person (the first person) commits an offence if— (a) the first person engages in conduct that results in— (i) a bet by the first person on an event; or (ii) another person being encouraged to bet on an event; or (iii) information being communicated to another person who the first person knows would, or would be likely to, bet on an event; and (b) at the time of the conduct the first person— (i) possesses inside information for the event; and (ii) is reckless about whether the information is inside information. Note The fault element of recklessness can be satisfied by proof of intention, knowledge or recklessness (see s 20 (4)). Maximum penalty: imprisonment for 2 years. generally available—information is generally available if it— (a) consists of matter that is readily observable by the public; or (b) has been made known in a way that would, or would be likely to, bring it to the attention of the public; or (c) consists of deductions, conclusions or inferences made or drawn from information mentioned in paragraph (a) or (b).

inside information, about an event, means information that— (a) is not generally available; and (b) if it were generally available, would, or would be likely to, influence a person who would commonly bet on the event in deciding— (i) whether or not to bet on the event; or (ii) any other betting decision.

364 Stolen property held by dealers etc—owners rights (1) If the owner of stolen property makes a complaint to a magistrate that the property is in the possession of a dealer in second-hand goods or a person (the lender) who has advanced money on the security of the property, the magistrate may— (a) issue a summons for the appearance of the dealer or lender and for the production of the property; and (b) order the dealer or lender to give the property to the owner on payment by the owner of the amount (if any) that the magistrate considers appropriate. (2) A dealer or lender who contravenes an order under subsection (1) (b), or who disposes of any property after being told by the owner of the property that it is stolen, is liable to pay to the owner of the property the full value of the property as decided by a magistrate. (e) obtaining property by deception. stolen property means property appropriated or obtained in the course of theft or a related offence.

365 Stolen property held by police—disposal (1) This section applies if— (a) property is lawfully in the custody of a police officer; and (b) a person is charged with theft or a related offence in relation to the property; and (c) the person charged— (i) cannot be found; or (ii) is convicted, discharged or acquitted in relation to the charge. (2) A magistrate may— (a) make an order for the property to be given to the person who appears to be the owner of the property; or (b) if there is no-one who appears to be the owner—make any order in relation to the property that the magistrate considers just. (3) An order under this section does not prevent anyone from recovering the property from the person to whom the property is given under the order if a proceeding for the recovery is begun within 6 months after the day the order is made. related offence—see section 364.

366 Procedure and evidence—theft, receiving etc (1) Any number of defendants may be charged in a single indictment with theft or receiving in relation to the same property and the defendants charged may be tried together. (2) Any number of defendants may be charged in a single indictment with obtaining property by deception or receiving in relation to the same property and the defendants charged may be tried together.

(3) On the trial of a defendant or 2 or more defendants for theft, unless the court otherwise orders, a count on the indictment may include an allegation that the defendant or 1 or more of the defendants stole 2 or more items of property. (4) On the trial of a defendant or 2 or more defendants for receiving, unless the court otherwise orders, a count on the indictment— (a) may include an allegation that the defendant or 1 or more of the defendants received 2 or more items of property; and (b) may include the allegation whether or not all the items of property were received from the same person or at the same time. (5) If, on the trial of a defendant for receiving, it is proved that the defendant had 4 or more items of stolen property in his or her possession, it must be presumed, unless there is evidence to the contrary, that the defendant— (a) received the items; and (b) at the time of receiving them, knew or believed them to be items of stolen property. (6) The defendant has an evidential burden in relation to evidence to the contrary mentioned in subsection (5). (7) On the trial of 2 or more defendants for jointly receiving stolen property, the trier of fact may find a defendant guilty if satisfied that the defendant received all or any of the stolen property, whether or not the defendant received it jointly with 1 or more of the other defendants. (8) On the trial of 2 or more defendants for theft and receiving, the trier of fact may find 1 or more of the defendants guilty of theft or receiving, or may find any of them guilty of theft and any other or others guilty of receiving.

