Criminal Code Act Compilation Act 1913

 

Criminal Code Act Compilation Act 1913

Contents

Preamble2

1.Short title and commencement3

2.Repeal3

3.Matters and things originated under repealed Acts to enure for the purposes of the compiled Act3

Appendix A — Acts and Parts of Act Repealed

Appendix B — Criminal Code Act 1913

Preamble5

1.Short title5

2.The Criminal Code established5

3.Construction of statutes, statutory rules, and other instruments5

4.Provisions of Code exclusive, with certain exceptions6

5.Civil remedies and saving7

7.Contempt of court7

Schedule — The Criminal Code

Notes

Compilation table 309

Provisions that have not come into operation323

Defined terms

 

 

Criminal Code Act Compilation Act 1913

An Act to enact a compilation of the Criminal Code Act 1902, with its amendments and portion of the Secret Commissions Act 1905, and for other related purposes.


Preamble

Whereas the Legislative Council and Legislative Assembly on 22 December 1911, directed the compilation with its amendments of the Criminal Code Act 1902; and a compilation of the said Act and the Acts amending the same was duly made in accordance with the Statutes Compilation Act (as amended): And whereas it is desirable to repeal the Acts so compiled: And whereas in order to carry out the purposes of the Criminal Code Amendment Act 1913, it is desirable to include in the compilation the further amendments authorised to be so included by that Act, and also the provisions of the Secret Commissions Act 1905 (except section 19 thereof), and to repeal the last‑mentioned Act and the portions of the Criminal Code Amendment Act 1913, containing the said further amendments: And whereas the Acts and the parts of an Act which it is desirable to repeal are set out in the Appendix A; and the compiled Act set out in Appendix B is a true compilation of the Acts and parts of Acts so directed to be compiled or authorised to be included in the compilation as aforesaid, and it is desirable to give such compilation the force of law. Be it therefore enacted by the King’s Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Legislative Assembly of Western Australia, in this present Parliament assembled, and by the authority of the same, as follows:

 

1.Short title and commencement

This Act may be cited as the Criminal Code Act Compilation Act 1913 1, and shall come into operation on 1 January 1914.

2.Acts repealed

The Acts and parts of an Act set out in Appendix A are hereby repealed, and the compiled Act set forth in Appendix B is hereby enacted under the title of the Criminal Code Act 1913.

3.Savings for things done under repealed Acts

(1)All offices, appointments, regulations, rules, convictions, sentences, judgments, orders, registers, records, certificates, and instruments, and generally all acts of authority, which originated or were operative or subsisting under any enactment repealed by this Act and hereby re‑enacted with or without modification, and which are subsisting or in force on or immediately prior to the commencement of the compiled Act shall, subject to that Act, enure for the purposes thereof as fully and effectually as if they had originated under the corresponding provisions of that Act, and accordingly shall, where necessary, be deemed to have so originated.

(2)All offences committed against and all pending matters and proceedings commenced under any such enactment may be prosecuted, continued, and completed under and subject to the provisions of the compiled Act.

 

Appendix A

Acts and Parts of Act Repealed.

1 and 2 Edw. VII No. 14 — The Criminal Code Act 1902

2 Edw. VII No. 29 — The Criminal Code Amendment Act 1902

No. 13 of 1905 — The Secret Commissions Act 1905

No. 31 of 1906 — The Criminal Code Amendment Act 1906

No. 28 of 1911 — The Criminal Code Amendment Act 1911

No. 52 of 1911 — The Criminal Code Amendment Act 1911

Sections 2 to 29 (both inclusive) of Act No. 15 of 1913 — The Criminal Code Amendment Act 1913

 

Appendix B

An Act to establish a Code of Criminal Law.

Preamble

Whereas it is desirable to declare and consolidate the Criminal Law: Be it enacted and declared by the King’s Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Legislative Assembly of Western Australia, in this present Parliament assembled, and by the authority of the same, as follows:

1.Short title

This Act may be cited as the Criminal Code Act 1913 1.

2.The Criminal Code established

The provisions contained in the Code of Criminal Law set forth in the Schedule to this Act, and hereinafter called the Code, shall be the law of Western Australia with respect to the several matters therein dealt with.

The said Code may be cited as “The Criminal Code”.

3.Construction of statutes, statutory rules, and other instruments

The following rules shall, unless the context otherwise indicates, apply with respect to the construction of statutes, statutory rules, local laws, by‑laws, and other instruments, that is to say —

(1)When in any statute, statutory rule, local law, by‑law, or other instrument, public or private, the term felony is used, or reference is made to an offence by the name of felony, it shall be taken that reference is intended to an offence which is a crime under the provisions of the Code:

(2)When in any statute, statutory rule, local law, by‑law, or other instrument, public or private, the term murder is used, it shall be taken that reference is intended to include the crime that was called wilful murder under the Code as it was before the commencement of the Criminal Law Amendment (Homicide) Act 2008:

(3)When in any statute, statutory rule, local law, by‑law, or other instrument, public or private, the term larceny is used, it shall be taken that reference is intended to the crime of stealing:

(4)When in any statute, statutory rule, local law, by‑law, or other instrument, public or private, reference is made to any offence by any specific name, it shall be taken that reference is intended to the offence which, under the provisions of the Code, is constituted by the act or omission that would heretofore have constituted the offence referred to:

(5)When in any statute, statutory rule, local law, by‑law, or other instrument, public or private, reference is made to any of the statutory provisions hereby repealed, it shall be taken that reference is intended to the corresponding provisions or substituted provisions of the Code.

[Section 3 amended: No. 14 of 1996 s. 4; No. 57 of 1997 s. 45; No. 29 of 2008 s. 27.]

4.Offences are only those in WA’s statute law with some exceptions

No person shall be liable to be tried or punished in Western Australia as for an offence, except under the express provisions of the Code, or some other statute law of Western Australia, or under the express provisions of some statute of the Commonwealth of Australia, or of the United Kingdom which is expressly applied to Western Australia, or which is in force in all parts of His Majesty’s dominions not expressly excepted from its operation, or which authorises the trial and punishment in Western Australia of offenders who have, at places not in Western Australia, committed offences against the laws of the Commonwealth of Australia or of the United Kingdom.

[Section 4 amended: No. 4 of 2004 s. 58.]

5.No civil action for lawful acts; saving

When, by the Code, any act is declared to be lawful, no action can be brought in respect thereof.

Except as aforesaid, the provisions of this Act shall not affect any right of action which any person would have had against another if this Act had not been passed; nor shall the omission from the Code of any penal provision in respect of any act or omission, which before the time of the coming into operation of the Code constituted an actionable wrong, affect any right of action in respect thereof.

[6.Deleted: No. 78 of 1995 s. 22.]

7.Contempt of court powers not affected

Nothing in this Act or in the Code shall affect the authority of courts of record to punish a person summarily for the offence commonly known as “contempt of court”; but so that a person cannot be so punished, and also punished under the provisions of the Code for the same act or omission.

[8.Deleted: No. 13 of 1984 s. 9.]

 

The Criminal Code

Contents

Part I — Introductory

Interpretation: Application: General principles

Chapter I — Interpretation

1.Terms used27

2.Term used: offence36

3.Indictable offences, general provisions as to36

4.Term used: attempt to commit offence36

5.Summary conviction penalty, meaning and effect of37

6.Terms used: carnal knowledge, carnal connection39

Chapter II — Parties to offence

7.Principal offenders40

8.Offence committed in prosecution of common purpose40

9.Counselled offence, mode of execution immaterial41

10. Term used: accessory after the fact41

Chapter IIA — Alternative offences

10A.Conviction of alternative offence, when possible42

10B.Alternative offence, meaning and effect of42

10C.Conviction of alternative offence, consequences of43

10D.Charge of offence, alternative convictions of attempt etc.43

10E.Charge of attempt, alternative convictions on44

10F.Charge of conspiracy, alternative convictions on44

10G.Charge of procuring, alternative convictions on45

10H.Charge of attempting to procure, alternative convictions on45

10I.Joined charges of receiving, verdicts on46

Chapter III — Application of criminal law

11.Effect of changes in law46

12.Territorial application of criminal law46

13.Offence aided, counselled or procured by person out of WA47

14.Offence procured in WA to be committed out of WA48

15.Defence force not exempt from Code48

17.Previous conviction or acquittal a defence48

Chapter V — Criminal responsibility

22.Ignorance of law, honest claim of right49

23.Intention and motive49

23A.Unwilled acts and omissions49

23B.Accident50

24.Mistake of fact50

25.Emergency51

26.Presumption of sanity51

27.Insanity51

28.Intoxication52

29.Immature age52

30.Judicial officers53

31.Lawful authority53

32.Duress53

34.Offences by partners and members of companies with respect to partnership or corporate property54

36.Application of Chapter V54

Part II — Offences against public order

Chapter VII — Sedition

44.Term used: seditious intention55

45.Acts excepted from s. 4455

46.Terms used: seditious enterprise, seditious words, seditious writing56

47.Oath to kill person56

48.Other unlawful oaths57

49.Compulsion, how far a defence to s. 47 and 4858

51.Unlawful military activities58

52.Sedition59

Chapter VIII — Offences against the executive and legislative power

54.Interfering with Governor or Ministers60

55.Interfering with legislature60

56.Disturbing Parliament61

57.False evidence before Parliament61

58.Threatening witness before Parliament61

59.Witness not attending or giving evidence before Parliament62

60.Member of Parliament receiving bribe62

61.Bribery of member of Parliament63

Chapter IX — Unlawful assemblies: Breaches of the peace

62.Terms used: unlawful assembly, riot, riotously assembled64

63.Taking part in an unlawful assembly64

64.Unlawful assembly may be ordered to disperse64

65.Taking part in riot65

66.Rioters may be ordered to disperse65

67.Rioters causing damage65

68A.Provisions about lawful excuses under s. 68B, 68C, 68D and 68E66

68B.Being armed in or near place of public entertainment67

68C.Being armed in public in company67

68D.Having ready access to both weapon and cash68

68E.Having ready access to both weapon and illegal drug68

68.Being armed in a way that may cause fear69

69.Forcibly entering land69

70.Forcibly keeping possession of land70

70A.Trespass70

70B.Trespasser may be asked for name and address71

71.Fighting in public causing fear72

72.Challenge to fight duel72

73.Prize fight72

74.Threat toward dwelling72

74A.Disorderly behaviour in public73

74B.Causing fear or alarm to driver of conveyance or others73

75A.Term used: out‑of‑control gathering74

75B.Organising out‑of‑control gathering76

Chapter X — Offences against political liberty

75.Interfering with political liberty78

Chapter XI — Racist harassment and incitement to racial hatred

76.Terms used78

77.Conduct intended to incite racial animosity or racist harassment79

78.Conduct likely to incite racial animosity or racist harassment79

79.Possession of material for dissemination with intent to incite racial animosity or racist harassment80

80.Possession of material for dissemination that is likely to incite racial animosity or racist harassment80

80A.Conduct intended to racially harass81

80B.Conduct likely to racially harass81

80C.Possession of material for display with intent to racially harass82

80D.Possession of material for display that is likely to racially harass82

80E.Conduct and private conduct, meaning of in s. 77, 78, 80A and 80B83

80F.Belief as to existence or membership of racial group83

80G.Defences to s. 78, 80, 80B or 80D charge83

80H.Consent to prosecution under s. 77, 78, 79 or 80 required84

80I.Term used: circumstances of racial aggravation84

80J.Unlawful material, forfeiture of85

Part III — Offences against the administration of law and justice and against public authority

Chapter XII — Disclosing official secrets

81.Disclosing official secrets86

Chapter XIII — Corruption and abuse of office

82.Bribery of public officer87

83.Corruption87

84.Judicial officer, s. 82 and 83 do not apply to88

85.Falsification of record by public officer88

86.Administering oath without authority88

87.Impersonating public officer89

88.Bargaining for public office90

Chapter XIV — Offences at elections

93.Terms used90

94.Application of this Chapter91

95.Liability for acts of others91

96.Bribery91

97.Undue influence92

98.Electoral material, printing and publication of93

99.False or defamatory statements or deceptive material, publication of94

100.Postal voting, offences in connection with95

101.Polling place, offences at or near95

102.Voting offences96

103.Ballot paper and ballot box offences97

104.Secrecy offences97

105.Electoral officer, offences by98

106.False statements in connection with an election98

107.Evidentiary matters99

Chapter XVI — Offences relating to the administration of justice

120.Term used: judicial proceeding100

121.Judicial corruption100

122.Official corruption not judicial but relating to offences101

123.Corrupting or threatening juror101

124.Perjury102

125.Perjury, penalty for103

127.False evidence before Royal Commission103

128.Threatening witness before Royal Commission etc.103

129.Fabricating evidence104

130.Corruption of witness104

131.Deceiving witness105

132.Destroying evidence105

133.Preventing witness from attending105

133A.False prosecution, commencing106

134.Conspiracy to commence false prosecution106

135.Conspiring to pervert etc. course of justice106

136.Compounding or concealing offence107

138.Advertising reward etc. for stolen property107

139.Justice acting when personally interested108

141.Bringing fictitious action on penal statute108

142.Inserting advertisement without authority of court108

143.Attempting to pervert etc. course of justice109

Chapter XVII — Escapes: Rescues: Obstructing officers of courts

144.Forcibly freeing person from lawful custody109

145.Aiding escape from lawful custody109

146.Escaping from lawful custody110

147.Permitting escape from lawful custody110

148.Aiding escapee from lawful custody110

149.Rescuing, permitting escape of or concealing a person subject to any law relating to mental disorder110

150.Removing etc. property under lawful seizure111

151.Obstructing court officer111

Chapter XX — Miscellaneous offences against public authority

169.False statement on oath112

170.False information to official etc.112

171.Creating false belief113

172.Obstructing public officer113

173.Public officer refusing to perform duty114

176.Disobeying request to help arrest person114

177.Disobeying statute law114

178.Disobeying lawful order issued by statutory authority115

Part IV — Acts injurious to the public in general

Chapter XXII — Offences against morality

181.Carnal knowledge of animal116

186.Occupier or owner allowing young person to be on premises for unlawful carnal knowledge116

187.Facilitating sexual offence against child outside WA117

190.Being involved with prostitution117

191.Procuring person to be prostitute etc.118

192.Procuring person to have unlawful carnal knowledge by threat, fraud or administering drug119

199.Abortion120

202.Obscene act in public121

203.Indecent act in public122

204.Indecent act with intent to offend123

204A.Showing offensive material to child under 16123

204B.Using electronic communication to procure, or expose to indecent matter, child under 16125

205.Ignorance of age no defence to charge under this Chapter128

206.Supplying intoxicant to person likely to abuse them128

Chapter XXIII — Misconduct relating to corpses

214.Misconduct with regard to corpse129

215.Interfering with corpse to hinder inquiry129

Chapter XXV  Child exploitation material

217A.Terms used130

217.Involving child in child exploitation131

218.Producing child exploitation material131

219.Distributing child exploitation material131

220.Possession of child exploitation material132

221A.Defences and exclusions for s. 217, 218, 219 and 220132

221B.Unlawful material, forfeiture of134

Chapter XXVA — Intimate images

221BA.Terms used134

221BB.Term used: consent135

221BC.Term used: distributes136

221BD.Distribution of intimate image137

221BE.Court may order rectification138

221BF.Review of amendments made by Criminal Law Amendment (Intimate Images) Act 2019139

Chapter XXVIA — Facilitating activities of criminal organisations

221C.Terms used140

221D.Term used: criminal organisation140

221E.Participating in activities of criminal organisation141

221F.Instructing commission of offence for benefit of criminal organisation142

Part V — Offences against the person and relating to parental rights and duties and against the reputation of individuals

Chapter XXVI — Assaults and violence to the person generally: Justification, excuse and circumstances of aggravation

221.Term used: circumstances of aggravation144

222.Term used: assault144

223.Assault is unlawful145

224.Execution of sentence is lawful145

225.Execution of process is lawful145

226.Execution of warrant is lawful145

227.Sentence, process or warrant issued without authority, effect of146

228.Sentence, process or warrant issued without authority, liability of person executing etc.146

229.Arrest of wrong person146

230.Process or warrant that is bad in law, liability of person executing etc.147

231.Executing sentence, process or warrant or making arrest, using force for147

233.Flight from arrest, use of force to prevent148

235.Escape or rescue after arrest, use of force to prevent148

238.Riot, use of force to suppress149

239.Riot, use of force to suppress by justice and police officer149

240.Riot, use of force to suppress by person acting under lawful order149

241.Riot, use of force to suppress by person acting without order in case of emergency149

242.Riot, use of force to suppress by military personnel150

243.Violence by mentally impaired person, use of force to prevent150

244.Home invasion, use of force to prevent etc.150

245.Term used: provocation152

246.Defence of provocation153

247.Repetition of insult, use of force to prevent153

248.Self‑defence153

251.Movable property, use of force to resist taking of by trespasser etc.154

252.Movable property possessed with claim of right, use of force to defend possession of155

253.Movable property possessed without claim of right etc., use of force to take155

254.Place, use of force to prevent entry to and remove people from155

255.Place possessed with claim of right, use of force to defend156

256.Entry to land to exercise disputed right‑of‑way etc., use of force to prevent156

257.Discipline of children, use of force for157

258.Discipline on ship or aircraft, use of force for157

259.Surgical and medical treatment, liability for157

259A.Inoculation procedure, liability for158

260.Excessive force is unlawful158

261.Consent to death immaterial158

Chapter XXVII — Duties relating to the preservation of human life

262.Duty to provide necessaries of life158

263.Duty of head of family159

265.Duty of person doing dangerous act159

266.Duty of person in charge of dangerous thing159

267.Duty to do certain acts160

Chapter XXVIII — Homicide: Suicide: Concealment of birth

268.Killing a person is unlawful160

269.When a child becomes a human being160

270.Term used: kill160

271.Death from act done at childbirth160

272.Causing death by threat161

273.Acceleration of death161

274.Death from bodily injury that might have been avoided or prevented161

275.Death from, or from treatment of, grievous bodily harm161

277.Unlawful homicide is murder or manslaughter162

279.Murder162

280.Manslaughter164

281.Unlawful assault causing death165

283.Attempt to unlawfully kill166

284.Culpable driving (not of motor vehicle) causing death or grievous bodily harm167

288.Procuring etc. suicide168

290.Preventing birth of live child169

291.Concealing birth of dead child169

Chapter XXIX — Offences endangering life or health

292.Disabling in order to commit indictable offence etc.169

293.Stupefying in order to commit indictable offence etc.170

294.Act intended to cause grievous bodily harm or prevent arrest170

294A.Dangerous goods on aircraft172

295.Preventing escape from wreck173

297.Grievous bodily harm173

301.Wounding and similar acts177

304.Act or omission causing bodily harm or danger177

305.Setting dangerous thing178

305A.Intoxication by deception179

306.Female genital mutilation180

Chapter XXX — Assaults

313.Common assault182

317.Assault causing bodily harm182

317A.Assault with intent183

318.Serious assault184

318A.Assault on aircraft’s crew187

Chapter XXXI — Sexual offences

319.Terms used188

320.Child under 13, sexual offences against190

321.Child of or over 13 and under 16, sexual offences against192

321A.Child under 16, persistent sexual conduct with194

322.Child of or over 16, sexual offences against by person in authority etc.197

323.Indecent assault198

324.Aggravated indecent assault198

325.Sexual penetration without consent199

326.Aggravated sexual penetration without consent200

327.Sexual coercion201

328.Aggravated sexual coercion202

329.Relatives and the like, sexual offences by203

330.Incapable person, sexual offences against205

331.Ignorance of age no defence for s. 320 and 329207

331A.Terms used in s. 331B to 331D207

331B.Sexual servitude207

331C.Conducting business involving sexual servitude208

331D.Deceptive recruiting for commercial sexual service208

Chapter XXXIII — Offences against liberty

332.Kidnapping209

333.Deprivation of liberty210

336.Procuring apprehension or detention of person not suffering from mental illness or impairment210

337.Unlawful detention or custody of person who is mentally ill or impaired211

Chapter XXXIIIA — Threats

338.Term used: threat211

338A.Threat with intent to gain etc.212

338B.Threats212

338C.Statement or act creating false apprehension as to existence of threat or danger213

Chapter XXXIIIB — Stalking

338D.Terms used215

338E.Stalking216

Chapter XXXIV — Offences relating to parental rights and duties

343.Child stealing217

343A.Publication of report of child‑stealing unlawful unless approved218

344.Deserting child under 16219

Chapter XXXV  Criminal defamation

345.Criminal defamation219

Part VI — Offences relating to property and contracts

Division I — Stealing and like offences

Chapter XXXVI — Stealing

370.Things capable of being stolen221

371.Term used: steal222

371A.Using etc. motor vehicle without consent is stealing224

372.Cases which are not stealing224

373.Funds etc. held under direction, who owns etc.224

374.Proceeds of sale etc. of property by agent, who owns225

375.Money received for another, who owns226

376.Stealing by person having an interest in the thing stolen226

378.Penalty for stealing226

Chapter XXXVII — Offences analogous to stealing

379.Concealing official register229

380.Concealing will229

381.Concealing certificate of title etc.229

382.Killing animal with intent to steal229

383.Severing with intent to steal230

384.Using registered brand with criminal intention230

385.Fraudulently dealing with ore at mine230

386.Concealing royalty230

387.Removing guano without licence231

388.Bringing stolen goods into WA231

389.Fraudulent disposition of mortgaged goods231

390.Fraudulent appropriation of electricity etc.232

390A.Unlawful use of conveyance (not of motor vehicle)232

Chapter XXXVIII — Robbery: Extortion by threats

391.Term used: circumstances of aggravation233

392.Robbery234

393.Assault with intent to rob234

396.Demanding property with threats with intent to steal235

397.Demanding property with threats with intent to extort or gain236

398.Threats etc. with intent to extort etc.236

399.Procuring execution of deed etc. by threat etc. with intent to defraud237

Chapter XXXIX — Offences in or in respect of buildings etc.

400.Terms used238

401A.Term used: relevant conviction239

401B.Term used: repeat offender243

401.Burglary244

407.Person found armed etc. with intent to commit crime247

Chapter XL — Fraud

409.Fraud248

Chapter XLI — Receiving property stolen or fraudulently obtained and like offences

414.Receiving stolen property etc.249

415.Receiving after change of ownership250

416.Taking reward for recovery of property obtained by means of indictable offence251

417.Possessing stolen or unlawfully obtained property251

417A.Punishment for possession in special cases251

Chapter XLII — Frauds by trustees and officers of companies and corporations: False accounting

418.Signing false document relating to company252

419.Company’s books etc., acts etc. as to by director etc. with intent to defraud253

420.False statement by company’s official254

421.False statement by company’s official with intent to affect share price254

422.Defence for this Chapter255

424.Fraudulent falsification of record255

Chapter XLIII — Summary conviction for stealing and like indictable offences

426.Summary conviction penalty for certain stealing and like offences256

427.Summary conviction penalty for certain offences of fraudulent nature257

Chapter XLIV — Simple offences analogous to stealing

429.Unlawfully using another person’s animal258

436.Unlawful fishing258

437.Unlawfully taking fish etc.259

Chapter XLIVA — Unauthorised use of computer systems

440A.Unlawful use of computer259

Division II — Injuries to property

Chapter XLV — Preliminary matters

441.Acts injuring property, when unlawful etc.261

442.Lawful act done with intent to defraud is unlawful261

443.Term used: wilfully destroy or damage262

444A.Duty of person in control of ignition source or fire262

Chapter XLVI — Offences

444.Criminal damage263

445A.Breach of s. 444A duty263

445.Damaging property264

449.Casting away etc. vessel264

451.Acts etc. with intent to obstruct or injure railway264

451A.Acts etc. with intent to prejudice safe use of aircraft etc.265

451B.Unlawfully interfering with aircraft266

454.Causing explosion likely to do serious injury to property266

455.Acts done with intent to cause explosion likely to do serious injury to property266

456.Acts with intent to injure mine etc.267

457.Interfering with marine navigation aid268

458.Interfering with navigation works268

459.Communicating infectious disease to animal268

460.Unlawfully travelling with infected animal269

461.Removing boundary mark with intent to defraud269

462.Obstructing railway269

Division III — Forgery and like offences: Identity crime: Personation

Chapter XLIX — Forgery and uttering

473.Forgery and uttering270

474.Preparation for forgery etc.270

Chapter L — False representations as to status

488.Procuring or claiming unauthorised status271

Chapter LI — Identity crime

489.Terms used272

490.Making, using or supplying identification material with intent to commit indictable offence273

491.Possessing identification material with intent to commit indictable offence273

492.Possessing identification equipment with intent that it be used to commit indictable offence274

493.Attempt offences do not apply274

494.Court may grant certificate to victim of identity offence275

Chapter LIII — Personation

510.Personation in general276

511.Personating owner of shares276

512.Falsely acknowledging liability etc. of another277

513.Uttering qualification etc. of another277

514.Lending qualification etc. to another with intent it be used for personation277

Division IV — Offences connected with trade and breach of contract, and corruption of agents, trustees, and others

Chapter LIV — Fraudulent debtors

527.Fraudulent dealing by judgment debtor278

Chapter LV — Corruption of agents, trustees, and others in whom confidence is reposed

529.Agent corruptly receiving or soliciting reward etc.279

530.Corruptly giving or offering agent reward etc.279

531.Gift to agent’s parent etc. deemed gift to agent280

532.Giving agent, or agent using, false receipt etc. with intent to defraud principal280

533.Secret commission given by third party to person advising another to contract with third party etc.281

534.Secret commission for advice to another281

535.Secret commission to trustee for substituted appointment282

536.Aiding etc. Chapter LV offences within or outside WA282

537.Liability of director etc. acting without authority282

538.Penalty for Chapter LV offences283

539.Court may order withdrawal of trifling or technical case283

540.Protection of witness giving answers criminating himself284

541.Stay of proceedings against such witness284

542.Custom of itself no defence284

543.Burden of proof that gift etc. not secret commission285

546.Terms used285

Chapter LVI — Other offences

547.Joint stock company officer concealing information etc. as to reduction of capital287

548.Company being wound up, officer of falsifying books of etc.288

549.Mixing uncertified with certified articles288

Part VII — Preparation to commit offences: Conspiracy: Accessories after the fact

Chapter LVII — Attempts and preparation to commit offences

552.Attempt to commit indictable offence290

553.Incitement to commit indictable offence290

555A.Attempt and incitement to commit simple offence under this Code291

556.Attempt to procure commission of criminal act292

557.Making or possessing explosives in suspicious circumstances292

Chapter LVIIA — Offences to do with preparing to commit offences

557A.Presumption as to intention293

557C.Unlawful thing, forfeiture of293

557D.Possessing stupefying or overpowering drug or thing293

557E.Possessing thing to assist unlawful entry to place294

557F.Possessing thing to assist unlawful use of conveyance294

557H.Possessing disguise294

557I.Possessing bulletproof clothing294

557J.Declared drug trafficker, consorting by296

557K.Child sex offender, offences by296

Chapter LVIII — Conspiracy

558.Conspiracy to commit indictable offence300

560.Conspiracy to commit simple offence301

Chapter LIX — Accessories after the fact and property laundering

562.Accessory after the fact to indictable offence301

563A.Property laundering302

563B.Dealing with property used in connection with an offence303

Part VIII — Miscellaneous

Chapter LXXIII — Infringement notices

720.Term used: CP Act307

721.Regulations to allow infringement notices to be issued for Code offences307

722.Alleged offenders taken to be charged suspects for purposes of Criminal Investigation (Identifying People) Act 2002308

723.Monitoring of Chapter by Ombudsman309

Chapter LXXIV — Miscellaneous provisions

730.Forfeitures, escheats etc. abolished310

731.Forfeiture etc. of property used to commit offence310

737.Saving of civil remedies310

738.Answers and discovery tending to show Chapter XXXV or LV offence311

739.Review of law of homicide311

740A.Review of certain amendments to s. 297 and 318311

740B.Review of certain amendments relating to home burglary312

740.Transitional provisions (Sch. 1)312

Schedule 1 — Transitional provisions

1.Terms used313

2.Acts or omissions committed before 1 Aug 2008313

3.Offenders serving life term at 1 Aug 2008313

Notes

Compilation table315

Provisions that have not come into operation329

Defined terms

 

Criminal Code

Part I — Introductory

Interpretation: Application: General principles

Chapter I — Interpretation

1.Terms used

(1)In this Code, unless the context otherwise indicates —

The term adult offender means, with respect to a person convicted of an offence, a person who had reached 18 years of age when the offence was committed;

The term aggravated home burglary means a home burglary committed in circumstances of aggravation (within the meaning given in section 400(1));

The term aircraft includes any machine that can derive support in the atmosphere from the reactions of the air;

The term assault has the definition provided in section 222;

The term Attorney General includes where there is a vacancy in the office of Attorney General the person appointed by the Governor to be Minister for Justice;

The term bodily harm means any bodily injury which interferes with health or comfort;

The term bribe means any property or benefit of any kind, whether pecuniary or otherwise, sought, offered, promised, agreed upon, given or obtained for the person being or to be bribed or any other person, in respect of any act done or to be done, or any omission made or to be made, or any favour or disfavour shown or to be shown, in relation to the performance or discharge of the functions of any office or employment, or the affairs or business of a principal;

The term child means —

(a)any boy or girl under the age of 18 years; and

(b)in the absence of positive evidence as to age, any boy or girl apparently under the age of 18 years;

The term circumstances of racial aggravation has the meaning given to it in section 80I;

The terms clerk and servant include any person employed for any purpose as or in the capacity of a clerk or servant, or as a collector of money, although temporarily only, or although employed also by other persons than the person alleged to be his employer, or although employed to pay as well as receive money, and any person employed as or in the capacity of a commission agent for the collection or disbursement of money, or in any similar capacity, although he has no authority from his employer to receive money or other property on his account;

The term company means an incorporated company;

The term conveyance means a vehicle, vessel or aircraft made, adapted, used, or intended to be used for the carriage of persons or goods;

The term court of summary jurisdiction means the Children’s Court when constituted so as not to consist of or include a judge of that court, the Magistrates Court, or any other court or any person that another written law says is a court of summary jurisdiction;

The term criminally responsible means liable to punishment as for an offence; and the term criminal responsibility means liability to punishment as for an offence;

The term damage, in relation to animate property, includes injure;

The term damage in relation to a record means to deal with the record so that —

(a)information recorded or stored upon the record is obliterated or rendered illegible or irrecoverable; or

(b)it can not convey a meaning in a visible or recoverable form;

The term destroy, in relation to animate property, means kill;

The term District Court means The District Court of Western Australia established under the District Court of Western Australia Act 1969;

The term dwelling means any building, structure, tent, vehicle or vessel, or part of any building, structure, tent, vehicle or vessel, that is ordinarily used for human habitation, and it is immaterial that it is from time to time uninhabited;

The term explosive substance includes a gaseous substance in such a state of compression as to be capable of explosion;

The term forge in relation to a record means to make, alter or deal with the record so that the whole of it or a material part of it —

(a)purports to be what in fact it is not; or

(b)purports to be made by a person who did not make it; or

(c)purports to be made by authority of a person who did not give that authority;

The term grievous bodily harm means any bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health;

The term home burglary means an offence against any provision of Chapter XXXIX (as enacted at any time) other than section 407 committed in respect of a place (within the meaning given in section 400(1)) ordinarily used for human habitation;

The term incites includes solicits and endeavours to persuade;

The term indictment means a written charge of an indictable offence presented to the Supreme Court or District Court in order that the accused person be tried by that court;

The term juvenile offender means, with respect to a person convicted of an offence, a person who had reached 16 but not 18 years of age when the offence was committed;

The term liable, used alone, means liable on conviction upon indictment;

The term member of the crew in relation to an aircraft means a person having duties or functions on board the aircraft;

The term mental illness means an underlying pathological infirmity of the mind, whether of short or long duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli;

The term mental impairment means intellectual disability, mental illness, brain damage or senility;

The term money includes bank notes, bank drafts, cheques, and any other orders, warrants, authorities, or requests for the payment of money;

The term motor vehicle has the same meaning as it has in the Road Traffic (Administration) Act 2008 section 4;

The term night or night‑time means the interval between 9 p.m. and 6 a.m.;

The term obtains includes obtains possession and, in relation to land, includes occupies or acquires the capacity to occupy;

The term person and owner and other like terms, when used with reference to property, include corporations of all kinds, and any other associations of persons capable of owning property: They also, when so used, include Her Majesty;

The term person employed in the Public Service includes members of the defence force and police officers, and persons employed to execute any process of a court of justice, and persons employed by the Commissioner of Railways;

The term possession includes having under control in any manner whatever, whether for the use or benefit of the person of whom the term is used or of another person, and although another person has the actual possession or custody of the thing or property in question;

The term property includes real and personal property and everything, animate or inanimate, capable of being the subject of ownership;

The term public officer means any of the following —

(a)a police officer;

(aa)a Minister of the Crown;

(ab)a Parliamentary Secretary appointed under section 44A of the Constitution Acts Amendment Act 1899;

(ac)a member of either House of Parliament;

(ad)a person exercising authority under a written law;

(b)a person authorised under a written law to execute or serve any process of a court or tribunal;

(c)a public service officer or employee within the meaning of the Public Sector Management Act 1994;

(ca)a person who holds a permit to do high‑level security work as defined in the Court Security and Custodial Services Act 1999;

(cb)a person who holds a permit to do high‑level security work as defined in the Prisons Act 1981;

(d)a member, officer or employee of any authority, board, corporation, commission, local government, council of a local government, council or committee or similar body established under a written law;

(e)any other person holding office under, or employed by, the State of Western Australia , whether for remuneration or not;

The term public place includes —

(a)a place to which the public, or any section of the public, has or is permitted to have access, whether on payment or otherwise; and

(b)a privately owned place to which the public has access with the express or implied approval of, or without interference from, the owner, occupier or person who has the control or management of the place; and

(c)a school, university or other place of education, other than a part of it to which neither students nor the public usually have access;

The term railway includes every kind of way on which vehicles are borne upon a rail or rails, whatever may be the means of propulsion;

The term receives includes obtains possession and, in relation to land, includes occupies or acquires the capacity to occupy;

The term record means any thing or process —

(a)upon or by which information is recorded or stored; or

(b)by means of which a meaning can be conveyed by any means in a visible or recoverable form,

whether or not the use or assistance of some electronic, electrical, mechanical, chemical or other device or process is required to recover or convey the information or meaning;

The terms registered brand and registered mark mean respectively a brand or mark which is registered under the authority of the laws relating to brands;

The term serious disease means a disease of such a nature as to —

(a)endanger, or be likely to endanger, life; or

(b)cause, or be likely to cause, permanent injury to health;

The term ship includes every kind of vessel used in navigation not propelled by oars;

The term summarily has the meaning given by subsection (5);

The term summary conviction means conviction otherwise than on indictment;

The term thing sent by post includes any letter, newspaper, packet, parcel, or other thing, authorised by law to be transmitted by post, which has been posted or received at a post office for delivery or transmission by post, and which is in course of transmission by post, and any movable receptacle which contains any such thing, and which is in course of transmission by post;

The term utter in relation to a forged record means use or deal with the record knowing that the record is forged;

The term valuable security includes any document which is the property of any person, and which is evidence of the ownership of any property or of the right to recover or receive any property;

The term vehicle includes any thing made, adapted or intended to be propelled or drawn on wheels, tracks or rails by any means;

The term vessel includes a ship, a boat, and every other kind of vessel used in navigation.

