CRIMES ACT 1958 No. 6231 of 1958 Version incorporating amendments as at 3 September 2009 Crimes Act 1958 - TABLE OF PROVISIONS Section Page 1. Short title and commencement 2. Repeals and savings 2A. Definitions 2B. Offences under this Act deemed to be indictable offences PART I-OFFENCES Division 1-Offences against the person (1) Homicide 3. Punishment for murder 3A. Unintentional killing in the course or furtherance of a crime of violence 3B. Provocation no longer a partial defence to murder 4. Alternative verdict of defensive homicide on charge for murder 5. Punishment of manslaughter 5A. Child homicide 6. Infanticide 6A. Suicide no longer a crime 6B. Survivor of suicide pact who kills deceased party is guilty of manslaughter 7. Repealed 8. Petit treason 9. Provision for trial for murder or manslaughter in Victoria where death or cause of death only happens in Victoria 9AA. Abolition of year-and-a-day rule (1AA) Exceptions to homicide offences 9AB. Definitions and application of Subdivision 9AC. Murder-"self-defence" 9AD. Defensive homicide 9AE. Manslaughter-"self-defence" 9AF. Self-defence exceptions do not apply in the case of lawful conduct 9AG. Duress 9AH. Family violence 9AI. Sudden or extraordinary emergency 9AJ. Intoxication (1A) Treasonable offences 9A. Treason (2), (3) Repealed 10-14. Repealed (4) Offences against the person 15. Definitions 16. Causing serious injury intentionally 17. Causing serious injury recklessly 18. Causing injury intentionally or recklessly 19. Offence to administer certain substances 19A. Intentionally causing a very serious disease 20. Threats to kill 21. Threats to inflict serious injury 21A. Stalking 22. Conduct endangering life 23. Conduct endangering persons 24. Negligently causing serious injury 25. Setting traps etc. to kill 26. Setting traps etc. to cause serious injury 27. Extortion with threat to kill 28. Extortion with threat to destroy property etc. 29. Using firearm to resist arrest etc. 30. Threatening injury to prevent arrest 31. Assaults 31A. Use of firearms in the commission of offences 31B. Being armed with criminal intent 32. Offence to perform female genital mutilation 33. Offence to take a person from the State with the intention of having prohibited female genital mutilation performed 34. Consent not a defence to a charge under sections 32 or 33. 34A. Exceptions to offences under section 32. (5) Corpses 34B. Offence to interfere with corpse of a human being (6), (7) Repealed (8) Sexual offences (general provisions) 35. Definitions 36. Meaning of consent 37. Jury directions 37AAA. Jury directions on consent 37AA. Jury directions on the accused's awareness 37A. Objectives of Subdivisions 8A to 8G. 37B. Guiding principles (8A) Rape and indecent assault 38. Rape 38A. Compelling sexual penetration 39. Indecent assault 40. Assault with intent to rape 41-43. Repealed (8B) Incest 44. Incest (8C) Sexual offences against children 45. Sexual penetration of child under the age of 16. 46. Repealed 47. Indecent act with child under the age of 16. 47A. Persistent sexual abuse of child under the age of 16. 48. Sexual penetration of 16 or 17 year old child 49. Indecent act with 16 or 17 year old child 49A. Facilitating sexual offences against children (8D) Sexual offences against persons with a cognitive impairment 50. Definitions 51. Sexual offences against persons with a cognitive impairment by providers of medical or therapeutic services 52. Sexual offences against persons with a cognitive impairment by providers of special programs (8E) Other sexual offences 53. Administration of drugs etc. 54. Occupier etc. permitting unlawful sexual penetration 55. Abduction or detention 56. Abduction of child under the age of 16. 57. Procuring sexual penetration by threats or fraud 58. Procuring sexual penetration of a child 59. Bestiality 60. Repealed 60A. Sexual offence while armed with an offensive weapon (8EAA) Sexual servitude 60AB. Sexual servitude 60AC. Aggravated sexual servitude 60AD. Deceptive recruiting for commercial sexual services 60AE. Aggravated deceptive recruiting for commercial sexual services (8EA) Loitering by sexual offender 60B. Loitering near schools etc. (8F) Jury warnings 61. Jury warnings (8G) Abrogation of obsolete rules of law 62. Abrogation of obsolete rules of law (9) Child stealing 63. Child stealing (9A) Kidnapping 63A. Kidnapping (10) Bigamy 64. Bigamy (11) Attempts to procure abortion 65. Abortion performed by unqualified person 66. Abortion-Abolition of common law offences (12) Concealing the birth of a child 67. Concealing birth of a child (13) Child pornography 67A. Definitions 68. Production of child pornography 69. Procurement etc. of minor for child pornography 70. Possession of child pornography 70AA. Forfeiture (14) Sexual performances involving a minor 70AB. Definitions 70AC. Sexual performance involving a minor Division 1A-Piracy 70A. Piracy with violence 70B. Piratical acts 70C. Trading etc. with pirates 70D. Being found on board piratical vessel and unable to prove non-complicity Division 2-Theft and similar or associated offences 71. Definitions 72. Basic definition of theft 73. Further explanation of theft Theft, robbery, burglary, &c. 74. Theft 74A. Shop theft 75. Robbery 75A. Armed robbery 76. Burglary 77. Aggravated burglary 78. Removal of articles from places open to the public 79. Repealed 80. Unlawfully taking control of an aircraft Fraud and blackmail 80A. Extra-territorial offences 81. Obtaining property by deception 82. Obtaining financial advantage by deception 83. False accounting 83A. Falsification of documents 83B. Abolition of common law offences of forgery and uttering 84. Liability of company officers for certain offences by company 85. False statements by company directors etc. 86. Suppression etc. of documents 87. Blackmail Offences relating to goods stolen, &c. 88. Handling stolen goods 88A. Alternative counts of theft and handling stolen goods 89. Advertising rewards for return of goods stolen or lost 90. Scope of offences relating to stolen goods Possession of housebreaking implements, &c. 91. Going equipped for stealing etc. 92. Search for stolen goods 93. Procedure and evidence 94. Repealed General and consequential provisions 95. Husband and wife 96-174. Repealed Secret commissions prohibition 175. Definitions 176. Receipt or solicitation of secret commission by an agent an indictable offence 177. Secret gifts to parent, wife, child, partner etc. of agent deemed gifts to agent 178. Giving or receiving false or misleading receipt or account an indictable offence 179. Gift or receipt of secret commission in return for advice given 180. Secret commission to trustee in return for substituted appointment 181. Aiding and abetting offences within or outside Victoria 182. Liability of directors etc. acting without authority 183. Repealed 184. Protection of witness giving answers criminating himself 185. Stay of proceedings against such witness 186. Custom of itself no defence Fraudulently inducing persons to invest 187-190. Repealed 191. Fraudulently inducing persons to invest money 192. Evidence of financial position of company Division 2AA-Identity crime 192A. Definitions 192B. Making, using or supplying identification information 192C. Possession of identification information 192D. Possession of equipment used to make etc. identification documentation 192E. Not an offence to attempt to commit an identity crime offence Division 2A-Money laundering etc. 193. Definitions 194. Dealing with proceeds of crime 195. Dealing with property suspected of being proceeds of crime 195A. Dealing with property which subsequently becomes an instrument of crime Division 3-Criminal damage to property (1) General offences and procedural provisions 196. Definition 197. Destroying or damaging property 197A. Arson causing death 198. Threats to destroy or damage property 199. Possessing anything with intent to destroy or damage property 200. Repealed 201. Lawful excuse 201A. Intentionally or recklessly causing a bushfire 202. Jurisdiction of magistrates' courts 203-205. Repealed (2) Injuries to buildings &c. by rioters and forcible entries and detainers 206. Rioters demolishing buildings 207. Forcible entry 208-224. Repealed (3) Interference with mines, sea banks &c., railways and navigation aids 225. Conveying water into a mine 226, 227. Repealed 228. Removing etc. piles of sea banks 229-231. Repealed 232. Placing things on railways to obstruct or overturn engine etc. 233. Obstructing engine, carriage etc. on railway 234-243. Repealed 244. Altering signals or exhibiting false ones 245. Removing buoy etc. 246. Repealed (4) Injuries to aircraft 246A. Endangering safe operation of an aircraft 246B. Setting fire etc. to aircraft 246C. Endangering safety of aircraft 246D. Dangerous goods on aircraft 246E. Threats to safety of aircraft 246F. Repealed (5) False statements 247. False statements (6) Computer offences 247A. Interpretation 247B. Unauthorised access, modification or impairment with intent to commit serious offence 247C. Unauthorised modification of data to cause impairment 247D. Unauthorised impairment of electronic communication 247E. Possession of data with intent to commit serious computer offence 247F. Producing, supplying or obtaining data with intent to commit serious computer offence 247G. Unauthorised access to or modification of restricted data 247H. Unauthorised impairment of data held in computer disk, credit card or other device 247I. Extra-territorial operation of offences (7) Sabotage 247J. Interpretation 247K. Sabotage 247L. Threats to sabotage Division 4-Contamination of goods 248. Interpretation 249. Contaminating goods with intent to cause, or being reckless as to whether it would cause, public alarm or economic loss 250. Threatening to contaminate goods with intent to cause, or being reckless as to whether it would cause, public alarm or economic loss 251. Making false statements concerning contamination of goods with intent to cause, or being reckless as to whether it would cause, public alarm or economic loss 252. Territorial nexus for offences Division 5-Destruction of evidence 253. Definitions 254. Destruction of evidence 255. Corporate criminal responsibility for offence against section 254. 256-289. Repealed 290-313. Repealed Division 6-Perjury 314. Perjury 315. All evidence material with respect to perjury Division 7-Unlawful oaths 316. Unlawful oaths to commit treason, murder etc. Division 8-Offences connected with explosive substances 317. Offences connected with explosive substances 317A. Bomb hoaxes Division 9-Driving offences connected with motor vehicles 318. Culpable driving causing death 319. Dangerous driving causing death or serious injury Division 9A-Penalties for certain common law offences 320. Maximum term of imprisonment for certain common law offences Division 10-Conspiracy 321. Conspiracy to commit an offence 321A. Agreements to commit offences outside Victoria 321B. As to consequences of acquittal of co-conspirators 321C. Penalties for conspiracy 321D. Application of certain provisions 321E. Limitations on prosecution 321F. Abolition of certain offences of conspiracy at common law Division 11-Incitement 321G. Incitement 321H. Incitement to commit offences outside Victoria 321I. Penalties for incitement 321J. Application of certain provisions 321K. Limitations on prosecution 321L. Incitement at common law abolished Division 12-Attempts 321M. Attempt 321N. Conduct constituting attempt 321O. Attempts to commit offence outside Victoria 321P. Penalties for attempt 321Q. Limitations on prosecution 321R. Application of Division 321S. Abolition of attempt at common law 322. Repealed PART IA-ABOLITION OF OBSOLETE OFFENCES 322A. Maintenance and certain other offences abolished PART IB-ABOLITION OF HISTORICAL CLASSIFICATIONS 322B. Abolition of distinctions between felony and misdemeanour 322C. Nomenclature 322D. Transitional provisions 322E. Treason and misprision of treason not affected 322F. Other enactments not affected PART II-OFFENDERS Division 1-Abettors, accessories and concealers of offences (1) Abettors in indictable offences 323. Abettors in indictable offences triable as principal offenders (2) Abettors in offences punishable summarily 324. Abettors in summary offences triable as principal offenders (3) Accessories 325. Accessories (4) Concealers of offences 326. Concealing offences for benefit 327-333. Repealed (5) Repealed 334. Repealed Division 2-Repealed 335. Repealed Division 3-Criminal liability of married persons 336. Marital coercion 337. Misprision 338. Accessory after the fact 339. Conspiracy and incitement PART IIA-EXTRA-TERRITORIAL OFFENCES 340. Definitions 341. Issue of search warrant 342. Authority conferred by and other incidents of a search warrant 343. Obstruction 344. Ministerial arrangements for transmission and return of seized objects 345. Regulations 346-350. Repealed PART III-PROCEDURE AND PUNISHMENT Division 1-Pleading procedure, proof &c. (1) Mode of prosecution 351. Mode of prosecution 352. Repealed 353. Presentments 354. Indictments 355, 356. Repealed (2) Discharge without prosecution 357. Discharge of persons under committal for indictable offence (3) Repealed 358. Repealed (4) Change of time or place of trial 359. Order for change of time or place of trial 359AA. Supreme Court and County Court may determine summary offences 359A. Time limit on certain prosecutions 359B. Non-appearance of corporate accused person (5) Postponement of trial 360. Order for postponement of trial 360A. Adjournment or stay of trial (6) Removal of accused persons to and from prison 361. Removal of accused persons to and from prison (7) Repealed 362. Repealed (8) Joinder of defendants in certain cases 363. Separate abettors or accessories may be tried together (9) What presentments indictments and instruments shall suffice and avail 364. Definition 365. Provisions relating to presentments to apply to indictments etc. 366. Rules as to presentments 367, 368. Repealed 369. General provisions as to presentments 370. No objections as to form 371. Joinder of charges in the same presentment 372. Orders for amendment of presentment, separate trial etc. 373. Other powers not affected 374. Savings 375. Omission of certain details not fatal to presentment etc. 376. Previous convictions may be added to presentment 377, 378. Repealed 379. Description of property of Her Majesty in theft cases 380. Property under management of body corporate to be property thereof 381. Money or securities etc. may be described simply as money 382. Presentment for stealing etc. documents of title 383-385. Repealed 386. Form of presentment or indictment for perjury etc. 387. Form of presentment or indictment etc. for subornation of perjury etc. (10) Preliminary objections not to be taken 388. No technical objections allowed (11) No right to traverse or postpone 389. No person entitled to traverse or have time to plead (12) Trial, arraignment, plea &c. 390. Police to be present at courts 390A. Entitlement to plead "Not Guilty" 391. Plea of "Not Guilty" puts the accused on trial by jury; procedure where no evidence led 391A. Judge may hear and determine question of law etc. before jury is impanelled 391B. Hearing of application for exclusion of evidence 392. Refusal to plead 393. Repealed 394. Form of plea of autrefois convict or autrefois acquit 395. Trial where accused has previous convictions 396. Not necessary to inquire into accused's lands etc. (13) Defence 397. When and by whom prisoner's defence may be made (14) Evidence. Depositions. Subpoenas and warrants against witnesses 398. Caution to be given to person charged 398A. Admissibility of propensity evidence 399. The accused, husbands and wives as witnesses for the defence; evidence of character of accused 399A. Alibi evidence 399B. Provision relating to witnesses to alibis 400. Wife or husband etc. of the accused to be competent and compellable witnesses 401. Provision for simplifying proof of previous offences 402. Previous convictions to be noted in new sentence 403. Repealed 404. Proof of marriage on trial for bigamy 405. Meaning of term official record 406-408A Repealed 409. No need to prove specific intent to defraud in trials relating to instruments 410. Repealed 411. Determination of age 412. Prisoners entitled to inspect depositions on trial 413. Depositions taken on one charge may be read in prosecution of others 414. Subpoenas in criminal cases may be issued by sheriffs etc. 415. Issue of warrant when witness does not appear (15) Amendments and errors 416. Amendments in criminal proceedings (16) Summing up 417. Rights of prosecution on trials before juries (17) Statements by prisoners 418. Procedure for evidence by accused (18) View 419. View (19) Verdicts. Attempts, &c. 420. Repealed 420A. Where person charged with unlawful publication of defamatory matter 421. Alternative verdicts on charge of murder 422. Procedure where facts proved on trial disclose more serious offence 422A. Alternative verdict for certain charges relating to driving 423. Jury may acquit of indictable offence and convict of unlawfully wounding etc. 424. Alternative verdict on poisoning charge 425. Alternative verdicts for certain charges of sexual offences 426. Alternative verdict for identity crime offences 427. Alternative verdict for destroying property charges 428. Alternative verdict for charges of unauthorised modification of data to cause impairment 429. Alternative verdict for charges of unauthorised impairment of electronic communication 430-434. Repealed 435. Alternative verdict for charges relating to riots (19A) Repealed 435A. Repealed (20) Records after amendment 436. Records to be drawn up in amended form (21) Judgments 437. Judgment not to be reversed because juror not returned as a juror 438. Repealed 439. Payment of fine forwarded to Prothonotary (22) Restitution of property stolen &c. 440-443. Repealed 443A. DPP may give directions for release of property tendered in evidence (23) Procedure on disagreement of jury 444. Procedure on disagreement of jury (24) Power to commit for perjury 445. Any court or judge may direct that a person be prosecuted for perjury (25) Crown cases reserved 446. Questions of law may be reserved 447. Case to be stated 448. Case may be sent back for amendment 449. Refusal of Court to reserve a question of law 450. Court to state case upon being served with order absolute 450A. Director of Public Prosecutions may refer point of law to Court of Appeal (26) Costs 451, 452. Repealed 453. Scale of charges (27) Court fees not payable by defendants 454. Court fees not payable by defendants (28) No certiorari. Warrants not void for defects 455. Presentments not to be removed by certiorari (29) Actions 456. Provisions as to action against persons acting in pursuance of Act (29A) Giving name and address on demand 456AA. Requirement to give name and address (29B) Repealed 456A-456F Repealed (30) Apprehension of offenders 457. No person to be arrested without warrant except under this Act etc. 458. Person found committing offences may be arrested without warrant by any person 459. Powers of member of police force to apprehend offenders 459A. Entry and search of premises 460. Repealed 461. Arrest on reasonable grounds not to be taken to be unlawful 462. Definition of finds committing 462A. Use of force to prevent the commission of an indictable offence 463. Repealed 463A. Arrest of offenders on board aircraft 463B. Prevention of suicide (30A) Custody and investigation 464. Definitions 464AA. Digital recordings 464A. Detention of person in custody 464B. Questioning or investigation of person already held for another matter 464C. Right to communicate with friend, relative and legal practitioner 464D. Right to an interpreter 464E. Persons under 18 years 464F. Right of foreign national to communicate with consular office 464G. Recording of information required to be given to person in custody 464H. Recording of confessions and admissions 464I. No power to detain person not under arrest 464J. Right to remain silent etc. not affected Fingerprinting 464K. Fingerprinting of adults and children aged 15 or above 464L. Fingerprinting of children aged 14 or under 464M. Children's Court may order fingerprinting 464N. Taking of fingerprints 464NA. Fingerscanning for identification purposes 464O. Destruction of records 464P. Records of juvenile 464Q. Evidence of fingerprints Forensic procedures 464R. Forensic procedure on adult 464S. Informed consent 464SA. Senior police officer may authorise non-intimate compulsory procedure for certain adults 464SB. Making or refusing authorisation 464T. Court may order compulsory procedure 464U. Forensic procedure on child 464V. Interim orders 464W. Application by telephone for interim order 464X. Warrants 464Y. Caution before forensic procedure 464Z. Procedure for taking samples etc. 464ZA. Execution of authorisation or order 464ZB. Analysis of samples 464ZC. Analysis of material found at scene of offence etc. 464ZD. Forensic reports to be made available 464ZE. Evidence relating to forensic procedures 464ZF. Forensic procedure following the commission of forensic sample offence 464ZFAAA. Forensic procedure following finding of not guilty because of mental impairment 464ZFAA. Notice to attend for forensic procedure 464ZFA. Warrants issued for forensic procedures under section 464ZF or 464ZFAAA. 464ZFB. Retention of information following finding of guilt etc. 464ZFC. Destruction of information following finding of guilt etc. 464ZFD. Victorian DNA database 464ZFE. Report to Attorney-General 464ZG. Destruction of identifying information 464ZGA. Forensic information from juveniles 464ZGB. Samples given voluntarily 464ZGC. Withdrawal of consent prior to giving sample 464ZGD. Procedure to take sample 464ZGE. Safeguards after giving sample 464ZGF. Application to court where consent to retention of sample withdrawn DNA database systems 464ZGG. Supply of forensic material for purposes of DNA database 464ZGH. Use of information on Victorian DNA database 464ZGI. Permissible matching of DNA profiles 464ZGJ. Recording, retention and removal of identifying information on DNA database 464ZGK. Disclosure of Victorian information Inter-jurisdictional enforcement 464ZGL. Registration of orders 464ZGM. Carrying out of registered orders 464ZGN. Arrangements for transmission of information on DNA database 464ZGO. Taking, retention and use of forensic material authorised by laws of other jurisdictions General 464ZH. Immunity of medical practitioners, nurses, dentists and other persons 464ZI. Supreme Court-limitation of jurisdiction 464ZJ. Regulations 464ZK. Operation of other Acts 464ZL. Validation of certain orders (31) Search warrants for and seizure of things 465. Issue of search warrant by magistrate 465A. Notice that seized thing is being held for purposes of Confiscation Act 1997. 465B. Application for tainted property to be held or retained-return of warrant to court 465C. Court may make direction 465D. Notice of direction under section 465C. 465E. Effect of directions under sections 465(1B) and 465C. 466. Justice may issue warrant to search for gunpowder 467-469. Repealed 469AA. Seizure and destruction of documents containing libel 469A. Power of persons to search aircraft (32) Search warrants for women and girls 470. Power of search when female unlawfully detained for immoral purposes (33) Repealed 471. Repealed Division 2-Punishment (1) Sentences for offences 472-476A Repealed 476B. Young person sentenced to life imprisonment 477-479. Repealed 479A. Rescuing of prisoner from lawful custody 479B. Aiding a prisoner in escaping 479C. Escape and related offences (2) Repealed 480-484. Repealed (3) Execution of sentences 485-492. Repealed 493. Sentences of imprisonment etc. to be carried out according to law relating to prisons 494. Repealed (4)-(6) Repealed 495-505. Repealed Division 3-Regulations 505A. Regulations PART IV-PROBATION AND PAROLE PROVISIONS 506. Definitions Division 1-Probation (1) Probation officers 507. Probation officers (2)-(5) Repealed 508-520. Repealed Division 2-Repealed 521-541. Repealed Division 3-Regulations 542. Regulations PART V-PROPERTY OF PERSONS CONVICTED OF TREASON OR AN INDICTABLE OFFENCE. ORDERS AS TO COSTS 543, 544. Repealed 545. Persons convicted of treason or indictable offence may pay costs 546. Repealed 547. Definition of forfeiture and convict 548. When convict shall cease to be subject to operation of this Part 549-561. Repealed 562. Execution of judgments against convict provided for 563. Proceedings to recover property of convict from third person 564. Third person etc. accountable to convict when property reverts 565. Saving of general law as to indictable offence PART VI-APPEALS IN CRIMINAL CASES. REFERENCES ON PETITIONS FOR MERCY Division 1-Interpretation 566. Definitions Division 2-Right of appeal and determination of appeals 567. Right of appeal in criminal cases 567A. Appeal by Director of Public Prosecutions against sentence passed 568. Determination of appeals in ordinary cases 569. Powers of Court in special cases 570. Re-vesting and restitution of property on conviction 570A. Appeals in relation to mental impairment verdicts 570B. Provision applicable where appeals against mental impairment verdicts are allowed 570C. Appeals in relation to fitness to plead 570D. Definitions 571. Jurisdiction of Court of Appeal Division 3-Procedure 572. Time and manner for appealing 573. Judge's notes and report to be furnished on appeal 574. Supplemental powers of Court 575. Repealed 576. Right of appellant to be present 577. Appearance for prosecution 578. Cost of appeals 579. Admission of appellant to bail and custody when attending Court 580. Duties of prothonotary with respect to notices of appeal etc. 581. Notes of evidence on trial 582. Powers which may be exercised by a judge of the Court 582A. Registrar may give leave etc. 583. Rules of Court Division 4-References on petitions for mercy 584. References by Attorney-General PART 7-GENERAL 585. Supreme Court-limitation of jurisdiction 585A. Transitional provisions-(Crimes (Sexual Offences) Act 1991) 585B. Transitional provisions-(Crimes (Amendment) Act 1993) 585C. Transitional provisions-(Miscellaneous Acts (Omnibus Amendments) Act 1996) 585D. Transitional provisions-(Sentencing and Other Acts (Amendment) Act 1997) 586. Transitional provisions (Sentencing (Amendment) Act 1997) 587. Transitional provisions (Crimes (Amendment) Act 1997-Part 2) 588. Transitional provisions (Crimes (Amendment) Act 1997-Part 3) 589. Transitional provisions (Crimes (Amendment) Act 1997-Part 4) 590. Transitional provision-Crimes, Confiscation and Evidence Acts (Amendment) Act 1998. 591. Transitional provision-Crimes (Amendment) Act 1998. 592. Transitional provisions-Magistrates' Court (Amendment) Act 1999. 593. Transitional provisions-Crimes (Amendment) Act 2000. 593A. Transitional provision-Crimes (Questioning of Suspects) Act 2000. 594. Transitional provision-Magistrates' Court (Committal Proceedings) Act 2000. 596. Transitional provisions-Crimes (DNA Database) Act 2002. 597. Transitional provision-Crimes (Property Damage and Computer Offences) Act 2003. 598. Transitional provision-Crimes (Stalking) Act 2003. 599. Transitional provision-Crimes (Money Laundering) Act 2003. 600. Transitional provisions-Crimes (Dangerous Driving) Act 2004. 601. Transitional provision-Children and Young Persons (Age Jurisdiction) Act 2004. 602. Transitional provision-Crimes (Contamination of Goods) Act 2005. 603. Transitional provision-Crimes (Homicide) Act 2005. 604. Transitional provision-Justice Legislation (Miscellaneous Amendments) Act 2006. 605. Transitional provision-Justice Legislation (Further Miscellaneous Amendments) Act 2006. 606. Transitional provision-Courts Legislation (Jurisdiction) Act 2006. 606A. Transitional provision-Crimes (Sexual Offences) Act 2006. 607. Transitional provision-Crimes (Sexual Offences) (Further Amendment) Act 2006. 608. Transitional provisions-Crimes Amendment (DNA Database) Act 2007. 609. Transitional provision-Crimes Amendment (Rape) Act 2007. 610. Transitional provision-Crimes Amendment (Child Homicide) Act 2007. 612. Transitional provision-Justice Legislation Amendment (Sex Offences Procedure) Act 2008. __________________ SCHEDULE 1-Repeals SCHEDULE 2-Repealed SCHEDULE 3. SCHEDULE 4-Certificate SCHEDULE 5-Warrant SCHEDULE 6-Rules 1. General provision as to presentments 2. Joining of charges in one presentment 3. Statement of particulars 4. Endorsement of presentment 5. Provision as to statutory offences 6. Description of property 7. Description of persons 8. Description of document 9. General rule as to description 10. Statement of intent 11. Charge of previous conviction 12. Copy of statement etc. of offences to be supplied to accused in certain cases 13. Interpretation of rules 14. Short title of rules SCHEDULE 7-Summary Offences for which a Person may be Fingerprinted SCHEDULE 7A-Repealed SCHEDULE 8-Forensic Sample Offences 8A-11-Repealed --------------- ENDNOTES 1. General Information 2. Table of Amendments 3. Explanatory Details Crimes Act 1958 - SECT 1 Short title and commencement 1. Short title and commencement This Act may be cited as the Crimes Act 1958 and shall come into operation on a day to be fixed by proclamation of the Governor in Council published in the Government Gazette. Crimes Act 1958 - SECT 2 Repeals and savings 2. Repeals and savings (1) The Acts mentioned in the First Schedule to the extent thereby expressed to be repealed are hereby repealed accordingly. (2) Except as in this Act expressly or by necessary implication provided- (a) all persons things and circumstances appointed or created by or under any of the repealed Acts or existing or continuing under any of such Acts immediately before the commencement of this Act shall under and subject to this Act continue to have the same status operation and effect as they respectively would have had if such Acts had not been so repealed; (b) in particular and without affecting the generality of the foregoing paragraph, such repeal shall not disturb the continuity of status operation or effect of any proclamation regulation rule order application determination decision validation offence disqualification warrant instrument presentment direction appointment action prosecution proceeding liability or right made effected issued granted committed given presented passed fixed accrued incurred or acquired or existing or continuing by or under any of such Acts before the commencement of this Act. * * * * * Crimes Act 1958 - SECT 2A Definitions 2A. Definitions (1) In this Act unless inconsistent with the context or subject-matter- aircraft means every type of machine or structure used or intended to be used for navigation of the air; * * * * * drug of addiction means a drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981; incite includes command, request, propose, advise, encourage or authorize; Juries Commissioner has the same meaning as in the Juries Act 2000; legal practitioner means an Australian lawyer within the meaning of the Legal Profession Act 2004; * * * * * motor vehicle has the same meaning as in the Road Safety Act 1986; * * * * * * * * * * Taxing Master means any Associate Judge of the Supreme Court from time to time carrying out the functions of assessing, settling or taxing of costs in proceedings in that Court. * * * * * Crimes Act 1958 - SECT 2B Offences under this Act deemed to be indictable offences 2B. Offences under this Act deemed to be indictable offences Offences under this Act are, unless the contrary intention appears, deemed to be indictable offences. __________________ Crimes Act 1958 - PART I PART I OFFENCES Division 1-Offences against the person (1) Homicide Crimes Act 1958 - SECT 3 Punishment for murder 3. Punishment for murder Notwithstanding any rule of law to the contrary, a person convicted of murder is liable to- (a) level 1 imprisonment (life); or (b) imprisonment for such other term as is fixed by the court- as the court determines. Crimes Act 1958 - SECT 3A Unintentional killing in the course or furtherance of a crime of violence 3A. Unintentional killing in the course or furtherance of a crime of violence (1) A person who unintentionally causes the death of another person by an act of violence done in the course or furtherance of a crime the necessary elements of which include violence for which a person upon first conviction may, under or by virtue of any enactment, be sentenced to level 1 imprisonment (life) or to imprisonment for a term of 10 years or more shall be liable to be convicted of murder as though he had killed that person intentionally. (2) The rule of law known as the felony-murder rule (whereby a person who unintentionally causes the death of another by an act of violence done in the course or furtherance of a felony of violence is liable to be convicted of murder as though he had killed that person intentionally) is hereby abrogated. Crimes Act 1958 - SECT 3B Provocation no longer a partial defence to murder 3B. Provocation no longer a partial defence to murder The rule of law that provocation reduces the crime of murder to manslaughter is abolished. Crimes Act 1958 - SECT 4 Alternative verdict of defensive homicide on charge for murder 4. Alternative verdict of defensive homicide on charge for murder (1) If on the trial of a person for murder the jury are not satisfied that he or she is guilty of murder but are satisfied that he or she is guilty of an offence against section 9AD (defensive homicide), the jury may acquit the accused of murder and find him or her guilty of defensive homicide and he or she is liable to punishment accordingly. (2) This section does not restrict the operation of section 6, 10(3) or 421. Note See section 9AC for "self-defence" exception to murder. Crimes Act 1958 - SECT 5 Punishment of manslaughter 5. Punishment of manslaughter Whosoever is convicted of manslaughter shall be liable to level 3 imprisonment (20 years maximum) or to a fine in addition to or without any such other punishment as aforesaid. Crimes Act 1958 - SECT 5A Child homicide 5A. Child homicide A person who, by his or her conduct, kills a child who is under the age of 6 years in circumstances that, but for this section, would constitute manslaughter is guilty of child homicide, and not of manslaughter, and liable to level 3 imprisonment (20 years maximum). Crimes Act 1958 - SECT 6 Infanticide 6. Infanticide (1) If a woman carries out conduct that causes the death of her child in circumstances that would constitute murder and, at the time of carrying out the conduct, the balance of her mind was disturbed because of- (a) her not having fully recovered from the effect of giving birth to that child within the preceding 2 years; or (b) a disorder consequent on her giving birth to that child within the preceding 2 years- she is guilty of infanticide, and not of murder, and liable to level 6 imprisonment (5 years maximum). (2) On an indictment or presentment for murder, a woman found not guilty of murder may be found guilty of infanticide. Note See sections 10(3) and 421 for other alternative verdicts. (3) Nothing in this Act affects the power of the jury on a charge of murder of a child to return a verdict of not guilty because of mental impairment. Crimes Act 1958 - SECT 6A Suicide no longer a crime 6A. Suicide no longer a crime The rule of law whereby it is a crime for a person to commit or to attempt to commit suicide is hereby abrogated. Crimes Act 1958 - SECT 6B Survivor of suicide pact who kills deceased party is guilty of manslaughter 6B. Survivor of suicide pact who kills deceased party is guilty of manslaughter (1) Where upon the trial of a person for the murder of another person the jury are satisfied that the accused caused or was a party to causing the death of that other person by a wilful act or omission but are satisfied on the balance of probabilities that the act was done or the omission made in pursuance of a suicide pact then the jury shall, notwithstanding that the circumstances were such that but for the provisions of this section they might have returned a verdict of murder, return a verdict of manslaughter in lieu thereof. (1A) Despite section 5, a person convicted of manslaughter under subsection (1) is only liable to level 5 imprisonment (10 years maximum). (2) Any person who- (a) incites any other person to commit suicide and that other person commits or attempts to commit suicide in consequence thereof; or (b) aids or abets any other person in the commission of suicide or in an attempt to commit suicide- shall be guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum); but if the jury are satisfied on the balance of probabilities that the acts constituting the offence were done pursuant to a suicide pact the jury shall return a verdict of guilty of the indictable offence of being a party to a suicide pact and the convicted person shall be liable to level 6 imprisonment (5 years maximum). (3) The fact that by virtue of this section any person who in pursuance of a suicide pact has killed another person has not been or is not liable to be convicted of murder shall not affect the question of whether the homicide amounted to murder in the case of a third person who is a party to the homicide and is not a party to the suicide pact. (4) For the purposes of this section suicide pact means an agreement between two or more persons having for its object the death of all of them whether or not each is to take his own life; but nothing done by a person who enters into a suicide pact shall be treated as done by him in pursuance of the pact unless it is done while he has the settled intention of dying in pursuance of the pact. * * * * * Crimes Act 1958 - SECT 8 Petit treason 8. Petit treason Every offence which before the twenty-seventh day of June in the year of our Lord One thousand eight hundred and twenty-eight would have amounted to petit treason shall be deemed to be murder only; and all persons guilty in respect thereof whether as principals or as accessories shall be dealt with indicted tried and punished as principals and accessories in murder. Crimes Act 1958 - SECT 9 Provision for trial for murder or manslaughter in Victoria where death or cause of death only happens in Victoria 9. Provision for trial for murder or manslaughter in Victoria where death or cause of death only happens in Victoria Where any person being criminally stricken poisoned or otherwise hurt upon the sea or at any place out of Victoria dies of such stroke poisoning or hurt in Victoria, or being criminally stricken poisoned or otherwise hurt at any place in Victoria dies of such stroke poisoning or hurt upon the sea or at any place out of Victoria, every offence committed in respect of any such case, whether the same amounts to the offence of murder or of manslaughter or of child homicide or of defensive homicide or of being accessory to murder or manslaughter or child homicide or defensive homicide, may be dealt with inquired of tried determined and punished in Victoria in the same manner in all respects as if such offence had been wholly committed in Victoria. Crimes Act 1958 - SECT 9AA Abolition of year-and-a-day rule 9AA. Abolition of year-and-a-day rule (1) The rule of law known as the year-and-a-day rule (under which an act or omission that in fact causes death is not regarded as the cause of death if the death occurs more than a year and a day after the act or omission) is abolished. (2) This section does not apply to acts or omissions alleged to have occurred- (a) before the commencement of the Crimes (Year and a Day Rule) Act 1991; or (b) between two dates, one before and one after that commencement. (1AA) Exceptions to homicide offences Crimes Act 1958 - SECT 9AB Definitions and application of Subdivision 9AB. Definitions and application of Subdivision (1) In this Subdivision- intoxication means intoxication because of the influence of alcohol, a drug or any other substance; relevant offence means murder, manslaughter or defensive homicide. (2) Without taking away from the law relating to any other offences and except as otherwise expressly provided by this Subdivision, this Subdivision applies only to relevant offences. Crimes Act 1958 - SECT 9AC Murder-"self-defence" 9AC. Murder-"self-defence" A person is not guilty of murder if he or she carries out the conduct that would otherwise constitute murder while believing the conduct to be necessary to defend himself or herself or another person from the infliction of death or really serious injury. Notes 1. See section 4 for alternative verdict of defensive homicide where the accused had no reasonable grounds for the belief. 2. This section does not apply where the response is to lawful conduct-see section 9AF. 3. See section 9AH as to belief in circumstances where family violence is alleged. Crimes Act 1958 - SECT 9AD Defensive homicide 9AD. Defensive homicide A person who, by his or her conduct, kills another person in circumstances that, but for section 9AC, would constitute murder, is guilty of an indictable offence (defensive homicide) and liable to level 3 imprisonment (20 years maximum) if he or she did not have reasonable grounds for the belief referred to in that section. Note See section 9AH as to reasonable grounds for the belief in circumstances where family violence is alleged. Crimes Act 1958 - SECT 9AE Manslaughter-"self-defence" 9AE. Manslaughter-"self-defence" A person is not guilty of manslaughter if he or she carries out the conduct that would otherwise constitute manslaughter while believing the conduct to be necessary- (a) to defend himself or herself or another person; or (b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person- and he or she had reasonable grounds for that belief. Notes 1. See section 9AH as to reasonable grounds for the belief in circumstances where family violence is alleged. 2. This section does not apply where the response is to lawful conduct-see section 9AF. Crimes Act 1958 - SECT 9AF Self-defence exceptions do not apply in the case of lawful conduct 9AF. Self-defence exceptions do not apply in the case of lawful conduct Sections 9AC and 9AE do not apply if- (a) the person is responding to lawful conduct; and (b) at the time of his or her response, the person knows that the conduct is lawful. Crimes Act 1958 - SECT 9AG Duress 9AG. Duress (1) A person is not guilty of a relevant offence in respect of conduct carried out by him or her under duress. (2) A person carries out conduct under duress if and only if the person reasonably believes that- (a) subject to subsection (3), a threat has been made that will be carried out unless an offence is committed; and (b) carrying out the conduct is the only reasonable way that the threatened harm can be avoided; and (c) the conduct is a reasonable response to the threat. (3) However, a 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 for the purpose of carrying out violent conduct. (4) This section only applies in the case of murder if the threat is to inflict death or really serious injury. Note See section 9AH for evidentiary provisions where family violence is alleged. Crimes Act 1958 - SECT 9AH Family violence 9AH. Family violence (1) Without limiting section 9AC, 9AD or 9AE, for the purposes of murder, defensive homicide or manslaughter, in circumstances where family violence is alleged a person may believe, and may have reasonable grounds for believing, that his or her conduct is necessary- (a) to defend himself or herself or another person; or (b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person- even if- (c) he or she is responding to a harm that is not immediate; or (d) his or her response involves the use of force in excess of the force involved in the harm or threatened harm. (2) Without limiting the evidence that may be adduced, in circumstances where family violence is alleged evidence of a kind referred to in subsection (3) may be relevant in determining whether- (a) a person has carried out conduct while believing it to be necessary for a purpose referred to in subsection (1)(a) or (b); or (b) a person had reasonable grounds for a belief held by him or her that conduct is necessary for a purpose referred to in subsection (1)(a) or (b); or (c) a person has carried out conduct under duress. (3) Evidence of- (a) the history of the relationship between the person and a family member, including violence by the family member towards the person or by the person towards the family member or by the family member or the person in relation to any other family member; (b) the cumulative effect, including psychological effect, on the person or a family member of that violence; (c) social, cultural or economic factors that impact on the person or a family member who has been affected by family violence; (d) the general nature and dynamics of relationships affected by family violence, including the possible consequences of separation from the abuser; (e) the psychological effect of violence on people who are or have been in a relationship affected by family violence; (f) social or economic factors that impact on people who are or have been in a relationship affected by family violence. (4) In this section- child means a person who is under the age of 18 years; family member, in relation to a person, includes- (a) a person who is or has been married to the person; or (b) a person who has or has had an intimate personal relationship with the person; or (c) a person who is or has been the father, mother, step-father or step-mother of the person; or (d) a child who normally or regularly resides with the person; or (e) a guardian of the person; or (f) another person who is or has been ordinarily a member of the household of the person; family violence, in relation to a person, means violence against that person by a family member; violence means- (a) physical abuse; (b) sexual abuse; (c) psychological abuse (which need not involve actual or threatened physical or sexual abuse), including but not limited to- (i) intimidation; (ii) harassment; (iii) damage to property; (iv) threats of physical abuse, sexual abuse or psychological abuse; (v) in relation to a child- (A) causing or allowing the child to see or hear the physical, sexual or psychological abuse of a person by a family member; or (B) putting the child, or allowing the child to be put, at real risk of seeing or hearing that abuse occurring. (5) Without limiting the definition of violence in subsection (4)- (a) a single act may amount to abuse for the purposes of that definition; (b) a number of acts that form part of a pattern of behaviour may amount to abuse for that purpose, even though some or all of those acts, when viewed in isolation, may appear to be minor or trivial. Crimes Act 1958 - SECT 9AI Sudden or extraordinary emergency 9AI. Sudden or extraordinary emergency (1) A person is not guilty of a relevant offence in respect of conduct carried out by him or her in response to circumstances of sudden or extraordinary emergency. (2) This section applies if and only if the person carrying out the conduct 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. (3) This section only applies in the case of murder if the emergency involves a risk of death or really serious injury. Crimes Act 1958 - SECT 9AJ Intoxication 9AJ. Intoxication (1) If any part of an element of a relevant offence, or of a defence to a relevant offence, relies on reasonable belief, in determining whether that reasonable belief existed, regard must be had to the standard of a reasonable person who is not intoxicated. (2) If any part of an element of a relevant offence, or of a defence to a relevant offence, relies on a person having reasonable grounds for a belief, in determining whether those reasonable grounds existed, regard must be had to the standard of a reasonable person who is not intoxicated. (3) If any part of an element of a relevant offence, or of a defence to a relevant offence, relies on reasonable response, in determining whether that response was reasonable, 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 determining whether any part of an element of a relevant offence, or of a defence to a relevant offence, relying on reasonable belief, having reasonable grounds for a belief or reasonable response exists, regard must be had to the standard of a reasonable person intoxicated to the same extent as the person concerned. (5) For the purposes of this section, 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 person 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. (6) Despite subsection (5), intoxication is self-induced in the circumstances referred to in subsection (5)(c) or (d) 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. (1A) Treasonable offences Crimes Act 1958 - SECT 9A Treason 9A. Treason (1) A person who- (a) kills the Sovereign, does the Sovereign any bodily harm tending to the death or destruction of the Sovereign or maims, wounds, imprisons or restrains the Sovereign; (b) kills the eldest son and heir apparent, or the Consort, of the Sovereign; (c) levies war, or does any act preparatory to levying war, against the Commonwealth of Australia; (d) assists by any means whatever, with intent to assist, an enemy at war with the Commonwealth of Australia, whether or not the existence of a state of war has been declared; (e) instigates a foreigner to make an armed invasion of the Commonwealth or any Territory not forming part of the Commonwealth; or (f) forms an intention to do any act referred to in a preceding paragraph of this subsection and manifests that intention by an overt act- shall be guilty of an indictable offence, called treason, and liable to- (g) level 1 imprisonment (life); or (h) imprisonment for such other term as is fixed by the court- as the court determines. (2) A person who- (a) receives or assists another person who is to his knowledge guilty of treason in order to enable him to escape punishment; or (b) knowing that a person intends to commit treason, does not give information thereof with all reasonable despatch to a constable or use other reasonable endeavours to prevent the commission of the offence- shall be guilty of an indictable offence. Penalty: Level 3 imprisonment (20 years maximum). (3) On the trial of a person charged with treason on the ground that he formed an intention to do an act referred to in paragraph (a), (b), (c), (d) or (e) of subsection (1) of this section and manifested that intention by an overt act, evidence of the overt act shall not be admitted unless the overt act was alleged in the indictment. * * * * * * * * * * (4) Offences against the person Crimes Act 1958 - SECT 15 Definitions 15. Definitions In this subdivision- abortion has the meaning given in the Abortion Law Reform Act 2008; child means any person under the age of 18 years; female genital mutilation means all or any of the following- (a) infibulation; (b) the excision or mutilation of the whole or a part of the clitoris; (c) the excision or mutilation of the whole or a part of the labia minora or labia majora; (d) any procedure to narrow or close the vaginal opening; (e) the sealing or suturing together of the labia minora or labia majora; (f) the removal of the clitoral hood; injury includes unconsciousness, hysteria, pain and any substantial impairment of bodily function; medical practitioner means- (a) a registered medical practitioner; or (b) in relation to the performance of female genital mutilation outside Victoria, a person who, in the place in which the female genital mutilation took place, holds an authority to practise medicine which is similar to that of a registered medical practitioner; medical procedure, in relation to paragraph (b) of the definition of serious injury, means- (a) an abortion performed by a registered medical practitioner in accordance with the Abortion Law Reform Act 2008; or (b) the administration or supply of a drug or drugs by a registered pharmacist or registered nurse in accordance with the Abortion Law Reform Act 2008 to cause an abortion; midwife means- (a) a registered midwife; or (b) in relation to the performance of female genital mutilation outside Victoria, a person who, in the place in which the female genital mutilation took place, holds an authority to practise midwifery which is similar to that of registered midwife; prohibited female genital mutilation means female genital mutilation the performance of which would be an offence under this Act if carried out in the State; registered medical practitioner means a medical practitioner registered under the Health Professions Registration Act 2005; registered midwife means a person who is registered under the Health Professions Registration Act 2005 in Division 1 of the Register established under that Act and who has completed a course in midwifery approved by the Nurses Board of Victoria, established under that Act; registered nurse means a nurse registered under the Health Professions Registration Act 2005; registered pharmacist means a pharmacist registered under the Health Professions Registration Act 2005; serious injury includes- (a) a combination of injuries; and (b) the destruction, other than in the course of a medical procedure, of the foetus of a pregnant woman, whether or not the woman suffers any other harm; woman means a female person of any age. Crimes Act 1958 - SECT 16 Causing serious injury intentionally 16. Causing serious injury intentionally A person who, without lawful excuse, intentionally causes serious injury to another person is guilty of an indictable offence. Penalty: Level 3 imprisonment (20 years maximum). Crimes Act 1958 - SECT 17 Causing serious injury recklessly 17. Causing serious injury recklessly A person who, without lawful excuse, recklessly causes serious injury to another person is guilty of an indictable offence. Penalty: Level 4 imprisonment (15 years maximum). Crimes Act 1958 - SECT 18 Causing injury intentionally or recklessly 18. Causing injury intentionally or recklessly A person who, without lawful excuse, intentionally or recklessly causes injury to another person is guilty of an indictable offence. Penalty: If the injury was caused intentionally-level 5 imprisonment (10 years maximum); If the injury was caused recklessly-level 6 imprisonment (5 years maximum). Crimes Act 1958 - SECT 19 Offence to administer certain substances 19. Offence to administer certain substances (1) A person who- (a) without lawful excuse, administers to or causes to be taken by another person any substance which is capable, and which the first-mentioned person knows is capable, in the circumstances, of interfering substantially with the bodily functions of the other person; and (b) knows that the other person has not consented to the administration or taking of the substance or is reckless as to whether or not the other person has so consented- is guilty of an indictable offence. Penalty: Level 6 imprisonment (5 years maximum). (2) For the purposes of subsection (1)- (a) a person is not to be taken to have consented to the administration or taking of a substance if, had the person known the likely consequences, the person would not be likely to have consented to the administration or taking; and (b) a substance shall be taken to interfere substantially with bodily functions if the substance is capable of inducing unconsciousness or sleep. Crimes Act 1958 - SECT 19A Intentionally causing a very serious disease 19A. Intentionally causing a very serious disease (1) A person who, without lawful excuse, intentionally causes another person to be infected with a very serious disease is guilty of an indictable offence. Penalty: Level 2 imprisonment (25 years maximum). (2) In subsection (1) very serious disease means HIV within the meaning of the Health Act 1958. Crimes Act 1958 - SECT 20 Threats to kill 20. Threats to kill A person who, without lawful excuse, makes to another person a threat to kill that other person or any other person- (a) intending that that other person would fear the threat would be carried out; or (b) being reckless as to whether or not that other person would fear the threat would be carried out- is guilty of an indictable offence. Penalty: Level 5 imprisonment (10 years maximum). Crimes Act 1958 - SECT 21 Threats to inflict serious injury 21. Threats to inflict serious injury A person who, without lawful excuse, makes to another person a threat to inflict serious injury on that other person or any other person- (a) intending that that other person would fear the threat would be carried out; or (b) being reckless as to whether or not that other person would fear the threat would be carried out- is guilty of an indictable offence. Penalty: Level 6 imprisonment (5 years maximum). Crimes Act 1958 - SECT 21A Stalking 21A. Stalking (1) A person must not stalk another person. Penalty: Level 5 imprisonment (10 years maximum). (2) A person (the offender) stalks another person (the victim) if the offender engages in a course of conduct which includes any of the following- (a) following the victim or any other person; (b) contacting the victim or any other person by post, telephone, fax, text message, e-mail or other electronic communication or by any other means whatsoever; (ba) publishing on the Internet or by an e-mail or other electronic communication to any person a statement or other material- (i) relating to the victim or any other person; or (ii) purporting to relate to, or to originate from, the victim or any other person; (bb) causing an unauthorised computer function (within the meaning of Subdivision (6) of Division 3) in a computer owned or used by the victim or any other person; (bc) tracing the victim's or any other person's use of the Internet or of e-mail or other electronic communications; (c) entering or loitering outside or near the victim's or any other person's place of residence or of business or any other place frequented by the victim or the other person; (d) interfering with property in the victim's or any other person's possession (whether or not the offender has an interest in the property); (e) giving offensive material to the victim or any other person or leaving it where it will be found by, given to or brought to the attention of, the victim or the other person; (f) keeping the victim or any other person under surveillance; (g) acting in any other way that could reasonably be expected to arouse apprehension or fear in the victim for his or her own safety or that of any other person- with the intention of causing physical or mental harm to the victim or of arousing apprehension or fear in the victim for his or her own safety or that of any other person. (3) For the purposes of this section an offender also has the intention to cause physical or mental harm to the victim or to arouse apprehension or fear in the victim for his or her own safety or that of any other person if- (a) the offender knows that engaging in a course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear; or (b) the offender in all the particular circumstances ought to have understood that engaging in a course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear and it actually did have that result. (4) This section does not apply to conduct engaged in by a person performing official duties for the purpose of- (a) the enforcement of the criminal law; or (b) the administration of any Act; or (c) the enforcement of a law imposing a pecuniary penalty; or (d) the execution of a warrant; or (e) the protection of the public revenue- that, but for this subsection, would constitute an offence against subsection (1). (4A) In a proceeding for an offence against subsection (1) it is a defence to the charge for the accused to prove that the course of conduct was engaged in without malice- (a) in the normal course of a lawful business, trade, profession or enterprise (including that of any body or person whose business, or whose principal business, is the publication, or arranging for the publication, of news or current affairs material); or (b) for the purpose of an industrial dispute; or (c) for the purpose of engaging in political activities or discussion or communicating with respect to public affairs. * * * * * * * * * * (6) It is immaterial that some or all of the course of conduct constituting an offence against subsection (1) occurred outside Victoria, so long as the victim was in Victoria at the time at which that conduct occurred. (7) It is immaterial that the victim was outside Victoria at the time at which some or all of the course of conduct constituting an offence against subsection (1) occurred, so long as that conduct occurred in Victoria. Note Section 7 of the Stalking Intervention Orders Act 2008 provides that the Court within the meaning of that Act may make an intervention order in respect of stalking. Crimes Act 1958 - SECT 22 Conduct endangering life 22. Conduct endangering life A person who, without lawful excuse, recklessly engages in conduct that places or may place another person in danger of death is guilty of an indictable offence. Penalty: Level 5 imprisonment (10 years maximum). Crimes Act 1958 - SECT 23 Conduct endangering persons 23. Conduct endangering persons A person who, without lawful excuse, recklessly engages in conduct that places or may place another person in danger of serious injury is guilty of an indictable offence. Penalty: Level 6 imprisonment (5 years maximum). Crimes Act 1958 - SECT 24 Negligently causing serious injury 24. Negligently causing serious injury A person who by negligently doing or omitting to do an act causes serious injury to another person is guilty of an indictable offence. Penalty: Level 5 imprisonment (10 years maximum). Crimes Act 1958 - SECT 25 Setting traps etc. to kill 25. Setting traps etc. to kill A person who sets a trap or device with the intention of killing another person (whether a trespasser or not) or being reckless as to whether or not another person (whether a trespasser or not) is killed is guilty of an indictable offence. Penalty: Level 4 imprisonment (15 years maximum). Crimes Act 1958 - SECT 26 Setting traps etc. to cause serious injury 26. Setting traps etc. to cause serious injury A person who sets a trap or device with the intention of causing, or being reckless as to whether or not there is caused, serious injury to another person (whether a trespasser or not) is guilty of an indictable offence. Penalty: Level 5 imprisonment (10 years maximum). Crimes Act 1958 - SECT 