(9) On the trial of 2 or more defendants for obtaining property by deception and receiving, the trier of fact may find 1 or more of the defendants guilty of obtaining property by deception or receiving, or may find any of them guilty of obtaining property by deception and any other or others guilty of receiving. (10) Subsection (11) applies to a proceeding for the theft of property in the course of transmission (whether by post or otherwise), or for receiving stolen property from such a theft. (11) A statutory declaration by a person that the person sent, received or failed to receive goods or a postal packet, or that goods or a postal packet when sent or received by the person were or was in a particular state or condition, is admissible as evidence of the facts stated in the declaration— (a) if and to the extent to which oral evidence to the same effect would have been admissible in the proceeding; and (b) if, at least 7 days before the day of the beginning of the hearing or trial, a copy of the declaration is given to the defendant, and the defendant has not, at least 3 days before the day of the beginning of the hearing or trial, or within any further time that the court in special circumstances allows, given to the prosecution written notice requiring the attendance at the hearing or trial of the person making the declaration. Note 1 The Statutory Declarations Act 1959 (Cwlth) applies to the making of statutory declarations under ACT laws. Note 2 It is an offence to make a false or misleading statement, give false or misleading information or produce a false or misleading document (see Criminal Code, pt 3.4). (12) In this section: stolen property—see section 314.

367 Certain proceedings not to be heard together If a person is charged with an offence against section 324 (Unlawful possession of stolen property) and an offence of receiving in relation to the same property, proceedings for the offences must not be heard together.

368 Indictment for offence relating to deeds, money etc (1) In an indictment for an offence against this chapter in relation to a document of title to land, or a part of a document of title to land, it is sufficient to state that the document or the part of the document is or contains evidence of the title to the land, and to mention the person, or any of the people, with an interest in the land, or in any part of the land. (2) In an indictment for an offence against this chapter in relation to money or a valuable security, it is sufficient to describe it as a certain amount of money, or a certain valuable security, without specifying a particular kind of money or security, and the description will be sustained by proof of the offence in relation to any money or valuable security even if it is agreed that part of the value of the money or security has been returned, or part was in fact returned. document of title to land includes any document that is or contains evidence of title to the land or an interest in the land. Note For definition of interest, in relation to land, see the Legislation Act, dict, pt 1.

369 Theft of motor vehicle—cancellation of licence (1) This section applies if a person is found guilty of any of the following offences: (a) theft of a motor vehicle; (b) an offence against section 318 (Taking etc motor vehicle without consent). Note A reference to an offence includes a reference to a related ancillary offence, eg attempt (see Legislation Act, s 189). (2) The court may, by order— (a) if the person holds a driver licence—disqualify the person from holding or obtaining a driver licence for the period the court considers appropriate; or (b) if the person does not hold a driver licence—disqualify the person from obtaining a driver licence for the period the court considers appropriate. Note The effect of disqualification is set out in the Road Transport (General) Act 1999, s 66. (3) If the court makes an order under this section, the court must give particulars of the order to the road transport authority.

369A Alternative verdicts—aggravated robbery and robbery (1) This section applies if, in a prosecution for aggravated robbery, the robbery. (2) The trier of fact may find the defendant guilty of robbery, but only if the defendant has been given procedural fairness in relation to that

Alternative verdicts—ch 3 Division 3.9.2

369B Alternative verdicts—aggravated burglary and burglary (1) This section applies if, in a prosecution for aggravated burglary, the burglary. (2) The trier of fact may find the defendant guilty of burglary, but only if the defendant has been given procedural fairness in relation to that

370 Alternative verdicts—theft and taking motor vehicle without consent (1) This section applies if, in a prosecution for theft, the trier of fact is not satisfied that the defendant committed theft but is satisfied beyond reasonable doubt that the defendant committed an offence against section 318 (Taking etc motor vehicle without consent). section 318, but only if the defendant has been given procedural

371 Alternative verdicts—theft or obtaining property by deception and receiving (1) If, in a prosecution for theft or obtaining property by deception, the an offence of receiving, the trier of fact may find the defendant guilty of receiving, but only if the defendant has been given procedural

