If you are charged with a criminal offence in NSW you will likely be charged under the Crimes Act 1900 No 40 (NSW) which has been amended many times since its first creation. It is important when looking online to keep in mind that the current version of the Crimes Act will not necessarily apply to your case, and that older charges will sometimes be laid under what the law was at the time of the alleged offence and not how it is today. Aaron Kernaghan will assist you by ensuring your case is checked against the historical records of the relevant laws to ensure that the correct charges are defended.  

Division 1  Homicide

 

17A   Date of death

(1)  The rule of law that it is conclusively presumed that an injury was not the cause of death of a person if the person died after the expiration of the period of a year and a day after the date on which the person received the injury is abrogated.
(2)  This section does not apply in respect of an injury received before the commencement of this section.

18   Murder and manslaughter defined

(1)  (a)  Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years.
 
(b)  Every other punishable homicide shall be taken to be manslaughter.
(2)  (a)  No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section.
 
(b)  No punishment or forfeiture shall be incurred by any person who kills another by misfortune only.

19A   Punishment for murder

 
(1)  A person who commits the crime of murder is liable to imprisonment for life.
 
(2)  A person sentenced to imprisonment for life for the crime of murder is to serve that sentence for the term of the person’s natural life.
 
(3)  Nothing in this section affects the operation of section 21 (1) of the Crimes (Sentencing Procedure) Act 1999 (which authorises the passing of a lesser sentence than imprisonment for life).
 
(4)  This section applies to murder committed before or after the commencement of this section.
 
(5)  However, this section does not apply where committal proceedings (or proceedings by way of ex officio indictment) for the murder were instituted against the convicted person before the commencement of this section. In such a case, section 19 as in force before that commencement continues to apply.
 
(6)  Nothing in this section affects the prerogative of mercy.

 

19B   Mandatory life sentences for murder of police officers

(1)  A court is to impose a sentence of imprisonment for life for the murder of a police officer if the murder was committed—
 
(a)  while the police officer was executing his or her duty, or
 
(b)  as a consequence of, or in retaliation for, actions undertaken by that or any other police officer in the execution of his or her duty,
and if the person convicted of the murder—
 
(c)  knew or ought reasonably to have known that the person killed was a police officer, and
 
(d)  intended to kill the police officer or was engaged in criminal activity that risked serious harm to police officers.
 
(2)  A person sentenced to imprisonment for life under this section is to serve the sentence for the term of the person’s natural life.
 
(3)  This section does not apply to a person convicted of murder—
 
(a)  if the person was under the age of 18 years at the time the murder was committed, or
 
(b)  if the person had a significant cognitive impairment at that time (not being a temporary self-induced impairment).
 
(4)  If this section requires a person to be sentenced to imprisonment for life, nothing in section 21 (or any other provision) of the Crimes (Sentencing Procedure) Act 1999 or in any other Act or law authorises a court to impose a lesser or alternative sentence.
 
(5)  Nothing in this section affects the obligation of a court to impose a sentence of imprisonment for life on a person convicted of murder in accordance with section 61 of the Crimes (Sentencing Procedure) Act 1999.
 
(6)  Nothing in this section affects the prerogative of mercy.
 
(7)  This section applies to offences committed after the commencement of this section.

 

20   Child murder—when child deemed born alive

On the trial of a person for the murder of a child, such child shall be held to have been born alive if it has breathed, and has been wholly born into the world whether it has had an independent circulation or not.

 

21   Child murder by mother—verdict of contributing to death etc

Whosoever, being a woman delivered of a child is indicted for its murder, shall, if the jury acquit her of the murder, and specially find that she has in any manner wilfully contributed to the death of such child, whether during delivery, or at or after its birth, or has wilfully caused any violence, the mark of which has been found on its body, be liable to imprisonment for ten years.

