Criminal Code Act

Question 1

Define Application of Force

Answer 1

application of force and like terms include striking, touching, moving and the application of heat, light, noise, electrical or other energy, gas, odour or any other substance or thing if applied to such a degree as to cause injury or personal discomfort.

Question 2

Define Appropriates

Answer 2

appropriates means assumes the rights of the owner of the property and includes, where the person has come by the property without stealing it, any later assumption of a right to it by keeping or dealing with it as owner.

Question 3

Define building

Answer 3

building means any structure complete or otherwise, not being a flimsy or insubstantial structure by the standards of the community to which the owner or occupier of it belongs, that, except in the 3 cases hereinafter mentioned, is not readily moveable and that is used or intended for the occupation of man or his animals or the storage or shelter of his goods. it includes a caravan, ship and an erected tent used or intended for any such purpose.

Question 4

Define Depriving

Answer 4

depriving means permanently depriving and appropriating or borrowing property without meaning the person to whom it belongs permanently to lose the property if the intention of the person appropriating or borrowing it is to treat the property as his own to dispose of (including to dispose of by lending or under a condition as to its return that he may not be able to perform) regardless of the rights of the person to whom it belongs.

Question 5

Define Dwelling House

Answer 5

dwelling-house means any building or part of a building kept by the owner or occupier for his residence or the residence of his family, guests or servants; it is immaterial that from time to time it is uninhabited.

Question 6

Define Damages

Answer 6

damages includes destroys and, when used in relation to a document or writing, includes obliterating and rendering it illegible either in whole or in part.

Question 7

Define Enters

Answer 7

enters, in relation to a building, includes the entry into the building of any part of the body of the person said to have entered that building or any part of an instrument used by him.

Question 8

Define Harm

Answer 8

Harm

      (1) Harm is physical harm or harm to a person's mental health, whether temporary or permanent.
      (2) Physical harm includes unconsciousness, pain, disfigurement, infection with a disease and any physical contact with a person that a person might reasonably object to in the circumstances, whether or not the person was aware of it at the time.
      (3) Harm to a person's mental health includes significant psychological harm, but does not include mere ordinary emotional reactions such as those of only distress, grief, fear or anger.
      (4) Harm does not include being subjected to any force or impact that is within the limits of what is acceptable as incidental to social interaction or to life in the community.

Question 9

Define Night or Night-time

Answer 9

night or night-time means the interval between 9 o’clock in the evening and 6 o’clock in the morning.

Question 10

Define offensive weapon

Answer 10

offensive weapon means any article made or adapted to cause injury or fear of injury to the person or by which the person having it intends to cause injury or fear of injury to the person.

Question 11

Define serious harm

Answer 11

serious harm means any harm (including the cumulative effect of more than one harm):

(a) that endangers, or is likely to endanger, a person’s life; or
(b) that is or is likely to be significant and longstanding.

Question 12

Define Unnecessary Force

Answer 12

unnecessary force means force that the user of such force knows is unnecessary for and disproportionate to the occasion or that an ordinary person, similarly circumstanced to the person using such force, would regard as unnecessary for and disproportionate to the occasion.

Question 13

Who can be included as a Abettor and accessory before the fact?

Answer 13

(a) every person who aids another in committing the offence;
(b) every person who does or omits to do any act for the purpose of enabling or aiding another to commit the offence; and
(c) every person who counsels or procures another to commit the offence.

Question 14

Who are Accessories after the fact

Answer 14

(1) A person who receives or assists another who, to his knowledge, has committed an offence in order to enable him to escape prosecution becomes an accessory after the fact to the offence.
(2) A wife may be an accessory after the fact to an offence committed by her husband.

Question 15

27 Circumstances in which force not being such force as is likely to cause death or serious harm is justified

Answer 15

In the circumstances following, the application of force is justified provided it is not unnecessary force and it is not intended and is not such as is likely to cause death or serious harm:

(a) to lawfully execute any sentence, process or warrant or make any arrest;
(b) to prevent a person who is being or who has been lawfully arrested from escaping or from being rescued;
(c) to prevent the continuance of a breach of the peace or a renewal of it and to detain any person who is committing or about to join in or to renew the breach of the peace for such time as may be reasonably necessary in order to give him into the custody of a police officer;
(d) to suppress a riot;
(e) to prevent the commission of an offence;
(k) in the case of a person who is entitled by law to the possession of moveable property, or a person acting by his authority, and who attempts to take possession of it from a person who neither claims right to it nor acts by the authority of a person who claims right to it and the person in possession resists him, to obtain possession of the property, provided he does not intentionally do him harm;
(p) in the case of a parent or guardian of a child, or a person in the place of such parent or guardian, to discipline, manage or control such child;
(pa) to prevent a person reasonably believed to be attempting to, or about to, kill himself, from killing himself;
(q) in the case of the person in command of a ship on a voyage or an aircraft on a flight, or a person acting by his authority, to maintain good order and discipline on board the ship or aircraft;
(r) to assist a person to do any of the things aforesaid.