(2) If, in a prosecution for an offence of receiving, the trier of fact is not satisfied that the defendant committed the offence but is satisfied beyond reasonable doubt that the defendant committed theft or obtaining property by deception, the trier of fact may find the defendant guilty of theft or obtaining property by deception, but only if the defendant has been given procedural fairness in relation to that

372 Alternative verdicts—theft and obtaining property by deception (1) If, in a prosecution for an offence of theft, the trier of fact is not satisfied that the defendant committed the offence but is satisfied beyond reasonable doubt that the defendant committed an offence of obtaining property by deception, the trier of fact may find the defendant guilty of obtaining property by deception, but only if the defendant has been given procedural fairness in relation to that (2) If, in a prosecution for an offence of obtaining property by deception, the trier of fact is not satisfied that the defendant committed the offence but is satisfied beyond reasonable doubt that the defendant committed an offence of theft, the trier of fact may find the defendant guilty of theft, but only if the defendant has been given procedural

Alternative verdicts—ch 3 Division 3.9.2

373 Verdict of ‘theft or receiving’ etc (1) If, on the trial of a defendant charged with theft and receiving in relation to the same property, the trier of fact is satisfied beyond reasonable doubt that the defendant committed theft or receiving but cannot decide which of the offences the defendant committed, the trier of fact must find the defendant guilty of— (a) the offence that is more probable; or (b) if the trier of fact cannot decide which of the offences is more probable—theft. (2) If, on the trial of a defendant charged with obtaining property by deception and receiving in relation to the same property, the trier of fact is satisfied beyond reasonable doubt that the defendant committed obtaining property by deception or receiving but cannot decide which of the offences the defendant committed, the trier of fact must find the defendant guilty of— (a) the offence that is more probable; or (b) if the trier of fact cannot decide which of the offences is more probable—obtaining property by deception.

374 Alternative verdicts—making false or misleading statements section 337 (1) (Making false or misleading statements), the trier of fact is not satisfied that the defendant committed the offence but is satisfied beyond reasonable doubt that the defendant committed an offence against section 337 (3).

section 337 (3), but only if the defendant has been given procedural

375 Going equipped offences—forfeiture (1) If a person is found guilty of an offence against section 315 (Going equipped for theft etc) in relation to an article, the person must forfeit to the Territory the article and any other article of the kind mentioned in that section that is in the person’s custody or possession. (2) If a person is found guilty of an offence against section 316 (Going equipped with offensive weapon for theft etc) in relation to an offensive weapon, the person must forfeit to the Territory the weapon and any other offensive weapon of the kind mentioned in that section that is in the person’s custody or possession.

376 Unlawful possession offence—forfeiture (1) If a person is found guilty of an offence against section 324 (Unlawful possession of stolen property), the property to which the offence relates is forfeited to the Territory— (a) if the person found guilty is the owner of the property—when the person is found guilty; or (b) in any other case—at the end of 90 days after the day the person is found guilty of the offence unless the owner of the property is known. (2) The forfeited property must be transferred to the public trustee and guardian.

Forfeiture—ch 3 Division 3.9.3

377 Unlawful possession offence—disposal of forfeited property by public trustee and guardian (1) The public trustee and guardian must pay any forfeited money transferred to the public trustee and guardian under section 376 to the confiscated assets trust fund under the Confiscation of Criminal Assets Act 2003. (2) The public trustee and guardian must sell or otherwise dispose of other property transferred to the public trustee and guardian under section 376. (3) The public trustee and guardian must— (a) apply the proceeds of the sale or disposition in payment of the public trustee and guardian’s remuneration, and other costs, charges and expenses, in relation to the sale or disposition; and (b) pay the remainder of the proceeds to the confiscated assets trust fund under the Confiscation of Criminal Assets Act 2003. (4) However, the Minister may direct that, in a particular case, forfeited goods be dealt with in accordance with the direction (including in accordance with a law stated in the direction). (5) The direction is a disallowable instrument. (6) The public trustee and guardian must comply with the Minister’s direction. (7) Any interest held by the public trustee and guardian in relation to property transferred under section 376 (2) is a statutory interest of a kind to which the Personal Property Securities Act 2009 (Cwlth), section 73 (2) applies. (8) A regulation may make provision in relation to public trustee and guardian’s remuneration, and other costs, charges and expenses, under subsection (3) (a).