 

22   Trial for child murder—verdict of concealment of birth

Where, on the trial of a person for the murder or manslaughter of a child, the jury are not satisfied that the person is guilty thereof, but are satisfied that the person is guilty of an offence within section 85, they may acquit the person of the offence charged and find the person guilty of an offence under the said section, and the person shall be liable to punishment accordingly.

 

22A   Infanticide

(1)  A woman is guilty of infanticide and not of murder if—
 
(a)  the woman by an act or omission causes the death of a child, in circumstances that would constitute murder, within 12 months of giving birth to the child, and
 
(b)  at the time of the act or omission, the woman had a mental health impairment that was consequent on or exacerbated by giving birth to the child.
 
(2)  A jury may, at the trial of a woman for the murder of her child, find the woman guilty of infanticide and not of murder if the jury is of the opinion that—
 
(a)  the woman by an act or omission caused the death of the child, in circumstances that would constitute murder, within 12 months of giving birth to the child, and
 
(b)  at the time of the act or omission, the woman had a mental health impairment that was consequent on or exacerbated by giving birth to the child.
 
(3)  A woman found guilty of infanticide under this section may be dealt with and punished as if the woman had been guilty of the offence of manslaughter of the child.
 
(4)  Nothing in this section affects the power of the jury on an indictment for the murder of a child to return—
 
(a)  a verdict of manslaughter, or
 
(b)  a special verdict of act proven but not criminally responsible (within the meaning of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020), or
 
(c)  concealment of birth.

23   Trial for murder—partial defence of extreme provocation

(1)  If, on the trial of a person for murder, it appears that the act causing death was in response to extreme provocation and, but for this section and the provocation, the jury would have found the accused guilty of murder, the jury is to acquit the accused of murder and find the accused guilty of manslaughter.
 
(2)  An act is done in response to extreme provocation if and only if—
 
(a)  the act of the accused that causes death was in response to conduct of the deceased towards or affecting the accused, and
 
(b)  the conduct of the deceased was a serious indictable offence, and
 
(c)  the conduct of the deceased caused the accused to lose self-control, and
 
(d)  the conduct of the deceased could have caused an ordinary person to lose self-control to the extent of intending to kill or inflict grievous bodily harm on the deceased.
 
(3)  Conduct of the deceased does not constitute extreme provocation if—
 
(a)  the conduct was only a non-violent sexual advance to the accused, or
 
(b)  the accused incited the conduct in order to provide an excuse to use violence against the deceased.
 
(4)  Conduct of the deceased may constitute extreme provocation even if the conduct did not occur immediately before the act causing death.
 
(5)  For the purpose of determining whether an act causing death was in response to extreme provocation, evidence of self-induced intoxication of the accused (within the meaning of Part 11A) cannot be taken into account.
 
(6)  For the purpose of determining whether an act causing death was in response to extreme provocation, provocation is not negatived merely because the act causing death was done with intent to kill or inflict grievous bodily harm.
 
(7)  If, on the trial of a person for murder, there is any evidence that the act causing death was in response to extreme provocation, the onus is on the prosecution to prove beyond reasonable doubt that the act causing death was not in response to extreme provocation.
 
(8)  This section does not exclude or limit any defence to a charge of murder.
 
(9)  The substitution of this section by the Crimes Amendment (Provocation) Act 2014 does not apply to the trial of a person for murder that was allegedly committed before the commencement of that Act.
 
(10)  In this section—

act includes an omission to act.

 

23A   Substantial impairment because of mental health impairment or cognitive impairment

 
(1)  A person who would otherwise be guilty of murder is not to be convicted of murder if—
 
(a)  at the time of the acts or omissions causing the death concerned, the person’s capacity to understand events, or to judge whether the person’s actions were right or wrong, or to control himself or herself, was substantially impaired by a mental health impairment or a cognitive impairment, and
 
(b)  the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.
 
(2)  For the purposes of subsection (1) (b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible.
 