Question 16

28 Circumstances in which force causing death or serious harm is justified

Answer 16

In the circumstances following, the application of force that will or is likely to kill or cause serious harm is justified provided it is not unnecessary force:

(a) in the case of a police officer when lawfully attempting to arrest or to assist with the arrest of a person whom he reasonably believes to be a person who:
(i) unless arrested, may commit an offence punishable with imprisonment for life;
(ii) has taken flight to avoid arrest; and
(iv) the person has been called upon by the police officer or another police officer to surrender and has been allowed a reasonable opportunity to do so;
(b) in the case of a police officer when attempting to prevent the escape or the rescue of a person from lawful custody whom he reasonably believes to be a person who, unless kept in lawful custody, may commit an offence punishable with imprisonment for life and provided the police officer first calls upon the person attempting to escape or to rescue to surrender or to desist and allows him a reasonable opportunity to do so;
(c) in the case of a correctional officer (as defined in section 4 of the Correctional Services Act) when attempting to prevent the escape or the rescue of a person from lawful custody and provided the officer first calls upon the person attempting to escape or to rescue to surrender or to desist and allows him a reasonable opportunity to do so;
(d) in the case of a police officer when attempting to suppress a riot if all of the following apply:
(i) the officer has orally ordered the immediate dispersal of persons who are riotously assembled (the rioters) or has attempted to give that order;
(ii) the officer believes on reasonable grounds that, because of the rioters’ conduct:

(A) someone other than a rioter is in danger of death or serious harm; or

(B) an offence in relation to property punishable with imprisonment for life is being committed;

(iii) if it is practicable to do so – the officer attempts to stop the conduct and gives the rioters a reasonable opportunity to stop the conduct;
(e) in the case of a police officer, or a person acting by his authority, when attempting to prevent a person committing or continuing the commission of an offence of such a nature as to cause the person using the force reasonable apprehension that death or serious harm to another will result;
(g) in the case of a person in command of a ship or an aircraft, or a person acting by his authority or any person on board such ship or aircraft, when attempting to prevent a person committing or continuing the commission of an offence of such a nature as to cause the person using the force reasonable apprehension that death or serious harm will result.

Question 17

29 Defensive conduct justified

Answer 17

(1) Defensive conduct is justified and a person who does, makes or causes an act, omission or event by engaging in defensive conduct is not criminally responsible for the act, omission or event.
(2) A person engages in defensive conduct only if:
(a) the person believes that the conduct is necessary:
(i) to defend himself or herself or another person;
(ii) to prevent or terminate the unlawful deprivation of his or her or another person’s personal liberty;
(iii) to protect property in the person’s possession or control from unlawful appropriation, destruction, damage or interference;
(iv) to prevent trespass to land or premises occupied by or in the control of the person;
(v) to remove a trespasser from land or premises occupied by or in the control of the person; or
(vi) to assist a person in possession or control of property to protect that property or to assist a person occupying or in control of land or premises to prevent trespass to or remove a trespasser from that land or premises; and
(b) the conduct is a reasonable response in the circumstances as the person reasonably perceives them.
(3) A person does not engage in defensive conduct if the conduct involves the use of force intended to cause death or serious harm:
(a) to protect property; or
(b) to prevent trespass or remove a trespasser.
(4) For the purposes of subsections (2) and (3), a person trespasses if he or she enters or remains on land or premises:
(a) with intent to commit an offence; or
(b) in circumstances where the entry on to or remaining on the land or premises constitutes an offence.
(5) A person does not engage in defensive conduct if:
(a) he or she is responding to the lawful conduct of another person; and
(b) he or she knows that the other person’s conduct is lawful.
(6) Nothing in subsection (5) is to be taken to prevent a person from engaging in defensive conduct in circumstances where the other person’s conduct is lawful merely because he or she would be excused from criminal responsibility for that conduct.
(7) Sections 31 and 32 do not apply in relation to defensive conduct.

Question 18

What are the physical elements?

Answer 18

A physical element of an offence may be:

(a) conduct; or
(b) a result of conduct; or
(c) a circumstance in which conduct, or a result of conduct, happens.

Question 19

What are the fault elements

Answer 19

A fault element for a particular physical element may be intention, knowledge, recklessness or negligence.

Question 20

What is strict liability

Answer 20

(1) If a law that creates an offence provides that an offence is an offence of strict liability:
(a) there are no fault elements for any of the physical elements of the offence; and
(b) the defence of mistake of fact under section 43AX is available.
(2) If a law that creates an offence provides that strict liability applies to a particular physical element of an offence:
(a) there are no fault elements for that physical element; and
(b) the defence of mistake of fact under section 43AX is available in relation to that physical element.
(3) The existence of strict liability does not make any other defence unavailable.

Question 21

Define Assault

Answer 21

(a) the direct or indirect application of force to a person without his consent or with his consent if the consent is obtained by force or by means of menaces of any kind or by fear of harm or by means of false and fraudulent representations as to the nature of the act or by personation; or
(b) the attempted or threatened application of such force where the person attempting or threatening it has an actual or apparent present ability to effect his purpose and the purpose is evidenced by bodily movement or threatening words,

other than the application of force:

(c) when rescuing or resuscitating a person or when giving any medical treatment or first aid reasonably needed by the person to whom it is given or when restraining a person who needs to be restrained for his own protection or benefit or when attempting to do any such act;
(d) in the course of a sporting activity where the force used is not in contravention of the rules of the game; or
(e) that is used for and is reasonably needed for the common intercourse of life.

