Div 1ACriminal neglect etc

Division 1A—Criminal neglect etc 13B—Interpretation act includes— (a) an omission; and (b) a course of conduct; child means a person under 16 years of age; cognitive impairment includes— (a) a developmental disability (including, for example, an intellectual disability, Down syndrome, cerebral palsy or an autistic spectrum disorder); (b) an acquired disability as a result of illness or injury (including, for example, dementia, a traumatic brain injury or a neurological disorder); (c) a mental illness; vulnerable adult means a person aged 16 years or above who is significantly impaired through physical disability, cognitive impairment, illness or infirmity. (2) Subject to subsection (3), in this Division the following terms and phrases have the same meaning as in Division 7A: (a) cause; (b) harm. (3) For the purposes of this Division, a reference to harm will be taken to include detriment caused to the physical, mental or emotional wellbeing or development of a child or vulnerable adult (whether temporary or permanent). (4) For the purposes of this Division, a defendant has a duty of care to a victim if the defendant is a parent or guardian of the victim or has assumed responsibility for the victim's care. 14—Criminal neglect (1) A person (the defendant) is guilty of the offence of criminal neglect if— (a) a child or a vulnerable adult (the victim) dies or suffers harm as a result of an act; and (b) the defendant had, at the time of the act, a duty of care to the victim; and (c) the defendant was, or ought to have been, aware that there was an appreciable risk that harm would be caused to the victim by the act; and (d) the defendant failed to take steps that he or she could reasonably be expected to have taken in the circumstances to protect the victim from harm and the defendant's failure to do so was, in the circumstances, so serious that a criminal penalty is warranted. (a) where the victim dies—imprisonment for life; or (b) in any other case—imprisonment for 15 years. (2) If a jury considering a charge of criminal neglect against a defendant finds that— (a) there is reasonable doubt as to the identity of the person who committed the act that caused the victim's death or harm; but (b) the act can only have been the act of the defendant or some other person who, on the evidence, may have committed the act, the jury may find the defendant guilty of the charge of criminal neglect even though of the opinion that the act may have been the act of the defendant. (3) If a defendant is charged with an offence against this section in respect of a course of conduct— (a) it is not necessary to prove that the defendant was, or ought to have been, aware that there was an appreciable risk that harm would be caused to the victim by each act making up the course of conduct; and (b) the information need not— (i) allege particulars of each act with the degree of particularity that would be required if the act were charged as an offence under a different section of this or any other Act; or (ii) identify particular acts or the occasions on which, places at which or order in which acts occurred; or (iii) identify particular acts as causing, wholly or partly, particular harm to the victim. (4) A defendant may be charged with an offence against this section in respect of a course of conduct even if some of the acts making up the course of conduct occurred before the commencement of this section. 14A—Failing to provide food etc in certain circumstances If— (a) a person is liable to provide necessary food, clothing or accommodation to a child or vulnerable adult; and (b) the person, without lawful excuse, fails to provide that food, clothing or accommodation, Division 2—Defences 14B—Abolition of certain common law defences (1) The following common law defences are abolished: (a) provocation; (b) necessity; (c) duress; (d) marital coercion. (2) To avoid doubt, the common law defences abolished by subsection (1) remain available in respect of offences allegedly committed before the commencement of that subsection. 15—Self defence (1) It is a defence to a charge of an offence if— (a) the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; and (b) the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist1. (2) Subject to subsection (2a), it is a partial defence to a charge of murder (reducing the offence to manslaughter) if— (a) the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; but (b) the conduct was not, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.2 (2a) A defendant is not entitled to rely on a defence under subsection (2) in relation to a charge of murder if the prosecution proves beyond reasonable doubt that the genuine belief of the defendant, that the conduct to which the charge relates was necessary and reasonable for a defensive purpose, was substantially affected by the voluntary and non‑therapeutic consumption of a drug. It may be that the genuine belief of a defendant is not substantially affected by the consumption of a drug where there is evidence of other matters substantially informing or affecting the belief (for example, if the offence occurred in circumstances of family violence—see section 15B(2)). (3) For the purposes of this section, a person acts for a defensive purpose if the person acts— (a) in self defence or in defence of another; or (b) to prevent or terminate the unlawful imprisonment of himself, herself or