Crimes Act 1900

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Crimes Act 1900
Coat of Arms of New South Wales.svg
Parliament of New South Wales
  • An Act to consolidate the Statutes relating to Criminal Law.
Citation No. 40, 1900
Territorial extent New South Wales
Royal assent 31 October 1900
Administered by Attorney General of New South Wales
Status: Current legislation

The Crimes Act1900 (NSW) [1] is an Act of the Parliament of New South Wales that defines an extensive list of offences and sets out punishments for the majority of criminal offences in New South Wales (NSW), Australia. The Act, alongside the Crimes Act 1914 (Cth) and the Criminal Code Act 1995 (Cth), [2] [3] form the almost complete basis of criminal law for the State. It is the primary criminal law statute of NSW, and which formed the basis for the Australian Capital Territory's Crimes Act1900 (ACT). [4]

Contents

The Act

Serious Offences

Murder

The Act requires that, for a person to be guilty of murder in NSW, the prosecution must prove both actus reus (literally: guilty act) and mens rea (literally: guilty mind). [5] The act must cause the death of a person without lawful excuse - A causes B's death. It was previously a requirement that death occur within a year and a day after the date on which the person received the injury, however that has been abolished in NSW. [6]

The guilty mind may be one of three different states of mind: an intent to kill, an intent to commit grievous bodily harm, or reckless indifference to human life. [5] If A intended to kill B, whether it was premeditated or on the spur of the moment, A is guilty of murder. Similarly if A intended to kill B but instead killed C, A is guilty of murder. The culpability of the person does not depend on whether the person intended to kill, or was recklessly indifferent. [7]

Moreover, a person is also guilty of murder if the act causing death was done with the intent to cause grievous bodily harm. Grievous bodily harm includes any permanent or serious disfiguring, death of a fetus, or causing a person to contract a grievous bodily disease. [8] If A intentionally inflicts grievous bodily harm on B and B dies, then A is guilty of B's murder.

The more difficult concept for culpability is "reckless indifference to human life". [7] The accused must be aware of the probability (as opposed to possibility), [7] that the accused's act would result in a person's death (as opposed to merely resulting in grievous bodily harm). [9] [10] That is A saw that his actions carried a probability of B's death. Douglas Crabbe was convicted of murder when he drove a truck into a pub in which he knew it was highly likely that people would be killed. [11] In R v Faure the Victorian Court of Appeal described "probable" as meaning "a substantial, or real and not remote, chance, whether or not it is more than 50 per cent". [12] Similarly, it was held in Darkan v R , that "probable must be distinguished from merely possible". [13]

As long as one of these above mental states is present, and given that the test of causation is satisfied, the intended method of death becomes irrelevant. [9] For example, in Royall v R, the High Court upheld a murder conviction obtained when a woman died from jumping out of a window to avoid an attempt from her partner to inflict grievous bodily harm upon her. The court ruled "It is immaterial that the death was caused in a way which the applicant did not precisely foresee." [9]

The final level is constructive murder (also termed felony murder) in which A kills B (even if unintentionally - the only question that can be raised is whether the act was voluntary or not) [14] during or immediately after the commission of a crime, or during an attempt to commit a crime. [15] The crime that qualifies the murder as 'constructive murder' must be a crime that is punishable by imprisonment for either 25 years or life.

The maximum penalty for murder is life imprisonment. [16] The Court will use discretion in determining the sentence and will only impose life imprisonment if "the level of culpability in the commission of the offence is so extreme" and it is in the interest of “retribution, punishment, community protection and deterrence”. [17] Life imprisonment means imprisonment for “natural life”. [16] Section 19B mandates a sentence of life imprisonment (subject to some exceptions) if the victim is a police officer killed in the execution of his or her duty, or in retaliation for past execution of duty, and the accused knew, or ought reasonably to have known, the victim was a police officer and intended to kill the police officer. [18]

Manslaughter

Where the prosecution cannot establish the necessary actus reus and mens rea elements of murder beyond reasonable doubt, the accused may be convicted of manslaughter. [5] Manslaughter carries a maximum sentence of 25 years imprisonment. [19]

Publicly threatening and inciting violence law

In June 2018, both houses of the Parliament of New South Wales unanimously passed and the Governor of New South Wales signed an urgent bill without amendments called the Crimes Amendment (Publicly Threatening and Inciting Violence) Bill 2018 [20] to repeal the vilification laws within the Anti-Discrimination Act 1977 and replace it with criminal legislation with up to an explicit 3-year term of imprisonment within this Act. [21] [22] The legislation went into effect on August 13, 2018 - by proclamation on August 10, 2018. [23]