(2)For the purposes of this Code —

(a)a flight of an aircraft shall be taken to commence —

(i)at the time of the closing of the external door of the aircraft last to be closed before the aircraft first moves for the purpose of taking off from any place; or

(ii)if subparagraph (i) is not applicable, at the time at which the aircraft first moves for the purpose of taking off from any place;

and

(b)a flight of an aircraft shall be taken to end —

(i)at the time of the opening of the external door of the aircraft first to be opened after the aircraft comes to rest after its next landing after the commencement of the flight; or

(ii)if subparagraph (i) is not applicable, at the time at which the aircraft comes to rest after its next landing after the commencement of the flight,

or, if the aircraft is destroyed, or the flight is abandoned, before either subparagraph (i) or subparagraph (ii) becomes applicable, at the time at which the aircraft is destroyed or the flight is abandoned, as the case may be.

(3)Nothing in this Code empowering the detention in, or committal to, custody of any person (however the power may be expressed) shall be read as limiting the operation of section 4 of the Bail Act 1982.

(4)In this Code, unless the context otherwise indicates —

(a)a reference to causing or doing bodily harm to a person includes a reference to causing a person to have a disease which interferes with health or comfort; and

(b)a reference to intending to cause or intending to do bodily harm to a person includes a reference to intending to cause a person to have a disease which interferes with health or comfort; and

(c)a reference to causing or doing grievous bodily harm to a person includes a reference to causing a person to have a serious disease; and

(d)a reference to intending to cause or intending to do grievous bodily harm to a person includes a reference to intending to cause a person to have a serious disease.

(4A)In this Code, unless the context otherwise indicates —

(a)a reference to causing or doing bodily harm to a person includes, if the person is a pregnant woman, a reference to causing or doing bodily harm to the woman’s unborn child; and

(b)a reference to intending to cause or intending to do bodily harm to a person includes, if the person is a pregnant woman, a reference to intending to cause or intending to do bodily harm to the woman’s unborn child; and

(c)a reference to causing or doing grievous bodily harm to a person includes, if the person is a pregnant woman —

(i)a reference to causing or doing grievous bodily harm to the woman’s unborn child; and

(ii)a reference to causing the loss of the woman’s pregnancy;

and

(d)a reference to intending to cause or intending to do grievous bodily harm to a person includes, if the person is a pregnant woman —

(i)a reference to intending to cause or intending to do grievous bodily harm to the woman’s unborn child; and

(ii)a reference to intending to cause the loss of the woman’s pregnancy.

(5)In this Code, unless the context otherwise indicates, a reference to a charge being dealt with summarily is a reference to the charge being dealt with otherwise than on an indictment.

(6)Nothing in this Code affects the operation of the Children’s Court of Western Australia Act 1988 and in particular the jurisdiction of the Children’s Court to deal with indictable offences.

[Section 1 amended: No. 55 of 1953 s. 2; No. 53 of 1964 s. 2; No. 21 of 1972 s. 3; No. 38 of 1977 s. 3; No. 87 of 1982 s. 30; No. 119 of 1985 s. 4; No. 106 of 1987 s. 4; No. 70 of 1988 s. 4, 19(2) and 31; No. 101 of 1990 s. 4; No. 37 of 1991 s. 16; No. 14 of 1992 s. 4(1); No. 51 of 1992 s. 3; No. 32 of 1994 s. 10; No. 14 of 1996 s. 4; No. 34 of 1996 s. 4; No. 36 of 1996 s. 4; No. 69 of 1996 s. 6; No. 43 of 1999 s. 20; No. 47 of 1999 s. 10; No. 4 of 2004 s. 27; No. 59 of 2004 s. 80; No. 70 of 2004 s. 4; No. 80 of 2004 s. 4; No. 2 of 2008 s. 4; No. 8 of 2012 s. 183; No. 25 of 2015 s. 4; No. 49 of 2016 s. 98.]

2.Term used: offence

An act or omission which renders the person doing the act or making the omission liable to punishment is called an offence.

3.Indictable offences, general provisions as to

(1)This section applies to offences in this Code and in any other written law.

(2)An indictable offence is triable only on indictment, unless this Code or another written law expressly provides otherwise.

(3)A prosecution for an indictable offence, whether or not it may be tried summarily, may be commenced at any time, unless this Code or another written law expressly provides otherwise.

[(4)deleted]

(5)If a person is convicted by a court of summary jurisdiction of an indictable offence, the conviction is to be regarded as being a conviction of a simple offence only, unless the person is convicted of the offence by the Children’s Court under section 19B(4) of the Children’s Court of Western Australia Act 1988 or another written law provides otherwise.

(6)A person may be convicted and punished for an offence on indictment notwithstanding that the person might have been convicted of and punished for that offence summarily.

[Section 3 inserted: No. 4 of 2004 s. 28; amended: No. 59 of 2004 s. 80; No. 70 of 2004 s. 36(1); No. 84 of 2004 s. 28.]

4.Term used: attempt to commit offence

When a person, intending to commit an offence, begins to put his intention into execution by doing an act that is more than merely preparatory to the commission of the offence but does not fulfil his intention to such an extent as to commit the offence, he is said to attempt to commit the offence.

It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfilment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.

It is immaterial that by reason of circumstances not known to the offender, it is impossible in fact to commit the offence.

The same facts may constitute one offence and an attempt to commit another offence.

[Section 4 amended: No. 106 of 1987 s. 5.]

5.Summary conviction penalty, meaning and effect of

(1)This section applies if —

(a)a provision of this Code, or another written law, provides a summary conviction penalty for an indictable offence; and

(b)a person (the accused) is charged before a court of summary jurisdiction (the court) with committing the indictable offence in circumstances where the summary conviction penalty applies to the offence (the charge).

(2)Despite section 3(2), the court is to try the charge summarily unless —

(a)on an application made by the prosecutor or the accused before the accused pleads to the charge, the court decides under subsection (3) that the charge is to be tried on indictment; or

(b)this Code or another written law expressly provides to the contrary.

(3)The court may decide the charge is to be tried on indictment if and only if it considers —

(a)that the circumstances in which the offence was allegedly committed are so serious that, if the accused were convicted of the offence, the court would not be able to adequately punish the accused; or

(ba)that the circumstances in which the offence was allegedly committed are such that, if the accused were convicted of the offence, the Sentencing Act 1995 Part 2 Division 2A would apply to the sentencing of the accused for that offence; or

(b)that the charge forms part of a course of conduct during which other offences were allegedly committed by the accused and the accused is to be tried on indictment for one or more of those other offences; or

(c)that a co‑accused of the accused is to be tried on indictment; or

(d)that the charge forms part of a course of conduct during which other offences were allegedly committed by the accused and others and the accused or one of the others is to be tried on indictment for one or more of those other offences; or

(e)that the interests of justice require that the charge be dealt with on indictment.

(4)For the purposes of making a decision under subsection (3) the court —

(a)may require the prosecutor to provide any information the court needs and may hear submissions from both the prosecutor and the accused; and

(b)may adjourn the proceedings.

(5)If under subsection (3) the court decides that the charge is to be tried on indictment the court shall —

(a)give reasons for the decision; and

(b)deal with the accused in accordance with section 41 of the Criminal Procedure Act 2004.

(6)A decision cannot be made under subsection (3) after the accused has pleaded to the charge.

(7)A decision made under subsection (3) is final and cannot be appealed.

(8)If the court convicts the accused of the offence charged (whether after a plea of guilty or otherwise), the accused is liable to the summary conviction penalty provided for the offence, unless the court commits the accused for sentence.

(9)If the court —

(a)convicts the accused of the offence charged after a plea of guilty or otherwise; and

(b)considers that any sentence the court could impose on the accused for the offence would not be commensurate with the seriousness of the offence,

the court may commit the accused to a court of competent jurisdiction for sentence.

(10)An accused who is committed for sentence under subsection (9) is liable to the penalty with which the offence is punishable on indictment.

(11)For the purposes of this section and of any summary trial of the charge, the court must be constituted by a magistrate alone.

[Section 5 inserted: No. 4 of 2004 s. 29; amended: No. 59 of 2004 s. 80; No. 84 of 2004 s. 28 and 82; No. 49 of 2012 s. 173(2).]

6.Terms used: carnal knowledge, carnal connection

When the term carnal knowledge or the term carnal connection is used in defining an offence, it is implied that the offence, so far as regards that element of it, is complete upon penetration.

Penetration includes penetration of the anus of a female or male person.

[Section 6 amended: No. 32 of 1989 s. 4.]

Chapter II — Parties to offence

7.Principal offenders

When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say —

(a)Every person who actually does the act or makes the omission which constitutes the offence;

(b)Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c)Every person who aids another person in committing the offence;

(d)Any person who counsels or procures any other person to commit the offence.

In the fourth case he may be charged either with himself committing the offence or with counselling or procuring its commission.

A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment as if he had himself done the act or made the omission; and he may be charged with himself doing the act or making the omission.

8.Offence committed in prosecution of common purpose

(1)When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.

(2)A person is not deemed under subsection (1) to have committed the offence if, before the commission of the offence, the person —

(a)withdrew from the prosecution of the unlawful purpose; and

(b)by words or conduct, communicated the withdrawal to each other person with whom the common intention to prosecute the unlawful purpose was formed; and

(c)having so withdrawn, took all reasonable steps to prevent the commission of the offence.

[Section 8 amended: No. 89 of 1986 s. 4.]

9.Counselled offence, mode of execution immaterial

When a person counsels another to commit an offence, and an offence is actually committed after such counsel by the person to whom it is given, it is immaterial whether the offence actually committed is the same as that counselled or a different one, or whether the offence is committed in the way counselled, or in a different way, provided in either case that the acts constituting the offence actually committed are a probable consequence of carrying out the counsel.

In either case the person who gave the counsel is deemed to have counselled the other person to commit the offence actually committed by him.

10. Term used: accessory after the fact

(1)A person who, knowing that another person has committed an offence, receives or assists that other person in order to enable that other person to escape punishment is said to become an accessory after the fact to the offence.

(2)A person does not become an accessory after the fact to an offence committed by the person’s spouse by receiving or assisting that spouse.

[Section 10 inserted: No. 89 of 1986 s. 5.]

Chapter IIA — Alternative offences

[Heading inserted: No. 70 of 2004 s. 36(2).]

10A.Conviction of alternative offence, when possible

(1)A person charged with an offence cannot be convicted by the court dealing with the charge of any other offence instead of that offence unless —

(a)the accused is charged with the other offence as an alternative to that offence; or

(b)this Chapter provides otherwise.

(2)This Chapter does not authorise the conviction of a person of an offence if the prosecution for the offence was not commenced within the time (if any) limited by law for commencing a prosecution for the offence.

[Section 10A inserted: No. 70 of 2004 s. 36(2).]

10B.Alternative offence, meaning and effect of

(1)This section applies if a provision of this Code, or of another written law, that creates an offence (offence A) provides one or more alternative offences for offence A.

(2)If a person is charged with an offence (offence A), whether or not on indictment, the person, instead of being convicted as charged, may be convicted of any alternative offence that is provided for offence A.

(3)This section does not prevent —

(a)this Code, or another written law, from providing a simple offence as an alternative offence for an indictable offence; or

(b)a person charged in an indictment with an indictable offence from being found guilty by a jury, and convicted and punished by a superior court, for a simple offence that is an alternative offence for the indictable offence.

(4)This section does not limit the operation of the other sections in this Chapter.

[Section 10B inserted: No. 70 of 2004 s. 36(2).]

10C.Conviction of alternative offence, consequences of

(1)If a person is charged with an offence and, under this Code, is convicted by a court of some other offence, the person is liable to the penalty to which the person would be liable if the person had been charged before that court with the other offence.

(2)If a person charged in an indictment with an indictable offence is convicted of a simple offence that is an alternative offence for the indictable offence, then, for the purposes of any appeal against the conviction, the person is to be taken to have been convicted of the simple offence on indictment.

[Section 10C inserted: No. 70 of 2004 s. 36(2).]

10D.Charge of offence, alternative convictions of attempt etc.

If a person is charged with committing an offence (the principal offence), the person, instead of being convicted as charged, may be convicted of —

(a)attempting to commit; or

(b)inciting another person to commit; or

(c)becoming an accessory after the fact to,

the principal offence or any alternative offence of which a person might be convicted instead of the principal offence.

[Section 10D inserted: No. 70 of 2004 s. 36(2).]

10E.Charge of attempt, alternative convictions on

If a person is charged with attempting to commit an offence (the principal offence) other than an offence under section 283, the person, instead of being convicted as charged, may be convicted of —

(a)committing the principal offence; or

(b)committing, or attempting to commit, any alternative offence of which any person charged with the principal offence might be convicted instead of the principal offence,

but the person shall not be liable to a punishment greater than the greatest punishment to which the person would have been liable if convicted of attempting to commit the principal offence.

[Section 10E inserted: No. 70 of 2004 s. 36(2).]

10F.Charge of conspiracy, alternative convictions on

If a person is charged with conspiring to commit an offence (the principal offence), the person, instead of being convicted as charged, may be convicted of —

(a)committing the principal offence; or

(b)attempting to commit the principal offence; or

(c)inciting another person to commit the principal offence,

but the person shall not be liable to a punishment greater than the greatest punishment to which the person would have been liable if convicted of conspiring to commit the principal offence.

[Section 10F inserted: No. 70 of 2004 s. 36(2).]

10G.Charge of procuring, alternative convictions on

(1)If a person is charged with procuring the commission of an offence (the principal offence), the person, instead of being convicted as charged, may be convicted of —

(a)attempting to procure the commission of the principal offence; or

(b)procuring the commission of, or attempting to procure the commission of, any offence of which any person charged with the principal offence might be convicted instead of the principal offence.

(2)If a person (the accused) is charged with procuring another person to do an act or make an omission of such a nature that if the accused had done the act or made the omission he or she would be guilty of an offence (the principal offence), the accused, instead of being convicted as charged, may be convicted of procuring the other person to do any other act or make any other omission that is of such a nature that if the accused had done the act or made the omission he or she would be guilty of an offence of which any person charged with the principal offence might be convicted instead of the principal offence.

[Section 10G inserted: No. 70 of 2004 s. 36(2).]

10H.Charge of attempting to procure, alternative convictions on

(1)If a person is charged with attempting to procure the commission of an offence (the principal offence), the person, instead of being convicted as charged, may be convicted of attempting to procure the commission of any other offence of which any person charged with the principal offence might be convicted instead of the principal offence.

(2)If a person (the accused) is charged with attempting to procure another person to do an act or make an omission of such a nature that if the act or omission had occurred an offence (the principal offence) would have been committed, the accused, instead of being convicted as charged, may be convicted of attempting to procure the other person to do any other act or make any other omission that is of such a nature that if the act or omission had occurred an offence would have been committed of such a nature that any person charged with the principal offence might be convicted of it instead of the principal offence.

[Section 10H inserted: No. 70 of 2004 s. 36(2).]

10I.Joined charges of receiving, verdicts on

If 2 or more persons are charged jointly with an offence of which the receiving of any property is an element and the evidence establishes that any one or more of them separately received any part or parts of the property under such circumstances as to constitute an offence, one or more of the accused persons may be convicted of the offence or offences so established by the evidence.

[Section 10I inserted: No. 70 of 2004 s. 36(2).]

Chapter III — Application of criminal law

11.Effect of changes in law

A person cannot be punished for doing or omitting to do an act, unless the act or omission constituted an offence under the law in force when it occurred, nor unless doing or omitting to do the act under the same circumstances would constitute an offence under the law in force at the time when he is charged with the offence.

[Section 11 amended: No. 78 of 1995 s. 26.]

12.Territorial application of criminal law

(1)An offence under this Code or any other law of Western Australia is committed if —

(a)all elements necessary to constitute the offence exist; and

(b)at least one of the acts, omissions, events, circumstances or states of affairs that make up those elements occurs in Western Australia .

(2)Without limiting the general operation of subsection (1), that subsection applies even if the only thing that occurs in Western Australia is an event, circumstance or state of affairs caused by an act or omission that occurs outside Western Australia.

(3)This section does not apply to an offence if —

(a)the law under which the offence is created explicitly or by necessary implication makes the place of commission an element of the offence; or

(b)the law under which the offence is created is a law of extraterritorial operation and explicitly or by necessary implication excludes the need for a territorial nexus between Western Australia and an element of the offence.

[Section 12 inserted: No. 36 of 1996 s. 5(1) 2.]

13.Offence aided, counselled or procured by person out of WA

When an offence under this Code or any other law of Western Australia is committed, section 7 of this Code applies to a person even if all the acts or omissions of the person in —

(a)enabling or aiding another person to commit the offence; or

(b)aiding another person in committing the offence; or

(c)counselling or procuring another person to commit the offence,

occurred outside Western Australia .

[Section 13 inserted: No. 36 of 1996 s. 5(1) 2.]

14.Offence procured in WA to be committed out of WA

Any person who, while in Western Australia, procures another to do an act or make an omission at a place not in Western Australia of such a nature that, if he had himself done the act or made the omission in Western Australia, he would have been guilty of an offence, and that, if he had himself done the act or made the omission, he would have been guilty of an offence under the laws in force in the place where the act or omission is done or made, is guilty of an offence of the same kind, and is liable to the same punishment, as if the act had been done or the omission had been made in Western Australia, but so that the punishment does not exceed that which he would have incurred under the laws in force in the place where the act was done or the omission was made, if he had himself done the act or made the omission.

[Section 14 amended: No. 36 of 1996 s. 6(1) 3.]

[14A.Deleted: No. 101 of 1990 s. 5.]

15.Defence force not exempt from Code

Members of the defence force are subject to the special laws relating to that force, but are not exempt from the provisions of this Code.

[Section 15 amended: No. 101 of 1990 s. 6.]

[16.Deleted: No. 78 of 1995 s. 26.]

17.Previous conviction or acquittal a defence

(1)It is a defence to a charge of any offence to show that the accused person has already been tried, and convicted or acquitted upon an indictment or prosecution notice on which he might have been convicted of the offence with which he is charged, or has already been convicted or acquitted of an offence of which he might be convicted upon the indictment or prosecution notice on which he is charged.

(2)Subsection (1) is subject to the Criminal Appeals Act 2004 section 46M(4)(b) and (c).

[Section 17 amended: No. 101 of 1990 s. 7; No. 84 of 2004 s. 80; No. 9 of 2012 s. 6.]

[Chapter IV (s. 17A‑17D, 18, 19, 19A, 19B, 20, 21, 21A) deleted: No. 78 of 1995 s. 26.]

Chapter V — Criminal responsibility

22.Ignorance of law, honest claim of right

Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by an offender is expressly declared to be an element of the offence.

But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud.

23.Intention and motive

(1)Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.

(2)Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility.

[Section 23 inserted: No. 29 of 2008 s. 4.]

23A.Unwilled acts and omissions

(1)This section is subject to the provisions in Chapter XXVII and section 444A relating to negligent acts and omissions.

(2)A person is not criminally responsible for an act or omission which occurs independently of the exercise of the person’s will.

[Section 23A inserted: No. 29 of 2008 s. 4; amended: No. 43 of 2009 s. 6.]

23B.Accident

(1)This section is subject to the provisions in Chapter XXVII and section 444A relating to negligent acts and omissions.

(2)A person is not criminally responsible for an event which occurs by accident.

(3)If death or grievous bodily harm —

(a)is directly caused to a victim by another person’s act that involves a deliberate use of force; but

(b)would not have occurred but for an abnormality, defect or weakness in the victim,

the other person is not, for that reason alone, excused from criminal responsibility for the death or grievous bodily harm.

(4)Subsection (3) applies —

(a)even if the other person did not intend or foresee the death or grievous bodily harm; and

(b)even if the death or grievous bodily harm was not reasonably foreseeable.

[Section 23B inserted: No. 29 of 2008 s. 4; amended: No. 43 of 2009 s. 7.]

24.Mistake of fact

A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.

The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.

25.Emergency

(1)This section does not apply if section 32, 246, 247 or 248 applies.

(2)A person is not criminally responsible for an act done, or an omission made, in an emergency under subsection (3).

(3)A person does an act or makes an omission in an emergency if —

(a)the person believes —

(i)circumstances of sudden or extraordinary emergency exist; and

(ii)doing the act or making the omission is a necessary response to the emergency;

and

(b)the act or omission is a reasonable response to the emergency in the circumstances as the person believes them to be; and

(c)there are reasonable grounds for those beliefs.

[Section 25 inserted: No. 29 of 2008 s. 5.]

26.Presumption of sanity

Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.

27.Insanity

(1)A person is not criminally responsible for an act or omission on account of unsoundness of mind if at the time of doing the act or making the omission he is in such a state of mental impairment as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission.

(2)A person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of subsection (1), is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist.

[Section 27 amended: No. 69 of 1996 s. 7; No. 44 of 2009 s. 9.]

28.Intoxication

(1)Section 27 applies to the case of a person whose mind is disordered by intoxication or stupefaction caused without intention on his part by drugs or intoxicating liquor, or by any other means.

(2)Section 27 does not apply to the case of a person who has intentionally caused himself to become intoxicated or stupefied, whether in order to afford excuse for the commission of an offence or not.

(3)When an intention to cause a specific result is an element of an offence, intoxication whether complete or partial, and whether intentional or unintentional, may be regarded for the purpose of ascertaining whether such an intention in fact existed.

[Section 28 amended: No. 44 of 2009 s. 10.]

29.Immature age

A person under the age of 10 years is not criminally responsible for any act or omission.

A person under the age of 14 years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission.

[Section 29 amended: No. 74 of 1985 s. 4; No. 49 of 1988 s. 44.]

30.Judicial officers

Except as expressly provided by this Code, a judicial officer is not criminally responsible for anything done or omitted to be done by him in the exercise of his judicial functions, although the act done is in excess of his judicial authority, or although he is bound to do the act omitted to be done.

31.Lawful authority

(1)A person is not criminally responsible for an act done, or an omission made, in any of the following circumstances —

(a)in execution of the law;

(b)in obedience to the order of a competent authority which the person is bound by law to obey, unless the order is manifestly unlawful.

(2)Whether an order is or is not manifestly unlawful is a question of law.

[Section 31 inserted: No. 29 of 2008 s. 6.]

32.Duress

(1)A person is not criminally responsible for an act done, or an omission made, under duress under subsection (2).

(2)A person does an act or makes an omission under duress if —

(a)the person believes —

(i)a threat has been made; and

(ii)the threat will be carried out unless an offence is committed; and

(iii)doing the act or making the omission is necessary to prevent the threat from being carried out;

and

(b)the act or omission is a reasonable response to the threat in the circumstances as the person believes them to be; and

(c)there are reasonable grounds for those beliefs.

(3)Subsections (1) and (2) do not apply if the threat is made by or on behalf of a person with whom the person under duress is voluntarily associating for the purpose of —

(a)doing an act or making an omission of the kind in fact done or made by the person under duress; or

(b)prosecuting an unlawful purpose in which it is reasonably foreseeable such a threat would be made.

[Section 32 inserted: No. 29 of 2008 s. 6.]

[33.Deleted: No. 106 of 1987 s. 6.]

34.Offences by partners and members of companies with respect to partnership or corporate property

A person who, being a member of a co‑partnership, corporation, or joint stock company, does or omits to do any act with respect to the property of the co‑partnership, corporation, or company, which, if he were not a member of the co‑partnership, corporation, or company, would constitute an offence, is criminally responsible to the same extent as if he were not such member.

[35.Deleted: No. 28 of 2003 s. 118(3).]

36.Application of Chapter V

The provisions of this Chapter apply to all persons charged with any offence against the statute law of Western Australia .

Part II — Offences against public order

[Chapter VI (s. 37‑43) deleted: No. 70 of 1988 s. 8(1).]

Chapter VII — Sedition

44.Term used: seditious intention

An intention to effect any of the following purposes, that is to say —

(a)To bring the Sovereign into hatred or contempt;

(b)To excite disaffection against the Sovereign, or the Government or Constitution of the United Kingdom, or of the Commonwealth of Australia, or of Western Australia as by law established, or against either House of Parliament of the United Kingdom, of the Commonwealth of Australia, or of Western Australia, or against the administration of justice;

(c)To excite Her Majesty’s subjects to attempt to procure the alteration of any matter in the State as by law established otherwise than by lawful means;

(d)To raise discontent or disaffection amongst Her Majesty’s subjects;

(e)To promote feelings of ill‑will and enmity between different classes of Her Majesty’s subjects;

is a seditious intention, unless it is justified by section 45.

[Section 44 amended: No. 44 of 2009 s. 11.]

45.Acts excepted from s. 44

It is lawful for any person —

(a)To endeavour in good faith to show that the Sovereign has been mistaken in any of Her counsels; or

(b)To point out in good faith errors or defects in the Government or Constitution of the United Kingdom, or of the Commonwealth of Australia, or of Western Australia as by law established, or in legislation, or in the administration of justice, with a view to the reformation of such errors or defects; or

(c)To excite in good faith Her Majesty’s subjects to attempt to procure by lawful means the alteration of any matter in the State as by law established; or

(d)To point out in good faith in order to their removal any matters which are producing or have a tendency to produce feelings of ill‑will and enmity between different classes of Her Majesty’s subjects.

46.Terms used: seditious enterprise, seditious words, seditious writing

A seditious enterprise is an enterprise which is undertaken in order to the carrying out of a seditious intention.

Seditious words are words expressive of a seditious intention.

The term seditious writing includes anything intended to be read, and any sign or visible representation, which is expressive of a seditious intention.

47.Oath to kill person

Any person who —

(1)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 kill any person; or

(2)Takes any such oath or engagement, not being compelled to do so; or

(3)Attempts to induce any person to take any such oath or engagement;

is guilty of a crime, and is liable to imprisonment for 20 years.

[Section 47 amended: No. 118 of 1981 s. 4; No. 52 of 1984 s. 10; No. 51 of 1992 s. 16(2); No. 29 of 2008 s. 16(1).]

48.Other unlawful oaths

Any person who —

(1)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 —

(a)To engage in any seditious enterprise;

(b)To commit any indictable offence other than one entailing the killing of a person;

(c)To disturb the public peace;

(d)To be of any association, society, or confederacy formed for the purpose of doing any such act as aforesaid;

(e)To obey the orders 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;

(f)Not to inform or give evidence against any associate, confederate, or other person;

(g)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

(2)Takes any such oath or engagement, not being compelled to do so; or

(3)Attempts to induce any person to take any such oath or engagement;

is guilty of a crime, and is liable to imprisonment for 7 years.

[Section 48 amended: No. 52 of 1984 s. 11; No. 70 of 1988 s. 8(2); No. 51 of 1992 s. 16(2); No. 29 of 2008 s. 16(2).]

49.Compulsion, how far a defence to s. 47 and 48

A person who takes any such oath or engagement as is mentioned in sections 47 and 48 cannot set up as a defence that he was compelled to do so, unless within 14 days after taking it, or, if he is prevented by actual force or sickness, within 14 days after the termination of such prevention, he declares by information on oath before some member of the Executive Council or justice of the peace, 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.

[Section 49 amended: No. 44 of 2009 s. 12.]

[50.Deleted: No. 70 of 1988 s. 8(1).]

51.Unlawful military activities

(1)Any person who —

(a)In contravention of the directions of a proclamation by the Governor in Council in that behalf trains or drills any other person to the use of arms or the practice of military exercise, movements, or evolutions; or

(b)Is present at any meeting or assembly of persons held in contravention of the directions of any such proclamation, for the purpose of there training or drilling any other person to the use of arms or the practice of military exercise, movements, or evolutions;

is guilty of a crime, and is liable to imprisonment for 7 years.

(2)Any person who, at any meeting or assembly held in contravention of the directions of a proclamation of the Governor in Council in that behalf, is trained or drilled to the use of arms or the practice of military exercise, movements, or evolutions, or who is present at any such meeting or assembly for the purpose of being so trained or drilled, is guilty of a crime, and is liable to imprisonment for 2 years.

(3)A prosecution for any of the offences defined in this section must be begun within 6 months after the offence is committed.

[Section 51 amended: No. 119 of 1985 s. 30; No. 51 of 1992 s. 16(2); No. 70 of 2004 s. 34(1).]

52.Sedition

Any person who —

(1)Conspires with any person to carry into execution a seditious enterprise; or

(2)Advisedly publishes any seditious words or writing;

is guilty of a crime, and is liable to imprisonment for 3 years.

A prosecution for any of the offences defined in this section must be begun within 6 months after the offence is committed.

[Section 52 amended: No. 70 of 1988 s. 31; No. 51 of 1992 s. 16(2); No. 70 of 2004 s. 34(1); No. 84 of 2004 s. 27(1).]

[53.Deleted: No. 44 of 2005 s. 47.]

Chapter VIII — Offences against the executive and legislative power

54.Interfering with Governor or Ministers

Any person who —

(1)Does any act calculated to interfere with the free exercise by the Governor of the duties or authority of his office; or

(2)Does any act calculated to interfere with the free exercise by a member of the Executive Council of the duties or authority of his office as a member of the Executive Council or as a Minister of State;

is guilty of a crime, and is liable to imprisonment for 3 years.

Summary conviction penalty: imprisonment for 2 years and a fine of $24 000.

[Section 54 amended: No. 70 of 1988 s. 9; No. 82 of 1994 s. 12; No. 70 of 2004 s. 34(1) and 35(2).]

55.Interfering with legislature

Any person who, by force or fraud, interferes or attempts to interfere with the free exercise by either House of Parliament of their authority, or with the free exercise by any member of either House of his duties or authority as such member or as a member of a committee of either House, or of a joint committee of both Houses, is guilty of a crime, and is liable to imprisonment for 3 years.

Summary conviction penalty: imprisonment for 2 years and a fine of $24 000.

[Section 55 amended: No. 70 of 1988 s. 9; No. 82 of 1994 s. 12; No. 70 of 2004 s. 34(1) and 35(2).]

56.Disturbing Parliament

Any person who —

(1)Does any act calculated to disturb either House of Parliament while in session; or

(2)Commits any disorderly conduct in the immediate view and presence of either House of Parliament while in session, calculated and tending to interrupt its proceedings or to impair the respect due to its authority;

is guilty of a crime, and is liable to imprisonment for 3 years.

Summary conviction penalty: imprisonment for 12 months and a fine of $12 000.

[Section 56 amended: No. 70 of 1988 s. 10; No. 70 of 2004 s. 34(1) and 35(1).]

57.False evidence before Parliament

Any person who in the course of an examination before either House of Parliament, or before a committee of either House, or before a joint committee of both Houses, knowingly gives a false answer to any lawful and relevant question put to him in the course of the examination, is guilty of a crime, and is liable to imprisonment for 7 years.

[Section 57 amended: No. 119 of 1985 s. 30; No. 70 of 1988 s. 31; No. 51 of 1992 s. 16(2).]

58.Threatening witness before Parliament

Any person who —

(1)Threatens to do any injury, or cause any detriment of any kind to another with intent to prevent or hinder that other person from giving evidence before either House of Parliament, or before a committee of either House, or before a joint committee of both Houses; or

(2)Threatens, or in any way punishes, damnifies, or injures, or attempts to punish, damnify, or injure any other person for having given such evidence, or on account of the evidence which he has given, unless such evidence was given in bad faith;

is guilty of a crime, and is liable, on conviction, to imprisonment for 5 years.

Summary conviction penalty: imprisonment for 2 years and a fine of $24 000.

[Section 58 amended: No. 70 of 1988 s. 11; No. 51 of 1992 s. 16(2); No. 82 of 1994 s. 12; No. 70 of 2004 s. 35(2).]

59.Witness not attending or giving evidence before Parliament

Any person who —

(1)Being duly summoned to attend as a witness or to produce any book, document, or other thing, in his possession, before either House of Parliament, or before a committee of either House, or before a joint committee of both Houses, authorised to summon witnesses or to call for the production of such things, refuses or neglects without lawful excuse to attend pursuant to the summons or to produce anything which he is summoned to produce, and which is relevant and proper to be produced; or

(2)Being present before either House of Parliament, or before a committee of either House, or before a joint committee of both Houses, authorised to summon witnesses, refuses to answer any lawful and relevant question;

is guilty of a simple offence, and is liable to imprisonment for 2 years and a fine of $24 000.

[Section 59 amended: No. 70 of 1988 s. 12; No. 82 of 1994 s. 12; No. 70 of 2004 s. 35(4).]

60.Member of Parliament receiving bribe

Any person who, being a member of either House of Parliament, asks, receives, or obtains, or agrees or attempts to receive or obtain, any property or benefit of any kind, whether pecuniary or otherwise, for himself or any other person upon any understanding that his vote, opinion, judgment, or action, in the House of which he is a member, or in any committee thereof, or in any joint committee of both Houses, shall be influenced thereby, or shall be given in any particular manner or in favour of any particular side of any question or matter, is guilty of a crime, and is liable to imprisonment for 7 years.

[Section 60 amended: No. 119 of 1985 s. 30; No. 70 of 1988 s. 13; No. 51 of 1992 s. 16(2).]

61.Bribery of member of Parliament

Any person who, —

(1)In order to influence a member of either House of Parliament in his vote, opinion, judgment, or action, upon any question or matter arising in the House of which he is a member or in any committee thereof, or in any joint committee of both Houses, or in order to induce him to absent himself from the House or from any such committee, gives, confers, or procures, or promises or offers to give or confer, or to procure or attempt to procure, any property or benefit of any kind, whether pecuniary or otherwise, to, upon, or for such member, or to, upon, or for, any other person; or

(2)Attempts, directly or indirectly, by fraud, or by threats or intimidation of any kind, to influence a member of either House of Parliament in his vote, opinion, judgment, or action, upon any such question or matter, or to induce him to so absent himself;

is guilty of a crime, and is liable to imprisonment for 7 years.

[Section 61 amended: No. 119 of 1985 s. 30; No. 70 of 1988 s. 14; No. 51 of 1992 s. 16(2).]

Chapter IX — Unlawful assemblies: Breaches of the peace

62.Terms used: unlawful assembly, riot, riotously assembled

(1)When 3 or more persons, with intent to carry out some common purpose, assemble in such a manner, or, being assembled, conduct themselves in such a manner as to cause persons in the neighbourhood to fear, on reasonable grounds, that the persons so assembled will tumultuously disturb the peace, or will by such assembly needlessly and without any reasonable occasion provoke other persons tumultuously to disturb the peace, they are an unlawful assembly.