another. (4) However, if a person— (a) resists another who is purporting to exercise a power of arrest or some other power of law enforcement; or (b) resists another who is acting in response to an unlawful act against person or property committed by the person or to which the person is a party, the person will not be taken to be acting for a defensive purpose unless the person genuinely believes, on reasonable grounds, that the other person is acting unlawfully. (5) If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt. drug means alcohol or any other substance that is capable (either alone or in combination with other substances) of influencing mental functioning; non-therapeutic—consumption of a drug is to be considered non‑therapeutic unless— Notes— 1 See, however, section 15C. If the defendant establishes that he or she is entitled to the benefit of that section, this paragraph will be inapplicable. 2 See, however, section 15C. If the defendant establishes that he or she is entitled to the benefit of that section, the defendant will be entitled to a complete defence. 15A—Defence of property etc (1) It is a defence to a charge of an offence if— (a) the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable— (i) to protect property from unlawful appropriation, destruction, damage or interference; or (ii) to prevent criminal trespass to land or premises, or to remove from land or premises a person who is committing a criminal trespass; or (iii) to make or assist in the lawful arrest of an offender or alleged offender or a person who is unlawfully at large; and (b) if the conduct resulted in death—the defendant did not intend to cause death nor did the defendant act recklessly realising that the conduct could result in death; and (c) the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist1. (2) Subject to subsection (2a), it is a partial defence to a charge of murder (reducing the offence to manslaughter) if— (a) the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable— (i) to protect property from unlawful appropriation, destruction, damage or interference; or (ii) to prevent criminal trespass to land or premises, or to remove from land or premises a person who is committing a criminal trespass; or (iii) to make or assist in the lawful arrest of an offender or alleged offender or a person who is unlawfully at large; and (b) the defendant did not intend to cause death; but (c) the conduct was not, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.2 (2a) A defendant is not entitled to rely on a defence under subsection (2) in relation to a charge of murder if the prosecution proves beyond reasonable doubt that the genuine belief of the defendant, that the conduct to which the charge relates was necessary and reasonable for a purpose referred to in subsection (2)(a), was substantially affected by the voluntary and non‑therapeutic consumption of a drug. It may be that the genuine belief of a defendant is not substantially affected by the consumption of a drug where there is evidence of other matters substantially informing or affecting the belief (for example, if the offence occurred in circumstances of family violence—see section 15B(2)). (3) For the purposes of this section, a person commits a criminal trespass if the person trespasses on land or premises— (a) with the intention of committing an offence against a person or property (or both); or (b) in circumstances where the trespass itself constitutes an offence or is an element of the offence. (4) If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt. drug means alcohol or any other substance that is capable (either alone or in combination with other substances) of influencing mental functioning; non-therapeutic—consumption of a drug is to be considered non‑therapeutic unless— Notes— 1 See, however, section 15C. If the defendant establishes that he or she is entitled to the benefit of that section, this paragraph will be inapplicable. 2 See, however, section 15C. If the defendant establishes that he or she is entitled to the benefit of that section, the defendant will be entitled to a complete defence. 15B—Reasonableness etc where offence committed in circumstances of family violence (1) A requirement under this Division that the defendant's conduct be (objectively) reasonably proportionate to the threat that the defendant genuinely believed to exist does not imply that the force used by the defendant cannot exceed the force used against him or her. (2) In a trial for an offence in which the defendant raises a defence under this Division, the question of whether— (a) the defendant genuinely believed that particular conduct was necessary and reasonable (either for a defensive purpose or for the purposes referred to in section 15A(1)(a)); or (b) particular conduct was reasonably proportionate to a particular threat; or (c) the defendant reasonably believed that a particular threat would be carried out; or (d) the defendant reasonably believed that particular conduct was the only reasonable way a particular threat could be avoided; or (e) particular conduct was a reasonable response to a particular threat, is, if the defendant asserts that the offence occurred in circumstances of family violence, to be determined having regard to any evidence of family violence admitted in the course of the trial. circumstances of family violence has the same meaning as in section 34V of the Evidence Act 1929; evidence of family violence has the same meaning as in section 34W of the Evidence Act 1929. 