378 Unlawful possession offence—return of or compensation for forfeited property (1) If, after the end of the 90-day period mentioned in section 376 (1) (b), the owner of the property claims the property, the public trustee and guardian must, if satisfied that the person is the owner— (a) if the property is money—pay the money to the person; or (b) in any other case—return the property to the person or pay the person reasonable compensation for the property. (2) This section does not apply if the property is subject to forfeiture, or has been forfeited, under the Confiscation of Criminal Assets Act 2003. Note The Confiscation of Criminal Assets Act 2003 provides for compensation or the return of forfeited property in certain circumstances.

379 Forgery offences—forfeiture (1) This section applies if a person is found guilty of an offence against any of the following sections: (a) section 346 (Forgery); (b) section 347 (Using false document); (c) section 348 (Possessing false document); (d) section 349 (Making or possessing device etc for making false document). (2) The court may order, under the Crimes Act 1900, section 367 (Procedure on forfeiture), that any article used in relation to the offence be forfeited to the Territory.

Interpretation for pt 4.1 Division 4.1.1 Chapter 4 Property damage and computer offences Division 4.1.1 Interpretation for pt 4.1 400 Definitions—pt 4.1 causes damage or another result—a person causes damage or another result if the person’s conduct substantially contributes to the damage or other result. damage property, includes the following: (a) destroy the property; (b) cause the physical loss of the property by interfering with the property (including by removing any restraint over the property or abandoning the property); (c) cause loss of a use or function of the property by interfering with the property; (d) deface the property; (e) for a document—obliterate or make illegible the whole or part of the document; (f) for an animal—harm or kill the animal; (g) for a plant or other thing forming part of land—cut it from the land. property means any property of a tangible nature. Note For further definition of property, see the dictionary and the Legislation Act, dict, pt 1.

401 Person to whom property belongs (1) For this part, property belongs to anyone having possession or control of it, or having any proprietary right or interest in it (other than an equitable interest arising only from an agreement to transfer or grant an interest or from a constructive trust). (2) If property is subject to a trust, a reference to the people to whom it belongs includes a reference to anyone having a right to enforce the trust. (3) If property belongs to 2 or more people, a reference to the person to whom the property belongs is a reference to all the people.

402 Meaning of threat for pt 4.1 For this part— (a) a threat to a person includes a threat to a group of people; and (b) fear that a threat will be carried out includes apprehension that it will be carried out.

403 Damaging property (a) causes damage to property belonging to someone else; and (b) intends to cause, or is reckless about causing, damage to that property or any other property belonging to someone else.

Offences—pt 4.1 Division 4.1.2 (2) A conviction for an offence against this section is an alternative (a) an offence against section 416 (Unauthorised modification of data to cause impairment); or (b) an offence against section 417 (Unauthorised impairment of electronic communication).

404 Arson (a) causes damage to a building or vehicle by fire or explosive; and (b) intends to cause, or is reckless about causing, damage to that or any other building or vehicle. Maximum penalty: 1 500 penalty units, imprisonment for 15 years or (a) makes to someone else (person B) a threat to damage, by fire or explosive, a building or vehicle belonging to person B or to another person; and (b) intends to cause, or is reckless about causing, person B to fear that the threat will be carried out. (3) In a prosecution for an offence against subsection (2) it is not necessary to prove that the person threatened (person B) actually feared that the threat would be carried out. building includes— (a) part of a building; or

(b) any structure (whether or not moveable) that is used, designed or adapted for residential purposes. vehicle means motor vehicle, motorised vessel or aircraft.

405 Causing bushfires (a) intentionally or recklessly causes a fire; and (b) is reckless about the spread of the fire to vegetation on property belonging to someone else. Maximum penalty: 1 500 penalty units, imprisonment for 15 years or causes a fire—a person causes a fire if the person does any of the (a) lights a fire; (b) maintains a fire; (c) fails to contain or extinguish a fire that was lit by the person if it is not beyond the person’s capacity to contain or extinguish it. spread, of a fire, means spread of the fire beyond the capacity of the person who caused the fire to contain or extinguish it.