(2)It is immaterial that the original assembling was lawful if, being assembled, they conduct themselves with a common purpose in such a manner as aforesaid.

(3)An assembly of 3 or more persons who assemble for the purpose of protecting the house of any one of them against persons threatening to enter the house in order to commit an indictable offence therein is not an unlawful assembly.

(4)When an unlawful assembly has begun to act in so tumultuous a manner as to disturb the peace, the assembly is called a riot, and the persons assembled are said to be riotously assembled.

[Section 62 amended: No. 4 of 2004 s. 7.]

63.Taking part in an unlawful assembly

Any person who takes part in an unlawful assembly is guilty of an offence and is liable to imprisonment for 12 months and a fine of $12 000.

[Section 63 inserted: No. 70 of 2004 s. 5.]

64.Unlawful assembly may be ordered to disperse

(1)If 3 or more persons form an unlawful assembly, a justice or a police officer may orally order them to disperse within a time that is reasonable and that is stated in the order.

(2)Any person who does not disperse in accordance with an order given under subsection (1) is guilty of a crime and is liable to imprisonment for 3 years.

Summary conviction penalty: imprisonment for 2 years and a fine of $24 000.

[Section 64 inserted: No. 70 of 2004 s. 5.]

65.Taking part in riot

Any person who takes part in a riot is guilty of a crime and is liable to imprisonment for 5 years.

Summary conviction penalty: imprisonment for 2 years and a fine of $24 000.

[Section 65 inserted: No. 70 of 2004 s. 5.]

66.Rioters may be ordered to disperse

(1)If 12 or more persons are riotously assembled, a justice or a police officer may orally order them to disperse within an hour and shall state so in the order.

(2)Any person who does not disperse in accordance with an order given under subsection (1) is guilty of a crime.

(3)Any person who forcibly prevents a person from giving an order under subsection (1) is guilty of a crime.

(4)If 12 or more persons are riotously assembled, each person who continues to be so assembled knowing that a person has been forcibly prevented from ordering them to disperse is guilty of a crime.

(5)A person who is guilty of a crime under this section is liable to imprisonment for 10 years.

[Section 66 inserted: No. 70 of 2004 s. 5.]

67.Rioters causing damage

(1)If as a result of persons being riotously assembled any property is unlawfully destroyed or damaged, each person among those so assembled is guilty of a crime and is liable to imprisonment for 10 years.

(2)If the property is destroyed or damaged by fire, each person is liable to imprisonment for 14 years.

[Section 67 inserted: No. 70 of 2004 s. 5.]

68A.Provisions about lawful excuses under s. 68B, 68C, 68D and 68E

(1)In a prosecution for an offence under section 68B, 68C, 68D or 68E, the accused has the onus of proving that the accused had a lawful excuse.

(2)In sections 68B, 68C and 68D, being armed for defence is not a lawful excuse unless the person —

(a)has reasonable grounds to apprehend that circumstances necessitating defence may arise; and

(b)is armed only for defence; and

(c)is armed only —

(i)with a weapon or instrument the sole purpose of which is to spray oleoresin capsicum; or

(ii)with a briefcase or suitcase that is commercially designed and made to discharge an electric current so as to deter the theft of the case.

(3)In sections 68B, 68C and 68D, lawful excuse includes the following —

(a)being a police officer acting in the course of duty;

(b)being a security officer, as defined in the Public Transport Authority Act 2003 section 3, acting in the course of duty;

(c)being a prison officer, as defined in the Prisons Act 1981 section 3(1) and (2), acting in the course of duty;

(d)being a person authorised to exercise a power set out in Division 1, 2 or 3 of Schedule 2 to the Court Security and Custodial Services Act 1999, or a power set out in Schedule 3 to that Act, acting in the course of duty;

(e)being the holder of, and engaged in activities authorised by, a security officer’s licence issued under the Security and Related Activities (Control) Act 1996 while armed in accordance with Part 3 Division 3 of that Act.

[Section 68A inserted: No. 34 of 2009 s. 4.]

68B.Being armed in or near place of public entertainment

(1)In this section —

lawful excuse has a meaning affected by section 68A;

place of public entertainment means —

(a)a place where the public is present and where entertainment of any kind is about to be, is being, or has just been provided to the public, whether on payment or not; or

(b)licensed premises, as defined by the Liquor Control Act 1988 section 3(1);

prescribed place means —

(a)a place of public entertainment; or

(b)a public place within 50 metres of a place of public entertainment.

(2)A person who, without lawful excuse, is armed with any dangerous or offensive weapon or instrument in, or with intent to enter, a prescribed place is guilty of a crime and is liable to imprisonment for 5 years.

Summary conviction penalty: imprisonment for 3 years and a fine of $36 000.

[Section 68B inserted: No. 34 of 2009 s. 4.]

68C.Being armed in public in company

(1)In this section —

lawful excuse has a meaning affected by section 68A.

(2)A person who, without lawful excuse, is armed with any dangerous or offensive weapon or instrument in a public place when in company with 2 or more other persons is guilty of a crime and is liable to imprisonment for 5 years.

Summary conviction penalty: imprisonment for 3 years and a fine of $36 000.

[Section 68C inserted: No. 34 of 2009 s. 4.]

68D.Having ready access to both weapon and cash

(1)In this section —

lawful excuse has a meaning affected by section 68A;

prescribed amount means the amount prescribed for the purposes of the Firearms Act 1973 section 19(1ab)(a)(ii) 4.

(2)A person who, without lawful excuse, has ready access simultaneously to both —

(a)a dangerous or offensive weapon or instrument; and

(b)cash equal to or more than the prescribed amount,

is guilty of a crime and is liable to imprisonment for 5 years.

Summary conviction penalty: imprisonment for 3 years and a fine of $36 000.

[Section 68D inserted: No. 34 of 2009 s. 4.]

68E.Having ready access to both weapon and illegal drug

(1)In this section, being armed for defence is not a lawful excuse.

(2)A person who, without lawful excuse, has ready access simultaneously to both —

(a)a dangerous or offensive weapon or instrument; and

(b)a prohibited drug or a prohibited plant, as those terms are defined by the Misuse of Drugs Act 1981 section 3(1), that, under section 6 or 7 of that Act, the person is not authorised to possess,

is guilty of a crime and is liable to imprisonment for 5 years.

Summary conviction penalty: imprisonment for 3 years and a fine of $36 000.

[Section 68E inserted: No. 34 of 2009 s. 4.]

68.Being armed in a way that may cause fear

(1)A person who is or pretends to be armed with any dangerous or offensive weapon or instrument in circumstances that are likely to cause fear to any person is guilty of a crime and is liable to imprisonment for 7 years.

Summary conviction penalty: imprisonment for 3 years and a fine of $36 000.

(2)It is a defence to a charge under subsection (1) to prove that the accused person had lawful authority to be so armed in such circumstances.

(3)A court that convicts a person of an offence under subsection (1) may make an order for the forfeiture to the Crown, or the destruction or disposal, of the thing in respect of which the offence was committed.

[Section 68 inserted: No. 4 of 2004 s. 8; amended: No. 70 of 2004 s. 35(3).]

69.Forcibly entering land

(1)Any person who, in a manner likely to cause a breach of the peace or reasonable apprehension of a breach of the peace, enters on land which is in the actual and peaceable possession of another is guilty of a crime, and is liable to imprisonment for 2 years.

Summary conviction penalty: $6 000.

(2)It is immaterial whether he is entitled to enter on the land or not.

[Section 69 amended: No. 4 of 2004 s. 9.]

70.Forcibly keeping possession of land

Any person who, being in actual possession of land without colour of right holds possession of it in a manner likely to cause a breach of the peace or reasonable apprehension of a breach of the peace, against a person entitled by law to the possession of the land, is guilty of a crime, and is liable to imprisonment for 2 years.

Summary conviction penalty: $6 000.

[Section 70 amended: No. 4 of 2004 s. 10.]

70A.Trespass

(1)In this section —

person in authority, in relation to a place, means —

(a)in the case of a place owned by the Crown, or an agency or instrumentality of the Crown — the occupier or person having control or management of the place or a police officer; or

(b)in any other case —

(i)the owner, occupier or person having control or management of the place; or

(ii)a police officer acting on a request by a person referred to in subparagraph (i);

trespass on a place, means —

(a)to enter or be in the place without the consent or licence of the owner, occupier or person having control or management of the place; or

(b)to remain in the place after being requested by a person in authority to leave the place; or

(c)to remain in a part of the place after being requested by a person in authority to leave that part of the place.

(2)A person who, without lawful excuse, trespasses on a place is guilty of an offence and is liable to imprisonment for 12 months and a fine of $12 000.

(3)In a prosecution for an offence under subsection (2), the accused has the onus of proving that the accused had a lawful excuse.

[Section 70A inserted: No. 70 of 2004 s. 6; amended: No. 59 of 2006 s. 17; No. 42 of 2009 s. 14.]

70B.Trespasser may be asked for name and address

(1)In this section —

enclosed land means land that is visibly enclosed, whether by means of artificial structures alone or a combination of artificial structures and natural features, but does not include a road on the land that is open to or used by the public;

owner, in relation to land, includes the occupier and a person who has the control or management of the land.

(2)If the owner of any enclosed land finds a person on the land who has entered the land without the owner’s consent, the owner may request the person to give the person’s name and address to the owner.

(3)A person who does not comply with such a request is guilty of an offence and is liable to a fine of $500.

(4)A person who in response to such a request gives a name or address that is false is guilty of an offence and is liable to a fine of $500.

[Section 70B inserted: No. 70 of 2004 s. 6.]

71.Fighting in public causing fear

A person who in, or in view of, a public place takes part in a fight with another person in circumstances that are likely to cause fear to any person is guilty of a crime, and is liable to imprisonment for 2 years.

Summary conviction penalty: $6 000.

[Section 71 inserted: No. 4 of 2004 s. 11.]

72.Challenge to fight duel

Any person who challenges another to fight a duel, or attempts to provoke another to fight a duel, or attempts to provoke any person to challenge another to fight a duel, is guilty of a crime, and liable to imprisonment for 2 years.

Summary conviction penalty: $6 000.

[Section 72 amended: No. 51 of 1992 s. 16(2); No. 4 of 2004 s. 12.]

73.Prize fight

Any person who fights in a prize fight or subscribes to or promotes a prize fight, is guilty of a crime, and is liable to imprisonment for 2 years.

Summary conviction penalty: $6 000.

[Section 73 amended: No. 4 of 2004 s. 13.]

74.Threat toward dwelling

Any person who —

(1)With intent to intimidate or annoy any person, threatens to enter or damage a dwelling; or

(2)With intent to alarm any person in a dwelling, discharges loaded firearms or commits any other breach of the peace;

is guilty of a crime, and is liable to imprisonment for 3 years.

Summary conviction penalty: imprisonment for 12 months and a fine of $12 000.

[Section 74 amended: No. 51 of 1992 s. 16(2); No. 36 of 1996 s. 7; No. 4 of 2004 s. 14; No. 70 of 2004 s. 35(1).]

74A.Disorderly behaviour in public

(1)In this section —

behave in a disorderly manner includes —

(a)to use insulting, offensive or threatening language; and

(b)to behave in an insulting, offensive or threatening manner.

(2)A person who behaves in a disorderly manner —

(a)in a public place or in the sight or hearing of any person who is in a public place; or

(b)in a police station or lock‑up,

is guilty of an offence and is liable to a fine of $6 000.

(3)A person who has the control or management of a place where food or refreshments are sold to or consumed by the public and who permits a person to behave in a disorderly manner in that place is guilty of an offence and is liable to a fine of $4 000.

[Section 74A inserted: No. 70 of 2004 s. 7; amended: No. 59 of 2006 s. 18.]

74B.Causing fear or alarm to driver of conveyance or others

(1)In this section —

drive a conveyance, includes to pilot an aircraft and to navigate a vessel.

(2)A person who, without lawful excuse —

(a)causes an object or substance to be directed at or near, or to be placed in or near the path of, a conveyance that a person is driving; or

(b)uses a portable device to direct a visible laser or other narrow beam of visible light at or near a conveyance that a person is driving,

in circumstances that are likely to cause fear or alarm to any person commits a crime and is liable to imprisonment for 7 years.

Summary conviction penalty: imprisonment for 3 years and a fine of $36 000.

[Section 74B inserted: No. 44 of 2009 s. 4.]

75A.Term used: out‑of‑control gathering

(1)For the purposes of section 75B, a gathering of persons in a place or vehicle is an out‑of‑control gathering if —

(a)the gathering is a gathering of 12 or more persons; and

(b)2 or more persons associated with the gathering engage in conduct of any of the following kinds —

(i)trespassing on a place (as defined in section 70A(1));

(ii)behaving in a disorderly manner (as defined in section 74A(1));

(iii)unlawfully destroying or damaging property or threatening to do so;

(iv)assaulting or threatening to assault another person or taking part in a fight;

(v)doing an obscene act or indecent act in a public place or in the sight of any person who is in a public place;

(vi)emitting, or causing to be emitted, unreasonable noise (as defined in the Environmental Protection Act 1986 section 3(1));

(vii)driving a motor vehicle so as to cause excessive noise or smoke in contravention of the Road Traffic Act 1974 section 62A;

(viii)unlawfully lighting fires or unlawfully using fireworks;

(ix)throwing any object or releasing any material or thing in a manner that is likely to endanger the life, health or safety of any person;

(x)causing an obstruction to traffic or to the movement of pedestrians;

(xi)depositing litter or breaking glass or other material;

(xii)contravening the Liquor Control Act 1988 or the Misuse of Drugs Act 1981;

(xiii)being intoxicated by liquor or an intoxicant (as defined in section 206(1)) in a public place;

(xiv)any other conduct prescribed by the regulations;

and

(c)the gathering, or the conduct of persons associated with the gathering (taken together), causes or is likely to cause —

(i)fear or alarm to any person who is not associated with the gathering; or

(ii)a substantial interference with the lawful activities of any person; or

(iii)a substantial interference with the peaceful passage through, or enjoyment of, a place by any person who has lawful access to that place;

and

(d)the gathering is not excluded under subsection (3).

(2)In subsection (1) —

vehicle has the meaning given in the Criminal Investigation Act 2006 section 3(1).

(3)For the purposes of subsection (1)(d), a gathering of any of the following kinds is excluded —

(a)a gathering on licensed premises;

(b)a public meeting or procession for which a permit under the Public Order in Streets Act 1984 has been issued;

(c)a gathering that is primarily for the purposes of political advocacy, protest or industrial action;

(d)a gathering of a kind prescribed by the regulations.

(4)In subsection (3) —

licensed premises has the meaning given in the Liquor Control Act 1988 section 3(1), but does not include premises to which an occasional licence granted under section 59 of that Act relates.

(5)For the purposes of subsection (1), a person is associated with a gathering if the person —

(a)is attending the gathering; or

(b)is in the vicinity of the gathering and has attended or is proposing to attend the gathering.

[Section 75A inserted: No. 56 of 2012 s. 4.]

75B.Organising out‑of‑control gathering

(1)In this section —

organise, in relation to a gathering, means to have a substantial involvement in arranging, managing, advertising or promoting the gathering (whether or not any other organisers of the gathering know of or consent to that involvement);

responsible adult, in relation to a child, means a parent, guardian or other person having responsibility for the day‑to‑day care of the child but does not include a person who the regulations provide is not a responsible adult.

(2)A person —

(a)who organises a gathering that becomes an out‑of‑control gathering; or

(b)who —

(i)is a responsible adult in relation to a child who organises a gathering that becomes an out‑of‑control gathering; and

(ii)gives the child permission to organise the gathering or permits the gathering to occur,

is guilty of an offence and is liable to imprisonment for 12 months and a fine of $12 000.

(3)It is a defence to a charge under subsection (2) to prove the accused person took such steps (if any) as were reasonable in the circumstances to ensure that the gathering did not become an out‑of‑control gathering.

(4)Without limiting subsection (3), the following are examples of steps that could be taken to ensure that a gathering does not become an out‑of‑control gathering —

(a)engaging persons to provide security services at the gathering;

(b)organising the gathering in a manner that indicates that only persons invited to the gathering may attend;

(c)giving notice of the gathering to the Commissioner of Police in a manner approved by the Commissioner of Police;

(d)taking steps to request the attendance of police officers at the gathering as soon as practicable after becoming aware that —

(i)the gathering is likely to become an out‑of‑control gathering; or

(ii)any person is trespassing on a place where the gathering is occurring.

(5)A court convicting a person of an offence under subsection (2) may order the person to pay some or all of the reasonable expenses of or incidental to any action that was reasonably taken by police officers in responding to the out‑of‑control gathering.

(6)The order must specify that the amount is to be paid to the Commissioner of Police.

(7)The Sentencing Act 1995 Part 16 applies to and in respect of an order made under subsection (5) as if it were a compensation order made under that Part.

[Section 75B inserted: No. 56 of 2012 s. 4.]

Chapter X — Offences against political liberty

75.Interfering with political liberty

Any person who by violence, or by threats or intimidation of any kind, hinders or interferes with the free exercise of any political right by another person, is guilty of a crime, and is liable to imprisonment for 3 years.

Summary conviction penalty: imprisonment for 12 months and a fine of $12 000.

[Section 75 amended: No. 70 of 1988 s. 15; No. 51 of 1992 s. 16(2); No. 70 of 2004 s. 34(1) and 35(1).]

Chapter XI — Racist harassment and incitement to racial hatred

[Heading inserted: No. 33 of 1990 s. 3.]

76.Terms used

In this Chapter —

animosity towards means hatred of or serious contempt for;

display means display in or within view of a public place;

distribute means distribute to the public or a section of the public;

harass includes to threaten, seriously and substantially abuse or severely ridicule;

member of a racial group includes a person associated with a racial group;

publish means publish to the public or a section of the public;

racial group means any group of persons defined by reference to race, colour or ethnic or national origins;

written or pictorial material means any poster, graffiti, sign, placard, book, magazine, newspaper, leaflet, handbill, writing, inscription, picture, drawing or other visible representation.

[Section 76 inserted: No. 33 of 1990 s. 3; amended: No. 80 of 2004 s. 5.]

77.Conduct intended to incite racial animosity or racist harassment

Any person who engages in any conduct, otherwise than in private, by which the person intends to create, promote or increase animosity towards, or harassment of, a racial group, or a person as a member of a racial group, is guilty of a crime and is liable to imprisonment for 14 years.

Alternative offence: s. 78, 80A or 80B.

[Section 77 inserted: No. 80 of 2004 s. 6; amended: No. 70 of 2004 s. 38(3).]

78.Conduct likely to incite racial animosity or racist harassment

Any person who engages in any conduct, otherwise than in private, that is likely to create, promote or increase animosity towards, or harassment of, a racial group, or a person as a member of a racial group, is guilty of a crime and is liable to imprisonment for 5 years.

Alternative offence: s. 80A or 80B.

Summary conviction penalty: imprisonment for 2 years and a fine of $24 000.

[Section 78 inserted: No. 80 of 2004 s. 6; amended: No. 70 of 2004 s. 38(1) and (3).]

79.Possession of material for dissemination with intent to incite racial animosity or racist harassment

Any person who —

(a)possesses written or pictorial material that is threatening or abusive intending the material to be published, distributed or displayed whether by that person or another person; and

(b)intends the publication, distribution or display of the material to create, promote or increase animosity towards, or harassment of, a racial group, or a person as a member of a racial group,

is guilty of a crime and is liable to imprisonment for 14 years.

Alternative offence: s. 80, 80C or 80D.

[Section 79 inserted: No. 80 of 2004 s. 6; amended: No. 70 of 2004 s. 38(3).]

80.Possession of material for dissemination that is likely to incite racial animosity or racist harassment

If —

(a)any person possesses written or pictorial material that is threatening or abusive intending the material to be published, distributed or displayed whether by that person or another person; and

(b)the publication, distribution or display of the material would be likely to create, promote or increase animosity towards, or harassment of, a racial group, or a person as a member of a racial group,

the person possessing the material is guilty of a crime and is liable to imprisonment for 5 years.

Alternative offence: s. 80C or 80D.

Summary conviction penalty: imprisonment for 2 years and a fine of $24 000.

[Section 80 inserted: No. 80 of 2004 s. 6; amended: No. 70 of 2004 s. 38(1) and (3).]

80A.Conduct intended to racially harass

Any person who engages in any conduct, otherwise than in private, by which the person intends to harass a racial group, or a person as a member of a racial group, is guilty of a crime and is liable to imprisonment for 5 years.

Alternative offence: s. 78 or 80B.

Summary conviction penalty: imprisonment for 2 years and a fine of $24 000.

[Section 80A inserted: No. 80 of 2004 s. 6; amended: No. 70 of 2004 s. 38(1) and (3).]

80B.Conduct likely to racially harass

Any person who engages in any conduct, otherwise than in private, that is likely to harass a racial group, or a person as a member of a racial group, is guilty of a crime and is liable to imprisonment for 3 years.

Summary conviction penalty: imprisonment for 12 months and a fine of $12 000.

[Section 80B inserted: No. 80 of 2004 s. 6; amended: No. 70 of 2004 s. 38(2).]

80C.Possession of material for display with intent to racially harass

Any person who —

(a)possesses written or pictorial material that is threatening or abusive intending the material to be displayed whether by that person or another person; and

(b)intends the display of the material to harass a racial group, or a person as a member of a racial group,

is guilty of a crime and is liable to imprisonment for 5 years.

Alternative offence: s. 80 or 80D.

Summary conviction penalty: imprisonment for 2 years and a fine of $24 000.

[Section 80C inserted: No. 80 of 2004 s. 6; amended: No. 70 of 2004 s. 38(1) and (3).]

80D.Possession of material for display that is likely to racially harass

If —

(a)any person possesses written or pictorial material that is threatening or abusive intending the material to be displayed whether by that person or another person; and

(b)the display of the material would be likely to harass a racial group, or a person as a member of a racial group,

the person possessing the material is guilty of a crime and is liable to imprisonment for 3 years.

Summary conviction penalty: imprisonment for 12 months and a fine of $12 000.

[Section 80D inserted: No. 80 of 2004 s. 6; amended: No. 70 of 2004 s. 38(2).]

80E.Conduct and private conduct, meaning of in s. 77, 78, 80A and 80B

(1)A reference in section 77, 78, 80A or 80B to conduct includes a reference to conduct occurring on a number of occasions over a period of time.

(2)For the purposes of sections 77, 78, 80A and 80B conduct is taken not to occur in private if it —

(a)consists of any form of communication with the public or a section of the public; or

(b)occurs in a public place or in the sight or hearing of people who are in a public place.

[Section 80E inserted: No. 80 of 2004 s. 6.]

80F.Belief as to existence or membership of racial group

For the purposes of proceedings for an offence under section 77, 79, 80A, 80C, 313, 317, 317A, 338B or 444 it does not matter whether a group of persons was a racial group or whether a person was a member of a racial group as long as the accused person believed at the time of the alleged offence that the group was a racial group or that the person was a member of a racial group, as the case may be.

[Section 80F inserted: No. 80 of 2004 s. 6.]

80G.Defences to s. 78, 80, 80B or 80D charge

(1)It is a defence to a charge under section 78 or 80B to prove that the accused person’s conduct was engaged in reasonably and in good faith —

(a)in the performance, exhibition or distribution of an artistic work; or

(b)in the course of any statement, publication, discussion or debate made or held, or any other conduct engaged in, for —

(i)any genuine academic, artistic, religious or scientific purpose; or

(ii)any purpose that is in the public interest;

or

(c)in making or publishing a fair and accurate report or analysis of any event or matter of public interest.

(2)It is a defence to a charge under section 80 or 80D to prove that the accused person intended the material to be published, distributed or displayed (as the case may be) reasonably and in good faith —

(a)in the performance, exhibition or distribution of an artistic work; or

(b)in the course of any statement, publication, discussion or debate made or held, or any other conduct engaged in, for —

(i)any genuine academic, artistic, religious or scientific purpose; or

(ii)any purpose that is in the public interest;

or

(c)in making or publishing a fair and accurate report or analysis of any event or matter of public interest.

[Section 80G inserted: No. 80 of 2004 s. 6.]

80H.Consent to prosecution under s. 77, 78, 79 or 80 required

A prosecution under section 77, 78, 79 or 80 must not be commenced without the consent of the Director of Public Prosecutions.

[Section 80H inserted: No. 80 of 2004 s. 6.]

80I.Term used: circumstances of racial aggravation

In sections 313, 317, 317A, 338B and 444 —

circumstances of racial aggravation means circumstances in which —

(a)immediately before or during or immediately after the commission of the offence, the offender demonstrates hostility towards the victim based, in whole or part, on the victim being a member of a racial group; or

(b)the offence is motivated, in whole or part, by hostility towards persons as members of a racial group.

[Section 80I inserted: No. 80 of 2004 s. 6.]

80J.Unlawful material, forfeiture of

A court that convicts a person of an offence under section 79, 80, 80C or 80D may make an order for the forfeiture to the State, or the destruction or disposal, of any written or pictorial material in respect of which the offence was committed.

[Section 80J inserted: No. 59 of 2006 s. 19.]

Part III — Offences against the administration of law and justice and against public authority

Chapter XII — Disclosing official secrets

81.Disclosing official secrets

(1)In this section —

disclosure includes —

(a)any publication or communication; and

(b)in relation to information in a record, parting with possession of the record;

government contractor means a person who is not employed in the Public Service but who provides, or is employed in the provision of, goods or services for the purposes of —

(a)the State of Western Australia ; or

(b)the Public Service; or

(c)the Police Force of Western Australia ;

information includes false information, opinions and reports of conversations;

official information means information, whether in a record or not, that comes to the knowledge of, or into the possession of, a person because the person is a public servant or government contractor;

public servant means a person employed in the Public Service;

unauthorised disclosure means —

(a)the disclosure by a person who is a public servant or government contractor of official information in circumstances where the person is under a duty not to make the disclosure; or

(b)the disclosure by a person who has been a public servant or government contractor of official information in circumstances where, were the person still a public servant or government contractor, the person would be under a duty not to make the disclosure.

(2)A person who, without lawful authority, makes an unauthorised disclosure is guilty of a crime and is liable to imprisonment for 3 years.

Summary conviction penalty: imprisonment for 12 months and a fine of $12 000.

[Section 81 inserted: No. 4 of 2004 s. 59; amended: No. 70 of 2004 s. 35(1).]

Chapter XIII — Corruption and abuse of office

[Heading inserted: No. 70 of 1988 s. 16.]

82.Bribery of public officer

Any public officer who obtains, or who seeks or agrees to receive, a bribe, and any person who gives, or who offers or promises to give, a bribe to a public officer, is guilty of a crime and is liable to imprisonment for 7 years.

[Section 82 inserted: No. 70 of 1988 s. 16.]

83.Corruption

Any public officer who, without lawful authority or a reasonable excuse —

(a)acts upon any knowledge or information obtained by reason of his office or employment; or

(b)acts in any matter, in the performance or discharge of the functions of his office or employment, in relation to which he has, directly or indirectly, any pecuniary interest; or

(c)acts corruptly in the performance or discharge of the functions of his office or employment,

so as to gain a benefit, whether pecuniary or otherwise, for any person, or so as to cause a detriment, whether pecuniary or otherwise, to any person, is guilty of a crime and is liable to imprisonment for 7 years.

[Section 83 inserted: No. 70 of 1988 s. 16; amended: No. 8 of 2002 s. 4.]

84.Judicial officer, s. 82 and 83 do not apply to

In sections 82 and 83 public officer does not include the holder of a judicial office within the meaning of section 121.

[Section 84 inserted: No. 70 of 1988 s. 16.]

85.Falsification of record by public officer

Any public officer who, in the performance or discharge of the functions of his office or employment, corruptly —

(a)makes any false entry in any record; or

(b)omits to make any entry in any record; or

(c)gives any certificate or information which is false in a material particular; or

(d)by act or omission falsifies, destroys, alters or damages any record; or

(e)furnishes a return relating to any property or remuneration which is false in a material particular; or

(f)omits to furnish any return relating to any property or remuneration, or to give any other information which he is required by law to give,

is guilty of a crime and is liable to imprisonment for 7 years.

[Section 85 inserted: No. 70 of 1988 s. 16; amended: No. 8 of 2002 s. 5; No. 70 of 2004 s. 8.]

86.Administering oath without authority

(1)Any person who administers an oath or takes a declaration or affirmation without having lawful authority so to do is guilty of a crime and is liable to imprisonment for 2 years.

(2)This section does not apply to an oath, declaration or affirmation administered or taken —

(a)as authorised or required by law of; or

(b)for purposes lawful in,

another country, State or Territory.

[Section 86 inserted: No. 70 of 1988 s. 16; amended: No. 70 of 2004 s. 34(1).]

87.Impersonating public officer

(1)For the purposes of this section a person impersonates a public officer if the person —

(a)wears what is or purports to be the uniform of a public officer; or

(b)represents himself or herself by word or conduct to be a public officer,

when the person is not such a public officer.

(2)A person who impersonates a public officer and who —

(a)purports to do or exercise; or

(b)attends any place for the purposes of doing or exercising,

any act or power of such a public officer is guilty of a crime and is liable to imprisonment for 2 years.

Summary conviction penalty: imprisonment for 12 months and a fine of $12 000.

(3)For the purposes of subsection (2) it is immaterial whether the power referred to exists at law.

(4)An allegation in a charge of an offence under this section that at the material time the accused was not a public officer, or not a public officer of the kind that the accused is alleged to have impersonated, must be taken to be proved, unless the contrary is proved.

[Section 87 inserted: No. 70 of 2004 s. 9.]

88.Bargaining for public office

Any person who —

(a)corruptly asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit of any kind, whether pecuniary or otherwise, for himself or any other person on account of anything already done or omitted to be done, by him or any other person with regard to the appointment of any person as a public officer, or with regard to any application by any person for employment as a public officer; or

(b)corruptly gives, confers, or procures, or promises or offers to give or confer, or to procure or attempt to procure to, upon, or for any person any property or benefit of any kind, whether pecuniary or otherwise, on account of any such act or omission,

is guilty of a crime and is liable to imprisonment for 7 years.

[Section 88 inserted: No. 70 of 1988 s. 16; amended: No. 8 of 2002 s. 6.]

[89‑92.Deleted: No. 70 of 1988 s. 16.]

Chapter XIV — Offences at elections

[Heading inserted: No. 70 of 2004 s. 10.]

93.Terms used

In this Chapter —

election includes an election held under a written law that provides for the choice of persons to fill a public office;

elector includes any person entitled to vote in an election;

electoral conduct means —

(a)candidature in an election; or

(b)withdrawal of candidature from an election; or

(c)a vote, or an omission to vote, in an election; or

(d)support of, or opposition to, a candidate in an election; or

(e)an application for a postal vote in an election;

electoral officer means a person who is authorised to conduct or assist in conducting an election.

[Section 93 inserted: No. 70 of 2004 s. 10.]

94.Application of this Chapter

This Chapter does not apply to or in respect of parliamentary or local government elections.

[Section 94 inserted: No. 70 of 2004 s. 10.]

95.Liability for acts of others

(1)For the purposes of this Chapter, the act of a candidate’s authorised agent is to be taken to be the act of the candidate unless the candidate proves —

(a)that the act was committed without the candidate’s knowledge or consent; and

(b)that the candidate had neither directly nor indirectly authorised or approved the act.

(2)For the purposes of this Chapter, a person is liable for an illegal act or omission committed directly or indirectly by the person, or by another person on the person’s behalf, except as provided by subsection (1).

[Section 95 inserted: No. 70 of 2004 s. 10.]

96.Bribery

(1)In this section —

reward means a reward in the form of property or any kind of advantage, benefit, consideration or recompense.

(2)A person who —

(a)promises, offers or suggests a reward for, or on account of, or to induce, electoral conduct or a promise of electoral conduct; or

(b)gives, takes or seeks a reward for, or on account of, electoral conduct or a promise of electoral conduct,

is guilty of an offence and is liable to imprisonment for 2 years and a fine of $24 000.

(3)The making of a declaration of public policy or a promise of public action does not give rise to an offence under this section.

[Section 96 inserted: No. 70 of 2004 s. 10.]

97.Undue influence

(1)In this section —

detriment means violence, injury, punishment, damage, loss or disadvantage.

(2)A person who —

(a)threatens, offers or suggests detriment for, or on account of, or to induce, electoral conduct or a promise of electoral conduct; or

(b)uses, causes, inflicts or procures detriment for, or on account of, electoral conduct; or

(c)interferes with the free exercise of the franchise of an elector,

is guilty of an offence and is liable to imprisonment for 12 months and a fine of $12 000.

(3)The making of a declaration of public policy or a promise of public action does not give rise to an offence under this section.

[Section 97 inserted: No. 70 of 2004 s. 10.]

98.Electoral material, printing and publication of

(1)In this section —

electoral material means any advertisement, article, handbill, letter, notice, pamphlet, placard or poster the purpose of which is to influence voters in an election but does not include —

(a)a newspaper advertisement announcing the holding of a meeting;

(b)articles of apparel, lapel buttons, lapel badges, pens, pencils or balloons;

(c)business or visiting cards that promote the candidacy of any person in an election;

(d)letters or cards that —

(i)bear the name and address of the sender; and

(ii)do not contain a representation or purported representation of a ballot paper for use in an election;

print includes to photocopy and to reproduce by any means;

publish electoral material, includes to distribute it and to publish it by radio, television or electronic means.

(2)A person who prints or publishes electoral material, or who causes electoral material to be printed or published, is guilty of an offence and is liable to a fine of $2 000 unless there appears at the end of the material —

(a)the name and address (not being a post office box or email address) of the person who authorised the material; and

(b)the name and address (not being a post office box or email address) of the publisher.

[Section 98 inserted: No. 70 of 2004 s. 10.]

99.False or defamatory statements or deceptive material, publication of

(1)In this section —

deceptive material means any matter or thing that is likely to mislead or deceive an elector about how to vote or for whom to vote in an election;

print includes to photocopy and to reproduce by any means;

publish any material or statement, includes to distribute it and to publish it by radio, television or electronic means;

relevant period of an election, means the period beginning when nominations for the election are first officially invited and ending when the entitlement to vote in the election ceases.

(2)If during the relevant period of an election deceptive material is published, a person who made or who authorised the publishing of the material is guilty of an offence and is liable to imprisonment for 12 months and a fine of $12 000.

(3)It is a defence to a charge of an offence under subsection (2) to prove the accused did not know, and could not reasonably have been expected to know, that the material was deceptive material.

(4)If during the relevant period of an election a false or defamatory statement in relation to the personal character or conduct of a candidate in the election is published, a person who made or who authorised the publishing of the statement is guilty of an offence and is liable to imprisonment for 12 months and a fine of $12 000.

(5)It is a defence to a charge of an offence under subsection (4) to prove the accused believed the statement to be true and had reasonable grounds for doing so.

[Section 99 inserted: No. 70 of 2004 s. 10.]