27 Extortion with threat to kill 27. Extortion with threat to kill A person who makes a demand of another person- (a) with a threat to kill or inflict injury on a person (other than the offender or an accomplice of the offender); or (b) with a threat in circumstances where, if the threat were carried out, the life of a person (other than the offender or an accomplice of the offender) would be endangered- is guilty of an indictable offence. Penalty: Level 4 imprisonment (15 years maximum). Crimes Act 1958 - SECT 28 Extortion with threat to destroy property etc. 28. Extortion with threat to destroy property etc. A person who makes a demand of another person with a threat to destroy, or endanger the safety of, a building, structure in the nature of a building, bridge, mine, aircraft, vessel, motor vehicle, railway engine or railway carriage is guilty of an indictable offence. Penalty: Level 5 imprisonment (10 years maximum). Crimes Act 1958 - SECT 29 Using firearm to resist arrest etc. 29. Using firearm to resist arrest etc. (1) A person who makes or attempts to make any use of a firearm or imitation firearm with intent to resist or prevent the lawful apprehension or detention of himself or herself or any other person is guilty of an indictable offence. Penalty: Level 5 imprisonment (10 years maximum) or level 5 fine (1200 penalty units maximum). (2) A person who commits an offence against subsection (1) in respect of the lawful apprehension or detention of himself or herself for any other offence committed by him or her is liable to the penalty provided by that subsection in addition to any penalty to which he or she may be liable for that other offence. (3) In this section- (a) firearm has the same meaning as in the Firearms Act 1996; and (b) imitation firearm means anything which has the appearance of being a firearm whether or not it is capable of discharging any shot or other missile. Crimes Act 1958 - SECT 30 Threatening injury to prevent arrest 30. Threatening injury to prevent arrest A person who threatens injury to any other person or to any property with intent- (a) to prevent or hinder the lawful apprehension or detention of himself or herself or any other person; or (b) to prevent or hinder a member of the police force from investigating in a lawful manner any act or circumstance which reasonably calls for investigation by a member of the police force- is guilty of an indictable offence. Penalty: Level 6 imprisonment (5 years maximum). Crimes Act 1958 - SECT 31 Assaults 31. Assaults (1) A person who- (a) assaults or threatens to assault another person with intent to commit an indictable offence; or (b) assaults or threatens to assault, resists or intentionally obstructs- (i) a member of the police force in the due execution of duty; or (ii) a person acting in aid of a member of the police force- knowing that the member or person is such a member or person; or (c) assaults or threatens to assault a person with intent to resist or prevent the lawful apprehension or detention of a person- is guilty of an indictable offence. Penalty: Level 6 imprisonment (5 years maximum). (2) In subsection (1), assault means the direct or indirect application of force by a person to the body of, or to clothing or equipment worn by, another person where the application of force is- (a) without lawful excuse; and (b) with intent to inflict or being reckless as to the infliction of bodily injury, pain, discomfort, damage, insult or deprivation of liberty- and results in the infliction of any such consequence (whether or not the consequence inflicted is the consequence intended or foreseen). (3) In subsection (2)- application of force includes- (a) application of heat, light, electric current or any other form of energy; and (b) application of matter in solid, liquid or gaseous form. Crimes Act 1958 - SECT 31A Use of firearms in the commission of offences 31A. Use of firearms in the commission of offences (1) A person who is found guilty of an indictable offence and who carried- (a) a firearm (within the meaning of the Firearms Act 1996); or (b) an imitation firearm (within the meaning of section 29(3)(b))- when committing the offence is guilty of a further offence and is liable to level 6 imprisonment (5 years maximum). (2) Despite anything to the contrary in the Sentencing Act 1991 or in any other law, a court, in imposing a penalty under subsection (1)- (a) must direct that the sentence not be served concurrently with any other sentence; and (b) must not make an order suspending the whole or any part of the sentence. Crimes Act 1958 - SECT 31B Being armed with criminal intent 31B. Being armed with criminal intent (1) In this section- controlled weapon has the same meaning as in the Control of Weapons Act 1990; firearm has the same meaning as in the Firearms Act 1996; imitation firearm has the same meaning as in section 29; prohibited weapon has the same meaning as in the Control of Weapons Act 1990. (2) A person who, with criminal intent, is armed with a firearm, an imitation firearm, a prohibited weapon or a controlled weapon is guilty of an indictable offence. Penalty: Level 6 imprisonment (5 years maximum). Crimes Act 1958 - SECT 32 Offence to perform female genital mutilation 32. Offence to perform female genital mutilation (1) A person must not perform female genital mutilation on a child. Penalty: Level 4 imprisonment (15 years maximum). (2) A person must not perform on a person other than a child any type of female genital mutilation referred to in paragraphs (a) to (e) of the definition of female genital mutilation. Penalty: Level 4 imprisonment (15 years maximum). Crimes Act 1958 - SECT 33 Offence to take a person from the State with the intention of having prohibited female genital mutilation performed 33. Offence to take a person from the State with the intention of having prohibited female genital mutilation performed (1) A person must not take another person from the State, or arrange for another person to be taken from the State, with the intention of having prohibited female genital mutilation performed on the other person. Penalty: Level 4 imprisonment (15 years maximum). (2) In proceedings for an offence under subsection (1), proof that- (a) the defendant took the person, or arranged for the person to be taken from the State; and (b) the person was subjected, while outside the State, to prohibited female genital mutilation- is, in the absence of proof to the contrary, proof that the defendant took the person or arranged for the person to be taken from the State with the intention of having prohibited female genital mutilation performed on the person. Crimes Act 1958 - SECT 34 Consent not a defence to a charge under sections 32 or 33 34. Consent not a defence to a charge under sections 32 or 33 It is not a defence to a charge brought under section 32 or 33 to prove that the person on whom the act which is the subject of the charge was performed, or the parents or guardian of that person, consented to the performance of that act. Crimes Act 1958 - SECT 34A Exceptions to offences under section 32 34A. Exceptions to offences under section 32 (1) It is not an offence against section 32 if the performance of the female genital mutilation is by a surgical operation which is- (a) necessary for the health of the person on whom it is performed and which is performed by a medical practitioner; or (b) is performed on a person in labour or who has just given birth, and for medical purposes or the relief of physical symptoms connected with that labour or birth, and which is performed by a medical practitioner or a midwife; or (c) is a sexual reassignment procedure which is performed by a medical practitioner. (2) For the purposes of subsection (1)(a), in determining whether an operation is necessary for the health of a person, the only matters to be taken into account are those relevant to the medical welfare or the relief of physical symptoms of the person. (3) The burden of proving that the performance of the female genital mutilation did not occur in any of the circumstances set out in subsection (1) lies with the prosecution. (5) Corpses Crimes Act 1958 - SECT 34B Offence to interfere with corpse of a human being 34B. Offence to interfere with corpse of a human being (1) A person must not intentionally- (a) interfere sexually or commit an indecent act with a corpse of a human being; or (b) unlawfully remove body parts from a corpse of a human being- whether that corpse is in a public cemetery within the meaning of the Cemeteries and Crematoria Act 2003 or at any other place. Penalty: Level 6 (5 years maximum). (2) Subsection (1) does not apply to- (a) any person who is engaged in the preparation of a corpse of a human being for the purposes of interment or cremation within the meaning of the Cemeteries and Crematoria Act 2003; or (b) any other lawful interference with a corpse of a human being, including a lawful interference for the purposes of a medical, scientific or hygienic procedure. * * * * * * * * * * (8) Sexual offences (general provisions) Crimes Act 1958 - SECT 35 Definitions 35. Definitions (1) In Subdivisions (8A) to (8G)- de facto spouse means a person who is living with a person of the opposite sex as if they were married although they are not; domestic partner of a person means- (a) a person who is in a registered relationship with the person; or (b) a person to whom the person is not married but with whom the person is living as a couple on a genuine domestic basis (irrespective of gender); sexual penetration means- (a) the introduction (to any extent) by a person of his penis into the vagina, anus or mouth of another person, whether or not there is emission of semen; or (b) the introduction (to any extent) by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith for medical or hygienic purposes; vagina includes- (a) the external genitalia; and (b) a surgically constructed vagina. (1A) For the purposes of the definition of domestic partner in subsection (1)- (a) registered relationship has the same meaning as in the Relationships Act 2008; and (b) in determining whether persons who are not in a registered relationship are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case. (2) For the purposes of Subdivisions (8B) to (8E) both the person who sexually penetrates another person and the other person are taking part in an act of sexual penetration. Crimes Act 1958 - SECT 36 Meaning of consent1 36. Meaning of consent1 For the purposes of Subdivisions (8A) to (8D) consent means free agreement. Circumstances in which a person does not freely agree to an act include the following- (a) the person submits because of force or the fear of force to that person or someone else; (b) the person submits because of the fear of harm of any type to that person or someone else; (c) the person submits because she or he is unlawfully detained; (d) the person is asleep, unconscious, or so affected by alcohol or another drug as to be incapable of freely agreeing; (e) the person is incapable of understanding the sexual nature of the act; (f) the person is mistaken about the sexual nature of the act or the identity of the person; (g) the person mistakenly believes that the act is for medical or hygienic purposes. Crimes Act 1958 - SECT 37 Jury directions 37. Jury directions (1) If relevant to the facts in issue in a proceeding the judge must direct the jury on the matters set out in sections 37AAA and 37AA. (2) A judge must not give to a jury a direction of a kind referred to in section 37AAA or 37AA if the direction is not relevant to the facts in issue in the proceeding. (3) A judge must relate any direction given to the jury of a kind referred to in section 37AAA or 37AA to- (a) the facts in issue in the proceeding; and (b) the elements of the offence being tried in respect of which the direction is given- so as to aid the jury's comprehension of the direction. Crimes Act 1958 - SECT 37AAA Jury directions on consent 37AAA. Jury directions on consent For the purposes of section 37, the matters relating to consent on which the judge must direct the jury are- (a) the meaning of consent set out in section 36; (b) that the law deems a circumstance specified in section 36 to be a circumstance in which the complainant did not consent; (c) that if the jury is satisfied beyond reasonable doubt that a circumstance specified in section 36 exists in relation to the complainant, the jury must find that the complainant was not consenting; (d) that the fact that a person did not say or do anything to indicate free agreement to a sexual act at the time at which the act took place is enough to show that the act took place without that person's free agreement; (e) that the jury is not to regard a person as having freely agreed to a sexual act just because- (i) she or he did not protest or physically resist; or (ii) she or he did not sustain physical injury; or (iii) on that or an earlier occasion, she or he freely agreed to engage in another sexual act (whether or not of the same type) with that person, or a sexual act with another person. Crimes Act 1958 - SECT 37AA Jury directions on the accused's awareness 37AA. Jury directions on the accused's awareness For the purposes of section 37, if evidence is led or an assertion is made that the accused believed that the complainant was consenting to the sexual act, the judge must direct the jury that in considering whether the prosecution has proved beyond reasonable doubt that the accused was aware that the complainant was not consenting or might not have been consenting, the jury must consider- (a) any evidence of that belief; and (b) whether that belief was reasonable in all the relevant circumstances having regard to- (i) in the case of a proceeding in which the jury finds that a circumstance specified in section 36 exists in relation to the complainant, whether the accused was aware that that circumstance existed in relation to the complainant; and (ii) whether the accused took any steps to ascertain whether the complainant was consenting or might not be consenting, and if so, the nature of those steps; and (iii) any other relevant matters. Crimes Act 1958 - SECT 37A Objectives of Subdivisions 8A to 8G 37A. Objectives of Subdivisions 8A to 8G The objectives of Subdivisions (8A) to (8G) are- (a) to uphold the fundamental right of every person to make decisions about his or her sexual behaviour and to choose not to engage in sexual activity; (b) to protect children and persons with a cognitive impairment from sexual exploitation. Crimes Act 1958 - SECT 37B Guiding principles 37B. Guiding principles It is the intention of Parliament that in interpreting and applying Subdivisions (8A) to (8G), courts are to have regard to the fact that- (a) there is a high incidence of sexual violence within society; and (b) sexual offences are significantly under-reported; and (c) a significant number of sexual offences are committed against women, children and other vulnerable persons including persons with a cognitive impairment; and (d) sexual offenders are commonly known to their victims; and (e) sexual offences often occur in circumstances where there is unlikely to be any physical signs of an offence having occurred. (8A) Rape and indecent assault 2 Crimes Act 1958 - SECT 38 Rape 38. Rape (1) A person must not commit rape. Penalty: Level 2 imprisonment (25 years maximum). (2) A person commits rape if- (a) he or she intentionally sexually penetrates another person without that person's consent- (i) while being aware that the person is not consenting or might not be consenting; or (ii) while not giving any thought to whether the person is not consenting or might not be consenting; or (b) after sexual penetration he or she does not withdraw from a person who is not consenting on becoming aware that the person is not consenting or might not be consenting. (3) A person (the offender) also commits rape if he or she compels a person- (a) to sexually penetrate the offender or another person, irrespective of whether the person being sexually penetrated consents to the act; or (b) who has sexually penetrated the offender or another person, not to cease sexually penetrating the offender or that other person, irrespective of whether the person who has been sexually penetrated consents to the act. (4) For the purposes of subsection (3), a person compels another person (the victim) to engage in a sexual act if the person compels the victim (by force or otherwise) to engage in that act- (a) without the victim's consent; and (b) while- (i) being aware that the victim is not consenting or might not be consenting; or (ii) not giving any thought to whether the victim is not consenting or might not be consenting. Crimes Act 1958 - SECT 38A Compelling sexual penetration 38A. Compelling sexual penetration (1) A person must not compel another person to take part in an act of sexual penetration. Penalty: Level 2 imprisonment (25 years maximum). (2) A person (the offender) compels another person (the victim) to take part in an act of sexual penetration if- (a) the offender compels the victim to introduce (to any extent) an object or a part of his or her body into his or her own anus or, in the case of a female victim, her own vagina, other than in the course of a procedure carried out in good faith for medical or hygienic purposes; or (b) the offender compels the victim to take part in an act of bestiality within the meaning of section 59. (3) For the purposes of subsection (2), a person compels another person (the victim) to take part in an act of sexual penetration if the person compels the victim (by force or otherwise) to engage in that act- (a) without the victim's consent; and (b) while- (i) being aware that the victim is not consenting or might not be consenting; or (ii) not giving any thought to whether the victim is not consenting or might not be consenting. Crimes Act 1958 - SECT 39 Indecent assault 39. Indecent assault (1) A person must not commit indecent assault. Penalty: Level 5 imprisonment (10 years maximum). (2) A person commits indecent assault if he or she assaults another person in indecent circumstances- (a) while being aware that the person is not consenting or might not be consenting; or (b) while not giving any thought to whether the person is not consenting or might not be consenting. Crimes Act 1958 - SECT 40 Assault with intent to rape 40. Assault with intent to rape (1) A person must not assault or threaten to assault another person with intent to commit rape. Penalty: Level 5 imprisonment (10 years maximum). (2) In subsection (1), assault has the same meaning as in section 31(1). (8B) Incest Crimes Act 1958 - SECT 44 Incest 44. Incest (1) A person must not take part in an act of sexual penetration with a person whom he or she knows to be his or her child or other lineal descendant or his or her step-child. Penalty: Level 2 imprisonment (25 years maximum). (2) A person must not take part in an act of sexual penetration with a person under the age of 18 whom he or she knows to be the child or other lineal descendant or the step-child of his or her de facto spouse. Penalty: Level 2 imprisonment (25 years maximum). (3) A person who is aged 18 or older must not take part in an act of sexual penetration with a person whom he or she knows to be his or her father or mother or other lineal ancestor or his or her step-father or step-mother. Penalty: Level 6 imprisonment (5 years maximum). (4) A person must not take part in an act of sexual penetration with a person whom he or she knows to be his or her sister, half-sister, brother or half-brother. Penalty: Level 6 imprisonment (5 years maximum). (5) Consent is not a defence to a charge under this section. (6) A person who is compelled by another person to take part in an act of sexual penetration in any of the circumstances referred to in subsection (1), (2), (3) or (4) is not guilty of an offence against this section. (6A) For the purposes of this section, a person compels another person (the victim) to take part in an act of sexual penetration if the person compels the victim (by force or otherwise) to engage in that act without the victim's consent. (7) In all proceedings for offences under this section (except under subsection (2)) it shall be presumed in the absence of evidence to the contrary- (a) that the accused knew that he or she was related to the other person in the way alleged; and (b) that people who are reputed to be related to each other in a particular way are in fact related in that way. (8C) Sexual offences against children Crimes Act 1958 - SECT 45 Sexual penetration of child under the age of 16 45. Sexual penetration of child under the age of 16 (1) A person who takes part in an act of sexual penetration with a child under the age of 16 is guilty of an indictable offence. (2) A person who is guilty of an offence against subsection (1) is liable- (a) if the court is satisfied beyond reasonable doubt that the child was, at the time of the offence, under the age of 10, to level 2 imprisonment (25 years maximum); or (b) if the court is satisfied beyond reasonable doubt that the child was, at the time of the offence, aged between 10 and 16 and under the care, supervision or authority of the accused, to level 4 imprisonment (15 years maximum); or (c) in any other case, to level 5 imprisonment (10 years maximum). (3) Subsection (1) does not apply to an act of sexual penetration if- (a) the child is aged between 10 and 16; and (b) the persons taking part in the act are married to each other. (4) Consent is not a defence to a charge under subsection (1) unless at the time of the alleged offence the child was aged 10 or older and- (a) the accused satisfies the court on the balance of probabilities that he or she believed on reasonable grounds that the child was aged 16 or older; or (b) the accused was not more than 2 years older than the child; or (c) the accused satisfies the court on the balance of probabilities that he or she believed on reasonable grounds that he or she was married to the child. (4A) If consent is relevant to a charge under subsection (1), the prosecution bears the burden of proving lack of consent. (5) A circumstance of aggravation described in subsection (2) is not an element of an offence against subsection (1) but must be stated in the presentment. (6) An accused who takes issue with a circumstance of aggravation described in subsection (2) and who wishes to have the matter determined on the trial may do so by pleading not guilty to the offence with which he or she is charged even if he or she does not take issue with any acts, facts, matters or circumstances relied upon by the prosecution to support a finding of guilt. (7) A circumstance of aggravation described in subsection (2)- (a) is to be determined by the jury if the accused pleads not guilty to the offence; and (b) is to be determined by the trial judge if the accused pleads guilty to the offence. (8) An offender who pleads not guilty to an offence against subsection (1) is to be taken to have pleaded guilty to the offence for the purposes of section 5(2)(e) of the Sentencing Act 1991 if- (a) he or she- (i) took issue with a circumstance of aggravation described in subsection (2); and (ii) did not take issue with any acts, facts, matters or circumstances relied upon by the prosecution to support a finding of guilt; and (b) the circumstance of aggravation is not proved. (9) For the avoidance of doubt it is declared that it is the intention of the Parliament that an offence against subsection (1) is not an offence to which section 53(1) of the Magistrates' Court Act 1989 applies (indictable offences triable summarily) even though the offence is punishable by level 5 imprisonment where a circumstance of aggravation described in subsection (2) is not present. * * * * * Crimes Act 1958 - SECT 47 Indecent act with child under the age of 16 47. Indecent act with child under the age of 16 (1) A person must not wilfully commit, or wilfully be in any way a party to the commission of, an indecent act with or in the presence of a child under the age of 16 to whom he or she is not married. Penalty: Level 5 imprisonment (10 years maximum). (2) Consent is not a defence to a charge under subsection (1) unless at the time of the alleged offence- (a) the accused satisfies the court on the balance of probabilities that he or she believed on reasonable grounds that the child was aged 16 or older; or (b) the accused was not more than 2 years older than the child; or (c) the accused satisfies the court on the balance of probabilities that he or she believed on reasonable grounds that he or she was married to the child. (3) If consent is relevant to a charge under subsection (1), the prosecution bears the burden of proving lack of consent. Crimes Act 1958 - SECT 47A Persistent sexual abuse of child under the age of 16 47A. Persistent sexual abuse of child under the age of 16 (1) A person who persistently sexually abuses a child under the age of 16 to whom he or she is not married is guilty of an indictable offence. (2) To prove an offence under subsection (1) it is necessary to prove- (a) that the accused during a particular period (while the child was under the age of 16) did an act in relation to the child which would constitute an offence under a provision of this Subdivision or Subdivision (8A) or (8B); and (b) that an act which would constitute an offence under a provision of this Subdivision or Subdivision (8A) or (8B) took place between the accused and the child on at least two other occasions during that period. (2A) It is not necessary that the alleged acts be of a similar nature or constitute an offence under the same provision. (3) It is not necessary to prove an act referred to in subsection (2)(a) or (b) with the same degree of specificity as to date, time, place, circumstances or occasion as would be required if the accused were charged with an offence constituted by that act instead of an offence against subsection (1). (4) A person who is guilty of an offence under subsection (1) is liable to level 2 imprisonment (25 years maximum). (5) If on the trial of a person charged with an offence against subsection (1) the jury are not satisfied that he or she is guilty of the offence charged but are satisfied that the accused did an act during that period which constitutes an offence against Subdivision (8A), (8B), (8C), (8D) or (8E) of Division 1 of Part I, the jury must acquit the accused of the offence charged but may find him or her guilty of that other offence and he or she is liable to punishment accordingly. (6) Subsection (5) does not restrict the operation of section 421 or 422. (7) A prosecution for an offence under subsection (1) must not be commenced without the consent of the Director of Public Prosecutions. Crimes Act 1958 - SECT 48 Sexual penetration of 16 or 17 year old child 48. Sexual penetration of 16 or 17 year old child (1) A person must not take part in an act of sexual penetration with a 16 or 17 year old child to whom he or she is not married and who is under his or her care, supervision or authority. Penalty: Level 5 imprisonment (10 years maximum). (2) Consent is not a defence to a charge under subsection (1) unless the accused satisfies the court on the balance of probabilities that at the time of the alleged offence the accused believed on reasonable grounds- (a) that the child was aged 18 or older; or (b) that he or she was married to the child. (3) If consent is relevant to a charge under subsection (1), the prosecution bears the burden of proving lack of consent. (4) For the purposes of subsection (1), and without limiting that subsection, a child is under the care, supervision or authority of a person if the person is- (a) the child's teacher; (b) the child's foster parent; (c) the child's legal guardian; (d) a minister of religion with pastoral responsibility for the child; (e) the child's employer; (f) the child's youth worker; (g) the child's sports coach; (h) the child's counsellor; (i) the child's health professional; (j) a member of the police force acting in the course of his or her duty in respect of the child; (k) employed in, or providing services in, a remand centre, youth residential centre, youth justice centre or prison and is acting in the course of his or her duty in respect of the child. Crimes Act 1958 - SECT 49 Indecent act with 16 or 17 year old child 49. Indecent act with 16 or 17 year old child (1) A person must not wilfully commit, or wilfully be in any way a party to the commission of, an indecent act with or in the presence of a 16 or 17 year old child to whom he or she is not married and who is under his or her care, supervision or authority. Penalty: Level 6 imprisonment (5 years maximum). (2) Consent is not a defence to a charge under subsection (1) unless the accused satisfies the court on the balance of probabilities that at the time of the alleged offence the accused believed on reasonable grounds- (a) that the child was aged 18 or older; or (b) that he or she was married to the child. (3) If consent is relevant to a charge under subsection (1), the prosecution bears the burden of proving lack of consent. (4) For the purposes of subsection (1), and without limiting that subsection, a child is under the care, supervision or authority of a person if the person is- (a) the child's teacher; (b) the child's parent, adoptive parent, foster parent or step parent; (c) the child's legal guardian; (d) a minister of religion with pastoral responsibility for the child; (e) the child's employer; (f) the child's youth worker; (g) the child's sports coach; (h) the child's counsellor; (i) the child's health professional; (j) a member of the police force acting in the course of his or her duty in respect of the child; (k) employed in, or providing services in, a remand centre, youth residential centre, youth justice centre or prison and is acting in the course of his or her duty in respect of the child. Crimes Act 1958 - SECT 49A Facilitating sexual offences against children 49A. Facilitating sexual offences against children (1) Subject to this section, a person who in Victoria makes travel arrangements for another person or does or omits to do any other act that aids, facilitates or contributes to in any way whatever the commission by another person of an offence against this Subdivision (other than this section) or against Division 2 of Part IIIA of the Crimes Act 1914 of the Commonwealth or against a law in force only in a place outside Victoria the necessary elements of which consist of or include elements which, if present or occurring in Victoria, would constitute an offence against this Subdivision (other than this section) is guilty of an indictable offence and liable to level 3 imprisonment (20 years maximum). (2) For a person to be guilty of an offence against subsection (1) the person- (a) must make the travel arrangements or do or omit to do the other act with a view to personal gain or gain for another person; and (b) must- (i) intend that the conduct would aid, facilitate or contribute to the commission of an offence of the type committed by the other person; or (ii) be reckless as to whether or not the conduct would aid, facilitate or contribute to the commission of an offence of the type committed by the other person. (8D) Sexual offences against persons with a cognitive impairment Crimes Act 1958 - SECT 50 Definitions 50. Definitions (1) In this Subdivision- cognitive impairment includes impairment because of mental illness, intellectual disability, dementia or brain injury; facility means a service operated by any person or body (government or non-government) that provides programs specially designed to meet the developmental or educational needs of persons with a cognitive impairment and includes a residential facility; * * * * * indecent act does not include an act done in the course of an appropriate and generally accepted medical, therapeutic or hygienic procedure; intellectual disability has the same meaning as in the Disability Act 2006; * * * * * residential facility means- (a) an approved mental health service as defined in section 3 of the Mental Health Act 1986; or (b) premises operated by any person or body (government or non-government) wholly or substantially for the purpose of providing residential services to intellectually disabled people; worker means a person who delivers, or assists in delivering, at a facility (whether as an employee or as a volunteer or in any other capacity) a program specially designed to meet the developmental or educational needs of persons with a cognitive impairment residing at the facility or attending the facility to take part in the program but does not include a person with a cognitive impairment who also resides at the facility or attends the facility to take part in the program. (2) For the purposes of this Subdivision a person in respect of whom a statement has been issued by the Secretary to the Department of Human Services that the person has an intellectual disability within the meaning of the Disability Act 2006 must be taken to be intellectually disabled. Crimes Act 1958 - SECT 51 Sexual offences against persons with a cognitive impairment by providers of medical or therapeutic services 51. Sexual offences against persons with a cognitive impairment by providers of medical or therapeutic services (1) A person who provides medical or therapeutic services to a person with a cognitive impairment who is not his or her spouse or domestic partner must not take part in an act of sexual penetration with that person. Penalty: Level 5 imprisonment (10 years maximum). (2) A person who provides medical or therapeutic services to a person with a cognitive impairment who is not his or her spouse or domestic partner must not commit, or be in any way a party to the commission of, an indecent act with that person. Penalty: Level 6 imprisonment (5 years maximum). (3) In a proceeding for an offence against subsection (1) or (2) in circumstances in which the services provided by the accused were related to the cognitive impairment of the other person, it is a defence to the charge for the accused to prove on the balance of probabilities that at the time at which the offence is alleged to have been committed, the accused believed on reasonable grounds that the other person did not have a cognitive impairment. (4) In a proceeding for an offence against subsection (1) or (2) in circumstances in which the services provided by the accused were not related to the cognitive impairment of the other person, it is a defence to the charge for the accused to prove on the balance of probabilities that at the time at which the offence is alleged to have been committed, the accused was not aware that the other person had a cognitive impairment. (5) Consent is not a defence to a charge against subsection (1) or (2) unless the accused satisfies the court on the balance of probabilities that at the time at which the offence is alleged to have been committed, the accused believed on reasonable grounds that he or she was the spouse or domestic partner of the other person. (6) If consent is relevant to a charge against subsection (1) or (2), the prosecution bears the burden of proving lack of consent. Crimes Act 1958 - SECT 52 Sexual offences against persons with a cognitive impairment by providers of special programs 52. Sexual offences against persons with a cognitive impairment by providers of special programs (1) A worker at a facility must not take part in an act of sexual penetration with a person with a cognitive impairment who- (a) is residing at the facility or attending the facility to take part in a program specially designed to meet the developmental or educational needs of persons with a cognitive impairment; and (b) is not his or her spouse or domestic partner. Penalty: Level 5 imprisonment (10 years maximum). (2) A worker at a facility must not commit, or be in any way a party to the commission of, an indecent act with a person with a cognitive impairment who- (a) is residing at the facility or attending the facility to take part in a program specially designed to meet the developmental or educational needs of persons with a cognitive impairment; and (b) is not his or her spouse or domestic partner. Penalty: Level 6 imprisonment (5 years maximum). (3) Consent is not a defence to a charge under this section unless the accused satisfies the court on the balance of probabilities that at the time of the alleged offence the accused believed on reasonable grounds that he or she was the spouse or domestic partner of the person residing at or attending the facility. (4) If consent is relevant to a charge under this section, the prosecution bears the burden of proving lack of consent. (8E) Other sexual offences Crimes Act 1958 - SECT 53 Administration of drugs etc. 53. Administration of drugs etc. (1) A person must not- (a) administer a drug, matter or thing to a person; or (b) cause a drug, matter or thing to be taken by a person- with the intention of rendering that person incapable of resistance and thereby enabling himself or herself or another person to take part in an act of sexual penetration with that person. Penalty: Level 5 imprisonment (10 years maximum). (2) A person must not- (a) administer a drug, matter or thing to a person; or (b) cause a drug, matter or thing to be taken by a person- with the intention of rendering that person incapable of resistance and thereby enabling himself or herself or another person to commit, or in any way be a party to the commission of, an indecent act with that person. Penalty: Level 6 imprisonment (5 years maximum). (3) In subsection (2), indecent act means an indecent assault in any of the circumstances referred to in section 39(2) or an indecent act in any of the circumstances referred to in section 47, 49, 51(2) or 52(2). Crimes Act 1958 - SECT 54 Occupier etc. permitting unlawful sexual penetration 54. Occupier etc. permitting unlawful sexual penetration The owner or occupier of, or a person managing or assisting in the management of, any premises must not induce or knowingly allow a child under the age of 17 to enter or remain on the premises for the purpose of taking part in an unlawful act of sexual penetration. Penalty: Level 4 imprisonment (15 years maximum) if the child is under the age of 13; Level 5 imprisonment (10 years maximum) if the child is aged between 13 and 17. Crimes Act 1958 - SECT 55 Abduction or detention 55. Abduction or detention A person must not take away a person by force or detain a person against his or her will- (a) with the intention of getting married to, or taking part in an act of sexual penetration with, that person; or (b) with the intention that that person should marry, or take part in an act of sexual penetration with, another person. Penalty: Level 5 imprisonment (10 years maximum). Crimes Act 1958 - SECT 56 Abduction of child under the age of 16 56. Abduction of child under the age of 16 (1) A person must not take away a child under the age of 16 against the will of a person who has lawful charge of the child with the intention that the child should take part in an act of sexual penetration outside marriage with him or her or any other person. Penalty: Level 6 imprisonment (5 years maximum). (2) A person must not cause a child under the age of 16 to be taken away against the will of a person who has lawful charge of the child with the intention that the child should take part in an act of sexual penetration outside marriage with him or her or any other person. Penalty: Level 6 imprisonment (5 years maximum). Crimes Act 1958 - SECT 57 Procuring sexual penetration by threats or fraud 57. Procuring sexual penetration by threats or fraud (1) A person must not by threats or intimidation procure a person to take part in an act of sexual penetration. Penalty: Level 5 imprisonment (10 years maximum). (2) A person must not by any fraudulent means procure a person to take part in an act of sexual penetration. Penalty: Level 6 imprisonment (5 years maximum). Crimes Act 1958 - SECT 58 Procuring sexual penetration of a child 58. Procuring sexual penetration of a child (1) A person aged 18 years or more must not solicit or procure a child under the age of 16 years to take part in an act of sexual penetration, or an indecent act (within the meaning of Subdivision (8D)), outside marriage with him or her or another person. Penalty: Level 5 imprisonment (10 years maximum). (2) A person aged 18 years or more must not solicit or procure another person to take part in an act of sexual penetration, or an indecent act (within the meaning of Subdivision (8D)), outside marriage with a child under the age of 16 years. Penalty: Level 5 imprisonment (10 years maximum). (3) A person aged 18 years or more must not solicit or procure a 16 or 17 year old child to whom he or she is not married and who is under his or her care, supervision or authority to take part in an act of sexual penetration, or an indecent act (within the meaning of Subdivision (8D)), with him or her or another person. Penalty: Level 5 imprisonment (10 years maximum). (4) If- (a) a person does an act or thing referred to in subsection (1), (2) or (3) outside, or partly outside, Victoria; and (b) there is a real and substantial link within the meaning of subsection (5) between the doing of the act or thing and Victoria- those subsections apply to the act or thing as if it had been done wholly within Victoria. (5) For the purposes of subsection (4), there is a real and substantial link with Victoria- (a) if a significant part of the conduct relating to, or constituting the doing of, the act or thing occurred in Victoria; or (b) where the act or thing was done wholly outside Victoria, if the act or thing was done with the intention that the act of sexual penetration or the indecent act occur in Victoria. (6) For the purposes of subsection (3), and without limiting that subsection, a child is under the care, supervision or authority of a person if the person is- (a) the child's teacher; (b) the child's foster parent; (c) the child's legal guardian; (d) a minister of religion with pastoral responsibility for the child; (e) the child's employer; (f) the child's youth worker; (g) the child's sports coach; (h) the child's counsellor; (i) the child's health professional; (j) a member of the police force acting in the course of his or her duty in respect of the child; (k) employed in, or providing services in, a remand centre, youth residential centre, youth justice centre or prison and is acting in the course of his or her duty in respect of the child. Crimes Act 1958 - SECT 59 Bestiality 59. Bestiality (1) A person must not commit an act of bestiality. Penalty: Level 6 imprisonment (5 years maximum). (2) An act of bestiality is any of the following- (a) buggery committed by a man on an animal of either sex; (b) buggery committed by an animal on a man or woman; (c) penetration of the vagina of an animal by the penis of a man; (d) penetration of the vagina of a woman by the penis of an animal. (3) The law relating to buggery is as set out in this Act and no prosecution shall be instituted for an offence of buggery unless it is for an offence under this section. * * * * * Crimes Act 1958 - SECT 60A Sexual offence while armed with an offensive weapon 60A. Sexual offence while armed with an offensive weapon (1) A person who is found guilty of an offence under this Subdivision or under Subdivision (8A), (8B), (8C) or (8D) and who carried an offensive weapon when committing the offence is guilty of a summary offence and liable to level 7 imprisonment (2 years maximum). (2) Despite anything to the contrary in the Sentencing Act 1991 or in any other law, a court imposing a sentence under subsection (1)- (a) must direct that the sentence be served cumulatively on any other sentence; and (b) must not make an order suspending the whole or any part of the sentence. (3) Despite anything to the contrary in this or any other Act or in any rule of law, the court by which the person has been found guilty of an offence under this Subdivision or under Subdivision (8A), (8B), (8C) or (8D) may hear and determine the summary offence under this section without a jury and, subject to any rules of court, the practice and procedure applicable in the Magistrates' Court to the hearing and determination of summary offences shall apply so far as is appropriate to the hearing and determination of the offence under this section. (4) Subsection (3) is in addition to, and does not limit the operation of, section 359AA. (8EAA) Sexual servitude Crimes Act 1958 - SECT 60AB Sexual servitude 60AB. Sexual servitude (1) In this section- commercial sexual services means services for commercial benefit involving the use or display of the body of the person providing the services for the sexual arousal or sexual gratification of others; threat means- (a) threat of force; or (b) threat to cause a person's deportation; or (c) threat of any other detrimental action unless there are reasonable grounds for the threat of that action in connection with the provision of commercial sexual services. (2) A person who, by the use of- (a) force; or (b) a threat; or (c) unlawful detention; or (d) fraud or misrepresentation, including by omission; or (e) a manifestly excessive debt- causes another person to provide, or to continue providing, commercial sexual services is guilty of an offence and liable to level 4 imprisonment (15 years maximum). (3) A person who- (a) causes or induces another person to provide commercial sexual services; and (b) knows that, or is reckless as to whether, the other person providing those services will not be free to stop providing those services because of the use of- (i) force; or (ii) a threat; or (iii) unlawful detention; or (iv) fraud or misrepresentation, including by omission; or (v) a manifestly excessive debt- is guilty of an offence and liable to level 4 imprisonment (15 years maximum). (4) A person who- (a) conducts a business that involves the provision of commercial sexual services; and (b) knows that, or is reckless as to whether, the persons providing those services are not free to stop providing those services because of the use of- (i) force; or (ii) a threat; or (iii) unlawful detention; or (iv) fraud or misrepresentation, including by omission; or (v) a manifestly excessive debt- is guilty of an offence and liable to level 4 imprisonment (15 years maximum). (5) For the purposes of subsection (4), conducting a business includes- (a) taking any part in the management of the business; or (b) exercising control or direction over the business; or (c) providing finance for the business. Crimes Act 1958 - SECT 60AC Aggravated sexual servitude 60AC. Aggravated sexual servitude (1) A person is guilty of aggravated sexual servitude if- (a) the person commits an offence against section 60AB(2), (3) or (4); and (b) the offence was committed against a person under the age of 18 years; and (c) the accused intended to commit, or was reckless as to committing, the offence against a person under the age of 18 years. (2) A person guilty of aggravated sexual servitude is guilty of an offence and liable to level 3 imprisonment (20 years maximum). Crimes Act 1958 - SECT 60AD Deceptive recruiting for commercial sexual services 60AD. Deceptive recruiting for commercial sexual services (1) A person who, intending to induce another person to enter into an engagement to provide commercial sexual services, deceives that other person about the fact that the engagement will involve the provision of commercial sexual services is guilty of an offence and liable to level 6 imprisonment (5 years maximum). (2) In subsection (1), commercial sexual services has the same meaning as in section 60AB. Crimes Act 1958 - SECT 60AE Aggravated deceptive recruiting for commercial sexual services 60AE. Aggravated deceptive recruiting for commercial sexual services (1) A person is guilty of aggravated deceptive recruiting for commercial sexual services if- (a) the person commits an offence against section 60AD; and (b) the offence was committed against a person under the age of 18 years; and (c) the accused intended to commit, or was reckless as to committing, the offence against a person under the age of 18 years. (2) A person guilty of aggravated deceptive recruiting for sexual services is guilty of an offence and liable to level 5 imprisonment (10 years maximum). VISION (8EA) Loitering by sexual offender Crimes Act 1958 - SECT 60B Loitering near schools etc. 60B. Loitering near schools etc. (1) In this section, sexual offence means- (a) an offence against section 38, 39, 40, 44(1), 44(2), 44(4), 45, 47, 47A, 48, 49, 55 or 56; or (b) any offence specified in clause 7A, 7B, 8, 9, 10 or 12 of Schedule 8; or (c) an offence of conspiracy to commit, incitement to commit or attempting to commit an offence referred to in paragraph (a) or (b). (2) A person who- (a) has been found guilty of- (i) a sexual offence; or (ia) an offence against- (A) section 5, 6, 7 or 11 of the Prostitution Control Act 1994; or (B) section 6, 7, 8 or 9 of the Prostitution Regulation Act 1986; or (C) section 59(1)(a) or (b) or 60 inserted in this Act on 1 March 1981 by section 5 of the Crimes (Sexual Offences) Act 1980 and repealed on 5 August 1991 by section 3 of the Crimes (Sexual Offences) Act 1991; or (ii) murder where there are reasonable grounds to believe that a sexual offence was also committed on the victim; or (iii) an offence against section 19 of the Summary Offences Act 1966; or (iv) an offence against section 68, 69 or 70 or an offence of attempting to commit an offence against section 69; or (v) an offence against- (A) section 60A of the Classification of Films and Publications Act 1990; or (B) section 168A, 168B or 168C of the Police Offences Act 1958- as in force at any time before its repeal; and (b) is found loitering without reasonable excuse in or near- (i) a school, kindergarten or child care centre; or (ii) a public place within the meaning of the Summary Offences Act 1966 regularly frequented by children and in which children are present at the time of the loitering- is guilty of an offence. (2A) An offence against subsection (2) is- (a) an indictable offence for which the offender is liable to level 6 imprisonment (5 years maximum) or a level 6 fine (600 penalty units maximum) if at the time of the commission of the offence the offender had previously been sentenced as a serious sexual offender (within the meaning of Part 2A of the Sentencing Act 1991) for a sexual offence (within the meaning of that Part) or a violent offence (within the meaning of that Part); or (b) a summary offence for which the offender is liable to level 7 imprisonment (2 years maximum) or a level 7 fine (240 penalty units maximum) in any other case. (3) If a person has at any time been convicted of an offence against a law of another State or a Territory of the Commonwealth which creates an offence substantially similar to a sexual offence the conviction for the offence against that law must be taken for the purposes of this section to be a conviction of a sexual offence. (8F) Jury warnings Crimes Act 1958 - SECT 61 Jury warnings 61. Jury warnings (1) On the trial of a person for an offence under Subdivision (8A), (8B), (8C), (8D) or (8E) or under any corresponding previous enactment or for an attempt to commit any such offence or an assault with intent to commit any such offence- (a) the judge must not warn, or suggest in any way to, the jury that the law regards complainants in sexual cases as an unreliable class of witness; and (b) if evidence is given or a question is asked of a witness or a statement is made in the course of an address on evidence which tends to suggest that there was delay in making a complaint about the alleged offence by the person against whom the offence is alleged to have been committed, the judge- (i) must inform the jury that there may be good reasons why a victim of a sexual assault may delay or hesitate in complaining about it; and (ii) must not warn, or suggest in any way to, the jury that the credibility of the complainant is affected by the delay unless, on the application of the accused, the judge is satisfied that there is sufficient evidence tending to suggest that the credibility of the complainant is so affected to justify the giving of such a warning; and (iii) must not warn, or suggest in any way to, the jury that it would be dangerous or unsafe to find the accused guilty because of the delay. (1A) If the judge, on the application of the accused in a proceeding to which subsection (1) applies, is satisfied that the accused has suffered a significant forensic disadvantage because of the consequences of the delay in making a complaint about the alleged offence by the person against whom the offence is alleged to have been committed, the judge must, in any terms that the judge considers appropriate having regard to the circumstances of the case- (a) inform the jury of the nature of the forensic disadvantage suffered by the accused; and (b) instruct the jury to take that disadvantage into consideration. (1B) Despite subsection (1A), a judge must not warn, or suggest in any way to, the jury that it would be dangerous or unsafe to find the accused guilty because of the delay. (1C) For the purposes of subsection (1A), the passage of time alone is not to be taken to cause a significant forensic disadvantage. (1D) Nothing in subsection (1A) requires a judge to give a warning referred to in that subsection if there is no reason to do so in the particular proceeding. (1E) A judge must not give a warning referred to in subsection (1A) or a warning to the effect of a warning referred to in subsection (1A) except in accordance with this section and any rule of law to the contrary is hereby abrogated. (1F) Nothing in subsections (1A) to (1E) affects the power of a judge to give any other warning to, or to otherwise inform, the jury. (2) Nothing in subsection (1) prevents a judge from making any comment on evidence given in the proceeding that it is appropriate to make in the interests of justice. (3) Despite subsection (2), a judge must not make any comment on the reliability of evidence given by the complainant in a proceeding to which subsection (1) applies if there is no reason to do so in the particular proceeding in order to ensure a fair trial. (8G) Abrogation of obsolete rules of law Crimes Act 1958 - SECT 62 Abrogation of obsolete rules of law 62. Abrogation of obsolete rules of law (1) The rule of law whereby a male person under the age of fourteen years is conclusively presumed to be impotent is hereby abrogated. (2) The existence of a marriage does not constitute, or raise any presumption of, consent by a person to an act of sexual penetration with another person or to an indecent assault (with or without aggravating circumstances) by another person. * * * * * (9) Child stealing Crimes Act 1958 - SECT 63 Child stealing 63. Child stealing (1) Whosoever unlawfully either by force or fraud leads or takes away or decoys or entices away or detains any child under the age of sixteen years, with intent to deprive any parent or guardian or any other person having the lawful care or charge of such child of the possession of such child or with intent to steal any article upon or about the person of such child; and whosoever with any such intent receives or harbors any such child knowing the same to have been by force or fraud led taken decoyed enticed away or detained, shall be guilty of an indictable offence, and shall be liable to level 6 imprisonment (5 years maximum). No person who has claimed any right to the possession of such child, or is the mother or has claimed to be the father of an illegitimate child, shall be liable to be prosecuted under this or the next succeeding subsection on account of the getting possession of such child or taking such child out of the possession of any person having the lawful care or charge thereof. (2) Whosoever unlawfully takes decoys or entices away any child under the age of sixteen years3 out of the possession and against the will of the child's parent or guardian or of any other person having the lawful care or charge of the child shall be guilty of an indictable offence, and shall be liable to level 6 imprisonment (5 years maximum). (9A) Kidnapping Crimes Act 1958 - SECT 63A Kidnapping 63A. Kidnapping Whosoever leads takes or entices away or detains any person with intent to demand from that person or any other person any payment by way of ransom for the return or release of that person or with intent to gain for himself or any other person any advantage (however arising) from the detention of that person shall, whether or not any demand or threat is in fact made, be guilty of an indictable offence and liable to level 2 imprisonment (25 years maximum). (10) Bigamy Crimes Act 1958 - SECT 64 Bigamy 64. Bigamy Whosoever being married goes through the form or ceremony of marriage with any other person during the life of her or his husband or wife, shall be guilty of an indictable offence, and shall be liable to level 6 imprisonment (5 years maximum). Nothing in this section contained shall extend to any person going through the form or ceremony of marriage as aforesaid whose husband or wife has been continually absent from such person for the space of seven years then last past and has not been known by such person to be living within that time; or shall extend to any person who at the time of her or his going through such form or ceremony of marriage has been divorced from the bond of the marriage; or to any person whose marriage at such time has been declared void by the sentence of any court of competent jurisdiction. (11) Attempts to procure abortion Crimes Act 1958 - SECT 65 Abortion performed by unqualified person 65. Abortion performed by unqualified person (1) A person who is not a qualified person must not perform an abortion on another person. Penalty: Level 5 imprisonment (10 years maximum). (2) A woman who consents to, or assists in, the performance of an abortion on herself is not guilty of an offence against this section. (3) For the purposes of this section- (a) a registered medical practitioner is a qualified person; and (b) a registered pharmacist or registered nurse is a qualified person only for the purpose of performing an abortion by administering or supplying a drug or drugs in accordance with the Abortion Law Reform Act 2008. (4) In this section- abortion has the same meaning as in the Abortion Law Reform Act 2008; perform an abortion includes supply or procure the supply of any drug or other substance knowing that it is intended to be used to cause an abortion; registered medical practitioner means a medical practitioner registered under the Health Professions Registration Act 2005; registered nurse means a nurse registered under the Health Professions Registration Act 2005; registered pharmacist means a pharmacist registered under the Health Professions Registration Act 2005; woman means a female person of any age. Crimes Act 1958 - SECT 66 Abortion-Abolition of common law offences 66. Abortion-Abolition of common law offences Any rule of common law that creates an offence in relation to procuring a woman's miscarriage is abolished. (12) Concealing the birth of a child4 Crimes Act 1958 - SECT 67 Concealing birth of a child 67. Concealing birth of a child If any woman has been delivered of a child, every person who by any secret disposition of the dead body of the said child whether such child died before at or after its birth endeavours to conceal the birth thereof, shall be guilty of a summary offence, and shall be liable to level 9 imprisonment (6 months maximum). (13) Child pornography Crimes Act 1958 - SECT 67A Definitions 67A. Definitions In this Subdivision- child pornography means a film, photograph, publication or computer game that describes or depicts a person who is, or appears to be, a minor engaging in sexual activity or depicted in an indecent sexual manner or context; classified means classified under the Commonwealth Act; Commonwealth Act means the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth; computer game has the same meaning as in the Commonwealth Act; film has the same meaning as in the Commonwealth Act; law enforcement agency means- (a) the police force of Victoria or of any other State or of the Northern Territory of Australia; or (b) the Australian Federal Police; or (c) the Australian Crime Commission established by the Australian Crime Commission Act 2002 of the Commonwealth; or (d) any other authority or person responsible for the enforcement of the laws of- (i) Victoria or any other State; or (ii) the Commonwealth; or (iii) the Northern Territory of Australia; minor means a person under the age of 18 years; photograph includes a photocopy or other reproduction of a photograph; publication has the same meaning as in the Commonwealth Act. Crimes Act 1958 - SECT 68 Production of child pornography ECT 68. Production of child pornography (1) A person who prints or otherwise makes or produces child pornography is guilty of an indictable offence punishable on conviction by level 5 imprisonment (10 years maximum). (1A) It is a defence to a prosecution for an offence against subsection (1) to prove, in the case of- (a) a film; or (b) a photograph contained in a publication; or (c) a computer game- that at the time of the alleged offence the film, publication or computer game was classified other than RC or X or X 18+ or would, if classified, be classified other than RC or X or X 18+. (2) Nothing in subsection (1) makes it an offence for- (a) any member or officer of a law enforcement agency; or (b) a person authorised in writing by the Chief Commissioner of Police assisting a member or officer; or (c) a person belonging to a class of persons authorised in writing by the Chief Commissioner of Police assisting a member or officer- to print or otherwise make or produce child pornography in the exercise or performance of a power, function or duty conferred or imposed on the member or officer by or under this or any other Act or at common law. Crimes Act 1958 - SECT 69 Procurement etc. of minor for child pornography 69. Procurement etc. of minor for child pornography (1) A person who- (a) invites a minor to be in any way concerned in the making or production of child pornography; or (b) procures