Part 1Preliminary

Part 1—Preliminary 1—Short title This Act may be cited as the Criminal Law Consolidation Act 1935. 5—Interpretation (1) In this Act, unless the contrary intention appears— aggravated offence—where a provision differentiates between the penalty for an aggravated offence and the penalty for a basic offence, the reference to an aggravated offence is a reference to the offence in its aggravated form (see section 5AA); approved carer, of a child, means an approved carer (within the meaning of the Children and Young People (Safety) Act 2017) in whose care the child has been placed under that Act; basic offence—where a provision differentiates between the penalty for an aggravated offence and the penalty for a basic offence, the reference to a basic offence is a reference to the offence in its non-aggravated form (see section 5AA); bestiality means sexual activity between a person and an animal; common prostitute includes any male person who prostitutes his body for fee or reward; court means, except where a contrary intention is indicated or appears from the context, the Supreme Court, the District Court or a court of summary jurisdiction; criminal organisation has the same meaning as in Part 3B Division 1; domestic partner means a person who is a domestic partner within the meaning of the Family Relationships Act 1975, whether declared as such under that Act or not; drive includes ride; driver's licence includes a learner's permit; dwelling house does not include a building, although within the curtilage of a dwelling house and occupied with the dwelling house, unless there is a communication between the building and dwelling house, either immediate or by means of a covered and enclosed passage leading from the one to the other; firearm has the same meaning as in the Firearms Act 2015; foster parent, of a child, includes— (a) an approved carer of the child; and (b) a person in whose care the child is placed under section 77 of the Children and Young People (Safety) Act 2017; liable to be imprisoned for life means liable to be imprisoned for life or any lesser term; local government body means a council or other body constituted under the Local Government Act 1999; motor vehicle means a vehicle that is propelled by a motor; motor vessel means a vessel that is propelled by a motor; night means the interval between nine o'clock in the evening and six o'clock in the morning of the next day; offensive weapon means— (a) an article or substance made or adapted for use for causing, or threatening to cause, personal injury or incapacity including— (i) a firearm or imitation firearm (ie an article intended to be taken for a firearm); or (ii) an explosive or an imitation explosive (ie an article or substance intended to be taken for an explosive); or (b) an article or substance that a person has— (i) for the purpose of causing personal injury or incapacity; or (ii) in circumstances in which another is likely to feel reasonable apprehension that the person has it for the purpose of causing personal injury or incapacity; the Parole Board means the Parole Board of South Australia; place of divine worship means any church, chapel, meeting house or other place of divine worship; planning assessment panel means an assessment panel appointed or constituted under Part 6 Division 2 of the Planning, Development and Infrastructure Act 2016; property means real or personal property whether tangible or intangible and includes a wild animal that is in captivity or ordinarily kept in captivity; serious and organised crime offence means— (a) an offence against Part 3B; or (b) an offence that— (i) is punishable by life imprisonment; or (ii) is an aggravated offence against a provision of this, or any other, Act, if it is alleged that the offence was committed in the circumstances where— (iii) the offender committed the offence for the benefit of a criminal organisation, or 2 or more members of a criminal organisation, or at the direction of, or in association with, a criminal organisation; or (iv) in the course of, or in connection with, the offence the offender identified himself or herself in some way as belonging to, or otherwise being associated with, a criminal organisation (whether or not the offender did in fact belong to, or was in fact associated with, the organisation); sexual intercourse includes any activity (whether of a heterosexual or homosexual nature) consisting of or involving— (a) penetration of a person's vagina, labia majora or anus by any part of the body of another person or by any object; or (b) fellatio; or (c) cunnilingus, and includes a continuation of such activity; spouse—a person is the spouse of another if they are legally married; vehicle includes an animal; vessel has the same meaning as in the Harbors and Navigation Act 1993. (2) A note to a section or subsection of this Act forms part of the text of the Act unless the note clearly has no substantive effect. (3) For the purposes of this Act, a reference to a breast, vagina, labia majora, penis or other sexual organ includes a reference to a surgically constructed or altered breast, vagina, labia majora, penis or sexual organ (as the case may be). 