Other provisions

Division 3 of the Act covers attempts to murder, [24] while Division 5 relates to attempting or aiding suicide. [25]

Punishment for crimes deemed as 'common assault' is set out in Division 9. [26] Aggravated assault includes assault with further specific intent, [27] assault causing particular injuries (actual bodily harm, [28] and grievous bodily harm, [29] assault with offensive weapons or dangerous substances [30] ("offensive weapon or instrument" is defined in s 4 of the Crimes Act [8] ) and assaults on victims of special status, [31] such as:

The criminal offence of sexual assault is located in Division 10, which includes the definition of "sexual intercourse"; [38] consent in relation to sexual assault offences; [39] the elements of the offence of sexual assault; [40] aggravated sexual assault; [41] aggravated sexual assault in company; [42] and assault with intent to have intercourse; [43]

Amendments

After the death of Thomas Kelly in 2012, NSW Parliament introduced the "one-punch-law". This law mandates a minimum sentence of 8 years to the maximum sentence of 25 years for assault causing death in intoxicated (alcohol/drug) conditions. and maximum sentence of 20 years for assault causing death without intoxicated conditions. There is also no requirement to prove the assailant knew the punch would be fatal. [44]

In November 2021, "Zoe's Law" was passed within NSW under the Crimes Act 1900. In 2019, all abortion offences were repealed from the Crimes Act 1900 - but when a fetus is lost as a result of a wide range of criminal acts (such as dangerous driving or grievous bodily harm). [45]

See also

Related Research Articles

<span class="mw-page-title-main">Assault</span> Physical or verbal attack of another person

An assault is the illegal act of causing physical harm or unwanted physical contact to another person, or, in some legal definitions, the threat or attempt to do so. It is both a crime and a tort and, therefore, may result in criminal prosecution, civil liability, or both. Additionally, assault is a criminal act in which a person intentionally causes fear of physical harm or offensive contact to another person. Assault can be committed with or without a weapon and can range from physical violence to threats of violence. Assault is frequently referred to as an attempt to commit battery, which is the deliberate use of physical force against another person. The deliberate inflicting of fear, apprehension, or terror is another definition of assault that can be found in several legal systems. Depending on the severity of the offense, assault may result in a fine, imprisonment, or even death.

Life imprisonment is any sentence of imprisonment for a crime under which convicted criminals are to remain in prison for the rest of their natural lives. Crimes that warrant life imprisonment are extremely serious and usually violent. Examples of these crimes are murder, torture, terrorism, child abuse resulting in death, rape, espionage, treason, illegal drug trade, human trafficking, severe fraud and financial crimes, aggravated property damage, arson, hate crime, kidnapping, burglary, robbery, piracy, aircraft hijacking, and genocide.

Battery is a criminal offense involving unlawful physical contact, distinct from assault, which is the act of creating apprehension of such contact.

The rule of felony murder is a legal doctrine in some common law jurisdictions that broadens the crime of murder: when someone is killed in the commission of a dangerous or enumerated crime, the offender, and also the offender's accomplices or co-conspirators, may be found guilty of murder.

Attempted murder is a crime of attempt in various jurisdictions.

Criminal transmission of HIV is the intentional or reckless infection of a person with the human immunodeficiency virus (HIV). This is often conflated, in laws and in discussion, with criminal exposure to HIV, which does not require the transmission of the virus and often, as in the cases of spitting and biting, does not include a realistic means of transmission. Some countries or jurisdictions, including some areas of the U.S., have enacted laws expressly to criminalize HIV transmission or exposure, charging those accused with criminal transmission of HIV. Other countries charge the accused under existing laws with such crimes as murder, manslaughter, attempted murder, assault or fraud.

Assault occasioning grievous bodily harm is a term used in English criminal law to describe the severest forms of battery. It refers to two offences that are created by sections 18 and 20 of the Offences against the Person Act 1861. The distinction between these two sections is the requirement of specific intent for section 18; the offence under section 18 is variously referred to as "wounding with intent" or "causing grievous bodily harm with intent", whereas the offence under section 20 is variously referred to as "unlawful wounding", "malicious wounding" or "inflicting grievous bodily harm".