a minor for the purpose of making or producing child pornography; or (c) causes a minor to be in any way concerned in the making or production of child pornography; or (d) offers a minor to be in any way concerned in the making or production of child pornography- is guilty of an indictable offence punishable on conviction by level 5 imprisonment (10 years maximum). (2) It is a defence to a prosecution for an offence against subsection (1) to prove, in the case of- (a) a film; or (b) a photograph contained in a publication; or (c) a computer game- that at the time of the alleged offence the film, publication or computer game would, if classified, be classified other than RC or X or X 18+. Crimes Act 1958 - SECT 70 Possession of child pornography 70. Possession of child pornography (1) A person who knowingly possesses child pornography is guilty of an indictable offence. Penalty: Level 6 imprisonment (5 years maximum). (2) It is a defence to a prosecution for an offence against subsection (1) to prove- (a) in the case of- (i) a film; or (ii) a photograph contained in a publication; or (iii) a computer game- that at the time of the alleged offence the film, publication or computer game was classified other than RC or X or X 18+ or would, if classified, be classified other than RC or X or X 18+; or (b) that the film, photograph, publication or computer game possesses artistic merit or is for a genuine medical, legal, scientific or educational purpose; or (c) that the defendant believed on reasonable grounds that the minor was aged 18 years or older or that he or she was married to the minor; or (d) that the defendant made the film or took the photograph or was given the film or photograph by the minor and that, at the time of making, taking or being given the film or photograph, the defendant was not more than 2 years older than the minor was or appeared to be; or (e) that the minor or one of the minors depicted in the film or photograph is the defendant. (3) Despite subsection (2)(b), the defence of artistic merit cannot be relied on in a case where the prosecution proves that the minor was actually under the age of 18 years. (4) Nothing in this section makes it an offence for- (a) any member or officer of a law enforcement agency; or (b) a person authorised in writing by the Chief Commissioner of Police assisting such a member or officer; or (c) a person belonging to a class of persons authorised in writing by the Chief Commissioner of Police assisting such a member or officer- to have child pornography in his or her possession in the exercise or performance of a power, function or duty conferred or imposed on the member or officer by or under this or any other Act or at common law. Crimes Act 1958 - SECT 70AA Forfeiture 70AA. Forfeiture (1) If a person is charged with an offence against section 68, 69 or 70 and the court is satisfied that the person committed the offence, the court may order that the child pornography in respect of which the offence was committed is forfeited to the Crown. (2) If, despite the acquittal of a person charged with an offence against section 68, 69 or 70, the court is satisfied that an offence has been committed in respect of the child pornography, the court may order that the child pornography is forfeited to the Crown. (3) If a film, photograph, publication or computer game has been lawfully seized under this Subdivision by a member of the police force but at the expiration of 6 months after the seizure no person has been charged with an offence in relation to the seized item, a member of the police force may apply to the Magistrates' Court for an order that the film, photograph, publication or computer game is child pornography and is forfeited to the Crown. (4) The owner of a film, photograph, publication or computer game that has been lawfully seized by a member of the police force may apply within 28 days after the seizure to the Magistrates' Court for the return of the film, photograph, publication or computer game. (5) An application under subsection (4) may be made after 28 days after the seizure if the Magistrates' Court is satisfied that the applicant has a reasonable excuse for failing to make the application within the period referred to in subsection (4). (6) On an application under subsection (4), if the Magistrates' Court is satisfied that- (a) the applicant is the owner of the film, photograph, publication or computer game; and (b) the film, photograph, publication or computer game is not child pornography- the Court must order that, at the expiration of 6 months, after the seizure, the film, photograph, publication or computer game be returned to the applicant unless the applicant or another person has been charged with an offence in relation to the film, photograph, publication or computer game. (7) Subject to subsection (8), child pornography which is forfeited under this section may be destroyed or otherwise dealt with as directed by the Minister. (8) The Minister must not direct the destruction of child pornography before the expiration of the time allowed for instituting an appeal against the order or, if an appeal is lodged within that time, before the determination of the appeal. (9) Nothing in this section limits the right of the Director of Public Prosecutions or any other person to apply for an order under the Confiscation Act 1997. (14) Sexual performances involving a minor Crimes Act 1958 - SECT 70AB Definitions 70AB. Definitions In this Subdivision- minor means person under the age of 18 years; sexual performance means live performance that is, or could reasonably be considered to be, for the sexual arousal or sexual gratification of any person. Crimes Act 1958 - SECT 70AC Sexual performance involving a minor 70AC. Sexual performance involving a minor A person must not- (a) invite a minor to be in any way concerned in a sexual performance; or (b) procure a minor for the purpose of being in any way concerned in a sexual performance; or (c) cause a minor to be in any way concerned in a sexual performance; or (d) offer a minor to be in any way concerned in a sexual performance- in circumstances where there is payment or reward to the minor or to any other person in respect of the performance. Penalty: Level 5 imprisonment (10 years maximum). * * * * * Division 1A-Piracy Crimes Act 1958 - SECT 70A Piracy with violence SECT 70A. Piracy with violence Any person who with intent to commit or at the time of or immediately before or immediately after committing the offence of piracy in respect of any vessel- (a) assaults with intent to murder any person on board or belonging to the vessel; or (b) wounds any such person; or (c) unlawfully does any act by which the life of any such person may be endangered- shall be liable to- (d) level 3 imprisonment (20 years maximum); or (e) imprisonment for such other term as is fixed by the court- as the court determines. Crimes Act 1958 - SECT 70B Piratical acts 70B. Piratical acts (1) A person commits a piratical act if- (a) being an Australian citizen, he commits any piracy or robbery or any act of hostility or robbery against other Australian citizens on the sea under colour of any commission from any foreign ruler or under pretence of authority from any person whatever; or (b) being on board any Australian ship he- (i) turns pirate, enemy or rebel, and piratically runs away with the ship, or any boat, munitions or goods; (ii) voluntarily yields up the ship, or any boat, munitions or goods to any pirate; (iii) brings any seducing message from any pirate, enemy or rebel; (iv) assaults the master of the ship in order to prevent him from fighting in defence of his ship and goods; (v) confines the master of the ship; or (vi) makes or endeavours to make a revolt in the ship. (2) Any person who commits a piratical act shall be guilty of an offence and shall be liable on conviction upon indictment to- (a) level 3 imprisonment (20 years maximum); or (b) imprisonment for such other term as is fixed by the court- as the court determines. Crimes Act 1958 - SECT 70C Trading etc. with pirates 70C. Trading etc. with pirates Any person who knowingly- (a) trades with any pirate; (b) furnishes any pirate with any munitions or stores of any kind; (c) fits out any vessel with a design to trade with, supply or correspond with any pirate; or (d) conspires or corresponds with any pirate- shall be guilty of an offence and shall be liable on conviction upon indictment to level 5 imprisonment (10 years maximum). Crimes Act 1958 - SECT 70D Being found on board piratical vessel and unable to prove non-complicity 70D. Being found on board piratical vessel and unable to prove non-complicity (1) Any person who is found in Victoria on board any vessel equipped for the purposes of piracy shall be guilty of an offence and shall be liable on conviction upon indictment to level 6 imprisonment (5 years maximum). (2) It shall be a defence to a charge under subsection (1) if the person charged proves- (a) that he was not on board the vessel willingly; or (b) that he did not know that the vessel was equipped for the purposes of piracy. Division 2-Theft and similar or associated offences5 Crimes Act 1958 - SECT 71 Definitions 71. Definitions (1) In this Division- gain and loss are to be construed as extending only to gain or loss in money or other property, but as extending to any such gain or loss whether temporary or permanent; and- (a) gain includes a gain by keeping what one has, as well as a gain by getting what one has not; and (b) loss includes a loss by not getting what one might get, as well as a loss by parting with what one has; goods except in so far as the context otherwise requires, includes money and every other description of property except land and includes things severed from the land by stealing; property includes money and all other property real or personal including things in action and other intangible property. (2) In this Division property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest). Crimes Act 1958 - SECT 72 Basic definition of theft 72. Basic definition of theft (1) A person steals if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it. (2) A person who steals is guilty of theft; and "thief" shall be construed accordingly. Crimes Act 1958 - SECT 73 Further explanation of theft 73. Further explanation of theft (1) This section has effect as regards the interpretation and operation of section 72 and, except as otherwise provided in this Division, shall apply only for the purposes of that section and not otherwise. (2) A person's appropriation of property belonging to another is not to be regarded as dishonest- (a) if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or (b) if he appropriates the property in the belief that he would have the other's consent if the other knew of the appropriation and the circumstances of it; or (c) (except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps. (3) A person's appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property. (4) Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner. (5) Where property or a right or interest in property is or purports to be transferred for value to a person acting in good faith, no later assumption by him of rights which he believed himself to be acquiring shall, by reason of any defect in the transferor's title, amount to theft of the property. (6) A person cannot steal land, or things forming part of land and severed from it by him or by his directions, except in the following cases, that is to say- (a) when he is a trustee or personal representative, or is authorized by power of attorney, or as liquidator of a company, or otherwise, to sell or dispose of land belonging to another, and he appropriates the land or anything forming part of it by dealing with it in breach of the confidence reposed in him; or (b) when he is not in possession of the land and appropriates any thing forming part of the land by severing it or causing it to be severed, or after it has been severed; or (c) when, being in possession of the land under a tenancy, he appropriates the whole or part of any fixture or structure let to be used with the land. For purposes of this subsection land does not include incorporeal hereditaments; tenancy means a tenancy for years or any less period and includes an agreement for such a tenancy, but a person who after the end of a tenancy remains in possession as statutory tenant or otherwise is to be treated as having possession under the tenancy, and "let" shall be construed accordingly. (7) Wild creatures, tamed or untamed, shall be regarded as property; but a person cannot steal a wild creature not tamed nor ordinarily kept in captivity, or the carcase of any such creature, unless either it has been reduced into possession by or on behalf of another person and possession of it has not since been lost or abandoned, or another person is in course of reducing it into possession. (8) Where property is subject to a trust, the persons to whom it belongs shall be regarded as including any person having a right to enforce the trust, and an intention to defeat the trust shall be regarded accordingly as an intention to deprive of the property any person having that right. (9) Where a person receives property from or on account of another, and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way, the property or proceeds shall be regarded (as against him) as belonging to the other. (10) Where a person gets property by another's mistake, and is under an obligation to make restoration (in whole or in part) of the property or its proceeds or of the value thereof, then to the extent of that obligation the property or proceeds shall be regarded (as against him) as belonging to the person entitled to restoration, and an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds. (11) Property of a corporation sole shall be regarded as belonging to the corporation notwithstanding a vacancy in the corporation. (12) A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other's rights; and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal. (13) Without prejudice to the generality of subsection (12) where a person, having possession or control (lawfully or not) of property belonging to another, parts with the property under a condition as to its return which he may not be able to perform, this (if done for purposes of his own and without the other's authority) amounts to treating the property as his own to dispose of regardless of the other's rights. (14) Notwithstanding anything contained in subsection (12) in any proceedings- (a) for stealing a motor vehicle or an aircraft proof that the person charged took or in any manner used the motor vehicle or aircraft without the consent of the owner or person in lawful possession thereof shall be conclusive evidence that the person charged intended to permanently deprive the owner of it; and (b) for attempting to steal a motor vehicle or an aircraft proof that the person charged attempted to take or in any manner use the motor vehicle or aircraft without the consent of the owner or person in lawful possession thereof shall be conclusive evidence that the person charged intended to permanently deprive the owner of it. Theft, robbery, burglary, &c. Crimes Act 1958 - SECT 74 Theft 74. Theft (1) A person guilty of theft is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum). (2) Section 80A applies as if the reference in that section to sections 81-87 (both inclusive) were a reference to this section. Crimes Act 1958 - SECT 74A Shop theft 74A. Shop theft (1) Despite section 74 and anything to the contrary in this Division, a member of the police force may serve an infringement notice on any person if he or she believes on reasonable grounds that the theft is shop theft. (2) An offence referred to in subsection (1) for which an infringement notice may be served is an infringement offence within the meaning of the Infringements Act 2006. (3) The infringement penalty for an offence for which an infringement notice may be served under this section is 2 penalty units. (4) An infringement notice under this section must not be served on a person who is under 18 years of age at the time of the alleged offence. Note The Infringements Act 2006 provides that, subject to that Act and any other Act, a person who pays an infringement penalty and any prescribed costs within the time required under that Act expiates the offence by that payment. Section 33 of that Act provides that, generally, expiation means that no further proceedings may be taken against the person for that offence and no conviction is taken to have been recorded against the person for that offence. Payment is not to be taken as an admission of guilt or liability and payment is not to be referred to in any report provided to a court for the purposes of determining sentence for an offence. (5) For the purposes of this section- retail premises means the whole or any part of a building, structure or place or any vehicle- (a) that is used wholly or predominantly for the retail sale of goods; and (b) in or at which goods are sold or exposed or offered for sale by retail on one or more occasions; shop theft means theft from retail premises of property which is goods valued at, or displayed for sale at, a price less than $600. Crimes Act 1958 - SECT 75 Robbery 75. Robbery (1) A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear that he or another person will be then and there subjected to force. (2) A person guilty of robbery, or of an assault with intent to rob, is guilty of an indictable offence and liable to level 4 imprisonment (15 years maximum). Crimes Act 1958 - SECT 75A Armed robbery 75A. Armed robbery (1) A person is guilty of armed robbery if he commits any robbery and at the time has with him a firearm, imitation firearm, offensive weapon, explosive or imitation explosive within the meaning assigned to those terms for the purposes of section 77(1). (2) A person guilty of armed robbery is guilty of an indictable offence and liable to level 2 imprisonment (25 years maximum). Crimes Act 1958 - SECT 76 Burglary 76. Burglary (1) A person is guilty of burglary if he enters any building or part of a building as a trespasser with intent- (a) to steal anything in the building or part in question; or (b) to commit an offence- (i) involving an assault to a person in the building or part in question; or (ii) involving any damage to the building or to property in the building or part in question- which is punishable with imprisonment for a term of five years or more. (2) References in subsection (1) to a building shall apply also to an inhabited vehicle or vessel, and shall apply to any such vehicle or vessel at times when the person having a habitation in it is not there as well as at times when he is. (3) A person guilty of burglary is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum). Crimes Act 1958 - SECT 77 Aggravated burglary 77. Aggravated burglary (1) A person is guilty of aggravated burglary if he or she commits a burglary and- (a) at the time has with him or her any firearm or imitation firearm, any offensive weapon or any explosive or imitation explosive; or (b) at the time of entering the building or the part of the building a person was then present in the building or part of the building and he or she knew that a person was then so present or was reckless as to whether or not a person was then so present. (1A) For the purposes of subsection (1)- explosive means any article manufactured for the purpose of producing a practical effect by explosion, or intended by the person having it with him or her for that purpose; firearm has the same meaning as in the Firearms Act 1996; imitation explosive means any article which might reasonably be taken to be or to contain an explosive; imitation firearm means anything which has the appearance of being a firearm, whether capable of being discharged or not; offensive weapon means any article made or adapted for use for causing injury to or incapacitating a person, or which the person having it with him or her intends or threatens to use for such a purpose. (2) A person guilty of aggravated burglary is guilty of an indictable offence and liable to level 2 imprisonment (25 years maximum). Crimes Act 1958 - SECT 78 Removal of articles from places open to the public 78. Removal of articles from places open to the public (1) Subject to subsections (2) and (3), where the public have access to a building in order to view the building or part of it, or a collection or part of a collection housed in it, any person who without lawful authority removes from the building or its grounds the whole or part of any article displayed or kept for display to the public in the building or that part of it or in its grounds shall be guilty of an offence. For this purpose collection includes a collection got together for a temporary purpose, but references in this section to a collection do not apply to a collection made or exhibited for the purpose of effecting sales or other commercial dealings. (2) It is immaterial for purposes of subsection (1) that the public's access to a building is limited to a particular period or particular occasion; but where anything removed from a building or its grounds is there otherwise than as forming part of, or being on loan for exhibition with, a collection intended for permanent exhibition to the public, the person removing it does not thereby commit an offence under this section unless he removes it on a day when the public have access to the building as mentioned in subsection (1). (3) A person does not commit an offence under this section if he believes that he has lawful authority for the removal of the thing in question or that he would have it if the person entitled to give it knew of the removal and the circumstances of it. (4) A person guilty of an offence under this section is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum). * * * * * Crimes Act 1958 - SECT 80 Unlawfully taking control of an aircraft 80. Unlawfully taking control of an aircraft (1) A person who without lawful excuse takes or exercises control, whether direct or through another person, of an aircraft while another person not being an accomplice to the first-mentioned person is on board the aircraft shall be guilty of an indictable offence and shall be liable to level 4 imprisonment (15 years maximum). (2) A person who without lawful excuse, by force or violence or threat of force or violence or by any trick of false pretence, takes or exercises control, whether direct or through another person, of an aircraft while another person not being an accomplice of the first-mentioned person is on board the aircraft shall be guilty of an indictable offence and shall be liable to level 3 imprisonment (20 years maximum). Fraud and blackmail Crimes Act 1958 - SECT 80A Extra-territorial offences 80A. Extra-territorial offences (1) If- (a) a person does, or omits to do, an act or thing referred to in sections 81-87 (both inclusive) outside, or partly outside, Victoria; and (b) there is a real and substantial link within the meaning of subsection (2) between doing, or omitting to do, the act or thing and Victoria- those sections apply to the act or thing or the omission as if it had been done, or omitted to be done, wholly within Victoria. (2) For the purposes of subsection (1), there is a real and substantial link with Victoria- (a) if a significant part of the conduct relating to, or constituting the doing of the act or thing, or the omission, occurred in Victoria; or (b) where the act or thing was done, or the omission occurred, wholly outside Victoria, if the act or thing was done, or omitted to be done, with the intention that substantial harmful effects arise in Victoria and such effects did arise. Crimes Act 1958 - SECT 81 Obtaining property by deception 81. Obtaining property by deception (1) A person who by any deception dishonestly obtains property belonging to another, with the intention of permanently depriving the other of it, is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum). (2) For purposes of this section a person is to be treated as obtaining property if he obtains ownership, possession or control of it, and obtain includes obtaining for another or enabling another to obtain or to retain. (3) Subsections (12) and (13) of section 73 shall apply for purposes of this section, with the necessary adaptation of the reference to appropriating, as it applies for purposes of section 72. (4) For the purposes of this section, deception- (a) means any deception (whether deliberate or reckless) by words or conduct as to fact or as to law, including a deception as to the present intentions of the person using the deception or any other person; and (b) includes an act or thing done or omitted to be done with the intention of causing- (i) a computer system; or (ii) a machine that is designed to operate by means of payment or identification- to make a response that the person doing or omitting to do the act or thing is not authorised to cause the computer system or machine to make. Crimes Act 1958 - SECT 82 Obtaining financial advantage by deception 82. Obtaining financial advantage by deception (1) A person who by any deception dishonestly obtains for himself or another any financial advantage is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum). (2) For purposes of this section deception has the same meaning as in section 81. Crimes Act 1958 - SECT 83 False accounting 83. False accounting (1) Where a person dishonestly, with a view to gain for himself or another or with intent to cause loss to another- (a) destroys, defaces, conceals or falsifies any account or any record or document made or required for any accounting purpose; or (b) in furnishing information for any purpose produces or makes use of any account, or any such record or document as aforesaid, which to his knowledge is or may be misleading, false or deceptive in a material particular- he is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum). (2) For purposes of this section a person who makes or concurs in making in an account or other document an entry which is or may be misleading, false or deceptive in a material particular, or who omits or concurs in omitting a material particular from an account or other document, is to be treated as falsifying the account or document. Crimes Act 1958 - SECT 83A Falsification of documents 83A. Falsification of documents (1) A person must not make a false document with the intention that he or she, or another person, shall use it to induce another person to accept it as genuine, and by reason of so accepting it to do or not to do some act to that other person's, or to another person's prejudice. Penalty: Level 5 imprisonment (10 years maximum). (2) A person must not use a document which is, and which he or she knows to be, false, with the intention of inducing another person to accept it as genuine, and by reason of so accepting it to do or not to do some act to that other person's, or to another person's prejudice. Penalty: Level 5 imprisonment (10 years maximum). (3) A person must not make a copy of a document which is, and which he or she knows to be, a false document, with the intention that he or she, or another person, shall use it to induce another person to accept it as a copy of a genuine document and by reason of so accepting it to do or not to do some act to that other person's, or to another person's prejudice. Penalty: Level 5 imprisonment (10 years maximum). (4) A person must not use a copy of a document which is, and which he or she knows to be, a false document, with the intention of inducing another person to accept it as a copy of a genuine document and by reason of so accepting it to do or not to do some act to that other person's, or to another person's prejudice. Penalty: Level 5 imprisonment (10 years maximum). (5) A person must not have in his or her custody, or under his or her control, a document which is, and which he or she knows to be, false, with the intention that the person or another shall use it to induce another person to accept it as genuine, and by reason of so accepting it to do or not to do some act to that other person's, or to another person's, prejudice. Penalty: Level 5 imprisonment (10 years maximum). (5A) A person must not, with the intention that he or she may commit an offence against subsection (1), make, or have in his or her custody, or under his or her control, a machine or implement, or paper or other material, which is, and which he or she knows to be, specially designed or adapted for the making of a document which, if made by him or her, would be false. Penalty: Level 5 imprisonment (10 years maximum). (5B) A person must not, with the intention that another person may commit an offence against subsection (1), make, or have in his or her custody, or under his or her control, a machine or implement, or paper or other material, which is, and which he or she knows to be, specially designed or adapted for the making of a document which, if made by that other person, would be false. Penalty: Level 5 imprisonment (10 years maximum). (5C) A person must not, without lawful excuse, make or have in his or her custody, or under his or her control, a machine or implement, or paper or other material, which is and which the person knows to be specially designed or adapted for the making of a document which, if made by him or her, would be false. Penalty: Level 6 imprisonment (5 years maximum). (6) For the purpose of this section, a document is false if it purports- (a) to have been made in the form in which it is made by a person who did not in fact 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 in fact 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 in fact 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 in fact authorise its making in those terms; or (e) to have been altered in any respect by a person who did not in fact alter it in that respect; or (f) to have been altered in any respect on the authority of a person who did not in fact authorise the alteration in that respect; or (g) to have been made or altered on a date on which, or at a place at which, or otherwise in circumstances in which, it was not in fact made or altered; or (h) to have been made or altered by an existing person who did not in fact exist. (7) For the purposes of this section, a person is to be treated as making a false document if the person alters a document so as to make it false in any respect (whether or not it is false in some other respect apart from that alteration). (8) For the purposes of this section, an act or omission is to a person's prejudice if, and only if, it is one that, if it occurs- (a) will result- (i) in the person's temporary or permanent loss of property; or (ii) in the person's being deprived of an opportunity to earn remuneration or greater remuneration; or (iii) in the person's being deprived of an opportunity to obtain a financial advantage otherwise than by way of remuneration; or (b) will result in any person being given an opportunity- (i) to earn remuneration or greater remuneration from the first-mentioned person; or (ii) to obtain a financial advantage from the first-mentioned person otherwise than by way of remuneration; or (c) will be the result of the person's having accepted a false document as genuine, or a copy of a false document as a copy of a genuine one, in connection with the person's performance of a duty. (9) In this section- (a) a reference to inducing a person to accept a false document as genuine, or a copy of a false document as a copy of a genuine document, shall be read as including a reference to causing a machine to respond to the document or copy as if it were a genuine document or a copy of a genuine document, as the case may be; and (b) if- (i) a machine so responds to a document or copy; and (ii) the act or omission intended to be caused by the machine's so responding is an act or omission that, if it were an act or omission of a person, would be to a person's prejudice within the meaning of subsection (1)- the act or omission intended to be caused by the machine's so responding shall be deemed to be an act or omission to a person's prejudice. (10) In proceedings for an offence against this section, if it is necessary to allege an intent to induce a person to accept a false document as genuine, or a copy of a false document as a copy of a genuine one, it is not necessary to allege that the accused intended so to induce a particular person. Crimes Act 1958 - SECT 83B Abolition of common law offences of forgery and uttering 83B. Abolition of common law offences of forgery and uttering The offences at common law of forgery and uttering are abolished except as regards offences alleged to have been committed before the commencement of section 6 of the Crimes Legislation (Miscellaneous Amendments) Act 1989. Crimes Act 1958 - SECT 84 Liability of company officers for certain offences by company 84. Liability of company officers for certain offences by company (1) Where an offence committed by a body corporate under section 81, 82 or 83 is proved to have been committed with the consent or connivance of any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence, and shall be liable to be proceeded against and punished accordingly. (2) Where the affairs of a body corporate are managed by its members, this section shall apply in relation to the acts and defaults of a member in connexion with his functions of management as if he were a director of the body corporate. Crimes Act 1958 - SECT 85 False statements by company directors etc. 85. False statements by company directors etc. (1) Where an officer of a body corporate or unincorporated association (or person purporting to act as such), with intent to deceive members or creditors of the body corporate or association about its affairs, publishes or concurs in publishing a written statement or account which to his knowledge is or may be misleading, false or deceptive in a material particular, he is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum). (2) For purposes of this section a person who has entered into a security for the benefit of a body corporate or association is to be treated as a creditor of it. (3) Where the affairs of a body corporate or association are managed by its members, this section shall apply to any statement which a member publishes or concurs in publishing in connexion with his functions of management as if he were an officer of the body corporate or association. Crimes Act 1958 - SECT 86 Suppression etc. of documents 86. Suppression etc. of documents (1) A person who dishonestly, with a view to gain for himself or another or with intent to cause loss to another, destroys, defaces or conceals any valuable security, any will or other testamentary document or any original document of or belonging to, or filed or deposited in, any court of justice or any government department is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum). (2) A person who dishonestly, with a view to gain for himself or another or with intent to cause loss to another, by any deception procures the execution of a valuable security is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum) and this subsection shall apply in relation to the making, acceptance, indorsement, alteration, cancellation or destruction in whole or in part of a valuable security, and in relation to the signing or sealing of any paper or other material in order that it may be made or converted into, or used or dealt with as, a valuable security, as if that were the execution of a valuable security. (3) For purposes of this section deception has the same meaning as in section 81, and valuable security means any document creating, transferring, surrendering or releasing any right to, in or over property, or authorizing the payment of money or delivery of any property, or evidencing the creation, transfer, surrender or release of any such right, or the payment of money or delivery of any property, or the satisfaction of any obligation. Crimes Act 1958 - SECT 87 Blackmail 87. Blackmail (1) A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief- (a) that he has reasonable grounds for making the demand; and (b) that the use of the menaces is proper means of reinforcing the demand. (2) The nature of the act or omission demanded is immaterial, and it is also immaterial whether the menaces relate to action to be taken by the person making the demand. (3) A person guilty of blackmail is guilty of an indictable offence and liable to level 4 imprisonment (15 years maximum). Offences relating to goods stolen, &c. Crimes Act 1958 - SECT 88 Handling stolen goods 88. Handling stolen goods (1) A person handles stolen goods if knowing or believing them to be stolen goods he dishonestly receives the goods or brings them into Victoria, or dishonestly undertakes or assists in bringing them into Victoria or in their retention, removal, disposal or realization by or for the benefit of another person, or if he arranges to do so. (2) A person guilty of handling stolen goods is guilty of an indictable offence and liable to level 4 imprisonment (15 years maximum). (3) Where a married woman handles stolen goods, the fact that the person from whom she receives the goods is her husband shall not of itself constitute a defence to a charge under this section. Crimes Act 1958 - SECT 88A Alternative counts of theft and handling stolen goods 88A. Alternative counts of theft and handling stolen goods If- (a) a charge for an offence of theft under section 74 and a charge for an offence of handling stolen goods under section 88 are joined in the same presentment as alternative counts and tried together; and (b) the jury are satisfied beyond reasonable doubt that the accused is either guilty of theft or guilty of handling stolen goods but are unable to agree on which offence the accused should be found guilty of- the jury must acquit the accused of handling stolen goods and find the accused guilty of theft and the accused is liable to punishment accordingly. Crimes Act 1958 - SECT 89 Advertising rewards for return of goods stolen or lost 89. Advertising rewards for return of goods stolen or lost Where any public advertisement of a reward for the return of any goods which have been stolen or lost uses any words to the effect that no questions will be asked, or that the person producing the goods will be safe from apprehension or inquiry, or that any money paid for the purchase of the goods or advanced by way of loan on them will be repaid, the person advertising the reward and any person who prints or publishes the advertisement shall on summary conviction be liable to a level 11 fine (5 penalty units maximum). Crimes Act 1958 - SECT 90 Scope of offences relating to stolen goods 90. Scope of offences relating to stolen goods (1) The provisions of this Act relating to goods which have been stolen shall apply whether the stealing occurred in Victoria or elsewhere, and whether it occurred before or after the commencement of this Act, provided that the stealing (if not an offence under this Act) amounted to an offence where and at the time when the goods were stolen; and references to stolen goods shall be construed accordingly. (2) For purposes of those provisions references to stolen goods shall include, in addition to the goods originally stolen and parts of them (whether in their original state or not)- (a) any other goods which directly or indirectly represent or have at any time represented the stolen goods in the hands of the thief as being the proceeds of any disposal or realization of the whole or part of the goods stolen or of goods so representing the stolen goods; and (b) any other goods which directly or indirectly represent or have at any time represented the stolen goods in the hands of a handler of the stolen goods or any part of them as being the proceeds of any disposal or realization of the whole or part of the stolen goods handled by him or of goods so representing them. (3) But no goods shall be regarded as having continued to be stolen goods after they have been restored to the person from whom they were stolen or to other lawful possession or custody, or after that person and any other person claiming through him have otherwise ceased as regards those goods to have any right to restitution in respect of the theft. (4) For purposes of the provisions of this Act relating to goods which have been stolen (including subsections (1)(2) and (3)) goods obtained in Victoria or elsewhere either by blackmail or in the circumstances described in subsection (1) of section 81 shall be regarded as stolen; and steal, theft and thief shall be construed accordingly. Possession of housebreaking implements, &c. Crimes Act 1958 - SECT 91 Going equipped for stealing etc. 91. Going equipped for stealing etc. (1) A person shall be guilty of a summary offence if, when not at his place of abode, he has with him any article for use in the course of or in connexion with any burglary, theft or cheat. (2) A person guilty of an offence under this section shall be liable to level 7 imprisonment (2 years maximum). (3) Where a person is charged with an offence under this section, proof that he had with him any article made or adapted for use in committing a burglary, theft or cheat shall be evidence that he had it with him for such use. (4) On the conviction of a person for an offence under this section, the court may order the article to be forfeited to the Crown and disposed of in the manner set out in the order. Crimes Act 1958 - SECT 92 Search for stolen goods 92. Search for stolen goods (1) If a magistrate is satisfied by evidence on oath or by affidavit that there is reasonable cause to believe that any person has- (a) in the custody or possession of the person; or (b) on any premises (including any vehicle on or in those premises) of the person; or (c) on or in a particular vehicle located in a public place- any stolen goods, the magistrate may grant a warrant to search for and seize those goods. (1A) A warrant issued under subsection (1) must be addressed to a constable unless the warrant is issued under the authority of an enactment that expressly provides otherwise. (2) An officer of police not below the rank of inspector may give a constable written authority to search any premises for stolen goods- (a) if the person in occupation of the premises has been convicted within the preceding five years of handling stolen goods or of any offence involving dishonesty and punishable with imprisonment; or (b) if a person who has been convicted within the preceding five years of handling stolen goods has within the preceding twelve months been in occupation of the premises. (3) If under this section a person is authorised to search premises or a particular vehicle located in a public place for stolen goods, he or she may enter and search the premises or the vehicle accordingly, and may seize any goods the person believes to be stolen goods. (4) This section is to be construed in accordance with section 90 and in subsection (2) the references to handling stolen goods shall include any corresponding offence committed before the commencement of the Crimes (Theft) Act 1973. (5) In this section- public place has the same meaning as it has in section 3 of the Summary Offences Act 1966; vehicle includes motor vehicle, aircraft and vessel. Crimes Act 1958 - SECT 93 Procedure and evidence 93. Procedure and evidence (1) Any number of persons may be charged in one indictment or presentment with reference to the same theft, with having at different times or at the same time handled all or any of the stolen goods, and the persons so charged may be tried together. (2) On the trial of two or more persons for jointly handling any stolen goods the jury may find any of the accused guilty if the jury are satisfied that he handled all or any of the stolen goods, whether or not he did so jointly with the other accused or any of them. (3) In any proceedings for the theft of anything in the course of transmission (whether by post or otherwise), or for handling stolen goods from such a theft, a statutory declaration made by any person that he despatched or received or failed to receive any goods or postal packet, or that any goods or postal packet when despatched or received by him were or was in a particular state or condition, shall be admissible as evidence of the facts stated in the declaration, subject to the following conditions- (a) a statutory declaration shall only be admissible where and to the extent to which oral evidence to the like effect would have been admissible in the proceedings; and (b) a statutory declaration shall only be admissible if at least seven days before the hearing or trial a copy of it has been given to the person charged, and he has not, at least three days before the hearing or trial or within such further time as the court may in special circumstances allow, given to the informant or the Director of Public Prosecutions as the case requires, written notice requiring the attendance at the hearing or trial of the person making the declaration. (4) This section is to be construed in accordance with section 90. * * * * * General and consequential provisions Crimes Act 1958 - SECT 95 Husband and wife 95. Husband and wife (1) This Act shall apply in relation to the parties to a marriage, and to property belonging to the wife or husband whether or not by reason of an interest derived from the marriage, as it would apply if they were not married and any such interest subsisted independently of the marriage. (2) A person shall have the same right to bring proceedings against that person's wife or husband for any offence (whether under this Act or otherwise) as if they were not married, and a person bringing any such proceedings shall be competent to give evidence for the prosecution at every stage of the proceedings. * * * * * Provided that this subsection shall not apply to proceedings against a person for an offence- (a) if that person is charged with committing the offence jointly with the wife or husband; or (b) if by virtue of any judicial decree or order (wherever made) that person and the wife or husband are at the time of the offence under no obligation to cohabit- and provided further that this subsection shall not prevent the arrest, or the issue of a warrant for the arrest, of a person for an offence, or the remand in custody or on bail of a person charged with an offence, where the arrest (if without a warrant) is made, or the warrant of arrest issues on an information laid, by a person other than the wife or husband. * * * * * Secret commissions prohibition Crimes Act 1958 - SECT 175 Definitions6 175. Definitions6 (1) For the purposes of this subdivision- advice given and words to the like effect include every report certificate statement and suggestion intended to influence the person to whom the same may be made or given and every influence exercised by one person over another; agent includes any corporation or other person acting or having been acting or desirous or intending to act for or on behalf of any corporation or other person whether as agent partner co-owner clerk servant employee banker broker auctioneer architect clerk of works engineer legal practitioner surveyor buyer salesman foreman trustee executor administrator liquidator trustee within the meaning of any Act relating to bankruptcy receiver director manager or other officer or member of committee or governing body of any corporation club partnership or association or in any other capacity either alone or jointly with any other person and whether in his own name or in the name of his principal or otherwise and a person serving under the Crown; contract includes contract of sale or of employment or any other contract whatever; in relation to his principal's affairs or business implies the additional words "whether within the scope of his authority or course of his employment as agent or not"; person having business relations with the principal includes every corporation or other person whether as principal or agent carrying on or having carried on or desirous or intending to carry on any negotiation or business with or engaged or having been engaged or desirous or intending to be engaged in the performance of any contract with or in the execution of any work or business for or in the supply of any goods or chattels to any principal and also includes any agent of such corporation or other person; principal includes a corporation or other person for or on behalf of whom the agent acts has acted or is desirous or intending to act; solicit any valuable consideration and valuable consideration solicited and words to the like effect shall be construed with the following directions, namely:-That every agent who diverts obstructs or interferes with the proper course of business or manufacture or impedes or obstructs or fails to use due diligence in the prosecution of any negotiation or business with the intent to obtain the gift of any valuable consideration from any person interested in the said negotiation or business or with intent to injure any such person shall be deemed to have solicited a valuable consideration from a person having business relations with the principal of such agent; trustee includes trustee executor administrator liquidator trustee within the meaning of any Act relating to bankruptcy receiver director administrator or guardian under the Guardianship and Administration Act 1986 or person having power to appoint a trustee or person entitled to obtain probate of the will or letters of administration to the estate of a deceased person; valuable consideration includes any money loan office place employment agreement to give employment benefit or advantage whatsoever and any commission or rebate deduction or percentage bonus or discount or any forbearance to demand any money or money's worth or valuable thing and the acceptance of any of the said things shall be deemed the receipt of a valuable consideration; valuable consideration when used in connexion with the offer thereof includes any offer of any agreement or promise to give and every holding out of any expectation of valuable consideration; valuable consideration when used in connexion with the receipt thereof includes any acceptance of any agreement promise or offer to give and of any holding out of any expectation of valuable consideration. (2) Any act or thing prohibited by this subdivision is prohibited whether done directly or indirectly by the person mentioned or by or through any other person. Crimes Act 1958 - SECT 176 Receipt or solicitation of secret commission by an agent an indictable offence7 176. Receipt or solicitation of secret commission by an agent an indictable offence7 (1) Whosoever being an agent corruptly receives or solicits from any person for himself or for any other person any valuable consideration- (a) as an inducement or reward for or otherwise on account of doing or forbearing to do or having done or forborne to do any act in relation to his principal's affairs or business; or (b) the receipt or any expectation of which would in any way tend to influence him to show or to forbear to show favour or disfavour to any person in relation to his principal's affairs or business; or (2) Whosoever corruptly gives or offers to any agent any valuable consideration- (a) as an inducement or reward for or otherwise on account of doing or forbearing to do or having done or forborne to do any act in relation to his principal's affairs or business; or (b) the receipt or any expectation of which would in any way tend to influence him to show or to forbear to show favour or disfavour to any person in relation to his principal's affairs or business- shall be guilty of an indictable offence, and shall- be liable if a corporation to a level 5 fine and if any other person to level 5 imprisonment (10 years maximum) or a level 5 fine or both. Crimes Act 1958 - SECT 177 Secret gifts to parent, wife, child, partner etc. of agent deemed gifts to agent8 177. Secret gifts to parent, wife, child, partner etc. of agent deemed gifts to agent8 (1) Any valuable consideration given or offered to any parent husband wife or child of any agent or to his partner clerk or employee or at the agent's request to any person by any person having business relations with the principal of such agent shall be deemed to have been given or offered to the agent. (2) Any valuable consideration received or solicited by any parent husband wife or child of any agent or by his partner clerk or employee from any person having business relations with the principal of such agent shall be deemed to have been received or solicited by the agent, unless it is proved that the valuable consideration was so received or solicited without the consent knowledge or privity of the agent. Crimes Act 1958 - SECT 178 Giving or receiving false or misleading receipt or account an indictable offence9 $$NSECT 178. Giving or receiving false or misleading receipt or account an indictable offence9 If with intent to deceive or defraud the principal any person gives to any agent or any agent receives or uses or gives to the principal any receipt invoice account or document in respect of which or in relation to a dealing transaction or matter in which the principal is interested and which- (a) contains any statement which he knows is false or erroneous or defective in any important particular or is in any way likely to mislead the principal; or (b) omits to state explicitly and fully the fact of any commission percentage bonus discount rebate repayment gratuity or deduction having been made given or allowed or agreed to be made given or allowed- he shall be guilty of an indictable offence, and shall- be liable if a corporation to a level 5 fine and if any other person to level 5 imprisonment (10 years maximum) or a level 5 fine or both. Crimes Act 1958 - SECT 179 Gift or receipt of secret commission in return for advice given10 179. Gift or receipt of secret commission in return for advice given10 (1) Whenever any advice is given by one person to another and such advice is in any way intended to induce or influence the person advised- (a) to enter into a contract with any third person; or (b) to appoint or join with another in appointing or to vote for or to aid in obtaining the election or appointment or to authorize or join with another in authorizing the appointment of any third person as trustee- and any valuable consideration is given by such third person to the person giving the advice without the assent of the person advised the gift or receipt of the valuable consideration shall be an indictable offence, but this subsection shall not apply when the person giving the advice was to the knowledge of the person advised the agent of such third person, or when the valuable consideration was not given in respect of such advice. (2) Any offer or solicitation of a valuable consideration in respect of any advice given or to be given by one person to another with a view to induce or influence the person advised- (a) to enter into a contract with the person offering or solicited; or (b) to appoint or join with another in appointing or to vote for or to aid in obtaining the election or appointment or to authorize or join with another in authorizing the appointment of the person offering or solicited as trustee- and with the intent that the gift or receipt of such valuable consideration is not to be made known to the person advised shall be an indictable offence, but this subsection shall not apply when such first-mentioned person is the agent of the person offering or solicited. (3) Any person on conviction of an indictable offence under any of the provisions of this section shall- (a) be liable if a corporation to a level 5 fine and if any other person to level 5 imprisonment (10 years maximum) or a level 5 fine or both. * * * * * Crimes Act 1958 - SECT 180 Secret commission to trustee in return for substituted appointment11 180. Secret commission to trustee in return for substituted appointment11 Every person who offers or gives any valuable consideration to a trustee and every trustee who receives or solicits any valuable consideration for himself or for any other person without the assent of the persons beneficially entitled to the estate or of the Supreme Court as an inducement or reward for appointing or having appointed or for joining or having joined with another in appointing or for authorizing or having authorized or for joining or having joined with another in authorizing any person to be appointed in his stead or instead of him and any other person as trustee shall be guilty of an indictable offence, and shall- (a) be liable if a corporation to a level 5 fine and if any other person to level 5 imprisonment (10 years maximum) or a level 5 fine or both. * * * * * Crimes Act 1958 - SECT 181 Aiding and abetting offences within or outside Victoria12 181. Aiding and abetting offences within or outside Victoria12 Every person who being within Victoria knowingly aids, abets, counsels, or procures, or who attempts or takes part in or is in any way privy to- (a) doing any act or thing in contravention of this subdivision; (b) doing any act or thing outside Victoria, or partly within and partly outside Victoria, which if done within Victoria would be in contravention of this subdivision- shall be guilty of an indictable offence, and shall- be liable if a corporation to a level 5 fine and if any other person to level 5 imprisonment (10 years maximum) or a level 5 fine or both. Crimes Act 1958 - SECT 182 Liability of directors etc. acting without authority13 182. Liability of directors etc. acting without authority13 Every director manager or officer of a company and every person acting for another who knowingly takes part in or is in any way privy to doing or who attempts to do any act or thing without authority which if authorized would be in contravention of any of the provisions of this subdivision shall be guilty of an indictable offence, and shall- (a) be liable if a corporation to a level 5 fine and if any other person to level 5 imprisonment (10 years maximum) or a level 5 fine or both. * * * * * * * * * * Crimes Act 1958 - SECT 184 Protection of witness giving answers criminating himself 14 184. Protection of witness giving answers criminating himself 14 A person who is called as a witness in any proceedings shall not be excused from answering any question relating to any offence under this subdivision on the ground that the answer thereto may criminate or tend to criminate him: Provided that- (a) a witness who in the judgment of the court answers truly all questions which he is required by the court to answer shall be entitled to receive a certificate from the court stating that such witness has so answered; and (b) an answer by a person to a question put by or before the court in any proceeding under this subdivision shall not except in the said proceeding or in the case of any criminal proceedings for perjury in respect of such evidence be in any proceeding civil or criminal admissible in evidence against him. Crimes Act 1958 - SECT 185 Stay of proceedings against such witness15 185. Stay of proceedings against such witness15 When a person has received a certificate as aforesaid and any criminal proceeding is at any time instituted against him in respect of the offence which was in question in the proceeding in which the said person was called as a witness the court having cognizance of the case shall on proof of the certificate and of the identity of the offence in question in the two cases stay the proceedings. Crimes Act 1958 - SECT 186 Custom of itself no defence16 186. Custom of itself no defence16 (1) In any prosecution under this subdivision it shall not amount to a defence to show that any such valuable consideration as is mentioned in this subdivision is customary in any trade or calling. (2) For the purposes of this subdivision where it is proved that any valuable consideration has been received or solicited by an agent from or given or offered to an agent by any person having business relations with the principal without the assent of the principal the burden of proving that such valuable consideration was not received solicited given or offered in contravention of any of the provisions of this subdivision shall be on the accused. * * * * * * * * * * (5) Every charge for any offence under this subdivision shall be upon oath. Fraudulently inducing persons to invest * * * * * Crimes Act 1958 - SECT 191 Fraudulently inducing persons to invest money 191. Fraudulently inducing persons to invest money (1) Any person who, by any statement promise or forecast which he knows to be misleading false or deceptive or by any dishonest concealment of material facts or by the reckless making of any statement promise or forecast which is misleading false or deceptive, induces or attempts to induce another person- (a) to enter into or offer to enter into- (i) any agreement for or with a view to acquiring disposing of subscribing in or underwriting securities or lending or depositing money to or with any corporation; or (ii) any agreement the purpose or pretended purpose of which is to secure a profit to any of the parties from the yield of securities or by reference to fluctuations in the value of securities; or (b) to acquire or offer to acquire any right or interest under any arrangement the purpose or effect or pretended purpose or effect of which is to provide facilities for the participation by persons in profits or income alleged to arise or to be likely to arise from the acquisition holding management or disposal of any property other than securities; or (c) to enter into or offer to enter into an agreement the purpose or pretended purpose of which is to secure a profit to any of the parties by reference to fluctuations in the value of any property other than securities- shall be guilty of an indictable offence and liable to level 4 imprisonment (15 years maximum). (2) Any person guilty of conspiracy to commit any offence against the last preceding subsection shall be punishable as if he had committed such an offence. (3) In this section unless inconsistent with the context or subject-matter- corporation means any body corporate whether incorporated in Victoria or elsewhere; debentures