100.Postal voting, offences in connection with

A candidate in an election who —

(a)interferes with an elector while the elector is applying for a postal vote in the election; or

(b)communicates or interferes with or assists an elector in the process of completing and lodging a postal vote in the election; or

(c)takes custody of, or causes any other person other than the elector to take custody of, an envelope in which there is an elector’s postal vote in the election,

is guilty of an offence and is liable to imprisonment for 12 months and a fine of $12 000.

[Section 100 inserted: No. 70 of 2004 s. 10.]

101.Polling place, offences at or near

(1)A person who is in, or within 6 metres from an entrance to, a polling place on a polling day in an election and who —

(a)canvasses for votes in the election; or

(b)solicits the vote of an elector in the election; or

(c)attempts to induce an elector not to vote in the election; or

(d)attempts to induce an elector not to vote for a particular candidate in the election,

is guilty of an offence and is liable to a fine of $2 000.

(2)A person who, at a polling place or at a place where the votes cast in an election are being counted —

(a)interrupts, disturbs or obstructs proceedings in the place; or

(b)disobeys the reasonable instructions of an electoral officer; or

(c)wilfully destroys, damages or removes a notice or other document that an electoral officer, acting within the scope of his or her authority, has displayed or caused to be displayed,

is guilty of an offence and is liable to a fine of $2 000.

(3)A person who, while an elector is in a compartment or booth for the purpose of marking a ballot paper —

(a)unlawfully enters the compartment or booth; or

(b)unlawfully communicates with the elector; or

(c)unlawfully assists the elector in marking the ballot paper,

is guilty of an offence and is liable to imprisonment for 12 months and a fine of $12 000.

(4)Subsection (3) does not apply to a person who, with the permission of an electoral officer —

(a)having been nominated by the elector to do so, assists an elector who is illiterate or who is so disabled as to be unable to vote without assistance; or

(b)is present to witness the person assisting the elector.

[Section 101 inserted: No. 70 of 2004 s. 10.]

102.Voting offences

(1)A person who votes in an election in the knowledge that he or she is not entitled to vote in the election is guilty of an offence and is liable to imprisonment for 12 months and a fine of $12 000.

(2)A person who, in the knowledge that another person is not entitled to vote in the election, procures that person to vote in the election, is guilty of an offence and is liable to imprisonment for 12 months and a fine of $12 000.

(3)A person who personates an elector is guilty of an offence and is liable to imprisonment for 12 months and a fine of $12 000.

(4)A person who votes more often in an election than the person is entitled is guilty of an offence and is liable to imprisonment for 12 months and a fine of $12 000.

(5)A person who is entitled to cast more than one vote in an election and who casts more votes in the election than the person is entitled to cast is guilty of an offence and is liable to imprisonment for 12 months and a fine of $12 000.

[Section 102 inserted: No. 70 of 2004 s. 10.]

103.Ballot paper and ballot box offences

(1)A person who —

(a)forges a ballot paper; or

(b)fraudulently damages or destroys a ballot paper; or

(c)fraudulently puts a ballot paper in a ballot box; or

(d)wilfully and without authority destroys, takes, opens or otherwise interferes with a ballot paper or ballot box,

is guilty of an offence and is liable to imprisonment for 12 months and a fine of $12 000.

(2)A person who —

(a)supplies a ballot paper without authority; or

(b)is in possession of an unauthorised ballot paper; or

(c)marks a ballot paper without authority; or

(d)takes a ballot paper from a polling place without authority,

is guilty of an offence and is liable to imprisonment for 12 months and a fine of $12 000.

[Section 103 inserted: No. 70 of 2004 s. 10.]

104.Secrecy offences

(1)A person who without authority —

(a)looks at the ballot paper of any particular elector; or

(b)ascertains how any particular elector voted in an election,

is guilty of an offence and is liable to imprisonment for 12 months and a fine of $12 000.

(2)A person who discloses the vote of any particular elector is guilty of an offence and is liable to imprisonment for 12 months and a fine of $12 000.

[Section 104 inserted: No. 70 of 2004 s. 10.]

105.Electoral officer, offences by

An electoral officer who —

(a)attempts to influence the vote of an elector; or

(b)by any unauthorised act or omission attempts to influence the result of an election; or

(c)discloses, except under compulsion of law, knowledge officially acquired concerning the vote of a particular elector,

is guilty of an offence and is liable to imprisonment for 12 months and a fine of $12 000.

[Section 105 inserted: No. 70 of 2004 s. 10.]

106.False statements in connection with an election

(1)A person who makes a statement that is false in a material particular —

(a)in a nomination to be a candidate in an election; or

(b)in an application to be included on a list of electors in an election; or

(c)in any other application or in any declaration, form, certificate or other document that the person completes in connection with an election; or

(d)in an answer to a question in connection with an election that is put by an electoral officer with authority to do so,

is guilty of an offence and is liable to imprisonment for 12 months and a fine of $12 000.

(2)A person who induces another person to commit an offence under subsection (1) is also guilty of an offence under that subsection.

[Section 106 inserted: No. 70 of 2004 s. 10.]

107.Evidentiary matters

In a prosecution for an offence under this Chapter in relation to an election, a certificate purporting to be signed by the officer responsible for conducting the election —

(a)as to when nominations for the election were first officially invited and when the entitlement to vote in the election ceased; or

(b)that a person named in the certificate was or was not a candidate in the election; or

(c)that a person named in the certificate was or was not an elector in the election; or

(d)that a place was or was not a polling place for the purpose of the election; or

(e)that a day was or was not a polling day for the election; or

(f)that the election was duly held,

is admissible without calling the officer and is proof of its contents in the absence of evidence to the contrary.

[Section 107 inserted: No. 70 of 2004 s. 10.]

[108‑118.Deleted: No. 70 of 2004 s. 10.]

[Chapter XV (s. 119) deleted: No. 70 of 1988 s. 17.]

Chapter XVI — Offences relating to the administration of justice

120.Term used: judicial proceeding

In this Chapter the term judicial proceeding includes any proceeding had or taken in or before any court, tribunal, or person, in which evidence may be taken on oath.

121.Judicial corruption

Any person who —

(1)Being the holder of a judicial office, corruptly asks, receives, or obtains, or agrees or attempts to receive or obtain any property or benefit of any kind for himself or any other person on account of anything already done or omitted to be done, or to be afterwards done or omitted to be done, by him in his judicial capacity; or

(2)Corruptly gives, confers, or procures, or promises or offers to give or confer, or to procure or attempt to procure to, upon, or for any person holding a judicial office, or to, upon, or for any other person, any property or benefit of any kind on account of any such act or omission on the part of the person holding the judicial office;

is guilty of a crime, and is liable to imprisonment for 14 years.

The term holder of a judicial office in this section includes an arbitrator or umpire and any member of any board or court of conciliation or arbitration; but in the case of an offence committed by or with respect to any such person, the longest term of imprisonment is 7 years.

A prosecution for an offence under paragraph (1) can not be begun except —

(a)by a public officer acting in the course of his duties; or

(b)by or with the consent of the Attorney General.

[Section 121 amended: No. 119 of 1985 s. 30; No. 101 of 1990 s. 8; No. 51 of 1992 s. 16(2); No. 73 of 1994 s. 4.]

122.Official corruption not judicial but relating to offences

Any person who —

(1)Being a justice not acting judicially, or being a person employed in the Public Service in any capacity not judicial, for the prosecution or detention or punishment of offenders, corruptly asks, receives, or obtains, or agrees or attempts to receive or obtain, any property or benefit of any kind for himself or any other person, on account of anything already done or omitted to be done, or to be afterwards done or omitted to be done, by him, with a view to corrupt or improper interference with the due administration of justice, or the procurement or facilitation of the commission of any offence, or the protection of any offender or intending offender from detection or punishment; or

(2)Corruptly gives, confers, or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, upon, or for any such person, or to, upon, or for any other person, any property or benefit of any kind, on account of any such act or omission on the part of the justice or other person so employed;

is guilty of a crime, and is liable to imprisonment for 14 years.

[Section 122 amended: No. 119 of 1985 s. 30; No. 51 of 1992 s. 16(2); No. 73 of 1994 s. 4.]

123.Corrupting or threatening juror

Any person who —

(1)Attempts by threats or intimidation of any kind, or by benefits or promises of benefit of any kind, or by other corrupt means, to influence any person, whether a particular person or not, in his conduct as a juror in any judicial proceeding, whether he has been sworn as a juror or not; or

(2)Threatens to do any injury or cause any detriment of any kind to any person on account of anything done by him as a juror in any judicial proceeding; or

(3)Accepts any benefit or promise of benefit on account of anything to be done by him as a juror in any judicial proceeding, whether he has been sworn as a juror or not, or on account of anything already done by him as a juror in any judicial proceeding;

is guilty of a crime, and is liable to imprisonment for 5 years.

[Section 123 amended: No. 101 of 1990 s. 9; No. 51 of 1992 s. 16(2); No. 70 of 2004 s. 34(1).]

124.Perjury

Any person who, in any judicial proceeding, or for the purpose of instituting any judicial proceeding, knowingly gives false testimony touching any matter which is material to any question then depending in that proceeding, or intended to be raised in that proceeding, is guilty of a crime which is called perjury.

It is immaterial whether the testimony is given on oath or under any other sanction authorised by law.

The forms and ceremonies used in administering the oath or in otherwise binding the person giving the testimony to speak the truth are immaterial, if he assents to the forms and ceremonies actually used.

It is immaterial whether the false testimony is given orally or in writing.

It is immaterial whether the court or tribunal is properly constituted, or is held in the proper place, or not, if it actually acts as a court or tribunal in the proceeding in which the testimony is given.

It is immaterial whether the person who gives the testimony is a competent witness or not, or whether the testimony is admissible in the proceeding or not.

[Section 124 amended: No. 119 of 1985 s. 30.]

125.Perjury, penalty for

Any person who commits perjury is liable to imprisonment for 14 years.

If the offender commits the crime in order to procure the conviction of another person for a crime punishable with imprisonment for life, he is liable to imprisonment for life.

[Section 125 amended: No. 52 of 1984 s. 14; No. 51 of 1992 s. 16(2); No. 29 of 2008 s. 16(3).]

[126.Deleted: No. 70 of 1988 s. 31.]

127.False evidence before Royal Commission

Any person who, in the course of an examination before a Royal Commission, knowingly gives a false answer to any lawful and relevant question put to him in the course of the examination is guilty of a crime, and is liable to imprisonment for 7 years.

[Section 127 amended: No. 119 of 1985 s. 30; No. 70 of 1988 s. 31; No. 51 of 1992 s. 16(2).]

128.Threatening witness before Royal Commission etc.

Any person who —

(1)Threatens to do any injury, or cause any detriment of any kind to another, with intent to prevent or hinder that other person from giving evidence before any Royal Commission or on other public inquiry; or

(2)Threatens, or in any way punishes, damnifies, or injures, or attempts to punish, damnify, or injure any other person for having given such evidence, or on account of the evidence which he has given, unless such evidence was given in bad faith;

is guilty of a crime, and is liable to imprisonment for 2 years.

[Section 128 amended: No. 51 of 1992 s. 16(2); No. 70 of 2004 s. 34(1).]

129.Fabricating evidence

Any person who, with intent to mislead any tribunal in any judicial proceeding —

(1)Fabricates evidence by any means other than perjury or counselling or procuring the commission of perjury; or

(2)Knowingly makes use of such fabricated evidence;

is guilty of a crime, and is liable to imprisonment for 7 years.

[Section 129 amended: No. 119 of 1985 s. 30; No. 51 of 1992 s. 16(2).]

130.Corruption of witness

Any person who —

(1)Gives, confers, or procures, or promises or offers to give or confer, or to procure or attempt to procure, any property or benefit of any kind to, upon, or for any person, upon any agreement or understanding that any person called or to be called as a witness in any judicial proceeding shall give false testimony or withhold true testimony; or

(2)Attempts by any other means to induce a person called or to be called as a witness in any judicial proceeding to give false testimony or to withhold true testimony; or

(3)Asks, receives, or obtains, or agrees or attempts to receive or obtain, any property or benefit of any kind for himself or any other person, upon any agreement or understanding that any person shall, as a witness in any judicial proceeding, give false testimony or withhold true testimony,

is guilty of a crime, and is liable to imprisonment for 7 years.

[Section 130 amended: No. 119 of 1985 s. 30; No. 51 of 1992 s. 16(2).]

131.Deceiving witness

Any person who practises any fraud or deceit, or knowingly makes or exhibits any false statement, representation, token, or writing, to any person called or to be called as a witness in any judicial proceeding, with intent to affect the testimony of such person as a witness, is guilty of a crime, and is liable to imprisonment for 3 years.

[Section 131 amended: No. 51 of 1992 s. 16(2); No. 70 of 2004 s. 34(1).]

132.Destroying evidence

Any person who, knowing that any book, document, or other thing of any kind, is or may be required in evidence in a judicial proceeding, wilfully destroys it or renders it illegible or undecipherable or incapable of identification, with intent thereby to prevent it from being used in evidence, is guilty of a crime, and is liable to imprisonment for 7 years.

[Section 132 amended: No. 51 of 1992 s. 16(2); No. 8 of 2002 s. 7.]

133.Preventing witness from attending

Any person who wilfully prevents or attempts to prevent any person who has been duly summoned to attend as a witness before any court or tribunal from attending as a witness, or from producing anything in evidence pursuant to the subpoena or summons, is guilty of a crime, and is liable to imprisonment for one year.

[Section 133 amended: No. 70 of 2004 s. 34(1).]

133A.False prosecution, commencing

Any person who knowingly signs a prosecution notice under the Criminal Procedure Act 2004 which, in any material particular, is to his knowledge false, is guilty of a crime and is liable to imprisonment for 7 years.

[Section 133A inserted: No. 10 of 1999 s. 3; amended: No. 59 of 2004 s. 80; No. 84 of 2004 s. 28.]

134.Conspiracy to commence false prosecution

Any person who conspires with another to charge any person or cause any person to be charged with any offence, whether alleged to have been committed in Western Australia, or elsewhere, knowing that such person is innocent of the alleged offence, or not believing him to be guilty of the alleged offence, is guilty of a crime.

If the offence is such that a person convicted of it is liable to be sentenced to imprisonment for life, the offender is liable to imprisonment for 20 years.

If the offence is such that a person convicted of it is liable to be sentenced to imprisonment, but for a term less than life, the offender is liable to imprisonment for 14 years.

In any other case the offender is liable to imprisonment for 7 years.

[Section 134 amended: No. 118 of 1981 s. 5; No. 52 of 1984 s. 15; No. 119 of 1985 s. 30; No. 51 of 1992 s. 16(2); No. 29 of 2008 s. 16(4).]

135.Conspiring to pervert etc. course of justice

Any person who conspires with another to obstruct, prevent, pervert, or defeat the course of justice is guilty of a crime, and is liable to imprisonment for 7 years.

[Section 135 amended: No. 119 of 1985 s. 30; No. 51 of 1992 s. 16(2).]

136.Compounding or concealing offence

(1)In this section —

compound, in relation to an offence, includes —

(a)to abstain from, to discontinue, and to delay, prosecuting the offence; and

(b)to withhold evidence in relation to the offence.

(2)A person who obtains, or who seeks or agrees to receive, any property or benefit, pecuniary or otherwise, for any person, upon an agreement or understanding that the person will compound or conceal an offence is guilty of a crime and is liable to imprisonment for 7 years.

[Section 136 inserted: No. 70 of 2004 s. 11.]

[137.Deleted: No. 70 of 2004 s. 11.]

138.Advertising reward etc. for stolen property

(1)A person who, in any public offer of a reward for the return of any stolen or lost property, uses any words to the effect that no questions will be asked of, or that no action will be taken against, the person returning the property is guilty of an offence and is liable to a fine of $2 000.

(2)A person who offers publicly to pay another person who may have purchased any stolen or lost property or advanced any money by way of loan on the security of any such property —

(a)a refund of the purchase price or the money loaned; or

(b)a reward or any other sum of money for the return of any such property,

is guilty of an offence and is liable to a fine of $2 000.

(3)A person who prints or publishes an offer of the kind referred to in subsection (1) or (2) is guilty of an offence and is liable to a fine of $2 000.

[Section 138 inserted: No. 70 of 2004 s. 12.]

139.Justice acting when personally interested

Any person who —

[(1)deleted]

(2)Being a justice, wilfully and perversely exercises jurisdiction in any matter in which he has a personal interest;

is guilty of a crime, and is liable to imprisonment for 2 years.

[Section 139 amended: No. 87 of 1982 s. 31; No. 73 of 1994 s. 4; No. 70 of 2004 s. 34(1).]

[140.Deleted: No. 87 of 1982 s. 32.]

141.Bringing fictitious action on penal statute

Any person who, in the name of a fictitious plaintiff, or in the name of a real person, but without his authority, brings an action against another person upon a penal statute for the recovery of a penalty for any offence committed or alleged to have been committed by him, is guilty of a crime, and is liable to imprisonment for 2 years.

[Section 141 amended: No. 70 of 2004 s. 34(1).]

142.Inserting advertisement without authority of court

Any person who, without authority, or knowing the advertisement to be false in any material particular, inserts or causes to be inserted in the Government Gazette, or in any newspaper an advertisement purporting to be published under the authority of any court or tribunal, is guilty of a crime, and is liable to imprisonment for 2 years.

[Section 142 amended: No. 51 of 1992 s. 16(2); No. 70 of 2004 s. 34(1).]

143.Attempting to pervert etc. course of justice

Any person who attempts to obstruct, prevent, pervert, or defeat the course of justice is guilty of a crime, and is liable to imprisonment for 7 years.

[Section 143 inserted: No. 106 of 1987 s. 26.]

Chapter XVII — Escapes: Rescues: Obstructing officers of courts

144.Forcibly freeing person from lawful custody

Any person who forcibly frees, or attempts to free, from lawful custody any person serving a sentence for, or charged with, an offence that is punishable with imprisonment for life, or for 20 years or more, is guilty of a crime and is liable to imprisonment for 20 years.

[Section 144 inserted: No. 29 of 2008 s. 15.]

145.Aiding escape from lawful custody

(1)In this section —

prison includes any place where a person is or may be held in lawful custody.

(2)A person who conveys anything or causes anything to be conveyed into a prison with intent to facilitate the escape of a person from that or another prison is guilty of a crime and is liable to imprisonment for 7 years.

Summary conviction penalty: imprisonment for 3 years and a fine of $36 000.

(3)A person who aids a person in escaping or attempting to escape from lawful custody is guilty of a crime and is liable to imprisonment for 7 years.

Summary conviction penalty: imprisonment for 3 years and a fine of $36 000.

[Section 145 inserted: No. 70 of 2004 s. 13.]

146.Escaping from lawful custody

A person who escapes from lawful custody is guilty of a crime and is liable to imprisonment for 7 years.

Summary conviction penalty: imprisonment for 3 years and a fine of $36 000.

[Section 146 inserted: No. 70 of 2004 s. 13.]

147.Permitting escape from lawful custody

Any person who, being an officer of a prison or police officer, and being charged for the time being, with the custody of a prisoner or a person under arrest upon a charge of an offence, wilfully permits him to escape from custody, is guilty of a crime, and is liable to imprisonment for 3 years.

[Section 147 amended: No. 51 of 1992 s. 16(2); No. 70 of 2004 s. 34(1).]

148.Aiding escapee from lawful custody

(1)In this section —

aid includes to harbour, to maintain and to employ.

(2)A person who aids a person who is, to the person’s knowledge, a person who has escaped from lawful custody is guilty of a crime and is liable to imprisonment for 3 years.

Summary conviction penalty: imprisonment for 12 months and a fine of $12 000.

[Section 148 inserted: No. 70 of 2004 s. 14.]

149.Rescuing, permitting escape of or concealing a person subject to any law relating to mental disorder

Any person who —

(a)rescues, or wilfully permits the escape of, a person who is in custody, or is detained, pursuant to the Mental Health Act 2014 or any law relating to mental impairment; or

(b)conceals a person who —

(i)is rescued or escapes from that custody or detention; or

(ii)is absent without leave, within the meaning of the Mental Health Act 2014 section 97 or any law relating to mental impairment,

is guilty of a crime and is liable to imprisonment for 3 years.

[Section 149 inserted: No. 35 of 1962 s. 3; amended: No. 51 of 1992 s. 16(2); No. 69 of 1996 s. 8; No. 70 of 2004 s. 34(1); No. 25 of 2014 s. 48.]

150.Removing etc. property under lawful seizure

Any person who, when any property has been attached or taken under the process or authority of any court of justice, knowingly, and with intent to hinder or defeat the attachment, or process, receives, removes, retains, conceals, or disposes of such property, is guilty of a crime, and is liable to imprisonment for 3 years.

Summary conviction penalty: imprisonment for 12 months and a fine of $12 000.

[Section 150 amended: No. 51 of 1992 s. 16(2); No. 36 of 1996 s. 8; No. 70 of 2004 s. 34(1) and 35(1).]

151.Obstructing court officer

Any person who wilfully obstructs or resists any person lawfully charged with the execution of an order or warrant of any court of justice is guilty of a crime, and is liable to imprisonment for 2 years.

Summary conviction penalty: $6 000.

[Section 151 amended: No. 113 of 1965 s. 8(1); No. 21 of 1972 s. 6; No. 51 of 1992 s. 16(2); No. 36 of 1996 s. 9; No. 50 of 2003 s. 51(10); No. 70 of 2004 s. 34(1) and 35(4).]

[Chapter XVIII (s. 152‑166) deleted: No. 70 of 1988 s. 18.]

[Chapter XIX (s. 167) deleted: No. 70 of 1988 s. 19(1).]

Chapter XX — Miscellaneous offences against public authority

[168.Deleted: No. 52 of 1984 s. 18.]

169.False statement on oath

(1)Any person who, when under oath or any sanction that may be lawfully substituted for an oath, knowingly makes a statement, whether orally or in writing, that is false in a material particular is guilty of a crime and is liable to imprisonment for 7 years.

Summary conviction penalty: imprisonment for 3 years and a fine of $36 000.

(2)Any person who knowingly makes a statement that is false in a material particular in a statutory declaration is guilty of a crime and is liable to imprisonment for 5 years.

Summary conviction penalty: imprisonment for 2 years and a fine of $24 000.

[Section 169 inserted: No. 24 of 2005 s. 41.]

170.False information to official etc.

(1)Any person who, being required under a written law to give information, whether orally or in writing, to another person, knowingly gives information to the other person that is false in a material particular is guilty of a crime and is liable to imprisonment for 3 years.

Summary conviction penalty: imprisonment for 18 months and a fine of $18 000.

(2)Subsection (1) does not apply if the person is required to give the information on oath or in a statutory declaration.

[Section 170 inserted: No. 24 of 2005 s. 42.]

171.Creating false belief

(1)In this section —

belief means a belief or suspicion that —

(a)an offence has been or is about to be committed;

(b)human safety is or may be endangered;

(c)human life has or may have been lost;

(d)property is or may be endangered;

(e)property has or may have been destroyed;

(f)there is a fire that needs to be put out,

and that is of such a nature as would reasonably call for action by the Police Force or by emergency services.

(2)A person who does or omits to do any act with the intention of creating a false belief is guilty of a crime and is liable to imprisonment for 2 years.

Summary conviction penalty: imprisonment for 12 months and a fine of $12 000.

(3)A court convicting a person of an offence under this section may order the person to pay all or some of the reasonable expenses of or incidental to any action that was reasonably taken as a result of the offence, whether or not by the Police Force or emergency services.

(4)The order must specify the person or persons to whom the amount is to be paid.

(5)Part 16 of the Sentencing Act 1995 applies to and in respect of an order made under subsection (3) as if it were a compensation order made under that Part.

[Section 171 inserted: No. 70 of 2004 s. 15.]

172.Obstructing public officer

(1)In this section —

obstruct includes to prevent, to hinder and to resist.

(2)A person who obstructs a public officer, or a person lawfully assisting a public officer, in the performance of the officer’s functions is guilty of a crime and is liable to imprisonment for 3 years.

Summary conviction penalty: imprisonment for 18 months and a fine of $18 000.

[Section 172 inserted: No. 70 of 2004 s. 16.]

173.Public officer refusing to perform duty

Any person who, being employed in the Public Service, or as an officer of any court or tribunal, perversely and without lawful excuse omits or refuses to do any act which it is his duty to do by virtue of his employment, is guilty of a crime, and is liable to imprisonment for 2 years.

[Section 173 amended: No. 73 of 1994 s. 4; No. 70 of 2004 s. 34(1).]

[174, 175.Deleted: No. 4 of 2004 s. 15.]

176.Disobeying request to help arrest person

Any person who, having reasonable notice that he is required to assist any sheriff, under sheriff, justice, mayor, or police officer, in arresting any person, or in preserving the peace, without reasonable excuse omits to do so, is guilty of a crime, and is liable to imprisonment for one year.

[Section 176 amended: No. 70 of 2004 s. 34(1).]

177.Disobeying statute law

Any person who, without lawful excuse, the proof of which lies on him, does any act which he is, by the provisions of any public statute in force in Western Australia, forbidden to do or omits to do any act which he is, by the provisions of any such statute, required to do, is guilty of a crime, unless some mode of proceeding against him for such disobedience is expressly provided by statute, and is intended to be exclusive of all other punishment.

The offender is liable to imprisonment for one year.

[Section 177 amended: No. 70 of 2004 s. 34(1).]

178.Disobeying lawful order issued by statutory authority

Any person who, without lawful excuse, the proof of which lies on him, disobeys any lawful order issued by any court of justice, or by any person authorised by any public statute in force in Western Australia to make the order, is guilty of a crime, unless some mode of proceeding against him for such disobedience is expressly provided by statute, and is intended to be exclusive of all other punishment.

The offender is liable to imprisonment for one year.

[Section 178 amended: No. 70 of 2004 s. 34(1).]

Part IV — Acts injurious to the public in general

[Chapter XXI (s. 179, 180) deleted: No. 70 of 1988 s. 20.]

Chapter XXII — Offences against morality

181.Carnal knowledge of animal

Any person who has carnal knowledge of an animal is guilty of a crime and is liable to imprisonment for 7 years.

[Section 181 inserted: No. 32 of 1989 s. 5.]

[182.Deleted: No. 106 of 1987 s. 14(5).]

[183.Deleted: No. 32 of 1989 s. 6.]

[184.Deleted: No. 3 of 2002 s. 35(1).]

[185.Deleted: No. 14 of 1992 s. 6(2).]

186.Occupier or owner allowing young person to be on premises for unlawful carnal knowledge

(1)Any person who, being the owner or occupier of any premises, or having or acting or assisting in the management or control of any premises, induces or knowingly permits any child of such age as in this section is mentioned to resort to or be in or upon such premises for the purpose of being unlawfully carnally known by any person, whether a particular person or not is guilty of a crime, and;

(a)if the child is under the age of 16 years, is liable to imprisonment for 2 years; and

(b)if the child is under the age of 13 years, is liable to imprisonment for 20 years.

Alternative offence: s. 191(1).

(2)It is a defence to a charge under subsection (1) to prove the accused person believed on reasonable grounds that the child was of or above the age of 16 years.

(3)It is no defence to a charge of an offence against this section that the act of the accused person by which the offence was committed was done with the consent of the person with respect to whom the act was done.

[Section 186 inserted: No. 32 of 1989 s. 9; amended: No. 3 of 2002 s. 36; No. 70 of 2004 s. 17 and 36(3).]

187.Facilitating sexual offence against child outside WA

(1)In this section —

prohibited conduct means the doing of an act in a place outside Western Australia in respect of a child that, if done in Western Australia, would constitute an offence under Chapter XXXI.

(2)A person —

(a)who does any act for the purpose of enabling or aiding another person; or

(b)who aids another person; or

(c)who counsels or procures another person,

to engage in prohibited conduct is guilty of a crime and is liable to imprisonment for 20 years.

[Section 187 inserted: No. 4 of 2004 s. 4; amended: No. 5 of 2014 s. 4.]

[188, 189.Deleted: No. 14 of 1992 s. 6(2).]

190.Being involved with prostitution

(1)Any person who —

(a)keeps or manages, or acts, or assists in the management of any premises for purposes of prostitution; or

(b)being the tenant, lessee, or occupier of any premises, permits such premises, or any part thereof, to be used for purposes of prostitution; or

(c)being the lessor or landlord of any premises, or the agent of such lessor or landlord, lets the same, or any part thereof, or collects the rent with the knowledge that such premises, or some part thereof, are or is to be used for purposes of prostitution, or is a party to the continued use of such premises, or any part thereof, for purposes of prostitution,

is guilty of a crime and is liable to imprisonment for 3 years.

Summary conviction penalty: imprisonment for 12 months and a fine of $12 000.

(2)For the purposes of subsection (1)(a), a person who appears, acts, or behaves as the person having control of, or the care or management of, any premises is to be taken to be keeping the premises, whether the person is or is not the real keeper.

(3)Any person who lives wholly or partly on earnings that the person knows are the earnings of prostitution is guilty of a crime and is liable to imprisonment for 3 years.

Summary conviction penalty: imprisonment for 12 months and a fine of $12 000.

(4)For the purposes of subsection (3), if a person lives with, or is habitually in the company of a prostitute, and has no visible means of subsistence, the person shall, unless he or she can satisfy the court to the contrary, be taken to be living on earnings that the person knows are the earnings of prostitution.

[Section 190 inserted: No. 70 of 2004 s. 18.]

191.Procuring person to be prostitute etc.

(1)Any person who —

(a)Procures a girl or woman who is under the age of 21 years, and is not a common prostitute or of known immoral character to have unlawful carnal connection with a man, either in Western Australia or elsewhere; or

(b)Procures a woman or girl to become a common prostitute either in Western Australia or elsewhere; or

(c)Procures a woman or girl to leave Western Australia , with intent that she may become an inmate of a brothel, elsewhere; or

(d)Procures a woman or girl to leave her usual place of abode in Western Australia, such place not being a brothel, with intent that she may, for the purposes of prostitution, become an inmate of a brothel, either in Western Australia or elsewhere; or

(e)Procures a man or boy for any of the above purposes;

is guilty of a crime, and is liable to imprisonment for 2 years.

Alternative offence for a charge of an offence under subsection (1)(a): s. 186(1).

(2)It is no defence to a charge of an offence against this section that the act of the accused person by which the offence was committed was done with the consent of the person with respect to whom the act was done.

[Section 191 amended: No. 70 of 1988 s. 31; No. 32 of 1989 s. 12; No. 48 of 1991 s. 12(7); No. 51 of 1992 s. 16(2); No. 70 of 2004 s. 19(1), 19(2), 34(1) and 36(4).]

192.Procuring person to have unlawful carnal knowledge by threat, fraud or administering drug

(1)Any person who —

(a)By threats or intimidation of any kind procures a woman or girl to have unlawful carnal connection with a man, either in Western Australia or elsewhere; or

(b)By any false pretence procures a woman or girl, who is not a common prostitute or of known immoral character, to have unlawful carnal connection with a man, either in Western Australia or elsewhere; or

(c)Administers to a woman or girl, or causes a woman or girl to take, any drug or other thing with intent to stupefy or overpower her in order to enable any man, whether a particular man or not, to have unlawful carnal knowledge of her; or

(d)Does any of the foregoing acts with respect to a man or boy;

is guilty of a crime, and is liable to imprisonment for 2 years.

(2)It is no defence to a charge of an offence against this section that the act of the accused person by which the offence was committed was done with the consent of the person with respect to whom the act was done.

[Section 192 amended: No. 70 of 1988 s. 31; No. 32 of 1989 s. 13; No. 48 of 1991 s. 12(7); No. 51 of 1992 s. 16(2); No. 70 of 2004 s. 20 and 34(1).]

[193, 194.Deleted: No. 101 of 1990 s. 10.]

[195.Deleted: No. 17 of 2000 s. 64.]

[196‑198.Deleted: No. 14 of 1992 s. 6(2).]

199.Abortion

(1)It is unlawful to perform an abortion unless —

(a)the abortion is performed by a medical practitioner in good faith and with reasonable care and skill; and

(b)the performance of the abortion is justified under section 334 of the Health (Miscellaneous Provisions) Act 1911.

(2)A person who unlawfully performs an abortion is guilty of an offence.

Penalty: $50 000.

(3)Subject to section 259, if a person who is not a medical practitioner performs an abortion that person is guilty of a crime and is liable to imprisonment for 5 years.

(4)In this section —

medical practitioner means a person registered under the Health Practitioner Regulation National Law ( Western Australia ) in the medical profession.

(5)A reference in this section to performing an abortion includes a reference to —

(a)attempting to perform an abortion; and

(b)doing any act with intent to procure an abortion,

whether or not the woman concerned is pregnant.

[Section 199 inserted: No. 15 of 1998 s. 4; amended: No. 19 of 2016 s. 127.]

[200, 201.Deleted: No. 15 of 1998 s. 4.]

202.Obscene act in public

(1)A person who does an obscene act —

(a)in a public place or in the sight of any person who is in a public place; or

(b)in a police station or lock‑up,

is guilty of a crime and is liable to imprisonment for 3 years.

Alternative offence: s. 203(1).

Summary conviction penalty: imprisonment for 12 months and a fine of $12 000.

(2)A person who owns, or has the control or management of, a place to which the public is admitted, whether on payment of consideration or not, and who permits a person to do an obscene act in that place is guilty of a crime and is liable to imprisonment for 3 years.

Alternative offence: s. 203(2).

Summary conviction penalty: imprisonment for 12 months and a fine of $12 000.

(3)It is a defence to a charge of an offence under this section to prove that it was for the public benefit that the act complained of should be done.

(4)Whether the doing of any such act is or is not for the public benefit is a question of fact.

[Section 202 inserted: No. 70 of 2004 s. 21.]

203.Indecent act in public

(1)A person who does an indecent act —

(a)in a public place or in the sight of any person who is in a public place; or

(b)in a police station or lock‑up,

is guilty of a crime and is liable to imprisonment for 2 years.

Summary conviction penalty: imprisonment for 9 months and a fine of $9 000.

(2)A person who owns, or has the control or management of, a place to which the public is admitted, whether on payment of consideration or not, and who permits a person to do an indecent act in that place is guilty of a crime and is liable to imprisonment for 2 years.

Summary conviction penalty: imprisonment for 9 months and a fine of $9 000.

(3)It is a defence to a charge of an offence under this section to prove that it was for the public benefit that the act complained of should be done.

(4)Whether the doing of any such act is or is not for the public benefit is a question of fact.

[Section 203 inserted: No. 70 of 2004 s. 21.]

204.Indecent act with intent to offend

A person who does an indecent act in any place with intent to insult or offend any person is guilty of a crime and is liable to imprisonment for 3 years.

Summary conviction penalty: imprisonment for 12 months and a fine of $12 000.

[Section 204 inserted: No. 70 of 2004 s. 21.]