5AA—Aggravated offences (1) Subject to this section, an aggravated offence is an offence committed in 1 or more of the following circumstances: (a) the offender committed the offence in the course of deliberately and systematically inflicting severe pain on the victim; (b) the offender used, or threatened to use, an offensive weapon to commit, or when committing, the offence; (c) the offender committed the offence against a police officer, prison officer, employee in a training centre (within the meaning of the Youth Justice Administration Act 2016) or other law enforcement officer— (i) knowing the victim to be acting in the course of his or her official duty; or (ii) in retribution for something the offender knows or believes to have been done by the victim in the course of his or her official duty; (ca) the offender committed the offence against a community corrections officer (within the meaning of the Correctional Services Act 1982) or community youth justice officer (within the meaning of the Youth Justice Administration Act 2016) knowing the victim to be acting in the course of their official duties; (d) the offender committed the offence— (i) intending to prevent or dissuade the victim from taking legal proceedings or from pursuing a particular course in legal proceedings; or (ii) in connection with the victim's conduct or future conduct (as party, witness or in any other capacity) in legal proceedings; or (iii) in retribution against the victim for taking legal proceedings or for the victim's conduct (as party, witness or in any other capacity) in legal proceedings; (e) the offender committed the offence— (i) in the case of an offence against section 63B(3)—believing that the victim of the offence was, at the time of the offence, under the age of 14 years; or (ii) in the case of an offence against Part 3 Division 8A or section 63B(1)—knowing that the victim of the offence was, at the time of the offence, under the age of 14 years; or (iii) in any other case—knowing that the victim of the offence was, at the time of the offence, under the age of 12 years; (f) the offender committed the offence knowing that the victim of the offence was, at the time of the offence, over the age of 60 years; (g) the offender committed the offence knowing that the victim of the offence was a person with whom the offender was, or was formerly, in a relationship; (ga) — (i) the offender committed the offence for the benefit of a criminal organisation, or 2 or more members of a criminal organisation, or at the direction of, or in association with, a criminal organisation; or (ii) in the course of, or in connection with, the offence the offender identified himself or herself in some way as belonging to, or otherwise being associated with, a criminal organisation (whether or not the offender did in fact belong to, or was in fact associated with, the organisation); (h) except in the case of an offence against Part 3A, the offender committed the offence in company with 1 or more other persons (including persons who are children); (ha) in the case of an offence against Division 2 or 3 of Part 5, or Part 6A—the offender committed the offence in a place in relation to which, at the time of the offence— (i) there was in force a declaration under Part 4 of the Emergency Management Act 2004; or (ii) — (A) residents and others in the place, or in the vicinity of the place, had been advised (by radio broadcast) by the CFS that, as a result of a severe, extreme or catastrophic fire danger rating in respect of the place, they should activate their bushfire survival plan; and (B) that advice had not been withdrawn or ceased to apply; or (iii) residents and others had not been able to return to the place after leaving in response to a declaration referred to in subparagraph (i) or the provision of advice referred to in subparagraph (ii), and the offender knew, ought reasonably to have known, or was reckless with respect to, that fact; (i) the offender abused a position of authority, or a position of trust, in committing the offence; (ia) in the case of an offence constituted under Part 7B where the principal offence is an aggravated offence—the principal offender was, to the knowledge of the offender under that Part, a child; (j) the offender committed the offence knowing that the victim was, at the time of the offence, in a position of particular vulnerability because of physical disability or cognitive impairment; (k) in the case of an offence against the person— (i) the victim was, to the knowledge of the offender, in a position of particular vulnerability at the time of the offence because of the nature of his or her occupation or employment; (ka) in the case of an offence against the person—the victim was, at the time of the offence, engaged in a prescribed occupation or employment (whether on a paid or volunteer basis) and the offender committed the offence knowing the victim to be acting in the course of the victim's official duties; (l) the offender was, at the time of the offence, acting in contravention of an injunction or other order of a court (made in the exercise of either state or federal jurisdiction) and the offence lay within the range of conduct that the injunction or order was designed to prevent. (1a) For the purposes of section 19A, an aggravated offence is an offence committed in 1 or more of the following circumstances: (a) the offender committed the offence in the course of attempting to escape pursuit by a police officer; (ab) the offender was, at the time of the offence, driving a motor vehicle in a street race; (b) the offender was, at the time of the offence, driving a vehicle knowing that he or she was disqualified, under the law of this State or another State or Territory of the Commonwealth, from holding or obtaining a driver's licence or that his or her licence was suspended by notice given under the Road Traffic Act 1961; (c) the offender committed the offence as part of a prolonged, persistent and deliberate course of very bad driving or vessel operation; (d) the offender committed the offence while there was present in his or her blood a concentration of .08 grams or more of alcohol in 100 millilitres of blood; (e) the offender was, at the time of the offence, driving a vehicle in contravention of section 45A, 47 or 47BA of the Road Traffic Act 1961 or operating a vessel in contravention of section 70(1) of the Harbors and Navigation Act 1993. (1ab) For the purposes of section 19ABA(1) or (2), an aggravated offence is an offence committed in 1 or more of the following