Crimes Act 1900

Crimes Act 1900
Parliament of New South Wales
An Act to consolidate the Statutes relating to Criminal Law.
Citation	1900 No 40
Date of Royal Assent	31 October 1900
Administered by	Department of Attorney General and Justice
Status: Current legislation

The Crimes Act 1900 is a New South Wales statute that codifies the common law crimes for the state of New South Wales in Australia. Along with the Crimes Act 1914 and the Federal Criminal Code Act 1995 (both federal),^[1] these two pieces of legislation form the majority of criminal law for New South Wales.

As it is the major criminal law statute for New South Wales, it is an extensive legal document of 582 different sections,^[2] which define an extensive list of offences under New South Wales law.

The same original NSW act forms the basis for the Crimes Act 1900 (Australian Capital Territory) which has 444 different sections as of 1 September 2016.^[3]

Murder law

For a person to be guilty of murder, the prosecution must prove the actus reus and mens rea for murder under NSW law.^[4] The actus reus (the act) of murder is evident - A causes B's death.

The most culpable mens rea for murder is intent to kill.^[5] If A intended to kill B, whether it was premeditated or on the spur of the moment, A is guilty of murder.

Under NSW law, the next most culpable state is intent to cause grievous bodily harm - so if A inflicts grievous bodily harm on B and B dies, A is guilty of B's murder.^[6]

The next level of culpability is 'reckless indifference to human life' in which A saw that his actions carried a probability of B's death (for example, driving a truck into a pub as in R v Crabbe).^[7] A further qualification in NSW law was held in Royall.^[8] For murder, the prosecution has to prove that the accused foresaw the probability of death, as opposed to the probability of death OR grievous bodily harm.^[9] In R v Faure the Victorian Court of Appeal described "probable" as meaning "a substantial, or real and not remote, chance, whether or not it is more than 50 per cent".^[10] Similarly, it was held in Darkan v R, that "probable must be distinguished from merely possible".^[11]

As long as one of these above mental states is present, and given that the test of causation is satisfied, the intended method of death becomes irrelevant.^[12] For example, in Royall, an intention to kill or inflict grievous bodily harm on the victim with an ashtray could be directly linked to her decision, due to a well-founded apprehension of physical harm, to jump out of a window to her death (the actus reus).^[13]

The final level is constructive murder (also termed felony murder) in which A kills B (even if unintentionally - the only question that can be raised is whether the act was voluntary or not - see Ryan)^[14] during, or immediately after, the commission of a crime.^[15]

The maximum penalty for murder is life imprisonment.^[16] The Court will use discretion in determining the sentence and will only impose life imprisonment if “the level of culpability in the commission of the offence is so extreme”^[17] and it is in the interest of “retribution, punishment, community protection and deterrence”.^[18] Life imprisonment means imprisonment for “natural life”.^[19] Section 19B mandates a sentence of life imprisonment (subject to some exceptions) if the victim is a police officer killed in the execution of his or her duty, or in retaliation for past execution of duty, and the accused knew, or ought reasonably to have known, the victim was a police officer and intended to kill the police officer.^[20]

Manslaughter law

Where the prosecution cannot establish the necessary actus reas and mens rea elements of murder beyond reasonable doubt, the accused may be convicted of manslaughter.^[21] Manslaughter carries a maximum sentence of 25 years imprisonment.^[22]

Other provisions

Division 3 of the Act covers attempts to murder,^[23] which has its punishment prescribed in Division 1,^[24] while Division 5 relates to attempting or aiding suicide.^[25][26]

Punishment for crimes deemed as 'common assault' is set out in Division 9.^[27] Aggravated assault includes assault with further specific intent,^[28] assault causing particular injuries (actual bodily harm,^[29] wounding,^[30] and grievous bodily harm ^[31]), assault with offensive weapons or dangerous substances ^[32]("offensive weapon or instrument" is defined in s 4 of the Crimes Act^[33]) and assaults on victims of special status^[34] (such as children at the time of birth,^[35] a child under the age of 7,^[36] wives, apprentices, servants and insane people,^[37] clergy engaged in their duties,^[38] persons endeavouring to preserve a vessel in distress,^[39] a member of the crew of an aircraft or vessel whilst on board^[40] ).

After the death of Thomas Kelly in 2012, NSW Parliament introduced the "one-punch-law". This law mandates a minimum sentence of 8 years to the maximum sentence of 25 years for assault causing death in intoxicated (alcohol/drug) conditions^[41] and maximum sentence of 20 years for assault causing death without intoxicated conditions.^[42] There is also no requirement to prove the assailant knew the punch would be fatal.

The criminal offence of sexual assault is located in Division 10, which includes the definition of "sexual intercourse" and other terms within Section 61H;consent in relation to sexual assault offences Section 61HA; the elements of the offence of sexual assault Section 61I and aggravated sexual assault Section 61J; aggravated sexual assault in company Section 61JA and assault with intent to have intercourse Section 61K.

See also

• Crimes Act
• Bail Act 2013

References