(3)  If a person was intoxicated at the time of the acts or omissions causing the death concerned, and the intoxication was self-induced intoxication (within the meaning of section 428A), the effects of that self-induced intoxication are to be disregarded for the purpose of determining whether the person is not liable to be convicted of murder by virtue of this section.
 
(4)  The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section.
 
(5)  A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder is to be convicted of manslaughter instead.
 
(6)  The fact that a person is not liable to be convicted of murder in respect of a death by virtue of this section does not affect the question of whether any other person is liable to be convicted of murder in respect of that death.
 
(7)  If, on the trial of a person for murder, the person contends—
 
(a)  that the person is entitled to be acquitted on the ground that the person was not criminally responsible because of mental health impairment or cognitive impairment, or
 
(b)  that the person is not liable to be convicted of murder by virtue of this section,
evidence may be offered by the prosecution tending to prove the other of those contentions, and the Court may give directions as to the stage of the proceedings at which that evidence may be offered.
 
(8)  For the purposes of this section, a person has a cognitive impairment if—
 
(a)  the person has an ongoing impairment in adaptive functioning, and
 
(b)  the person has an ongoing impairment in comprehension, reason, judgment, learning or memory, and
 
(c)  the impairments result from damage to or dysfunction, developmental delay or deterioration of the person’s brain or mind that may arise from a condition set out in subsection (9) or for other reasons.
 
(9)  A cognitive impairment may arise from any of the following conditions but may also arise for other reasons—
 
(a)  intellectual disability,
 
(b)  borderline intellectual functioning,
 
(c)  dementia,
 
(d)  an acquired brain injury,
 
(e)  drug or alcohol related brain damage, including foetal alcohol spectrum disorder,
 
(f)  autism spectrum disorder.

 

24   Manslaughter—punishment

Whosoever commits the crime of manslaughter shall be liable to imprisonment for 25 years—

Provided that, in any case, if the Judge is of the opinion that, having regard to all the circumstances, a nominal punishment would be sufficient, the Judge may discharge the jury from giving any verdict, and such discharge shall operate as an acquittal.

25A   Assault causing death

 
(1)  A person is guilty of an offence under this subsection if—
 
(a)  the person assaults another person by intentionally hitting the other person with any part of the person’s body or with an object held by the person, and
 
(b)  the assault is not authorised or excused by law, and
 
(c)  the assault causes the death of the other person.

Maximum penalty—Imprisonment for 20 years.

 
(2)  A person who is of or above the age of 18 years is guilty of an offence under this subsection if the person commits an offence under subsection (1) when the person is intoxicated.

Maximum penalty—Imprisonment for 25 years.

 
(3)  For the purposes of this section, an assault causes the death of a person whether the person is killed as a result of the injuries received directly from the assault or from hitting the ground or an object as a consequence of the assault.
 
(4)  In proceedings for an offence under subsection (1) or (2), it is not necessary to prove that the death was reasonably foreseeable.
 
(5)  It is a defence in proceedings for an offence under subsection (2)—
 
(a)  if the intoxication of the accused was not self-induced (within the meaning of Part 11A), or
 
(b)  if the accused had a significant cognitive impairment at the time the offence was alleged to have been committed (not being a temporary self-induced impairment).
 
(6)  In proceedings for an offence under subsection (2)—
 
(a)  evidence may be given of the presence and concentration of any alcohol, drug or other substance in the accused’s breath, blood or urine at the time of the alleged offence as determined by an analysis carried out in accordance with Division 4 of Part 10 of the Law Enforcement (Powers and Responsibilities) Act 2002, and
 
(b)  the accused is conclusively presumed to be intoxicated by alcohol if the prosecution proves in accordance with an analysis carried out in accordance with that Division that there was present in the accused’s breath or blood a concentration of 0.15 grams or more of alcohol in 210 litres of breath or 100 millilitres of blood.
(7)  If on the trial of a person for murder or manslaughter the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence under subsection (1) or (2), the jury may acquit the person of murder or manslaughter and find the person guilty of an offence under subsection (1) or (2). The person is liable to punishment accordingly.
 