means any debentures debenture stock or bonds of a corporation, whether constituting a charge on the assets of the corporation or not; securities means- (a) shares or debentures or rights or interests (whether described as units or otherwise) in any shares or debentures; or (b) securities of the Government of any part of Her Majesty's dominions or the Government of any foreign state; or (c) rights (whether actual or contingent) in respect of money lent to or deposited with any corporation- and includes rights or interests (whether described as units or otherwise) which may be acquired under any trust scheme under which all property for the time being subject to any trust created in pursuance of the scheme consists of such securities as are mentioned in paragraph (a)(b) or (c) of this interpretation; shares means shares in the share capital of a corporation or stock of a corporation. Crimes Act 1958 - SECT 192 Evidence of financial position of company 192. Evidence of financial position of company Upon the trial of a charge for any offence against section one hundred and ninety or one hundred and ninety-one of this Act the opinion of any properly qualified auditor or accountant as to the financial position of any company at any time or during any period in respect of which he has made an audit or examination of the affairs of the company according to recognized audit practice shall be admissible either for the prosecution or for the defence as evidence of the financial position of the company at that time or during that period notwithstanding that the opinion is based in whole or in part on book-entries documents or vouchers or on written or verbal statements by other persons. Division 2AA-Identity crime Crimes Act 1958 - SECT 192A Definitions 192A. Definitions In this Division- identification documentation means a document or other thing that- (a) contains or incorporates identification information; and (b) is capable of being used by a person for the purpose of pretending to be, or passing themself off as, another person (whether living or dead, or real or fictitious); identification information means information relating to a person (whether living or dead, or real or fictitious) that is capable of being used (whether alone or in conjunction with other information) to identify, or purportedly identify, the person, being information such as- (a) a name, address, date of birth or place of birth; (b) information as to the person's marital status; (c) information that identifies another person as a relative of the person; (d) a driver licence or driver licence number; (e) a passport or passport number; (f) biometric data; (g) a voice print; (h) a credit or debit card, its number or data stored or encrypted on it; (i) a financial account number, user name or password; (j) a digital signature; (k) a series of numbers or letters (or both) intended for use as a means of personal identification; (l) an Australian Business Number within the meaning of the A New Tax System (Australian Business Number) Act 1999 of the Commonwealth. Crimes Act 1958 - SECT 192B Making, using or supplying identification information 192B. Making, using or supplying identification information (1) A person, who makes, uses or supplies identification information (that is not identification information that relates to that person), and- (a) who is aware that, or aware that there is a substantial risk that, the information is identification information; and (b) who intends to use or supply the information to commit an indictable offence, or to facilitate the commission of an indictable offence- is guilty of an offence and liable to level 6 imprisonment (5 years maximum). Note See section 426 for an alternative verdict for this offence. (2) A person may be found guilty of an offence against this section even if the commission of the indictable offence is impossible. (3) It is not a defence to a charge for an offence against this section that the person to whom the identification information relates consented to the making, use or supply of the identification information. Crimes Act 1958 - SECT 192C Possession of identification information 192C. Possession of identification information (1) A person, who possesses identification information (that is not identification information that relates to the person), and- (a) who is aware that, or aware that there is a substantial risk that, the information is identification information; and (b) who intends to use the information to commit an indictable offence, or to facilitate the commission of an indictable offence- is guilty of an offence and liable to imprisonment for a term not exceeding 3 years. (2) A person may be found guilty of an offence against this section even if the commission of the indictable offence is impossible. (3) It is not a defence to a charge for an offence against this section that the person to whom the identification information relates consented to the possession of the identification information. Crimes Act 1958 - SECT 192D Possession of equipment used to make etc. identification documentation 192D. Possession of equipment used to make etc. identification documentation (1) A person, who possesses equipment that is capable of being used to make, use, supply or retain identification documentation, and- (a) who intends to use, or who intends that another person will use, the equipment to make, use, supply or retain identification documentation; and (b) who intends to use any such identification documentation to commit an indictable offence or to facilitate the commission of an indictable offence- is guilty of an offence and liable to imprisonment for a term not exceeding 3 years. (2) A person may be found guilty of an offence against this section even if the commission of the indictable offence is impossible. Crimes Act 1958 - SECT 192E Not an offence to attempt to commit an identity crime offence 192E. Not an offence to attempt to commit an identity crime offence It is not an offence to attempt to commit an offence against section 192B, 192C or 192D. Division 2A-Money laundering etc. Crimes Act 1958 - SECT 193 Definitions 193. Definitions (1) In this Division- deal with includes receive, possess, conceal or dispose of; instrument of crime means property that is used in the commission of, or used to facilitate the commission of- (a) an offence referred to in Schedule 1 to the Confiscation Act 1997; or (b) an offence against a law of the Commonwealth that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence); or (c) an offence against a law of another State, a Territory or a country outside Australia that would have constituted an offence referred to in paragraph (a) if it had been committed in Victoria; proceeds of crime means property that is derived or realised, directly or indirectly, by any person from the commission of- (a) an offence referred to in Schedule 1 to the Confiscation Act 1997; or (b) an offence against a law of the Commonwealth that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence); or (c) an offence against a law of another State, a Territory or a country outside Australia that would have constituted an offence referred to in paragraph (a) if it had been committed in Victoria; property includes money and all other property real or personal including things in action and other intangible property. (2) For the purposes of the definitions of instrument of crime and proceeds of crime, it is necessary to prove facts that constitute one or more offences referred to in paragraph (a), (b) or (c) of those definitions but the particulars of an offence need not be proven. Crimes Act 1958 - SECT 194 Dealing with proceeds of crime 194. Dealing with proceeds of crime (1) A person must not deal with proceeds of crime- (a) knowing that it is proceeds of crime; and (b) intending to conceal that it is proceeds of crime. Penalty: Level 3 imprisonment (20 years maximum). (2) A person must not deal with proceeds of crime knowing that it is proceeds of crime. Penalty: Level 4 imprisonment (15 years maximum). (3) A person must not deal with proceeds of crime being reckless as to whether or not it is proceeds of crime. Penalty: Level 5 imprisonment (10 years maximum). (4) A person must not deal with proceeds of crime being negligent as to whether or not it is proceeds of crime. Penalty: Level 6 imprisonment (5 years maximum). (5) It is a defence to a prosecution for an offence under this section if the accused satisfies the court that the accused dealt with the property in order to assist the enforcement of a law of the Commonwealth, a State or a Territory. Crimes Act 1958 - SECT 195 Dealing with property suspected of being proceeds of crime 195. Dealing with property suspected of being proceeds of crime A person who deals with property if there are reasonable grounds to suspect that the property is proceeds of crime is guilty of a summary offence and liable to level 7 imprisonment (2 years maximum). $$T Crimes Act 1958 - SECT 195A Dealing with property which subsequently becomes an instrument of crime 195A. Dealing with property which subsequently becomes an instrument of crime (1) A person is guilty of an offence and liable to level 4 imprisonment (15 years maximum) if- (a) the person deals with property intending that the property will become an instrument of crime; and (b) the property subsequently becomes an instrument of crime. (2) A person is guilty of an offence and liable to level 5 imprisonment (10 years maximum) if- (a) the person deals with property being reckless as to whether or not the property will become an instrument of crime; and (b) the property subsequently becomes an instrument of crime. (3) A person is guilty of an offence and liable to level 6 imprisonment (5 years maximum) if- (a) the person deals with property being negligent as to whether or not the property will become an instrument of crime; and (b) the property subsequently becomes an instrument of crime. (4) A prosecution for an offence under this section must not be commenced without the consent of the Director of Public Prosecutions. (5) It is a defence to a prosecution for an offence under this section if the accused satisfies the court that the accused dealt with the property in order to assist the enforcement of a law of the Commonwealth, a State or a Territory. * * * * * Division 3-Criminal damage to property17 (1) General offences and procedural provisions Crimes Act 1958 - SECT 196 Definition 196. Definition (1) In this subdivision- property means property of a tangible nature, whether real or personal, including money and including wild creatures which have been tamed or are ordinarily kept in captivity and any other wild creatures or their carcasses if, but only if, they have been reduced into possession which has not been lost or abandoned or are in the course of being reduced into possession. (2) For the purposes of this subdivision property shall be treated as belonging to any person- (a) having the custody or control of it; (b) having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest); or (c) having a charge on it. (3) For the purposes of this subdivision property which is subject to a trust shall be treated as belonging to the trustee or trustees and the person or persons who have a right to enforce the trust. (4) For the purposes of this subdivision property of a corporation sole shall be treated as belonging to the corporation notwithstanding a vacancy in the corporation. Crimes Act 1958 - SECT 197 Destroying or damaging property 197. Destroying or damaging property (1) A person who intentionally and without lawful excuse destroys or damages any property belonging to another or to himself and another shall be guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum). (2) A person who intentionally and without lawful excuse destroys or damages any property, intending by the destruction or damage to endanger the life of another, shall be guilty of an indictable offence and liable to level 4 imprisonment (15 years maximum). (3) A person who dishonestly, with a view to gain for himself or another, destroys or damages any property shall be guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum). (4) For the purposes of subsections (1) and (2) a person who destroys or damages property shall be taken as doing so intentionally if, but only if- (a) his purpose or one of his purposes is to destroy or damage property; or (b) he knows or believes that his conduct is more likely than not to result in destruction of or damage to property. (5) For the purposes of subsection (2), a person who destroys or damages property shall be treated as intending thereby to endanger the life of another if, but only if- (a) his purpose or one of his purposes is to endanger the life of another by the destruction or damage; or (b) he knows or believes that the life of another is more likely than not to be endangered by the destruction or damage. (6) An offence against this section committed by destroying or damaging property by fire shall be charged as arson. (7) A person guilty of arson is liable to level 4 imprisonment (15 years maximum) despite anything to the contrary in this section. Crimes Act 1958 - SECT 197A Arson causing death 197A. Arson causing death A person who commits arson as defined in section 197 and thereby causes the death of another person is guilty of an indictable offence. Penalty: Level 2 imprisonment (25 years maximum). Crimes Act 1958 - SECT 198 Threats to destroy or damage property 198. Threats to destroy or damage property A person who without lawful excuse makes to another a threat- (a) to destroy or damage any property belonging to that other or a third person or to himself and that other or a third person; or (b) to destroy or damage his own property in a way which he knows or believes is more likely than not to endanger the life of that other or a third person- shall, if he made the threat with the purpose of causing the other to fear that it would be carried out, be guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum). Crimes Act 1958 - SECT 199 Possessing anything with intent to destroy or damage property 199. Possessing anything with intent to destroy or damage property A person who has anything in his custody or under his control- (a) with the purpose of using it, or causing or permitting another to use it, without lawful excuse- (i) to destroy or damage any property belonging to some other person or to himself, the user or both of them and some other person; or (ii) to destroy or damage any property in a way which he knows or believes is more likely than not to endanger the life of some other person; or (b) with the purpose of using it, or causing or permitting another to use it, dishonestly and with a view to gain for himself or another, to destroy or damage property- shall be guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum). * * * * * Crimes Act 1958 - SECT 201 Lawful excuse 201. Lawful excuse (1) This section applies to any offence under section 197(1), 198(a) or 199(a)(i). (2) A person charged with an offence to which this section applies shall, whether or not he would be treated for the purposes of this subdivision as having a lawful excuse apart from this subsection, be treated for those purposes as having a lawful excuse- (a) if at the time of the conduct alleged to constitute the offence he believed- (i) that the property in question belonged solely to himself; (ii) that he held a right or interest in the property in question which authorized him to engage in the conduct; or (iii) that the person or persons whom he believed to be entitled to consent to the destruction or damage in question had so consented or would have so consented if he or they had known the circumstances of the destruction or damage; or (b) if he engaged in the conduct alleged to constitute the offence in order to protect property belonging to himself or another or a right or interest in property which was or which he believed to be vested in himself or another, and at the time of such conduct he believed- (i) that the property, right or interest which he sought to protect was in immediate need of protection; and (ii) that the means of protection adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances. (3) For the purposes of this section it is immaterial whether a belief is justified or not if it is honestly held. (4) For the purposes of subsection (2) a right or interest in property includes any right or privilege in or over land, whether created by grant, licence or otherwise. (5) This section shall not be construed as taking away or otherwise affecting any other defence recognized by law as a defence to criminal charges. Crimes Act 1958 - SECT 201A Intentionally or recklessly causing a bushfire 201A. Intentionally or recklessly causing a bushfire (1) A person who- (a) intentionally or recklessly causes a fire; and (b) is reckless as to the spread of the fire to vegetation on property belonging to another- is guilty of an offence and liable to level 4 imprisonment (15 years maximum). (2) For the purposes of subsection (1)(b), circumstances in which a person is not to be taken to be reckless as to the spread of a fire include the following- (a) the person caused the fire in the course of carrying out a fire prevention, fire suppression or other land management activity; and (b) at the time the activity was carried out- (i) there was in force a provision made by or under an Act or by a Code of Practice approved under an Act, that regulated or otherwise applied to the carrying out of the activity and the person in carrying out that activity acted in accordance with the provision; and (ii) the person believed that his or her conduct in carrying out the activity was justified having regard to all of the circumstances. (3) For the purposes of subsection (2)(b)(ii) it is sufficient that a person honestly believed that the conduct was justified. (4) In this section- (a) a reference to causing a fire includes- (i) lighting a fire; (ii) maintaining a fire; (iii) failing to contain a fire, except where the fire was lit by another person or the fire is beyond the control of the person who lit the fire; (b) spread of the fire means spread of the fire beyond the capacity of the person who caused the fire to extinguish it. Crimes Act 1958 - SECT 202 Jurisdiction of magistrates' courts 202. Jurisdiction of magistrates' courts No rule of law ousting the jurisdiction of the Magistrates' Court to try offences where a dispute of title to property is involved shall preclude the Magistrates' Court from trying offences mentioned in this subdivision or from trying any other offences of destroying or damaging property. * * * * * * * * * * * * * * * * * * * * (2) Injuries to buildings &c. by rioters and forcible entries and detainers Crimes Act 1958 - SECT 206 Rioters demolishing buildings18 206. Rioters demolishing buildings18 (1) Whosoever is one of any persons riotously and tumultuously assembled together to the disturbance of the public peace who unlawfully and with force demolish or pull down or destroy or begin to demolish pull down or destroy any church chapel meeting-house or other place of divine worship, or any house stable coach-house outhouse warehouse office shop mill malthouse hop-oast barn granary shed hovel or fold, or any building or erection used in farming land or in carrying on any trade or manufacture or any branch thereof, or any building other than such as are in this section before mentioned belonging to the Queen or the Government of Victoria or to any municipal council or belonging to any university, or devoted or dedicated to public use or ornament, or erected or maintained by public subscription or contribution, or any machinery (whether fixed or movable) prepared for or employed in any manufacture or any steam-engine or other engine for sinking working ventilating or draining any mine, or any staith building or erection used in conducting the business of any mine or any bridge waggon-way tramway trunk or shoot for conveying minerals from any mine, shall be guilty of an indictable offence, and shall be liable to level 4 imprisonment (15 years maximum). (2) Whosoever is one of any persons riotously and tumultuously assembled together to the disturbance of the public peace who unlawfully and with force injure or damage any such place building or erection or thing as is in the last subsection mentioned, shall be guilty of an indictable offence, and shall be liable to level 6 imprisonment (5 years maximum). Crimes Act 1958 - SECT 207 Forcible entry 207. Forcible entry * * * * * (2) No person being in actual possession of land for a period of less than three years by himself or his predecessors shall without colour of right hold possession of it in a manner likely to cause a breach of the peace or a reasonable apprehension of a breach of the peace against a person entitled by law to the possession of the land and able and willing to afford reasonable information as to his being so entitled. (3) Every person who is guilty of a contravention of this section shall be guilty of a summary offence and liable to level 8 imprisonment (1 year maximum) or a level 10 fine or both. * * * * * * * * * * * * * * * (3) Interference with mines, sea banks &c., railways and navigation aids Crimes Act 1958 - SECT 225 Conveying water into a mine 225. Conveying water into a mine Whosoever unlawfully and maliciously causes any water to be conveyed or run into any mine or into any subterraneous passage communicating therewith with intent thereby to destroy or damage such mine or to hinder or delay the working thereof, or with the like intent unlawfully and maliciously pulls down fills up or obstructs or damages with intent to destroy obstruct or render useless any airway waterway drain pit level shaft or drive of or belonging to any mine, shall be guilty of an indictable offence, and shall be liable to level 6 imprisonment (5 years maximum). This provision shall not extend to any damage committed underground by any owner of any adjoining mine in working the same or by any person duly employed in such working. * * * * * * * * * * Crimes Act 1958 - SECT 228 Removing etc. piles of sea banks 228. Removing etc. piles of sea banks Whosoever unlawfully and maliciously cuts off draws up or removes any piles chalk or other materials fixed in the ground and used for securing any sea bank or sea wall or the bank dam or wall of any river canal drain aqueduct marsh reservoir pool port harbor dock quay wharf jetty or lock, or unlawfully and maliciously opens or draws up any floodgate or sluice or does any other injury or mischief to any navigable river or canal with intent to obstruct or prevent the carrying on completing or maintaining the navigation thereof, shall be guilty of an indictable offence, and shall be liable to level 6 imprisonment (5 years maximum). * * * * * * * * * * Crimes Act 1958 - SECT 232 Placing things on railways to obstruct or overturn engine etc.19 232. Placing things on railways to obstruct or overturn engine etc.19 Whosoever unlawfully and maliciously puts places casts or throws upon or across any railway any wood stone or other matter or thing, or unlawfully and maliciously takes up removes or displaces any rail sleeper or other thing belonging to any railway, or unlawfully and maliciously turns moves or diverts any points or other machinery belonging to any railway, or unlawfully and maliciously makes or shows hides or removes any signal or light upon or near to any railway, or unlawfully and maliciously does or causes to be done any other matter or thing with intent in any such case to obstruct upset overthrow injure or destroy any engine tender carriage or truck on such railway, shall be guilty of an indictable offence, and shall be liable to level 5 imprisonment (10 years maximum). Crimes Act 1958 - SECT 233 Obstructing engine, carriage etc. on railway20 233. Obstructing engine, carriage etc. on railway20 Whosoever by any unlawful act or by any wilful omission or neglect obstructs or causes to be obstructed any engine or carriage on any railway, or aids or assists therein, shall be guilty of a summary offence, and shall be liable to level 7 imprisonment (2 years maximum). * * * * * * * * * * * * * * * * * * * * * * * * * Crimes Act 1958 - SECT 244 Altering signals or exhibiting false ones 244. Altering signals or exhibiting false ones Whosoever unlawfully masks alters or removes any light or signal or exhibits any false light or signal with intent to bring any ship vessel or boat into danger, or unlawfully and maliciously does anything tending to the immediate loss or destruction of any ship vessel or boat and for which no punishment is hereinbefore provided, shall be guilty of an indictable offence, and shall be liable to level 5 imprisonment (10 years maximum). Crimes Act 1958 - SECT 245 Removing buoy etc. 245. Removing buoy etc. Whosoever unlawfully and maliciously cuts away casts adrift removes alters defaces sinks or destroys or in any other manner injures or conceals, or unlawfully and maliciously does any act with intent to cut away cast adrift remove alter deface sink destroy, or in any other manner injure or conceal, any boat buoy rope perch or mark used or intended for the guidance of seamen or the purpose of navigation, shall be guilty of an indictable offence, and shall be liable to level 6 imprisonment (5 years maximum). * * * * * * * * * * (4) Injuries to aircraft Crimes Act 1958 - SECT 246A Endangering safe operation of an aircraft 246A. Endangering safe operation of an aircraft Any person who does any act or thing with intent to prejudice the safe operation of an aircraft shall be guilty of an indictable offence and liable to level 4 imprisonment (15 years maximum). Crimes Act 1958 - SECT 246B Setting fire etc. to aircraft 246B. Setting fire etc. to aircraft Any person who unlawfully and maliciously sets fire to or in any way destroys any aircraft whether complete or incomplete shall be guilty of an indictable offence and shall be liable to level 4 imprisonment (15 years maximum). Crimes Act 1958 - SECT 246C Endangering safety of aircraft 246C. Endangering safety of aircraft Any person who while on board an aircraft does any act or thing that is likely to endanger the safety of the aircraft shall be guilty of an indictable offence and shall be liable to level 5 imprisonment (10 years maximum). Crimes Act 1958 - SECT 246D Dangerous goods on aircraft 246D. Dangerous goods on aircraft (1) Subject to this section any person who- (a) carries or places dangerous goods on board an aircraft; (b) delivers dangerous goods to a person for the purpose of their being placed on board an aircraft; or (c) has dangerous goods in his possession on board an aircraft- shall be guilty of an indictable offence and shall be liable to level 6 imprisonment (5 years maximum). (2) This section does not apply- (a) to or in relation to any act done with the consent of the owner or operator of the aircraft given with a knowledge of the nature of the goods concerned; or (b) to or in relation to the carrying or placing of firearms or ammunition for firearms on board an aircraft with permission granted under the Air Navigation Regulations of the Commonwealth. (3) In this section dangerous goods means- (a) firearms, ammunition, weapons and explosive substances; and (b) substances or things that, by reason of their nature or condition, may endanger the safety of an aircraft or of persons on board an aircraft. Crimes Act 1958 - SECT 246E Threats to safety of aircraft 246E. Threats to safety of aircraft Any person who threatens, states that it is his intention, or makes a statement from which it could reasonably be inferred that it is his intention to destroy damage or endanger the safety of an aircraft or to kill or injure all or any of the persons on board an aircraft shall be guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum). * * * * * * * * * * (5) False statements Crimes Act 1958 - SECT 247 False statements 247. False statements Any person who makes a statement or conveys information, being a statement or information that he knows to be false, to the effect or from which it could reasonably be inferred that there has been or is to be a plan, proposal, attempt, conspiracy or threat to- (a) take or exercise control by force or violence of any building (including any structure in the nature of a building or any bridge or mine) aircraft, vessel, motor vehicle or engine or carriage used upon a railway; (b) destroy, damage or endanger the safety thereof; or (c) kill or injure all or any of the persons therein or thereon- shall be guilty of an indictable offence and shall be liable to level 6 imprisonment (5 years maximum). (6) Computer offences Crimes Act 1958 - SECT 247A Interpretation 247A. Interpretation (1) In this Subdivision- access, in relation 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 any other place in the computer or to a data storage device; or (c) in the case of a program, the execution of the program; data includes- (a) information in any form; and (b) any 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 any removable data storage device for the time being 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 any thing (for example, a disk or file server) containing or designed to contain data for use by a computer; electronic communication means a communication of information in any form by means of guided or unguided electromagnetic energy; impairment, in relation to electronic communication to or from a computer, includes- (a) the prevention of any such communication; and (b) the impairment of any such communication on an electronic link or network used by the computer- but does not include a mere interception of any such communication; modification, in relation to 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 247B, 247C or 247D; or (b) conduct in another jurisdiction that is an offence in that jurisdiction and that would constitute an offence against section 247B, 247C or 247D if the conduct occurred in Victoria; unauthorised computer function means any of the following- (a) any unauthorised access to data held in a computer; or (b) any unauthorised modification of data held in a computer; or (c) any unauthorised impairment of electronic communication to or from a computer. (2) In this Subdivision, a reference to access to data, modification of data or impairment of electronic communication is limited to access, modification or impairment caused (whether directly or indirectly) by the execution of a function of a computer. (3) For the purposes of this Subdivision, access to data, modification of data or impairment of electronic communication by a person- (a) is unauthorised if the person is not entitled to cause that access, modification or impairment; (b) is not unauthorised merely because the person has an ulterior purpose for that action. (4) For the purposes of an offence against this Subdivision, a person causes an unauthorised computer function if the person's conduct substantially contributes to the unauthorised computer function. Crimes Act 1958 - SECT 247B Unauthorised access, modification or impairment with intent to commit serious offence 247B. Unauthorised access, modification or impairment with intent to commit serious offence (1) A person who causes any unauthorised computer function- (a) knowing it is unauthorised; and (b) with the intention of committing a serious offence or facilitating the commission of a serious offence (whether by the person or by another person)- is guilty of an offence and liable to the same maximum penalty as applies to the commission of the serious offence in Victoria. (2) In this section serious offence means- (a) an offence in Victoria punishable on conviction for a first offence with imprisonment for a term of 5 years or more; or (b) an offence in any other jurisdiction that would be punishable on conviction for a first offence with imprisonment for a term of 5 years or more if committed in Victoria. (3) A person may 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. (4) It is not an offence to attempt to commit an offence against this section. Crimes Act 1958 - SECT 247C Unauthorised modification of data to cause impairment 247C. Unauthorised modification of data to cause impairment A person who- (a) causes any unauthorised modification of data held in a computer; and (b) knows that the modification is unauthorised; and (c) intends by the modification to impair access to, or to impair the reliability, security or operation of, any data held in a computer or is reckless as to any such impairment- is guilty of an offence and liable to level 5 imprisonment (10 years maximum). Crimes Act 1958 - SECT 247D Unauthorised impairment of electronic communication 247D. Unauthorised impairment of electronic communication A person who- (a) causes any unauthorised impairment of electronic communication to or from a computer; and (b) knows that the impairment is unauthorised; and (c) intends to impair electronic communication to or from the computer or is reckless as to any such impairment- is guilty of an offence and liable to level 5 imprisonment (10 years maximum). Crimes Act 1958 - SECT 247E Possession of data with intent to commit serious computer offence 247E. Possession of data with intent to commit serious computer offence (1) A person who is in possession or control of data- (a) with the intention of committing a serious computer offence; or (b) with the intention of facilitating the commission of a serious computer offence (whether by the person or by another person)- is guilty of an offence and liable to imprisonment for a term not exceeding 3 years. (2) In this section, a reference to a person having possession or control of data includes a reference to a person- (a) having possession of a computer or data storage device that holds or contains the data; and (b) having possession of a document in which the data is recorded; and (c) having control of data held in a computer that is in the possession of another person (whether the computer is in Victoria or outside Victoria). (3) A person may be found guilty of an offence against this section even if committing the serious computer offence is impossible. (4) It is not an offence to attempt to commit an offence against this section. Crimes Act 1958 - SECT 247F Producing, supplying or obtaining data with intent to commit serious computer offence 247F. Producing, supplying or obtaining data with intent to commit serious computer offence (1) A person who produces, supplies or obtains data- (a) with the intention of committing a serious computer offence; or (b) with the intention of facilitating the commission of a serious computer offence (whether by the person or by another person)- is guilty of an offence and liable to imprisonment for a term not exceeding 3 years. (2) In this section, a reference to a person producing, supplying or obtaining data includes a reference to the person- (a) producing, supplying or obtaining data held in a computer or contained in a data storage device; and (b) producing, supplying or obtaining a document in which the data is recorded. (3) A person may be found guilty of an offence against this section even if committing the serious computer offence is impossible. Crimes Act 1958 - SECT 247G Unauthorised access to or modification of restricted data 247G. Unauthorised access to or modification of restricted data (1) A person who- (a) causes any unauthorised access to or modification of restricted data held in a computer; and (b) knows that the access or modification is unauthorised; and (c) intends to cause the access or modification- is guilty of an offence and liable to level 7 imprisonment (2 years maximum). (2) An offence against this section is a summary offence. (3) In this section 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. Crimes Act 1958 - SECT 247H Unauthorised impairment of data held in computer disk, credit card or other device 247H. Unauthorised impairment of data held in computer disk, credit card or other device (1) A person who- (a) causes any unauthorised impairment of the reliability, security or operation of data held on a computer disk, credit card or other device used to store data by electronic means; and (b) knows that the impairment is unauthorised; and (c) intends to cause the impairment- is guilty of an offence and liable to level 7 imprisonment (2 years maximum). (2) An offence against this section is a summary offence. (3) For the purposes of this section, impairment of reliability, security or operation of data is unauthorised if the person is not entitled to cause the impairment. Crimes Act 1958 - SECT 247I Extra-territorial operation of offences 247I. Extra-territorial operation of offences (1) It is immaterial that some or all of the conduct constituting an offence against this Subdivision occurred outside Victoria, so long as the computer or device used to store data by electronic means affected by the conduct was in Victoria at the time at which the conduct occurred. (2) It is immaterial that the computer or device used to store data by electronic means affected by some or all of the conduct constituting an offence against this Subdivision was outside Victoria at the time the conduct occurred, so long as that conduct occurred in Victoria. (7) Sabotage Crimes Act 1958 - SECT 247J Interpretation 247J. Interpretation (1) In this Subdivision- property offence means- (a) an offence against Subdivision (1) of this Division or Division 4; or (b) conduct in another jurisdiction that is an offence in that jurisdiction and that would constitute an offence against Subdivision (1) of this Division or Division 4 if the conduct occurred in Victoria; public facility means any of the following (whether publicly or privately owned)- (a) a government facility, including premises used by government employees in connection with official duties; (b) a public infrastructure facility, including a facility providing or distributing water, sewerage, energy, fuel, communication or other services to, or for the benefit of, 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 conveyance used to transport people or goods; (e) a public place, including any premises, land or water open to the public; unauthorised computer function has the same meaning as in Subdivision (6). (2) In this Subdivision damage, in relation to a public facility, means- (a) cause damage to the facility or any part of the facility; or (b) cause disruption to the use or operation of the facility. (3) For the purposes of an offence against this Subdivision, a person causes any damage or disruption if the person's conduct substantially contributes to the damage or disruption. Crimes Act 1958 - SECT 247K Sabotage 247K. Sabotage A person who- (a) damages a public facility by committing a property offence or by causing an unauthorised computer function; and (b) 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- is guilty of an offence and liable to level 2 imprisonment (25 years maximum). Crimes Act 1958 - SECT 247L Threats to sabotage 247L. Threats to sabotage (1) A person who- (a) makes to another person a threat to damage a public facility by committing a property offence or by causing an unauthorised computer function; and (b) intends that 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- is guilty of an offence and liable to level 4 imprisonment (15 years maximum). (2) In the prosecution of an offence against this section it is not necessary to prove that the person threatened actually feared that the threat would be carried out. (3) For the purposes of this section- (a) a threat may be made by any conduct and may be explicit or implicit, conditional or unconditional; and (b) a threat to a person includes a threat to a group of persons; and (c) fear that a threat will be carried out includes apprehension that it will be carried out. * * * * * * * * * * * * * * * Division 4-Contamination of goods Crimes Act 1958 - SECT 248 Interpretation 248. Interpretation (1) In this Division- contaminate, in relation to goods, includes- (a) interfere with the goods; or (b) making it appear that the goods have been contaminated or interfered with; goods includes any substance- (a) whether or not for human consumption; and (b) whether natural or manufactured; and (c) whether or not incorporated or mixed with other goods. (2) In this Division, a reference to economic loss caused through public awareness of the contamination of goods includes a reference to economic loss caused through- (a) members of the public not purchasing or using those goods or similar goods; or (b) steps taken to avoid public alarm or anxiety or to avoid harm to members of the public. Crimes Act 1958 - SECT 249 Contaminating goods with intent to cause, or being reckless as to whether it would cause, public alarm or economic loss 249. Contaminating goods with intent to cause, or being reckless as to whether it would cause, public alarm or economic loss A person must not contaminate goods with the intention of causing, or being reckless as to whether or not the contamination would cause- (a) public alarm or anxiety; or (b) economic loss through public awareness of the contamination. Penalty: Level 5 imprisonment (10 years maximum) or a level 5 fine (1200 penalty units maximum) or both. Note Division 2B of Part 4 of the Sentencing Act 1991 provides for the making of cost recovery orders in respect of costs incurred by emergency service agencies in providing an immediate response to an emergency arising out of the commission of an offence against this section Crimes Act 1958 - SECT 250 Threatening to contaminate goods with intent to cause, or being reckless as to whether it would cause, public alarm or economic loss 250. Threatening to contaminate goods with intent to cause, or being reckless as to whether it would cause, public alarm or economic loss (1) A person must not make a threat that goods will be contaminated with the intention of causing, or being reckless as to whether or not the threat would cause- (a) public alarm or anxiety; or (b) economic loss through public awareness of the threat. Penalty: Level 5 imprisonment (10 years maximum) or a level 5 fine (1200 penalty units maximum) or both. (2) For the purposes of this section, a threat may be made by any conduct, and may be explicit or implicit and conditional or unconditional. Note Division 2B of Part 4 of the Sentencing Act 1991 provides for the making of cost recovery orders in respect of costs incurred by emergency service agencies in providing an immediate response to an emergency arising out of the commission of an offence against this section. Crimes Act 1958 - SECT 251 Making false statements concerning contamination of goods with intent to cause, or being reckless as to whether it would cause, public alarm or economic loss 251. Making false statements concerning contamination of goods with intent to cause, or being reckless as to whether it would cause, public alarm or economic loss (1) A person must not make a statement that the person believes to be false- (a) with the intention of inducing the person to whom the statement is made or others to believe that goods have been contaminated; and (b) with the intention of thereby causing, or being reckless as to whether or not the statement would cause- (i) public alarm or anxiety; or (ii) economic loss through public awareness of the statement. Penalty: Level 5 imprisonment (10 years maximum) or a level 5 fine (1200 penalty units maximum) or both. (2) For the purposes of this section, making a statement includes conveying information by any means. Note Division 2B of Part 4 of the Sentencing Act 1991 provides for the making of cost recovery orders in respect of costs incurred by emergency service agencies in providing an immediate response to an emergency arising out of the commission of an offence against this section. Crimes Act 1958 - SECT 252 Territorial nexus for offences 252. Territorial nexus for offences It is immaterial that the conduct of a person constituting an offence under this Division occurred outside Victoria, so long as the person intended by that conduct to cause, or was reckless as to whether or not that conduct would cause- (a) public alarm or anxiety in Victoria; or (b) economic loss in Victoria through public awareness of the contamination. Division 5-Destruction of evidence Crimes Act 1958 - SECT 253 Definitions 253. Definitions In this Division- associate, in relation to a body corporate, means- (a) an employee or agent of the body corporate to the extent that he or she is acting within the actual or apparent scope of his or her employment or within his or her actual or apparent authority; or (b) an officer of the body corporate; board of directors means the body (by whatever name called) exercising the executive authority of the body corporate; corporate culture means an attitude, policy, rule, course of conduct or practice existing within the body corporate generally or in the part of the body corporate in which the relevant conduct is carried out or the relevant intention formed; legal proceeding has the same meaning as in the Evidence Act 1958; officer, in relation to a body corporate, means an officer (as defined by section 9 of the Corporations Act) of the body corporate to the extent that he or she is acting within the actual or apparent scope of his or her employment or within his or her actual or apparent authority; relevant conduct means the destruction, concealment, or rendering illegible, undecipherable or incapable of identification, of a document or other thing of any kind; relevant intention means the intention of preventing a document or other thing of any kind from being used in evidence in a legal proceeding. Crimes Act 1958 - SECT 254 Destruction of evidence 254. Destruction of evidence (1) A person who- (a) knows that a document or other thing of any kind is, or is reasonably likely to be, required in evidence in a legal proceeding; and (b) either- (i) destroys or conceals it or renders it illegible, undecipherable or incapable of identification; or (ii) expressly, tacitly or impliedly authorises or permits another person to destroy or conceal it or render it illegible, undecipherable or incapable of identification and that other person does so; and (c) acts as described in paragraph (b) with the intention of preventing it from being used in evidence in a legal proceeding- is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum) or a level 6 fine or both. Notes 1. Document is defined in section 38 of the Interpretation of Legislation Act 1984. 2. The maximum fine that may be imposed on a body corporate found guilty of an offence against this section is 3000 penalty units: see Sentencing Act 1991 s. 113D. (2) This section applies with respect to a legal proceeding, whether the proceeding is one that is in progress or is to be, or may be, commenced in the future. Crimes Act 1958 - SECT 255 Corporate criminal responsibility for offence against section 254 255. Corporate criminal responsibility for offence against section 254 (1) For the purposes of a proceeding against a body corporate for an offence against section 254- (a) relevant conduct engaged in by an associate of the body corporate must also be attributed to the body corporate; and (b) knowledge of an associate of the body corporate must also be attributed to the body corporate; and (c) intention- (i) of the body corporate's board of directors; or (ii) of an officer of the body corporate; or (iii) of any other associate of the body corporate if a corporate culture existed within the body corporate that directed, encouraged, tolerated or led to the formation of that intention- must also be attributed to the body corporate. (2) If an officer of a body corporate contravenes section 254, the body corporate must be taken to have also contravened that section and may be proceeded against and found guilty of an offence against that section whether or not the officer has been proceeded against or found guilty of that offence. (3) In a proceeding against a body corporate for an offence against section 254, brought in reliance on subsection (2), it is a defence to the charge for the body corporate to prove that it exercised due diligence to prevent the contravention of that section by the officer. (4) The means by which authorisation or permission as required by section 254(1)(b)(ii) may be established include- (a) proving that an officer of the body corporate gave that authorisation or permission; or (b) proving that the body corporate's board of directors gave that authorisation or permission; or (c) proving that a corporate culture existed within the body corporate that directed, encouraged, tolerated or led to the relevant conduct being carried out. (5) Subsection (4)(a) does not apply if the body corporate proves that it exercised due diligence to prevent the authorisation or permission being given. (6) Factors relevant to the application of subsection (1)(c)(iii) or (4)(c) include- (a) whether authority to commit an offence against section 254 or an offence of a similar character had been given by an officer of the body corporate; and (b) whether the associate of the body corporate who carried out the relevant conduct or formed the relevant intention believed on reasonable grounds, or entertained a reasonable expectation, that an officer of the body corporate would have authorised or permitted the relevant conduct being carried out with the relevant intention. (7) Subject to subsection (8), it is not necessary that each element of an offence against section 254 that is attributed to a body corporate by force of subsection (1) be supplied by the same associate of the body corporate. (8) It is necessary that the elements referred to in section 254(1)(b)(i) and (c) be supplied by the same associate of the body corporate. Division 6-Perjury Crimes Act 1958 - SECT 314 Perjury 314. Perjury (1) Whosoever commits wilful and corrupt perjury or subornation of perjury shall be liable to level 4 imprisonment (15 years maximum). (2) Where in any Act it is provided that any person shall be liable to the penalties of perjury or shall be guilty of perjury or shall be deemed to have committed perjury or any similar expression is used such person shall be deemed to have committed an offence against subsection (1) and may be proceeded against tried and punished accordingly. (3) Where by or under any Act it is required or authorized that facts matters or things be verified or otherwise assured or ascertained by or upon the oath affirmation declaration or affidavit of some or any person, any person who in any such case takes or makes any oath affirmation or declaration so required or authorized and who knowingly wilfully and corruptly upon such oath affirmation or declaration deposes swears to or makes any false statement as to any such fact matter or thing, and any person who knowingly wilfully and corruptly upon oath deposes to the truth of any statement for so verifying assuring or ascertaining any such fact matter or thing or purporting so to do, or who knowingly wilfully and corruptly takes makes signs or subscribes any such affirmation declaration or affidavit as to any such fact matter or thing, such statement affirmation declaration or affidavit being untrue wholly or in part, or who knowingly wilfully and corruptly omits from any such affirmation declaration or affidavit made or sworn under the provisions of any law any matter which by the provisions of such law is required to be stated in such affirmation declaration or affidavit, shall be deemed guilty of wilful and corrupt perjury. Nothing herein contained shall affect any case amounting to perjury at the common law or the case of any offence in respect of which other provision is made by any Act. Crimes Act 1958 - SECT 315 All evidence material with respect to perjury 315. All evidence material with respect to perjury All evidence and proof whatsoever, whether given or made orally or by or in any affidavit examination declaration or deposition, shall be deemed and taken to be material with respect to the liability of any person to be proceeded against and punished for perjury or subornation of perjury. Division 7-Unlawful oaths Crimes Act 1958 - SECT 316 Unlawful oaths to commit treason, murder etc. 316. Unlawful oaths to commit treason, murder etc. (1) Every person who- (a) administers or is present at and consents to the administering of any oath or engagement in the nature of an oath purporting to bind the person who takes it to commit treason or murder; or (b) takes any such oath or engagement not being compelled to do so; or (c) induces or attempts to induce any person to take any such oath or engagement- shall be guilty of an indictable offence, and shall be liable to level 5 imprisonment (10 years maximum). (2) Every person who- (a) administers or is present at and consents to the administering of any oath or engagement in the nature of an oath purporting to bind the person who takes it to act in any of the ways following (that is to say):- (i) to engage in any mutinous or seditious enterprise; (ii) to commit any indictable offence other than treason or murder; (iii) to disturb the public peace; (iv) to be of any association society or confederacy formed for the purpose of doing any such act as aforesaid; (v) to obey the order or commands of any committee or body of men not lawfully constituted or of any leader or commander or other person not having authority by law for that purpose; (vi) not to inform or give evidence against any associate confederate or other person; (vii) not to reveal or discover any unlawful association society or confederacy or any illegal act done or to be done or any illegal oath or engagement that may have been administered or tendered to or taken by himself or any other person or the import of any such oath or engagement; or (b) takes any such oath or engagement not being compelled to do so; or (c) induces or attempts to induce any person to take any such oath or engagement- shall be guilty of an indictable offence, and shall be liable to level 6 imprisonment (5 years maximum). (3) A person who takes any such oath or engagement as is mentioned in the last two preceding subsections cannot set up as a defence that he was compelled to do so unless within fourteen days after taking it or if he is prevented by actual force or sickness within fourteen days after the termination of such prevention he declares by information on oath before some member of the Executive Council or a magistrate or if he is on actual service in Her Majesty's forces by sea or land either by such information or by information to his commanding officer the whole of what he knows concerning the matter, including the person or persons by whom and in whose presence and the place where and the time when the oath or engagement was administered or taken. (4) A person who has been tried and convicted or acquitted on a charge of any of the offences mentioned in this section shall not be afterwards prosecuted upon the same facts for treason or for failing when he knows that any person intends to commit treason to give information thereof with all reasonable despatch to a magistrate or use other reasonable endeavours to prevent the commission of the crime. Division 8-Offences connected with explosive substances21 Crimes Act 1958 - SECT 317 Offences connected with explosive substances 317. Offences connected with explosive substances (1) In this Division unless inconsistent with the context or subject-matter- explosive substance includes- (a) any material for making any explosive substance; (b) any apparatus machine implement or materials used or intended to be used or adapted for causing or aiding in causing any explosion in or with any explosive substance; and (c) any part of any such apparatus machine or implement; public place has the same meaning as it has in section 3 of the Summary Offences Act 1966; vehicle includes motor vehicle, aircraft and vessel. (2) Any person who unlawfully and maliciously causes by any explosive substance an explosion of a nature likely to endanger life or to cause serious injury to property shall, whether any injury to person or property has been actually caused or not, be guilty of an indictable offence, and shall be liable to level 4 imprisonment (15 years maximum). (3) Any person who unlawfully and maliciously- (a) does any act with intent to cause by an explosive substance or conspires to cause by an explosive substance an explosion of a nature likely to endanger life or to cause serious injury to property; or (b) makes or has in his possession or under his control any explosive substance with intent by means thereof to endanger life or cause serious injury to property or to enable any other person by means thereof to endanger life or cause serious injury to property- shall, whether any explosion does or does not take place and whether any injury to person or property has been actually caused or not, be guilty of an indictable offence, and shall be liable to level 5 imprisonment (10 years maximum). (4) Any person who makes or knowingly has in his possession or under his control any explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be guilty of an indictable offence, and shall be liable to level 6 imprisonment (5 years maximum). (5) Any person who by the supply of or solicitation for money, the providing of premises, the supply of materials, or in any manner whatsoever knowingly procures counsels aids abets or is accessory to the commission of any crime under this Division shall be guilty of an indictable offence, and shall be liable to be tried and punished for that crime as if he had been guilty as a principal. * * * * * (7) In any presentment the same criminal act may be charged in different counts as constituting different crimes under this Division, and upon the trial of any such presentment the prosecution shall not be put to its election as to the count on which it must proceed. (8) This Division shall not exempt any person from any indictment presentment or proceeding for a crime or offence which is punishable at common law or by any enactment other than this Division but no person shall be punished twice for the same criminal act. (9) (a) If a magistrate is satisfied by the evidence on oath or by affidavit of any member of the police force above the rank of senior sergeant authorized in writing by the Chief Commissioner of Police (whether generally or in any particular case) in that behalf that there is reasonable ground for suspecting that an offence under this Division has been, is being, or is about to be committed he may grant a search warrant authorizing any member of the police force named therein to enter at any time any premises or place (including any vehicle on or in the premises or place) mentioned in the warrant, or a particular vehicle mentioned in the warrant located in a public place, if necessary by force, and to search the premises, place or vehicle and every person found therein, and to seize and detain any explosive substance which he finds on the premises or place, or on or in the vehicle, or on any such person, in respect of which or in connexion with which he has reasonable grounds for suspecting that an offence under this Division has been, is being, or is about to be committed. (b) The member of the police force making the search may arrest without warrant any person found on the premises or on or in the vehicle in the public place whom he has reason to believe to be guilty of an offence under this Division. (c) Save as aforesaid the rules to be observed with regard to search warrants mentioned in the Magistrates' Court Act 1989 shall extend and apply to warrants under this section. (d) The provisions of this section shall be read and construed as in aid and not in derogation of the provisions with regard to warrants to search contained in the said Act or elsewhere22. Crimes Act 1958 - SECT 317A Bomb hoaxes 317A. Bomb hoaxes (1) A person must not- (a) place an article or substance in any place; or (b) send an article or substance by any means of transportation- with the intention of inducing in another person a false belief that the article or substance is likely to explode or ignite or discharge a dangerous or deleterious matter. Penalty: Level 6 imprisonment (5 years maximum) or a level 6 fine (600 penalty units maximum) or both. (2) A person must not, whether within or outside Victoria, make a statement or convey information to another person which the person making the statement or conveying the information knows or believes to be false with the intention of inducing in that person or any other person a belief that an article or substance liable to explode or ignite or discharge a dangerous or deleterious matter is present in any place in Victoria. Penalty: Level 6 imprisonment (5 years maximum) or a level 6 fine (600 penalty units maximum) or both. (3) For a person to be guilty of an offence against subsection (1) or (2) it is not necessary for him or her to have any particular person in mind as the person in whom he or she intends to induce the belief referred to in that subsection. Note Division 2B of Part 4 of the Sentencing Act 1991 provides for the making of cost recovery orders in respect of costs incurred by emergency service agencies in providing an immediate response to an emergency arising out of the commission of an offence against this section. Division 9-Driving offences connected with motor vehicles Crimes Act 1958 - SECT 318 Culpable driving causing death 318. Culpable driving causing death (1) Any person who by the culpable driving of a motor vehicle causes the death of another person shall be guilty of an indictable offence and shall be liable to level 3 imprisonment (20 years maximum) or a level 3 fine or both. (2) For the purposes of subsection (1) a person drives a motor vehicle culpably if he drives the motor vehicle- (a) recklessly, that is to say, if he consciously and unjustifiably disregards a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result from his driving; or (b) negligently, that is to say, if he fails unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances of the case; or (c) whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the motor vehicle; or (d) whilst under the influence of a drug to such an extent as to be incapable of having proper control of