406 Threat to cause property damage—fear of death or serious harm (a) intentionally makes to someone else a threat to damage property; and

Offences—pt 4.1 Division 4.1.2 (b) is reckless about causing that person to fear that the carrying out of the threat will kill or cause serious harm to that person or another person. (2) In the prosecution of an offence against this section it is not necessary

407 Threat to cause property damage (a) intentionally makes to someone else a threat to damage property belonging to that person or another person; and (b) intends that person to fear that the threat will be carried out.

408 Possession of thing with intent to damage property (1) A person commits an offence if the person possesses a thing with the intention that the person or someone else will use it to damage property belonging to another person.

possess a thing includes— (a) have control over disposing of the thing (whether or not the thing is in the custody of the person); or (b) have joint possession of the thing. Note A defendant has an evidential burden in relation to the defences in this division (see s 58 (3)).

409 Consent—pt 4.1 offences (1) A person (person A) is not criminally responsible for an offence against this part if, when the conduct required for the offence was carried out— (a) a person entitled to consent to the damage to the property concerned had consented; or (b) person A believed that a person entitled to consent to the damage to the property concerned— (i) had consented; or (ii) would have consented if the person had known about the damage to the property and its circumstances. (2) For the application of this defence to an offence against section 405 (Causing bushfires): damage, to property, means the risk of fire spreading to the property.

410 Claim of right—pt 4.1 offences (1) A person is not criminally responsible for an offence against this part if, when engaging in the conduct required for the offence, the person believed that the person had a right or interest in the property concerned that entitled the person to engage in the conduct.

Defences—pt 4.1 Division 4.1.3 right or interest in property includes a right or privilege in or over land or waters, whether created by grant, licence or otherwise.

411 Self-defence To remove any doubt, section 42 (Self-defence) applies to an offence against this part.

412 Definitions—pt 4.2 access, to data held in a computer, means— (a) the display of the data by the computer or any other output of the data from the computer; or (b) the copying or moving of the data to another place in the computer or to a data storage device; or (c) for a program—the execution of the program. causes—a person causes unauthorised access to or modification of data, or impairment of electronic communication or of the reliability, security or operation of data, if the person’s conduct substantially contributes to the unauthorised access, modification or impairment. data includes— (a) information in any form; and (b) a program (or part of a program). data held in a computer includes— (a) data entered or copied into the computer; and (b) data held in a removable storage device in the computer; and (c) data held in a data storage device on a computer network of which the computer forms part. data storage device means anything containing or designed to contain data for use by a computer. Examples of data storage devices 1 a disc 2 a file server

electronic communication means a communication of information in any form by way of guided or unguided electromagnetic energy. impairment, of electronic communication to or from a computer— (a) includes— (i) the prevention of the communication; and (ii) the impairment of the communication on an electronic link or network used by the computer; but (b) does not include a mere interception of the communication. modification, of data held in a computer, means— (a) the alteration or removal of the data, or (b) an addition to the data. serious computer offence means— (a) an offence against section 415, section 416 or section 417; or jurisdiction and would be an offence against section 415, section 416 or section 417 if the conduct happened in the ACT.

413 Limited meaning of access to data etc In this part, a reference to— (a) access to data held in a computer; or (b) modification of data held in a computer; or (c) impairment of electronic communication to or from a computer; is limited to access, modification or impairment caused (directly or indirectly) by the execution of a function of a computer.

414 Meaning of unauthorised access, modification or impairment (1) For this part, access to or modification of data, or impairment of electronic communication or of the reliability, security or operation of data, by a person is unauthorised if the person is not entitled to cause the access, modification or impairment. (2) However, the access, modification or impairment is not unauthorised only because the person has an ulterior purpose for causing it.