circumstances: (a) the offender was, at the time of the offence, driving a motor vehicle knowing that they were disqualified, under the law of this State or another State or Territory of the Commonwealth, from holding or obtaining a driver's licence or that their licence was suspended by notice given under the Road Traffic Act 1961; (b) the offender committed the offence while there was present in the offender's blood a concentration of .08 grams or more of alcohol in 100 millilitres of blood; (c) the offender was, at the time of the offence, driving a motor vehicle in contravention of section 44C, 47 or 47BA of the Road Traffic Act 1961; (d) the offender was, at the time of the offence, driving or using a motor vehicle knowing that it had a material defect and that material defect contributed to the commission of the offence. (1b) For the purposes of section 19AC, an aggravated offence is an offence committed in 1 or more of the following circumstances: (a) the offender was, at the time of the offence, driving or using a motor vehicle that— (i) was stolen; or (ii) was being driven or used without the consent of the owner of the vehicle, and the offender knew, or was reckless with respect to, that fact; (b) the offender was, at the time of the offence, driving a motor vehicle knowing that he or she was disqualified, under the law of this State or another State or Territory of the Commonwealth, from holding or obtaining a driver's licence or that his or her licence was suspended by notice given under the Road Traffic Act 1961; (c) the offender committed the offence while there was present in his or her blood a concentration of .08 grams or more of alcohol in 100 millilitres of blood; (d) the offender was, at the time of the offence, driving a motor vehicle in contravention of section 47 or 47BA of the Road Traffic Act 1961. (1c) For the purposes of section 19AD, an aggravated offence is an offence committed by the driver of a motor vehicle in 1 or more of the following circumstances: (a) the offender knew that, at the time of the offence, he or she was driving the motor vehicle in circumstances of heightened risk; (b) the offender committed the offence knowing that there were 1 or more passengers in or on the motor vehicle; (c) the offender knew, or ought reasonably to have known, that, at the time of the offence, he or she was driving a motor vehicle that had a major defect. (1d) For the purposes of section 19ADA, an aggravated offence is— (a) an offence that caused harm to a person; or (b) an offence committed by the driver of a motor vehicle in 1 or more of the following circumstances: (i) the offender was, at the time of the offence, driving or using a motor vehicle that— (A) was stolen; or (B) was being driven or used without the consent of the owner of the vehicle, and the offender knew, or was reckless with respect to, that fact; (ii) the offender committed the offence in the course of attempting to escape pursuit by a police officer; (iii) the offender committed the offence knowing that there were 1 or more passengers in or on the motor vehicle; (iv) the offender committed the offence while the offender was the holder of— (A) a provisional licence; or (B) a probationary licence; or (C) a learner's permit; or (D) an interstate provisional licence; or (E) an interstate learner's permit, (as defined in the Motor Vehicles Act 1959) authorising the holder to drive a motor vehicle of the class driven by the offender at the time of the offence; (v) the offender was not, at the time of the offence, the holder of— (A) a driver's licence; or (B) a learner's permit; or (C) an interstate licence; or (D) an interstate learner's permit; or (E) a foreign licence, (as defined in the Motor Vehicles Act 1959) authorising the holder to drive a motor vehicle of the class driven by the offender at the time of the offence; (vi) the offender was, at the time of the offence, driving a motor vehicle knowing that they were disqualified, under the law of this State or another State or Territory of the Commonwealth, from holding or obtaining a driver's licence or that their licence was suspended by notice given under the Road Traffic Act 1961; (vii) the offender committed the offence while there was present in the offender's blood a concentration of .08 grams or more of alcohol in 100 millilitres of blood; (viii) the offender was, at the time of the offence, driving a motor vehicle in contravention of section 47 or 47BA of the Road Traffic Act 1961. (2) A person is taken to know a particular fact if the person, knowing of the possibility that it is true, is reckless as to whether it is true or not. (2a) For the purposes of subsection (1)(ga)(ii), a person will be taken to have identified himself or herself as belonging to, or as being associated with, a criminal organisation if the person displayed (whether on an article of clothing, as a tattoo or otherwise) the insignia of the criminal organisation unless the person proves that he or she did not display the insignia knowingly or recklessly. (2b) Subsection (2a) does not limit the ways in which a person may identify himself or herself as belonging to, or being associated with, a criminal organisation. (3) If a person is charged with an aggravated offence, the circumstances alleged to aggravate the offence must be stated in the instrument of charge. (4) If a jury finds a person guilty of an aggravated offence, and 2 or more aggravating factors are alleged in the instrument of charge, the jury must state which of the aggravating factors it finds to have been established (but a failure to comply with this subsection does not affect the validity of the jury's verdict). (4a) Two people will be taken to be in a relationship for the purposes of subsection (1)(g) if— (a) they are married to each other; or (b) they are domestic partners; or (c) they are in some other form of intimate