Question 22

What are the 12 aggravations to common assault

Answer 22

If the person assaulted:

(a) suffers harm;
(b) is a female and the offender is a male;
(c) is under the age of 16 years and the offender is an adult;
(d) is unable because of infirmity, age, physique, situation or other disability effectually to defend himself or to retaliate;
(e) is a member of the Legislative Assembly, the House of Representatives or the Senate and the assault is committed because of such membership;
(f) is assisting a public sector employee in carrying out the public sector employee’s duties;
(fa) is assisting a justice of the peace in carrying out the justice’s functions;
(g) is engaged in the lawful service of any court document or in the lawful execution of any process against any property or in making a lawful distress;
(h) has done an act in the execution of any duty imposed on him by law and the assault is committed because of such act;
(j) is assaulted in pursuance of any unlawful conspiracy;
(k) is indecently assaulted; or
(m) is threatened with a firearm or other dangerous or offensive weapon,

Question 23

In reference to the offense assault on a worker A person is a worker for this section if he or she carries out employment related activities (work) in any lawful capacity, including work as any of the following:

Answer 23

(a) an employee;
(b) a contractor or subcontractor;
(c) an apprentice or trainee;
(d) a student gaining work experience;
(e) a volunteer;
(f) a self-employed person;
(g) a person appointed under a law in force in the Territory to carry out functions or to hold an office.

Question 24

Define Steals

Answer 24

steals means unlawfully appropriates property of another with the intention of depriving that person of it whether or not at the time of the appropriation the person appropriating the property was willing to pay for it, but does not include the appropriation of property by a person with the reasonable belief that such property has been lost and the owner thereof cannot be discovered.

Question 25

12 Abettors and accessories before the fact

Answer 25

(1) When an offence is committed, the following persons also are deemed to have taken part in committing the offence and may be charged with actually committing it:
(a) every person who aids another in committing the offence;
(b) every person who does or omits to do any act for the purpose of enabling or aiding another to commit the offence; and
(c) every person who counsels or procures another to commit the offence.
(2) A person who counsels or procures another to commit an offence may be charged with committing the offence or counselling or procuring its commission.
(3) A finding of guilt of counselling or procuring the commission of an offence entails the same consequences in all respects as a finding of guilt of committing the offence.

Question 26

13 Accessories after the fact

Answer 26

(1) A person who receives or assists another who, to his knowledge, has committed an offence in order to enable him to escape prosecution becomes an accessory after the fact to the offence.
(2) A wife may be an accessory after the fact to an offence committed by her husband.

Question 27

26 Execution of law, &c.

Answer 27

(1) An act, omission or event is authorized if it is done, made or caused:
(a) in the exercise of a right granted or recognized by law;
(b) in execution of the law or in obedience to, or in conformity with, the law;
(c) in obedience to the order of a competent authority whom the person doing, making or causing it is bound by law to obey, unless the order is manifestly unlawful; or
(d) subject to subsection (3), pursuant to authority, permission or licence lawfully granted.
(2) Whether an order is or is not manifestly unlawful is a question of law.
(3) A person cannot authorize or permit another to kill him or, except in the case of medical treatment, to cause him serious harm.

Question 28

27 Circumstances in which force not being such force as is likely to cause death or serious harm is justified

Answer 28

In the circumstances following, the application of force is justified provided it is not unnecessary force and it is not intended and is not such as is likely to cause death or serious harm:

(a) to lawfully execute any sentence, process or warrant or make any arrest;
(b) to prevent a person who is being or who has been lawfully arrested from escaping or from being rescued;
(c) to prevent the continuance of a breach of the peace or a renewal of it and to detain any person who is committing or about to join in or to renew the breach of the peace for such time as may be reasonably necessary in order to give him into the custody of a police officer;
(d) to suppress a riot;
(e) to prevent the commission of an offence;
(k) in the case of a person who is entitled by law to the possession of moveable property, or a person acting by his authority, and who attempts to take possession of it from a person who neither claims right to it nor acts by the authority of a person who claims right to it and the person in possession resists him, to obtain possession of the property, provided he does not intentionally do him harm;
(p) in the case of a parent or guardian of a child, or a person in the place of such parent or guardian, to discipline, manage or control such child;
(pa) to prevent a person reasonably believed to be attempting to, or about to, kill himself, from killing himself;
(q) in the case of the person in command of a ship on a voyage or an aircraft on a flight, or a person acting by his authority, to maintain good order and discipline on board the ship or aircraft;
(r) to assist a person to do any of the things aforesaid.

Question 29

28 Circumstances in which force causing death or serious harm is justified

Answer 29

In the circumstances following, the application of force that will or is likely to kill or cause serious harm is justified provided it is not unnecessary force:

(a) in the case of a police officer when lawfully attempting to arrest or to assist with the arrest of a person whom he reasonably believes to be a person who:
(i) unless arrested, may commit an offence punishable with imprisonment for life;
(ii) has taken flight to avoid arrest; and
(iv) the person has been called upon by the police officer or another police officer to surrender and has been allowed a reasonable opportunity to do so;
(b) in the case of a police officer when attempting to prevent the escape or the rescue of a person from lawful custody whom he reasonably believes to be a person who, unless kept in lawful custody, may commit an offence punishable with imprisonment for life and provided the police officer first calls upon the person attempting to escape or to rescue to surrender or to desist and allows him a reasonable opportunity to do so;
(c) in the case of a correctional officer (as defined in section 4 of the Correctional Services Act) when attempting to prevent the escape or the rescue of a person from lawful custody and provided the officer first calls upon the person attempting to escape or to rescue to surrender or to desist and allows him a reasonable opportunity to do so;
(d) in the case of a police officer when attempting to suppress a riot if all of the following apply:
(i) the officer has orally ordered the immediate dispersal of persons who are riotously assembled (the rioters) or has attempted to give that order;
(ii) the officer believes on reasonable grounds that, because of the rioters’ conduct:

(A) someone other than a rioter is in danger of death or serious harm; or

(B) an offence in relation to property punishable with imprisonment for life is being committed;

(iii) if it is practicable to do so – the officer attempts to stop the conduct and gives the rioters a reasonable opportunity to stop the conduct;
(e) in the case of a police officer, or a person acting by his authority, when attempting to prevent a person committing or continuing the commission of an offence of such a nature as to cause the person using the force reasonable apprehension that death or serious harm to another will result;
(g) in the case of a person in command of a ship or an aircraft, or a person acting by his authority or any person on board such ship or aircraft, when attempting to prevent a person committing or continuing the commission of an offence of such a nature as to cause the person using the force reasonable apprehension that death or serious harm will result.