the motor vehicle. (2A) Without limiting subsection (2)(b), negligence within the meaning of that subsection may be established by proving that- (a) a person drove a motor vehicle when fatigued to such an extent that he or she knew, or ought to have known, that there was an appreciable risk of him or her falling asleep while driving or of losing control of the vehicle; and (b) by so driving the motor vehicle the person failed unjustifiably and to a gross degree to observe the standard of care which a reasonable person would have observed in all the circumstances of the case. (3) A presentment for an indictable offence under this section shall specify which form of culpability within the meaning of subsection (2) is charged but evidence of the whole of the circumstances shall be admissible on the hearing of the presentment. (4) A person who is convicted or acquitted of an indictable offence under this section shall not in respect of the death concerned subsequently be prosecuted for unlawful homicide or under this section. (5) A person who is convicted or acquitted of any form of unlawful homicide not referred to in this section shall not in respect of the death concerned subsequently be prosecuted under this section and no other form of unlawful homicide shall be charged in the same presentment with an indictable offence under this section. (6) A person who is convicted or acquitted of an indictable offence under this section shall not in respect of the circumstances concerned be proceeded against under the Road Safety Act 1986 for having driven a motor vehicle whilst under the influence of alcohol or a drug and no such offence shall be charged in the same presentment with an indictable offence under this section. (7) Drug means a drug within the meaning of the Road Safety Act 1986. * * * * * Crimes Act 1958 - SECT 319 Dangerous driving causing death or serious injury 319. Dangerous driving causing death or serious injury (1) A person who, by driving a motor vehicle at a speed or in a manner that is dangerous to the public having regard to all the circumstances of the case, causes the death of another person is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum). (1A) A person who, by driving a motor vehicle at a speed or in a manner that is dangerous to the public having regard to all the circumstances of the case, causes serious injury to another person is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum). (2) In this section serious injury has the meaning given by section 15. * * * * * * * * * * Division 9A-Penalties for certain common law offences Crimes Act 1958 - SECT 320 Maximum term of imprisonment for certain common law offences 320. Maximum term of imprisonment for certain common law offences An offence at common law specified in column 1 of the Table is punishable by the maximum term of imprisonment specified opposite it in column 2 of the Table. TABLE s. 320 Column 1 Column 2 Common law offence Maximum Term of Imprisonment Affray Level 6 imprisonment (5 years maximum) Attempt to pervert the course of justice Level 2 imprisonment (25 years maximum) Breach of prison Level 6 imprisonment (5 years maximum) Bribery of public official Level 5 imprisonment (10 years maximum) Common assault Level 6 imprisonment (5 years maximum) Conspiracy to cheat and defraud Level 4 imprisonment (15 years maximum) Conspiracy to defraud Level 4 imprisonment (15 years maximum) Criminal defamation Level 5 imprisonment (10 years maximum) Embracery Level 4 imprisonment (15 years maximum) False imprisonment Level 5 imprisonment (10 years maximum) Kidnapping Level 2 imprisonment (25 years maximum) Misconduct in public office Level 5 imprisonment (10 years maximum) Perverting the course of justice Level 2 imprisonment (25 years maximum) Public nuisance Level 6 imprisonment (5 years maximum) Riot Level 5 imprisonment (10 years maximum) Rout Level 6 imprisonment (5 years maximum) Unlawful assembly Level 6 imprisonment (5 years maximum) Wilful exposure Level 6 imprisonment (5 years maximum). Division 10-Conspiracy Crimes Act 1958 - SECT 321 Conspiracy to commit an offence 321. Conspiracy to commit an offence (1) Subject to this Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which will involve the commission of an offence by one or more of the parties to the agreement, he is guilty of the indictable offence of conspiracy to commit that offence. (2) For a person to be guilty under subsection (1) of conspiracy to commit a particular offence both he and at least one other party to the agreement- (a) must intend that the offence the subject of the agreement be committed; and (b) must intend or believe that any fact or circumstance the existence of which is an element of the offence will exist at the time when the conduct constituting the offence is to take place. (3) A person may be guilty under subsection (1) of conspiracy to commit an offence notwithstanding the existence of facts of which he is unaware which make commission of the offence by the agreed course of conduct impossible. (4) A presentment at the Supreme Court or the County Court of a person for an offence against this section shall not be made without the approval of the Director of Public Prosecutions or of a person authorized by the Director of Public Prosecutions to give approval for the purposes of this subsection. Crimes Act 1958 - SECT 321A Agreements to commit offences outside Victoria 321A. Agreements to commit offences outside Victoria (1) The expression the commission of an offence in section 321(1) extends to the commission of an offence against a law in force only in a place outside Victoria if, but only if- (a) the necessary elements of that offence include elements which, if present or occurring in Victoria, would constitute an offence against a law in Victoria; and (b) one or more of the persons referred to in section 321(1) is or are in Victoria when the agreement referred to in that subsection is made. (2) Where all parties to an agreement are outside Victoria when it is made, section 321 shall apply in relation to it if, but only if, that agreement is to pursue a course of conduct which, if the agreement is carried out in accordance with their intentions, will necessarily amount to or involve the commission of an offence against a law in force in Victoria. Crimes Act 1958 - SECT 321B As to consequences of acquittal of co-conspirators 321B. As to consequences of acquittal of co-conspirators It is hereby declared that the conviction of a conspirator whether tried together with or separately from another alleged conspirator or other alleged conspirators may stand notwithstanding that the other alleged conspirator or conspirators is are or may be acquitted unless in all the circumstances of the case the conviction is inconsistent with the acquittal of the other alleged conspirator or conspirators. Crimes Act 1958 - SECT 321C Penalties for conspiracy 321C. Penalties for conspiracy (1) Where a person is convicted under section 321 of conspiracy to commit an offence or offences against a law or laws in force in Victoria- (a) if the penalty for the relevant offence is fixed by law, the person shall be liable to a penalty not exceeding the penalty for the relevant offence; (b) if the relevant offence, or any of the relevant offences, is an offence for which the penalty is imprisonment for a term the maximum length of which is not prescribed by law, the person shall be liable to level 4 imprisonment (15 years maximum); (ba) despite paragraph (b), if the relevant offence, or any of the relevant offences, is murder or treason, the person is liable to- (i) level 1 imprisonment (life); or (ii) imprisonment for such other term as is fixed by the court- as the court determines; (c) subject to paragraphs (a), (b), (ba) and (d), if the relevant offence, or any of the relevant offences, is an offence for which a maximum penalty is prescribed by law, the person shall be liable to a penalty not exceeding that maximum penalty or the accumulated maximum penalties, as the case may be; or (d) if the relevant offence, or each of the relevant offences, is triable only in the Magistrates' Court, the person shall be liable to- (i) level 6 imprisonment (5 years maximum); or (ii) imprisonment for a term not exceeding the maximum term of imprisonment (if any) prescribed in respect of the relevant offence or the greatest of the maximum terms prescribed in respect of any of the relevant offences, as the case requires- whichever is the greater. (2) Where a person is convicted under section 321 of conspiracy to commit an offence or offences against a law or laws in force only in a place outside Victoria- (a) the person shall, if the relevant offence, or any of the relevant offences, is punishable by a term of imprisonment, be liable to a term of imprisonment not exceeding the maximum term of imprisonment prescribed in respect of the relevant offence; and (b) the person shall, in any other case, be liable to a level 6 fine (600 penalty units maximum). Crimes Act 1958 - SECT 321D Application of certain provisions 321D. Application of certain provisions Sections 321(2) and (3) and 321B shall apply, so far as they are capable of doing so and with such changes as are necessary, for the purpose of determining whether a person is guilty of conspiracy under any enactment other than section 321 or of conspiracy to cheat and defraud or of conspiracy to defraud. Crimes Act 1958 - SECT 321E Limitations on prosecution 321E. Limitations on prosecution (1) Where any enactment prohibits the institution or continuance of proceedings for an offence otherwise than by or with the consent of any person, the prohibition shall apply in relation to proceedings under section 321 for conspiracy to commit that offence. (2) Where- (a) an indictable offence has been committed in pursuance of an agreement; and (b) proceedings may not be instituted for that offence because a time limit applicable to the institution of such proceedings has expired- proceedings under section 321 for conspiracy to commit that offence shall not be instituted against any person on the basis of that agreement. (3) A person shall not be liable to be convicted in respect of the same agreement of both- (a) conspiracy under section 321; and (b) conspiracy under any enactment other than section 321 or of conspiracy to cheat and defraud or of conspiracy to defraud. Crimes Act 1958 - SECT 321F Abolition of certain offences of conspiracy at common law 321F. Abolition of certain offences of conspiracy at common law (1) The offence of conspiracy at common law is hereby abolished. (2) Nothing in subsection (1) shall affect the offence of conspiracy at common law so far as it relates to conspiracy to cheat and defraud and conspiracy to defraud. (3) Any offence at common law of incitement to commit the offence of conspiracy or attempt to commit the offence of conspiracy (whether the offence of conspiracy incited or attempted would be an offence at common law or under section 321 or any other enactment) is hereby abolished. (4) A presentment at the Supreme Court or the County Court of a person for an offence of conspiracy to cheat and defraud or conspiracy to defraud shall not be made without the approval of the Director of Public Prosecutions or of a person authorized by the Director of Public Prosecutions to give approval for the purposes of this subsection. Division 11-Incitement Crimes Act 1958 - SECT 321G Incitement 321G. Incitement (1) Subject to this Act, where a person in Victoria or elsewhere incites any other person to pursue a course of conduct which will involve the commission of an offence by- (a) the person incited; (b) the inciter; or (c) both the inciter and the person incited- if the inciting is acted on in accordance with the inciter's intention, the inciter is guilty of the indictable offence of incitement. (2) For a person to be guilty under subsection (1) of incitement the person- (a) must intend that the offence the subject of the incitement be committed; and (b) must intend or believe that any fact or circumstance the existence of which is an element of the offence in question will exist at the time when the conduct constituting the offence is to take place. (3) A person may be guilty under subsection (1) of incitement notwithstanding the existence of facts of which the person is unaware which make commission of the offence in question by the course of conduct incited impossible. Crimes Act 1958 - SECT 321H Incitement to commit offences outside Victoria SECT 321H. Incitement to commit offences outside Victoria The expression the commission of an offence in section 321G(1) extends to the commission of an offence against a law in force only in a place outside Victoria if, but only if- (a) the necessary elements of the offence consist of or include elements which, if present or occurring in Victoria, would constitute an offence against a law in force in Victoria; and (b) the person inciting is in Victoria at the time of the inciting. Crimes Act 1958 - SECT 321I Penalties for incitement 321I. Penalties for incitement (1) Where a person is convicted under section 321G of incitement to commit an offence or offences against a law or laws in force in Victoria- (a) if the penalty for the relevant offence is fixed by law, the person shall be liable to a penalty not exceeding the penalty for the relevant offence; (b) if the relevant offence, or any of the relevant offences, is an offence for which the penalty is imprisonment for a term the maximum length of which is not prescribed by law, the person shall be liable to level 4 imprisonment (15 years maximum); (ba) despite paragraph (b), if the relevant offence, or any of the relevant offences, is murder or treason, the person is liable to- (i) level 1 imprisonment (life); or (ii) imprisonment for such other term as is fixed by the court- as the court determines; (c) subject to paragraphs (a), (b), (ba) and (d), if the relevant offence, or any of the relevant offences is an offence for which a maximum penalty is prescribed by law, the person shall be liable to a penalty not exceeding that maximum penalty or the accumulated maximum penalties, as the case may be; or (d) if the relevant offence, or each of the relevant offences, is triable only in the Magistrates' Court, the person shall be liable to- (i) level 6 imprisonment (5 years maximum); or (ii) imprisonment for a term not exceeding the maximum term of imprisonment (if any) prescribed in respect of the relevant offence or the greatest of the maximum terms prescribed in respect of any of the relevant offences as the case requires- whichever is the greater. (2) Where a person is convicted under section 321G of incitement to commit an offence or offences against a law in force only in a place outside Victoria- (a) the person shall, if the relevant offence, or any of the relevant offences, is punishable by a term of imprisonment, be liable to a term of imprisonment not exceeding the maximum term of imprisonment prescribed in respect of the relevant offence; and (b) the person shall, in any other case, be liable to a level 6 fine (600 penalty units maximum). Crimes Act 1958 - SECT 321J Application of certain provisions 321J. Application of certain provisions Subsections (2) and (3) of section 321G shall apply, so far as they are capable of doing so and with such changes as are necessary, for the purpose of determining whether a person is guilty of incitement under any enactment other than section 321G. Crimes Act 1958 - SECT 321K Limitations on prosecution 321K. Limitations on prosecution (1) Where any enactment prohibits the institution or continuance of proceedings for an offence otherwise than by or with the consent of any person, the prohibition shall apply in relation to proceedings under section 321G for incitement to commit that offence. (2) Where- (a) an indictable offence has been committed; and (b) proceedings may not be instituted for that offence because a time limit applicable to the institution of such proceedings has expired- proceedings under section 321G for incitement to commit that offence shall not be instituted against any person. (3) A person shall not be liable to be convicted in respect of the same inciting of both- (a) incitement under section 321G; and (b) incitement under any enactment other than section 321G. Crimes Act 1958 - SECT 321L Incitement at common law abolished 321L. Incitement at common law abolished The offence of incitement at common law is hereby abolished. Division 12-Attempts Crimes Act 1958 - SECT 321M Attempt 321M. Attempt A person who attempts to commit an indictable offence is guilty of the indictable offence of attempting to commit that offence. Crimes Act 1958 - SECT 321N Conduct constituting attempt 321N. Conduct constituting attempt (1) A person is not guilty of attempting to commit an offence unless the conduct of the person is- (a) more than merely preparatory to the commission of the offence; and (b) immediately and not remotely connected with the commission of the offence. (2) For a person to be guilty of attempting to commit an offence, the person must- (a) intend that the offence the subject of the attempt be committed; and (b) intend or believe that any fact or circumstance the existence of which is an element of the offence will exist at the time the offence is to take place. (3) A person may be guilty of attempting to commit an offence despite the existence of facts of which he or she is unaware which make the commission of the offence attempted impossible. Crimes Act 1958 - SECT 321O Attempts to commit offence outside Victoria 321O. Attempts to commit offence outside Victoria (1) A person in Victoria who attempts to commit in another State or in a Territory an offence which, if committed in whole or in part in Victoria, would be an indictable offence against the law of Victoria is guilty of the indictable offence of attempting to commit that offence. (2) A person outside Victoria who attempts to commit an indictable offence in Victoria is guilty of the indictable offence of attempting to commit that offence. (3) In subsection (1), Territory means the Australian Capital Territory, the Jervis Bay Territory or the Northern Territory. Crimes Act 1958 - SECT 321P Penalties for attempt 321P. Penalties for attempt (1) A person convicted of attempting to commit an offence is liable- (a) if the penalty for the relevant offence is set out by reference to an expression specified in column 1 of the Table, to the penalty set out opposite it in column 2 of the Table: TABLE s. 321P Column 1 Column 2 Level 1 imprisonment (life) Level 2 imprisonment (25 years maximum) Level 2 imprisonment (25 years maximum) Level 3 imprisonment (20 years maximum) Level 2 fine (3000 penalty units maximum) Level 3 fine (2400 penalty units maximum) Level 3 imprisonment (20 years maximum) Level 4 imprisonment (15 years maximum) Level 3 fine (2400 penalty units maximum) Level 4 fine (1800 penalty units maximum) Level 4 imprisonment (15 years maximum) Level 5 imprisonment (10 years maximum) Level 4 fine (1800 penalty units maximum) Level 5 fine (1200 penalty units maximum) Level 5 imprisonment (10 years maximum) Level 6 imprisonment (5 years maximum) Level 5 fine (1200 penalty units maximum) Level 6 fine (600 penalty units maximum) Level 6 imprisonment (5 years maximum) Level 7 imprisonment (2 years maximum) Level 6 fine (600 penalty units maximum) Level 7 fine (240 penalty units maximum) Level 7 imprisonment (2 years maximum) Level 8 imprisonment (1 year maximum) Level 7 fine (240 penalty units maximum) Level 8 fine (120 penalty units maximum) Level 8 imprisonment (1 year maximum) Level 9 imprisonment (6 months maximum) Level 8 fine (120 penalty units maximum) Level 9 fine (60 penalty units maximum) Level 9 imprisonment (6 months maximum) Level 10 fine (10 penalty units maximum) Level 9 fine (60 penalty units maximum) Level 10 fine (10 penalty units maximum) Level 10 fine (10 penalty units maximum) Level 11 fine (5 penalty units maximum) Level 11 fine (5 penalty units maximum) Level 12 fine (1 penalty unit maximum) Level 12 fine (1 penalty unit maximum) Level 12 fine (1 penalty unit maximum) (b) if the penalty for the relevant offence is not set out by reference to an expression specified in column 1 of the Table in paragraph (a), to a penalty not exceeding 60% of the maximum penalty fixed or prescribed by law for the relevant offence; or (c) if the maximum penalty for the relevant offence is not fixed or prescribed by law, to level 6 imprisonment (5 years maximum). (1A) For the avoidance of doubt, it is declared that if a person is convicted of attempting to commit murder or treason, the person is liable to level 2 imprisonment (25 years maximum). (2) A person convicted under this Division of attempting to commit an offence for which, under another enactment, a penalty is provided that is lower than that provided under subsection (1), the person is liable only to that lower penalty. (3) In this section, a reference to a maximum penalty includes, in relation to an offence against the law of a place outside Victoria, a reference to a maximum penalty (not exceeding life imprisonment) fixed or prescribed by a law of that place and, if a maximum penalty so fixed or prescribed exceeds life imprisonment, is a reference to life imprisonment. Crimes Act 1958 - SECT 321Q Limitations on prosecution 321Q. Limitations on prosecution (1) Any provision to which this section applies has the same effect with respect to an offence of attempting to commit an offence as it has with respect to the offence attempted. (2) This section applies to provisions of any of the following descriptions made by or under any enactment- (a) provisions concerning the power to institute proceedings; (b) provisions conferring a power of search in respect of persons or property; (c) provisions conferring a power of seizure or detention of property; (d) provisions whereby a person may not be convicted or committed for trial on the uncorroborated evidence of one witness (including any provision requiring the evidence of not less than two credible witnesses); (e) provisions conferring a power to fine or of forfeiture, including any power to deal with anything liable to be forfeited; (f) provisions concerning the liability of a person for the commission of an offence by a body corporate. (3) A person is not liable to be convicted in respect of the same conduct of both- (a) an offence under section 321M; and (b) an offence under any other enactment of attempting to commit an offence. Crimes Act 1958 - SECT 321R Application of Division 321R. Application of Division (1) This Division applies to and in respect of an offence under any other enactment of attempting to commit an offence. (2) The preceding provisions of this Division do not apply to an attempt- (a) to aid, abet, counsel or procure the commission of an indictable offence; or (b) to commit the offence of conspiracy whether that offence is a statutory offence or an offence at common law. Crimes Act 1958 - SECT 321S Abolition of attempt at common law 321S. Abolition of attempt at common law The offence of attempt at common law is abolished. _______________ Crimes Act 1958 - PART IA PART IA ABOLITION OF OBSOLETE OFFENCES Crimes Act 1958 - SECT 322A Maintenance and certain other offences abolished 322A. Maintenance and certain other offences abolished Any distinct offences under the common law of maintenance (including champerty but not embracery), or of being a common barrator, a common scold or a common night walker are hereby abolished. _______________ Crimes Act 1958 - PART IB PART IB ABOLITION OF HISTORICAL CLASSIFICATIONS Crimes Act 1958 - SECT 322B Abolition of distinctions between felony and misdemeanour 322B. Abolition of distinctions between felony and misdemeanour (1) All distinctions between felony and misdemeanour are hereby abolished. (2) Subject to section 322D, in all matters in which before the commencement of this Part a distinction has been made between felony and misdemeanour (including mode of trial), the law and practice in relation to all indictable offences cognizable under the law of Victoria (including piracy and offences deemed to be piracy) shall be the law and practice applicable immediately before the commencement of this Part in relation to misdemeanour. Crimes Act 1958 - SECT 322C Nomenclature 322C. Nomenclature (1) Subject to any express amendment or repeal made by the Crimes (Classification of Offences) Act 1981, any enactment passed before the commencement of this Part and creating an offence by directing it to be a felony shall be read as directing it to be an indictable offence. (2) Nothing in this Part shall affect the operation of any reference to an indictable offence in the enactments specially relating to that offence by reason only of the reference being in terms no longer applicable after the commencement of this Part. (3) Any offence known to the common law as a felony or a misdemeanour shall on and from the commencement of this Part be known as an indictable offence. (4) Subject to subsection (1) and to any express amendment or repeal made by the Crimes (Classification of Offences) Act 1981, a reference in any instrument or document whatsoever (including Acts, rules, regulations and other instruments of a legislative character) to- (a) a class of felony; or (b) felonies in general- shall be read and construed as a reference to that class of serious indictable offence or to serious indictable offences generally, as the case requires; and for the purposes of this subsection the expression serious indictable offence has the same meaning as it has in section 325. (5) Where in any Act, rule, regulation or other instrument of a legislative character a provision is expressed to apply to or in relation to indictable offences, the provision shall be read and construed as applying to offences which may be tried on indictment or presentment, including offences which may, or may in certain circumstances, also be tried summarily. Crimes Act 1958 - SECT 322D Transitional provisions 322D. Transitional provisions (1) This Part, insofar as it affects any matter of procedure or evidence or the jurisdiction or powers of any court in relation to indictable offences, shall have effect in relation to proceedings on indictment or presentment for an offence (except as provided by the following subsections of this section) if, but only if, the person charged with the offence is arraigned after the commencement of this Part. (2) Where a person is arraigned after the commencement of this Part on indictment or presentment for a felony committed before that commencement, the offence shall for the purposes of his trial on that indictment or presentment be deemed always to have been a misdemeanour and, notwithstanding that the indictment or presentment is framed for felony, shall be deemed to be charged as a misdemeanour. (3) On an indictment or presentment found or made before the commencement of this Part a person may notwithstanding subsection (2) be found guilty of any offence of which he could have been found guilty on the indictment or presentment if the Crimes (Classification of Offences) Act 1981 had not come into operation, but not of any other offence. Crimes Act 1958 - SECT 322E Treason and misprision of treason not affected 322E. Treason and misprision of treason not affected Nothing in this Part shall be taken to affect directly or indirectly any matter of law or practice applicable to treason or misprision of treason. Crimes Act 1958 - SECT 322F Other enactments not affected 322F. Other enactments not affected This Part shall not affect the operation of any enactment restricting the institution of proceedings for an offence. _______________ Crimes Act 1958 - PART II PART II OFFENDERS Division 1-Abettors, accessories and concealers of offences (1) Abettors in indictable offences Crimes Act 1958 - SECT 323 Abettors in indictable offences triable as principal offenders 323. Abettors in indictable offences triable as principal offenders A person who aids, abets, counsels or procures the commission of an indictable offence may be tried, indicted or presented and punished as a principal offender. (2) Abettors in offences punishable summarily Crimes Act 1958 - SECT 324 Abettors in summary offences triable as principal offenders 324. Abettors in summary offences triable as principal offenders A person who aids, abets, counsels or procures the commission of an offence which is by this Act punishable on summary conviction either for every time of its commission or for the first and second time only shall be liable for every first, second or subsequent offence of aiding, abetting, counselling or procuring to the same punishment as a principal offender. (3) Accessories Crimes Act 1958 - SECT 325 Accessories $$T 325. Accessories (1) Where a person (in this section called the principal offender) has committed a serious indictable offence (in this section called the principal offence), any other person who, knowing or believing the principal offender to be guilty of the principal offence or some other serious indictable offence, without lawful authority or reasonable excuse does any act with the purpose of impeding the apprehension, prosecution, conviction or punishment of the principal offender shall be guilty of an indictable offence. (2) If, on the trial of any person for a serious indictable offence, the jury are satisfied that the offence charged (or some other serious indictable offence of which the accused might on that charge be found guilty) was committed, but find the accused not guilty of it, they may find him guilty of any offence under subsection (1) of which they are satisfied that he is guilty in relation to the offence charged (or that other offence). (3) A person charged with an offence against subsection (1) may be indicted or presented and convicted together with or before or after the principal offender and whether or not the principal offender is amenable to justice. (4) A person convicted of an offence against subsection (1) shall be liable- (a) if the principal offence is one for which the penalty is level 1 imprisonment (life) to level 3 imprisonment (20 years maximum); or (b) in any other case, to imprisonment for a term which is neither- (i) more than 5 years in length; nor (ii) more than one-half the length of the longest term which may be imposed on first conviction for the principal offence. * * * * * (6) In this section, serious indictable offence means an indictable offence which, by virtue of any enactment, is punishable on first conviction with imprisonment for life or for a term of five years or more. (4) Concealers of offences Crimes Act 1958 - SECT 326 Concealing offences for benefit 326. Concealing offences for benefit (1) Where a person has committed a serious indictable offence, any other person who, knowing or believing that the offence, or some other serious indictable offence, has been committed and that he has information which might be of material assistance in securing the prosecution or conviction of an offender for it, accepts any benefit for not disclosing that information shall be guilty of a summary offence and liable to level 8 imprisonment (1 year maximum). (2) Notwithstanding anything to the contrary in subsection (1), it is no offence against this section to fail to disclose the commission of any offence against- (a) Division 2 of Part I; or (b) subdivision (1), (2) or (3) of Division 3 of Part I- if the only benefit accepted in return for failing to disclose the commission of the offence is the making good of any loss or injury caused by its commission or the making of reasonable compensation for any such loss or injury. (3) For the purposes of this section a person shall be deemed to accept a benefit if he accepts or agrees to accept any benefit or advantage, or the promise of any benefit or advantage, either to himself or to another, whether or not the benefit or advantage is in money or money's worth. * * * * * (5) The compounding of an offence other than treason shall not be an offence otherwise than under this section. (6) In this section, serious indictable offence has the same meaning as it has in section 325. * * * * * * * * * * * * * * * * * * * * Division 3-Criminal liability of married persons Crimes Act 1958 - SECT 336 Marital coercion 336. Marital coercion (1) Any presumption that an offence committed by a wife in the presence of her husband is committed under his coercion is hereby abolished. (2) Where a woman is charged with an offence other than treason or murder, that woman shall have a complete defence to such charge if her action or inaction (as the case may be) was due to coercion by a man to whom she was then married. (3) For the purposes of this section coercion means pressure, whether in the form of threats or in any other form, sufficient to cause a woman of ordinary good character and normal firmness of mind, placed in the circumstances in which the woman was placed, to conduct herself in the manner charged. (4) Without limiting the generality of the expression "the circumstances in which the woman was placed" in subsection (3), such circumstances shall include the degree of dependence, whether economic or otherwise, of the woman on her husband. (5) The accused shall bear the burden of adducing evidence that she conducted herself in the manner charged because she was coerced by her husband, but if such evidence has been adduced, the prosecution shall bear the burden of proving that the action or inaction charged was not due to coercion by the husband. (6) This section shall operate in substitution for the common law as to any presumption or defence of marital coercion. (7) This section shall not affect the law relating to the defence of duress. Crimes Act 1958 - SECT 337 Misprision 337. Misprision A married person shall not become guilty of misprision by concealing or failing to disclose the commission of an indictable offence by his or her spouse, or by the spouse and another party or parties, nor by concealing or failing to disclose facts which might lead to the apprehension of the spouse, or the spouse and such other or others, in respect of the offence. Crimes Act 1958 - SECT 338 Accessory after the fact 338. Accessory after the fact A married person shall not become an accessory to any indictable offence by receiving, relieving, comforting or assisting his or her spouse, or the spouse and another person or persons, though with knowledge that the spouse, whether alone or with the other person or persons, has committed an offence and though the purpose of what is done is to enable the spouse, or the spouse and the other person or persons, to escape being apprehended, tried or punished. Crimes Act 1958 - SECT 339 Conspiracy and incitement 339. Conspiracy and incitement (1) A married person shall be criminally responsible for incitement or conspiracy to commit treason or murder and for any offence specified in section 4 as if he or she were unmarried. (2) Subject to subsection (1), a married person shall not be criminally responsible for conspiracy with his or her spouse alone, nor for incitement of his or her spouse to commit a criminal offence. (3) Nothing in subsection (2) shall affect the liability of a married person as a principal offender in any offence except conspiracy or incitement. * * * * * _______________ Crimes Act 1958 - PART IIA PART IIA EXTRA-TERRITORIAL OFFENCES Crimes Act 1958 - SECT 340 Definitions 340. Definitions (1) In this Part- appropriate authority means- (a) in relation to another State of the Commonwealth, or a Territory of the Commonwealth (other than the Australian Capital Territory)-an authority exercising in relation to the police force of that State or Territory functions corresponding to those of the Chief Commissioner of Police for Victoria in relation to the police force of Victoria; (b) in relation to the Australian Capital Territory-the Commissioner of the Australian Federal Police; corresponding law means a law of another State, or of a Territory, of the Commonwealth declared by Proclamation to be a corresponding law; night means the interval between 9 o'clock in the evening and 6 o'clock in the morning; obstruct includes assault, threaten, abuse, insult, intimidate, hinder and attempt to obstruct; offence to which this Part applies means an indictable offence against the law of a reciprocating State (being an offence arising from an act, omission or state of affairs which, if done or occurring in Victoria, would attract criminal liability under the law of Victoria); owner, of an object, includes a person entitled to possession of the object; police force means the police force of Victoria; premises means a building, structure or any place whatsoever (whether built upon or not and whether enclosed or unenclosed) and includes an aircraft, vessel or vehicle; reciprocating State means another State, or a Territory, of the Commonwealth- (a) in which a corresponding law is in force; and (b) in relation to which arrangements are in force under section 344; search warrant means a warrant under this Part authorising a search of premises. (2) For the purposes of this Part- (a) anything obtained by the commission of an offence, used for the purpose of committing an offence, or in respect of which an offence has been committed; or (b) anything that may afford evidence of the commission of an offence; or (c) anything intended to be used for the purpose of committing an offence- is an object relevant to the investigation of the offence. (3) The Governor in Council may, by proclamation published in the Government Gazette, declare a law of another State, or of a Territory, of the Commonwealth to be a corresponding law. Crimes Act 1958 - SECT 341 Issue of search warrant 341. Issue of search warrant (1) If, upon the application of a member of the police force, a magistrate is satisfied that there are reasonable grounds to believe- (a) that an offence to which this Part applies has been, or is intended to be, committed; and (b) that there is at any premises an object relevant to the investigation of that offence- the magistrate may issue a search warrant in respect of those premises. (2) The grounds of an application for a search warrant must be verified by affidavit. (3) A magistrate by whom a search warrant is issued must file the warrant, or a copy of the warrant, and the affidavit verifying the grounds on which the application for the warrant was made, with the principal registrar of the Court. Crimes Act 1958 - SECT 342 Authority conferred by and other incidents of a search warrant 342. Authority conferred by and other incidents of a search warrant (1) A search warrant authorises any member of the police force, with such assistants as he or she thinks necessary, to enter and search the premises to which the warrant relates, and anything in those premises. (2) Subject to any direction by a magistrate authorising execution of a search warrant at night, or during specified hours of the night, it must not be executed at night. (3) A member of the police force, or a person assisting him or her, may use such force as is reasonably necessary for the execution of a search warrant. (4) A member of the police force executing a search warrant may seize and remove any object that he or she believes on reasonable grounds to be relevant to the investigation of the offence in relation to which the warrant was issued. (5) An object seized and removed under subsection (4) must be dealt with in accordance with arrangements in force under section 344. (6) A member of the police force who executes a search warrant- (a) must prepare a notice in the prescribed form containing- (i) his or her own name and rank; (ii) the name of the magistrate who issued the warrant and the date and time of its issue; and (iii) a description of any objects seized and removed in pursuance of the warrant; and (b) as soon as practicable, after the execution of the warrant, must give the notice to the occupier (if any) of the premises in respect of which the warrant was issued or leave it for him or her in a prominent position on those premises. (7) A search warrant, if not executed at the expiration of one month from the date of its issue, then expires. Crimes Act 1958 - SECT 343 Obstruction 343. Obstruction (1) A person must not, without lawful excuse, obstruct a member of the police force, or a person assisting a member of the police force, in the execution of a search warrant. Penalty: Level 9 fine (60 penalty units maximum). (2) An offence under subsection (1) is a summary offence. Crimes Act 1958 - SECT 344 Ministerial arrangements for transmission and return of seized objects 344. Ministerial arrangements for transmission and return of seized objects (1) The Minister may enter into arrangements with a Minister to whom the administration of a corresponding law is committed under which- (a) objects seized under this Part that may be relevant to the investigation of an offence against the law of the State, or Territory in which the corresponding law is in force- (i) are to be transmitted to the appropriate authority in that State or Territory for the purposes of investigation of, or proceedings in respect of, that offence; and (ii) when no longer required for the purpose of any such investigation or proceedings, are (unless disposed of by order or direction of a court) to be returned to the Chief Commissioner of Police for Victoria; and (b) objects seized under the corresponding law that may be relevant to the investigation of an offence against the law of Victoria- (i) are to be transmitted to the Chief Commissioner of Police of Victoria; and (ii) when no longer required for the purposes of investigation of an offence, or proceedings in respect of an offence, are (unless disposed of by order or direction of a court) to be returned to the appropriate authority in the State or Territory in which they were seized. (2) The owner of an object returned to the Chief Commissioner of Police in pursuance of arrangements under subsection (1) is entitled to the return of the objects. (3) The right referred to in subsection (2) is enforceable by action in detinue in a court of competent jurisdiction. Crimes Act 1958 - SECT 345 Regulations 345. Regulations The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Part to be prescribed to give effect to this Part. _______________ Crimes Act 1958 - PART III PART III PROCEDURE AND PUNISHMENT Division 1-Pleading procedure, proof &c. (1) Mode of prosecution Crimes Act 1958 - SECT 351 Mode of prosecution 351. Mode of prosecution All treasons and misprisions of treason shall be prosecuted by indictment only, and all other indictable offences may be prosecuted by indictment or by presentment as hereinafter directed. * * * * * Crimes Act 1958 - SECT 353 Presentments 353. Presentments (1) Subject to the provisions hereinbefore contained and to subsection (2) and to the Public Prosecutions Act 1994, the Director of Public Prosecutions or any Crown Prosecutor in the name of the Director of Public Prosecutions may make presentment at the Supreme Court or County Court of any person for any indictable offence cognisable by such courts respectively, and every such presentment may be in the form contained in the Third Schedule or to that effect and shall be as good and of the same force strength and effect in the law as if the same had been presented and found by the oaths of twelve men. (2) Subject to subsection (5), where in respect of any indictable offence a person has been committed for trial- (a) a presentment referred to in subsection (1) shall be made; (b) an indictment shall be laid; (c) a charge shall be filed; or (d) a notice of trial or of intention to prefer a presentment shall be given to the person by or on behalf of the Director of Public Prosecutions or a Crown Prosecutor- in respect of the offence within the period prescribed by the regulations made under this Act. (2A) A copy of a presentment of a person for an indictable offence shall be served on the person in accordance with rules of court. (2B) If the body corporate on whom a copy of a presentment is to be served under subsection (2A) has not been served with a notice in relation to that offence under clause 24AA(1) of Schedule 5 to the Magistrates' Court Act 1989, the Director of Public Prosecutions must ensure that there is served with the copy a notice stating- (a) the date and time at which the body corporate must appear, by a representative or a legal practitioner, at its arraignment; and (b) that if the body corporate does not appear at its arraignment the trial court may in its absence proceed with the trial and proceed to hear and determine a summary offence pursuant to section 359AA(2). (3) The trial of the person referred to in subsection (2) shall be commenced within the period prescribed by the regulations made under this Act. (4) A regulation made under subsection (2) or (3) is subject to disallowance by a House of the Parliament. (5) The Supreme Court or the County Court may if it thinks fit at any time and notwithstanding that the period prescribed under subsection (2) or (3) (as the case may be) has expired grant an extension of the period. (5A) It is not necessary to make an application under subsection (5) for an extension of time if a ruling made, or direction given, by the court provides for the extension. (6) More than one extension of time may be granted under subsection (5) in relation to subsection (2) or (3) (as the case may be). (6A) An application for an extension of time under subsection (5) may be made to the court orally. (6B) Unless the court otherwise orders, no material in support of the application need be filed. * * * * * (7) If a person has been committed for trial in respect of an offence which may be tried in the County Court, the Director of Public Prosecutions or any Crown Prosecutor in the name of the Director of Public Prosecutions may make presentment at either the Supreme Court or the County Court. (8) In determining at which court to make presentment the Director of Public Prosecutions or a Crown Prosecutor must have regard to- (a) the complexity of the case; and (b) the seriousness of the alleged crime; and (c) any particular importance attaching to the case; and (d) any other consideration that he or she regards as relevant. Crimes Act 1958 - SECT 354 Indictments 354. Indictments Upon the application of any person supported by an affidavit disclosing an indictable offence and either that the same has been committed by some body corporate or that a court has declined or refused to commit or hold to bail the alleged offender or that no presentment was made against him at the court at which the trial would in due course have taken place, or upon the application of the Director of Public Prosecutions, it shall be lawful for the Full Court to order the Juries Commissioner to summon a grand jury to appear at a court to be holden at a time and place to be mentioned in the order; and upon receipt of such order the Juries Commissioner shall summon not less than twenty-three men to attend at such court at the time and place aforesaid to inquire present do and execute all things which on the part of the Queen shall then and there be commanded of them, and such men shall be taken from the jury roll of the jury district in which such place is situate and at the time and place aforesaid the said Juries Commissioner shall bring into court the said order with the name, occupation and date of birth of every grand juror written on a panel signed by him and sealed with his seal of office and shall deliver the said panel to the proper officer of the said court, who shall in open court call aloud the names of the grand jurors on the said panel one after another, and the twenty-three men so first drawn and appearing or if twenty-three men shall not appear such of them as do appear not being less than twelve men shall be the grand jury and shall be sworn and act as such accordingly: Provided always that every such order shall be delivered to the Juries Commissioner ten days before the day on which the indictment is intended to be preferred. * * * * * * * * * * * * * * * (2) Discharge without prosecution Crimes Act 1958 - SECT 357 Discharge of persons under committal for indictable offence 357. Discharge of persons under committal for indictable offence (1) The Attorney-General or the Director of Public Prosecutions may, in respect of any person imprisoned under committal for trial for an indictable offence, grant at any time a certificate in the form of Schedule 4 addressed to the Judges of the Supreme Court or any one of them. (2) The Judges or Judge to whom the certificate is addressed must, by warrant in the form of Schedule 5, order and direct the sheriff or officer in charge of the prison in whose custody the person imprisoned is, to discharge him or her from imprisonment in respect of the offence mentioned in the warrant, immediately and without fee or reward. (3) A sheriff or officer in charge of a prison who refuses or fails to comply with a warrant issued under subsection (2) must forfeit and pay to the use of Her Majesty a penalty of 5 penalty units. (4) A penalty under subsection (3) may be recovered by a proceeding brought in the name of the Attorney-General or the Director of Public Prosecutions. * * * * * * * * * * (4) Change of time or place of trial Crimes Act 1958 - SECT 359 Order for change of time or place of trial 359. Order for change of time or place of trial (1) When in respect of any indictable offence any person has been committed or remanded for trial or notice of trial or of intention to prefer a presentment has been given to any person by or on behalf of the Director of Public Prosecutions or a Crown Prosecutor the Supreme Court may of its own motion or on application on behalf of Her Majesty or by or on behalf of such person order that such person shall be tried at any sitting of the Supreme Court specified in such order or (if such offence is triable by the County Court) at any sitting of the County Court specified in such order. Such order may be made notwithstanding that in its result a case which would otherwise be tried by the Supreme Court is ordered to be tried by the County Court or vice versa and notwithstanding that it is ordered that the trial shall take place at a date earlier than otherwise it would take place. In circumstances of special urgency or importance such order may be made for trial by the Supreme Court at any place appointed for holding the court at a date other than a date appointed by the Governor in Council for holding the court at that place and the consequences in all respects and with regard to all officers and persons shall be the same as if the date specified in the order had been a date appointed by the Governor in Council for holding the court at that place. (1A) When in respect of an indictable offence any person has been committed or remanded for trial or notice of trial in the County Court or of intention to prefer a presentment in the County Court has been given to any person as aforesaid and a change is sought to some other sitting of the County Court at another time or place the County Court may, in addition to and without in any way derogating from the powers of the Supreme Court under subsection (1), on application as aforesaid order that the person be tried at the sitting of the County Court specified in the order and he shall be tried accordingly notwithstanding that the trial shall take place at a date earlier than otherwise it would take place. (2) When an order as mentioned in subsection (1) or subsection (1A) is made the consequences except so far as is otherwise expressly provided shall in all respects and with regard to all persons be the same as if the sitting specified in the order had been the sitting specified in or in connexion with the commitment remand or notice and in particular every undertaking of bail and every recognisance given in connexion with such commitment or remand by such accused person or any surety or sureties for him or by any person bound to attend as a witness or for the purpose of producing documents shall be deemed to be altered as if the sitting specified in the order had been the sitting specified in or in connexion with the commitment or remand: Provided that the recognisance of any person bound to attend as a witness or for the purpose of producing documents shall not be estreated unless a reasonable time before the sitting at which such trial is ordered notice in writing of the alteration in the effect of the recognisance produced by such order has been given to him either personally or by sending a telegram or prepaid post letter addressed to him at his usual place of abode. (3) On the hearing of any proceeding under subsection (1) or subsection (1A) it shall not be necessary for the accused person to be present provided that if the proceeding arises otherwise than by virtue of an application made by or on behalf of the accused person and the accused person is detained in any prison he shall be notified in writing that he may through the officer in charge of the prison forward to the Supreme Court an affidavit or statement in relation to the proceeding and that he may be represented on the hearing of the proceeding by his legal practitioner. (4) The Supreme Court or the County Court may by the order mentioned in subsection (1) or subsection (1A) or on an ex parte application on behalf of Her Majesty (and whether an order has been made under subsection (1) or subsection (1A) or not) direct that any accused person who is detained in any prison shall be removed to any other prison for the purposes of trial whether before the Supreme Court or the County Court and the officer in charge of the prison in which such person is detained shall on delivery to him of an office copy of such order of removal cause such person with his commitment and detainer to be removed in safe custody to such other prison and the officer in charge of such other prison shall on delivery to him of an office copy of such order of removal receive such person into his custody there to remain until he is discharged or delivered in due course of law. (5) Whenever any such order as is mentioned in subsection (1) or subsection (1A) has been made on application on behalf of Her Majesty the court shall if requested so to do by or on behalf of such accused person at any time before the trial issue a certificate that an order under this section has been made upon the production of which the Minister administering Part 7 of the Financial Management Act 1994 may order to be paid (out of any moneys provided by Parliament for allowances to witnesses) to the accused person a sum not exceeding $60 to enable him to defray the charges and expenses of his witnesses. If the accused person is on the trial acquitted the court before which the trial takes place may at any time within one month of the conclusion of the trial issue a certificate for such sum as appears to the court to have been properly expended for charges and expenses of witnesses in consequence of any change of the time or place of trial deducting therefrom the amount of any moneys so advanced as aforesaid and the Minister administering Part 7 of the Financial Management Act 1994 may upon receipt of such certificate pay such sum to the person so acquitted out of any moneys provided by Parliament for allowances to witnesses. (6) In this section and in sections 360 and 361 prison means prison under Part V of the Community Services Act 1970. Crimes Act 1958 - SECT 359AA Supreme Court and County Court may determine summary offences 359AA. Supreme Court and County Court may determine summary offences * * * * * (2) Notwithstanding anything to the contrary in this or in any other Act or rule of law, where an accused person is before the Supreme Court or County Court in respect of any indictable offence, the Supreme Court or County Court (as the case may be) may, subject to subsection (3) and on application by or on behalf of the Director of Public Prosecutions or the accused person hear and determine summarily any summary offence in respect of which a charge has been filed. (3) The following provisions shall apply in relation to a summary offence- (a) the Supreme Court or County Court shall not hear and determine a summary offence pursuant to subsection (2) unless the person charged with the offence- (i) consents to the Supreme Court or County Court (as the case may be) so doing; and (ii) states his intention of entering a plea of guilty in respect of the offence; (b) where a person charged with a summary offence states his intention of entering a plea of guilty in respect of the offence, but subsequently states his intention of entering a plea of not guilty in respect of the offence or enters a plea of not guilty in respect of the offence, the Supreme Court or the County Court shall direct that the offence be heard by the Magistrates' Court; (c) a summary offence which is to be heard and determined by the Supreme Court or County Court pursuant to subsection (2) shall be determined by the Court without a jury and subject to any rules made under paragraph (d) the practice and procedure applicable in the Magistrates' Court to the hearing and determination of summary offences shall apply as far as is appropriate to the hearing of the offence; (d) the rule-making powers of the Supreme Court and County Court extend to the making of rules for or with respect to the practice and procedure to be applied in the hearing and determination summarily of summary offences; (e) a Supreme Court or County Court which convicts a person of a summary offence may make such orders in relation to the conviction as might be made by the Magistrates' Court; and (f) a charge with respect to a summary offence which is to be heard and determined by the Supreme Court or County Court pursuant to subsection (2) may be filed at any time notwithstanding any limitation in any Act as to the time for commencing proceedings for a summary offence and despite any requirement for consent in section 26(5) of the Magistrates' Court Act 1989. Crimes Act 1958 - SECT 359A Time limit on certain prosecutions 359A. Time limit on certain prosecutions (1) Subject to this section, but notwithstanding anything else to the contrary in this or any other Act or any rule of law, where- (a) a person is, after a committal proceeding in the Magistrates' Court, directed to be tried for an alleged offence against section 38, 39, 44, 45, 47, 47A, 51, 52 or 57 or for an attempt to commit any such offence or for an assault with intent to commit any such offence; or (b) a person is charged on indictment or presentment with an alleged offence referred to in paragraph (a) or for an attempt to commit any such offence or for an assault with intent to commit any such offence without a committal proceeding having previously been held before the Magistrates' Court in respect of the alleged offence- the trial of the person for the alleged offence shall not be commenced more than three months after the person is directed to be tried or the charge is made (as the case may be). (2) The Supreme Court or, if a person is to be tried before the County Court, the County Court may if it thinks fit at any time and notwithstanding that the period fixed by subsection (1) has expired grant an extension of the period, being an extension for a period not exceeding three months. (2AA) The trial of a person that relates (wholly or partly) to a charge for a sexual offence in relation to which the complainant was a child or a person who had a cognitive impairment at the time at which the legal proceeding commenced, must commence, and the jury must be empanelled, not more than three months after the person is directed to be tried or the person is charged on indictment or presentment with the alleged offence. Notes 1. See section 41G of the Evidence Act 1958 regarding the requirement to hold a special hearing. 