personal relationship in which their lives are interrelated and the actions of 1 affects the other; or (d) 1 is the child, stepchild or grandchild, or is under the guardianship, of the other (regardless of age); or (e) 1 is a child, stepchild or grandchild, or is under the guardianship, of a person who is or was formerly in a relationship with the other under paragraph (a), (b) or (c) (regardless of age); or (f) 1 is a child and the other is a person who acts in loco parentis in relation to the child; or (g) 1 is a child who normally or regularly resides or stays with the other; or (h) they are brothers or sisters or brother and sister; or (i) they are otherwise related to each other by or through blood, marriage, a domestic partnership or adoption; or (j) they are related according to Aboriginal or Torres Strait Islander kinship rules or are both members of some other culturally recognised family group; or (k) 1 is the carer (within the meaning of the Carers Recognition Act 2005) of the other. CFS means the South Australian Country Fire Service; child means a person under 18 years of age; circumstances of heightened risk, in relation to the driving of a motor vehicle, means— (a) driving the motor vehicle between sunset on one day and sunrise on the next day; or (b) driving the motor vehicle in circumstances where traction between the vehicle and the surface being driven on is adversely affected; or (c) driving the motor vehicle in circumstances where visibility is adversely affected; 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; harm has the same meaning as in section 21; major defect—a motor vehicle has a major defect if use of the motor vehicle constitutes a serious risk to the safety of any person; material defect—a motor vehicle has a material defect if it has a defect that could affect the safe operation of the vehicle; street race has the meaning given in section 19AD. (6) This section does not prevent a court from taking into account, in the usual way, the circumstances of and surrounding the commission of an offence for the purpose of determining sentence. 1 A person is charged with a basic offence and the court finds that the offence was committed in circumstances that would have justified a charge of the offence in its aggravated form. In this case, the court may, in sentencing, take into account the circumstances of aggravation for the purpose of determining penalty but must (of course) fix a penalty within the limits appropriate to the basic offence. 2 A person is charged with an aggravated offence and the court finds a number (but not all) of the circumstances alleged in the instrument of charge to aggravate the offence have been established. In this case, the court may, in sentencing, take into account the established circumstances of and surrounding the aggravated offence (whether alleged in the instrument of charge or not) but must not (of course) take account of circumstances alleged in the instrument of charge that were not established. 5AB—Mandatory penalty for certain child sex offences committed by serious child sex offenders (1) Despite section 53 of the Legislation Interpretation Act 2021, the mandatory penalty for a triggering child sex offence committed by a serious child sex offender is a sentence of indeterminate duration. (2) However, subsection (1) does not apply if the court sentencing a serious child sex offender for a triggering child sex offence— (a) determines under section 48I(1)(a) of the Sentencing Act 2017 that a sentence of imprisonment to be served in a correctional facility is not to be imposed in relation to the offence; or (b) makes a declaration under section 48J of the Sentencing Act 2017, (in which case the maximum penalty for the triggering child sex offence is the maximum penalty for the relevant offence had it not been committed by a serious child sex offender). (3) For the purposes of this section, a reference to a sentence of indeterminate duration will be taken to be a reference to the detention of a person in custody until the sentence of imprisonment is extinguished by order of the Supreme Court under section 48M of the Sentencing Act 2017. serious child sex offender has the same meaning as in the Sentencing Act 2017; triggering child sex offence has the same meaning as in the Sentencing Act 2017. 5A—Abolition of capital punishment (1) Notwithstanding any provision of any Act or law, no sentence of death shall be— (a) imposed on, or recorded against, any person; or (b) carried into execution on any person. (2) Where any person is liable to sentence of death under any Act or law, the court before which that person is convicted shall, instead of sentencing him to death, sentence him to be imprisoned for life. (3) Any sentence of death that was imposed or recorded before the commencement of the Statutes Amendment (Capital Punishment Abolition) Act 1976 shall (whether or not that sentence has been commuted to a sentence of imprisonment for life) be deemed to be a sentence of imprisonment for life imposed by a court of competent jurisdiction. (4) Any direction or order made by the Governor on, or in relation to, the commutation of a sentence of death to a sentence of imprisonment for life shall be deemed to be a direction or order given or made by a court of competent jurisdiction. 5B—Proof of lawful authority or lawful or reasonable excuse In proceedings for an offence against this Act in which it is material to establish whether an act was done with or without lawful authority, lawful excuse or reasonable excuse the onus of proving the authority or excuse lies on the defendant and in the absence of such proof it will be presumed that no such authority or excuse exists. 5D—Abolition of historical classifications (1) The classification of offences as felonies is abolished. (2) The classification of offences as misdemeanours is abolished.