Question 30

29 Defensive conduct justified

Answer 30

(1) Defensive conduct is justified and a person who does, makes or causes an act, omission or event by engaging in defensive conduct is not criminally responsible for the act, omission or event.
(2) A person engages in defensive conduct only if:
(a) the person believes that the conduct is necessary:
(i) to defend himself or herself or another person;
(ii) to prevent or terminate the unlawful deprivation of his or her or another person’s personal liberty;
(iii) to protect property in the person’s possession or control from unlawful appropriation, destruction, damage or interference;
(iv) to prevent trespass to land or premises occupied by or in the control of the person;
(v) to remove a trespasser from land or premises occupied by or in the control of the person; or
(vi) to assist a person in possession or control of property to protect that property or to assist a person occupying or in control of land or premises to prevent trespass to or remove a trespasser from that land or premises; and
(b) the conduct is a reasonable response in the circumstances as the person reasonably perceives them.
(3) A person does not engage in defensive conduct if the conduct involves the use of force intended to cause death or serious harm:
(a) to protect property; or
(b) to prevent trespass or remove a trespasser.
(4) For the purposes of subsections (2) and (3), a person trespasses if he or she enters or remains on land or premises:
(a) with intent to commit an offence; or
(b) in circumstances where the entry on to or remaining on the land or premises constitutes an offence.
(5) A person does not engage in defensive conduct if:
(a) he or she is responding to the lawful conduct of another person; and
(b) he or she knows that the other person’s conduct is lawful.
(6) Nothing in subsection (5) is to be taken to prevent a person from engaging in defensive conduct in circumstances where the other person’s conduct is lawful merely because he or she would be excused from criminal responsibility for that conduct.
(7) Sections 31 and 32 do not apply in relation to defensive conduct.

Question 31

30 Ignorance of law: Bona fide claim of right, &c.

Answer 31

(1) Subject to subsections (2) and (3), ignorance of the law does not afford an excuse unless knowledge of the law by the offender is expressly declared to be an element of the offence.
(2) A person is excused from criminal responsibility for an act or omission done or made with respect to, or for an event caused to, property in the exercise of an honest claim of right and without intention to defraud.
(3) A person is excused from criminal responsibility for an act, omission or event done, made or caused in contravention of a statutory instrument if, at the time of doing, making or causing it, the statutory instrument was not known to him and had not been published or otherwise reasonably made available or known to the public or those persons likely to be affected by it.
(4) For the purposes of subsection (3), published means published in the Gazette or notified in the Gazette as having been made.

Question 32

31 Unwilled act etc. and accident

Answer 32

(1) A person is excused from criminal responsibility for an act, omission or event unless it was intended or foreseen by him as a possible consequence of his conduct.
(2) A person who does not intend a particular act, omission or event, but foresees it as a possible consequence of his conduct, and that particular act, omission or event occurs, is excused from criminal responsibility for it if, in all the circumstances, including the chance of it occurring and its nature, an ordinary person similarly circumstanced and having such foresight would have proceeded with that conduct.
(3) This section does not apply to a crime defined by section 155.

Question 33

32 Mistake of fact

Answer 33

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

Question 34

33 Sudden and extraordinary emergency

Answer 34

Subject to the express provisions of this Code relating to self-defence and duress, a person is excused from criminal responsibility for an act or omission done or made under such circumstances of sudden and extraordinary emergency that an ordinary person similarly circumstanced would have acted in the same or a similar way; and he is excused from criminal responsibility for an event resulting from such act or omission.

Question 35

38 Immature age

Answer 35

(1) A person under the age of 10 years is excused from criminal responsibility for an act, omission or event.
(2) A person under the age of 14 years is excused from criminal responsibility for an act, omission or event unless it is proved that at the time of doing the act, making the omission or causing the event he had capacity to know that he ought not to do the act, make the omission or cause the event.

Question 36

40 Duress

Answer 36

(1) A person is excused from criminal responsibility for an act, omission or event if it was done, made or caused because of duress provided:
(a) he believed the person making the threat was in a position to execute the threat;
(b) he believed there was no other way he could ensure the threat was not executed;
(c) an ordinary person similarly circumstanced would have acted in the same or a similar way; and
(d) he reported the threat to a police officer as soon as was reasonably practicable, unless the nature of the threat was such that an ordinary person similarly circumstanced would not have reported that threat.
(2) The excuse referred to in subsection (1) does not extend to an act, omission or event that would constitute a crime of which serious harm or an intention to cause such harm is an element; nor to a person who has rendered himself liable to have such a threat made to him by having entered into an association or conspiracy that has as any of its objects the doing of a wrongful act.