2. See section 26 of the Magistrates' Court Act 1989 in relation to the commencement of a proceeding. (2AAB) The court may grant an extension of the period referred to in subsection (2AA) if the court is satisfied that it is in the interests of justice to do so. (2AAC) The court may grant an extension of the period referred to in subsection (2AA) whether or not the time has expired, being an extension for a period not exceeding three months. (2A) It is not necessary to make an application under subsection (2) or (2AA) for an extension of time if a ruling made, or direction given, by the court provides for the extension. (3) More than one extension of time may be granted under subsection (2) or (2AA) in relation to the commencement of the trial of an accused. (4) An application for an extension of time under subsection (2) or (2AA) may be made to the court orally. (5) Unless the court otherwise orders, no material in support of the application need be filed. (6) For the purposes of subsection (2AA), sexual offence means an offence under Subdivision (8A), (8B), (8C), (8D) or (8E) of Division 1 of Part I or under any corresponding previous enactment or an attempt to commit any such offence or an assault with intent to commit any such offence. Crimes Act 1958 - SECT 359B Non-appearance of corporate accused person 359B. Non-appearance of corporate accused person (1) If an accused person that is a body corporate does not appear, by a representative or a legal practitioner, at its arraignment and the Supreme Court or County Court (as the case requires) is satisfied that a notice under clause 24AA(l) of Schedule 5 to the Magistrates' Court Act 1989 or section 353(2B) of this Act (as the case requires) has been served on the accused person, the Court may, if it considers it appropriate to do so, proceed with the trial and, even though the accused person has not consented to it so doing, proceed to hear and determine a summary offence pursuant to section 359AA(2). (2) If the Supreme Court or County Court proceeds as mentioned in subsection (1)- (a) the Court may dispense with or vary any requirement imposed by or under this or any other Act (including a requirement with respect to arraignment or empanelling a jury) as necessary having regard to the absence of the accused person; and (b) the prosecution must ensure that notice of any sentence passed in the absence of the accused person is served on the accused person by post. (3) If the accused person is a company or registered body within the meaning of the Corporations Act, a notice under subsection (2)(b) may be served in accordance with section 109X or 601CX of that Act, as the case requires. (4) Nothing in this section affects clause 24B of Schedule 5 to the Magistrates' Court Act 1989. (5) Postponement of trial Crimes Act 1958 - SECT 360 Order for postponement of trial 360. Order for postponement of trial (1) When in respect of any indictable offence any person has been committed or remanded for trial or notice of trial or of an intention to prefer a presentment has been given to any person by or on behalf of the Director of Public Prosecutions or a Crown Prosecutor or an indictment or presentment has been found or made against any person or an order under subsection (1) or subsection (1A) of section three hundred and fifty-nine has been made and such commitment remand or notice is returnable or the trial of the accused is to be held or is being held at a sitting of the Supreme Court or County Court the court at such sitting may at any stage of the proceedings whenever it is so provided in this Act or whenever otherwise in the interest of justice it is expedient so to do and whether the accused person is present or not direct- (a) that the trial shall take place at a later time at the same sitting; or (b) that the receiving or taking of any plea or demurrer shall be adjourned and that the trial shall be postponed or that the trial shall be postponed and that the accused person shall be remanded for trial at a sitting of the Supreme Court or (if the offence is triable by the County Court) by the County Court at such time and place as the court making such order may direct. (2) If necessary in any case referred to in paragraph (a) or (b) of subsection (1) any jury sworn may be discharged from giving a verdict and an indorsement made on the indictment or presentment "Jury discharged from giving a verdict." (3) The time and place for the commencement of any such sittings to which the trial is postponed shall be stated in open court and the court may (with the consent of any surety or sureties) respite the bail of the accused person and may respite the recognisance of any person bound to attend as a witness or for the purpose of producing documents and thereupon the accused person and the persons so bound to attend shall be bound to attend at such time and place without entering into fresh undertakings or recognisances and any surety so consenting shall be bound accordingly or the court may in the case of the accused person make such order as to bail and commitment and removal to any prison specified by the court until such bail is forthcoming as seems fit: Provided that the court may extend bail without the consent of the surety or sureties in any case where the undertaking contains or contain a provision in that behalf. (4) The powers conferred by this section may be exercised by the County Court notwithstanding that the offence charged is not triable in such court. Crimes Act 1958 - SECT 360A Adjournment or stay of trial 360A. Adjournment or stay of trial (1) Subject to subsection (2) and despite any rule of law to the contrary, if- (a) a person is committed for trial; or (b) a presentment has been filed- the fact that an accused has been refused legal assistance in respect of a trial is not a ground for an adjournment or stay of the trial. (2) If a court is satisfied at any time before or during the trial that- (a) it will be unable to ensure that the accused will receive a fair trial unless the accused is legally represented in the trial; and (b) the accused is in need of legal assistance because he or she is unable to afford the full cost of obtaining from a private law practice or private legal practitioner legal representation in the trial- the court may order Victoria Legal Aid to provide assistance to the accused, on any conditions specified by the court, and may adjourn the trial until such assistance has been provided. (3) Despite anything in the Legal Aid Act 1978, Victoria Legal Aid must provide legal representation in accordance with an order under subsection (2). (4) Despite anything to the contrary in subsection (2)- (a) if the court is satisfied that, in relation to the trial, the accused has engaged in vexatious or unreasonable conduct that has contributed to the accused's inability to afford the full cost of obtaining from a private law practice or private legal practitioner legal representation in the trial, the court may refuse to make an order under subsection (2); (b) the legal burden of proof for the purposes of subsection (2)(b) that the accused is unable to afford the full cost of obtaining legal representation rests on the accused; (c) for the purposes of proving under subsection (2)(b) that the accused is unable to afford the full cost of obtaining legal representation, regard must be had to property- (i) that is subject to the effective control of the accused (whether or not the accused has an interest in it); or (ii) in which the accused has an interest- as determined in accordance with section 9 or 10 of the Confiscation Act 1997; (d) a reference in subsection (2) to the provision of assistance to the accused is a reference to the provision of legal representation; (e) the conditions that may be specified by the court under subsection (2) do not include conditions relating to the identity, number or remuneration of persons representing the accused; (f) the court must give Victoria Legal Aid an opportunity to appear and be heard before an order is made under subsection (2). (5) Despite anything to the contrary in section 17A of the Supreme Court Act 1986, Victoria Legal Aid may appeal to the Court of Appeal, with leave of the Court of Appeal, from an order under subsection (2) of the Trial Division constituted by a Judge. (6) This section, as amended by section 6 of the Crimes (Amendment) Act 1998, applies to and with respect to an order made by a court under subsection (2) of this section after the commencement of that section, whether proceedings relating to the relevant trial commenced before or after that commencement. (7) In this section, private law practice and private legal practitioner have the same meaning as in the Legal Aid Act 1978. (6) Removal of accused persons to and from prison Crimes Act 1958 - SECT 361 Removal of accused persons to and from prison 361. Removal of accused persons to and from prison (1) Every accused person in the legal custody of the Secretary to the Department of Justice in a prison shall without writ of habeas corpus or other writ for that purpose be caused to be removed to and from the court at which he is to be tried when and so often as may be necessary by the Secretary in order that he may be tried sentenced or otherwise dealt with according to law and such removal shall not be deemed to be an escape. (1A) Where it appears to the Supreme Court or the County Court (as the case requires) to be desirable in the interests of justice that an accused person committed to prison should be present in court otherwise than for trial or sentence the court may order that the accused person be brought before the court and the officer in charge of the prison in which the accused person is detained shall, on delivery to him of an office copy of the order, cause the accused person to be brought before the court in accordance with the order. * * * * * (3) No proceeding either criminal or civil shall be maintained by such accused person or any other person against any prison officer or member of the police force or against any other person by reason of any such removal or detainer. (4) This section extends and applies- (a) to any accused person in custody in a police gaol, as if- (i) any reference to a prison were a reference to the police gaol; and (ii) any reference to the Secretary to the Department of Justice or to the officer in charge of a prison were a reference to the Chief Commissioner of Police; and (b) to any accused person detained in an approved mental health service within the meaning of the Mental Health Act 1986, as if- (i) any reference to a prison were a reference to the approved mental health service; and (ii) any reference to the Secretary to the Department of Justice or to the officer in charge of a prison were a reference to the authorised psychiatrist of the approved mental health service; and (c) to any accused person in custody in a remand centre, youth residential centre or youth justice centre within the meaning of the Children, Youth and Families Act 2005 or in a residential institution or a residential treatment facility within the meaning of the Disability Act 2006, as if- (i) any reference to a prison were a reference to the remand centre, youth residential centre, youth justice centre or residential institution; and (ii) any reference to the Secretary to the Department of Justice or to the officer in charge of a prison were a reference to the Secretary to the Department of Human Services. * * * * * * * * * * (8) Joinder of defendants in certain cases Crimes Act 1958 - SECT 363 Separate abettors or accessories may be tried together 363. Separate abettors or accessories may be tried together Any number of abettors or accessories at different times to any indictable offence may be charged with substantive offences in the same indictment or presentment and be tried together, notwithstanding that the principal offender is not included in the indictment or presentment or is not in custody or amenable to justice. (9) What presentments indictments and instruments shall suffice and avail Crimes Act 1958 - SECT 364 Definition 364. Definition In the next ten succeeding sections unless inconsistent with the context or subject-matter- the court means the court before which any indictable offence is tried or prosecuted. Crimes Act 1958 - SECT 365 Provisions relating to presentments to apply to indictments etc. 365. Provisions relating to presentments to apply to indictments etc. The provisions of the next nine succeeding sections relating to presentments shall apply to indictments in the Supreme Court and also to any plea replication or other criminal pleading with such modifications as are made by rules under this Act. Crimes Act 1958 - SECT 366 Rules as to presentments 366. Rules as to presentments The rules contained in the Sixth Schedule to this Act with respect to presentments shall have effect as if enacted in this Act, but those rules may be added to varied or annulled by further rules made by the judges of the Supreme Court under this Act. * * * * * * * * * * Crimes Act 1958 - SECT 369 General provisions as to presentments 369. General provisions as to presentments Every presentment shall be indorsed with a statement of the specific offence or offences with which the accused person is charged and shall contain and shall be sufficient if it contains such particulars as are necessary for giving reasonable information as to the nature of the charge. Crimes Act 1958 - SECT 370 No objections as to form 370. No objections as to form Notwithstanding any rule of law or practice or any statute a presentment shall subject to the provisions of this Act not be open to objection in respect of its form or contents if it is framed in accordance with the rules under this Act. Crimes Act 1958 - SECT 371 Joinder of charges in the same presentment 371. Joinder of charges in the same presentment Subject to the provisions of the rules under this Act charges for more than one indictable offence may be joined in the same presentment. Crimes Act 1958 - SECT 372 Orders for amendment of presentment, separate trial etc. 372. Orders for amendment of presentment, separate trial etc. (1) Where before trial or at any stage of a trial it appears to the court that the presentment is defective the court shall make such order for the amendment of the presentment as the court thinks necessary to meet the circumstances of the case unless having regard to the merits of the case the required amendments cannot be made without injustice. (2) Where a presentment is so amended a note of the order for amendment shall be indorsed on the presentment and the presentment shall be treated for the purposes of the trial and for the purposes of all proceedings in connexion therewith as having been made in the amended form. (3) Where before trial or at any stage of a trial the court is of opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same presentment or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in a presentment the court may order a separate trial of any count or counts of such presentment. (3AA) Despite subsection (3) and any rule of law to the contrary, if, in accordance with this Act, 2 or more counts charging sexual offences are joined in the same presentment, it is presumed that those counts are triable together. (3AB) The presumption created by subsection (3AA) is not rebutted merely because evidence on one count is inadmissible on another count. (3AC) In subsection (3AA) sexual offence means- (a) an offence under Subdivision (8A), (8B), (8C), (8D) or (8E) of Division 1 of Part I or under any corresponding previous enactment or an attempt to commit any such offence or an assault with intent to commit any such offence; or (b) an offence to which clause 1 of Schedule 1 to the Sentencing Act 1991 applies. (3A) Where a presentment contains a count of conspiracy to commit an offence and another count alleging the commission of that offence, the court shall, unless it is of the opinion that to try those counts together would be in the interests of justice, order that the count of conspiracy shall be tried separately from the other count, and the prosecution may elect which count shall be tried first. (4) Where before trial or at any stage of a trial the court is of opinion that the postponement of the trial of a person accused is expedient as a consequence of the exercise of any power of the court under this Act to amend a presentment or to order a separate trial of a count, the court shall make such order as to the postponement of the trial as appears necessary. (5) Where an order of the court is made under this section for a separate trial or for the postponement of a trial- (a) if such an order is made during a trial the court may order that any jury sworn be discharged from giving a verdict on the count or counts the trial of which is postponed or on the presentment (as the case may be) and that an indorsement be made on the presentment "Jury discharged from giving a verdict"; and (b) the procedure on the separate trial of a count shall be the same in all respects as if the count had been set out in a separate presentment and the procedure on the postponed trial shall be the same in all respects (if the jury have been discharged) as if the trial had not commenced; and (c) the court may make such order as to admitting the accused person to bail, and as to the enlargement of recognisances and otherwise as the court thinks fit. Crimes Act 1958 - SECT 373 Other powers not affected 373. Other powers not affected Any power of the court under the last preceding section shall be in addition to and not in derogation of any other power of the court for the same or similar purposes. Crimes Act 1958 - SECT 374 Savings 374. Savings Nothing in the last ten preceding sections or the rules thereunder shall affect the law or practice relating to the jurisdiction of a court or the place where an accused person can be tried, or prejudice or diminish in any respect the obligation to establish by evidence according to law any acts omissions or intentions which are legally necessary to constitute the offence with which the person accused is charged, or otherwise affect the laws of evidence in criminal cases. Crimes Act 1958 - SECT 375 Omission of certain details not fatal to presentment etc. 375. Omission of certain details not fatal to presentment etc. No indictment or presentment shall be held insufficient for omitting to state the time at which the offence was committed in any case where time is not of the essence of the offence; nor for stating the time imperfectly; nor for stating the offence to have been committed on a day subsequent to the finding of the indictment or presentment or on an impossible day or on a day that never happened. Crimes Act 1958 - SECT 376 Previous convictions may be added to presentment23 376. Previous convictions may be added to presentment23 (1) In an indictment or presentment for an indictable offence it shall be lawful, in order to enable the court the better to exercise its discretion with respect to punishment, to add to the presentment a count or counts averring that the offender, at the time of committing the offence, had a previous conviction or previous convictions. (2) A count or counts may be added under subsection (1) at any time before the jury gives its verdict. (3) A count may be added under subsection (1) whether or not the previous conviction, because of a provision of this Act, affects the degree, character or punishment of the offence. (4) In this section previous conviction means a prior conviction or finding of guilt by a court (whether in or out of Victoria), including a conviction or finding of guilt consequent on which is made- (a) an order of a court releasing a person on an adjournment without recording a conviction; or (b) a community-based order- but does not include a conviction or finding of guilt by a children's court (whether in or out of Victoria) made more than 10 years prior to the hearing at which it is sought to be proved. * * * * * * * * * * Crimes Act 1958 - SECT 379 Description of property of Her Majesty in theft cases 379. Description of property of Her Majesty in theft cases In any proceedings for an offence under Division 2 of Part I relating to the property of Her Majesty the property may be described as the property of Her Majesty. Crimes Act 1958 - SECT 380 Property under management of body corporate to be property thereof 24 380. Property under management of body corporate to be property thereof 24 All property real and personal whereof any body corporate has by law the management control or custody shall, for the purpose of any indictment or presentment or proceeding against any other person for any offence committed on or in respect thereof, be deemed to be the property of such body corporate. Crimes Act 1958 - SECT 381 Money or securities etc. may be described simply as money 381. Money or securities etc. may be described simply as money In every indictment or presentment for an offence under Division 2 of Part I it shall be sufficient to describe such money or valuable security simply as money, without specifying any particular kind of money or security, which description shall be sustained by proof of the stealing taking receiving embezzling applying or disposing or obtaining of any money or valuable security, although some part of the value thereof was agreed to be or was in fact returned. Crimes Act 1958 - SECT 382 Presentment for stealing etc. documents of title 382. Presentment for stealing etc. documents of title In any indictment or presentment for stealing or for any fraudulent purpose destroying cancelling obliterating or concealing the whole or any part of any document of title to lands, it shall be sufficient to allege that such document is or contains evidence of the title or of part of the title of the person or of some one of the persons having an interest in the real estate to which the same relates, and to mention such real estate or some part thereof. * * * * * * * * * * Crimes Act 1958 - SECT 386 Form of presentment or indictment for perjury etc. 386. Form of presentment or indictment for perjury etc. In any indictment or presentment for perjury or for any offence deemed to be perjury it shall be sufficient to set forth the substance of the offence charged upon the defendant and before what court or before whom the accused falsely swore or falsely declared or affirmed the matter charged as false without setting forth the proceedings and without setting forth the commission or authority of the court or the person before whom such offence was committed. Crimes Act 1958 - SECT 387 Form of presentment or indictment etc. for subornation of perjury etc. 387. Form of presentment or indictment etc. for subornation of perjury etc. In every indictment or presentment for subornation of perjury and other like offences it shall be sufficient wherever such perjury has been actually committed to allege the offence of the person who actually committed such perjury or other offence in the manner hereinbefore mentioned, and then to allege that the defendant unlawfully did cause and procure the said person the said offence in manner and form aforesaid to do and commit; and wherever such perjury or other offence aforesaid has not been actually committed, it shall be sufficient to set forth the substance of the offence charged upon the defendant, without setting forth any of the matters or things hereinbefore rendered unnecessary to be set forth in the case of wilful and corrupt perjury. (10) Preliminary objections not to be taken Crimes Act 1958 - SECT 388 No technical objections allowed 388. No technical objections allowed No person by himself or by his legal practitioner shall take any objection in any court to any order made under sections three hundred and fifty-nine or three hundred and sixty under or by virtue of which the time or place of trial has been altered or except as otherwise expressly enacted to any matter or thing set out or appearing on the face of the record. (11) No right to traverse or postpone Crimes Act 1958 - SECT 389 No person entitled to traverse or have time to plead 389. No person entitled to traverse or have time to plead No accused person shall be entitled as of right to traverse or postpone the trial of any indictment or presentment preferred against him in the Supreme Court or County Court or to have time to plead or demur to any such presentment indictment or information allowed him: Provided that if the court is of opinion that the accused ought to be allowed a further time to plead or demur or to prepare for his defence or otherwise, it may grant such further time to plead or demur or may adjourn the receiving or taking of the plea or demurrer and postpone the trial or as the case may be postpone the trial as provided by section three hundred and sixty. (12) Trial, arraignment, plea &c. Crimes Act 1958 - SECT 390 Police to be present at courts 390. Police to be present at courts * * * * * (2) The Chief Commissioner of Police shall direct that a sufficient number of members of the police force shall be present to keep order in and within the precincts of the court-room at all sittings of the Supreme Court in its criminal jurisdiction and of the County Court in its criminal jurisdiction and shall at the request of the presiding judge direct that an additional number of such members shall be present at any particular sitting with respect to which the request is made. Crimes Act 1958 - SECT 390A Entitlement to plead "Not Guilty" 390A. Entitlement to plead "Not Guilty" (1) Where a person is arraigned on indictment or presentment he shall in all cases be entitled to make plea of not guilty in addition to any demurrer or special plea. (2) Where a person is arraigned on indictment or presentment he may plead not guilty to the offence specifically charged therein but guilty of another offence of which he might be found guilty on that indictment or presentment; and the consequences of so making a plea of guilty shall be the same as if the charge to which the plea was made had been included in the indictment or presentment. Crimes Act 1958 - SECT 391 Plea of "Not Guilty" puts the accused on trial by jury; procedure where no evidence led 391. Plea of "Not Guilty" puts the accused on trial by jury; procedure where no evidence led If any person arraigned on any indictment or presentment pleads thereto "Not Guilty," he shall without further form be deemed to have put himself upon the country for trial; and subject to section 391A the jury for his trial shall in the usual manner be impanelled accordingly. Provided that where a person arraigned on any indictment or presentment pleads "Not Guilty" to any count in respect of which the prosecution proposes not to lead evidence the prosecution shall so inform the trial judge before a jury is impanelled and the trial judge shall thereupon direct that an entry of "Not Guilty" be made upon the record in respect of such count and every such entry shall have effect as if it were the verdict of a jury upon the trial of the accused person on that count. Crimes Act 1958 - SECT 391A Judge may hear and determine question of law etc. before jury is impanelled 391A. Judge may hear and determine question of law etc. before jury is impanelled Where an accused person is arraigned on indictment or presentment before the Supreme Court or the County Court the Court before which the arraignment takes place, if the Court thinks fit, may before the impanelling of a jury for the trial hear and determine any question with respect to the trial of the accused person which the Court considers necessary to ensure that the trial will be conducted fairly and expeditiously and the hearing and determination of any such question shall be conducted and have the same effect and consequences in all respects as such a hearing and determination would have had before the enactment of this section if the hearing and determination had occurred after the jury had been impanelled. Crimes Act 1958 - SECT 391B Hearing of application for exclusion of evidence 391B. Hearing of application for exclusion of evidence If an accused person arraigned on an indictment or presentment before the Supreme Court or the County Court seeks to satisfy the Court (whether before or after the empanelling of a jury) that it should exclude evidence solely by the exercise of a discretion, the Court may, in hearing and determining the question, hear evidence called on behalf of the accused person before it hears evidence called on behalf of the Crown. Crimes Act 1958 - SECT 392 Refusal to plead 392. Refusal to plead If any person being so arraigned stands mute of malice or will not answer directly to the indictment or presentment, the court may order the proper officer to enter a plea of "Not guilty" on behalf of such person; and the plea so entered shall have the same force and effect as if he had actually pleaded the same. * * * * * Crimes Act 1958 - SECT 394 Form of plea of autrefois convict or autrefois acquit 394. Form of plea of autrefois convict or autrefois acquit In any plea of autrefois convict or autrefois acquit it shall be sufficient for any defendant to state that he has been lawfully convicted or acquitted (as the case may be) of the said offence charged in the indictment or presentment. Crimes Act 1958 - SECT 395 Trial where accused has previous convictions 395. Trial where accused has previous convictions (1) In proceedings upon an indictment or presentment where the person being tried has a previous conviction or where a count averring a previous conviction has been added to the indictment or presentment, the following provisions apply- (a) the person shall be arraigned on only so much of the indictment or presentment as charges the offence; (b) where- (i) the person pleads not guilty; or (ii) the court orders a plea of not guilty to be entered on behalf of the person- the jury shall be charged to inquire concerning only the offence with which the person is charged; (c) where the person pleads guilty or the jury returns a verdict of guilty and after the discharge of the jury (whether or not the jurors are still present) the person shall be asked whether he or she has previous convictions as alleged in the indictment or presentment; (d) if, in response to questions put under paragraph (c), the person distinctly admits to the previous convictions the court may proceed to sentence the person accordingly; (e) if, in response to questions put under paragraph (c) the person does not distinctly admit to the previous convictions- (i) the prosecution may lead evidence to prove the previous convictions; and (ii) all questions concerning the alleged previous convictions shall be determined by the judge without jury; and (f) Despite paragraphs (c) to (e), where the person has been found guilty of an offence punishable only with imprisonment for the term of his or her natural life, the person shall not be asked any questions concerning previous convictions. (2) Where in proceedings upon indictment or presentment evidence of a previous conviction of a person may be given, a certified statement of conviction may, subject to subsection (4), be tendered in evidence. (3) In subsection (2) certified statement of conviction means a certificate in the prescribed form stating that in a specified court, on a specified day, a person of the same name and date of birth as the person against whom it is sought to be proved was convicted of a specified offence, or admitted specified previous convictions. (4) To be admissible in evidence, a certified statement of conviction must purport to be signed- (a) in the case of a previous conviction in the Magistrates' Court or the Children's Court-by a registrar of the Magistrates' Court or a registrar of the Children's Court; (b) in the case of a previous conviction in the County Court-by the Registrar or a Deputy Registrar of the County Court; (c) in the case of a previous conviction in the Supreme Court-by the Prothonotary or a Deputy Prothonotary of the Supreme Court; or (d) in the case of a previous conviction in a court outside Victoria (whether or not in Australia)-by the officer having custody of the records of the court, or by the deputy of such officer. (5) A certified statement of conviction tendered in evidence under subsection (2) is sufficient evidence (unless the contrary is proved)- (a) of the facts stated in the certificate; and (b) that the person against whom the conviction is sought to be proved is the same person as the person referred to in the certificate. (6) Where under subsection (1) a person may be asked whether he or she has a previous conviction, the method of asking the question, in the Court's discretion, shall be either- (a) by the person being shown a document on which the alleged previous conviction is set out, showing- (i) the date of the alleged previous conviction; (ii) the court which imposed the alleged previous conviction; (iii) the place of sitting of that court; (iv) the nature of the offence; and (v) the sentence imposed; or (b) by the alleged previous conviction being read to the person. (7) Where upon the trial of a person on indictment or presentment the person gives evidence of his or her good character, the court may permit evidence of a previous conviction to be led before verdict. (8) In this section previous conviction has the same meaning as in section 376. Crimes Act 1958 - SECT 396 Not necessary to inquire into accused's lands etc. 396. Not necessary to inquire into accused's lands etc. Where any person is indicted or presented for treason or any other indictable offence, it shall not be necessary to inquire concerning his lands or goods, nor whether he fled for such treason or other indictable offence. (13) Defence Crimes Act 1958 - SECT 397 When and by whom prisoner's defence may be made 397. When and by whom prisoner's defence may be made Every accused person shall be admitted after the close of the case for the prosecution to make full answer and defence thereto by his or her legal practitioner. (14) Evidence. Depositions. Subpoenas and warrants against witnesses Crimes Act 1958 - SECT 398 Caution to be given to person charged25 398. Caution to be given to person charged25 Where a person charged with an offence is not defended by a legal practitioner, the following caution or words to the like effect shall, before he is called as a witness, be handed to him in writing under the direction of the court (that is to say):- "You now have the right to answer the charge against you and may take either of the following courses: (a) You may enter the witness box, take the oath, and say what you want to say in answer to the charge. This is known as giving sworn evidence and when you have given your evidence you may be asked questions about it by the prosecution or the Court; (b) You may say nothing in answer to the charge. In either of these cases you may call any witness or witnesses to give sworn evidence for you. What do you desire to do?" Crimes Act 1958 - SECT 398A Admissibility of propensity evidence 398A. Admissibility of propensity evidence (1) This section applies to proceedings for an indictable or summary offence. (2) Propensity evidence relevant to facts in issue in a proceeding for an offence is admissible if the court considers that in all the circumstances it is just to admit it despite any prejudicial effect it may have on the person charged with the offence. (3) The possibility of a reasonable explanation consistent with the innocence of the person charged with an offence is not relevant to the admissibility of evidence referred to in subsection (2). (4) Nothing in this section prevents a court taking into account the possibility of a reasonable explanation consistent with the innocence of the person charged with an offence when considering the weight of the evidence or the credibility of a witness. (5) This section has effect despite any rule of law to the contrary. Crimes Act 1958 - SECT 399 The accused, husbands and wives as witnesses for the defence; evidence of character of accused 399. The accused, husbands and wives as witnesses for the defence; evidence of character of accused (1) Subject to this section, where a person is charged with an offence he shall at every stage of the proceedings against him be a competent, but not compellable, witness in his own defence or in defence of any other person charged in those proceedings. (2) Subject to this section, where a person is charged with an offence, the wife or former wife or husband or former husband (as the case may be) of that person shall at every stage of the proceedings against that person be a competent and, unless he or she is also charged in those proceedings, compellable witness for the defence of that person or of any other person charged in those proceedings as if the marriage had never taken place. (3) The failure of any person charged with an offence to give sworn evidence shall not be made the subject of comment to the jury by either the prosecution, or by the presiding judge26. (4) A person charged and being a witness pursuant to this section may be asked any question in cross-examination notwithstanding that it would tend to criminate him as to the offence charged. (5) A person charged and called as a witness pursuant to this section shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless- (a) the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged; or (b) he has personally or by his advocate asked questions of the witnesses for the prosecution (other than his wife or former wife or her husband or former husband as the case may be) with a view to establishing his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution (other than his wife or former wife or her husband or former husband as the case may be); or (c) he has given evidence against any other person charged with the same offence. (6) A person charged and called as a witness pursuant to this section shall not be asked, and if asked shall not be required to answer, any question on the ground that paragraph (b) of subsection (5) applies to him unless the permission of the presiding judge or magistrate (to be applied for in the absence of the jury, if any) has first been obtained. (7) Every person called as a witness pursuant to this section shall unless otherwise ordered by the presiding judge or magistrate give his evidence from the witness-box or other place from which the other witnesses give their evidence. * * * * * (8) Nothing in this section shall affect the provisions of Schedule 5 to the Magistrates' Court Act 198927. Crimes Act 1958 - SECT 399A Alibi evidence 399A. Alibi evidence (1) On a trial on presentment the accused shall not without the leave of the court adduce evidence in support of an alibi unless, before the end of the prescribed period, he gives notice of particulars of the alibi in the manner provided by subsection (4). (2) Without prejudice to subsection (1), on any such trial the accused shall not, without the leave of the court call any other person to give such evidence unless- (a) the notice under that subsection includes the name and address of the witness or, if the name or address is not known to the accused at the time he gives the notice, any information in his possession which might be of material assistance in finding the witness; (b) if the name or the address is not included in that notice, the court is satisfied that the accused, before giving the notice, took reasonable steps to secure that the name or address would be ascertained; and (c) if the accused is notified by or on behalf of the Director of Public Prosecutions that the witness has not been traced by the name or at the address or by the information given, he forthwith gives notice of any information then in his possession which might be of material assistance in finding the witnesses or on subsequently receiving any such information, forthwith gives notice of it. (3) The court shall not refuse leave under this section if it appears to the court- (a) in a case where the accused was committed for trial on the charge in respect of which the alibi is sought to be relied upon, that he was not informed of the requirements of this section; or (b) in any other case, that he was not informed of these requirements in writing by the Director of Public Prosecutions upon or before the supply to him of a copy of the statement and particulars of the offence as charged in the presentment. (4) Notice under subsection (1) shall either be given in court during or at the end of the committal proceedings, or be given in writing to the Director of Public Prosecutions; and notice under paragraph (c) of subsection (2) shall be given in writing to the Director of Public Prosecutions. (5) A notice to the Director of Public Prosecutions under this section may be given by leaving it at his office or by sending it in a registered letter addressed to him at his office. (6) Any notice purporting to be given under this section on behalf of the accused by his or her legal practitioner shall, unless the contrary is proved, be deemed to be given with the authority of the accused. (7) In this section- evidence in support of an alibi means evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission; the prescribed period means a period of ten days from- (a) in a case where the accused was committed for trial on the charge in relation to which the alibi is sought to be relied upon, the day on which he was so committed; and (b) in any other case, the day on which he was supplied with a copy of the statement and particulars of the offence as charged in the presentment. (8) For the purposes of this section the Governor in Council may make regulations for or with respect to- (a) the form of notices referred to in this section and the nature of any particulars required to be given thereon; (b) the service of such notices and proof of service thereof; (c) the information to be given to accused persons of the requirements of this section and the giving of such information; (d) recording and certifying the giving of notices and particulars under this section, the disclosure thereof to courts, and the transmission to the Director of Public Prosecutions of a copy of the record of such notices; and (e) any matter or thing necessary to be prescribed for carrying into effect the provisions of this section. Crimes Act 1958 - SECT 399B Provision relating to witnesses to alibis 399B. Provision relating to witnesses to alibis No one who has been named or referred to as a proposed witness in any notice given by the accused under the preceding section shall, before the conclusion of the trial for the purposes of which the notice was given or any re-trial which may be directed, be communicated with directly or indirectly by any person acting for the prosecution or by any member of the police force with respect to the case or to any matter related thereto, unless in the presence and with the consent of the accused's legal practitioner or, where he is unrepresented, the accused himself; and any such person or member so communicating with knowledge of facts which render his conduct a contravention of this section shall be guilty of a contempt of the court of trial and may be dealt with by it accordingly. Crimes Act 1958 - SECT 400 Wife or husband etc. of the accused to be competent and compellable witnesses 400. Wife or husband etc. of the accused to be competent and compellable witnesses (1) Nothing in this section shall operate to compel any person charged with an offence (in this section called the accused) to give evidence in any proceedings wherein such charge is heard. (2) Subject to subsection (3), the wife, former wife, husband or former husband of the accused shall be a competent and compellable witness for the prosecution at every stage of the proceedings against the accused, including proceedings for the grant, variation or revocation of bail, as if the marriage had never taken place. (3) In any proceedings against the accused, the presiding judge or magistrate shall exempt the accused's wife, husband, mother, father or child (in this section called the proposed witness) from giving evidence on behalf of the prosecution, either generally or in relation to a particular matter, if, but only if, he is satisfied upon application made to him in the absence of the jury (if any) that, having regard to all the circumstances of the case, the interest of the community in obtaining the evidence of the proposed witness is outweighed by- (a) the likelihood of damage to the relationship between the accused and the proposed witness; or (b) the harshness of compelling the proposed witness to give the evidence; or (c) the combined effect of the matters mentioned in paragraphs (a) and (b). (4) Without restricting the generality of the phrase "all the circumstances of the case" in subsection (3), such circumstances shall include- (a) the nature of the offence charged; (b) the importance in the case of the facts which the proposed witness is to be asked to depose to; (c) the availability of other evidence to establish those facts and the weight likely to be attached to the proposed witness's testimony as to those facts; (d) the nature, in law and in fact, of the relationship between the proposed witness and the accused; (e) the likely effect upon the relationship and the likely emotional, social and economic consequences if the proposed witness is compelled to give the evidence; and (f) any breach of confidence that would be involved. (5) The fact that a proposed witness has applied for or been granted an exemption pursuant to this section shall not be made the subject of any comment to the jury by the prosecution or by the presiding judge. (6) Where the husband, wife, mother, father or child of the accused is called as a witness for the prosecution, the presiding judge or magistrate shall satisfy himself that the person so called is aware of his or her right to apply for an exemption pursuant to this section. Crimes Act 1958 - SECT 401 Provision for simplifying proof of previous offences 401. Provision for simplifying proof of previous offences When any person has been indicted or presented for committing any offence after a previous conviction or convictions or where a count or counts averring a previous conviction or previous convictions have been added as hereinbefore provided28 and such person has been convicted of such subsequent offence (hereinafter in this section termed the "first-mentioned principal offence") and such previous conviction or convictions or any of them have thereupon been admitted by or proved against him, and at any subsequent time such person indicted or presented for committing any other offence subsequent to the committing of such first-mentioned principal offence and to such previous conviction or convictions as aforesaid then such first-mentioned principal offence and such other previous conviction or convictions as aforesaid may notwithstanding anything contained in this or any other Act be proved against such person as follows: A certificate containing the substance and effect only of the conviction for such first-mentioned principal offence purporting to be signed by the officer having the custody of the records of the court where the offender was convicted or by the deputy of such officer or by the officer for the time being acting in such first-mentioned capacity and setting forth that at the time of such conviction such previous convictions (at the places and times therein mentioned, for the offences therein specified or generally for indictable offences or offences punishable on summary conviction, as the case may be) were admitted by or proved against such offender may be given in evidence; such certificate shall (upon proof of the identity of the person against whom the same is given in evidence with the offender mentioned in the certificate as having been convicted of such first-mentioned principal offence) be sufficient evidence of the conviction of such person not only for such first-mentioned principal offence but also of the previous conviction or convictions therein mentioned without proof of the signature or official character of the person appearing to have signed the same; Or a certificate purporting to be signed by the governor or officer in charge of any prison or penal establishment or by the officer for the time being acting in that capacity and setting forth that the person therein mentioned underwent the whole or a portion of the sentence of imprisonment therein mentioned may be given in evidence; such certificate shall contain a copy of the record warrant or other authority under which such person was detained in such prison or penal establishment, and shall (upon proof of the identity of the person against whom the same is given in evidence with the offender mentioned in the certificate as having so undergone the whole or a portion of such sentence of imprisonment) be sufficient evidence not only of the conviction of such person for the crime for which such sentence of imprisonment appears from such certificate to have been awarded but also of the admission by or proof against such person immediately before such sentence was awarded of any previous conviction or convictions mentioned in such copy of the record warrant or other authority. Nothing in this section contained shall be construed to affect or alter the law with respect to the proper stage of the proceedings upon such indictment or presentment for proving any previous conviction therein averred. Crimes Act 1958 - SECT 402 Previous convictions to be noted in new sentence 402. Previous convictions to be noted in new sentence Where any person has been indicted or presented for committing any offence after a previous conviction or convictions or where a count or counts averring a previous conviction or convictions have been added as hereinbefore provided and such person has been convicted of such subsequent offence and such previous conviction or convictions or any of them have been admitted by or proved against him the fact that such previous conviction or convictions have been so admitted or proved and the date or dates thereof and the term or terms of imprisonment awarded therefor respectively shall be entered upon the minutes or record of such subsequent offence. * * * * * Crimes Act 1958 - SECT 404 Proof of marriage on trial for bigamy 404. Proof of marriage on trial for bigamy On the hearing before a magistrate of or on the trial of any person on a charge of having (during the life of his or her wife or husband) gone through the form or ceremony of marriage with some other person, the production of a copy of the register or other official record of a marriage or of an extract from such register or other official record shall on proof of the identity of such first-mentioned person be prima facie evidence of his or her marriage or of his or her having gone through the ceremony of marriage- (a) if such copy or extract is proved to be an examined copy or extract of or from the register or other official record of marriages kept in any portion of Her Majesty's dominions; or (b) if such copy or extract purports to be signed and certified as a true copy or extract by the officer to whose custody the original is intrusted, and if the facts that such officer is an officer intrusted with the custody of the original register or official record and that the signature thereto is the signature of such officer and that such register or other official record is an official record within the meaning of this Act purports to be certified to by a judge of a superior court or Governor or Administrator of the Government of that portion of Her Majesty's dominions in which such register or official record is kept. Crimes Act 1958 - SECT 405 Meaning of term official record 405. Meaning of term official record (1) For the purposes of the last preceding section, an official record of a marriage shall be such record of marriages as is required by law to be kept, or as is made by law evidence of marriages celebrated in that portion of Her Majesty's dominions in which the same is kept. (2) Nothing in this or the last preceding section shall apply to the proof of a marriage celebrated or of a ceremony of marriage performed in Victoria. * * * * * Crimes Act 1958 - SECT 409 No need to prove specific intent to defraud in trials relating to instruments 409. No need to prove specific intent to defraud in trials relating to instruments On the trial of any indictment or presentment for any offence against Division three of Part I it shall not be necessary to prove an intent on the part of the accused to injure any particular person; but it shall be sufficient to prove that the accused did the act charged with an intent to injure. * * * * * Crimes Act 1958 - SECT 411 Determination of age 411. Determination of age Where for the purposes of this Act it is necessary for any judge or jury or for the Magistrates' Court to determine the age of any person such judge or jury or court shall determine such age as he they or it may be best able having regard to the evidence or if there is no other sufficient evidence to the appearance of such person. Crimes Act 1958 - SECT 412 Prisoners entitled to inspect depositions on trial29 412. Prisoners entitled to inspect depositions on trial29 All persons under trial shall be entitled at the time of their trial to inspect without fee or reward all depositions which have been taken against them and delivered in manner by law required to the proper officer of the court before which such trial is had or copies of such depositions. Crimes Act 1958 - SECT 413 Depositions taken on one charge may be read in prosecution of others 413. Depositions taken on one charge may be read in prosecution of others Depositions taken and statements referred to in clause 6(1) of Schedule 5 to the Magistrates' Court Act 1989 that are admitted in evidence in the preliminary or other investigation of any charge against any person may be read as evidence in the prosecution of the same or any other offence whatsoever upon the like proof and in the same manner in all respects as they may according to law be read in the prosecution of the offence with which such person was charged when such depositions were taken or such statements were so admitted as evidence. Crimes Act 1958 - SECT 414 Subpoenas in criminal cases may be issued by sheriffs etc. 414. Subpoenas in criminal cases may be issued by sheriffs etc. Every sheriff and every deputy sheriff may issue subpoenas ad testificandum and subpoenas duces tecum in any criminal case to be tried at the Supreme Court. Every such subpoena shall be sealed by the sheriff or deputy sheriff issuing the same, and every person served with any such subpoena shall be liable and subject to the like penalties for disobedience thereof as if the same had been issued out of the Supreme Court. Crimes Act 1958 - SECT 415 Issue of warrant when witness does not appear 415. Issue of warrant when witness does not appear (1) Whenever- (a) any person has been bound over to appear and give evidence or to appear for the purpose of producing documents on any trial before the Supreme Court or before the County Court; or (b) a subpoena ad testificandum subpoena duces tecum or summons has been issued for the attendance of any person on any trial before the Supreme Court or the County Court and a copy thereof has been duly served upon such person, and a reasonable sum of money has been paid or tendered to him for his costs and expenses in that behalf- the Supreme Court or the County Court may if such person neglects or refuses to attend issue its warrant to apprehend such person, and may also order any such person to pay a fine not exceeding 5 penalty units, but no such fine shall exempt such person from any other proceedings for disobeying such subpoena or summons. (1A) Whenever it is proved to the satisfaction of the Supreme Court or the County Court (as the case requires)- (a) that any person referred to in paragraph (a) or paragraph (b) in subsection (1) is likely to absent himself from the trial; or (b) that any person for whose attendance on a trial a subpoena ad testificandum subpoena duces tecum or summons has been issued is keeping out of the way to avoid service thereof- the court may issue its warrant to apprehend such person, and may also order any such person to pay a fine not exceeding 5 penalty units, but no such fine shall exempt such person from any other proceedings for disobeying such subpoena or summons. (2) When a witness has been apprehended under a warrant as hereinbefore provided any bail justice may discharge such witness upon his entering into a recognisance with or without sureties at the discretion of such bail justice conditioned for his appearance at the time and place mentioned in the said warrant. (15) Amendments and errors30 Crimes Act 1958 - SECT 416 Amendments in criminal proceedings 416. Amendments in criminal proceedings In or in connexion with criminal proceedings all powers of amendment reform or correction existing at the time of the commencement of the Imperial Acts Application Act 1922 may notwithstanding any repeal effected thereby be exercised and acted upon as if the said Act had not been passed and no judgment plea record process warrant panel or return shall be affected by any mere rasure interlineation addition subtraction diminution or literal error therein and in affirmance of any judgment any such defect may be amended reformed or corrected. (16) Summing up Crimes Act 1958 - SECT 417 Rights of prosecution on trials before juries 417. Rights of prosecution on trials before juries (1) Upon every trial before a jury for an indictable offence the prosecution shall be allowed to address the jury a second time in support of its case for the purpose of summing up the evidence but the time at which it shall be entitled to exercise that right shall in all cases be after the close of all evidence and before the closing speech, if any, by or on behalf of the accused31. (2) The prosecution shall not be entitled to any further or other right of reply upon the ground that the Attorney-General or the Solicitor-General or a legal practitioner representing either of them appears for the prosecution at the trial nor upon any other ground. (3) Notwithstanding anything in this section if, in the closing speech by or on behalf of the accused, relevant facts are asserted which are not supported by any sworn evidence that is before the jury, the presiding judge may grant leave to the prosecution to make a supplementary submission to the jury confined to replying to such assertion32. (17) Statements by prisoners Crimes Act 1958 - SECT 418 Procedure for evidence by accused 418. Procedure for evidence by accused Upon every trial before a jury for an indictable offence- (a) where the only witness called by the defence is the accused he shall be called as a witness immediately after the close of the evidence for the prosecution; * * * * * (c) in cases not falling within (a)33- (i) the accused may be called as a witness at such stage as he may think fit after the close of the evidence for the prosecution and either before or after the opening, if any, to the jury of the evidence of any witnesses to be called on his behalf34; (ii) the accused or, where the accused is defended by a legal practitioner, the accused's legal practitioner, is entitled35- A. to open to the jury the evidence of any witness to be called in support of the defence (including, where the accused is defended by a legal practitioner, the evidence of the accused)36; and B. when all the evidence, if any, for the defence and the final address, if any, for the prosecution have been concluded, to address the jury for the purpose of summing up the evidence37; (d) for the purpose of enabling him to determine the proper course of the proceedings the presiding judge shall, at the close of the case for the prosecution, question the accused's legal practitioner or, if he is unrepresented, the accused himself, as to what course the defence proposes to follow: and except by leave of the court the defence shall not be presented in any manner other than that of which the court has been advised in response to such questioning. * * * * * (18) View Crimes Act 1958 - SECT 419 View 419. View The court may in any case if it thinks fit at any time before the jury have given their verdict direct that they shall view any place or thing which the court thinks it desirable that they should see and may give any directions necessary for that purpose. The validity of the proceedings shall not be affected by disobedience to any such directions, but if the fact is discovered before the verdict is given the court may if it thinks fit discharge the jury and direct that a new trial shall take place during the same sitting or may postpone the trial as provided by section three hundred and sixty. (19) Verdicts. Attempts, &c. * * * * * Crimes Act 1958 - SECT 420A Where person charged with unlawful publication of defamatory matter 420A. Where person charged with unlawful publication of defamatory matter On the trial of a person charged with the unlawful publication of defamatory matter- (a) the jury may give a general verdict of guilty or not guilty upon the whole matter in issue, in like manner as in other cases; and (b) the question whether any matter alleged to be defamatory is or is not capable of a defamatory meaning is a question of law. Crimes Act 1958 - SECT 421 Alternative verdicts on charge of murder 421. Alternative verdicts on charge of murder (1) On an indictment or presentment for murder a person found not guilty of murder may be found guilty of- (a) manslaughter; (ab) child homicide; (b) any offence of which he may be found guilty under an enactment specifically so providing; (c) an offence against section 325; or (d) an attempt to commit murder or an attempt to commit any offence of which he may by virtue of this subsection be found guilty- but may not be found guilty of any other offence. (2) Where, on a person's trial on indictment or presentment for any offence except treason or murder, the jury find him not guilty of the offence specifically charged therein, but the allegations in the indictment or presentment amount to or include (expressly or by necessary implication) an allegation of another offence falling within the jurisdiction of the court of trial, the jury may find him guilty of that other offence. (3) For the purposes of subsection (2), any allegation of an offence shall be taken as including an allegation of an attempt to commit that offence. (4) Notwithstanding anything in this section, where at the trial of a person on indictment or presentment for an offence the judge considers that in the interest of justice it is expedient for the judge to do so, the judge may order that the guilt of the person in respect of all or any of the other offences of which the person may by virtue of this section be found guilty shall not be determined at the trial. Crimes Act 1958 - SECT 422 Procedure where facts proved on trial disclose more serious offence 422. Procedure where facts proved on trial disclose more serious offence (1) Where on the trial of a person for an indictable offence it appears that the facts in evidence amount in law to another indictable offence carrying a heavier penalty, he shall not for that reason be entitled to be acquitted of the offence charged and, subject to subsection (3), shall not be liable to be prosecuted afterwards for the other offence. (2) Where on the trial of a person on indictment or presentment for attempting to commit an offence or any assault or other act preliminary to an offence it appears that the facts in evidence amount in law to the completed offence, the person shall not for that reason be entitled to be acquitted of the offence charged and, subject to subsection (3), shall not be liable to be prosecuted afterwards for the completed offence. (3) Notwithstanding subsections (1) and (2), in a case to which either of those subsections applies the trial judge may if he thinks fit in his discretion discharge the jury from giving any verdict and direct the person to be presented for the other indictable offence or the completed offence, as the case may be. Crimes Act 1958 - SECT 422A Alternative verdict for certain charges relating to driving 422A. Alternative verdict for certain charges relating to driving (1) If on the trial of a person charged with an offence against section 318 (culpable driving causing death) the jury are not satisfied that he or she is guilty of the offence charged but are satisfied that he or she is guilty of an offence against section 319(1) (dangerous driving causing death), the jury may acquit the accused of the offence charged and find him or her guilty of the offence against section 319(1) and he or she is liable to punishment accordingly. (1A) If on