204A.Showing offensive material to child under 16

(1)In this section, unless the contrary intention appears —

material includes —

(a)an object;

(b)a still visual image of any kind, whether a drawing, painting, photograph, or other representation on a surface of any kind, and whether printed or not;

(c)a moving visual image of any kind, whether produced from a cinematographic film, video tape, or other medium;

(d)a hologram;

offensive material means material that —

(a)describes, depicts, expresses, or otherwise deals with matters of sex, drug misuse or addiction, crime, cruelty or violence, or revolting or abhorrent phenomena, in a manner that is likely to cause offence to a reasonable adult; or

(b)depicts a person (whether engaged in sexual activity or otherwise) who is, or who is apparently, a child under the age of 16 years in a manner that is likely to cause offence to a reasonable adult; or

(c)describes, depicts, expresses, or otherwise deals with sexual activity of any kind between a human being and an animal; or

(d)promotes, incites, or instructs in matters of crime or violence,

and includes —

(e)a publication, within the meaning of the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth, that has been classified RC, Category 1 restricted or Category 2 restricted under that Act; and

(f)a film, within the meaning of the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth, that has been classified RC or X under that Act; and

(g)a computer game, within the meaning of the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth, that has been classified RC under that Act.

(2)A person who, with intent to commit a crime, shows offensive material to a child under the age of 16 years is guilty of a crime and is liable to imprisonment for 5 years.

(3)Upon an indictment charging a person with an offence under subsection (2), a certificate issued under an Act referred to in the definition of offensive material in subsection (1) as to the status of any material under that Act is, in the absence of evidence to the contrary, proof of the matters in the certificate.

(4)It is a defence to a charge under subsection (2) to prove the accused person —

(a)believed on reasonable grounds that the child was of or over the age of 16 years; and

(b)was not more than 3 years older than the child.

[Section 204A inserted: No. 14 of 1992 s. 5; amended: No. 40 of 1996 s. 152; No. 3 of 2002 s. 37; No. 30 of 2003 s. 42.]

204B.Using electronic communication to procure, or expose to indecent matter, child under 16

(1)In this section —

computer generated image means electronically recorded data capable, by way of an electronic device, of being produced on a computer monitor, television screen, liquid crystal display or similar medium as an image, whether or not the image is in the form of text;

electronic includes electrical, digital, magnetic, optical, electromagnetic, biometric and photonic;

electronic communication —

(a)means a communication by electronic means; and

(b)without limiting paragraph (a), includes a communication by any of these means —

(i)email;

(ii)the Internet;

(iii)facsimile;

(iv)telephone, including mobile telephone;

(v)radio;

(vi)television;

indecent matter includes an indecent film, videotape, audiotape, picture, photograph, or printed or written matter;

picture includes an image, whether or not it is a computer generated image;

victim means a person whom an adult, contrary to subsection (2) or (3), intends to —

(a)procure to engage in sexual activity; or

(b)expose to any indecent matter.

(2)An adult who uses electronic communication —

(a)with intent to —

(i)procure a person under the age of 16 years to engage in sexual activity; or

(ii)expose a person under the age of 16 years to any indecent matter,

either in Western Australia or elsewhere; or

(b)with intent to —

(i)procure a person the offender believes is under the age of 16 years to engage in sexual activity; or

(ii)expose a person the offender believes is under the age of 16 years to any indecent matter,

either in Western Australia or elsewhere,

is guilty of a crime and is liable to imprisonment for 5 years.

(3)An adult who uses electronic communication —

(a)with intent to —

(i)procure a person under the age of 13 years to engage in sexual activity; or

(ii)expose a person under the age of 13 years to any indecent matter,

either in Western Australia or elsewhere; or

(b)with intent to —

(i)procure a person the offender believes is under the age of 13 years to engage in sexual activity; or

(ii)expose a person the offender believes is under the age of 13 years to any indecent matter,

either in Western Australia or elsewhere,

is guilty of a crime and is liable to imprisonment for 10 years.

Alternative offence: subsection (2).

(4)For the purpose of subsection (2)(a)(i) or (b)(i) or (3)(a)(i) or (b)(i), a person engages in sexual activity if the person —

(a)allows a sexual act to be done to the person’s body; or

(b)does a sexual act to the person’s own body or the body of another person; or

(c)otherwise engages in an act of an indecent nature.

(5)The acts referred to in subsection (4) are not limited to penetration or acts involving physical contact.

(6)For the purpose of subsection (2)(a)(i) or (b)(i) or (3)(a)(i) or (b)(i), it is not necessary to prove that the accused person intended to procure the victim to engage in any particular sexual activity.

(7)If, despite subsection (6), an intention to procure the victim to engage in any particular sexual activity is alleged, it does not matter that, because of circumstances not known to the accused person, it is impossible in fact for the victim to engage in the sexual activity.

(8)For the purposes of subsection (2) or (3), it does not matter that the victim is a fictitious person represented to the accused person as a real person.

(9)Evidence that the victim was represented to the accused person as being under the age of 16 years, or 13 years, as the case may be, is, in the absence of evidence to the contrary, proof that the accused person believed the victim was under that age.

(10)It is a defence to a charge under subsection (2)(a) to prove the accused person believed on reasonable grounds that the victim was of or over the age of 16 years.

(11)It is a defence to a charge under subsection (3)(a) to prove the accused person believed on reasonable grounds that the victim was of or over the age of 13 years, but that does not prevent the person from being convicted of an offence under subsection (2).

[Section 204B inserted: No. 3 of 2006 s. 4; amended: No. 46 of 2011 s. 25; No. 5 of 2014 s. 5.]

205.Ignorance of age no defence to charge under this Chapter

Except as otherwise expressly stated, it is immaterial, in the case of any of the offences defined in this Chapter committed with respect to a person or child under the specified age, that the accused person did not know that the person or child was under that age, or believed that he or she was not under that age.

[Section 205 inserted: No. 32 of 1989 s. 19.]

[205A.Deleted: No. 74 of 1985 s. 5.]

206.Supplying intoxicant to person likely to abuse them

(1)In this section —

intoxicant means a drug, or a volatile or other substance, capable of intoxicating a person, but does not include liquor as defined in the Liquor Control Act 1988;

volatile substance means a substance that produces a vapour at room temperature.

(2)A person who sells or supplies an intoxicant to another person in circumstances where the person knows, or where it is reasonable to suspect, that that or another person will use it to become intoxicated is guilty of an offence and is liable to imprisonment for 12 months and a fine of $12 000.

[Section 206 inserted: No. 70 of 2004 s. 22; amended: No. 73 of 2006 s. 114.]

Chapter XXIII — Misconduct relating to corpses

[Heading amended: No. 70 of 2004 s. 23(2).]

[207.Deleted: No. 70 of 1988 s. 23.]

[208.Deleted: No. 4 of 2004 s. 17.]

[209.Deleted: No. 70 of 2004 s. 23(1).]

[210, 211.Deleted: No. 108 of 1982 s. 27.]

[212.Deleted: No. 74 of 1987 s. 64.]

[213.Deleted: No. 70 of 2004 s. 23(1).]

214.Misconduct with regard to corpse

Any person who, without lawful justification or excuse, the proof of which lies on him —

(1)Neglects to perform any duty imposed upon him by law, or undertaken by him, whether for reward or otherwise, touching the burial or other disposition of a human body or human remains; or

(2)Improperly or indecently interferes with, or offers any indignity to, any dead human body or human remains, whether buried or not;

is guilty of a crime, and is liable to imprisonment for 2 years.

Summary conviction penalty: imprisonment for 12 months and a fine of $12 000.

[Section 214 amended: No. 70 of 1988 s. 25; No. 51 of 1992 s. 16(2); No. 70 of 2004 s. 34(1) and 35(1).]

215.Interfering with corpse to hinder inquiry

(1)In this section a person interferes with the corpse of a person if he or she —

(a)conceals the corpse, whether by burying or destroying it or otherwise; or

(b)damages or mutilates or otherwise interferes with the corpse.

(2)Any person who, without lawful justification or excuse, the proof of which lies on him or her, interferes with the corpse of a person with intent to prevent or prejudice any investigation into the circumstances surrounding the death of the person is guilty of a crime and is liable to imprisonment for 10 years.

[Section 215 inserted: No. 4 of 2004 s. 60.]

[Chapter XXIV (s. 216) deleted: No. 16 of 2016 s. 37.]

Chapter XXV  Child exploitation material

[Heading 5 inserted as Ch. XXIV: No. 21 of 2010 s. 4.]

217A.Terms used

In this Chapter —

child means a person under 16 years of age;

child exploitation material means —

(a)child pornography; or

(b)material that, in a way likely to offend a reasonable person, describes, depicts or represents a person, or part of a person, who is, or appears to be, a child —

(i)in an offensive or demeaning context; or

(ii)being subjected to abuse, cruelty or torture (whether or not in a sexual context);

child pornography means material that, in a way likely to offend a reasonable person, describes, depicts or represents a person, or part of a person, who is, or appears to be a child —

(a)engaging in sexual activity; or

(b)in a sexual context;

material includes —

(a)any object, picture, film, written or printed matter, data or other thing; and

(b)any thing from which text, pictures, sound or data can be produced or reproduced, with or without the aid of anything else;

picture has the meaning given in section 204B.

[Section 217A 5 inserted as section 216: No. 21 of 2010 s. 4.]

217.Involving child in child exploitation

(1)For the purposes of this section, a person involves a child in child exploitation if the person —

(a)invites a child to be in any way involved in the production of child exploitation material; or

(b)causes a child to be in any way involved in the production of child exploitation material; or

(c)procures a child for the purpose of the production of child exploitation material; or

(d)offers a child for the purpose of the production of child exploitation material.

(2)A person who involves a child in child exploitation is guilty of a crime and is liable to imprisonment for 10 years.

[Section 217 inserted: No. 21 of 2010 s. 4.]

218.Producing child exploitation material

A person who produces child exploitation material is guilty of a crime and is liable to imprisonment for 10 years.

[Section 218 inserted: No. 21 of 2010 s. 4.]

219.Distributing child exploitation material

(1)In this section —

distribute child exploitation material, includes —

(a)communicate, exhibit, sell, send, supply, offer or transmit child exploitation material to another person, or enter into an agreement or arrangement to do so; or

(b)make child exploitation material available for access by electronic or other means by another person, or enter into an agreement or arrangement to do so.

(2)A person who distributes child exploitation material is guilty of a crime and is liable to imprisonment for 10 years.

(3)A person who has possession of child exploitation material with the intention of distributing the material is guilty of a crime and is liable to imprisonment for 10 years.

[Section 219 inserted: No. 21 of 2010 s. 4.]

220.Possession of child exploitation material

A person who has possession of child exploitation material is guilty of a crime and is liable to imprisonment for 7 years.

[Section 220 inserted: No. 21 of 2010 s. 4.]

221A.Defences and exclusions for s. 217, 218, 219 and 220

(1A)It is no defence to a charge of an offence under section 217, 218, 219 or 220 to prove that the accused person did not know the age of the child to whom the charge relates, or the age of the child described, depicted or represented in the material to which the charge relates, or believed that the child was of or over 16 years of age.

(1)It is a defence to a charge of an offence under section 217, 218, 219 or 220 to prove that —

(a)the material to which the charge relates was classified (whether before or after the commission of the alleged offence) under the Classification (Publications, Films and Computer Games) Act 1995 (Commonwealth), other than as refused classification (RC); or

(b)the accused person did not know, and could not reasonably be expected to have known, that the material to which the charge relates describes, depicts or represents a person or part of a person in a way likely to offend a reasonable person; or

(c)the material to which the charge relates was —

(i)of recognised literary, artistic or scientific merit; or

(ii)of a genuine medical character,

and that the act to which the charge relates is justified as being for the public good; or

(d)the accused person was acting for a genuine child protection or legal purpose, and that the person’s conduct was reasonable for that purpose.

(2)It is a defence to a charge of an offence under section 220 to prove that —

(a)the material to which the charge relates came into the accused person’s possession unsolicited; and

(b)as soon as the accused person became aware of the nature of the material the accused person took reasonable steps to get rid of it.

(3)Nothing in section 219 or 220 makes it an offence —

(a)for a member or officer of a law enforcement agency to possess or distribute child exploitation material when acting in the course of his or her official duties; or

(b)for a person to possess or distribute child exploitation material in the exercise of a function relating to the classification of such material conferred or imposed on the person under the Classification (Publications, Films and Computer Games) Act 1995 (Commonwealth).

(4)In subsection (3)(a) —

law enforcement agency means —

(a)the Police Force of the State; or

(b)the Police Service of the State; or

(c)the Office of the Director of Public Prosecutions of the State; or

(d)the Corruption and Crime Commission; or

(e)any entity of another State or a Territory, the Commonwealth or another country that has functions similar to functions of an entity referred to in paragraph (a), (b), (c) or (d).

[Section 221A inserted: No. 21 of 2010 s. 4.]

221B.Unlawful material, forfeiture of

(1)If a person is charged with an offence against section 217, 218, 219 or 220, the court may order the material to which the charge relates be forfeited to the State.

(2)The court may make an order under subsection (1) whether or not the person is convicted of the offence.

(3)This section does not limit the court’s powers under section 731 or under the Criminal Property Confiscation Act 2000.

[Section 221B inserted: No. 21 of 2010 s. 4.]

Chapter XXVA — Intimate images

[Heading inserted: No. 4 of 2019 s. 4.]

221BA.Terms used

In this Chapter —

consent has the meaning given in section 221BB;

distributes an intimate image of a person includes the meaning given in section 221BC;

engaged in a private act means —

(a)in a state of undress; or

(b)using the toilet, showering or bathing; or

(c)engaged in a sexual act;

intimate image, of a person —

(a)means a still or moving image, in any form, that shows, in circumstances in which the person would reasonably expect to be afforded privacy —

(i)the person’s genital area or anal area, whether bare or covered by underwear; or

(ii)in the case of a female person, or transgender or intersex person identifying as female, the breasts of the person, whether bare or covered by underwear; or

(iii)the person engaged in a private act;

and

(b)includes an image, in any form, that has been created or altered to appear to show any of the things mentioned in paragraph (a);

law enforcement agency means —

(a)the Police Force of the State; or

(b)the Police Service of the State; or

(c)the Office of the Director of Public Prosecutions of the State; or

(d)the Corruption and Crime Commission; or

(e)any entity of another State or a Territory, the Commonwealth or another country that has functions similar to functions of an entity referred to in paragraph (a), (b), (c) or (d).

[Section 221BA inserted: No. 4 of 2019 s. 4.]

221BB.Term used: consent

(1)In this Chapter a reference to consent is a reference to consent freely and voluntarily given.

(2)Without limiting the generality of subsection (1), consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit or any fraudulent means.

(3)A person who consents to the distribution of an intimate image of themselves on a particular occasion is not, only because of that fact, to be regarded as having consented to the distribution of the image or any other image on another occasion.

(4)A person who consents to the distribution of an intimate image of themselves to or by a particular person or in a particular way is not, only because of that fact, to be regarded as having consented to the distribution of the image or any other image to or by another person or in another way.

(5)A person who distributes an intimate image of themselves is not, only because of that fact, to be regarded as having consented to any other distribution of the image or any other image.

(6)A person under 16 years of age is incapable of consenting to the distribution of an intimate image.

(7)This section does not limit the grounds on which it may be established that a person does not consent to the distribution of an intimate image.

[Section 221BB inserted: No. 4 of 2019 s. 4.]

221BC.Term used: distributes

In this Chapter a person distributes an intimate image of a person by —

(a)communicating, exhibiting, selling, sending, supplying, offering or transmitting the image to a person other than themselves or the person depicted in the image; or

(b)making the image available for access by electronic or other means by a person other than themselves or the person depicted in the image; or

(c)entering into an agreement or arrangement to do anything referred to in paragraph (a) or (b).

[Section 221BC inserted: No. 4 of 2019 s. 4.]

221BD.Distribution of intimate image

(1)In this section —

media activity purposes means the purposes of collecting, preparing for the distribution of, or distributing —

(a)material having the character of news, current affairs or a documentary; or

(b)material consisting of commentary or opinion on, or analysis of, news, current affairs, or a documentary.

(2)A person commits a crime if —

(a)the person distributes an intimate image of another person (the depicted person); and

(b)the depicted person does not consent to the distribution.

Penalty for this subsection: imprisonment for 3 years.

Summary conviction penalty for this subsection: imprisonment for 18 months and a fine of $18 000.

(3)It is a defence to a charge under subsection (2) to prove that —

(a)the distribution of the image was for a genuine scientific, educational or medical purpose; or

(b)the distribution of the image was reasonably necessary for the purpose of legal proceedings; or

(c)the person who distributed the image —

(i)distributed the image for media activity purposes; and

(ii)did not intend the distribution to cause harm to the depicted person; and

(iii)reasonably believed the distribution to be in the public interest;

or

(d)a reasonable person would consider the distribution of the image to be acceptable, having regard to each of the following (to the extent relevant) —

(i)the nature and content of the image;

(ii)the circumstances in which the image was distributed;

(iii)the age, mental capacity, vulnerability or other relevant circumstances of the depicted person;

(iv)the degree to which the accused’s actions affect the privacy of the depicted person;

(v)the relationship between the accused and the depicted person;

(vi)any other relevant matters.

(4)Nothing in subsection (2) makes it an offence —

(a)for a member or officer of a law enforcement agency or their agents to distribute an intimate image when acting in the course of their official duties; or

(b)for a person to distribute an intimate image in accordance with, or in the performance of the person’s functions under, a written law or a law of the Commonwealth or another State or Territory; or

(c)for a person to distribute an intimate image for the purposes of the administration of justice.

[Section 221BD inserted: No. 4 of 2019 s. 4.]

221BE.Court may order rectification

(1)In this section —

intimate image offence means —

(a)an offence under section 221BD; or

(b)an offence under section 338A or 338B, if the offence involves a threat to distribute an intimate image of a person; or

(c)an offence under section 338C, if any of the following relate to the distribution of an intimate image of a person —

(i)the threat referred to in section 338C(1)(a);

(ii)the intention, proposal, plan or conspiracy referred to in section 338C(1)(b); or

(iii)the belief, suspicion or fear referred to in section 338C(2)(a).

(2)If a person is charged with an intimate image offence, the court may order the person to take reasonable actions to remove, retract, recover, delete, destroy or forfeit to the State any intimate image to which the offence relates within a period specified by the court.

(3)The court may make an order under subsection (2) whether or not the person is convicted of the offence.

(4)In considering whether or not to make an order under subsection (2), and the content of that order, the court must have regard to any other similar obligations the person is under in relation to the image.

(5)This section does not limit the court’s powers under section 731 or under the Criminal Property Confiscation Act 2000.

(6)A person who, without reasonable excuse, fails to comply with an order made under subsection (2) commits an offence.

Penalty for this subsection: imprisonment for 12 months and a fine of $12 000.

[Section 221BE inserted: No. 4 of 2019 s. 4.]

221BF.Review of amendments made by Criminal Law Amendment (Intimate Images) Act 2019

(1)The Minister must review the operation and effectiveness of the amendments made to this Code, the Restraining Orders Act 1997 and the Working with Children (Criminal Record Checking) Act 2004 by the Criminal Law Amendment (Intimate Images) Act 2019, and prepare a report based on the review, as soon as practicable after the 3rd anniversary of the day on which the Criminal Law Amendment (Intimate Images) Act 2019 section 4 comes into operation.

(2)The Minister must cause the report to be laid before each House of Parliament as soon as practicable after it is prepared, but not later than 12 months after the 3rd anniversary.

[Section 221BF inserted: No. 4 of 2019 s. 4.]

Chapter XXVIA — Facilitating activities of criminal organisations

[Heading inserted: No. 49 of 2012 s. 173(3).]

221C.Terms used

(1)In this Chapter —

COC Act means the Criminal Organisations Control Act 2012;

criminal organisation has the meaning given in section 221D;

declared criminal organisation has the meaning given in the Criminal Organisations Control Act 2012 section 3(1);

indictable offence includes conduct engaged in outside this State (including outside Australia ) that, if it occurred in this State, would constitute an indictable offence.

(2)A term used in this Chapter and also in the COC Act has the same meaning in this Chapter as it has in that Act, unless the term is defined in this Code or the context requires otherwise.

[Section 221C inserted: No. 49 of 2012 s. 173(3).]

221D.Term used: criminal organisation

(1)For the purposes of this Chapter, an entity is a criminal organisation if —

(a)the entity is a declared criminal organisation; or

(b)all of the following apply to the entity —

(i)the entity is an organisation;

(ii)members of the organisation associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity;

(iii)the organisation represents a risk to public safety and order in this State.

(2)In determining whether an entity is a criminal organisation for the purposes of subsection (1)(b) —

(a)a court may have regard to any of the matters that a designated authority is entitled to have regard to under the COC Act section 13(2) (other than paragraph (e)) in considering whether or not to make a declaration under that Act; and

(b)section 13(3) of that Act applies with all necessary changes for the purposes of the court satisfying itself that subsection (1)(b)(ii) of this section applies to the entity.

[Section 221D inserted: No. 49 of 2012 s. 173(3).]

221E.Participating in activities of criminal organisation

(1)A person who, for the purpose of enhancing the ability of a criminal organisation to facilitate or commit an indictable offence, by act or omission, participates in or contributes to any activity of the criminal organisation is guilty of a crime, and is liable to imprisonment for 5 years.

Summary conviction penalty: imprisonment for 2 years.

(2)For the purposes of subsection (1), facilitation of an offence does not require knowledge of a particular offence the commission of which is facilitated, or that an offence actually be committed.

(3)In a prosecution for an offence under subsection (1), it is not necessary to prove that —

(a)the criminal organisation actually facilitated or committed an indictable offence; or

(b)the participation or contribution of the accused actually enhanced the ability of the criminal organisation to facilitate or commit an indictable offence; or

(c)the accused knew the specific nature of any indictable offence that may have been facilitated or committed by the criminal organisation; or

(d)the accused knew the identity of any of the persons who are members of the criminal organisation.

(4)In determining whether an accused participates in or contributes to any activity of a criminal organisation, the court may consider, among other factors, whether the accused —

(a)uses a name, word, symbol or other representation that identifies, or is associated with, the criminal organisation; or

(b)frequently associates with members of the criminal organisation; or

(c)receives any benefit from the criminal organisation; or

(d)repeatedly engages in activities at the instruction of any of the members of the criminal organisation.

[Section 221E inserted: No. 49 of 2012 s. 173(3).]

221F.Instructing commission of offence for benefit of criminal organisation

(1)A person who is a member of a criminal organisation and who instructs, directly or indirectly, any person to commit an offence under this Code or any other written law, or an offence against a law of a jurisdiction other than Western Australia, for the benefit of, at the direction of, or in association with, the criminal organisation is guilty of a crime, and is liable to imprisonment for 20 years.

(2)In a prosecution for an offence under subsection (1), it is not necessary to prove that —

(a)an offence other than the offence under subsection (1) was actually committed; or

(b)the accused instructed a particular person to commit an offence; or

(c)the accused knew the identity of all of the persons who are members of the criminal organisation.

[Section 221F inserted: No. 49 of 2012 s. 173(3).]

Part V — Offences against the person and relating to parental rights and duties and against the reputation of individuals

[Heading amended: No. 5 of 2008 s. 129(2).]

Chapter XXVI — Assaults and violence to the person generally: Justification, excuse and circumstances of aggravation

[Heading amended: No. 38 of 2004 s. 63.]

221.Term used: circumstances of aggravation

(1)In this Part —

circumstances of aggravation means circumstances in which —

(a)the offender is in a family relationship with the victim of the offence; or

(b)a child was present when the offence was committed; or

(c)the conduct of the offender in committing the offence constituted a breach of an order, other than an order under Part 1C, made or registered under the Restraining Orders Act 1997 or to which that Act applies; or

(d)the victim is of or over the age of 60 years.

(2)In this section —

family relationship has the meaning given in the Restraining Orders Act 1997 section 4(1).

[Section 221 inserted: No. 38 of 2004 s. 64; amended: No. 49 of 2016 s. 99.]

222.Term used: assault

A person who strikes, touches, or moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent, or with his consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault.

The term applies force includes the case of applying heat, light, electrical force, gas, odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort.

223.Assault is unlawful

An assault is unlawful and constitutes an offence unless it is authorised or justified or excused by law.

The application of force by one person to the person of another may be unlawful, although it is done with the consent of that other person.

224.Execution of sentence is lawful

It is lawful for a person who is charged by law with the duty of executing or giving effect to the lawful sentence of a court to execute or give effect to that sentence.

225.Execution of process is lawful

It is lawful for a person who is charged by law with the duty of executing the lawful process of a court, and who is required to arrest or detain another person under such process, and for every person lawfully assisting a person so charged, to arrest or detain that other person according to the terms of the process.

226.Execution of warrant is lawful

It is lawful for a person who is charged by law with the duty of executing a lawful warrant issued by any court or justice or other person having jurisdiction to issue it, and who is required to arrest or detain another person under such warrant, and for every person lawfully assisting a person so charged, to arrest or detain that other person according to the directions of the warrant.

227.Sentence, process or warrant issued without authority, effect of

If the sentence was passed, or the process was issued, by a court having jurisdiction under any circumstances to pass such a sentence, or to issue such process, or if the warrant was issued by a court or justice or other person having authority under any circumstances to issue such a warrant, it is immaterial whether the court or justice or person had or had not authority to pass the sentence or issue the process or warrant in the particular case; unless the person executing the same knows that the sentence or process or warrant was in fact passed or issued without authority.

228.Sentence, process or warrant issued without authority, liability of person executing etc.

A person who executes or assists in executing any sentence, process, or warrant which purports to be passed or issued by a court, justice, or other person, and who would be justified, under section 224, 225, 226 or 227, in executing the same if it had been passed or issued by a court, justice, or person having authority to pass or issue it, is not criminally responsible for any act done in such execution, notwithstanding that the court, justice, or person had no authority to pass the sentence or issue the process or warrant, if in such execution he acted in good faith and in the belief that the sentence, process, or warrant was that of a court, justice, or other person having such authority.

[Section 228 amended: No. 44 of 2009 s. 13.]

229.Arrest of wrong person

A person who, being duly authorised to execute a warrant to arrest one person, arrests another person, believing in good faith and on reasonable grounds that the person arrested is the person named in the warrant, is not criminally responsible for doing so to any greater extent than if the person arrested had been the person named in the warrant.

Any person who lawfully assists in making such an arrest, believing that the person arrested is the person named in the warrant, or who, being required by the warrant to receive and detain the person named in it, receives and detains the person so arrested, is not criminally responsible for doing so to any greater extent than if the person arrested had been the person named in the warrant.

230.Process or warrant that is bad in law, liability of person executing etc.

When any process or warrant is bad in law by reason of some defect in substance or in form apparent on the face of it, a person who, in good faith and believing that it is good in law, acts in the execution of the process or warrant, is not criminally responsible for anything done in such execution to any greater extent than if the process or warrant were good in law.

231.Executing sentence, process or warrant or making arrest, using force for

(1)It is lawful for a person who is engaged in the lawful execution of any sentence, process, or warrant, or in making any arrest, and for any person lawfully assisting him, to use such force as may be reasonably necessary to overcome any force used in resisting such execution or arrest.

(2)In determining whether any process or warrant might have been executed, or any arrest made, in a less forcible manner, the following shall be taken into account —

(a)whether the person executing the process or warrant had it with him or her and produced it at the time;

(b)if it was practicable to do so at the time, whether the person making an arrest, whether with or without a warrant, gave notice of the process or warrant under which the person was acting or of the cause of the arrest.

[Section 231 amended: No. 59 of 2006 s. 20.]

[232.Deleted: No. 59 of 2006 s. 21.]

233.Flight from arrest, use of force to prevent

(1)When any person is proceeding lawfully to arrest, with or without warrant, another person, and the person sought to be arrested takes to flight, or appears to be about to take to flight, in order to avoid arrest, it is lawful for the person seeking to make the arrest, and for any person lawfully assisting that person, to use such force as may be reasonably necessary to prevent the escape of the person sought to be arrested.

(2)Subsection (1) does not authorise the use of force that is intended or is likely to cause death or grievous bodily harm unless —

(a)the person who uses that force is a police officer or a person assisting a police officer; and

(b)the person sought to be arrested is reasonably suspected of having committed an offence punishable with imprisonment for life; and

(c)the person sought to be arrested is called on to surrender before that force is used.

[Section 233 inserted: No. 119 of 1985 s. 6.]

[234.Deleted: No. 119 of 1985 s. 7.]

235.Escape or rescue after arrest, use of force to prevent

(1)When any person has lawfully arrested another person for any offence, it is lawful for him to use such force as may be reasonably necessary to prevent the escape or rescue of the person arrested.

(2)Subsection (1) does not authorise the use of force that is intended or is likely to cause death or grievous bodily harm unless the offence referred to in that subsection is punishable with imprisonment for 14 years or upwards, with or without any other punishment.

[Section 235 inserted: No. 119 of 1985 s. 8.]

[236, 237.Deleted: No. 59 of 2006 s. 22.]

238.Riot, use of force to suppress

It is lawful for any person to use such force as is necessary to suppress a riot, and is reasonably proportioned to the danger to be apprehended from its continuance.

239.Riot, use of force to suppress by justice and police officer

It is lawful for a justice to use or order to be used, and for a police officer to use, such force as he believes, on reasonable grounds, to be necessary in order to suppress a riot, and as is reasonably proportioned to the danger which he believes, on reasonable grounds, is to be apprehended from its continuance.

240.Riot, use of force to suppress by person acting under lawful order

It is lawful for any person acting in good faith in obedience to orders, not manifestly unlawful, given by a justice for the suppression of a riot, to use such force as he believes, on reasonable grounds, to be necessary for carrying such orders into effect.

Whether any particular order so given is or is not manifestly unlawful is a question of law.

241.Riot, use of force to suppress by person acting without order in case of emergency

When any person, whether subject to military law or not, believes, on reasonable grounds, that serious mischief will arise from a riot before there is time to procure the intervention of a justice, it is lawful for him to use such force as he believes, on reasonable grounds, to be necessary for the suppression of the riot, and as is reasonably proportioned to the danger which he believes, on reasonable grounds, is to be apprehended from its continuance.

242.Riot, use of force to suppress by military personnel

It is lawful for a person who is bound by military law to obey the lawful commands of his superior officer to obey any command given him by his superior officer in order to the suppression of a riot, unless the command is manifestly unlawful.

Whether any particular command is or is not manifestly unlawful is a question of law.

243.Violence by mentally impaired person, use of force to prevent

It is lawful for any person to use such force as is reasonably necessary in order to prevent a person whom he believes, on reasonable grounds, to be mentally impaired from doing violence to any person or property.

[Section 243 inserted: No. 59 of 2006 s. 23.]

244.Home invasion, use of force to prevent etc.

(1)It is lawful for a person (the occupant) who is in peaceable possession of a dwelling to use any force or do anything else that the occupant believes, on reasonable grounds, to be necessary —

(a)to prevent a home invader from wrongfully entering the dwelling or an associated place; or

(b)to cause a home invader who is wrongfully in the dwelling or on or in an associated place to leave the dwelling or place; or

(c)to make effectual defence against violence used or threatened in relation to a person by a home invader who is —

(i)attempting to wrongfully enter the dwelling or an associated place; or

(ii)wrongfully in the dwelling or on or in an associated place;

or

(d)to prevent a home invader from committing, or make a home invader stop committing, an offence in the dwelling or on or in an associated place.

(1A)Despite subsection (1), it is not lawful for the occupant to use force that is intended, or that is likely, to cause death to a home invader unless the occupant believes, on reasonable grounds, that violence is being or is likely to be used or is threatened in relation to a person by a home invader.

(2)A person is a home invader for the purposes of subsection (1) if the occupant believes, on reasonable grounds, that the person —

(a)intends to commit an offence; or

(b)is committing or has committed an offence,

in the dwelling or on or in an associated place.

(3)The authorisation conferred by subsection (1)(a), (b) or (d) extends to a person assisting the occupant or acting by the occupant’s authority.

(4)If under subsection (1)(c) it is lawful for the occupant to use a degree of force, it is lawful for another person acting in good faith in aid of the occupant to use the same degree of force to defend the occupant.

(5)This section has effect even if the conduct it authorises would not otherwise be authorised under this Chapter.

(6)In this section —

associated place means —

(a)any place that is used exclusively in connection with, or for purposes ancillary to, the occupation of the dwelling; and

(b)if the dwelling is one of 2 or more dwellings in one building or group of buildings, a place that occupants of the dwellings use in common with one another;

offence means an offence in addition to any wrongful entry;

place means any land, building or structure, or a part of any land, building or structure.

[Section 244 inserted: No. 45 of 2000 s. 4; amended: No. 29 of 2008 s. 7.]

245.Term used: provocation

The term provocation used with reference to an offence of which an assault is an element, means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial, or fraternal relation, to deprive him of the power of self control, and to induce him to assault the person by whom the act or insult is done or offered.

When such an act or insult is done or offered by one person to another, or in the presence of another, to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid, the former is said to give to the latter provocation for an assault.

A lawful act is not provocation to any person for an assault.

An act which a person does in consequence of incitement given by another person in order to induce him to do the act and thereby to furnish an excuse for committing an assault, is not provocation to that other person for an assault.

An arrest which is unlawful is not necessarily provocation for an assault, but it may be evidence of provocation to a person who knows of the illegality.

[Section 245 amended: No. 4 of 2004 s. 61(1).]

246.Defence of provocation

A person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault, if he is in fact deprived by the provocation of the power of self‑control, and acts upon it on the sudden and before there is time for his passion to cool; provided that the force used is not disproportionate to the provocation, and is not intended, and is not such as is likely to cause death or grievous bodily harm.

Whether any particular act or insult is such as to be likely to deprive an ordinary person of the power of self‑control and to induce him to assault the person by whom the act or insult is done or offered, and whether, in any particular case, the person provoked was actually deprived by the provocation of the power of self‑control, and whether any force used is or is not disproportionate to the provocation, are questions of fact.

247.Repetition of insult, use of force to prevent

It is lawful for any person to use such force as is reasonably necessary to prevent the repetition of an act or insult of such a nature as to be provocation to him for an assault; provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.

248.Self‑defence

(1)In this section —

harmful act means an act that is an element of an offence under this Part other than Chapter XXXV.

(2)A harmful act done by a person is lawful if the act is done in self‑defence under subsection (4).

(3)If —

(a)a person unlawfully kills another person in circumstances which, but for this section, would constitute murder; and

(b)the person’s act that causes the other person’s death would be an act done in self‑defence under subsection (4) but for the fact that the act is not a reasonable response by the person in the circumstances as the person believes them to be,

the person is guilty of manslaughter and not murder.

(4)A person’s harmful act is done in self‑defence if —

(a)the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and

(b)the person’s harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and

(c)there are reasonable grounds for those beliefs.

(5)A person’s harmful act is not done in self‑defence if it is done to defend the person or another person from a harmful act that is lawful.

(6)For the purposes of subsection (5), a harmful act is not lawful merely because the person doing it is not criminally responsible for it.