415 Unauthorised access, modification or impairment with intent to commit serious offence (a) the person causes— (i) unauthorised access to data held in a computer; or (ii) unauthorised modification of data held in a computer, or (iii) unauthorised impairment of electronic communication to or from a computer; and (b) the person knows the access, modification or impairment is unauthorised; and (c) the person intends to commit, or enable the commission of, a serious offence (by the person or by someone else). Maximum penalty: the maximum penalty applicable if the person had committed, or enabled the commission of, the serious offence in the ACT. to prove that the defendant knew that the offence was a serious

(3) A person can be found guilty of an offence against this section— (a) even if committing the serious offence is impossible; or (b) whether the serious offence is to be committed at the time of the unauthorised conduct or at a later time. serious offence means an offence punishable by imprisonment for 5 years or longer, and includes an offence in another jurisdiction that would be a serious offence if committed in the ACT.

416 Unauthorised modification of data to cause impairment (a) the person causes unauthorised modification of data held in a computer; and (b) the person knows the modification is unauthorised; and (c) the person— (i) intends by the modification to impair access to, or to impair the reliability, security or operation of, data held in a computer; or (ii) is reckless about any such impairment. (2) A person can be found guilty of an offence against this section even if there is or will be no actual impairment to access to, or the reliability, security or operation of, data held in a computer.

(3) A conviction for an offence against this section is an alternative (a) an offence against section 403 (Damaging property); or (b) an offence against section 417 (Unauthorised impairment of electronic communication).

417 Unauthorised impairment of electronic communication (a) the person causes an unauthorised impairment of electronic communication to or from a computer; and (b) the person knows the impairment is unauthorised; and (c) the person— (i) intends to impair electronic communication to or from the computer; or (ii) is reckless about any such impairment. (2) A conviction for an offence against this section is an alternative (a) an offence against section 403 (Damaging property); or (b) an offence against section 416 (Unauthorised modification of data to cause impairment).

418 Possession of data with intent to commit serious (1) A person commits an offence if the person has possession or control of data with the intention of— (a) committing a serious computer offence; or (b) enabling the commission of a serious computer offence (whether by the person or by someone else). (2) For this section: possession or control of data includes— (a) possession of a computer or data storage device holding or containing the data; or (b) possession of a document in which the data is recorded; or (c) control of data held in a computer that is in the possession of someone else (whether the computer is in or outside the ACT). (3) A person can be found guilty of an offence against this section even if committing the serious computer offence is impossible.

419 Producing, supplying or obtaining data with intent to commit serious computer offence (1) A person commits an offence if the person produces, supplies or obtains data with the intention of— (a) committing a serious computer offence; or (b) enabling the commission of a serious computer offence (whether by the person or by someone else). (2) For this section: produce, supply or obtain data includes— (a) produce, supply or obtain data held or contained in a computer or data storage device; or (b) produce, supply or obtain a document in which the data is recorded. (3) A person can be found guilty of an offence against this section even if committing the serious computer offence concerned is impossible.

420 Unauthorised access to or modification of restricted data held in computer (a) the person causes unauthorised access to or modification of restricted data held in a computer; and (b) the person knows the access or modification is unauthorised; and (c) the person intends to cause the access or modification.

restricted data means data held in a computer to which access is restricted by an access control system associated with a function of the computer.

421 Unauthorised impairment of data held in computer disc, credit card etc (a) the person causes unauthorised impairment of the reliability, security or operation of data held in a computer disc, credit card or other device used to store data by electronic means; and (b) the person knows the impairment is unauthorised; and (c) the person intends to cause the impairment.

422 Definitions—pt 4.3 causes damage or disruption—a person causes damage or disruption if the person’s conduct substantially contributes to the damage or disruption. damage, to a public facility, means— (a) damage to the facility or part of the facility; or (b) disruption to the use or operation of the facility. property offence means— (a) an offence against part 4.1 (Property damage offences); or jurisdiction and would be an offence against part 4.1 if the conduct happened in the ACT. public facility means any of the following (whether publicly or privately owned): (a) a government facility, including premises used by government employees for official duties; (b) a public infrastructure facility, including a facility providing water, sewerage, energy, fuel, communication or other services to the public; (c) a public information system, including a system used to generate, send, receive, store or otherwise process electronic communications; (d) a public transport facility, including a vehicle used to transport people or goods;

Sabotage Part 4.3 (e) a public place, including any premises, land or water open to the public. unauthorised computer function means any of the following (within the meaning of part 4.2 (Computer offences)): (a) unauthorised access to data held in a computer; (b) unauthorised modification of data held in a computer; (c) unauthorised impairment of electronic communication to or from a computer.