the trial of a person charged with an offence against section 24 (negligently causing serious injury) the jury are not satisfied that he or she is guilty of the offence charged but are satisfied that he or she is guilty of an offence against section 319(1A) (dangerous driving causing serious injury), the jury may acquit the accused of the offence charged and find him or her guilty of the offence against section 319(1A) and he or she is liable to punishment accordingly. (2) This section does not restrict the operation of section 421 or 422. Crimes Act 1958 - SECT 423 Jury may acquit of indictable offence and convict of unlawfully wounding etc. 423. Jury may acquit of indictable offence and convict of unlawfully wounding etc. Where on the trial of any person for any indictable offence except murder, manslaughter, child homicide or defensive homicide the indictment or presentment alleges that the defendant did wound any person or did cause grievous bodily harm to any person and the jury are satisfied that the defendant is guilty of the wounding or of inflicting the grievous bodily harm charged in such indictment or presentment but are not satisfied that the defendant is guilty of the indictable offence charged they may acquit him of such indictable offence and find him guilty of unlawfully wounding or of inflicting grievous bodily harm (as the case may be); and he shall be liable to punishment accordingly. Crimes Act 1958 - SECT 424 Alternative verdict on poisoning charge 424. Alternative verdict on poisoning charge Where on the trial of a person for the indictable offence of unlawfully and maliciously administering poison so as thereby to endanger life or for any other indictable offence mentioned in section twenty-two of this Act the jury are not satisfied that the accused is guilty thereof but are satisfied that he is guilty of any indictable offence mentioned in section twenty-three they may acquit him of the offence charged and find him guilty of the offence against section 23; and he shall be liable to punishment accordingly. Crimes Act 1958 - SECT 425 Alternative verdicts for certain charges of sexual offences 425. Alternative verdicts for certain charges of sexual offences (1) If on the trial of a person charged with rape the jury are not satisfied that he or she is guilty of rape or of an attempt to commit rape but are satisfied that he or she is guilty of- (a) assault with intent to commit rape; or (b) an offence against section 39 (indecent assault); or (c) assault with intent to commit an offence against section 45(1) (sexual penetration of child under the age of 16); or * * * * * (e) an offence against section 47(1) (indecent act with child under the age of 16); or (f) an offence against section 18 (causing injury intentionally or recklessly)- the jury may acquit the accused of rape and find him or her guilty of whichever of those offences they are satisfied he or she is guilty and he or she is liable to punishment accordingly. * * * * * (3) If on the trial of a person charged with an offence against section 44 or 45(1) the jury are not satisfied that he or she is guilty of the offence charged or of an attempt to commit the offence charged but are satisfied that he or she is guilty of- (a) assault with intent to commit the offence charged; or (b) an offence against section 47(1) (indecent act with child under the age of 16); or (c) an offence against section 18 (causing injury intentionally or recklessly)- the jury may acquit the accused of the offence charged and find him or her guilty of whichever of those offences they are satisfied that he or she is guilty and he or she is liable to punishment accordingly. (4) This section does not restrict the operation of section 421 or 422. Crimes Act 1958 - SECT 426 Alternative verdict for identity crime offences 426. Alternative verdict for identity crime offences If, on the trial of a person charged with an offence against section 192B, the jury are not satisfied that the person charged is guilty of the offence charged but are satisfied that the person charged is guilty of an offence against section 192C, the jury may acquit the person charged of the offence charged and find the person charged guilty of an offence against section 192C and the person charged is liable to punishment accordingly. Crimes Act 1958 - SECT 427 Alternative verdict for destroying property charges 427. Alternative verdict for destroying property charges (1) Where a person is charged with committing an offence against section 197(2) or section 197(3) and the jury are not satisfied that he is guilty of that offence but are satisfied that he is guilty of an offence against section 197(1), the jury may return as their verdict that he is not guilty of the offence charged but is guilty of the offence against section 197(1). (2) If on the trial of a person charged with an offence against section 197A the jury are not satisfied that he or she is guilty of the offence charged but are satisfied that he or she is guilty of an offence against section 197, the jury may acquit the accused of the offence charged and find him or her guilty of whichever of the offences against section 197 they are satisfied that he or she is guilty of and he or she is liable to punishment accordingly. Crimes Act 1958 - SECT 428 Alternative verdict for charges of unauthorised modification of data to cause impairment 428. Alternative verdict for charges of unauthorised modification of data to cause impairment If on the trial of a person charged with an offence against section 247C the jury are not satisfied that he or she is guilty of the offence charged but are satisfied that he or she is guilty of- (a) an offence under section 197(1); or (b) an offence under section 247D- the jury may acquit the accused of the offence charged and find him or her guilty of whichever of those offences they are satisfied that he or she is guilty and he or she is liable to punishment accordingly. Crimes Act 1958 - SECT 429 Alternative verdict for charges of unauthorised impairment of electronic communication 429. Alternative verdict for charges of unauthorised impairment of electronic communication If on the trial of a person charged with an offence against section 247D the jury are not satisfied that he or she is guilty of the offence charged but are satisfied that he or she is guilty of- (a) an offence under section 197(1); or (b) an offence under section 247C- the jury may acquit the accused of the offence charged and find him or her guilty of whichever of those offences they are satisfied that he or she is guilty and he or she is liable to punishment accordingly. * * * * * Crimes Act 1958 - SECT 435 Alternative verdict for charges relating to riots 435. Alternative verdict for charges relating to riots Where on the trial of a person for any offence against section 206(1) the jury are not satisfied that he is guilty of the offence charged but are satisfied that he is guilty of an offence against section 206(2), the jury may return as their verdict that he is not guilty of the offence charged but is guilty of the offence against section 206(2); and he shall be liable to punishment accordingly. * * * * * * * * * * (20) Records after amendment Crimes Act 1958 - SECT 436 Records to be drawn up in amended form 436. Records to be drawn up in amended form If it becomes necessary at any time for any purpose to draw up a formal record in any case where any amendment has been made under this Act,38 such record shall be drawn up in the form in which the indictment or presentment was after such amendment was made without taking any notice of the fact of such amendment having been made. (21) Judgments Crimes Act 1958 - SECT 437 Judgment not to be reversed because juror not returned as a juror 437. Judgment not to be reversed because juror not returned as a juror No judgment after verdict in respect of any indictable offence shall be stayed or reversed because any person has served upon the jury who has not been returned as a juror by the Juries Commissioner or other officer. * * * * * Crimes Act 1958 - SECT 439 Payment of fine forwarded to Prothonotary 439. Payment of fine forwarded to Prothonotary * * * * * (6) The officer in charge of a prison shall, on receiving payment of or towards a fine, forthwith pay the amount received to the Prothonotary or to the registrar of the County Court or the appropriate registrar of the Magistrates' Court (as the case requires). (7) For the purposes of this section Prothonotary includes Deputy Prothonotary. (22) Restitution of property stolen &c. * * * * * * * * * * Crimes Act 1958 - SECT 443A DPP may give directions for release of property tendered in evidence 443A. DPP may give directions for release of property tendered in evidence (1) Where property is tendered in evidence during a preliminary examination for an indictable offence and some accused person is committed for trial for an offence with respect to the property the Director of Public Prosecutions, upon application made to him in writing, may give directions in writing that the property be released to the applicant. (2) The release of property under subsection (1) may be subject to a condition that the property released shall be produced at the trial and to such other conditions as the Director of Public Prosecutions thinks fit. (3) The Director of Public Prosecutions may require a person to whom property is released under this section to give an undertaking to comply with the conditions to which the release is subject and any person who fails without reasonable cause to comply with an undertaking given by him shall be guilty of a summary offence and liable to a level 10 fine (10 penalty units maximum). (4) Directions given under subsection (1) shall not affect the legal title to the property or any legal right to possession of the property. (5) The Director of Public Prosecutions shall not be subject to any liability for or with respect to any directions given by him under subsection (1). (23) Procedure on disagreement of jury Crimes Act 1958 - SECT 444 Procedure on disagreement of jury 444. Procedure on disagreement of jury Where on the trial of a person for any offence the jury after six hours deliberation are unable to agree on their verdict and the jury are discharged from giving a verdict the court may direct that a new trial shall take place during the same sitting or may postpone the trial as provided by section three hundred and sixty. (24) Power to commit for perjury Crimes Act 1958 - SECT 445 Any court or judge may direct that a person be prosecuted for perjury 445. Any court or judge may direct that a person be prosecuted for perjury The Supreme Court or the County Court or a judge of any court of record or the Magistrates' Court, or the sheriff or his lawful deputy before whom any inquiry or trial is held which the said sheriff or deputy is by law required or authorized to hold, in case it appears to him or it that any person has been guilty of wilful and corrupt perjury in any evidence given or in any affidavit deposition examination answer or other proceeding made or taken before him or it, may direct such person to be tried for such perjury at some sittings of the Supreme Court or the County Court and may commit such person to gaol in the meantime or may admit him to bail to appear at his trial or grant such bail; and may require any person he or it thinks fit to enter into a recognisance conditioned to appear or to appear and give evidence against such person so directed to be tried as aforesaid. (25) Crown cases reserved Crimes Act 1958 - SECT 446 Questions of law may be reserved 446. Questions of law may be reserved (1) If on the trial of any person convicted of any indictable offence in or before the Supreme Court or the County Court or on the hearing of any appeal in a criminal proceeding to the County Court from the Magistrates' Court any question of difficulty in point of law has arisen, the court may in its discretion reserve such question of law for the consideration and determination of the Court of Appeal39; and in any such case the court may respite the execution of the judgment on such conviction or postpone the judgment until such question of law has been considered and determined; and in either case the court in its discretion shall commit the person convicted to prison, or shall admit him to bail to appear before the court at such time or times and place as the court directs and receive judgment or render himself into custody as the case may be. (2) If on the trial of an accused person in the Supreme Court or the County Court, a question of difficulty in point of law arises before a jury is empanelled, the court may, on application by the accused, determine that the question of law is such that its determination could render the conduct of the trial unnecessary and reserve the question of law for the consideration and determination of the Court of Appeal40. (3) If a court reserves a question of law under subsection (2), the court must adjourn the trial until the question of law has been considered and determined by the Court of Appeal41 and may commit the accused to prison or admit him or her to bail to appear before the court at the time and place that the court directs. Crimes Act 1958 - SECT 447 Case to be stated 447. Case to be stated (1) The court by which such question of law has been so reserved shall thereupon state a case, setting forth the question or questions of law which has or have been so reserved with the special circumstances upon which the same has arisen and shall sign and transmit the same within a reasonable time to the Court of Appeal; and the Court of Appeal shall have power to hear and finally determine the said question or questions, and thereupon, in the case of a question of law reserved under section 446(2), to remit the question and the determination of the Court of Appeal back to the court which reserved the question or, in any other case, to affirm or quash a conviction or to affirm amend or reverse any judgment which has been given and in case of quashing any conviction or reversing any judgment to direct a new trial to be had, or order an entry to be made on the record that in the judgment of the Court of Appeal the party convicted ought not to have been convicted, or to direct judgment to be given thereon at some other session of the Supreme Court or the County Court if no judgment has been before then given, or to make such other order as justice may require: Provided that the Court of Appeal notwithstanding that it is of opinion that any question reserved should be answered in favour of the person convicted may refrain from quashing the conviction or reversing the judgment if it considers that no substantial miscarriage of justice has actually occurred. In case a new trial is directed and the person convicted is in custody the Court of Appeal may make such order as to bail as it thinks fit. The judgment and order (if any) of the Court of Appeal and an office copy thereof shall be delivered or transmitted by the Registrar of the Court of Appeal to the associate or registrar as the case may be, who shall enter the same on the original record in proper form42, 43. (2) The said associate or registrar shall if the accused person is in custody forthwith deliver or transmit to the sheriff or officer in charge of the prison such office copy which shall be a sufficient warrant to such sheriff or officer in charge of the prison and all other persons for the execution of the judgment as the same has been affirmed or amended, and execution shall be thereupon executed upon such judgment; and for the discharge of the person convicted from further imprisonment under the judgment if it has been reversed and in that case such sheriff or officer in charge of the prison shall forthwith discharge him from such imprisonment provided that if a new trial is directed such person may unless released on bail be detained in safe custody to await such new trial. (3) If the Court of Appeal has reversed a judgment and has not directed a new trial the bail (if any) given under the last preceding section shall be vacated by the Supreme Court or the County Court as the case may be; and if the Supreme Court or the County Court is directed to give judgment, the said court shall proceed to give judgment at the session directed by the Court of Appeal, and if no such session has been directed may give such judgment at a session held at any place at which the court sits and at which the person convicted is bound to appear or at any court at which he does appear44. Crimes Act 1958 - SECT 448 Case may be sent back for amendment 448. Case may be sent back for amendment The Court of Appeal when a case has been reserved for its opinion shall have power if it thinks fit to cause the case to be sent back for amendment; and thereupon the same shall be amended accordingly and the judgment of the Court of Appeal shall be delivered after it has been amended45. Crimes Act 1958 - SECT 449 Refusal of Court to reserve a question of law46 449. Refusal of Court to reserve a question of law46 When the Supreme Court or the County Court refuses to reserve any question of law under the provisions of this Act the applicant may apply to the Court of Appeal for a rule or order nisi calling on that Court and also upon the Director of Public Prosecutions to show cause why such question should not be reserved for the opinion of the Court of Appeal, and the Court of Appeal may make the same absolute or discharge it with or without costs as it thinks proper. Crimes Act 1958 - SECT 450 Court to state case upon being served with order absolute 450. Court to state case upon being served with order absolute The Court upon being served with any such rule or order absolute shall reserve such question of law accordingly for the opinion of the Court of Appeal47; and thereupon the procedure defined by sections four hundred and forty-six four hundred and forty-seven and four hundred and forty-eight shall with any necessary modifications become applicable as if that Court had consented to reserve such question of law. Crimes Act 1958 - SECT 450A Director of Public Prosecutions may refer point of law to Court of Appeal48 450A. Director of Public Prosecutions may refer point of law to Court of Appeal48 (1) Where a person tried on an indictment or presentment or who has appealed to the County Court from the Magistrates' Court in a criminal proceeding has been acquitted (whether in respect of the whole or part of the indictment or presentment or charge) the Director of Public Prosecutions may, if he desires the opinion of the Court of Appeal on a point of law which has arisen in the case, refer the point of law to the Court of Appeal, and the Court of Appeal shall, in accordance with this section, consider the point of law and give its opinion on it. (2) For the purpose of its consideration of a point referred to it under this section the Court of Appeal shall hear argument- (a) by the Director of Public Prosecutions or by a legal practitioner on his behalf; and (b) where the acquitted person desires to present any argument before the court, by a legal practitioner on his behalf or, with the leave of the court, by the acquitted person himself. (3) Where on a point of law referred to the Court of Appeal under this section an acquitted person appears in person or by a legal practitioner on his behalf pursuant to paragraph (b) of subsection (2), he shall be entitled to reasonable costs as settled by the Taxing Master. (4) A reference under this section shall not in any way affect the trial in relation to which the reference is made or any acquittal in that trial. (26) Costs * * * * * Crimes Act 1958 - SECT 453 Scale of charges 453. Scale of charges The court may establish a scale of fees and charges for the conduct of business in the criminal jurisdiction of such court; and the Taxing Master of the Court shall subject to any direction given by the court assess and allow all bills of costs according to such scale as far as the same applies; and for all business not comprehended within the said scale the like fees and charges shall be allowed as are sanctioned by the court for the conduct of the civil business of the said court. (27) Court fees not payable by defendants Crimes Act 1958 - SECT 454 Court fees not payable by defendants 454. Court fees not payable by defendants It shall not be lawful to receive any court fees for the issuing of process on behalf of a person charged with an indictable offence in any court; nor to receive a fee from any such person for taking a recognisance of bail or issuing any writ or recording any appearance or plea to any indictment or presentment or discharging any recognisance. (28) No certiorari. Warrants not void for defects Crimes Act 1958 - SECT 455 Presentments not to be removed by certiorari 455. Presentments not to be removed by certiorari (1) No presentment or indictment in the County Court shall be removed by writ of certiorari into the Supreme Court. (2) No summary conviction under this Act and no adjudication made on appeal therefrom to the County Court shall be quashed for want of form, or be removed by certiorari into the Supreme Court; and no warrant of commitment shall be held void by reason of any defect therein, provided it is therein alleged that the party has been convicted and there is a good and valid conviction to sustain the same. (29) Actions Crimes Act 1958 - SECT 456 Provisions as to action against persons acting in pursuance of Act 456. Provisions as to action against persons acting in pursuance of Act (1) No plaintiff shall recover in any civil proceeding against any person or anything done in pursuance of this Act if a tender of sufficient amends was made before the civil proceeding was brought or if a sufficient offer of compromise is made on behalf of the defendant after the civil proceeding is brought. (2) If a verdict passes for the defendant or the plaintiff discontinues the civil proceeding after issue joined, or if judgment is given against the plaintiff, the defendant shall recover costs as between solicitor and client. (29A) Giving name and address on demand Crimes Act 1958 - SECT 456AA Requirement to give name and address 456AA. Requirement to give name and address (1) A member of the police force may request a person to state his or her name and address if the member believes on reasonable grounds that the person- (a) has committed or is about to commit an offence, whether indictable or summary; or (b) may be able to assist in the investigation of an indictable offence which has been committed or is suspected of having been committed. (2) A member of the police force who makes a request under subsection (1) must inform the person of the grounds for his or her belief in sufficient detail to allow the person to understand the nature of the offence or suspected offence. (3) A person who, in response to a request made by a member of the police force in accordance with this section- (a) refuses or fails to comply with the request; or (b) states a name that is false in a material particular; or (c) states an address other than the full and correct address of his or her ordinary place of residence or business- is guilty of a summary offence punishable on conviction by a level 11 fine (5 penalty units maximum). (4) A person who is requested by a member under subsection (1) to state his or her name and address may request the member to state, orally or in writing, his or her name, rank and place of duty. (5) A member of the police force who, in response to a request under subsection (4)- (a) refuses or fails to comply with the request; or (b) states a name or rank that is false in a material particular; or (c) states as his or her place of duty an address other than the name of the police station which is the member's ordinary place of duty; or (d) refuses to comply with the request in writing if requested to do so- is guilty of a summary offence punishable on conviction by a level 11 fine (5 penalty units maximum). * * * * * (30) Apprehension of offenders Crimes Act 1958 - SECT 457 No person to be arrested without warrant except under this Act etc. 457. No person to be arrested without warrant except under this Act etc. After the commencement of the Crimes (Powers of Arrest) Act 1972 no person shall be arrested without warrant except pursuant to the provisions of- (a) this Act; or (b) some other Act expressly giving power to arrest without warrant. Crimes Act 1958 - SECT 458 Person found committing offences may be arrested without warrant by any person 458. Person found committing offences may be arrested without warrant by any person (1) Any person, whether a member of the police force or not, may at any time without warrant apprehend and take before a bail justice or the Magistrates' Court to be dealt with according to law or deliver to a member of the police force to be so taken, any person- (a) he finds committing any offence (whether an indictable offence or an offence punishable on summary conviction) where he believes on reasonable grounds that the apprehension of the person is necessary for any one or more of the following reasons, namely- (i) to ensure the appearance of the offender before a court of competent jurisdiction; (ii) to preserve public order; (iii) to prevent the continuation or repetition of the offence or the commission of a further offence; or (iv) for the safety or welfare of members of the public or of the offender; (b) when instructed so to do by any member of the police force having power under this Act to apprehend that person; or (c) he believes on reasonable grounds is escaping from legal custody or aiding or abetting another person to escape from legal custody or avoiding apprehension by some person having authority to apprehend that person in the circumstances of the case. (2) For the purposes of paragraph (a) in subsection (1) offence means offence at common law or a contravention of or failure to comply with a provision of an Act of Parliament and unless otherwise by Act of Parliament expressly provided does not include a contravention of or failure to comply with a rule regulation by-law or other law made under an Act of Parliament. (3) A person who has been apprehended without warrant pursuant to the provisions of paragraph (a) in subsection (1) in respect of any offence punishable on summary conviction (not being an indictable offence punishable summarily) and taken into custody shall be held in the custody of the person apprehending him only so long as any reason referred to in the said paragraph for his apprehension continues and where, before that person is charged with an offence, it appears to the person arresting that person that the reason no longer continues the person arresting that other person shall, without any further or other authority than this subsection, release that person from custody without bail or cause him to be so released and whether or not a summons has been issued against him with respect to the offence alleged. Crimes Act 1958 - SECT 459 Powers of member of police force to apprehend offenders 459. Powers of member of police force to apprehend offenders In addition to exercising any of the powers conferred by section 458 or by or under any other Act a member of the police force may at any time without warrant apprehend any person- (a) he believes on reasonable grounds has committed an indictable offence in Victoria (including any indictable offence which may be heard or determined summarily); or (b) he believes on reasonable grounds has committed an offence elsewhere which if committed in Victoria would be an indictable offence against the law of Victoria (including any indictable offence which may be heard or determined summarily). Crimes Act 1958 - SECT 459A Entry and search of premises 459A. Entry and search of premises (1) A member of the police force may, for the purpose of arresting under section 458 or 459 or any other enactment a person whom he- (a) believes on reasonable grounds- (i) to have committed in Victoria a serious indictable offence; (ii) to have committed an offence elsewhere which if committed in Victoria would be a serious indictable offence; or (iii) to be escaping from legal custody; or (b) finds committing a serious indictable offence- enter and search any place where the member of the police force on reasonable grounds believes him to be. (2) In order to enter a place pursuant to subsection (1), a member of the police force may, if it is necessary to do so, use reasonable force. (3) In this section serious indictable offence has the same meaning as it has in section 325. * * * * * Crimes Act 1958 - SECT 461 Arrest on reasonable grounds not to be taken to be unlawful 461. Arrest on reasonable grounds not to be taken to be unlawful (1) Where an apprehension is made under a belief on reasonable grounds in accordance with the provisions of section 458 or section 459 the apprehension shall not cease to be lawful or be taken to be unlawful where it subsequently appears or is found that the person apprehended did not commit the offence alleged. (2) A member of the police force shall not be bound to take into custody or to take before a bail justice or the Magistrates' Court any person found committing an offence if such member believes on reasonable grounds that proceedings can effectively be brought against that person by way of summons. Crimes Act 1958 - SECT 462 Definition of finds committing 462. Definition of finds committing In this Act the expression finds committing and any derivative thereof extends to the case of a person found doing any act or so behaving or conducting himself or in such circumstances that the person finding him believes on reasonable grounds that the person so found is guilty of an offence. Crimes Act 1958 - SECT 462A Use of force to prevent the commission of an indictable offence 462A. Use of force to prevent the commission of an indictable offence A person may use such force not disproportionate to the objective as he believes on reasonable grounds to be necessary to prevent the commission, continuance or completion of an indictable offence or to effect or assist in effecting the lawful arrest of a person committing or suspected of committing any offence. * * * * * Crimes Act 1958 - SECT 463A Arrest of offenders on board aircraft 463A. Arrest of offenders on board aircraft (1) The person in command of an aircraft may, on board the aircraft, with such assistance as is necessary, arrest without warrant a person whom he finds committing, or reasonably suspects of having committed, or of having attempted to commit, an offence on or in relation to or affecting the use of an aircraft and that person in command or a person authorized by him may hold the person so arrested in custody until he can be brought before a bail justice or the Magistrates' Court or other proper authority to be dealt with in accordance with law. (2) The person in command of an aircraft may, where he considers it necessary so to do in order to prevent an offence on or in relation to or affecting the use of an aircraft or to avoid danger to the safety of the aircraft or of persons on board the aircraft, with such assistance as he thinks necessary- (a) place a person who is on board the aircraft under restraint or in custody; and (b) if the aircraft is not in the course of a flight-remove a person from the aircraft. Crimes Act 1958 - SECT 463B Prevention of suicide 463B. Prevention of suicide Every person is justified in using such force as may reasonably be necessary to prevent the commission of suicide or of any act which he believes on reasonable grounds would, if committed, amount to suicide. * * * * * (30A) Custody and investigation49 Crimes Act 1958 - SECT 464 Definitions 464. Definitions (1) For the purposes of this Subdivision a person is in custody if he or she is- (a) under lawful arrest by warrant; or (b) under lawful arrest under section 458 or 459 or a provision of any other Act; or (c) in the company of an investigating official and is- (i) being questioned; or (ii) to be questioned; or (iii) otherwise being investigated- to determine his or her involvement (if any) in the commission of an offence if there is sufficient information in the possession of the investigating official to justify the arrest of that person in respect of that offence. (2) In this Subdivision- appropriate authority means- (a) in relation to the Commonwealth or the Australian Capital Territory-the Commissioner (within the meaning of section 23WA of the Crimes Act 1914 of the Commonwealth) of the Australian Federal Police or any other prescribed authority; or (b) in relation to any other participating jurisdiction-an authority exercising, in relation to the police force of that jurisdiction, functions corresponding to those of the Chief Commissioner of Police or any other prescribed authority; approved mental health service has the same meaning as in the Mental Health Act 1986; authorised person means a person appointed as an authorised person under subsection (3)50; compulsory procedure means the taking of an intimate or non-intimate sample or the conduct of a physical examination; corresponding law means a law relating to the carrying out of forensic procedures and DNA databases that- (a) substantially corresponds to this Subdivision; or (b) is prescribed for the purposes of this definition; crime scene index means an index of DNA profiles derived from forensic material found or other material found- (a) at any place (whether within or outside Victoria) where an offence (whether under the law of Victoria or of a participating jurisdiction) was, or is reasonably suspected of having been, committed; or (b) on the victim of the offence or on anything reasonably believed to have been worn or carried by the victim when the offence was committed; or (c) on an object or person reasonably believed to have been associated with the commission of the offence; CrimTrac means the CrimTrac Agency, established as an Executive Agency by the Governor-General by order under section 65 of the Public Service Act 1999 of the Commonwealth; dentist means a dentist registered under the Health Professions Registration Act 2005; detained or protected person means a person who- (a) is held in a prison, police gaol, youth justice centre or youth residential centre; or (b) is held in an institution within the meaning of section 56 of the Corrections Act 1986; or (c) is a security resident within the meaning of the Disability Act 2006; or (d) is an involuntary or security patient within the meaning of the Mental Health Act 1986; DNA database means- (a) the Victorian DNA database; or (b) NCIDD; or (c) another DNA database system that is kept under a corresponding law of a participating jurisdiction; DNA database system means a database (whether in computerised or other form and however described) containing- (a) one or more of the following indexes of DNA profiles- (i) a crime scene index; (ii) a missing persons index; (iii) an unknown deceased persons index; (iv) a serious offenders index; (v) a volunteers (unlimited purposes) index; (vi) a volunteers (limited purposes) index; (vii) a suspects index- and information that may be used to identify the person from whose forensic material each DNA profile was derived; and (b) a statistical index; and (c) any other prescribed index; fingerprints includes finger, palm, toe and sole prints51; fingerscan means fingerprints taken by means of a device to obtain a record of the fingerprints; Example Fingerprints may be taken by a scanning device to obtain a digital record of the fingerprints. forensic material means any material- (a) from which a DNA profile may be derived; and (b) which is obtained from samples taken or procedures conducted in accordance with this Subdivision- but does not include a sample taken for the sole purpose of establishing the identity of the person from whom it is taken; forensic procedure means the taking of a sample from any part of the body, whether an intimate or non-intimate sample or any other type of sample, or the conduct of any procedure on or physical examination of the body but does not include the taking of a fingerprint; held in a prison, police gaol, youth justice centre or youth residential centre means52- (a) deemed by section 4 of the Corrections Act 1986 to be in the custody of the Secretary within the meaning of that Act; or (b) deemed by section 11(7) of the Corrections Act 1986 to be in the custody of the Chief Commissioner of Police; or (c) detained in a youth justice centre in the custody of the Secretary within the meaning of the Children, Youth and Families Act 2005; or (d) detained in a youth residential centre in the custody of the Secretary within the meaning of the Children, Youth and Families Act 2005; intimate part of the body means the genital or anal region of a male or female or the breast of a female; intimate sample means- (a) a blood sample; (b) a sample of pubic hair, including the root if required; (c) a swab, washing or sample taken from the external genital or anal region of a male or female or from the breast of a female; (d) a sample of saliva; (e) a scraping taken from the mouth; (f) a dental impression; investigating official means a member of the police force or a person appointed by or under an Act (other than a member or person who is engaged in covert investigations under the orders of a superior) whose functions or duties include functions or duties in respect of the prevention or investigation of offences; * * * * * medical practitioner means a medical practitioner registered under the Health Professions Registration Act 2005; mental impairment includes impairment because of mental illness, intellectual disability, dementia or brain injury; missing persons index means an index of DNA profiles, derived from forensic material, of- (a) persons who are missing; and (b) volunteers who are relatives by blood of missing persons; National Criminal Investigation DNA Database means the DNA database system that- (a) is known as the National Criminal Investigation DNA Database; and (b) is managed by the Commonwealth; NCIDD means the National Criminal Investigation DNA Database; non-intimate part of the body means any part of the body other than an intimate part; non-intimate sample means- (a) a sample of hair, other than pubic hair, including the root if required; (b) a sample of matter taken from under a fingernail or toenail; (c) a swab, washing or sample taken from any external part of the body other than the genital or anal region of a male or female or the breast of a female; nurse means a nurse registered under the Health Professions Registration Act 2005; participating jurisdiction means the Commonwealth, another State or a Territory in which there is a corresponding law in force; physical examination means an examination of the external part of a person's body requiring touching of the person or removal of the person's clothing; police gaol has the same meaning as in the Corrections Act 1986; prison has the same meaning as in the Corrections Act 1986 but includes a youth justice centre established under section 478 of the Children, Youth and Families Act 2005; * * * * * related material and information- (a) in relation to any sample taken in a forensic procedure conducted in accordance with sections 464R to 464ZA or section 464ZF or 464ZFAAA, means notes and audiovisual recording made of the forensic procedure and any information which may identify the person contained in any record of or report relating to the forensic procedure and in any copy of a record or report; (b) in relation to any sample voluntarily given by a person in accordance with sections 464ZGB to 464ZGD, means notes and audiovisual recording (if any) made of the procedure to take the sample and any information which may identify the person contained in any record of or report relating to the taking of the sample and in any copy of a record or report; relevant suspect means a person of or above the age of 18 years who- (a) is suspected of having committed or attempted to commit an indictable offence against the person at common law or an indictable offence under Division 1 of Part I or under section 75, 75A, 76, 77, 197 (in circumstances where the offence is charged as arson), 197A, 249, 250, 251, 317, 317A or 318 or under section 71, 71AA, 72 or 72A of the Drugs, Poisons and Controlled Substances Act 1981 or under section 71, 72(1)(ab) or 72(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981 as in force immediately before the commencement of the Drugs, Poisons and Controlled Substances (Amendment) Act 2001; or (b) has been charged with an indictable offence against the person at common law or an indictable offence under Division 1 of Part I or under section 75, 75A, 76, 77, 197 (in circumstances where the offence is charged as arson), 197A, 249, 250, 251, 317, 317A or 318 or under section 71, 71AA, 72 or 72A of the Drugs, Poisons and Controlled Substances Act 1981 or under section 71, 72(1)(ab) or 72(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981 as in force immediately before the commencement of the Drugs, Poisons and Controlled Substances (Amendment) Act 2001; responsible Minister, in relation to a participating jurisdiction means a Minister of that jurisdiction who is responsible for administration of a corresponding law; responsible person, in relation to a DNA database, means the person responsible for the care, control and management of the system; security patient has the same meaning as in the Mental Health Act 1986; senior police officer means a member of the police force of or above the rank of senior sergeant; serious offenders index means an index of DNA profiles derived from forensic material taken from- (a) offenders in accordance with section 464ZF, or under a corresponding law of a participating jurisdiction; and (b) suspects who have been convicted of- (i) an offence and an order has been made under section 464ZFB(1); or (ii) an offence in respect of which a forensic procedure may be conducted under a corresponding law of a participating jurisdiction; * * * * * statistical index means an index of information that- (a) is obtained from the analysis of forensic material taken from persons in accordance with this Subdivision or under a corresponding law of a participating jurisdiction; and (b) has been compiled for statistical purposes; and (c) cannot be used to discover the identity of persons from whom the forensic material was taken; suspect means a person of or above the age of 18 years who53- (a) is suspected of having committed an offence; or (b) has been charged with an offence; or (c) has been summonsed to answer to a charge; suspects index means an index of DNA profiles derived from forensic material taken from suspects in accordance with section 464R, 464T or 464U or under a corresponding law of a participating jurisdiction or taken from persons found not guilty because of mental impairment in accordance with section 464ZFAAA; * * * * * unknown deceased persons index means an index of DNA profiles of deceased persons whose identities are unknown where the DNA profile is derived from forensic material; Victorian DNA database means the DNA database system kept under section 464ZFD; volunteer means a person who volunteers to give a sample under section 464ZGB; volunteers (limited purposes) index means an index of DNA profiles derived from forensic material taken from volunteers, under section 464ZGB or a corresponding law of a participating jurisdiction, who have chosen that the information obtained from analysis of the material may be used only for a limited purpose that is specified by the volunteer and noted on the index; volunteers (unlimited purposes) index means an index of DNA profiles derived from forensic material taken from volunteers, under section 464ZGB or a corresponding law of a participating jurisdiction, who have chosen that the information obtained from analysis of the material may be used for the purpose of a criminal investigation or any other purpose for which the DNA database may be used; youth residential centre has the same meaning as in the Children, Youth and Families Act 2005; * * * * * (3) The Minister administering the Police Regulation Act 1958 may appoint by notice published in the Government Gazette a person or class of persons as a person or persons authorised to take fingerprints in accordance with this Subdivision54. Crimes Act 1958 - SECT 464AA Digital recordings 464AA. Digital recordings If this Subdivision requires an audio recording or an audiovisual recording to be made and the recording is made in a digitised format, the maker of the recording must certify that the recording has not been altered after its making and that the prescribed requirements, if any, in relation to the method of recording have been met. Crimes Act 1958 - SECT 464A Detention of person in custody 464A. Detention of person in custody (1) Every person taken into custody for an offence (whether committed in Victoria or elsewhere) must be- (a) released unconditionally; or (b) released on bail; or (c) brought before a bail justice or the Magistrates' Court- within a reasonable time of being taken into custody. (2) If a person suspected of having committed an offence is in custody for that offence, an investigating official may, within the reasonable time referred to in subsection (1)- (a) inform the person of the circumstances of that offence; and (b) question the person or carry out investigations in which the person participates in order to determine the involvement (if any) of the person in that offence. (3) Before any questioning (other than a request for the person's name and address) or investigation under subsection (2) commences, an investigating official must inform the person in custody that he or she does not have to say or do anything but that anything the person does say or do may be given in evidence. (4) In determining what constitutes a reasonable time for the purposes of subsection (1) the following matters may be considered- (a) the period of time reasonably required to bring the person before a bail justice or the Magistrates' Court; (b) the number and complexity of offences to be investigated; (c) any need of the investigating official to read and collate relevant material or to take any other steps that are reasonably necessary by way of preparation for the questioning or investigation; (d) any need to transport the person from the place of apprehension to a place where facilities are available to conduct an interview or investigation; (e) the number of other people who need to be questioned during the period of custody in respect of the offence for which the person is in custody; (f) any need to visit the place where the offence is believed to have been committed or any other place reasonably connected with the investigation of the offence; (g) any time taken to communicate with a legal practitioner, friend, relative, parent, guardian or independent person; (h) any time taken by a legal practitioner, interpreter, parent, guardian or independent person to arrive at the place where questioning or investigation is to take place; (i) any time during which the questioning or investigation of the person is suspended or delayed to allow the person to receive medical attention; (j) any time during which the questioning or investigation of the person is suspended or delayed to allow the person to rest; (k) the total period of time during which the person has been in the company of an investigating official before and after the commencement of custody; (l) any other matters reasonably connected with the investigation of the offence. Crimes Act 1958 - SECT 464B Questioning or investigation of person already held for another matter 464B. Questioning or investigation of person already held for another matter (1) An investigating official may apply to the Magistrates' Court or, if the application is in respect of a child, the Children's Court for an order that a person- (a) who is- (i) held in a prison or police gaol; or (ii) a forensic resident or a security resident within the meaning of the Disability Act 2006; or (iii) a forensic patient or a security patient within the meaning of the Mental Health Act 1986; or (iv) detained under section 93 of the Sentencing Act 1991 in an approved mental health service within the meaning of the Mental Health Act 1986 as an involuntary patient or security patient within the meaning of that Act; and (b) reasonably suspected of having committed an offence (being, in the case of an application in respect of a child, an indictable offence) other than the offence for which he or she is being held- be delivered into the custody of the investigating official for the purpose of questioning or investigation in respect of the first-mentioned offence. (2) An application under subsection (1) must- (a) be in writing; and (b) state the grounds on which the application is made; and (c) be served on the person who is the subject of the application by delivering a true copy of the application- (i) to the person personally; or (ii) to the person in charge of the place where the person is being held or detained. (3) At any time after the filing of an application under subsection (1), the Magistrates' Court or Children's Court (as the case may be) may order that the person who is the subject of the application be brought before the court for the hearing of the application under subsection (1). (4) While an order made under subsection (3) is being carried out, the person is to be taken to be in the legal custody of the person acting under the order. (4A) The Magistrates' Court or the Children's Court (as the case may be) must not hear or determine an application under subsection (1) unless the person who is the subject of the application is before the Court. (4B) If the person who is the subject of an application under subsection (1) is not legally represented in a proceeding on the application, the Magistrates' Court or the Children's Court (as the case may be)- (a) must adjourn the hearing of the proceeding to enable the person to obtain legal representation unless satisfied that the person has had, or has refused to have, legal advice provided to him or her in relation to the application; and (b) must not resume the hearing unless the person is legally represented or the Court is satisfied that he or she has had, or has refused to have, legal advice provided to him or her in relation to the application. (4C) The Magistrates' Court or the Children's Court (as the case may be) may order Victoria Legal Aid to provide legal assistance (of a kind to which section 26(1) of the Legal Aid Act 1978 applies) to the person who is the subject of an application under subsection (1) and, despite anything to the contrary in that Act, Victoria Legal Aid must provide legal assistance in accordance with the order. (5) On an application under subsection (1), the Magistrates' Court or the Children's Court (as the case may be) may, if satisfied that it is in the interests of justice to do so but subject to subsection (5C), order the transfer of the custody of the person who is the subject of the application to the applicant for the purpose of questioning or investigation for a maximum period of time specified in the order, being a reasonable period within which the questioning or investigation may take place. (5A) In determining what constitutes a reasonable period for the purposes of an order under subsection (5), the Magistrates' Court or the Children's Court (as the case may be) must have regard to- (a) the matters specified in section 464A(4), with any necessary modifications; and (b) if the person is a child, his or her age. (5B) The Magistrates' Court or the Children's Court (as the case may be), on making an order under subsection (5), may make any further order that it thinks fit as to where, and the circumstances under which, the questioning or investigation may take place but it must not order that the questioning or investigation take place somewhere other than the place at which the person who is the subject of the order was held or detained at the time of the application for the order under subsection (5) unless it is not practicable for the questioning or investigation to take place there. (5C) The Magistrates' Court or the Children's Court (as the case may be) must not make an order under subsection (5) in respect of a person referred to in subsection (1)(a)(ii), (iii) or (iv) unless- (a) having considered any known likely psychological effect of the questioning on the person; and (b) having received evidence (whether oral or written) on the fitness of the person to be questioned given by a medical practitioner- it is satisfied on the balance of probabilities that the person is fit to be questioned. (5D) A person is unfit to be questioned for the purposes of subsection (5C) if, because the person's mental processes are disordered or impaired, the person is or, at some time during the questioning, will be- (a) unable to understand the nature of the questioning (namely that it is questioning to ascertain his or her involvement in the commission of an offence); or (b) unable to follow the course of questioning; or (c) unable to give instructions to his or her legal practitioner; or (d) unable to understand that he or she does not have to say or do anything but that anything he or she does say or do may be given in evidence. (5E) On making an order under subsection (5) in respect of a person referred to in subsection (1)(a)(ii), (iii) or (iv), the Magistrates' Court or the Children's Court (as the case may be)- (a) must include in that order a condition that- (i) subject to subsection (5F), an independent person is to be present while any questioning or investigation takes place in accordance with the order; and (ii) before the commencement of any questioning or investigation, the investigating official must allow the person to communicate with the independent person in circumstances in which as far as practicable the communication will not be overheard; and (b) may include in that order any other condition that it thinks fit in the interests of the well-being of the person during any questioning or investigation. (5F) The Magistrates' Court or the Children's Court (as the case may be) is not required to include in an order under subsection (5) a condition referred to in subsection (5E)(a)(i) if the person who is the subject of the order applies to the Court for that condition not to be included and the Court is satisfied that, in all the circumstances, it is appropriate not to include it. (5G) On making an order under subsection (5), the Magistrates' Court or the Children's Court (as the case may be) must inform the person who is the subject of the order- (a) that he or she does not have to say or do anything but that anything he or she does say or do may be given in evidence; and (b) that the investigating official must give him or her the information required to be given by subsection (6) and section 464C(1); and (c) if the person was held in a prison or police gaol at the time of the application, that the making of the order does not prevent a senior police officer from authorising the conduct of a non-intimate compulsory procedure on the person under section 464SA. (5H) An audiovisual recording must be made of the following- (a) the giving of any information required to be given by subsection (6) and section 464C(1); (b) any response of the person in custody to the giving of that information; (c) any questioning that takes place in accordance with an order made under subsection (5) and anything said by the person questioned. (6) If an order is made under subsection (5), before any questioning or investigation commences, an investigating official must inform the person who is the subject of the order that he or she does not have to say or do anything but that anything the person does say or do may be given in evidence. (7) An order under subsection (5) has effect as a suspension of a direction in a warrant of commitment to deliver a person to the place of detention specified in the warrant or to hold a person in that place (as the case may be). (8) The Magistrates' Court or the Children's Court (as the case may be) may, subject to subsection (8A)- (a) extend a period of custody ordered under subsection (5); or (b) on a subsequent application under subsection (1), make orders whether in respect of the same or a different offence reasonably suspected of having been committed by the person. (8A) The Magistrates' Court or the Children's Court (as the case may be) must not extend a period of custody ordered under subsection (5) or, on a subsequent application under subsection (1), make an order against the same person in respect of the same offence unless satisfied that there is a reasonable prospect that further questioning or investigation will assist in determining the involvement (if any) of the person in the commission of the offence. (8B) In determining the length of any extension of a period of custody ordered under subsection (5), the Magistrates' Court or the Children's Court (as the case may be) must have regard to- (a) the matters specified in section 464A(4), with any necessary modifications; and (b) if the person is a child, his or her age. (9) At- (a) the end of the period, or any extended period, specified in an order under subsection (5); or (b) the cessation of questioning or investigation- whichever is the earlier, the investigating official must deliver the person who is the subject of the order to the place of detention at which the person was held or detained at the time of the application for the order. (9A) The making of an order under subsection (5) does not prevent a senior police officer from giving an authorisation under section 464SA. (10) In this section- child, in relation to a person suspected of having committed an offence, means a person who at the time of the suspected commission of the offence was under the age of 18 years but does not include any person who is of or above the age of 19 years at the time of the making of an application in respect of him or her under this section. Crimes Act 1958 - SECT 464C Right to communicate with friend, relative and legal practitioner 464C. Right to communicate with friend, relative and legal practitioner (1) Before any questioning or investigation under section 464A(2) commences, an investigating official must inform the person in custody that he or she- (a) may communicate with or attempt to communicate with a friend or relative to inform that person of his or her whereabouts; and (b) may communicate with or attempt to communicate with a legal practitioner- and, unless the investigating official believes on reasonable grounds that- (c) the communication would result in the escape of an accomplice or the fabrication or destruction of evidence; or (d) the questioning or investigation is so urgent, having regard to the safety of other people, that it should not be delayed- the investigating official must defer the questioning and investigation for a time that is reasonable in the circumstances to enable the person to make, or attempt to make, the communication. (2) Subject to subsection (1), if a person wishes to communicate with a friend, relative or legal practitioner, the investigating official in whose custody the person then is- (a) must afford the person reasonable facilities as soon as practicable to enable the person to do so; and (b) must allow the person's legal practitioner or a clerk of the legal practitioner to communicate with the person in custody in circumstances in which as far as practicable the communication will not be overheard. (3) This section also applies to any questioning or investigation in accordance with an order made under section 464B(5). (4) This section does not apply to questioning or investigation in connection with an offence under section 49(1) of the Road Safety Act 1986. Crimes Act 1958 - SECT 464D Right to an interpreter 464D. Right to an interpreter (1) If a person in custody does not have a knowledge of the English language that is sufficient to enable the person to understand the questioning, an investigating official must, before any questioning or investigation under section 464A(2) commences, arrange for the presence of a competent interpreter and defer the questioning or investigation until the interpreter is present. (2) This section also applies to any questioning or investigation in accordance with an order made under section 464B(5). (3) This section does not apply to questioning or investigation in connection with an offence under section 49(1) of the Road Safety Act 1986. Crimes Act 1958 - SECT 464E Persons under 18 years 464E. Persons under 18 years (1) If a person in custody is under the age of 18 years, an investigating official must not, subject to subsection (2), question or carry out an investigation under section 464A(2) unless- (a) a parent or guardian of the person in custody or, if a parent or guardian is not available, an independent person is present; and (b) before the commencement of any questioning or investigation, the investigating official has allowed the person in custody to communicate with his or her parent or guardian or the independent person in circumstances in which as far as practicable the communication will not be overheard. (2) Subsection (1) does not apply if the investigating official believes on reasonable grounds that- (a) the communication necessary to give effect to subsection (1)(a) would result in the escape of an accomplice or the fabrication or destruction of evidence; or (b) the questioning or investigation is so urgent, having regard to the safety of other people, that it should not be delayed. (3) This section also applies to any questioning or investigation in accordance with an order made under section 464B(5). (4) This section does not apply to questioning or investigation in connection with an offence under section 49(1) of the Road Safety Act 1986. Crimes Act 1958 - SECT 464F Right of foreign national to communicate with consular office 464F. Right of foreign national to communicate with consular office (1) If a person in custody is not a citizen or permanent resident of Australia, the investigating official in whose custody the person then is must, before any questioning or investigation under section 