(8)  If on the trial of a person for an offence under subsection (2) the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence under subsection (1), the jury may acquit the person of the offence under subsection (2) and find the person guilty of an offence under subsection (1). The person is liable to punishment accordingly.
 
(9)  Section 18 does not apply to an offence under subsection (1) or (2).
 
(10)  In this section, cognitive impairment includes an intellectual disability, a developmental disorder (including an autistic spectrum disorder), a neurological disorder, dementia, a mental illness or a brain injury.

25B   Assault causing death when intoxicated—mandatory minimum sentence

 
(1)  A court is required to impose a sentence of imprisonment of not less than 8 years on a person guilty of an offence under section 25A (2). Any non-parole period for the sentence is also required to be not less than 8 years.
 
(2)  If this section requires a person to be sentenced to a minimum period of imprisonment, nothing in section 21 (or any other provision) of the Crimes (Sentencing Procedure) Act 1999or in any other Act or law authorises a court to impose a lesser or no sentence (or to impose a lesser non-parole period).
 
(3)  Nothing in this section (apart from subsection (2)) affects the provisions of the Crimes (Sentencing Procedure) Act 1999 or any other Act or law relating to the sentencing of offenders.
 
(4)  Nothing in this section affects the prerogative of mercy.

 

25C   Supply of drugs causing death

 
(1)  A person is guilty of an offence under this section if—
 
(a)  the person supplies a prohibited drug to another person for financial or material gain, and
 
(b)  the drug is self-administered by another person (whether or not the person to whom the drug was supplied), and
 
(c)  the self-administration of the drug causes or substantially causes the death of that other person.

Maximum penalty—Imprisonment for 20 years.

 
(2)  In proceedings for an offence under this section, it is necessary to prove that the accused knew, or ought reasonably to have known, that supplying the prohibited drug would expose another person (whether or not the person to whom the drug was supplied) to a significant risk of death as a result of the self-administration of the drug.
 
(3)  A person does not commit an offence under this section for supplying a prohibited drug if the person is authorised to supply the drug under the Poisons and Therapeutic Goods Act 1966.
 
(4)  Proceedings for an offence under this section may only be instituted by or with the approval of the Director of Public Prosecutions.
 
(5)  Section 18 does not apply to an offence under this section.
 
(6)  In this section— prohibited drug means any substance specified in Schedule 1 to the Drug Misuse and Trafficking Act 1985, but does not include a prohibited plant within the meaning of that Act.

 

Division 2 Conspiracy to murder

26   Conspiring to commit murder

Whosoever—conspires and agrees to murder any person, whether a subject of Her Majesty or not, and whether within the Queen’s dominions or not, or solicits, encourages, persuades, or endeavours to persuade, or proposes to, any person to commit any such murder, shall be liable to imprisonment for 25 years.

 

Division 3 Attempts to murder

27   Acts done to the person with intent to murder

Whosoever—administers to, or causes to be taken by, any person any poison, or other destructive thing, or by any means wounds, or causes grievous bodily harm to any person, with intent in any such case to commit murder, shall be liable to imprisonment for 25 years.

 

28   Acts done to property with intent to murder

Whosoever—sets fire to any vessel, or any chattel therein, or any part of her tackle apparel or furniture, or casts away or destroys any vessel, or by the explosion of gunpowder, or other explosive substance, destroys, or damages any building, or places, or throws, any matter or thing upon or across a railway, or removes, or displaces any sleeper, or other thing belonging to a railway, with intent in any such case to commit murder, shall be liable to imprisonment for 25 years.

 

29   Certain other attempts to murder

Whosoever—

attempts to administer to, or cause to be taken by, any person any poison, or other destructive thing, or shoots at, or in any manner attempts to discharge any kind of loaded arms at any person, or attempts to drown, suffocate, or strangle any person,

with intent in any such case to commit murder, shall, whether any bodily injury is effected or not, be liable to imprisonment for 25 years.