[Section 248 inserted: No. 29 of 2008 s. 8.]

[249, 250.Deleted: No. 29 of 2008 s. 8.]

251.Movable property, use of force to resist taking of by trespasser etc.

It is lawful for any person who is in peaceable possession of any movable property, and for any person acting by his authority, to use such force as is reasonably necessary in order to resist the taking of such property by a trespasser, or in order to retake it from a trespasser, provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm to the trespasser.

[Section 251 amended: No. 37 of 1991 s. 8.]

252.Movable property possessed with claim of right, use of force to defend possession of

When a person is in peaceable possession of any movable property under a claim of right, it is lawful for him, and for any person acting by his authority, to use such force as is reasonably necessary in order to defend his possession of the property, even against a person who is entitled by law to possession of the property, provided that he does not do bodily harm to such other person.

253.Movable property possessed without claim of right etc., use of force to take

When a person who is entitled by law to the possession of movable property attempts to take it from a person who is in possession of the property, but who neither claims right to it nor acts by the authority of a person who claims right, and the person in possession resists him, it is lawful for the person so entitled to possession to use such force as is reasonably necessary in order to obtain possession of the property; provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm to the person in possession.

[Section 253 amended: No. 37 of 1991 s. 9.]

254.Place, use of force to prevent entry to and remove people from

(1)For the purposes of this section and section 255, the term place means any land, building, structure, tent, or conveyance, or a part of any land, building, structure, tent, or conveyance.

(2)It is lawful for a person (the occupant) who is in peaceable possession of any place, or who is entitled to the control or management of any place, to use such force as is reasonably necessary —

(a)to prevent a person from wrongfully entering the place; or

(b)to remove a person who wrongfully remains on or in the place; or

(c)to remove a person behaving in a disorderly manner on or in the place;

provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm to the person.

(3)The authorisation conferred by subsection (2), as limited by the proviso to that subsection, extends to a person acting by the occupant’s authority except that if that person’s duties as an employee consist of or include any of the matters referred to in subsection (2)(a), (b) or (c) that person is not authorised to use force that is intended, or is likely, to cause bodily harm.

[Section 254 inserted: No. 37 of 1991 s. 10.]

255.Place possessed with claim of right, use of force to defend

When a person is in peaceable possession of any place with a claim of right, it is lawful for him, and for any person acting by his authority, to use such force as is reasonably necessary in order to defend his possession, even against a person who is entitled by law to the possession of the place, provided that he does not do bodily harm to such person.

[Section 255 amended: No. 37 of 1991 s. 11.]

256.Entry to land to exercise disputed right‑of‑way etc., use of force to prevent

When a person who is lawfully entitled to enter upon land for the exercise of a right‑of‑way or other easement or profit enters upon the land for the purpose of exercising such right‑of‑way, easement, or profit, after notice that his right to use such way or easement or to take such profit is disputed by the person in possession of the land, or having entered persists in his entry after such notice, it is lawful for the person in possession, and for any person acting by his authority, to use such force as is reasonably necessary for the purpose of making the person so entering desist from the entry, provided that he does not do him bodily harm.

257.Discipline of children, use of force for

It is lawful for a parent or a person in the place of a parent, or for a schoolmaster, to use, by way of correction, towards a child or pupil under his care, such force as is reasonable under the circumstances.

[Section 257 amended: No. 4 of 2004 s. 61(2).]

258.Discipline on ship or aircraft, use of force for

It is lawful for the master or other person in command of —

(a)a vessel on a voyage; or

(b)an aircraft on a flight;

and for any person acting under his instructions to use, for the purpose of maintaining good order and discipline on board the vessel or aircraft, such force as he believes, on reasonable grounds, to be necessary, and as is reasonable under the circumstances.

[Section 258 inserted: No. 53 of 1964 s. 3.]

259.Surgical and medical treatment, liability for

(1)A person is not criminally responsible for administering, in good faith and with reasonable care and skill, surgical or medical treatment (including palliative care) —

(a)to another person for that other person’s benefit; or

(b)to an unborn child for the preservation of the mother’s life,

if the administration of the treatment is reasonable, having regard to the patient’s state at the time and to all the circumstances of the case.

(2)A person is not criminally responsible for not administering or ceasing to administer, in good faith and with reasonable care and skill, surgical or medical treatment (including palliative care) if not administering or ceasing to administer the treatment is reasonable, having regard to the patient’s state at the time and to all the circumstances of the case.

[Section 259 inserted: No. 15 of 1998 s. 5; amended: No. 25 of 2008 s. 18.]

259A.Inoculation procedure, liability for

A person is not criminally responsible for performing, in good faith and with reasonable care and skill, a procedure that involves causing a person to have a disease, if that procedure is performed for inoculation purposes.

[Section 259A inserted: No. 51 of 1992 s. 4.]

260.Excessive force is unlawful

In any case in which the use of force by one person to another is lawful, the use of more force than is justified by law under the circumstances is unlawful.

261.Consent to death immaterial

Consent by a person to the causing of his own death does not affect the criminal responsibility of any person by whom such death is caused.

Chapter XXVII — Duties relating to the preservation of human life

262.Duty to provide necessaries of life

It is the duty of every person having charge of another who is unable by reason of age, sickness, mental impairment, detention, or any other cause, to withdraw himself from such charge, and who is unable to provide himself with the necessaries of life, whether the charge is undertaken under a contract, or is imposed by law, or arises by reason of any act, whether lawful or unlawful, of the person who has such charge, to provide for that other person the necessaries of life; and he is held to have caused any consequences which result to the life or health of the other person by reason of any omission to perform that duty.

[Section 262 amended: No. 69 of 1996 s. 10.]

263.Duty of head of family

It is the duty of every person who, as head of a family, has the charge of a child under the age of 16 years, being a member of his household, to provide the necessaries of life for such child, and he is held to have caused any consequences which result to the life or health of the child by reason of any omission to perform that duty whether the child is helpless or not.

[264.Deleted: No. 4 of 2004 s. 61(3).]

265.Duty of person doing dangerous act

It is the duty of every person who, except in a case of necessity, undertakes to administer surgical or medical treatment (including palliative care) to any other person, or to do any other lawful act which is or may be dangerous to human life or health, to have reasonable skill and to use reasonable care in doing such act; and he is held to have caused any consequences which result to the life or health of any person by reason of any omission to observe or perform that duty.

[Section 265 amended: No. 25 of 2008 s. 19.]

266.Duty of person in charge of dangerous thing

(1)In this section —

anything includes a source of ignition and a fire.

(2)It is the duty of every person who has in his charge or under his control anything, whether living or inanimate, and whether moving or stationary, of such a nature that, in the absence of care or precaution in its use or management, the life, safety, or health of any person may be endangered, to use reasonable care and take reasonable precautions to avoid such danger; and he is held to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty.

[Section 266 amended: No. 43 of 2009 s. 8.]

267.Duty to do certain acts

When a person undertakes to do any act the omission to do which is or may be dangerous to human life or health, it is his duty to do that act; and he is held to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty.

Chapter XXVIII — Homicide: Suicide: Concealment of birth

268.Killing a person is unlawful

It is unlawful to kill any person unless such killing is authorised or justified or excused by law.

269.When a child becomes a human being

A child becomes a person capable of being killed when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not, and whether it has an independent circulation or not, and whether the navel‑string is severed or not.

270.Term used: kill

Any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person.

[Section 270 amended: No. 37 of 1991 s. 5.]

271.Death from act done at childbirth

When a child dies in consequence of an act done or omitted to be done by any person before or during its birth, the person who did or omitted to do such act is deemed to have killed the child.

272.Causing death by threat

A person who, by threats or intimidation of any kind, or by deceit, causes another person to do an act or make an omission which results in the death of that other person, is deemed to have killed him.

273.Acceleration of death

A person who does any act or makes any omission which hastens the death of another person who, when the act is done or the omission is made, is labouring under some disorder or disease arising from another cause, is deemed to have killed that other person.

274.Death from bodily injury that might have been avoided or prevented

When a person causes a bodily injury to another from which death results, it is immaterial that the injury might have been avoided by proper precaution on the part of the person injured, or that his death from that injury might have been prevented by proper care or treatment.

275.Death from, or from treatment of, grievous bodily harm

When a person does grievous bodily harm to another and such other person has recourse to surgical or medical treatment (including palliative care), and death results either from the injury or the treatment, he is deemed to have killed that other person, although the immediate cause of death was the surgical or medical treatment; provided that the treatment was reasonably proper under the circumstances, and was applied in good faith.

[Section 275 amended: No. 25 of 2008 s. 20.]

[276.Deleted: No. 37 of 1991 s. 6.]

277.Unlawful homicide is murder or manslaughter

Any person who unlawfully kills another is guilty of a crime which, according to the circumstances of the case, may be murder or manslaughter.

[Section 277 inserted: No. 21 of 1972 s. 9; amended: No. 58 of 1974 s. 4; No. 89 of 1986 s. 6; No. 29 of 2008 s. 16(5).]

[278.Deleted: No. 29 of 2008 s. 10.]

279.Murder

(1)If a person unlawfully kills another person and —

(a)the person intends to cause the death of the person killed or another person; or

(b)the person intends to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the life of the person killed or another person; or

(c)the death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life,

the person is guilty of murder.

Alternative offence: s. 280, 281, 283, 284, 290 or 291 or Road Traffic Act 1974 s. 59.

(2)For the purposes of subsection (1)(a) and (b), it is immaterial that the person did not intend to hurt the person killed.

(3)For the purposes of subsection (1)(c), it is immaterial that the person did not intend to hurt any person.

(4)A person, other than a child, who is guilty of murder must be sentenced to life imprisonment unless —

(a)that sentence would be clearly unjust given the circumstances of the offence and the person; and

(b)the person is unlikely to be a threat to the safety of the community when released from imprisonment,

in which case, subject to subsection (5A), the person is liable to imprisonment for 20 years.

(5A)If the offence is committed by an adult offender in the course of conduct that constitutes an aggravated home burglary, the court sentencing the offender, if it does not impose a term of life imprisonment must, notwithstanding any other written law, impose a term of imprisonment of at least 15 years.

(5)A child who is guilty of murder is liable to either —

(a)life imprisonment; or

(b)detention in a place determined from time to time by the Governor or under another written law until released by order of the Governor.

(6A)If the offence is committed by a juvenile offender in the course of conduct that constitutes an aggravated home burglary and the court sentences the offender under subsection (5)(a) but does not impose a term of life imprisonment, it —

(a)must, notwithstanding the Young Offenders Act 1994 section 46(5a), impose either —

(i)a term of imprisonment of at least 3 years; or

(ii)a term of detention under the Young Offenders Act 1994 of at least 3 years,

as the court thinks fit; and

(b)must not suspend any term of imprisonment imposed; and

(c)must record a conviction against the offender.

(6B)Subsection (6A) does not prevent a court from —

(a)making a direction under the Young Offenders Act 1994 section 118(4); or

(b)making a special order under Part 7 Division 9 of that Act.

(6)A court that does not sentence a person guilty of murder to life imprisonment must give written reasons why life imprisonment was not imposed.

[Section 279 inserted: No. 29 of 2008 s. 10; amended: No. 25 of 2015 s. 5.]

280.Manslaughter

(1)If a person unlawfully kills another person under such circumstances as not to constitute murder, the person is guilty of manslaughter and is liable to imprisonment for life.

Alternative offence: s. 281, 284, 290, 291 or 294 or Road Traffic Act 1974 s. 59.

(2)If the offence is committed by an adult offender in the course of conduct that constitutes an aggravated home burglary, the court sentencing the offender, if it does not impose a term of imprisonment for life must, notwithstanding any other written law, impose a term of imprisonment of at least 15 years.

(3)If the offence is committed by a juvenile offender in the course of conduct that constitutes an aggravated home burglary, the court sentencing the offender —

(a)if it does not impose a term of imprisonment for life must, notwithstanding the Young Offenders Act 1994 section 46(5a), impose either —

(i)a term of imprisonment of at least 3 years; or

(ii)a term of detention under the Young Offenders Act 1994 of at least 3 years,

as the court thinks fit; and

(b)must not suspend any term of imprisonment imposed; and

(c)must record a conviction against the offender.

(4)Subsection (3) does not prevent a court from —

(a)making a direction under the Young Offenders Act 1994 section 118(4); or

(b)making a special order under Part 7 Division 9 of that Act.

[Section 280 inserted: No. 29 of 2008 s. 11; amended: No. 58 of 2011 s. 4; No. 25 of 2015 s. 6.]

281.Unlawful assault causing death

(1)If a person unlawfully assaults another who dies as a direct or indirect result of the assault, the person is guilty of a crime and is liable to imprisonment for 20 years.

(2)A person is criminally responsible under subsection (1) even if the person does not intend or foresee the death of the other person and even if the death was not reasonably foreseeable.

(3)If the offence is committed by an adult offender in the course of conduct that constitutes an aggravated home burglary, the court sentencing the offender must, notwithstanding any other written law, impose a term of imprisonment of at least 75% of the term specified in subsection (1).

(4)If the offence is committed by a juvenile offender in the course of conduct that constitutes an aggravated home burglary, the court sentencing the offender —

(a)must, notwithstanding the Young Offenders Act 1994 section 46(5a), impose either —

(i)a term of imprisonment of at least 3 years; or

(ii)a term of detention under the Young Offenders Act 1994 of at least 3 years,

as the court thinks fit; and

(b)must not suspend any term of imprisonment imposed; and

(c)must record a conviction against the offender.

(5)Subsection (4) does not prevent a court from —

(a)making a direction under the Young Offenders Act 1994 section 118(4); or

(b)making a special order under Part 7 Division 9 of that Act.

[Section 281 inserted: No. 29 of 2008 s. 12; amended: No. 25 of 2015 s. 7; No. 49 of 2016 s. 100.]

[281A.Deleted: No. 29 of 2008 s. 13.]

[282.Deleted: No. 29 of 2008 s. 10.]

283.Attempt to unlawfully kill

(1)Any person who —

(a)attempts unlawfully to kill another; or

(b)with intent unlawfully to kill another does any act, or omits to do any act which it is his duty to do, such act or omission being of such a nature as to be likely to endanger human life;

is guilty of a crime, and is liable to imprisonment for life.

Alternative offence: s. 292, 294, 297, 304, 305 or 317.

(2)If the offence is committed by an adult offender in the course of conduct that constitutes an aggravated home burglary, the court sentencing the offender, if it does not impose a term of life imprisonment must, notwithstanding any other written law, impose a term of imprisonment of at least 15 years.

(3)If the offence is committed by a juvenile offender in the course of conduct that constitutes an aggravated home burglary, the court sentencing the offender —

(a)if it does not impose a term of imprisonment for life, must, notwithstanding the Young Offenders Act 1994 section 46(5a), impose either —

(i)a term of imprisonment of at least 3 years; or

(ii)a term of detention under the Young Offenders Act 1994 of at least 3 years,

as the court thinks fit; and

(b)must not suspend any term of imprisonment imposed; and

(c)must record a conviction against the offender.

(4)Subsection (3) does not prevent a court from —

(a)making a direction under the Young Offenders Act 1994 section 118(4); or

(b)making a special order under Part 7 Division 9 of that Act.

[Section 283 amended: No. 106 of 1987 s. 7; No. 51 of 1992 s. 16(2); No. 4 of 2004 s. 16; No. 70 of 2004 s. 36(3); No. 29 of 2008 s. 16(6); No. 25 of 2015 s. 8.]

284.Culpable driving (not of motor vehicle) causing death or grievous bodily harm

(1)In this section —

conveyance does not include a motor vehicle;

drive a conveyance, includes to pilot an aircraft and to navigate a vessel.

(2)For the purposes of this section a person culpably drives a conveyance if the person drives the conveyance in a manner (including at a speed) that, having regard to all the circumstances of the case, is dangerous to any person.

(3)If —

(a)a person culpably drives a conveyance; and

(b)the conveyance is involved in an incident that directly or indirectly causes the death of, or grievous bodily harm to, another person,

the person is guilty of a crime and is liable to imprisonment for —

(c)if death is caused, 10 years; or

(d)if grievous bodily harm is caused, 7 years.

Summary conviction penalty: imprisonment for 3 years and a fine of $36 000.

(4)A court convicting a person of an offence under this section that involves the navigation of a vessel must make an order under the Sentencing Act 1995 section 107(1) for a term of at least 2 years.

(5)It is a defence to a charge of an offence under subsection (3) to prove the death or grievous bodily harm caused by the incident was not in any way attributable (as relevant) to the manner (including the speed) in which the conveyance was driven.

[Section 284 inserted: No. 29 of 2008 s. 14; amended: No. 44 of 2009 s. 5.]

[285.Deleted: No. 101 of 1990 s. 12.]

[286.Deleted: No. 106 of 1987 s. 14(5).]

[287.Deleted: No. 29 of 2008 s. 11.]

[287A.Deleted: No. 29 of 2008 s. 13.]

288.Procuring etc. suicide

Any person who —

(1)Procures another to kill himself; or

(2)Counsels another to kill himself and thereby induces him to do so; or

(3)Aids another in killing himself;

is guilty of a crime, and is liable to imprisonment for life.

[Section 288 amended: No. 51 of 1992 s. 16(2).]

[289.Deleted: No. 21 of 1972 s. 10.]

290.Preventing birth of live child

Any person who, when a woman is about to be delivered of a child, prevents the child from being born alive by any act or omission of such a nature that, if the child had been born alive and had then died, he would be deemed to have unlawfully killed the child, is guilty of a crime, and is liable to imprisonment for life.

Alternative offence: s. 291.

[Section 290 amended: No. 51 of 1992 s. 16(2); No. 70 of 2004 s. 36(3).]

291.Concealing birth of dead child

Any person who, when a woman is delivered of a child endeavours, by any secret disposition of the dead body of the child, to conceal its birth, whether the child died before, at, or after its birth, is guilty of a crime, and is liable to imprisonment for 2 years.

[Section 291 amended: No. 51 of 1992 s. 16(2); No. 70 of 2004 s. 34(1).]

[291A.Deleted: No. 58 of 1974 s. 5.]

Chapter XXIX — Offences endangering life or health

292.Disabling in order to commit indictable offence etc.

Any person who, by means of violence of any kind and with intent to commit or to facilitate the commission of an indictable offence, or to facilitate the flight of an offender after the commission or attempted commission of an indictable offence, renders or attempts to render any person incapable of resistance, is guilty of a crime, and is liable to imprisonment for 20 years.

Alternative offence: s. 301 or 317A.

[Section 292 amended: No. 118 of 1981 s. 4; No. 51 of 1992 s. 16(1) and (2); No. 70 of 2004 s. 36(3).]

293.Stupefying in order to commit indictable offence etc.

Any person who, with intent to commit or to facilitate the commission of an indictable offence, or to facilitate the flight of an offender after the commission or attempted commission of an indictable offence, administers, or attempts to administer any stupefying or overpowering drug or thing to any person, is guilty of a crime, and is liable to imprisonment for 20 years.

[Section 293 amended: No. 118 of 1981 s. 4; No. 51 of 1992 s. 16(2).]

294.Act intended to cause grievous bodily harm or prevent arrest

(1)Any person who, with intent to maim, disfigure, or disable any person, or to do some grievous bodily harm to any person, or to resist or prevent the lawful arrest or detention of any person —

(a)unlawfully wounds or does any grievous bodily harm to any person by any means whatever; or

(b)unlawfully attempts in any manner to strike any person with any kind of projectile; or

(c)unlawfully causes any explosive substance to explode; or

(d)sends or delivers any explosive substance or other dangerous or noxious thing to any person; or

(e)causes any such substance or thing to be taken or received by any person; or

(f)puts any corrosive fluid or any destructive or explosive substance in any place; or

(g)unlawfully casts or throws any such fluid or substance at or upon any person, or otherwise applies any such fluid or substance to the person of any person; or

(h)does any act that is likely to result in a person having a serious disease;

is guilty of a crime, and is liable to imprisonment for 20 years.

Alternative offence: s. 297, 304, 317 or 317A.

(2)If the offence is committed by an adult offender in the course of conduct that constitutes an aggravated home burglary, the court sentencing the offender must, notwithstanding any other written law, impose a term of imprisonment of at least 75% of the term specified in subsection (1).

(3)If the offence is committed by a juvenile offender in the course of conduct that constitutes an aggravated home burglary, the court sentencing the offender —

(a)must, notwithstanding the Young Offenders Act 1994 section 46(5a), impose either —

(i)a term of imprisonment of at least 3 years; or

(ii)a term of detention under the Young Offenders Act 1994 of at least 3 years,

as the court thinks fit; and

(b)must not suspend any term of imprisonment imposed; and

(c)must record a conviction against the offender.

(4)Subsection (3) does not prevent a court from —

(a)making a direction under the Young Offenders Act 1994 section 118(4); or

(b)making a special order under Part 7 Division 9 of that Act.

[Section 294 amended: No. 118 of 1981 s. 4; No. 51 of 1992 s. 5 and 16(2); No. 70 of 2004 s. 36(3); No. 25 of 2015 s. 9.]

294A.Dangerous goods on aircraft

(1)Subject to this section, any person who —

(a)carries or places dangerous goods on board an aircraft; or

(b)delivers dangerous goods to another person for the purpose of those goods being placed on board an aircraft; or

(c)has dangerous goods in his possession on board an aircraft,

is guilty of a crime and is liable to imprisonment for 7 years.

Alternative offence: s. 68 or 451A.

(2)It is a defence to a charge of any offence defined in subsection (1) to prove that —

(a)the act constituting the offence was consented to by the owner or operator of the aircraft with knowledge by him of the nature of the goods concerned; or

(b)the act was done by authority or permission of or under a law of the Commonwealth or of the State.

(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 a person on board an aircraft.

[Section 294A inserted: No. 53 of 1964 s. 4; amended: No. 51 of 1992 s. 16(2); No. 70 of 2004 s. 36(3).]

295.Preventing escape from wreck

Any person who unlawfully —

(1)Prevents or obstructs any person who is on board of or is escaping from a vessel which is in distress or wrecked or cast ashore, in his endeavours to save his life; or

(2)Obstructs any person in his endeavours to save the life of any person so situated;

is guilty of a crime, and is liable to imprisonment for 20 years.

[Section 295 amended: No. 118 of 1981 s. 4; No. 51 of 1992 s. 16(2).]

[296, 296A.Deleted: No. 4 of 2004 s. 18.]

297.Grievous bodily harm

(1)Any person who unlawfully does grievous bodily harm to another is guilty of a crime, and is liable to imprisonment for 10 years.

Alternative offence: s. 304, 313 or 317 or Road Traffic Act 1974 s. 59.

(2)If the offence is committed in the course of conduct that, under section 371 or 371A, constitutes the stealing of a motor vehicle, the offender is liable to imprisonment for 14 years.

(3)If the offence is committed in circumstances of aggravation, the offender is liable to imprisonment for 14 years.

(4)If —

(a)the victim of the offence is a public officer who is performing a function of his office or employment; or

(b)the offence is committed against a public officer on account of his being such an officer or his performance of a function of his office or employment; or

(c)the victim of the offence is the driver or person operating or in charge of —

(i)a vehicle travelling on a railway; or

(ii)a ferry; or

(iii)a passenger transport vehicle as defined in the Transport (Road Passenger Services) Act 2018 section 4(1);

or

(d)the victim of the offence is —

(i)an ambulance officer; or

(ii)a member of a FES Unit, SES Unit or VMRS Group (within the meaning given to those terms by the Fire and Emergency Services Act 1998); or

(iii)a member or officer of a private fire brigade or volunteer fire brigade (within the meaning given to those terms by the Fire Brigades Act 1942),

who is performing his or her duties as such; or

(e)the victim of the offence is a person who —

(i)is working in a hospital; or

(ii)is in the course of providing a health service to the public;

or

(f)the victim of the offence is a contract worker (within the meaning given to that term by the Court Security and Custodial Services Act 1999) who is providing court security services or custodial services under that Act; or

(g)the victim of the offence is a contract worker (within the meaning given to that term by section 15A of the Prisons Act 1981) who is performing functions under Part IIIA of that Act,

the offender is liable to imprisonment for 14 years.

(5)If the offence is committed by an adult offender, then the court sentencing the offender —

(a)if the offence is committed in the course of conduct that constitutes an aggravated home burglary, must, notwithstanding any other written law, impose a term of imprisonment of —

(i)at least 75% of the term specified in subsection (3), where the offence is committed in circumstances of aggravation; or

(ii)at least 75% of the term specified in subsection (1), in any other case;

and

(b)if the offence is committed in prescribed circumstances, must, notwithstanding any other written law, impose a term of imprisonment of at least 12 months, and must not suspend the term of imprisonment imposed.

(6)If the offence is committed by a juvenile offender, then the court sentencing the offender —

(a)if the offence is committed in the course of conduct that constitutes an aggravated home burglary, must, notwithstanding the Young Offenders Act 1994 section 46(5a), impose either —

(i)a term of imprisonment of at least 3 years; or

(ii)a term of detention under the Young Offenders Act 1994 of at least 3 years,

as the court thinks fit; and

(b)if the offence is committed in prescribed circumstances, must, notwithstanding the Young Offenders Act 1994, impose either —

(i)a term of imprisonment of at least 3 months, notwithstanding the Sentencing Act 1995 section 86; or

(ii)a term of detention under the Young Offenders Act 1994 of at least 3 months,

as the court thinks fit,

and in either case must not suspend any term of imprisonment imposed and must record a conviction.

(7)Subsection (6) does not prevent a court from —

(a)making a direction under the Young Offenders Act 1994 section 118(4); or

(b)making a special order under Part 7 Division 9 of that Act.

(8)In subsections (5) and (6) —

prescribed circumstances means any of these circumstances —

(a)where the offence is committed in the circumstances set out in subsection (4)(a) or (b) and the public officer is —

(i)a police officer; or

(ii)a prison officer as defined in the Prisons Act 1981 section 3(1); or

(iiia)a person appointed under the Young Offenders Act 1994 section 11(1a)(a); or

(iii)a security officer as defined in the Public Transport Authority Act 2003 section 3;

(b)where the offence is committed in the circumstances set out in subsection (4)(d)(i), (f) or (g).

[Section 297 amended: No. 1 of 1992 s. 4; No. 51 of 1992 s. 16(2); No. 29 of 1998 s. 3; No. 23 of 2001 s. 3; No. 38 of 2004 s. 65; No. 70 of 2004 s. 36(6); No. 2 of 2008 s. 5; No. 21 of 2009 s. 4; No. 8 of 2012 s. 184; No. 22 of 2012 s. 115; No. 12 of 2013 s. 4; No. 25 of 2015 s. 10; No. 26 of 2018 s. 308 .]

[298‑300.Deleted: No. 4 of 2004 s. 19.]

301.Wounding and similar acts

Any person who —

(1)Unlawfully wounds another; or

(2)Unlawfully, and with intent to injure or annoy any person, causes any poison or other noxious thing to be administered to or taken by any person;

is guilty of a crime, and is liable —

(a)if the offence is committed in circumstances of aggravation, to imprisonment for 7 years; or

(b)in any other case, to imprisonment for 5 years.

Summary conviction penalty:

(a)in a case to which paragraph (a) above applies: imprisonment for 3 years and a fine of $36 000; or

(b)in a case to which paragraph (b) above applies: imprisonment for 2 years and a fine of $24 000.

[Section 301 amended: No. 51 of 1992 s. 16(2); No. 82 of 1994 s. 6; No. 23 of 2001 s. 4; No. 38 of 2004 s. 66; No. 70 of 2004 s. 35(4).]

[302.Deleted: No. 4 of 2004 s. 20.]

[303.Deleted: No. 4 of 2004 s. 61(4).]

304.Act or omission causing bodily harm or danger

(1)If a person omits to do any act that it is the person’s duty to do, or unlawfully does any act, as a result of which —

(a)bodily harm is caused to any person; or

(b)the life, health or safety of any person is or is likely to be endangered,

the person is guilty of a crime and is liable to imprisonment for 7 years.

Summary conviction penalty: imprisonment for 3 years and a fine of $36 000.

(2)If a person, with an intent to harm, omits to do any act that it is the person’s duty to do, or does any act, as a result of which —

(a)bodily harm is caused to any person; or

(b)the life, health or safety of any person is or is likely to be endangered,

the person is guilty of a crime and is liable to imprisonment for 20 years.

(3)For the purposes of subsection (2) an intent to harm is an intent to —

(a)unlawfully cause bodily harm to any person; or

(b)unlawfully endanger the life, health or safety of, any person; or

(c)induce any person to deliver property to another person; or

(d)gain a benefit, pecuniary or otherwise, for any person; or

(e)cause a detriment, pecuniary or otherwise, to any person; or

(f)prevent or hinder the doing of an act by a person who is lawfully entitled to do that act; or

(g)compel the doing of an act by a person who is lawfully entitled to abstain from doing that act.

[Section 304 inserted: No. 4 of 2004 s. 21; amended: No. 70 of 2004 s. 35(2); No. 44 of 2009 s. 6.]

305.Setting dangerous thing

(1)In this section —

dangerous thing means any article, device, substance, or thing, that by reason of its nature (whether chemical, electrical, electronic, mechanical, or otherwise), situation, operation or condition, may endanger the life, health or safety of a person (whether a particular person or not);

set includes construct and place.

(2)For the purposes of subsections (3) and (4), a person wilfully sets a dangerous thing if the person sets the thing —

(a)intending that the thing will kill or cause grievous bodily harm to a person; or

(b)knowing or believing that the thing is likely to kill or cause grievous bodily harm to a person.

(3)A person who wilfully sets a dangerous thing is guilty of a crime and is liable to imprisonment for 3 years.

Alternative offence: s. 305(4)

Summary conviction penalty: imprisonment for 12 months and a fine of $12 000.

(4)A person who, knowing that a dangerous thing has been wilfully set by another person, does not take reasonable measures to make the thing harmless is guilty of a crime and is liable to imprisonment for 3 years.

Summary conviction penalty: imprisonment for 12 months and a fine of $12 000.

(5)A person is not criminally responsible under this section for an act or omission in respect of a dangerous thing set at night in a dwelling for the protection of the occupants of the dwelling.

[Section 305 inserted: No. 4 of 2004 s. 21; amended: No. 70 of 2004 s. 35(1) and 36(3).]

305A.Intoxication by deception

(1)In this section —

harm includes an impairment of the senses or understanding of a person that the person might reasonably be expected to object to in the circumstances;

impair includes further impair and temporarily impair;

intoxicating substance includes any substance that affects a person’s senses or understanding.

(2)For the purposes of this section giving a person drink or food includes preparing the drink or food for the person or making it available for consumption by the person.

(3)This section applies if a person (the provider) causes another person to be given or to consume drink or food —

(a)containing an intoxicating substance that other person is not aware that it contains; or

(b)containing more of an intoxicating substance than that other person would reasonably expect it to contain.

(4)Where this section applies and the provider —

(a)intends a person to be harmed by the consumption of the drink or food; or

(b)knows or believes that consumption of the drink or food is likely to harm a person,

the provider is guilty of a crime and is liable to imprisonment for 3 years.

Summary conviction penalty: imprisonment for 12 months and a fine of $12 000.

(5)It is a defence to a charge under subsection (4) to prove that the accused person had reasonable cause to believe that each person who was likely to consume the drink or food would not have objected to consuming the drink or food if the person had been aware of the presence and quantity of the intoxicating substance in the drink or food.

[Section 305A inserted: No. 31 of 2007 s. 4.]

306.Female genital mutilation

(1)In this section —

child means a person under the age of 18 years;

female genital mutilation means —

(a)the excision or mutilation of the whole or a part of the clitoris, the labia minora, the labia majora, or any other part of the female genital organs; or

(b)infibulation or any procedure that involves the sealing or suturing together of the labia minora or the labia majora; or

(c)any procedure to narrow or close the vaginal opening,

but does not include —

(d)a reassignment procedure within the meaning of the Gender Reassignment Act 2000 carried out on a person’s genitals by a medical practitioner as defined in section 3 of that Act; or

(e)a medical procedure carried out for proper medical purposes.

(2)A person who performs female genital mutilation on another person is guilty of a crime and is liable to imprisonment for 20 years.

(3)It is not a defence to a charge under subsection (2) that the other person, or a parent or guardian of the other person, consented to the mutilation.

(4)A person who takes a child from Western Australia, or arranges for a child to be taken from Western Australia, with the intention of having the child subjected to female genital mutilation is guilty of a crime and is liable to imprisonment for 10 years.

(5)In proceedings for an offence under subsection (4), proof that —

(a)the accused person took a child, or arranged for a child to be taken from Western Australia ; and

(b)the child, while out of Western Australia , was subjected to female genital mutilation,

is proof, in the absence of evidence to the contrary, that the accused person took the child, or arranged for the child to be taken, from Western Australia, as the case may be, with the intention of having the child subjected to female genital mutilation.

[Section 306 inserted: No. 4 of 2004 s. 22; amended: No. 19 of 2016 s. 128.]

[307‑312.Deleted: No. 4 of 2004 s. 21.]

Chapter XXX — Assaults

313.Common assault

(1)Any person who unlawfully assaults another is guilty of a simple offence and is liable —

(a)if the offence is committed in circumstances of aggravation or in circumstances of racial aggravation, to imprisonment for 3 years and a fine of $36 000; or

(b)in any other case, to imprisonment for 18 months and a fine of $18 000.

(2)A prosecution for an offence under subsection (1) may be commenced at any time.

[Section 313 inserted: No. 106 of 1987 s. 15; amended: No. 23 of 2001 s. 5; No. 38 of 2004 s. 67; No. 70 of 2004 s. 35(4); No. 2 of 2008 s. 6(1).]

[314, 315.Deleted: No. 74 of 1985 s. 7.]

[316.Deleted: No. 119 of 1985 s. 11.]

317.Assault causing bodily harm

(1)Any person who unlawfully assaults another and thereby does that other person bodily harm is guilty of a crime, and is liable —

(a)if the offence is committed in circumstances of aggravation or in circumstances of racial aggravation, to imprisonment for 7 years; or

(b)in any other case, to imprisonment for 5 years.

Alternative offence: s. 313.

Summary conviction penalty:

(a)in a case to which paragraph (a) above applies: imprisonment for 3 years and a fine of $36 000; or

(b)in a case to which paragraph (b) above applies: imprisonment for 2 years and a fine of $24 000.

[(2)deleted]

[Section 317 inserted: No. 119 of 1985 s. 12; amended: No. 106 of 1987 s. 24; No. 70 of 1988 s. 28; No. 82 of 1994 s. 12; No. 23 of 2001 s. 6; No. 38 of 2004 s. 68; No. 70 of 2004 s. 35(4) and 36(3); No. 2 of 2008 s. 7(1).]