464A(2) commences, inform the person in custody that he or she may communicate with or attempt to communicate with the consular office of the country of which the person is a citizen and, unless the investigating official believes on reasonable grounds that- (a) the communication would result in the escape of an accomplice or the fabrication or destruction of evidence; or (b) the questioning or investigation is so urgent, having regard to the safety of other people, that it should not be delayed- the investigating official must defer the questioning or investigation for a time that is reasonable in the circumstances to enable the person to make, or attempt to make, the communication. (2) Subject to subsection (1), if a person referred to in that subsection wishes to communicate with the consular office of the country of which he or she is a citizen, the investigating official in whose custody the person then is must afford the person reasonable facilities as soon as practicable to enable the person to do so. (3) This section does not apply to questioning or investigation in connection with an offence under section 49(1) of the Road Safety Act 1986. Crimes Act 1958 - SECT 464G Recording of information required to be given to person in custody 464G. Recording of information required to be given to person in custody (1) If a person is in custody in relation to an indictable offence, an investigating official who is required by sections 464A(3), 464C(1) and 464F(1) to give the person in custody certain information must record (by audio recording or audiovisual recording), if practicable, the giving of that information and the person's responses, if any. (2) Subsection (1) is subject to section 464B(5H). Crimes Act 1958 - SECT 464H Recording of confessions and admissions 464H. Recording of confessions and admissions (1) Subject to subsection (2), evidence of a confession or admission made to an investigating official by a person who- (a) was suspected; or (b) ought reasonably to have been suspected- of having committed an offence is inadmissible as evidence against the person in proceedings for an indictable offence unless- (c) if the confession or admission was made before the commencement of questioning, the confession or admission was recorded by audio recording or audiovisual recording, or the substance of the confession or admission was confirmed by the person and the confirmation was recorded by audio recording or audiovisual recording; or (d) if the confession or admission was made during questioning at a place where facilities were available to conduct an interview, the questioning and anything said by the person questioned was recorded by audio recording or audiovisual recording; or (e) if the confession or admission was made during questioning at a place where facilities were not available to conduct an interview, the questioning and anything said by the person questioned was recorded by audio recording or audiovisual recording, or the substance of the confession or admission was confirmed by the person questioned and the confirmation was recorded by audio recording or audiovisual recording; or (f) if the confession or admission was made during questioning in accordance with an order made under section 464B(5), the questioning and anything said by the person was recorded by audiovisual recording- and the recording (whether audio recording or audiovisual recording) is available to be tendered in evidence. (2) A court may admit evidence of a confession or admission otherwise inadmissible by reason of subsection (1) if the person seeking to adduce the evidence satisfies the court on the balance of probabilities that the circumstances- (a) are exceptional; and (b) justify the reception of the evidence. (3) If the questioning or confession or admission, or the confirmation of a confession or admission, of a person is recorded as required under this section or the giving of information is recorded as required under section 464B(5H) or 464G, the investigating official must give to the person or his or her legal practitioner without charge- (a) the recording (whether audio recording or audiovisual recording) or a copy of it within 7 days; and (b) if a transcript of the recording is prepared, a copy of the transcript. (4) Nothing in this section prevents the use of an audio recording or audiovisual recording in a proceeding for a summary offence. Crimes Act 1958 - SECT 464I No power to detain person not under arrest 464I. No power to detain person not under arrest Nothing in sections 464 to 464H (except as provided by an order made under section 464B(5)) confers a power to detain against his or her will a person who is not under arrest. Crimes Act 1958 - SECT 464J Right to remain silent etc. not affected 464J. Right to remain silent etc. not affected Nothing in this subdivision affects- (a) the right of a person suspected of having committed an offence to refuse to answer questions or to participate in investigations except where required to do so by or under an Act or a Commonwealth Act; or (b) the onus on the prosecution to establish the voluntariness of an admission or confession made by a person suspected of having committed an offence; or (c) the discretion of a court to exclude unfairly obtained evidence; or (d) the discretion of a court to exclude illegally or improperly obtained evidence. Fingerprinting Crimes Act 1958 - SECT 464K Fingerprinting of adults and children aged 15 or above 464K. Fingerprinting of adults and children aged 15 or above (1) A member of the police force may take, or cause to be taken by an authorised person, the fingerprints of a person of or above the age of 15 years who- (a) is believed on reasonable grounds to have committed; or (b) has been charged with; or (c) has been summonsed to answer to a charge for- an indictable offence or a summary offence referred to in Schedule 7. (2) A member of the police force intending to fingerprint a person under this section must inform the person in language likely to be understood by him or her- (a) of the purpose for which the fingerprints are required; and (b) of the offence which the person is believed to have committed or with which the person has been charged or for which the person has been summonsed to answer to a charge; and (c) that the fingerprints may be used in evidence in court; and (d) that if the person refuses to give his or her fingerprints voluntarily, a member of the police force may use reasonable force to obtain them; and (e) that if the person is not charged with a relevant offence within 6 months or is so charged but the charge is not proceeded with or the person is not found guilty of the offence or any other relevant offence before the end of that period, the fingerprints will be destroyed. (3) Subject to subsection (4), the member of the police force who informs a person of the matters in subsection (2) must- (a) record (whether by audio recording or audiovisual recording); or (b) record in writing signed by the person- the giving of that information and the person's responses, if any. (4) If a person is in custody within the meaning of this Subdivision in relation to an indictable offence, the giving of the information under subsection (2) and the person's responses, if any, must be recorded by audio recording or audiovisual recording. (5) If information and a person's responses are recorded by audio recording or audiovisual recording in accordance with this section, the member of the police force giving the information must give or send by post to the person or his or her legal practitioner without charge- (a) the recording (whether audio recording or audiovisual recording) or a copy of it within 7 days; and (b) if a transcript of the recording is prepared, a copy of the transcript as soon as practicable. (6) If information and a person's responses are recorded in writing in accordance with this section, the member requesting the person's fingerprints must give to the person, or cause the person to be given, a copy of the signed record forthwith. (7) A member of the police force may use reasonable force to take the fingerprints of a person referred to in subsection (1) who refuses to give them voluntarily if the use of reasonable force is authorised by a member in charge of a police station at the time of the request or a member of or above the rank of sergeant. (8) If the person from whom fingerprints are required is a child aged 15, 16 or 17 years- (a) a parent or guardian of the child or, if a parent or guardian cannot be located, an independent person must be present during the request for the fingerprints, the giving of the information referred to in subsection (2) and the taking of the fingerprints; and (b) if the use of reasonable force has been authorised in accordance with subsection (7), the taking of the fingerprints must be recorded by audiovisual recording, if practicable, or by audio recording. Crimes Act 1958 - SECT 464L Fingerprinting of children aged 14 or under 464L. Fingerprinting of children aged 14 or under (1) A child under the age of 10 years who is suspected of having done or omitted to have done any act which would have constituted an offence had the child been of the age of criminal responsibility must not- (a) be requested to give his or her fingerprints; or (b) have his or her fingerprints taken. (2) A member of the police force may take, or cause to be taken by an authorised person, the fingerprints of a child aged 10 years or more but under 15 years who- (a) is believed on reasonable grounds to have committed; or (b) has been charged with; or (c) has been summonsed to answer to a charge for- an indictable offence or a summary offence referred to in Schedule 7 if- (d) both the child and a parent or guardian of the child consent; or (e) where consent is refused or the parent or guardian cannot be located, the Children's Court makes an order under section 464M(5). (3) A member of the police force wishing to fingerprint a child referred to in subsection (2) must inform the child and the parent or guardian of the child in language likely to be understood by each of them- (a) of the purpose for which the fingerprints are required; and (b) of the offence which the child is believed to have committed or with which the child has been charged or for which the child has been summonsed to answer to a charge; and (c) that the fingerprints may be used in evidence in court; and (d) that the child's parent or guardian may refuse consent to the child's fingerprints being taken; and (e) that if consent is refused, an application may be made to the Children's Court for an order directing the child to give his or her fingerprints; and (f) that if the child is not charged with a relevant offence within 6 months or is so charged but the charge is not proceeded with or the child is not found guilty of the offence or any other relevant offence before the end of that period, the fingerprints will be destroyed. (4) A parent or guardian of a child must be present during the request for the fingerprints under this section, the giving of the information referred to in subsection (3) and the taking of the fingerprints with consent. (5) Subject to subsection (6), the member of the police force who informs a child of the matters in subsection (3) must- (a) record by audio recording or audiovisual recording; or (b) record in writing signed by the child and the parent or guardian present- the giving of that information and the responses, if any, of the child and the parent or guardian. (6) If a child is in custody within the meaning of this Subdivision in relation to an indictable offence, the giving of the information under subsection (3) and the responses, if any, of the child and the parent or guardian must be recorded by audio recording or audiovisual recording. (7) If information and the responses of the child and parent or guardian are recorded by audio recording or audiovisual recording, the member of the police force giving the information must give or send by post to the child or his or her legal practitioner without charge- (a) the recording (whether audio recording or audiovisual recording) or a copy of it within 7 days; and (b) if a transcript of the recording is prepared, a copy of the transcript as soon as practicable. (8) If information and the responses of the child and parent or guardian are recorded in writing, the member requesting the child's fingerprints must give to the child, or cause the child to be given, a copy of the signed record forthwith. Crimes Act 1958 - SECT 464M Children's Court may order fingerprinting 464M. Children's Court may order fingerprinting (1) If a child referred to in section 464L(2) or his or her parent or guardian refuses to consent to the taking of the child's fingerprints or the parent or guardian cannot be located, a member of the police force may apply to the Children's Court for an order under subsection (5). (2) An application under subsection (1)- (a) must be in writing supported by evidence on oath or by affidavit; and (b) if the child is held in a police gaol or is detained in a youth residential centre, must state that fact. (3) Notice of an application under subsection (1) must be served on- (a) a parent or guardian of the child; and (b) if the child is not in custody within the meaning of this Subdivision, the child. (4) The court may dispense with the requirement of subsection (3)(a) if satisfied that it is impracticable for the applicant to comply. (5) The Children's Court may make an order directing a child aged 10 years or more but under 15 years to give his or her fingerprints if satisfied on the balance of probabilities that- (a) there are reasonable grounds to believe that the child has committed an indictable offence or a summary offence referred to in Schedule 7; and (b) in all the circumstances the making of the order is justified. (6) In considering whether the making of the order is justified, the court must take into account amongst other things- (a) the seriousness of the circumstances surrounding the commission of the offence; and (b) the alleged degree of participation by the child in the commission of the offence; and (c) the age of the child. (7) A child in respect of whom an application under subsection (1) is made- (a) is not a party to the application; and (b) may not call or cross-examine any witnesses; and (c) may not address the court, other than in respect of any matter referred to in subsection (5)(a) or (b) or subsection (6). (8) In exercising the right of address under subsection (7)(c), a child may be represented by a legal practitioner or, with the leave of the court, a parent or guardian of the child. (9) If the court makes an order under subsection (5)- (a) a parent or guardian of the child or, if a parent or guardian cannot be located, an independent person must be present during the taking of the child's fingerprints; and (b) a member of the police force may use reasonable force to take the fingerprints; and (c) the taking of the fingerprints must be recorded by audiovisual recording, if practicable, or otherwise by audio recording. (10) After an order under subsection (5) is executed- (a) the independent person, if any, who witnessed the taking of the fingerprints must endorse on the order his or her name and sign the endorsement; and (b) the person who took the fingerprints must endorse on the order the name of the person, if any, who made the audiovisual recording of the taking of the fingerprints; and (c) the person who took the fingerprints must give a copy of the order so endorsed to the child. (11) The endorsements required by subsection (10) to be made on an order under subsection (5) may be made on a copy of the order transmitted by facsimile machine. (12) If the Children's Court makes an order under subsection (5), it may issue a warrant authorising the person to whom it is directed- (a) to break, enter and search, if necessary, any place where the child named or described in the warrant is suspected to be; and (b) to arrest the child named or described in the warrant; and (c) to take the child without delay to the nearest accessible police station for fingerprinting. (13) If the Children's Court makes an order under subsection (5) or issues a warrant under subsection (12), it must- (a) give reasons for its decision; and (b) cause a note of the reasons to be entered in the records of the court. (14) The failure of the court to comply with subsection (13) does not invalidate any order made by it but constitutes non-compliance for the purposes of section 464Q(1)(a). (15) If a child is apprehended under a warrant issued under subsection (12), the warrant ceases to have effect immediately after the child's fingerprints have been taken. (16) If the Children's Court makes an order under subsection (5) in respect of a child who is held in a prison, police gaol, youth justice centre or youth residential centre, the court must also order that the officer in charge of the place at which the child is held must take the fingerprints of the child or cause them to be taken and must deliver the fingerprints to the applicant within a period of time specified in the order. Crimes Act 1958 - SECT 464N Taking of fingerprints 464N. Taking of fingerprints (1) Fingerprints may be taken by means of a device to obtain a record of the fingerprints (a fingerscan) or by any other means. (2) If- (a) fingerprints are to be taken in accordance with a court order; or (b) reasonable force is to be used to take fingerprints- a person of the same sex as the person to be fingerprinted must, if practicable, take the fingerprints and a member of the police force involved in investigating the offence for which the fingerprints are required must not, if practicable, take the fingerprints. Crimes Act 1958 - SECT 464NA Fingerscanning for identification purposes 464NA. Fingerscanning for identification purposes * * * * * (2) If a person of or above the age of 15 years- (a) has been charged with an indictable offence or a summary offence referred to in Schedule 7; and (b) is present in a police station because of the charging or has been remanded in custody in relation to the charge- a member of the police force may take a fingerscan of the person for the purpose only of identifying the person. (3) Before fingerscanning a person under this section, a member of the police force must inform the person, in language likely to be understood by the person, that the fingerscan- (a) is to be taken only for the purpose of identifying the person; and (b) is inadmissible as evidence. (4) A member of the police force may use reasonable force to take the fingerscan of a person referred to in subsection (2) who refuses to allow it to be taken voluntarily if- (a) the use of reasonable force is authorised by a member in charge of a police station at the relevant time or a member of or above the rank of sergeant; and (b) before fingerscanning the person, the member of the police force informs the person, in language likely to be understood by the person, that reasonable force may be used to obtain it. (5) A person of the same sex as the person to be fingerscanned must, if practicable, take the fingerscan. (6) A fingerscan taken under this section is inadmissible as evidence in any proceeding. (7) A fingerscan taken under this section which is not required to be destroyed under section 464O may be recorded on a computerised database and may be accessed, disclosed, communicated or made use of by a person for the performance of official duties if the recording, accessing, disclosing, communicating or making use of fingerscans on that database by that person, or a person belonging to a class of persons, for that purpose is authorised in writing by the Chief Commissioner of Police. Crimes Act 1958 - SECT 464O Destruction of records 464O. Destruction of records (1) In this section- destroy, in relation to a fingerscan, means permanently de-identify information- (a) which identifies the person from whom the fingerscan was taken; or (b) from which the person's identity may be ascertained; fingerprints includes fingerscan taken under section 464NA or any other provision of this Subdivision; relevant offence means- (a) the offence in respect of which the fingerprints were taken; or (b) any other offence arising out of the same circumstances; or (c) any other offence in respect of which the fingerprints have probative value. (2) If a person has been fingerprinted in accordance with this Subdivision and- (a) the person has not been charged with a relevant offence at the end of the period of 6 months after the taking of the fingerprints; or (b) the person has been so charged but the charge is not proceeded with or the person is not found guilty of the offence or any other relevant offence, whether on appeal or otherwise, before the end of that period- the Chief Commissioner of Police must, subject to subsection (4), destroy the fingerprints and any record, copy or photograph of them, or cause them to be destroyed at the time specified in subsection (3). (3) For the purposes of subsection (2), fingerprints taken in accordance with this Subdivision and any record, copy or photograph of them must be destroyed- (a) where the person has not been so charged or the charge is not proceeded with, immediately after that period of 6 months; or (b) where the person is not found guilty, within 1 month after the conclusion of the proceedings and the end of any appeal period. (4) A member of the police force may, within the period referred to in subsection (3)(a) or (b) and on one occasion only, apply without notice to any other person to the Magistrates' Court or the Children's Court (as the case requires) for an order extending the period by not more than 6 months within which the fingerprints and any record, copy or photograph of them must be destroyed. (5) If a court makes an order under subsection (4), it must cause a copy of the order to be served on the person from whom the fingerprints were taken. (6) If fingerprints or any record, copy or photograph of them are destroyed in accordance with this section, the Chief Commissioner of Police must give notice within 14 days of the destruction to the person from whom the fingerprints were taken. (7) A person who- (a) fails to destroy; or (b) uses or makes, or causes or permits to be used or made- any record, copy or photograph of fingerprints required by this section to be destroyed is guilty of a summary offence punishable on conviction by a level 10 fine (10 penalty units maximum). Crimes Act 1958 - SECT 464P Records of juvenile 464P. Records of juvenile (1A) In this section, fingerprints includes fingerscan taken under section 464NA or any other provision of this Subdivision. (1) Subject to subsection (2), if- (a) a person is fingerprinted as a child in accordance with this Subdivision, whether before or after the commencement of section 7 of the Crimes (Amendment) Act 1993; and (b) the fingerprints are not required to be destroyed under this Subdivision; and (c) the person is not found guilty of any further offence before attaining the age of 26 years; and (d) in the case of fingerprints taken before the commencement of section 7 of that Act, a request has been made to the Chief Commissioner of Police for their destruction- the Chief Commissioner must without delay destroy the fingerprints and any record, copy or photograph of them, or cause them to be destroyed. (2) Subsection (1) does not apply to fingerprints retained as a result of a finding of guilt of any of the following offences- (a) murder, attempted murder, manslaughter, child homicide or defensive homicide; (b) an offence or attempt to commit an offence against section 16, 17, 18, 25, 26, 29 or 31; (c) an offence or attempt to commit an offence under Subdivision (8A), (8B), (8C), (8D) or (8E) of Division 1 of Part I; (d) an offence or attempt to commit an offence against section 75 or 75A; (e) an offence of arson against section 197. Crimes Act 1958 - SECT 464Q Evidence of fingerprints 464Q. Evidence of fingerprints (1) Evidence in respect of fingerprints taken from a person is inadmissible as part of the prosecution case in proceedings against that person for an offence if- (a) the requirements of sections 464K to 464N have not been complied with; or (b) the fingerprints or any record, copy or photograph of them should have been but have not been destroyed as required by section 464O or 464P. (2) A court may admit evidence in respect of fingerprints otherwise inadmissible by reason of subsection (1)(a) if- (a) the prosecution satisfies the court on the balance of probabilities that the circumstances are exceptional and justify the reception of the evidence; or (b) the accused consents to the reception of the evidence. (3) For the purposes of subsection (2)(a), the probative value of the fingerprints is not to be regarded as an exceptional circumstance. Forensic procedures Crimes Act 1958 - SECT 464R Forensic procedure on adult 464R. Forensic procedure on adult (1) A member of the police force may request a suspect to undergo a forensic procedure only if there are reasonable grounds to believe that the procedure would tend to confirm or disprove the involvement of the suspect in the commission of an indictable offence and the suspect- (a) is suspected on reasonable grounds of having committed the indictable offence; or (b) has been charged with the indictable offence; or (c) has been summonsed to answer to a charge for the indictable offence. (2) A forensic procedure may be conducted on a suspect if- (a) the suspect gives his or her informed consent; or (b) the Magistrates' Court makes an order under section 464T(3) or 464V(5); or (c) a senior police officer gives an authorisation under section 464SA. Crimes Act 1958 - SECT 464S Informed consent55 464S. Informed consent55 (1) A person gives informed consent to a request to undergo a forensic procedure if he or she consents to the request after a member of the police force informs the person in language likely to be understood by the person- (a) of the purpose for which the procedure is required; and (b) of the nature of the procedure sought to be conducted; and (c) that the person may request that the procedure be conducted by or in the presence of a medical practitioner or nurse of his or her choice or, where the procedure is the taking of a dental impression, a dentist of his or her choice; and (d) of the offence which the person is suspected of having committed or with which the person has been charged or for which the person has been summonsed to answer to a charge; and (e) that the procedure could produce evidence to be used in a court; and (ea) that information obtained from analysis of forensic material obtained by the procedure will be placed on a DNA database and may be used for the purpose of a criminal investigation or any other purpose for which the DNA database may be used under this Subdivision or under a corresponding law of a participating jurisdiction; and (f) that the person may refuse to undergo the procedure; and (g) where the sample or examination sought may be obtained by a compulsory procedure and the person refuses to undergo the procedure, that an application may be made to the Magistrates' Court for an order authorising the conduct of the procedure; and (h) where the sample or examination sought may be obtained by a non-intimate compulsory procedure within the meaning of section 464SA and the person refuses to consent to the procedure, that a senior police officer may authorise the conduct of the procedure. (2) A member of the police force who informs a person of the matters in subsection (1)- (a) must record the giving of the information and the person's responses, if any, by audio recording or audiovisual recording or in writing signed by the person; and (b) must give or send by registered post to the person or his or her legal practitioner, without charge- (i) if the giving of the information and the responses are recorded by audio recording or audiovisual recording, a copy of the recording as soon as practicable, but not more than 7 days after the information is given, and, if a transcript of the recording is prepared, a copy of the transcript as soon as practicable; and (ii) if the giving of the information and the responses are recorded in writing signed by the person, a copy of the record forthwith. (3) If- (a) a person is held in a prison, police gaol or youth justice centre or in an institution within the meaning of section 56 of the Corrections Act 1986; and (b) within 24 hours after the giving of the information referred to in subsection (1) the person refuses or fails to consent to the request to undergo a forensic procedure- the person is to be taken as having refused consent. Crimes Act 1958 - SECT 464SA Senior police officer may authorise non-intimate compulsory procedure for certain adults 464SA. Senior police officer may authorise non-intimate compulsory procedure for certain adults (1) In this section and section 464SB, non-intimate compulsory procedure means the taking of a non-intimate sample or the conduct of a physical examination of a non-intimate part of the body. (2) A senior police officer who is not involved in investigating the offence for which the compulsory procedure is required may authorise the conduct of a non-intimate compulsory procedure on a person if the senior police officer is satisfied that- (a) the person is a relevant suspect who is- (i) under lawful arrest by warrant; or (ii) under lawful arrest under section 458 or 459 or a provision of any other Act; or (iii) in the custody of an investigating official in accordance with an order of the Magistrates' Court under section 464B(5) and, at the time of the application for that order, the person was held in a prison or police gaol; and (b) the person is not under the age of 18 years; and (c) the person is not incapable of giving informed consent by reason of mental impairment; and (d) the person has refused to give consent to a request under section 464R(1); and (e) there are reasonable grounds to believe that the person has committed the offence in respect of which the authorisation is sought; and (f) the requirements of section 464T(3)(c), (d), (e) and (f) are met; and (g) in all the circumstances, the giving of the authorisation is justified. (3) A senior police officer must not give an authorisation for a compulsory procedure on a person if- (a) an application to a court for an order under this Subdivision in respect of that person has been made in relation to the same matter and on the same grounds but has been refused; or (b) a previous application for an authorisation under this section in respect of that person has been considered in relation to the same matter and on the same grounds but has not been given. (4) An authorisation given in contravention of subsection (3) is void. (5) Nothing in subsection (3) prevents a later application for an order under this Subdivision or an authorisation under this section on different or further grounds. (6) An authorisation under this section may only be given to a member of the police force. Crimes Act 1958 - SECT 464SB Making or refusing authorisation 464SB. Making or refusing authorisation (1) Before a senior police officer gives or refuses to give an authorisation under section 464SA, the senior police officer must allow the suspect or the suspect's legal practitioner, if any, a reasonable opportunity, if practicable in person, to inform the senior police officer whether there is any reason why the non-intimate compulsory procedure should not be conducted. (2) An authorisation under section 464SA must be made in writing signed by the senior police officer giving it and include- (a) the date and time when the authorisation is given; and (b) the grounds for giving the authorisation; and (c) the type of sample or examination authorised. (3) The senior police officer must give, or cause another member of the police force to give, to the suspect a copy of the authorisation as soon as practicable after the authorisation is made and, in any event, before the conduct of the compulsory procedure. (4) Before the compulsory procedure is conducted, a member of the police force must inform the suspect orally and in person of the following- (a) that an authorisation under section 464SA has been given; and (b) the matters referred to in subsection (2)(a), (b) and (c); and (c) that a member of the police force may use reasonable force to enable the compulsory procedure to be conducted; and (d) if the authorisation is to take a sample of hair, that the suspect may elect to provide instead a scraping taken by the suspect from his or her mouth, if it is considered appropriate to do so. (5) The person who gives the information required to be given by subsection (4) must- (a) record, or cause to be recorded, the giving of that information by audio recording or audiovisual recording; and (b) give or send by registered post, or cause to be given or sent by registered post, to the suspect or his or her legal practitioner, without charge, a copy of the recording as soon as practicable, but not more than 7 days after the conduct of the compulsory procedure. (6) If a senior police officer refuses to give an authorisation under section 464SA in respect of a suspect, the senior police officer must- (a) inform, or cause another member of the police force to inform, the suspect orally of the decision as soon as practicable after the refusal; and (b) give written notice of the decision to the suspect within 7 days after the refusal. (7) A failure of the senior police officer or a member of the police force to comply with this section does not invalidate any authorisation made by the senior police officer but constitutes non-compliance for the purposes of section 464ZE(1)(a). Crimes Act 1958 - SECT 464T Court may order compulsory procedure 464T. Court may order compulsory procedure (1) If- (a) a person refuses to undergo a forensic procedure after being requested to do so or is incapable of giving informed consent by reason of mental impairment; and (b) the sample or examination sought may be obtained by a compulsory procedure; and (c) the person is a relevant suspect56; and (d) a member of the police force believes on reasonable grounds that the person has committed the offence in respect of which the procedure was requested- the member may apply to the Magistrates' Court for an order directing the person to undergo the compulsory procedure. (2) An application under subsection (1)- (a) must be in writing supported by evidence on oath or by affidavit; and (b) if the person is a detained or protected person, must state that fact and identify the place where the person is held or resides; and (c) must specify the type of compulsory procedure sought to be conducted. (3) The Court may make an order directing a person to undergo a compulsory procedure if the Court is satisfied on the balance of probabilities that- (a) the person is a relevant suspect; and (b) there are reasonable grounds to believe that the person has committed the offence in respect of which the application is made; and (c) in the case of an application for a sample other than one referred to in paragraph (d), any of the following applies- (i) material reasonably believed to be from the body of a person who committed the offence has been found- (A) at the scene of the offence; or (B) on the victim of the offence or on anything reasonably believed to have been worn or carried by the victim when the offence was committed; or (C) on an object or person reasonably believed to have been associated with the commission of the offence; or (ii) there are reasonable grounds to believe that, because of the nature of the offence or injuries inflicted during the commission of the offence, material from the body or clothing of the victim is present- (A) on the person who committed the offence or on anything reasonably believed to have been worn or carried by that person when the offence was committed; or (B) on an object reasonably believed to have been associated with the commission of the offence; or (iii) the victim of the offence has not been found, and there are reasonable grounds to believe that material reasonably believed to be from the body of the victim is present on a person suspected of having committed the offence; or (iv) the offence in respect of which the application is made is an offence against a provision of Subdivision (8A), (8B) or (8C) of Division 1 of Part I and there are reasonable grounds to believe that the conduct of the procedure on the person may be relevant in determining the paternity of a child that has been conceived allegedly as a result of the offence; and (d) in the case of an application to take a sample or washing from the skin to determine the presence of gunshot residue, a firearm was discharged during the commission of the offence; and (e) in the case of an application to conduct a physical examination, the person who committed the offence had distinguishing marks or injuries, whether acquired during the commission of the offence or otherwise; and (f) there are reasonable grounds to believe that the conduct of the procedure on the person may tend to confirm or disprove his or her involvement in the commission of the offence; and (g) the person has refused to give consent to a request under section 464R(1) or the person is incapable of giving informed consent by reason of mental impairment; and (h) in all the circumstances, the making of the order is justified. (4) Except on an application made in accordance with section 464V or 464W, the Magistrates' Court must not make an order directing a person to undergo a compulsory procedure unless the person is present. (5) A relevant suspect in respect of whom an application is made- (a) is not a party to the application; and (b) may not call or cross-examine any witnesses; and (c) may not address the Court, other than in respect of any matter referred to in subsection (3)(a) to (h). (6) In exercising the right of address under subsection (5)(c), a relevant suspect may be represented by a legal practitioner. (7) If the Magistrates' Court makes an order under subsection (3), it must- (a) give reasons for its decision; and (b) state the evidence on which it is satisfied of the matters referred to in subsection (3); and (c) cause a note of the reasons to be entered in the records of the Court; and (d) inform the person ordered to undergo a compulsory procedure that a member of the police force may use reasonable force to enable the procedure to be conducted. (8) A failure of the Court to comply with subsection (7) does not invalidate any order made by it but constitutes non-compliance for the purposes of section 464ZE(1)(a). (9) If- (a) a member of the police force proposes to make an application to the Magistrates' Court under subsection (1) in respect of a person; and (b) the person is a detained or protected person- the Court may, on the application of a member of the police force, issue a warrant directing the officer-in-charge of the place where the person is held to deliver the person into the custody of the applicant or another member of the police force for the purpose- (c) of attending the hearing of the application under subsection (1); and (d) if that application is granted, of conducting the procedure on the person. (10) A member of the police force into whose custody the person is delivered under a warrant issued under subsection (9) must return the person to the officer-in-charge of the place where the person was held- (a) forthwith after the hearing of the application under subsection (1); or (b) if the application is granted, within such period after the hearing of the application as reasonably permits the conduct of the procedure on the person. Crimes Act 1958 - SECT 464U Forensic procedure on child 464U. Forensic procedure on child (1) A member of the police force must not request a child to undergo a forensic procedure or request that a compulsory procedure be conducted on the child if the child- (a) is under the age of 10 years; and (b) is suspected of having done or omitted to have done any act which would have constituted an offence had the child been of the age of criminal responsibility. (2) A member of the police force must not request a child aged 10 years or more but under 18 years who- (a) is suspected of having committed; or (b) has been charged with; or (c) has been summonsed to answer to a charge for- an offence, whether indictable or summary, to undergo a forensic procedure or request that a compulsory procedure be conducted on the child unless the Children's Court has made an order under subsection (7) or section 464V(5). (3) A member of the police force may apply to the Children's Court for an order under subsection (7) if the child- (a) is suspected on reasonable grounds of having committed or attempted to commit an indictable offence against the person at common law or an indictable offence under Division 1 of Part I or under section 75, 75A, 76, 77, 197 (in circumstances where the offence is charged as arson), 197A, 249, 250, 251, 317, 317A or 318 or under section 71, 71AA, 72 or 72A of the Drugs, Poisons and Controlled Substances Act 1981 or under section 71, 72(1)(ab) or 72(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981 as in force immediately before the commencement of the Drugs, Poisons and Controlled Substances (Amendment) Act 2001; or (b) has been charged with an indictable offence against the person at common law or an indictable offence under Division 1 of Part I or under section 75, 75A, 76, 77, 197 (in circumstances where the offence is charged as arson), 197A, 249, 250, 251, 317, 317A or 318 or under section 71, 71AA, 72 or 72A of the Drugs, Poisons and Controlled Substances Act 1981 or under section 71, 72(1)(ab) or 72(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981 as in force immediately before the commencement of the Drugs, Poisons and Controlled Substances (Amendment) Act 2001. (4) An application under subsection (3)- (a) must be in writing supported by evidence on oath or by affidavit; and (b) if the child is a detained or protected person, must state that fact and identify the place where the child is held or resides; and (c) must specify the type of compulsory procedure sought to be conducted. (5) Notice of an application under subsection (3) must be served on57- (a) a parent or guardian of the child; and (b) if the child is not in custody within the meaning of this Subdivision, the child. (6) The court may dispense with the requirement of subsection (5)(a) if satisfied that it is impracticable for the applicant to comply. (7) The Children's Court may make an order directing a child aged 10 years or more but under 18 years to undergo a compulsory procedure if satisfied on the balance of probabilities that- (a) the child is a person referred to in subsection (3)(a) or (b); and (b) there are reasonable grounds to believe that the child has committed the offence in respect of which the application is made; and (c) in the case of an application for a sample other than one referred to in paragraph (d), either- (i) material reasonably believed to be from the body of a person who committed the offence has been found- (A) at the scene of the offence; or (B) on the victim of the offence or on anything reasonably believed to have been worn or carried by the victim when the offence was committed; or (C) on an object or person reasonably believed to have been associated with the commission of the offence; or (ii) there are reasonable grounds to believe that, because of the nature of the offence or injuries inflicted during the commission of the offence, material from the body or clothing of the victim is present- (A) on the person who committed the offence or on anything reasonably believed to have been worn or carried by that person when the offence was committed; or (B) on an object reasonably believed to have been associated with the commission of the offence; and (d) in the case of an application to take a sample or washing from the skin to determine the presence of gunshot residue, a firearm was discharged during the commission of the offence; and (e) in the case of an application to conduct a physical examination, the person who committed the offence had distinguishing marks or injuries, whether acquired during the commission of the offence or otherwise; and (f) there are reasonable grounds to believe that the conduct of the procedure on the child may tend to confirm or disprove his or her involvement in the commission of the offence; and (g) in all the circumstances, the making of the order is justified. (8) In considering whether the making of the order is justified, the court must take into account amongst other things- (a) the seriousness of the circumstances surrounding the commission of the offence; and (b) the alleged degree of participation by the child in the commission of the offence; and (c) the age of the child. (9) If the Children's Court makes an order under subsection (7), it must- (a) give reasons for its decision; and (b) state the evidence on which it is satisfied of the matters referred to in subsection (7); and (c) cause a note of the reasons to be entered in the records of the court; and (d) inform the child ordered to undergo a compulsory procedure that a member of the police force may use reasonable force to enable the procedure to be conducted. (10) A failure of the court to comply with subsection (9) does not invalidate any order made by it but constitutes non-compliance for the purposes of section 464ZE(1)(a). (11) Except on an application made in accordance with section 464V or 464W, the Children's Court must not make an order under subsection (7) unless the child is present. (12) A child in respect of whom an application is made- (a) is not a party to the application; and (b) may not call or cross-examine any witnesses; and (c) may not address the court, other than in respect of any matter referred to in subsection (7)(a) to (g) or subsection (8). (13) In exercising the right of address under subsection (12)(c), a child may be represented by a legal practitioner or, with the leave of the court, a parent or guardian of the child. (14) The provisions of section 464T(9) and (10) apply as if- (a) a reference to an application to the Magistrates' Court under subsection (1) of that section were a reference to an application to the Children's Court under subsection (3) of this section; and (b) a reference to the person were a reference to the child; and (c) a reference to the Magistrates' Court were a reference to the Children's Court. Crimes Act 1958 - SECT 464V Interim orders 464V. Interim orders (1) This section does not apply to an application in respect of a blood sample. (2) A member of the police force may apply, with or without notice to any other person, for an interim order directing a person to undergo a compulsory procedure if the member believes on reasonable grounds that the sample or evidence sought to be obtained by the compulsory procedure is likely to be lost if the procedure is delayed until the final determination of the application. (3) Section 464T(1), (2), (5), (6), (7) and (8) or section 464U(3), (4), (9), (10), (12) and (13) as the case requires apply to applications for interim orders. (4) If a member of the police force believes on reasonable grounds that- (a) it is necessary to obtain an interim order; and (b) the sample or evidence sought to be obtained by the compulsory procedure is likely to be lost if the making of an application for an interim order is delayed until the time when the application could be made in person- the member may apply for an interim order by telephone in accordance with the procedure in section 464W. (5) The court may make an interim order directing a person to undergo a compulsory procedure if- (a) the court is satisfied that the sample or evidence sought to be obtained by the compulsory procedure is likely to be lost if the procedure is delayed until the final determination of the application; and (b) on the evidence, whether sworn or unsworn, before it at that time, it appears to the court that there may be sufficient evidence to satisfy it of the matters set out in section 464T(3) or 464U(7) (as the case requires); and (c) on an application by telephone, the court is satisfied that the sample or evidence sought to be obtained by the compulsory procedure is likely to be lost if the making of the application is delayed until the time when the application could be made in person. (6) If the court makes an interim order- (a) it must adjourn the further hearing of the application to enable the compulsory procedure to be conducted; and (b) section 464T or 464U (as the case requires) applies to the further hearing; and (c) the further hearing must not be conducted by telephone; and (d) the person on whom the compulsory procedure is conducted must attend the further hearing58. (7) On the further hearing of an application- (a) if the court is satisfied of the matters set out in section 464T(3) or 464U(7), it must confirm the order made under this section; or (b) if the court is not so satisfied, it must order the destruction of any sample taken and any other evidence obtained as a result of the compulsory procedure. (8) A sample taken in accordance with an interim order must not be analysed before the final determination of the application. Crimes Act 1958 - SECT 464W Application by telephone for interim order 464W. Application by telephone for interim order (1) A member of the police force making an application by telephone for an interim order must make the application in accordance with this section. (2) Before making the application, the member must prepare an affidavit setting out the grounds on which the order is sought, but may, if necessary, make the application before the affidavit has been sworn. (3) If transmission by facsimile machine is available, the member must transmit a copy of the affidavit, whether sworn or unsworn, to the magistrate or Children's Court magistrate constituting the court that is to hear the application by telephone. (4) If the person the subject of the application is present with the applicant, the court must, if practicable, hear the person on any matter referred to in section 464T(3)(a) to (h), in the case of a relevant suspect, or section 464U(7)(a) to (g) and section 464U(8), in the case of a child. (5) If the court makes an interim order on an application made by telephone, the court must inform the applicant of the terms of the order, the date on which and the time at which it was made, and the date on which and the venue of the court at which the further hearing of the application will take place. (6) If transmission by facsimile machine is available, the court must transmit a copy of its order to the applicant. (7) A failure of the court to comply with subsection (4), (5) or (6) does not invalidate any order made by it but constitutes non-compliance for the purposes of section 464ZE(1)(a). (8) If an interim order is made on an application made by telephone, the applicant must- (a) if a copy of the order has not been transmitted by facsimile machine, complete a form of order in the terms indicated by the court under subsection (5) and must write on it the name of the magistrate or Children's Court magistrate who constituted the court that made the order and the date on which and the time at which it was made; and (b) if a copy of the order has been transmitted by facsimile machine, serve a copy of the order on the person ordered to undergo the compulsory procedure; and (c) inform the person ordered to undergo the compulsory procedure- (i) of the terms of the order; and (ii) that a member of the police force may use reasonable force to enable the procedure to be conducted; and (d) give notice in writing to the person ordered to undergo the compulsory procedure of the date on which and venue of the court at which the further hearing of the application will take place and that the person is required to be present at that further hearing; and (e) not later than the day following the making of the order, send the form of order, if any, completed by the applicant to the magistrate or Children's Court magistrate who constituted the court that made the order. (9) A member of the police force who informs a person of the matters in subsection (8)(c)- (a) must record the giving of the information by audio recording or audiovisual recording or in writing signed by the person; and (b) must give or send by registered post to the person or his or her legal practitioner, without charge- (i) if the giving of the information is recorded by audio recording or audiovisual recording, a copy of the recording as soon as practicable but not more than 7 days after the information is given, and, if a transcript of the recording is prepared, a copy of the transcript as soon as practicable; and (ii) if the giving of the information is recorded in writing, a copy of the record forthwith. (10) If an application is made by telephone, whether or not an interim order is made, the applicant must, not later than the day following the making of the application, send the affidavit duly sworn to the magistrate or Children's Court magistrate who constituted the court that heard the application. Crimes Act 1958 - SECT 464X Warrants 464X. Warrants (1) If an application is made to59- (a) the Magistrates' Court under section 464T(1) or 464V(2); or (b) the Children's Court under section 464U(3) or 464V(2)- and the person in respect of whom the application is made is not a detained or protected person, the court may issue a warrant authorising the person to whom it is directed, if necessary- (c) to break, enter and search by day or by night any place where the person named in the warrant is suspected to be; and (d) to arrest the person; and (e) to bring the person before the court for the hearing of the application; and (f) if that application is granted, to detain the person for as long as reasonably permits the conduct of the compulsory procedure. (2) If a court issues a warrant under subsection (1) it must- (a) give reasons for its decision; and (b) cause a note of the reasons to be entered in the records of the court. (3) A failure of a court to comply with subsection (2) does not invalidate any order made by it but constitutes non-compliance for the purposes of section 464ZE(1)(a). (4) If a person is apprehended under a warrant issued under subsection (1), the warrant ceases to have effect immediately after the procedure is completed or on the expiration of a reasonable time (whichever is the earlier). Crimes Act 1958 - SECT 464Y Caution before forensic procedure 464Y. Caution before forensic procedure (1) Immediately before a forensic procedure is conducted in accordance with sections 464R to 464ZA or section 464ZF or 464ZFAAA (as the case may be), a member of the police force must inform the person on whom the procedure is to be conducted that he or she does not have to answer any questions asked by the registered medical practitioner, nurse or other person conducting the procedure but that anything the person does say may be given in evidence. (2) A member of the police force who informs a person of the matters in subsection (1)- (a) must record the giving of the information and the person's responses, if any, by audio recording or audiovisual recording or in writing signed by the person or, if the person refuses to sign, by an independent person, if present; and (b) must give or send by registered post to the person or his or her legal practitioner, without charge- (i) if the giving of the information and the responses are recorded by audio recording or audiovisual recording, a copy of the recording as soon as practicable but not more than 7 days after the information is given, and, if a transcript of the recording is prepared, a copy of the transcript as soon as practicable; and (ii) if the giving of the information and the responses are recorded in writing, a copy of the record forthwith. Crimes Act 1958 - SECT 464Z Procedure for taking samples etc. 464Z. Procedure for taking samples etc. (1) The Chief Commissioner of Police may authorise a person to take non-intimate samples or to conduct physical examinations of a non-intimate part of the body for the purposes of this Subdivision. (1A) The Chief Commissioner of Police may authorise a member of the police force, or a class of members of the police force, to supervise the taking of scrapings from the mouth for the purposes of subsection (3A). (2) The Chief Commissioner must give a copy of an authority under subsection (1) or (1A) to the Minister who must cause it to be laid before the Legislative Council and the Legislative Assembly before the expiration of the seventh sitting day of the Council or the Assembly, as the case may be, after it has been received by the Minister. (3) For the purposes of a forensic procedure under this Subdivision- (a) an intimate sample (other than a dental impression) or a physical examination of an intimate part of the body may only be taken or conducted by a medical practitioner or nurse of the same sex, if practicable, as the person from whom the sample is to be taken or who is to be examined; (b) a dental impression may only be taken by a dentist; (c) a non-intimate sample or a physical examination of a non-intimate part of the body may be taken or conducted by a medical practitioner or nurse or a person authorised in accordance with subsection (1). (3AA) Despite subsection (3), a person from whom a sample of hair, other than pubic hair, is to be taken in accordance with- (a) an authorisation given under section 464SA; or (b) an order made by a court under this Subdivision- may elect to provide instead a scraping taken by the person from his or her mouth if a member of the police force authorised in accordance with subsection (1A) considers that- (c) a scraping is appropriate in the circumstances; and (d) it is appropriate for the person to take the scraping. (3AB) An election made by a person under subsection (3AA) must be recorded by audio recording or audiovisual recording or in writing signed by the person. (3A) Nothing in subsection (3) prevents a person from whom a scraping from the mouth is to be taken from taking the scraping himself or herself under the supervision of a member of the police force authorised in accordance with subsection (1A) if- (a) the member considers it appropriate for the person to do so; and (b) the person consents to taking the scraping and the consent is recorded by audio recording or audiovisual recording or in writing signed by the person. (3B) The member of the police force referred to in subsection (3AA) or (3A) must give or send by registered post to the person from whom a scraping is taken or his or her legal practitioner, without charge- (a) if the election or consent is recorded by audio recording or audiovisual recording, a copy of the recording as soon as practicable but not more than 7 days after the election is made or the consent is given, and, if a transcript of the recording is prepared, a copy of the transcript as soon as practicable; and (b) if the election or consent is recorded in writing, a copy of the record forthwith. (4) A person from whom an intimate sample is to be taken (except a scraping from a person's mouth to be taken by that person) or who is to undergo a physical examination of an intimate part of the body may request that a medical practitioner or nurse or, if a dental impression is to be taken, a dentist of his or her choice take the sample or conduct the examination or be present during the forensic procedure. (5) If a medical practitioner, nurse or dentist is chosen by a person under subsection (4)- (a) if practicable, the forensic procedure is to be conducted by or in the presence of the chosen person; and (b) if the chosen person conducts the forensic procedure, a medical practitioner, nurse or dentist (as the case requires) nominated by the police must be present. (6) A sample must be taken or a physical examination must be conducted- (a) if taken or conducted by a medical practitioner, nurse or dentist, in a manner consistent with the appropriate medical or dental standards; and (ab) in the presence of a member of the police force who is present to witness the taking of the sample or the conduct of the physical examination, subject to subsection (9), and is of the same sex, if practicable, as the person from whom the sample is to be taken or who is to be examined; and (b) in circumstances affording reasonable privacy to the person from whom the sample is to be taken or who is to be examined; and (c) in the presence only of- (i) a member of the police force required by paragraph (ab) to be present; and (ii) a person required by section 464ZA to be present; and (iii) a person referred to in subsection (5); and (iv) a member of the police force referred to in subsection (3A). (7) A blood sample for the purposes of this Subdivision must not exceed 10 millilitres. (7A) For the purposes of this Subdivision, a person is authorised to take a sample of hair by removing the root of the hair only if- (a) the person takes only so much hair as the person believes is necessary for analysis of the sample or other examination of the hair; and (b) strands of hair are taken using the least painful technique known and available to the person. (8) This Subdivision does not compel any medical practitioner, nurse or dentist to take a sample from a person nor to conduct a physical examination of a person nor to be present when a sample is taken or an examination is conducted. (9) If a scraping is to be taken from a person's mouth and the person is to take it, the witness required by subsection (6)(ab) to be present need not be of the same sex as the person. Crimes Act 1958 - SECT 464ZA Execution of authorisation or order 464ZA. Execution of authorisation or order (1) If- (a) a senior police officer gives an authorisation under section 464SA for the conduct of a non-intimate compulsory procedure; or (b) a court makes an order under section 464T(3), 464U(7) or 464V(5) for the conduct of a compulsory procedure; or (c) a court makes an order under section 464ZF or 464ZFAAA for the conduct of a forensic procedure- a member of the police force, with such assistance as he or she considers necessary, may use reasonable force to assist a medical practitioner, nurse, dentist or