 

30   Attempts to murder by other means

Whosoever, by any means other than those specified in sections 27 to 29 both inclusive, attempts to commit murder shall be liable to imprisonment for 25 years.

 

Division 4 Documents containing threats

31   Documents containing threats

 
(1)  A person who intentionally or recklessly, and knowing its contents, sends or delivers, or directly or indirectly causes to be received, any document threatening to kill or inflict bodily harm on any person is liable to imprisonment for 10 years.
 
(2)  It is immaterial for the purposes of an offence under this section whether or not a document sent or delivered is actually received, and whether or not the threat contained in a document sent, delivered or received is actually communicated to the person concerned or to the recipient or intended recipient of the document (as relevant in the circumstances).

 

Division 5 Suicide

31A   Suicide and attempt to commit suicide

The rule of law that it is a crime for a person to commit, or to attempt to commit, suicide is abrogated.

 

31B   Survivor of suicide pact

 
(1)  The survivor of a suicide pact shall not be guilty of murder or manslaughter but may be guilty of an offence under section 31C.
 
(2)  In this section, suicide pact means a common agreement between 2 or more persons having for its object the death of all of them, whether or not each is to take his or her own life, but nothing done by a person who enters into a suicide pact shall be treated as being done by the person in pursuance of the pact unless it is done while the person has the settled intention of dying in pursuance of the pact.
 
(3)  The onus of proving the existence of a suicide pact shall lie with the accused person on the balance of probabilities.

31C   Aiding etc suicide

 
(1)  A person who aids or abets the suicide or attempted suicide of another person shall be liable to imprisonment for 10 years.
 
(2)  Where—
 
(a)  a person incites or counsels another person to commit suicide, and
 
(b)  that other person commits, or attempts to commit, suicide as a consequence of that incitement or counsel,
the firstmentioned person shall be liable to imprisonment for 5 years.
 
(1)  If, on the trial of a person for murder, it appears that the act causing death was in response to extreme provocation and, but for this section and the provocation, the jury would have found the accused guilty of murder, the jury is to acquit the accused of murder and find the accused guilty of manslaughter.
(2)  An act is done in response to extreme provocation if and only if—
 
(a)  the act of the accused that causes death was in response to conduct of the deceased towards or affecting the accused, and
 
(b)  the conduct of the deceased was a serious indictable offence, and
 
(c)  the conduct of the deceased caused the accused to lose self-control, and
 
(d)  the conduct of the deceased could have caused an ordinary person to lose self-control to the extent of intending to kill or inflict grievous bodily harm on the deceased.
 
(3)  Conduct of the deceased does not constitute extreme provocation if—
 
(a)  the conduct was only a non-violent sexual advance to the accused, or
 
(b)  the accused incited the conduct in order to provide an excuse to use violence against the deceased.
 
(4)  Conduct of the deceased may constitute extreme provocation even if the conduct did not occur immediately before the act causing death.
 
(5)  For the purpose of determining whether an act causing death was in response to extreme provocation, evidence of self-induced intoxication of the accused (within the meaning of Part 11A) cannot be taken into account.
 
(6)  For the purpose of determining whether an act causing death was in response to extreme provocation, provocation is not negatived merely because the act causing death was done with intent to kill or inflict grievous bodily harm.
 
(7)  If, on the trial of a person for murder, there is any evidence that the act causing death was in response to extreme provocation, the onus is on the prosecution to prove beyond reasonable doubt that the act causing death was not in response to extreme provocation.
 
(8)  This section does not exclude or limit any defence to a charge of murder.
 
(9)  The substitution of this section by the Crimes Amendment (Provocation) Act 2014 does not apply to the trial of a person for murder that was allegedly committed before the commencement of that Act.
 
(10)  In this section—

act includes an omission to act.