317A.Assault with intent

Any person who —

(a)assaults another with intent to commit or facilitate the commission of a crime; or

(b)assaults another with intent to do grievous bodily harm to any person; or

(c)assaults another with intent to resist or prevent the lawful arrest or detention of any person,

is guilty of a crime, and is liable —

(d)if the offence is committed in circumstances of aggravation or in circumstances of racial aggravation, to imprisonment for 7 years; or

(e)in any other case, to imprisonment for 5 years.

Alternative offence: s. 313 or 317.

Summary conviction penalty:

(a)in a case to which paragraph (d) above applies: imprisonment for 3 years and a fine of $36 000; or

(b)in a case to which paragraph (e) above applies: imprisonment for 2 years and a fine of $24 000.

[Section 317A inserted: No. 82 of 1994 s. 7; amended: No. 23 of 2001 s. 7; No. 38 of 2004 s. 69; No. 70 of 2004 s. 35(4) and 36(3); No. 2 of 2008 s. 8(1).]

318.Serious assault

(1)Any person who —

[(a)‑(c)deleted]

(d)assaults a public officer who is performing a function of his office or employment or on account of his being such an officer or his performance of such a function; or

(e)assaults any person who is performing a function of a public nature conferred on him by law or on account of his performance of such a function; or

(f)assaults any person who is acting in aid of a public officer or other person referred to in paragraph (d) or (e) or on account of his having so acted; or

(g)assaults the driver or person operating or in charge of —

(i)a vehicle travelling on a railway; or

(ii)a ferry; or

(iii)a passenger transport vehicle as defined in the Transport (Road Passenger Services) Act 2018 section 4(1);

or

(h)assaults —

(i)an ambulance officer; or

(ii)a member of a FES Unit, SES Unit or VMRS Group (within the meaning given to those terms by the Fire and Emergency Services Act 1998); or

(iii)a member or officer of a private fire brigade or volunteer fire brigade (within the meaning given to those terms by the Fire Brigades Act 1942),

who is performing his or her duties as such; or

(i)assaults a person who —

(i)is working in a hospital; or

(ii)is in the course of providing a health service to the public;

or

(j)assaults a contract worker (within the meaning given to that term by the Court Security and Custodial Services Act 1999) who is providing court security services or custodial services under that Act; or

(k)assaults a contract worker (within the meaning given to that term by section 15A of the Prisons Act 1981) who is performing functions under Part IIIA of that Act,

is guilty of a crime and is liable —

(l)if at or immediately before or immediately after the commission of the offence —

(i)the offender is armed with any dangerous or offensive weapon or instrument; or

(ii)the offender is in company with another person or persons,

to imprisonment for 10 years; or

(m)in any other case, to imprisonment for 7 years.

Summary conviction penalty: in a case to which subsection (1)(m) applies: imprisonment for 3 years and a fine of $36 000.

(2)If a person is convicted of an offence against this section committed in prescribed circumstances at a time when the person had reached 16 but not 18 years of age, then, notwithstanding the Young Offenders Act 1994 and in particular section 46(5a) of it, the court sentencing the person —

(a)must sentence the offender to either —

(i)a term of imprisonment of at least 3 months, notwithstanding the Sentencing Act 1995 section 86; or

(ii)to a term of detention (as defined in the Young Offenders Act 1994 section 3) of at least 3 months,

as the court thinks fit; and

(b)must not suspend any term of imprisonment imposed under paragraph (a)(i); and

(c)must record a conviction against the person.

(3)Subsection (2) does not prevent a court from making a direction under the Young Offenders Act 1994 section 118(4) or a special order under Part 7 Division 9 of that Act.

(4)If a person is convicted of an offence against this section committed in prescribed circumstances at a time when the person had reached 18 years of age, then, notwithstanding any other written law, the court sentencing the person —

(a)if the offence is committed in the circumstances set out in subsection (1)(l) — must sentence the person to a term of imprisonment of at least 9 months;

(b)if the offence is not committed in the circumstances set out in subsection (1)(l) — must sentence the person to a term of imprisonment of at least 6 months,

and must not suspend the term of imprisonment imposed under paragraph (a) or (b).

(5)In subsections (2) and (4) —

prescribed circumstances means any of these circumstances —

(a)where the offence is committed under subsection (1)(d) or (e) against a public officer who is —

(i)a police officer; or

(ii)a prison officer as defined in the Prisons Act 1981 section 3(1); or

(iiia)a person appointed under the Young Offenders Act 1994 section 11(1a)(a); or

(iii)a security officer as defined in the Public Transport Authority Act 2003 section 3,

and the officer suffers bodily harm;

(b)where the offence is committed under subsection (1)(h)(i), (j) or (k) and the person assaulted suffers bodily harm.

[Section 318 inserted: No. 119 of 1985 s. 13; amended: No 106 of 1987 s. 24; No. 70 of 1988 s. 29; No. 82 of 1994 s. 8; No. 70 of 2004 s. 35(3); No. 2 of 2008 s. 9; No. 21 of 2009 s. 5; No. 8 of 2012 s. 185; No. 22 of 2012 s. 116; No. 12 of 2013 s. 5; No. 26 of 2018 s. 309 .]

318A.Assault on aircraft’s crew

Any person who unlawfully assaults a member of the crew of an aircraft or threatens with violence a member of the crew of an aircraft so as to interfere with the performance by the member of his functions or duties connected with the operation of the aircraft or so as to lessen his ability to perform those functions or duties, is guilty of a crime and is liable to imprisonment for 14 years.

Alternative offence: s. 294A, 297, 304, 313, 317 or 317A.

[Section 318A inserted: No. 53 of 1964 s. 6; amended: No. 51 of 1992 s. 16(2); No. 70 of 2004 s. 36(3); No. 44 of 2009 s. 7.]

Chapter XXXI — Sexual offences

[Heading inserted: No. 14 of 1992 s. 6(1).]

319.Terms used

(1)In this Chapter —

circumstances of aggravation, without limiting the definition of that expression in section 221, includes circumstances in which —

(a)at or immediately before or immediately after the commission of the offence —

(i)the offender is armed with any dangerous or offensive weapon or instrument or pretends to be so armed; or

(ii)the offender is in company with another person or persons; or

(iii)the offender does bodily harm to any person; or

(iv)the offender does an act which is likely seriously and substantially to degrade or humiliate the victim; or

(v)the offender threatens to kill the victim;

or

(b)the victim is of or over the age of 13 years and under the age of 16 years;

deals with includes doing any act which, if done without consent, would constitute an assault;

indecent act means an indecent act which is —

(a)committed in the presence of or viewed by any person; or

(b)photographed, videotaped, or recorded in any manner;

to indecently record means to take, or permit to be taken, or make, or permit to be made, an indecent photograph, film, video tape, or other recording (including a sound recording);

to sexually penetrate means —

(a)to penetrate the vagina (which term includes the labia majora), the anus, or the urethra of any person with —

(i)any part of the body of another person; or

(ii)an object manipulated by another person,

except where the penetration is carried out for proper medical purposes; or

(b)to manipulate any part of the body of another person so as to cause penetration of the vagina (which term includes the labia majora), the anus, or the urethra of the offender by part of the other person’s body; or

(c)to introduce any part of the penis of a person into the mouth of another person; or

(d)to engage in cunnilingus or fellatio; or

(e)to continue sexual penetration as defined in paragraph (a), (b), (c) or (d).

(2)For the purposes of this Chapter —

(a)consent means a consent freely and voluntarily given and, without in any way affecting the meaning attributable to those words, a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit, or any fraudulent means;

(b)where an act would be an offence if done without the consent of a person, a failure by that person to offer physical resistance does not of itself constitute consent to the act;

(c)a child under the age of 13 years is incapable of consenting to an act which constitutes an offence against the child.

(3)For the purposes of this Chapter, a reference to a person indecently dealing with a child or an incapable person includes a reference to the person —

(a)procuring or permitting the child or incapable person to deal indecently with the person; or

(b)procuring the child or incapable person to deal indecently with another person; or

(c)committing an indecent act in the presence of the child or incapable person.

(4)For the purposes of this Chapter, a person is said to engage in sexual behaviour if the person —

(a)sexually penetrates any person; or

(b)has carnal knowledge of an animal; or

(c)penetrates the person’s own vagina (which term includes the labia majora), anus, or urethra with any object or any part of the person’s body for other than proper medical purposes.

[Section 319 inserted: No. 14 of 1992 s. 6(1); amended: No. 38 of 2004 s. 70.]

320.Child under 13, sexual offences against

(1)In this section child means a child under the age of 13 years.

(2)A person who sexually penetrates a child is guilty of a crime and is liable to imprisonment for 20 years.

Alternative offence: s. 320(4), 321(2) or (4) or 322(2) or (4).

(3)A person who procures, incites, or encourages a child to engage in sexual behaviour is guilty of a crime and is liable to imprisonment for 20 years.

Alternative offence: s. 320(4) or (5), 321(3), (4) or (5) or 322(3), (4) or (5).

(4)A person who indecently deals with a child is guilty of a crime and is liable to imprisonment for 10 years.

Alternative offence: s. 321(4) or 322(4).

(5)A person who procures, incites, or encourages a child to do an indecent act is guilty of a crime and is liable to imprisonment for 10 years.

Alternative offence: s. 321(5) or 322(5).

(6)A person who indecently records a child is guilty of a crime and is liable to imprisonment for 10 years.

Alternative offence: s. 321(6) or 322(6).

(7)If an offence under this section is committed by an adult offender in the course of conduct that constitutes an aggravated home burglary, the court sentencing the offender must, notwithstanding any other written law, impose a term of imprisonment of at least 75% of the term specified in whichever of subsection (2), (3), (4), (5) or (6) constitutes the offence.

(8)If an offence under this section is committed by a juvenile offender in the course of conduct that constitutes an aggravated home burglary, the court sentencing the offender —

(a)must, notwithstanding the Young Offenders Act 1994 section 46(5a), impose either —

(i)a term of imprisonment of at least 3 years; or

(ii)a term of detention under the Young Offenders Act 1994 of at least 3 years,

as the court thinks fit; and

(b)must not suspend any term of imprisonment imposed; and

(c)must record a conviction against the offender.

(9)Subsection (8) does not prevent a court from making a direction under the Young Offenders Act 1994 section 118(4).

[Section 320 inserted: No. 14 of 1992 s. 6(1); amended: No. 70 of 2004 s. 36(3); No. 25 of 2015 s. 11.]

321.Child of or over 13 and under 16, sexual offences against

(1)In this section, child means a child of or over the age of 13 years and under the age of 16 years.

(2)A person who sexually penetrates a child is guilty of a crime and is liable to the punishment in subsection (7).

Alternative offence: s. 321(4) or 322(2) or (4).

(3)A person who procures, incites, or encourages a child to engage in sexual behaviour is guilty of a crime and is liable to the punishment in subsection (7).

Alternative offence: s. 321(4) or (5) or 322(3), (4) or (5).

(4)A person who indecently deals with a child is guilty of a crime and is liable to the punishment in subsection (8).

Alternative offence: s. 322(4).

(5)A person who procures, incites, or encourages a child to do an indecent act is guilty of a crime and is liable to the punishment in subsection (8).

Alternative offence: s. 322(5).

(6)A person who indecently records a child is guilty of a crime and is liable to the punishment in subsection (8).

Alternative offence: s. 322(6).

(7)A person who is guilty of a crime under subsection (2) or (3) is liable to imprisonment for —

(a)14 years; or

(b)where the child is under the care, supervision, or authority of the offender, 20 years; or

(c)where the offender is under the age of 18 years and the child is not under the care, supervision, or authority of the offender, 7 years.

(8)A person who is guilty of a crime under subsection (4), (5) or (6) is liable to imprisonment for —

(a)7 years; or

(b)where the child is under the care, supervision, or authority of the offender, 10 years; or

(c)where the offender is under the age of 18 years and the child is not under the care, supervision, or authority of the offender, 4 years.

(9)Subject to subsection (9a) it is a defence to a charge under this section to prove the accused person —

(a)believed on reasonable grounds that the child was of or over the age of 16 years; and

(b)was not more than 3 years older than the child.

(9a)Where the child is under the care, supervision, or authority of the accused person it is immaterial that the accused person —

(a)believed on reasonable grounds that the child was of or over the age of 16 years; and

(b)was not more than 3 years older than the child.

(10)It is a defence to a charge under subsection (2), (3) or (4) to prove the accused person was lawfully married to the child.

(11)It is a defence to a charge under subsection (5) to prove —

(a)that the indecent act was a private conjugal act; or

(b)that the accused person intended the indecent act to be a private conjugal act.

(12)For the purposes of subsection (11) an indecent act is a private conjugal act if —

(a)it is not committed in the presence of, or viewed by, any person other than a person lawfully married to the child; and

(b)no photograph, film, videotape or other recording is made of it other than for the exclusive and private use of the child and a person lawfully married to the child.

(13)It is a defence to a charge under subsection (6) to prove —

(a)that the accused person was lawfully married to the child; and

(b)that the indecent recording was made for the exclusive and private use of the child and the accused person.

(14)If an offence under this section is committed by an adult offender in the course of conduct that constitutes an aggravated home burglary, the court sentencing the offender must, notwithstanding any other written law, impose a term of imprisonment of at least 75% of the term specified in whichever of subsection (7) or (8) applies to the offence.

(15)If an offence under this section is committed by a juvenile offender in the course of conduct that constitutes an aggravated home burglary, the court sentencing the offender —

(a)must, notwithstanding the Young Offenders Act 1994 section 46(5a), impose either —

(i)a term of imprisonment of at least 3 years; or

(ii)a term of detention under the Young Offenders Act 1994 of at least 3 years,

as the court thinks fit; and

(b)must not suspend any term of imprisonment imposed; and

(c)must record a conviction against the offender.

(16)Subsection (15) does not prevent a court from making a direction under the Young Offenders Act 1994 section 118(4).

[Section 321 inserted: No. 14 of 1992 s. 6(1); amended: No. 3 of 2002 s. 38; No. 4 of 2004 s. 62; No. 70 of 2004 s. 36(3); No. 25 of 2015 s. 12.]

321A.Child under 16, persistent sexual conduct with

(1)In this section —

prescribed offence means —

(a)an offence under section 320(2) or (4) or 321(2) or (4) or an attempt to commit such an offence; or

(b)an offence under section 320(3) or 321(3) where the child in fact engages in sexual behaviour;

sexual act means an act that would constitute a prescribed offence.

(2)For the purposes of this section a person persistently engages in sexual conduct with a child if that person does a sexual act in relation to the child on 3 or more occasions each of which is on a different day.

(3)For the purposes of subsection (2) —

(a)the sexual acts need not all constitute the same prescribed offence; and

(b)the sexual acts need not all have occurred in this State as long as at least one of them did.

(4)A person who persistently engages in sexual conduct with a child under the age of 16 years is guilty of a crime and is liable to imprisonment for 20 years.

(5)A charge of an offence under subsection (4) —

(a)must specify the period during which it is alleged that the sexual conduct occurred; and

(b)need not specify the dates, or in any other way particularise the circumstances, of the sexual acts alleged to constitute the sexual conduct.

(6)A person charged with an offence under subsection (4) may also be charged, either in the same or a separate indictment, with a prescribed offence that is alleged to have been committed in the period during which it is alleged that the sexual conduct constituting the offence under subsection (4) occurred.

(7)An indictment containing a charge of an offence under subsection (4) must be signed by the Director of Public Prosecutions or the Deputy Director of Public Prosecutions.

(8)A court cannot order the prosecutor to give a person charged with an offence under subsection (4) particulars of the sexual acts alleged to constitute the offence, despite section 131 of the Criminal Procedure Act 2004.

(9)It is a defence to a charge of an offence under subsection (4) to prove the accused person —

(a)believed on reasonable grounds that the child was of or over the age of 16 years; and

(b)was not more than 3 years older than the child.

(10)It is a defence to a charge of an offence under subsection (4) to prove the accused person was lawfully married to the child.

(11)If in a trial by jury of a charge of an offence under subsection (4), there is evidence of sexual acts on 4 or more occasions, the jury members need not all be satisfied that the same sexual acts occurred on the same occasions as long as the jury is satisfied that the accused person persistently engaged in sexual conduct in the period specified.

(12)If an accused person is found not guilty of a charge of an offence under subsection (4), he or she may nevertheless be found guilty of one or more prescribed offences committed in the period specified in the charge if the offence or offences are established by the evidence, despite section 10A.

(13)If a person is sentenced, whether on one or more than one indictment, to —

(a)a term of imprisonment for an offence under subsection (4); and

(b)a term of imprisonment for a prescribed offence committed in the period during which the offence under subsection (4) was committed,

the court must not order the terms to be served wholly or partly cumulatively.

[Section 321A inserted: No. 2 of 2008 s. 10.]

322.Child of or over 16, sexual offences against by person in authority etc.

(1)In this section child means a child of or over the age of 16 years.

(2)A person who sexually penetrates a child who is under his or her care, supervision, or authority is guilty of a crime and is liable to imprisonment for 10 years.

Alternative offence: s. 322(4).

(3)A person who procures, incites, or encourages a child who is under his or her care, supervision, or authority to engage in sexual behaviour is guilty of a crime and is liable to imprisonment for 10 years.

Alternative offence: s. 322(4) or (5).

(4)A person who indecently deals with a child who is under his or her care, supervision, or authority is guilty of a crime and is liable to imprisonment for 5 years.

(5)A person who procures, incites, or encourages a child who is under his or her care, supervision, or authority to do an indecent act is guilty of a crime and is liable to imprisonment for 5 years.

(6)A person who indecently records a child who is under his or her care, supervision, or authority is guilty of a crime and is liable to imprisonment for 5 years.

(7)It is no defence to a charge under this section to prove the accused believed on reasonable grounds that the child was of or over the age of 18 years.

(8)It is a defence to a charge under this section to prove the accused person was lawfully married to the child.

[Section 322 inserted: No. 14 of 1992 s. 6(1); amended: No. 3 of 2002 s. 40; No. 70 of 2004 s. 36(3).]

[322A.Deleted: No. 3 of 2002 s. 41(1).]

323.Indecent assault

A person who unlawfully and indecently assaults another person is guilty of a crime and liable to imprisonment for 5 years.

Summary conviction penalty: imprisonment for 2 years and a fine of $24 000.

[Section 323 inserted: No. 14 of 1992 s. 6(1); amended: No. 36 of 1996 s. 17; No. 70 of 2004 s. 35(2).]

324.Aggravated indecent assault

(1)A person who unlawfully and indecently assaults another person in circumstances of aggravation is guilty of a crime and is liable to imprisonment for 7 years.

Alternative offence: s. 321(4), 322(4) or 323.

Summary conviction penalty: imprisonment for 3 years and a fine of $36 000.

(2)If the offence is committed in the course of conduct that constituted an aggravated home burglary it is not to be dealt with summarily.

(3)If the offence is committed by an adult offender in the course of conduct that constitutes an aggravated home burglary, the court sentencing the offender must, notwithstanding any other written law, impose a term of imprisonment of at least 75% of the term specified in subsection (1) (not being the term specified in the summary conviction penalty in that subsection).

(4)If the offence is committed by a juvenile offender in the course of conduct that constitutes an aggravated home burglary, the court sentencing the offender —

(a)must, notwithstanding the Young Offenders Act 1994 section 46(5a), impose either —

(i)a term of imprisonment of at least 3 years; or

(ii)a term of detention under the Young Offenders Act 1994 of at least 3 years,

as the court thinks fit; and

(b)must not suspend any term of imprisonment imposed; and

(c)must record a conviction against the offender.

(5)Subsection (4) does not prevent a court from —

(a)making a direction under the Young Offenders Act 1994 section 118(4); or

(b)making a special order under Part 7 Division 9 of that Act.

[Section 324 inserted: No. 14 of 1992 s. 6(1); amended: No. 36 of 1996 s. 18; No. 70 of 2004 s. 35(3) and 36(3); No. 25 of 2015 s. 13.]

325.Sexual penetration without consent

(1)A person who sexually penetrates another person without the consent of that person is guilty of a crime and is liable to imprisonment for 14 years.

Alternative offence: s. 322(2) or (4), 323 or 324.

(2)If the offence is committed by an adult offender in the course of conduct that constitutes an aggravated home burglary, the court sentencing the offender must, notwithstanding any other written law, impose a term of imprisonment of at least 75% of the term specified in subsection (1).

(3)If the offence is committed by a juvenile offender in the course of conduct that constitutes an aggravated home burglary, the court sentencing the offender —

(a)must, notwithstanding the Young Offenders Act 1994 section 46(5a), impose either —

(i)a term of imprisonment of at least 3 years; or

(ii)a term of detention under the Young Offenders Act 1994 of at least 3 years,

as the court thinks fit; and

(b)must not suspend any term of imprisonment imposed; and

(c)must record a conviction against the offender.

(4)Subsection (3) does not prevent a court from —

(a)making a direction under the Young Offenders Act 1994 section 118(4); or

(b)making a special order under Part 7 Division 9 of that Act.

[Section 325 inserted: No. 14 of 1992 s. 6(1); amended: No. 70 of 2004 s. 36(3); No. 25 of 2015 s. 14.]

326.Aggravated sexual penetration without consent

(1)A person who sexually penetrates another person without the consent of that person in circumstances of aggravation is guilty of a crime and liable to imprisonment for 20 years.

Alternative offence: s. 321(2) or (4), 322(2) or (4), 323, 324 or 325.

(2)If the offence is committed by an adult offender in the course of conduct that constitutes an aggravated home burglary, the court sentencing the offender must, notwithstanding any other written law, impose a term of imprisonment of at least 75% of the term specified in subsection (1).

(3)If the offence is committed by a juvenile offender in the course of conduct that constitutes an aggravated home burglary, the court sentencing the offender —

(a)must, notwithstanding the Young Offenders Act 1994 section 46(5a), impose either —

(i)a term of imprisonment of at least 3 years; or

(ii)a term of detention under the Young Offenders Act 1994 of at least 3 years,

as the court thinks fit; and

(b)must not suspend any term of imprisonment imposed; and

(c)must record a conviction against the offender.

(4)Subsection (3) does not prevent a court from —

(a)making a direction under the Young Offenders Act 1994 section 118(4); or

(b)making a special order under Part 7 Division 9 of that Act.

[Section 326 inserted: No. 14 of 1992 s. 6(1); amended: No. 70 of 2004 s. 36(3); No. 25 of 2015 s. 15.]

327.Sexual coercion

(1)A person who compels another person to engage in sexual behaviour is guilty of a crime and is liable to imprisonment for 14 years.

Alternative offence: s. 322(3), (4) or (5).

(2)If the offence is committed by an adult offender in the course of conduct that constitutes an aggravated home burglary, the court sentencing the offender must, notwithstanding any other written law, impose a term of imprisonment of at least 75% of the term specified in subsection (1).

(3)If the offence is committed by a juvenile offender in the course of conduct that constitutes an aggravated home burglary, the court sentencing the offender —

(a)must, notwithstanding the Young Offenders Act 1994 section 46(5a), impose either —

(i)a term of imprisonment of at least 3 years; or

(ii)a term of detention under the Young Offenders Act 1994 of at least 3 years,

as the court thinks fit; and

(b)must not suspend any term of imprisonment imposed; and

(c)must record a conviction against the offender.

(4)Subsection (3) does not prevent a court from making a direction under the Young Offenders Act 1994 section 118(4).

[Section 327 inserted: No. 14 of 1992 s. 6(1); amended: No. 70 of 2004 s. 36(3); No. 25 of 2015 s. 16.]

328.Aggravated sexual coercion

(1)A person who compels another person to engage in sexual behaviour in circumstances of aggravation is guilty of a crime and is liable to imprisonment for 20 years.

Alternative offence: s. 321(3), (4) or (5), 322(3), (4) or (5) or 327.

(2)If the offence is committed by an adult offender in the course of conduct that constitutes an aggravated home burglary, the court sentencing the offender must, notwithstanding any other written law, impose a term of imprisonment of at least 75% of the term specified in subsection (1).

(3)If the offence is committed by a juvenile offender in the course of conduct that constitutes an aggravated home burglary, the court sentencing the offender —

(a)must, notwithstanding the Young Offenders Act 1994 section 46(5a), impose either —

(i)a term of imprisonment of at least 3 years; or

(ii)a term of detention under the Young Offenders Act 1994 of at least 3 years,

as the court thinks fit; and

(b)must not suspend any term of imprisonment imposed; and

(c)must record a conviction against the offender.

(4)Subsection (3) does not prevent a court from making a direction under the Young Offenders Act 1994 section 118(4).

[Section 328 inserted: No. 14 of 1992 s. 6(1); amended: No. 70 of 2004 s. 36(3); No. 25 of 2015 s. 17.]

329.Relatives and the like, sexual offences by

(1)In this section —

de facto child means a step‑child of the offender or a child or step‑child of a de facto partner of the offender;

lineal relative means a person who is a lineal ancestor, lineal descendant, brother, or sister, whether the relationship is of the whole blood or half‑blood, whether or not the relationship is traced through, or to, a person whose parents were not married to each other at the time of the person’s birth, or subsequently, and whether the relationship is a natural relationship or a relationship established by a written law.

(2)A person who sexually penetrates a child who the offender knows is his or her lineal relative or a de facto child is guilty of a crime and is liable to the punishment in subsection (9).

Alternative offence: s. 321(2) or (4), 322(2) or (4) or 329(4).

(3)A person who procures, incites, or encourages a child who the offender knows is his or her lineal relative or a de facto child to engage in sexual behaviour is guilty of a crime and is liable to the punishment in subsection (9).

Alternative offence: s. 321(3), (4) or (5), 322(3), (4) or (5) or 329(4) or (5).

(4)A person who indecently deals with a child who the offender knows is his or her lineal relative or a de facto child is guilty of a crime and is liable to the punishment in subsection (10).

Alternative offence: s. 321(4) or 322(4).

(5)A person who procures, incites, or encourages a child who the offender knows is his or her lineal relative or a de facto child to do an indecent act is guilty of a crime and is liable to the punishment in subsection (10).

Alternative offence: s. 321(5) or 322(5).

(6)A person who indecently records a child who the offender knows is his or her lineal relative or a de facto child is guilty of a crime and is liable to the punishment in subsection (10).

Alternative offence: s. 321(6) or 322(6).

(7)A person who sexually penetrates a person of or over the age of 18 years who the offender knows is his or her lineal relative is guilty of a crime and is liable to imprisonment for 3 years.

(8)A person of or over the age of 18 years who consents to being sexually penetrated by a person who he or she knows is his or her lineal relative is guilty of a crime and is liable to imprisonment for 3 years.

(9)A person who is guilty of a crime under subsection (2) or (3) is liable to imprisonment for —

(a)where the child is under the age of 16 years, 20 years; or

(b)where the child is of or over the age of 16 years, 10 years.

(10)A person who is guilty of a crime under subsection (4), (5) or (6) is liable to imprisonment for —

(a)where the child is under the age of 16 years, 10 years; or

(b)where the child is of or over the age of 16 years, 5 years.

(11)On a charge under this section it shall be presumed in the absence of evidence to the contrary —

(a)that the accused knew that he or she was related (whether lineally or as otherwise referred to in this section) to the other person; and

(b)that people who are reputed to be related to each other in a particular way (whether lineally or as otherwise referred to in this section) are in fact related in that way.

[Section 329 inserted: No. 14 of 1992 s. 6(1); amended: No. 3 of 2002 s. 42; No. 70 of 2004 s. 36(3).]

330.Incapable person, sexual offences against

(1)In this section a reference to an incapable person is a reference to a person who is so mentally impaired as to be incapable —

(a)of understanding the nature of the act the subject of the charge against the accused person; or

(b)of guarding himself or herself against sexual exploitation.

(2)A person who sexually penetrates a person who the offender knows or ought to know is an incapable person is guilty of a crime and is liable to the punishment in subsection (7).

Alternative offence: s. 322(2) or (4), 323, 324, 325, 326 or 330(4).

(3)A person who procures, incites, or encourages a person who the offender knows or ought to know is an incapable person to engage in sexual behaviour is guilty of a crime and is liable to the punishment in subsection (7).

Alternative offence: s. 322(3), 322(4), 322(5), 327, 328 or 330(4) or (5).

(4)A person who indecently deals with a person who the offender knows or ought to know is an incapable person is guilty of a crime and is liable to the punishment in subsection (8).

Alternative offence: s. 322(4), 323 or 324.

(5)A person who procures, incites, or encourages a person who the offender knows or ought to know is an incapable person to do an indecent act is guilty of a crime and is liable to the punishment in subsection (8).

Alternative offence: s. 322(5).

(6)A person who indecently records a person who the offender knows or ought to know is an incapable person is guilty of a crime and is liable to the punishment in subsection (8).

Alternative offence: s. 322(6).

(7)A person who is guilty of a crime under subsection (2) or (3) is liable to imprisonment for —

(a)14 years; or

(b)where the incapable person is under the care, supervision, or authority of the offender, 20 years.

(8)A person who is guilty of a crime under subsection (4), (5) or (6) is liable to imprisonment for —

(a)7 years; or

(b)where the incapable person is under the care, supervision, or authority of the offender, 10 years.

(9)It is a defence to a charge under this section to prove the accused person was lawfully married to the incapable person.

(10)If an offence under this section is committed by an adult offender in the course of conduct that constitutes an aggravated home burglary, the court sentencing the offender must, notwithstanding any other written law, impose a term of imprisonment of at least 75% of the term specified in whichever of subsection (7) or (8) applies to the offence.

(11)If an offence under this section is committed by a juvenile offender in the course of conduct that constitutes an aggravated home burglary, the court sentencing the offender —

(a)must, notwithstanding the Young Offenders Act 1994 section 46(5a), impose either —

(i)a term of imprisonment of at least 3 years; or

(ii)a term of detention under the Young Offenders Act 1994 of at least 3 years,

as the court thinks fit; and

(b)must not suspend any term of imprisonment imposed; and

(c)must record a conviction against the offender.

(12)Subsection (11) does not prevent a court from making a direction under the Young Offenders Act 1994 section 118(4).

[Section 330 inserted: No. 14 of 1992 s. 6(1); amended: No. 69 of 1996 s. 11; No. 70 of 2004 s. 36(3); No. 25 of 2015 s. 18.]

331.Ignorance of age no defence for s. 320 and 329

It is no defence to a charge of a crime under section 320 or 329 in respect of which the age of the victim is relevant that the accused person did not know the age of the victim or believed the victim was of or over that age.

[Section 331 inserted: No. 14 of 1992 s. 6(1).]

331A.Terms used in s. 331B to 331D

In sections 331B to 331D —

child means a person under the age of 18 years;

incapable person has the meaning given by section 330(1);

sexual service means the use or display of the body of the person providing the service for the sexual arousal or sexual gratification of others.

[Section 331A inserted: No. 4 of 2004 s. 25.]

331B.Sexual servitude

A person who compels another person to provide or to continue to provide a sexual service is guilty of a crime and is liable —

(a)if the other person is a child or an incapable person, to imprisonment for 20 years; or

(b)otherwise, to imprisonment for 14 years.

[Section 331B inserted: No. 4 of 2004 s. 25.]

331C.Conducting business involving sexual servitude

(1)In this section —

conducting a business includes —

(a)taking part in the management of the business; and

(b)exercising control or direction over the business; and

(c)providing finance for the business.

(2)A person who conducts a business that involves any other person being compelled to provide or to continue to provide a sexual service is guilty of a crime and is liable —

(a)if the other person is a child or an incapable person, to imprisonment for 20 years; or

(b)otherwise, to imprisonment for 14 years.

[Section 331C inserted: No. 4 of 2004 s. 25.]

331D.Deceptive recruiting for commercial sexual service

(1)A person who —

(a)offers a person who is neither a child nor an incapable person (the victim) employment or some other form of engagement to provide personal services; and

(b)at the time of making the offer knows —

(i)that the victim will in the course of or in connection with the employment or engagement be asked or expected to provide a commercial sexual service; and

(ii)that the continuation of the employment or engagement, or the victim’s advancement in the employment or engagement, will be dependent on the victim’s preparedness to provide a commercial sexual service;

and

(c)does not disclose that knowledge to the victim at the time of making the offer,

is guilty of a crime and is liable to imprisonment for 7 years.

(2)A person who —

(a)offers a child or an incapable person (the victim) employment or some other form of engagement to provide personal services; and

(b)at the time of making the offer knows —

(i)that the victim will in the course of or in connection with the employment or engagement be asked or expected to provide a sexual service; and

(ii)that the continuation of the employment or engagement, or the victim’s advancement in the employment or engagement, will be dependent on the victim’s preparedness to provide a sexual service,

is guilty of a crime and is liable to imprisonment for 20 years.

[Section 331D inserted: No. 4 of 2004 s. 25.]

[Chapter XXXIA deleted: No. 14 of 1992 s. 6(4).]

[Chapter XXXII deleted: No. 48 of 1991 s. 12(9).]

Chapter XXXIII — Offences against liberty

332.Kidnapping

(1)For the purposes of this section and section 333, a person who deprives another person of personal liberty —

(a)by taking the other person away or enticing the other person away; or

(b)by confining or detaining the other person in any place; or

(c)in any other manner,

is said to detain that other person.

(2)Any person who detains another person with intent to —

(a)gain a benefit, pecuniary or otherwise, for any person; or

(b)cause a detriment, pecuniary or otherwise, to any person; or

(c)prevent or hinder the doing of an act by a person who is lawfully entitled to do that act; or

(d)compel the doing of an act by a person who is lawfully entitled to abstain from doing that act,

by a threat, or by a demand, or by a threat and a demand, is guilty of a crime and is liable to imprisonment for 20 years.

Alternative offence: s. 333.

(3)In proceedings for an offence against this section it is not necessary to allege or prove that a threat or demand was actually made.

(4)In this section threat means a threat to kill, injure, endanger or cause harm or detriment to any person.

[Section 332 inserted: No. 101 of 1990 s. 14; amended: No. 70 of 2004 s. 36(3).]

333.Deprivation of liberty

Any person who unlawfully detains another person is guilty of a crime and is liable to imprisonment for 10 years.

[Section 333 inserted: No. 101 of 1990 s. 14.]

[334, 335.Deleted: No. 101 of 1990 s. 15.]

336.Procuring apprehension or detention of person not suffering from mental illness or impairment

Any person who, by the production of a false certificate or other document, knowingly and wilfully, procures any person, not suffering from mental illness (as defined in the Mental Health Act 2014 section 4) or mental impairment, to be apprehended or detained, pursuant to that Act or any law relating to mental impairment, upon insufficient or unreasonable grounds, is guilty of a crime and is liable to imprisonment for 3 years.

[Section 336 inserted: No. 69 of 1996 s. 12; amended: No. 70 of 2004 s. 34(1); No. 25 of 2014 s. 49.]

337.Unlawful detention or custody of person who is mentally ill or impaired

Any person who detains, or assumes the custody of, a person suffering from mental illness (as defined in the Mental Health Act 2014 section 4) or mental impairment, contrary to that Act or any law relating to mental impairment, is guilty of a crime and is liable to imprisonment for 2 years.

Summary conviction penalty: imprisonment for 12 months and a fine of $12 000.