Question 37

43AB Elements

Answer 37

(1) An offence consists of physical elements and fault elements.
(2) However, the law that creates the offence may provide that there is no fault element for one or more physical elements.
(3) The law that creates the offence may provide different fault elements for different physical elements.

Question 38

43AD Conduct and engaging in conduct

Answer 38

(1) Conduct is an act, an omission to perform an act or a state of affairs.
(2) Engage in conduct is to:
(a) perform an act; or
(b) omit to perform an act.

Question 39

43AE Physical elements

Answer 39

A physical element of an offence may be:

(a) conduct; or
(b) a result of conduct; or
(c) a circumstance in which conduct, or a result of conduct, happens.

Question 40

43AG Omissions

Answer 40

(1) An omission to perform an act can only be a physical element if the law creating the offence:
(a) makes it a physical element; or
(b) impliedly provides that the offence is committed by an omission to perform an act that, by law, there is a duty to perform.
(2) However, an omission to perform an act can be a physical element of an offence against a Schedule 1 provision if it is a person’s omission to perform any of the duties referred to in Part VI, Division 1.
(3) The fault element for an omission to perform an act referred to in subsection (2) that causes, or that gives rise to danger of, death or harm is, if not otherwise specified in the Schedule 1 provision, the same as the fault element for the result of the omission.

Question 41

43AH Fault elements

Answer 41

(1) A fault element for a particular physical element may be intention, knowledge, recklessness or negligence.
(2) Subsection (1) does not prevent the law that creates an offence from specifying other fault elements for a physical element of the offence.

Question 42

43AI Intention

Answer 42

(1) A person has intention in relation to conduct if the person means to engage in that conduct.
(2) A person has intention in relation to a result if the person means to bring it about or is aware that it will happen in the ordinary course of events.
(3) A person has intention in relation to a circumstance if the person believes that it exists or will exist.

Question 43

43AJ Knowledge

Answer 43

A person has knowledge of a result or circumstance if the person is aware that it exists or will exist in the ordinary course of events.

Question 44

43AK Recklessness

Answer 44

(1) A person is reckless in relation to a result if:
(a) the person is aware of a substantial risk that the result will happen; and
(b) having regard to the circumstances known to the person, it is unjustifiable to take the risk.
(2) A person is reckless in relation to a circumstance if:
(a) the person is aware of a substantial risk that the circumstance exists or will exist; and
(b) having regard to the circumstances known to the person, it is unjustifiable to take the risk.
(3) The question whether taking a risk is unjustifiable is one of fact.
(4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness satisfies the fault element.

Question 45

43AL Negligence

Answer 45

43AL Negligence

A person is negligent in relation to a physical element of an offence if the person’s conduct involves:

(a) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and
(b) such a high risk that the physical element exists or will exist,

that the conduct merits criminal punishment for the offence.

Question 46

43AN Strict liability

Answer 46

(1) If a law that creates an offence provides that an offence is an offence of strict liability:
(a) there are no fault elements for any of the physical elements of the offence; and
(b) the defence of mistake of fact under section 43AX is available.
(2) If a law that creates an offence provides that strict liability applies to a particular physical element of an offence:
(a) there are no fault elements for that physical element; and
(b) the defence of mistake of fact under section 43AX is available in relation to that physical element.
(3) The existence of strict liability does not make any other defence unavailable.

Question 47

43BD Self-defence

Answer 47

(1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.
(2) A person carries out conduct in self-defence only if:
(a) the person believes the conduct is necessary:
(i) to defend himself or herself or another person; or
(ii) to prevent or terminate the unlawful imprisonment of himself or herself or another person; or
(iii) to protect property from unlawful appropriation, destruction, damage or interference; or
(iv) to prevent criminal trespass to any land or premises; or
(v) to remove from any land or premises a person who is committing criminal trespass; and
(b) the conduct is a reasonable response in the circumstances as he or she perceives them.
(3) However, the person does not carry out conduct in self-defence if:
(a) the person uses force that involves the intentional infliction of death or serious harm:
(i) to protect property; or
(ii) to prevent criminal trespass; or
(iii) to remove a person who is committing criminal trespass; or
(b) the person is responding to lawful conduct that the person knew was lawful.
(4) Conduct is not lawful for subsection (3)(b) merely because the person carrying it out is not criminally responsible for it.

Question 48

43BF Attempt

Answer 48

(1) A person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and, unless otherwise provided, is punishable as if the offence attempted had been committed.
(2) For the person to be guilty, the person’s conduct must be more than merely preparatory to the commission of the offence.
(3) The question whether conduct is more than merely preparatory to the commission of the offence is one of fact.
(4) For the offence of attempting to commit an offence, intention and knowledge are fault elements in relation to each physical element of the offence attempted.

Note for subsection (4)
Under section 43AC, only one of the fault elements of intention or knowledge would need to be established in relation to each physical element of the offence attempted.

      (5) Subsection (4) has effect subject to subsection (9).
      (6) A person may be found guilty even if: (a) committing the offence attempted is impossible; or (b) the person actually committed the offence attempted.
      (7) A person who is found guilty of attempting to commit an offence cannot be subsequently charged with the completed offence.
      (8) Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of attempting to commit that offence.
      (9) Any special liability provisions that apply to an offence apply also to the offence of attempting to commit that offence.
    (10) It is not an offence to attempt to commit an offence against section 43BG or 43BJ.