15C—Requirement of reasonable proportionality not to apply in case of an innocent defence against home invasion (1) This section applies where— (a) a relevant defence would have been available to the defendant if the defendant's conduct had been (objectively) reasonably proportionate to the threat that the defendant genuinely believed to exist (the perceived threat); and (b) the victim was not a police officer acting in the course of his or her duties. (2) In a case to which this section applies, the defendant is entitled to the benefit of the relevant defence even though the defendant's conduct was not (objectively) reasonably proportionate to the perceived threat if the defendant establishes, on the balance of probabilities, that— (a) the defendant genuinely believed the victim to be committing, or to have just committed, home invasion; and (b) the defendant was not (at or before the time of the alleged offence) engaged in any criminal misconduct that might have given rise to the threat or perceived threat; and (c) the defendant's mental faculties were not, at the time of the alleged offence, substantially affected by the voluntary and non-therapeutic consumption of a drug. criminal misconduct means conduct constituting an offence for which a penalty of imprisonment is prescribed; drug means alcohol or any other substance that is capable (either alone or in combination with other substances) of influencing mental functioning; home invasion means a serious criminal trespass committed in a place of residence; non-therapeutic—consumption of a drug is to be considered non-therapeutic unless— (b) the drug is of a kind available, without prescription, from registered pharmacists, and is consumed for a purpose recommended by the manufacturer and in accordance with the manufacturer's instructions; relevant defence means a defence under section 15(1) or section 15A(1). 15D—Duress (1) It is a defence to a charge of an offence (other than a prescribed offence) if— (a) at the time of carrying out the conduct constituting the offence, the defendant reasonably believed that— (i) a threat had been made that would be carried out unless the person engaged in the conduct; and (ii) carrying out the conduct was the only reasonable way that the threat could be avoided; and (b) the conduct was a reasonable response to the threat. (2) However, this section does not apply if the threat referred to in subsection (1)(a) was made by or on behalf of a person with whom the defendant was voluntarily associating for the purpose of carrying out conduct of the kind actually carried out. (3) If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt. prescribed offence means— (a) murder; or (b) attempted murder; or (c) conspiring or soliciting to commit murder; or (d) aiding, abetting, counselling or procuring the commission of murder; or (e) any other offence prescribed by the regulations for the purposes of this definition. 15E—Sudden or extraordinary emergency (1) It is a defence to a charge of an offence (other than a prescribed offence) if— (a) the defendant carried out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency; and (b) at the time of carrying out the conduct, the defendant reasonably believed that— (i) circumstances of sudden or extraordinary emergency existed; and (ii) carrying out the conduct constituting the offence charged was the only reasonable way to deal with the emergency; and (c) the conduct was a reasonable response to the emergency. (2) To avoid doubt, an emergency need not involve a risk of death or serious harm. (3) If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt. prescribed offence means— (a) murder; or (b) attempted murder; or (c) conspiring or soliciting to commit murder; or (d) aiding, abetting, counselling or procuring the commission of murder; or (e) any other offence prescribed by the regulations for the purposes of this definition. 15F—Review of Division (1) The Minister must cause a review of the operation of this Division (as amended by the Statutes Amendment (Abolition of Defence of Provocation and Related Matters) Act 2020) to be conducted and a report on the review to be prepared and submitted to the Minister. (2) The review and report must include— (a) consideration of the effect (if any) of the abolition of the common law defences specified in section 14B; and (b) consideration of the effect (if any) that section 15B(2) has had generally on the operation of sections 15 and 15A; and (c) consideration of the operation of the defences set out in sections 15D and 15E; and (d) a recommendation as to whether further modification to the Act is necessary or desirable for the purpose of recognising and addressing the role family violence plays in relation to certain offending, and may include any other matter the Minister thinks fit. (3) The review and the report must be completed after the fifth, but before the sixth, anniversary of the commencement of this section. (4) A report under this section may be combined with a report under section 34Z of the Evidence Act 1929. (5) The Minister must cause a copy of the report submitted under subsection (1) to be laid before both Houses of Parliament within 6 sitting days after receiving the report. Division 3—Miscellaneous 16—Petit treason Every offence which, before the commencement of the Act 9 George IV C. 31 of the Imperial Parliament, would have amounted to petit treason shall be deemed to be murder only, and no greater offence, and shall be punishable accordingly. 