<span class="mw-page-title-main">Offences Against the Person Act 1861</span> UK criminal statute

The Offences against the Person Act 1861 is an Act of the Parliament of the United Kingdom of Great Britain and Ireland. It consolidated provisions related to offences against the person from a number of earlier statutes into a single Act. For the most part these provisions were, according to the draftsman of the Act, incorporated with little or no variation in their phraseology. It is one of a group of Acts sometimes referred to as the Criminal Law Consolidation Acts 1861. It was passed with the object of simplifying the law. It is essentially a revised version of an earlier consolidation act, the Offences Against the Person Act 1828, incorporating subsequent statutes.

Assault occasioning actual bodily harm is a statutory offence of aggravated assault in England and Wales, Northern Ireland, the Australian Capital Territory, New South Wales, Hong Kong and the Solomon Islands. It has been abolished in the Republic of Ireland and in South Australia, but replaced with a similar offence.

Murder is an offence under the common law legal system of England and Wales. It is considered the most serious form of homicide, in which one person kills another with the intention to unlawfully cause either death or serious injury. The element of intentionality was originally termed malice aforethought, although it required neither malice nor premeditation. Baker, chapter 14 states that many killings done with a high degree of subjective recklessness were treated as murder from the 12th century right through until the 1974 decision in DPP v Hyam.

In criminal law, the term offence against the person or crime against the person usually refers to a crime which is committed by direct physical harm or force being applied to another person.

Rape is a type of sexual assault initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, under threat or manipulation, by impersonation, or with a person who is incapable of giving valid consent.

Manslaughter is a common law legal term for homicide considered by law as less culpable than murder. The distinction between murder and manslaughter is sometimes said to have first been made by the ancient Athenian lawmaker Draco in the 7th century BC.

<span class="mw-page-title-main">Crime and Disorder Act 1998</span> United Kingdom legislation

The Crime and Disorder Act 1998 is an Act of the Parliament of the United Kingdom. The Act was published on 2 December 1997 and received royal assent in July 1998. Its key areas were the introduction of Anti-Social Behaviour Orders, Sex Offender Orders, Parenting Orders, granting local authorities more responsibilities with regards to strategies for reducing crime and disorder, and the introduction of law specific to 'racially aggravated' offences. The Act also abolished rebuttable presumption that a child is doli incapax and formally abolished the death penalty for the last civilian offences carrying it, namely treason and piracy.

Fault, as a legal term, refers to legal blameworthiness and responsibility in each area of law. It refers to both the actus reus and the mental state of the defendant. The basic principle is that a defendant should be able to contemplate the harm that his actions may cause, and therefore should aim to avoid such actions. Different forms of liability employ different notions of fault, in some there is no need to prove fault, but the absence of it.

Child destruction is the name of a statutory offence in England and Wales, Northern Ireland, Hong Kong and in some parts of Australia.

Burglary is a statutory offence in England and Wales.

In Australia, murder is a criminal offence where a person, by a voluntary act or omission, causes the death of another person with either intent to kill, intent to inflict grievous bodily harm, or with reckless indifference to human life. It may also arise in circumstances where the accused was committing, or assisting in the commission, of a different serious crime that results in a person's death. It is usually punished by life imprisonment. Australia is a federal nation and the law of murder is mostly regulated under the law of its constituent states and territories. There is also federal murder offence available in limited circumstances.

In Canada, homicide is the act of causing death to another person through any means, directly or indirectly. Homicide can either be culpable or non-culpable, with the former being unlawful under a category of offences defined in the Criminal Code, a statute passed by the Parliament of Canada that applies uniformly across the country. Murder is the most serious category of culpable homicide, the others being manslaughter and infanticide.

Non-fatal offences against the person, under English law, are generally taken to mean offences which take the form of an attack directed at another person, that do not result in the death of any person. Such offences where death occurs are considered homicide, whilst sexual offences are generally considered separately, since they differ substantially from other offences against the person in theoretical basis and composition. Non-fatal offences against the person mainly derive from the Offences against the Person Act 1861, although no definition of assault or battery is given there.