Question 49

43BG Complicity and common purpose

Answer 49

(1) A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly.
(2) For the person to be guilty:
(a) the person’s conduct must have in fact aided, abetted, counselled or procured the commission of the offence by the other person; and
(b) the offence must have been committed by the other person.
(3) For the person to be guilty, the person must have intended that:
(a) the person’s conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed; or
(b) the person’s conduct would aid, abet, counsel or procure the commission of an offence and have been reckless about the commission of the offence (including its fault elements) that the other person in fact committed.
(4) Subsection (3) has effect subject to subsection (7).
(5) A person cannot be found guilty of aiding, abetting, counselling or procuring the commission of an offence if, before the offence was committed, the person:
(a) terminated his or her involvement; and
(b) took all reasonable steps to prevent the commission of the offence.
(6) A person may be found guilty of aiding, abetting, counselling or procuring the commission of an offence even if the principal offender has not been prosecuted or has not been found guilty.
(7) Any special liability provisions that apply to an offence apply also to the offence of aiding, abetting, counselling or procuring the commission of that offence.

Question 50

69 Going armed in public

Answer 50

Any person who goes armed in public without lawful occasion in such a manner as to cause fear to a person of reasonable firmness and courage is guilty of a crime and is liable to imprisonment for 3 years.

Question 51

112 Escape from lawful custody

Answer 51

(1) Any person who:
(a) is a prisoner in lawful custody following his arrest or conviction for an offence; or
(aa) is in custody under a continuing detention order under the Serious Sex Offenders Act; or
(b) is lawfully confined or detained otherwise than as referred to in paragraph (a);

and who escapes from such custody, confinement or detention, is guilty of an offence.

      (2)   If the offence upon which a person referred to in subsection (1)(a) has been arrested or convicted is a crime, he is guilty of a crime and is liable to imprisonment for 3 years; if it is a simple or regulatory offence, he is guilty of a simple offence and is liable to imprisonment for one year.

 (2AA)   A person who commits an offence against subsection (1)(aa) is guilty of a crime and is liable to imprisonment for 3 years.

    (2A)   A person who commits an offence against subsection (1)(b) is liable to imprisonment for 12 months.

      (3)   The offender may be tried, found guilty and punished notwithstanding that at the time of his apprehension or trial the term of his original custody, confinement or detention has expired.

Question 52

113 Permitting escape

Answer 52

Any person who, being a correctional services officer (as defined in section 16 of the Correctional Services Act) or a police officer and being charged with the custody of a prisoner or a person under arrest upon a charge of an offence, permits him to escape from custody is guilty of a crime and is liable to imprisonment for 3 years.

Question 53

155A Assault, obstruction etc. of persons providing rescue, medical treatment or other aid

Answer 53

(1) A person who unlawfully assaults, obstructs or hinders another person:
(a) who is providing rescue, resuscitation, medical treatment, first aid or succour of any kind to a third person;
(b) who is taking action to prevent injury or further injury to a third person who is in immediate risk of injury or further injury; or
(c) who is taking action to prevent damage or further damage to property that is in immediate risk of damage or further damage,

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

      (2)   If the person thereby endangers the life of or causes harm to the third person, the person is liable to imprisonment for 7 years.

Question 54

174FA Hit and run

Answer 54

(1) The driver of a vehicle is guilty of a crime if:
(a) the vehicle is involved in an incident that results in the death of, or serious harm to, a person; and
(b) the driver fails to do any of the following:
(i) stop the vehicle at the scene of the incident;
(ii) give any assistance to the person that is reasonable in the circumstances;
(iii) as soon as reasonably practicable after the incident or after giving the assistance mentioned in subparagraph (ii) – notify a representative of the Police Force of the following:

(A) that the incident has occurred;

(B) the location of the incident;

(C) that the driver was the driver of the vehicle involved in the incident;

(D) the driver’s name;

(iv) comply with any reasonable direction given by a representative of the Police Force in relation to the incident.

Fault elements:

The driver knows, or is reckless as to whether or not:

(a) the vehicle is involved in an incident; and
(b) the incident results in the death of, or serious harm to, a person.

Maximum penalty:

(a) Imprisonment for 10 years if the incident results in the death of a person.
(b) Imprisonment for 7 years if the incident results in serious harm of a person.
(2) In this section:

driver, of a vehicle, includes a person who controls the vehicle (for example, the rider of a motorcycle).

representative of the Police Force means:

(a) a police officer; or
(b) a public sector employee working in a communications centre operated by the Police Force of the Northern Territory.

vehicle means any form of transport that can be used on a road or track (for example, a car, trailer, bicycle, horse or horse drawn carriage).

Question 55

174FB Dangerous driving during pursuit

Answer 55

(1) The driver of a vehicle commits an offence if:
(a) a police officer gives the driver a direction to stop the vehicle under a law in force in the Territory; and
(b) the driver fails to comply with the direction; and
(c) a police officer pursues the vehicle; and
(d) the driver drives the vehicle dangerously while it is being pursued.

Maximum penalty: Imprisonment for 5 years.

Examples for subsection (1)(a) of laws under which a direction to stop may be given
1 Section 119A of the Police Administration Act.
2 Section 29AAB of the Traffic Act.