423 Sabotage (a) the person causes damage to a public facility by committing a property offence or by causing an unauthorised computer function; and (b) the person intends to cause— (i) major disruption to government functions; or (ii) major disruption to the use of services by the public; or (iii) major economic loss. Maximum penalty: 2 500 penalty units, imprisonment for 25 years or (2) To remove any doubt, a person does not commit an offence against this section only because the person takes part in a protest, strike or lockout.

424 Threaten sabotage (a) the person intentionally makes to someone else a threat to cause damage to a public facility by committing a property offence or by causing an unauthorised computer function; and (b) the person intends the other person to fear that the threat will be carried out and will cause— (i) major disruption to government functions; or (ii) major disruption to the use of services by the public; or (iii) major economic loss. (2) To remove any doubt, a person does not commit an offence against this section only because the person intends to or threatens to take part in a protest, strike or lockout. (3) In a prosecution for an offence against this section it is not necessary (4) For this section— (a) a threat to a person includes a threat to a group of people; and (b) fear that a threat will be carried out includes apprehension that it will be carried out.

Interpretation for ch 6 Part 6.1

600 Definitions—ch 6 cannabis— (a) means a substance consisting of or containing— (i) the fresh or dried parts of a cannabis plant; or (ii) tetrahydrocannabinol; but (b) does not include— (i) goods that consist completely or mainly of cannabis fibre; or (ii) cannabis food products. cannabis plant means a plant of the genus Cannabis. commercial quantity—see section 601. conceal a thing includes conceal or disguise— (a) the nature, source or location of the thing; or (b) any movement of the thing; or (c) someone’s rights in relation to the thing; or (d) the identity of any owner of the thing. controlled drug means a substance prescribed by regulation as a controlled drug, but does not include a growing plant. controlled plant means a growing plant prescribed by regulation as a controlled plant, and includes a seedling of the plant.

controlled precursor means a substance prescribed by regulation as a controlled precursor. cultivates a plant—see section 615. cultivation, of a plant—see section 615. large commercial quantity—see section 601. manufacture—see section 606. manufactures—see section 606. possession, of a thing, includes the following: (a) receiving or obtaining possession of the thing; (b) having control over the disposition of the thing (whether or not having custody of the thing); (c) having joint possession of the thing. prepare a drug for supply includes pack the drug or separate the drug into discrete units. sell includes— (a) barter or exchange; and (b) give to someone in the belief that the person will provide property or services in return at a later time, whether by agreement or otherwise; and (c) agree to sell. supply includes— (a) supply by way of sale or otherwise; and (b) agree to supply. trafficable quantity—see section 601. traffics in a controlled drug—see section 602.

Interpretation for ch 6 Part 6.1 transport includes deliver. cannabis food product—see the Drugs of Dependence Act 1989, section 6.

601 Meaning of trafficable quantity, commercial quantity and large commercial quantity commercial quantity means— the quantity prescribed by regulation as a commercial quantity of the drug; and the quantity prescribed by regulation as a commercial quantity of the plant; and (c) for a controlled precursor—a quantity of the precursor that is not less than the quantity prescribed by regulation as a commercial quantity of the precursor. large commercial quantity means— the quantity prescribed by regulation as a large commercial quantity of the drug; and the quantity prescribed by regulation as a large commercial quantity of the plant; and (c) for a controlled precursor—a quantity of the precursor that is not less than the quantity prescribed by regulation as a large commercial quantity of the precursor.

trafficable quantity means— the quantity prescribed by regulation as a trafficable quantity of the drug; and the quantity prescribed by regulation as a trafficable quantity of the plant. (2) For this chapter, a trafficable, commercial or large commercial quantity of a controlled drug in a mixture of substances is, subject to the regulations— (a) if the prosecution elects to establish the quantity of the drug in the mixture—the relevant quantity of the drug worked out by reference to the quantity (if any) prescribed by regulation for the pure form of the drug; and (b) if the prosecution elects to establish the quantity of the mixture instead of the quantity of the drug in the mixture—the relevant quantity of the mixture worked out by reference to the quantity (if any) prescribed by regulation for a mixture containing the drug.