18—Abolition of year-and-a-day rule An act or omission that in fact causes death will be regarded in law as the cause of death even though the death occurs more than a year and a day after the act or omission. Division 4—Unlawful threats 19—Unlawful threats (a) threatens, without lawful excuse, to kill or endanger the life of another; and (b) intends to arouse a fear that the threat will be, or is likely to be, carried out, or is recklessly indifferent as to whether such a fear is aroused, (b) for an aggravated offence—imprisonment for 12 years. (a) threatens, without lawful excuse, to cause harm to another; and (b) intends to arouse a fear that the threat will be, or is likely to be, carried out, or is recklessly indifferent as to whether such a fear is aroused, (c) for an offence aggravated by the circumstances referred to in section 5AA(1)(c), (ca) or (ka)—imprisonment for 8 years. (3) This section applies to a threat directly or indirectly communicated by words (written or spoken) or by conduct, or partially by words and partially by conduct. harm, in relation to a person, has the same meaning as in section 21. Division 5—Stalking and harassment 19AA—Stalking and harassment (1) A person is guilty of stalking and harassment of another person if— (a) on at least two separate occasions, the person— (i) follows the other person; or (ii) loiters outside the place of residence of the other person or some other place frequented by the other person; or (iii) enters or interferes with property in the possession of the other person; or (iv) gives or sends offensive material to the other person, or leaves offensive material where it will be found by, given to or brought to the attention of the other person; or (iva) publishes or transmits offensive material in such a way that the offensive material will be found by, or brought to the attention of, the other person; or (ivaa) publishes or transmits material that appears to have been prepared, published, transmitted or authorised by the other person in a manner that could reasonably be expected to arouse apprehension or fear in the other person; or (ivb) communicates with the other person, or to others about the other person, in a manner that could reasonably be expected to arouse apprehension or fear in the other person; or (v) monitors, tracks or surveils the other person, or the person's movements, activities or associations; or A person may monitor, track or surveil another person by— • using a tracking device or drone to track the other person's movements • accessing the other person's call history, internet browser history, messages or other history or communications • accessing or monitoring the other person's social media account, email account or other online account. (vi) acts in any other way that could reasonably be expected to arouse the other person's apprehension or fear; and (b) the person— (i) intends to cause physical or mental harm to the other person or a third person; or (ii) intends to cause serious apprehension or fear; or (iii) ought reasonably to have known that— (A) physical or mental harm would be caused to the other person or a third person; or (B) serious apprehension or fear would be caused. (2) For the purposes of subsection (1), a reference to conduct set out in paragraph (a)(iv) to (vi) (inclusive) will be taken to include, without limitation, conduct that is engaged in or undertaken— (a) by way of the internet or any other form of electronic communication or technology; or (b) by way of a social media platform or any other online platform or network; or (c) by way of telephone, email, fax or any other associated technology; or (d) by way of mail or any other analogue manner of communication; or (e) in person. (2a) It is a defence to a charge of an offence against subsection (1) if the defendant proves that the conduct allegedly constituting the offence was engaged in with lawful authority. (3) A person who is charged with stalking and harassment is (subject to any exclusion in the instrument of charge) to be taken to have been charged in the alternative with offensive behaviour1 so that if the court is not satisfied that the charge of stalking and harassment has been established but is satisfied that the charge of offensive behaviour has been established, the court may convict the person of offensive behaviour. (4) A person who has been acquitted or convicted on a charge of stalking and harassment may not be convicted of another offence arising out of the same set of circumstances and involving a physical element that is common to that charge. (5) A person who has been acquitted or convicted on a charge of an offence other than stalking and harassment may not be convicted of stalking and harassment if the charge of stalking and harassment arises out of the same set of circumstances and involves a physical element that is common to the charge of that other offence. (6) For the purposes of this section, the circumstances of a dealing with material may be taken into account in determining whether the material was offensive material but, if material was inherently offensive material, the circumstances of a dealing with the material cannot be taken to have deprived it of that character. 1 See section 7 of the Summary Offences Act 1953.