      (2) For subsection (1): (a) a police officer may be pursuing a vehicle even if the officer is not travelling at the same speed as the vehicle; and (b) it is irrelevant that the officer's pursuit is suspended or ends before the vehicle being pursued stops; and (c) a driver drives a vehicle dangerously if the driver drives the vehicle: (i) while under the influence of alcohol or a drug to such an extent as to be incapable of having proper control of the vehicle; or (ii) at a speed that is dangerous to another person; or (iii) in a manner that is dangerous to another person.
      (3) An offence against subsection (1) is an offence of strict liability.
      (4) It is a defence to a prosecution for an offence against subsection (1) if the defendant believed, on reasonable grounds, that he or she was not given a direction to stop the vehicle by a police officer.
      (5) The defendant has a legal burden of proof in relation to the matter mentioned in subsection (4).
      (6) In this section:

direction to stop, in relation to a vehicle, means any action taken by a police officer to indicate to the driver of the vehicle that the driver must stop the vehicle including, for example:

(a) the giving of hand signals or the display of signs; and
(b) if the officer is driving a vehicle – any of the following:
(i) the flashing of the vehicle’s headlights;
(ii) the use of a lamp on the vehicle displaying intermittent red and blue flashes;
(iii) the sounding of an alarm, siren or other warning device from the vehicle.

driver, see section 174FA(2).

vehicle, see section 174FA(2).

Question 56

180A Endangering occupants of vehicles and vessels

Answer 56

(1) A person is guilty of a crime if:
(a) the person throws a thing, or directs a laser pointer, at a vehicle or vessel; and
(b) the act mentioned in paragraph (a) gives rise to a danger of harm to someone in or on the vehicle or vessel.

Fault elements:

The person:

(a) intentionally throws the thing or directs the pointer; and
(b) knows, or is reckless as to whether or not, the act gives rise to a danger of harm to someone in or on the vehicle or vessel.

Maximum penalty: Imprisonment for 4 years.

      (2) Subsection (1) applies whether or not the vehicle or vessel is stationary and whether or not the thing or laser beam reaches the vehicle or vessel.
      (3) In this section:

laser pointer means a hand-held battery-operated device that is:

(a) commonly known as a laser pointer; and
(b) designed or adapted to emit a laser beam with an accessible emission limit of greater than 1 mW.

throwing a thing includes dropping or propelling the thing in any way.

vehicle means any form of transport that can be used on a road or track (for example, a car, trailer, bicycle, horse or horse drawn carriage).

Question 57

181 Serious harm

Answer 57

Any person who unlawfully causes serious harm to another is guilty of a crime and is liable to imprisonment for 14 years.

Question 58

186 Harm

Answer 58

186 Harm

Any person who unlawfully causes harm to another is guilty of a crime and is liable to imprisonment for 5 years or, upon being found guilty summarily, to imprisonment for 2 years.

Question 59

187 assault

Answer 59

187 Definition

In this Code assault means:

(a) the direct or indirect application of force to a person without his consent or with his consent if the consent is obtained by force or by means of menaces of any kind or by fear of harm or by means of false and fraudulent representations as to the nature of the act or by personation; or
(b) the attempted or threatened application of such force where the person attempting or threatening it has an actual or apparent present ability to effect his purpose and the purpose is evidenced by bodily movement or threatening words,

other than the application of force:

(c) when rescuing or resuscitating a person or when giving any medical treatment or first aid reasonably needed by the person to whom it is given or when restraining a person who needs to be restrained for his own protection or benefit or when attempting to do any such act;
(d) in the course of a sporting activity where the force used is not in contravention of the rules of the game; or
(e) that is used for and is reasonably needed for the common intercourse of life.

Question 60

188 Common assault

Answer 60

(1) Any person who unlawfully assaults another is guilty of an offence and, if no greater punishment is provided, is liable to imprisonment for one year.
(2) If the person assaulted:
(a) suffers harm;
(b) is a female and the offender is a male;
(c) is under the age of 16 years and the offender is an adult;
(d) is unable because of infirmity, age, physique, situation or other disability effectually to defend himself or to retaliate;
(e) is a member of the Legislative Assembly, the House of Representatives or the Senate and the assault is committed because of such membership;
(f) is assisting a public sector employee in carrying out the public sector employee’s duties;
(fa) is assisting a justice of the peace in carrying out the justice’s functions;
(g) is engaged in the lawful service of any court document or in the lawful execution of any process against any property or in making a lawful distress;
(h) has done an act in the execution of any duty imposed on him by law and the assault is committed because of such act;
(j) is assaulted in pursuance of any unlawful conspiracy;
(k) is indecently assaulted; or
(m) is threatened with a firearm or other dangerous or offensive weapon,

the offender is guilty of a crime and is liable to imprisonment for 5 years or, upon being found guilty summarily, to imprisonment for 2 years.

      (3) If the person assaulted is: (a) indecently assaulted; and (b) under the age of 16 years,

it is not a defence to a charge of the crime defined by subsection (1) that the person assaulted consented to the act constituting the crime.

Question 61

188A Assaults on workers

Answer 61

(1) A person who unlawfully assaults a worker who is working in the performance of his or her duties is guilty of a crime.
(2) The maximum penalty for the offence is as follows:
(a) if the victim suffers harm:
(i) if the person is found guilty on indictment – imprisonment for 7 years; or
(ii) if the person is found guilty summarily – imprisonment for 3 years;
(b) if the victim does not suffer harm:
(i) if the person is found guilty on indictment – imprisonment for 5 years; or
(ii) if the person is found guilty summarily – imprisonment for 2 years.
(3) A person is a worker for this section if he or she carries out employment related activities (work) in any lawful capacity, including work as any of the following:
(a) an employee;
(b) a contractor or subcontractor;
(c) an apprentice or trainee;
(d) a student gaining work experience;
(e) a volunteer;
(f) a self-employed person;
(g) a person appointed under a law in force in the Territory to carry out functions or to hold an office.
(4) However, a police officer is not a worker for this section.