Trafficking in controlled drugs Part 6.2

602 Meaning of trafficking For this chapter, a person traffics in a controlled drug if the person— (a) sells the drug; or (b) prepares the drug for supply— (i) with the intention of selling any of it; or (ii) believing that someone else intends to sell any of it; or (c) transports the drug— (i) with the intention of selling any of it; or (ii) believing that someone else intends to sell any of it; or (d) guards or conceals the drug with the intention of— (i) selling any of it; or (ii) helping someone else to sell any of it; or (e) possesses the drug with the intention of selling any of it.

603 Trafficking in controlled drug (1) A person commits an offence if the person traffics in a large commercial quantity of a controlled drug. trafficked in was a large commercial quantity. (3) A person commits an offence if the person traffics in a commercial quantity of a controlled drug.

trafficked in was a commercial quantity. (5) A person commits an offence if the person traffics in a trafficable quantity of cannabis. trafficked in was a trafficable quantity. (7) A person commits an offence if the person traffics in a controlled drug other than cannabis. (8) A person commits an offence if the person traffics in cannabis. Note For an alternative verdict provision applying to an offence against this section, see s 636A.

604 Trafficking offence—presumption if trafficable quantity possessed etc (1) If, in a prosecution for an offence against section 603, it is proved that the defendant— (a) prepared a trafficable quantity of a controlled drug for supply; or (b) transported a trafficable quantity of a controlled drug; or (c) guarded or concealed a trafficable quantity of a controlled drug; or

Trafficking in controlled drugs Part 6.2 (d) possessed a trafficable quantity of a controlled drug; it is presumed, unless the contrary is proved, that the defendant had the intention or belief about the sale of the drug required for the Note A defendant has a legal burden of proving that the defendant did not have the intention or belief mentioned in this subsection (see s 59 (c)). (2) This section does not apply to a single charge under section 629 (Single offence for trafficking etc on different occasions) if the conduct on each occasion to which the charge relates did not involve a trafficable quantity of the controlled drug.

605 Complicity, incitement and conspiracy offences do not apply to buyers of drugs A person does not commit any of the following offences only because the person bought or intended to buy a controlled drug from someone else: (a) an offence under section 45 (Complicity and common purpose); (b) an offence against section 47 (Incitement); (c) an offence against section 48 (Conspiracy). Note For additional offences relating to possessing controlled drugs, see the Drugs of Dependence Act 1989, pt 10 and the Medicines, Poisons and Therapeutic Goods Act 2008, s 36.

Part 6.3 Manufacturing controlled drugs and precursors

606 Meaning of manufacture manufacture—the manufacture of a substance is any process by which the substance is produced (other than the cultivation of a plant), and includes the process of— (a) extracting or refining it; or (b) transforming it into a different substance. manufactures—a person manufactures a substance if the person— (a) engages in its manufacture; or (b) exercises control or direction over its manufacture; or (c) provides or arranges finance for its manufacture.

607 Manufacturing controlled drug for selling (1) A person commits an offence if the person manufactures a large commercial quantity of a controlled drug— (3) A person commits an offence if the person manufactures a commercial quantity of a controlled drug—

(5) A person commits an offence if the person manufactures a controlled drug—

608 Manufacturing offence—presumption if trafficable quantity manufactured If, in a prosecution for an offence against section 607 (Manufacturing controlled drug for selling), it is proved that the defendant manufactured a trafficable quantity of a controlled drug, it is presumed, unless the contrary is proved, that the defendant had the intention or belief about the sale of the drug required for the offence.

609 Manufacturing controlled drug A person commits an offence if the person manufactures a controlled drug.