References

  1. ↑ Crimes Act 1900 No 40 (NSW).
  2. ↑ Crimes Act 1914 (Cth).
  3. ↑ Criminal Code Act 1995 (Cth).
  4. ↑ Crimes Act 1900 (ACT).
  5. 1 2 3 Crimes Act 1900 (NSW) s 18 Murder and manslaughter defined.
  6. ↑ Crimes Act 1900 (NSW) s 17A Date of death.
  7. 1 2 3 4 R v Crabbe [1985] HCA 22 , (1985) 156 CLR 464(26 March 1985), High Court.
  8. 1 2 Crimes Act 1900 (NSW) s 4 Definitions.
  9. 1 2 3 Royall v R [1991] HCA 27 , (1991) 172 CLR 378(25 June 1991), High Court.
  10. ↑ Campbell v R [2014] NSWCCA 175 (2 September 2014), Court of Criminal Appeal (NSW).
  11. ↑ Crabbe's original conviction was set aside because the judge erred in summing up to the jury of what was meant by reckless indifference. [7] Crabbe was convicted of 5 counts of murder at a second trial and sentenced to life imprisonment :R v Crabbe [2004] NTSC 63, Supreme Court (NT).
  12. ↑ R v Faure [1999] VSCA 166 , [1999] 2 VR 537(24 September 1999), Court of Appeal (Vic).
  13. ↑ Darkan v R [206] HCA 34 , (2006) 227 CLR 373(22 June 2006), High Court.
  14. ↑ Ryan v R [1967] HCA 2 , (1967) 121 CLR 205(3 March 1967), High Court.
  15. ↑ Hudd v R [2013] NSWCCA 57 (15 March 2013), Court of Criminal Appeal (NSW).
  16. 1 2 Crimes Act 1900 (NSW) s 19A Punishment for murder.
  17. ↑ Crimes (Sentencing Procedure) Act (NSW) s 61 Mandatory life sentences for certain offences.
  18. ↑ Crimes Act 1900 (NSW) s 19B Mandatory life sentences for murder of police officers.
  19. ↑ Crimes Act 1900 (NSW) s 24 Manslaughter--punishment.
  20. ↑ "Error" (PDF).
  21. ↑ "Crimes Amendment (Publicly Threatening and Inciting Violence) Bill 2018".
  22. ↑ "New laws to target incitement of violence". Archived from the original on 20 May 2019. Retrieved 25 August 2018.
  23. ↑ https://www.legislation.nsw.gov.au/regulations/2018-422.pdf [ bare URL PDF ]
  24. ↑ Crimes Act 1900 (NSW) s 27 Acts done to the person with intent to murder.
  25. ↑ Crimes Act 1900 (NSW) s 31A Suicide and attempt to commit suicide; and 31C (NSW) Aiding etc suicide.
  26. ↑ Crimes Act 1900 (NSW) s 61 Common assault prosecuted by indictment.
  27. ↑ Crimes Act 1900 (NSW) s 58 Assault with intent to commit a serious indictable offence on certain officers.
  28. ↑ Crimes Act 1900 (NSW) s 59 Assault occasioning actual bodily harm.
  29. ↑ Crimes Act 1900 (NSW) s 54 Causing grievous bodily harm.
  30. ↑ Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), p670-1
  31. ↑ Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), p672-6
  32. ↑ Crimes Act 1900 (NSW) s 42 Injuries to child at time of birth.
  33. ↑ Crimes Act 1900 (NSW) s 43 Abandoning or exposing a child under 7 years.
  34. ↑ Crimes Act 1900 (NSW) s 44 Failure of persons to provide necessities of life.
  35. ↑ Crimes Act 1900 (NSW) s 56 Obstructing member of the clergy in discharge of his or her duties.
  36. ↑ Crimes Act 1900 (NSW) s 57 Assault on persons preserving wreck.
  37. ↑ Crimes Act 1900 (NSW) s 206 Assault etc on member of crew of aircraft or vessel.
  38. ↑ Crimes Act 1900 (NSW) s 61H Definition of "sexual intercourse" and other terms.
  39. ↑ Crimes Act 1900 (NSW) s 61HA Consent in relation to sexual assault offences.
  40. ↑ Crimes Act 1900 (NSW) s 61I Sexual assault.
  41. ↑ Crimes Act 1900 (NSW) s 61J Aggravated sexual assault.
  42. ↑ Crimes Act 1900 (NSW) s 61JA Aggravated sexual assault in company.
  43. ↑ Crimes Act 1900 (NSW) s 61K Assault with intent to have sexual intercourse.
  44. ↑ Crimes Act 1900 (NSW) s 25A Assault causing death.
  45. ↑ "NSW passes Zoe's Law to impose harsher penalties for the death of an unborn baby - ABC News". ABC News. 20 November 2021.
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