[Section 337 inserted: No. 69 of 1996 s. 13; amended: No. 70 of 2004 s. 34(1) and 35(1); No. 25 of 2014 s. 50.]

Chapter XXXIIIA — Threats

[Heading inserted: No. 101 of 1990 s. 17.]

338.Term used: threat

In this Chapter a reference to a threat is a reference to a statement or behaviour that expressly constitutes, or may reasonably be regarded as constituting, a threat to —

(a)kill, injure, endanger or harm any person, whether a particular person or not; or

(b)destroy, damage, endanger or harm any property, whether particular property or not; or

(c)take or exercise control of a building, structure or conveyance by force or violence; or

(d)cause a detriment of any kind to any person, whether a particular person or not; or

(e)distribute an intimate image (within the meaning given to those terms in section 221BA) of any person other than the distributor.

[Section 338 inserted: No. 101 of 1990 s. 17; amended: No. 4 of 2019 s. 5.]

338A.Threat with intent to gain etc.

Any person who makes a threat with intent to —

(a)gain a benefit, pecuniary or otherwise, for any person; or

(b)cause a detriment, pecuniary or otherwise, to any person; or

(c)prevent or hinder the doing of an act by a person who is lawfully entitled to do that act; or

(d)compel the doing of an act by a person who is lawfully entitled to abstain from doing that act,

is guilty of a crime and is liable —

(e)where the threat is to kill a person, to imprisonment for 10 years;

(f)in any other case, to imprisonment for 7 years.

Alternative offence: s. 338B.

[Section 338A inserted: No. 101 of 1990 s. 17; amended: No. 70 of 2004 s. 36(3).]

338B.Threats

Any person who makes a threat to unlawfully do anything mentioned in section 338(a), (b), (c), (d) or (e) is guilty of a crime and is liable —

(a)where the threat is to kill a person, to imprisonment for 7 years or, if the offence is committed in circumstances of racial aggravation, to imprisonment for 14 years;

(b)in the case of any other threat, to imprisonment for 3 years or, if the offence is committed in circumstances of racial aggravation, to imprisonment for 6 years.

Summary conviction penalty:

(a)in a case to which paragraph (a) above applies: imprisonment for 3 years and a fine of $36 000; or

(b)in a case to which paragraph (b) above applies: imprisonment for 18 months and a fine of $18 000.

[Section 338B inserted: No. 101 of 1990 s. 17; amended: No. 70 of 2004 s. 35(5); No. 80 of 2004 s. 10; No. 28 of 2018 s. 7; No. 4 of 2019 s. 6.]

338C.Statement or act creating false apprehension as to existence of threat or danger

(1)Any person who makes a statement or conveys information which that person knows to be false and which expressly indicates, or may reasonably be construed as indicating —

(a)that a threat to unlawfully do anything mentioned in section 338(a), (b), (c), (d) or (e) has been made; or

(b)that there has been, is, or is to be an intention, proposal, plan or conspiracy to unlawfully do anything mentioned in section 338(a), (b), (c), (d) or (e),

is guilty of a crime.

(2)Any person who —

(a)does any act with the intention of creating a belief, suspicion or fear that anything mentioned in section 338(a), (b), (c), (d) or (e) is being, or has been, unlawfully done or attempted; and

(b)knows, at the time of doing that act, that the circumstance with respect to which the belief, suspicion or fear is intended to be created does not exist,

is guilty of a crime.

(3)A person who commits a crime under this section is liable to —

(a)imprisonment for 10 years if the —

(i)threat referred to in subsection (1)(a); or

(ii)intention, proposal, plan or conspiracy referred to in subsection (1)(b); or

(iii)belief, suspicion or fear referred to in subsection (2)(a),

relates to something mentioned in section 338(a), (b) or (c); or

(b)imprisonment for 3 years in any other case.

Summary conviction penalty:

(a)in a case to which subsection (3)(a) applies: imprisonment for 3 years and a fine of $36 000; or

(b)in a case to which subsection (3)(b) applies: imprisonment for 18 months and a fine of $18 000.

(4)A court convicting a person of a crime under this section may, in addition to, or without, imposing any penalty, order that person to pay the amount of any wages attributable to, or expenses reasonably incurred with respect to, any investigation, inquiry or search made, whether by a member of the Police Force or otherwise, as a result of the statement, information or act by reason of which the person is convicted.

(5)An order made under subsection (4) —

(a)must specify to whom and in what manner the amount is to be paid; and

(b)may be enforced as though the amount so ordered to be paid were a penalty imposed under this section.

[Section 338C inserted: No. 34 of 2001 s. 3; amended: No. 70 of 2004 s. 35(6); No. 2 of 2008 s. 11; No. 4 of 2019 s. 7.]

Chapter XXXIIIB — Stalking

[Heading inserted: No. 38 of 1998 s. 4.]

338D.Terms used

(1)In this Chapter —

circumstances of aggravation, without limiting the definition of that expression in section 221, includes circumstances in which —

(a)immediately before or during or immediately after the commission of the offence, the offender is armed with any dangerous or offensive weapon or instrument or pretends to be so armed; or

(b)the conduct of the offender in committing the offence constituted a breach of a condition on which bail has been granted to the offender;

intimidate, in relation to a person, includes —

(a)to cause physical or mental harm to the person;

(b)to cause apprehension or fear in the person;

(c)to prevent the person from doing an act that the person is lawfully entitled to do, or to hinder the person in doing such an act;

(d)to compel the person to do an act that the person is lawfully entitled to abstain from doing;

pursue, in relation to a person, includes —

(a)to repeatedly communicate with the person, whether directly or indirectly and whether in words or otherwise;

(b)to repeatedly follow the person;

(c)to repeatedly cause the person to receive unsolicited items;

(d)to watch or beset the place where the person lives or works or happens to be, or the approaches to such a place;

(e)whether or not repeatedly, to do any of the foregoing in breach of a restraining order or bail condition.

(2)For the purpose of deciding whether an accused person has pursued another person —

(a)the accused is not to be regarded as having communicated with or followed that person on a particular occasion if it is proved by or on behalf of the accused that on that occasion the accused did not intend to communicate with or follow that person;

(b)an act by the accused on a particular occasion is not to be taken into account for the purpose of deciding whether the accused watched or beset a place where that person lived, worked or happened to be, or the approaches to such a place, if it is proved by or on behalf of the accused that on that occasion the accused did not know it was such a place.

[Section 338D inserted: No. 38 of 1998 s. 4(1); amended: No. 38 of 2004 s. 71.]

338E.Stalking

(1)A person who pursues another person with intent to intimidate that person or a third person, is guilty of a crime and is liable —

(a)where the offence is committed in circumstances of aggravation, to imprisonment for 8 years; and

(b)in any other case, to imprisonment for 3 years.

Alternative offence: s. 338E(2).

Summary conviction penalty:

(a)in a case to which subsection (1)(a) applies: imprisonment for 2 years and a fine of $24 000;

(b)in a case to which subsection (1)(b) applies: imprisonment for 18 months and a fine of $18 000.

(2)A person who pursues another person in a manner that could reasonably be expected to intimidate, and that does in fact intimidate, that person or a third person is guilty of a simple offence.

Penalty: imprisonment for 12 months and a fine of $12 000.

(3)It is a defence to a charge under this section to prove that the accused person acted with lawful authority.

[Section 338E inserted: No. 38 of 1998 s. 4(1); amended: No. 70 of 2004 s. 35(7), 35(8) and 36(3); No. 2 of 2008 s. 12.]

Chapter XXXIV — Offences relating to parental rights and duties

[Heading amended: No. 70 of 2004 s. 24(2).]

[339‑342.Deleted: No. 70 of 2004 s. 24(1).]

343.Child stealing

Any person who, with intent to deprive any parent, guardian, or other person who has the lawful care or charge of a child under the age of 16 years, of the possession of such child, or with intent to steal any article upon or about the person of any such child —

(1)Forcibly or fraudulently takes or entices away, or detains the child; or

(2)Receives or harbours the child, knowing it to have been so taken or enticed away or detained;

is guilty of a crime, and is liable to imprisonment for 20 years.

Alternative offence for a charge of an offence under paragraph (1): an offence under paragraph (2).

It is a defence to a charge of any of the offences defined in this section to prove that the accused person claimed a right to the possession of the child, or, in the case of an illegitimate child, is its mother or claimed to be its father or parent under section 6A of the Artificial Conception Act 1985.

[Section 343 amended: No. 25 of 1960 s. 3; No. 118 of 1981 s. 4; No. 51 of 1992 s. 16(2); No. 3 of 2002 s. 43; No. 70 of 2004 s. 36(7).]

343A.Publication of report of child‑stealing unlawful unless approved

(1)Any person who —

(a)prints or publishes any report of an offence committed or alleged to have been committed under section 343 of this Code in any newspaper or other periodical, radio broadcast or telecast; or

(b)so prints or so publishes any matter that has reference to the commission of the offence or the allegation that the offence has been committed; or

(c)transmits any such report or matter to any person for the purpose of it being so printed or so published,

before the expiration of 7 days from the date on which the offence was committed or alleged to have been committed or before the child in respect of whom the offence was committed or alleged to have been committed, is returned to the parent, guardian, or other person who has the lawful care or charge of the child, whichever event first happens, without the report or matter being first approved by the Commissioner of Police of the State is guilty of an offence and is liable to imprisonment for 12 months and a fine of $12 000.

(2)In this section the term periodical includes any review, magazine, or other writing or print published periodically.

(3)A prosecution for any of the offences defined in this section shall not be commenced unless authorised by the Attorney General in writing.

[Section 343A inserted: No. 25 of 1960 s. 4; amended: No. 113 of 1965 s. 8; No. 73 of 1994 s. 4; No. 70 of 2004 s. 35(9).]

344.Deserting child under 16

Any person who, being the parent of a child under the age of 16 years, and being able to maintain such child, wilfully and without lawful or reasonable cause deserts the child and leaves it without means of support, is guilty of a crime, and is liable to imprisonment for one year.

[Section 344 amended: No. 70 of 2004 s. 34(1).]

Chapter XXXV  Criminal defamation

[Heading inserted: No. 44 of 2005 s. 47.]

345.Criminal defamation

(1)A person who, without lawful excuse, publishes matter defamatory of another living person (the victim) —

(a)knowing the matter to be false or without having regard to whether the matter is true or false; and

(b)intending to cause serious harm to the victim or any other person or without having regard to whether such harm is caused,

is guilty of a crime and is liable to imprisonment for 3 years.

Summary conviction penalty: imprisonment for 12 months and a fine of $12 000.

(2)In proceedings for an offence under this section the accused person has a lawful excuse for the publication of defamatory matter about the victim if, and only if, subsection (3) applies.

(3)This subsection applies if the accused person would, having regard only to the circumstances happening before or at the time of the publication, have had a defence for the publication if the victim had brought civil proceedings for defamation against the accused person.

(4)The prosecutor bears the onus of negativing the existence of a lawful excuse if, and only if, evidence directed to establishing the excuse is first adduced by or on behalf of the accused person.

(5)On a trial before a jury for an offence under this section —

(a)the question of whether the matter complained of is capable of bearing a defamatory meaning is a question for determination by the judge; and

(b)the question of whether the matter complained of does bear a defamatory meaning is a question for the jury; and

(c)the jury may give a general verdict of guilty or not guilty on the issues as a whole.

(6)A prosecution under this section must not be commenced without the consent of the Director of Public Prosecutions.

(7)In this section —

publish and defamatory have the meanings that those terms have in the law of tort (as modified by the Defamation Act 2005) relating to defamation.

[Section 345 inserted: No. 44 of 2005 s. 47.]

[346‑369.Deleted: No. 44 of 2005 s. 47.]

Part VI — Offences relating to property and contracts

Division I — Stealing and like offences

Chapter XXXVI — Stealing

370.Things capable of being stolen

Every inanimate thing whatever which is the property of any person, and which is movable, is capable of being stolen.

Every inanimate thing which is the property of any person, and which is capable of being made movable, is capable of being stolen as soon as it becomes movable, although it is made movable in order to steal it.

Every tame animal, whether tame by nature or wild by nature and tamed, which is the property of any person, is capable of being stolen; but tame pigeons are not capable of being stolen except while they are in a pigeon‑house or on their owner’s land.

Animals wild by nature, of a kind which is not ordinarily found in a condition of natural liberty in Western Australia, which are the property of any person, and which are usually kept in a state of confinement, are capable of being stolen, whether they are actually in confinement or have escaped from confinement.

Animals wild by nature, of a kind which is ordinarily found in a condition of natural liberty in Western Australia which are the property of any person, are capable of being stolen while they are in confinement and while they are being actually pursued after escaping from confinement, but not at any other time.

An animal wild by nature is deemed to be in a state of confinement so long as it is in a den, cage, sty, tank, or other small enclosure, or is otherwise so placed that it cannot escape and that its owner can take possession of it at pleasure.

Animals, which are the property of any person, are capable of being stolen while they are being reared by aquaculture in a place that is the property of, or under the control of, any person.

The term animal includes any living creature and any living aquatic organism other than mankind.

Wild animals in the enjoyment of their natural liberty are not capable of being stolen, but their dead bodies are capable of being stolen.

Everything produced by or forming part of the body of an animal capable of being stolen is capable of being stolen.

[Section 370 amended: No. 4 of 2004 s. 64.]

371.Term used: steal

(1)A person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person any property, is said to steal that thing or that property.

(2)A person who takes anything capable of being stolen or converts any property is deemed to do so fraudulently if he does so with any of the following intents, that is to say —

(a)An intent to permanently deprive the owner of the thing or property of it or any part of it;

(b)An intent to permanently deprive any person who has any special property in the thing or property of such special property;

(c)An intent to use the thing or property as a pledge or security;

(d)An intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform;

(e)An intent to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion;

(f)In the case of money, an intent to use it at the will of the person who takes or converts it although he may intend to afterwards repay the amount to the owner.

The term special property includes any charge or lien upon the thing or property in question, and any right arising from or dependent upon holding possession of the thing or property in question, whether by the person entitled to such right or by some other person for his benefit.

(3)The taking or conversion may be fraudulent, although it is effected without secrecy or attempt at concealment.

(4)In the case of conversion, it is immaterial whether the property converted is taken for the purpose of conversion or whether it is at the time of the conversion in the possession, control or management of the person who converts it. It is also immaterial that the person who converts the property is the holder of a power of attorney for the disposition of it, or is otherwise authorised to dispose of the property.

(5)When the property converted has been lost by the owner and found by the person who converts it, the conversion is not deemed to be fraudulent if at the time of the conversion the person taking or converting the property does not know who is the owner, and believes, on reasonable grounds, that the owner cannot be discovered.

(6)The act of stealing is not complete until the person taking or converting the thing actually moves it or otherwise actually deals with it by some physical act.

(7)In this section, property includes any description of real and personal property, money, debts, bank credits, and legacies and all deeds and instruments relating to or evidencing the title or right to any property or giving a right to recover or receive any money or goods and also includes not only such property as has been originally in the possession or in the control of any person but also any property in which or for which it has been converted or exchanged and anything acquired by the conversion or exchange, whether immediately or otherwise.

[Section 371 amended: No. 20 of 1954 s. 2.]

371A.Using etc. motor vehicle without consent is stealing

(1)A person who unlawfully —

(a)uses a motor vehicle; or

(b)takes a motor vehicle for the purposes of using it; or

(c)drives or otherwise assumes control of a motor vehicle,

without the consent of the owner or the person in charge of that motor vehicle, is said to steal that motor vehicle.

(2)This section has effect in addition to section 371 and does not prevent section 371 from applying to motor vehicles.

[Section 371A inserted: No. 37 of 1991 s. 17.]

372.Cases which are not stealing

(1)When a wild animal in the enjoyment of its natural liberty has been killed by any person, the taking of the dead body of the animal by that person, or by any person acting under his orders, before it has been reduced into actual possession by the owner of the land on which the animal was killed or on which it died, is not deemed to be stealing.

(2)When a factor or agent pledges or gives a lien on any goods or document of title to goods entrusted to him for the purpose of sale or otherwise for any sum of money not greater than the amount due to him from his principal at the time of pledging or giving the lien, together with the amount of any bill of exchange or promissory note accepted or made by him for or on account of his principal, such dealing with the goods or document of title is not deemed to be stealing.

[Section 372 amended: No. 4 of 2004 s. 61(5).]

373.Funds etc. held under direction, who owns etc.

When a person receives, either alone or jointly with another person, any money or valuable security, or a power of attorney for the sale, mortgage, pledge, or other disposition, of any property, whether capable of being stolen or not, with a direction in either case that such money or any part thereof, or any other money received in exchange for it, or any part thereof, or the proceeds or any part of the proceeds of such security, or of such mortgage, pledge, or other disposition, shall be applied to any purpose or paid to any person specified in the direction, such money and proceeds are deemed to be the property of the person from whom the money, security, or power of attorney was received, until the direction has been complied with:

Provided that if the person receiving the money, security, or power of attorney, and the person from whom he receives it ordinarily deal with each other on such terms that in the absence of any special direction all money paid to the former on account of the latter would be properly treated as an item in a debtor and creditor account between them, the former cannot be charged with stealing the money or any such proceeds unless the direction is in writing.

374.Proceeds of sale etc. of property by agent, who owns

When a person receives, either alone or jointly with another person, any property from another on terms authorising or requiring him to sell it or otherwise dispose of it, and requiring him to pay or account for the proceeds of the property, or any part of such proceeds, or to deliver anything received in exchange for the property, to the person from whom it is received, or some other person, then the proceeds of the property, and anything so received in exchange for it are deemed to be the property of the person from whom the property was so received, until they have been disposed of in accordance with the terms on which the property was received, unless it is a part of those terms that the proceeds, if any, shall form an item in a debtor and creditor account between him and the person to whom he is to pay them or account for them, and that the relation of debtor and creditor only shall exist between them in respect thereof.

375.Money received for another, who owns

When a person receives, either alone or jointly with another person, any money on behalf of another, the money is deemed to be the property of the person on whose behalf it is received, unless the money is received on the terms that it shall form an item in a debtor and creditor account, and that the relation of debtor and creditor only shall exist between the parties in respect of it.

376.Stealing by person having an interest in the thing stolen

When any person takes or converts anything capable of being stolen, under such circumstances as would otherwise amount to stealing, it is immaterial that he himself has a special property or interest therein, or that he himself is the owner of the thing taken or converted subject to some special property or interest of some other person therein; or that he is lessee of the thing; or that he himself is one of 2 or more joint owners of the thing; or that he is a director or officer of a corporation or company or society who are the owners of it.

[377.Deleted: No. 28 of 2003 s. 118(4).]

378.Penalty for stealing

Any person who steals anything capable of being stolen is guilty of a crime, and is liable, if no other punishment is provided, to imprisonment for 7 years.

Alternative offence: s. 382, 383, 388, 390A, 409, 414, 417 or 429.

Punishment in special cases

(1)If the thing stolen is a testamentary instrument, whether the testator is living or dead, the offender is liable to imprisonment for 10 years.

(2)If the thing stolen is a motor vehicle and the offender —

(a)wilfully drives the motor vehicle in a manner that constitutes an offence under the Road Traffic Act 1974 section 60 or 60A; or

(b)drives the motor vehicle in a manner that constitutes an offence under section 61 of the Road Traffic Act 1974 (i.e. the offence known as dangerous driving),

the offender is liable to imprisonment for 8 years.

[(3), (4)deleted]

(4a)If the thing stolen is an aircraft the offender is liable to imprisonment for 10 years.

(5)If the offence is committed under any of the circumstances following, that is to say —

(a)If the thing is stolen from the person of another;

(b)If the thing is stolen in a dwelling, and its value exceeds $10 000, or the offender at or immediately before or after the time of stealing uses or threatens to use violence to any person in the dwelling;

(c)If the thing is stolen from any kind of vessel or vehicle or place of deposit used for the conveyance or custody of goods in transit from one place to another;

(d)If the thing is stolen from a vessel which is in distress or wrecked or stranded;

(e)If the thing is stolen from a public office in which it is deposited or kept;

(f)If the offender, in order to commit the offence, opens any locked room, box, or other receptacle by means of a key or other instrument;

the offender is liable to imprisonment for 14 years.

(6)If the offender is a person employed in the Public Service, and the thing stolen is the property of Her Majesty, or came into the possession of the offender by virtue of his employment, he is liable to imprisonment for 10 years.

(7)If the offender is a clerk or servant, and the thing stolen is the property of his employer, or came into the possession of the offender on account of his employer, he is liable to imprisonment for 10 years.

(8)If the offender is a director or officer of a corporation or company, and the thing stolen is the property of the corporation or company, he is liable to imprisonment for 10 years.

(9)If the thing stolen is any of the things following, that is to say —

(a)Property which has been received by the offender with a power of attorney for the disposition thereof;

(b)Money received by the offender with a direction that the same should be applied to any purpose or paid to any person specified in the direction;

(c)The whole or part of the proceeds of any valuable security which has been received by the offender with a direction that the proceeds thereof should be applied to any purpose or paid to any person specified in the direction;

(d)The whole or part of the proceeds arising from any disposition of any property which have been received by the offender by virtue of a power of attorney for such disposition, such power of attorney having been received by the offender with a direction that such proceeds should be applied to any purpose or paid to any person specified in the direction;

the offender is liable to imprisonment for 10 years.

[Section 378 amended: No. 53 of 1964 s. 7; No. 113 of 1965 s. 8(1); No. 1 of 1969 s. 2; No. 106 of 1987 s. 24; No. 101 of 1990 s. 18; No. 1 of 1992 s. 5; No. 51 of 1992 s. 16(2); No. 36 of 1996 s. 20; No. 70 of 2004 s. 36(8); No. 84 of 2004 s. 27(2); No. 11 of 2014 s. 6; No. 51 of 2016 s. 49.]

[378A.Deleted: No. 101 of 1990 s. 19.]

Chapter XXXVII — Offences analogous to stealing

379.Concealing official register

Any person who, with intent to defraud, conceals or takes from its place of deposit any register which is authorised or required by law to be kept for authenticating or recording the title to any property, or for recording births, baptisms, marriages, deaths, or burials, or a copy of any part of any such register which is required by law to be sent to any public officer, is guilty of a crime, and is liable to imprisonment for 14 years.

Alternative offence: s. 424.

[Section 379 amended: No. 51 of 1992 s. 16(2); No. 70 of 2004 s. 36(3).]

380.Concealing will

Any person who, with intent to defraud, conceals any testamentary instrument, whether the testator is living or dead, is guilty of a crime, and is liable to imprisonment for 14 years.

[Section 380 amended: No. 51 of 1992 s. 16(2).]

381.Concealing certificate of title etc.

Any person who, with intent to defraud, conceals the whole or part of any document which is evidence of title to any land or estate in land is guilty of a crime, and is liable to imprisonment for 3 years.

[Section 381 amended: No. 51 of 1992 s. 16(2).]

382.Killing animal with intent to steal

Any person who kills any animal capable of being stolen with intent to steal the skin or carcass, or any part of the skin or carcass, is guilty of a crime, and is liable to the same punishment as if he had stolen the animal.

383.Severing with intent to steal

Any person who makes anything movable with intent to steal it is guilty of a crime, and is liable to the same punishment as if he had stolen the thing after it became movable.

384.Using registered brand with criminal intention

Any person who, with intent to facilitate the commission of a crime, brands or marks any animal with a registered brand or registered mark without the permission of the owner of the brand or mark is guilty of a crime, and is liable to imprisonment for 3 years.

[Section 384 amended: No. 51 of 1992 s. 16(2); No. 70 of 2004 s. 34(1).]

385.Fraudulently dealing with ore at mine

Any person who takes, conceals, or otherwise disposes of any ore of any metal or mineral in or about a mine, with intent to defraud any person, is guilty of a crime, and is liable to imprisonment for 3 years.

[Section 385 amended: No. 51 of 1992 s. 16(2); No. 70 of 2004 s. 34(1).]

386.Concealing royalty

Any person who, being the holder of any lease issued under any Act relating to mining —

(a)By any device or contrivance defrauds, or attempts to defraud, any person of any royalty or money payable under any such lease; or

(b)Conceals or makes a false statement as to any produce of the mine with intent to defraud;

is guilty of a crime, and is liable to imprisonment for 2 years.

[Section 386 amended: No. 51 of 1992 s. 16(2); No. 70 of 2004 s. 34(1).]

387.Removing guano without licence

Any person who collects or removes guano on or from any part of the territorial dominions of Western Australia without lawful authority is guilty of a crime, and is liable to imprisonment for one year.

[Section 387 amended: No. 51 of 1992 s. 16(2); No. 70 of 2004 s. 34(1).]

388.Bringing stolen goods into WA

Any person who, having at any place, not in Western Australia, obtained any property by any act which, if it had been done in Western Australia, would have constituted the crime of stealing, and which is an offence under the laws in force in the place where it was done, brings such property into Western Australia, or has it in his possession in Western Australia, is guilty of a crime, and is liable to the same punishment as if he had stolen it in Western Australia; but so that the punishment does not exceed that which would be incurred for the same act under the laws in force in the place where the act by which he obtained the property was done.

Alternative offence: s. 378.

[Section 388 amended: No. 70 of 2004 s. 36(3).]

389.Fraudulent disposition of mortgaged goods

Any person who, being the mortgagor of mortgaged goods, removes or disposes of the goods without the consent of the mortgagee and with intent to defraud, is guilty of a crime, and is liable to imprisonment for 3 years.

Any person (being such a mortgagor as aforesaid) who shall destroy, break, injure, kill, or otherwise damage any mortgaged goods with intent to deprive the mortgagee of his security or any part thereof, or to defeat or anywise impair the security, is guilty of a crime and liable to imprisonment for 2 years.

The term mortgaged goods includes any goods and chattels of any kind, and any live animals, and any progeny of any animals and any fixtures, and any crops or produce of the earth, whether growing or severed, which are subject for the time being to the provisions of any written instrument by which a valid charge or lien is created upon them by way of security for any debt or obligation.

The consent of the mortgagee may be either express or implied from the nature of the property mortgaged.

The shearing of sheep, and the sale and disposal of the wool in the ordinary course of business before default is made and possession taken, or demand for payment made, under the instrument by which the charge or lien is created is not an offence under this section.

[Section 389 amended: No. 51 of 1992 s. 16(2); No. 70 of 2004 s. 34(1).]

390.Fraudulent appropriation of electricity etc.

Any person who fraudulently abstracts or diverts to his own use or to the use of any other person any mechanical, illuminating, or electrical power derived from any machine, apparatus, or substance, the property of another person, is guilty of a crime, and is liable to imprisonment for 3 years.

[Section 390 amended: No. 51 of 1992 s. 16(2).]

390A.Unlawful use of conveyance (not of motor vehicle)

(1)In this section —

conveyance does not include a motor vehicle;

use a conveyance, includes —

(a)to take the conveyance for the purpose of using it; and

(b)to assume control of the conveyance in any way.

(2)A person who unlawfully uses a conveyance without the consent of the owner or the person in charge of it is guilty of a crime and is liable —

(a)if during the commission of the offence, a person who is not an accomplice of the offender is in the conveyance, to imprisonment for 10 years;

(b)if immediately before or during or immediately after the commission of the offence, the offender —

(i)is armed with any dangerous or offensive weapon or instrument or pretends to be so armed; or

(ii)is in company with another person or persons; or

(iii)does bodily harm to any person,

to imprisonment for 10 years;

(c)in any other case, to imprisonment for 7 years.

Summary conviction penalty in a case to which paragraph (c) applies: imprisonment for 3 years and a fine of $36 000.

[Section 390A inserted: No. 70 of 2004 s. 25.]

[390B.Deleted: No. 70 of 2004 s. 26.]

Chapter XXXVIII — Robbery: Extortion by threats

[Heading amended: No. 23 of 2001 s. 8.]

391.Term used: circumstances of aggravation

In sections 392 and 393 —

circumstances of aggravation means circumstances in which —

(a)immediately before or at or immediately after the commission of the offence —

(i)the offender is in company with another person or persons; or

(ii)the offender does bodily harm to any person; or

(iii)the offender threatens to kill any person;

or

(b)the person to whom violence is used or threatened is of or over the age of 60 years.

[Section 391 inserted: No. 23 of 2001 s. 9.]

392.Robbery

A person who steals a thing and, immediately before or at the time of or immediately after doing so, uses or threatens to use violence to any person or property in order —

(a)to obtain the thing stolen; or

(b)to prevent or overcome resistance to its being stolen,

is guilty of a crime and is liable —

(c)if immediately before or at or immediately after the commission of the offence the offender is armed with any dangerous or offensive weapon or instrument or pretends to be so armed, to imprisonment for life; or

(d)if the offence is committed in circumstances of aggravation, to imprisonment for 20 years; or

(e)in any other case, to imprisonment for 14 years.

Alternative offence: s. 68, 297, 313, 317, 317A, 378 or 393.

[Section 392 inserted: No. 23 of 2001 s. 9; amended: No. 70 of 2004 s. 36(3).]

393.Assault with intent to rob

A person who, with intent to steal a thing, uses or threatens to use violence to any person or property in order —

(a)to obtain the thing intended to be stolen; or

(b)to prevent or overcome resistance to its being stolen,

is guilty of a crime and is liable —

(c)if —

(i)immediately before or at or immediately after the commission of the offence the offender is armed with any dangerous or offensive weapon or instrument or pretends to be so armed; and

(ii)the offence is committed in circumstances of aggravation,

to imprisonment for life; or

(d)if —

(i)immediately before or at or immediately after the commission of the offence the offender is armed with any dangerous or offensive weapon or instrument or pretends to be so armed; or

(ii)the offence is committed in circumstances of aggravation,

to imprisonment for 14 years; or

(e)in any other case, to imprisonment for 10 years.

Alternative offence: s. 68, 297, 313, 317 or 317A.

[Section 393 inserted: No. 23 of 2001 s. 9; amended: No. 70 of 2004 s. 36(3).]

[394.Deleted: No. 23 of 2001 s. 9.]

[395.Deleted: No. 36 of 1996 s. 21.]

396.Demanding property with threats with intent to steal

Any person who, with intent to steal anything, demands it from any person with threats of any injury or detriment of any kind to be caused to him, either by the offender or by any other person, if the demand is not complied with, is guilty of a crime, and is liable to imprisonment for 3 years.

[Section 396 amended: No. 51 of 1992 s. 16(2).]

397.Demanding property with threats with intent to extort or gain

Any person who, with intent to extort or gain anything from any person, —

(1)Knowing the contents of the writing, causes any person to receive any writing demanding anything from, or that anything be procured to be done or omitted to be done by any person, without reasonable cause, and containing threats of any injury or detriment of any kind to be caused to any person, either by the offender or any other person, if the demand is not complied with; or

(2)Orally demands anything from, or that anything be procured to be done or omitted to be done by, any person, without reasonable cause, with threats of any injury or detriment of any kind to be caused to any person, either by the offender or any other person, if the demand is not complied with,

is guilty of a crime, and is liable to imprisonment for 14 years.

Alternative offence: s. 338A or 338B.

The term writing includes any gramophone record, wire, tape, or other thing by which words or sounds are recorded and from which they are capable of being reproduced.

[Section 397 inserted: No. 1 of 1969 s. 3; amended: No. 51 of 1992 s. 16(2); No. 70 of 2004 s. 36(9).]

398.Threats etc. with intent to extort etc.

Any person who, with intent to extort or gain anything from any person —

(1)Accuses or threatens to accuse any person of committing any indictable offence, or of offering or making any solicitation or threat to any person as an inducement to commit or permit the commission of any indictable offence; or

(2)Threatens that any person shall be accused by any other person of any indictable offence or of any such act; or

(3)Knowing the contents of the writing, causes any person to receive any writing containing any such accusation or threat as aforesaid;

is guilty of a crime.

If the accusation or threat of accusation is of —

(a)An offence for which the punishment of imprisonment for life may be inflicted; or

(b)An offence under Chapter XXII or XXXI, or an attempt to commit such an offence; or

(c)An assault with intent to have carnal knowledge of any person against the order of nature, or an unlawful and indecent assault upon a male person; or

[(d)deleted]

(e)A solicitation or threat offered or made to any person as an inducement to commit or permit the commission of any of the offences aforesaid;

the offender is liable to imprisonment for 20 years.

In any other case the offender is liable to imprisonment for 14 years.

It is immaterial whether the person accused or threatened to be accused has or has not committed the offence or act of which he is accused or threatened to be accused.

[Section 398 amended: No. 118 of 1981 s. 4; No. 52 of 1984 s. 21; No. 74 of 1985 s. 11; No. 101 of 1990 s. 22; No. 14 of 1992 s. 6(6); No. 51 of 1992 s. 16(2).]

399.Procuring execution of deed etc. by threat etc. with intent to defraud

Any person who, with intent to defraud, and by means of any unlawful violence to, or restraint of, the person of another, or by means of any threat of violence or restraint to be used to the person of another, or by means of accusing or threatening to accuse any person of committing any indictable offence, or of offering or making any solicitation or threat to any person as an inducement to commit or permit the commission of an indictable offence, compels or induces any person —

(a)To execute, make, accept, endorse, alter, or destroy the whole or any part of any valuable security; or

(b)To write, impress, or affix any name or seal upon or to any paper or parchment, in order that it may be afterwards made or converted into or used or dealt with as a valuable security;

is guilty of a crime, and is liable to imprisonment for 14 years.

[Section 399 amended: No. 51 of 1992 s. 16(2).]

[399A.Deleted: No. 4 of 2004 s. 65.]

Chapter XXXIX — Offences in or in respect of buildings etc.

[Heading inserted: No. 37 of 1991 s. 12.]

400.Terms used

(1)In this Chapter —

circumstances of aggravation means circumstances in which —

(a)immediately before or during or immediately after the commission of the offence the offender —

(i)is or pretends to be armed with a dangerous or offensive weapon or instrument; or

(ii)is or pretends to be in possession of an explosive substance; or

(iii)is in company with another person or other persons; or

(iv)does bodily harm to any person; or

(v)threatens to kill or injure any person; or

(vi)detains any person (within the meaning of section 332(1));

or

(b)immediately before the commission of the offence the offender knew or ought to have known that there was another person (other than a co‑offender) in the place;

commencement day means the day on which the Criminal Law Amendment (Home Burglary and Other Offences) Act 2015 section 19 comes into operation 1;

place means a building, structure, tent, or conveyance, or a part of a building, structure, tent, or conveyance, and includes —

(a)a conveyance that at the time of an offence is immovable; or

(b)a place that is from time to time uninhabited or empty of property.

(2)For the purposes of this Chapter a person enters or is in a place as soon as —

(a)any part of the person’s body; or

(b)any part of anything in the person’s possession or under the person’s control,

is in the place.

[Section 400 inserted: No. 37 of 1991 s. 13; amended: No. 60 of 1996 s. 4 6; No. 29 of 1998 s. 6; No. 25 of 2015 s. 19.]

401A.Term used: relevant conviction