Question 62

189A Assaults on police

Answer 62

(1) Any person who unlawfully assaults a police officer in the execution of the officer’s duty is guilty of a crime and is liable to imprisonment for 5 years or, upon being found guilty summarily, to imprisonment for 2 years.
(2) If the police officer assaulted:
(a) suffers harm, the offender is liable to imprisonment for 7 years or, upon being found guilty summarily, to imprisonment for 3 years; or
(b) suffers serious harm, the offender is liable to imprisonment for 16 years.

Question 63

196 Deprivation of liberty

Answer 63

(1) Any person who confines or detains another in any place against his will, or otherwise deprives another of his personal liberty, is guilty of a crime and is liable to imprisonment for 7 years.
(2) It is lawful for a parent or guardian, or a person in the place of a parent or guardian, or for a school teacher, by way of correction, to impose such confinement or detention, or to cause such deprivation of personal liberty of a child, as is reasonable under the circumstances.
(3) A person is excused from criminal responsibility for an offence defined by this section if he believes, on reasonable grounds, that the person confined, detained or deprived of his personal liberty needs to be confined, detained or deprived of his personal liberty for his own protection or benefit.

Question 64

200 Threats

Answer 64

Any person who threatens to do any injury, or cause any detriment, of any kind to another with intent to prevent or hinder that other person from doing any act that he is lawfully entitled to do, or with intent to compel him to do any act that he is lawfully entitled to abstain from doing, is guilty of a crime and is liable to imprisonment for 2 years.

Question 65

208E Law enforcement officers

Answer 65

A person is not criminally responsible for an offence against this Part if:

(a) the person is, at the time of the offence, a public officer acting in the course of his or her duty as a police officer, correctional services officer or other law enforcement officer; and
(b) the conduct of the person is reasonable in the circumstances for performing that duty.

Question 66

210 General punishment of stealing

Answer 66

(1) Any person who steals is guilty of a crime and is liable, if no other punishment is provided, to imprisonment for 7 years.
(2) If the thing stolen is a testamentary instrument, whether the testator is living or dead, or if the thing stolen has a value of $100,000 or more, the offender is liable to imprisonment for 14 years.

Question 67

211 Robbery

Answer 67

(1) Any person who steals and immediately before or at the time of his doing so, or immediately after doing so, uses or threatens to use violence to any person in order to obtain the thing stolen, to prevent or overcome resistance to its being stolen or to prevent or hinder his pursuit, is guilty of a crime called robbery and is liable to imprisonment for 14 years.
(2) If the offender is armed with a firearm or any other dangerous or offensive weapon or is in company with one or more person or persons, or if, immediately before, at or immediately after the time of the robbery he causes harm to any person, he is liable to imprisonment for life.

Question 68

212 Assault with intent to steal

Answer 68

(1) Any person who assaults another with intent to steal anything is guilty of a crime and is liable to imprisonment for 7 years.
(2) If the offender is armed with a firearm or any other dangerous or offensive weapon or is in company with one or more person or persons or if such assault causes harm, he is liable to imprisonment for 14 years.
(3) If the offender is armed with a firearm and immediately before, at or immediately after such assault he injures any person by discharging it, he is liable to imprisonment for life.

Question 69

213 Unlawful entry of buildings

Answer 69

(1) Any person who unlawfully enters a building with intent to commit any offence therein is guilty of an offence.
(2) If he does so with intent to commit a simple offence therein he is guilty of a simple offence and is liable to imprisonment for one year; if the building is a dwelling-house he is liable to imprisonment for 2 years.
(3) If he does so with intent to commit therein a crime for which the maximum punishment is not greater than 3 years imprisonment, he is guilty of a crime and is liable to imprisonment for 3 years; if the building is a dwelling-house he is liable to imprisonment for 5 years and, if it is actually occupied at the time of his entry, he is liable to imprisonment for 7 years.
(4) If he does so with intent to commit any other crime therein he is guilty of a crime and is liable to imprisonment for 7 years; if the building is a dwelling-house he is liable to imprisonment for 10 years.
(5) If he commits an offence hereinbefore defined at night-time he is liable to twice the punishment prescribed for that offence.
(6) If he commits an offence defined by this section when armed with a firearm or any other dangerous or offensive weapon, he is liable to imprisonment for 20 years; if the building is a dwelling-house he is liable to imprisonment for life.

Question 70

218 Unlawful use of vessel, motor vehicle, caravan or trailer

Answer 70

(1) Any person who unlawfully uses a vessel or motor vehicle, or a caravan or trailer designed to be attached to a motor vehicle, is guilty of an offence and is liable to imprisonment for 2 years.
(2) If:
(a) in the course of such unlawful use the offender causes any injury to any person or any danger to the lives or safety of the public or any member of it;
(b) the property unlawfully used is of the value of $20,000 or more;
(c) the property unlawfully used is damaged by the offender and the cost of repairing or compensating for the same is $1,000 or more, or its value as the result of his use of it is reduced by $1,000 or more;
(d) the vessel, motor vehicle, caravan or trailer is taken with the intention of using it for or in connection with the commission of an offence other than a regulatory offence; or
(e) as a result of such unlawful use the whereabouts of the vessel, motor vehicle, caravan or trailer remain unknown to the person entitled to lawful possession of it for 48 hours or longer,

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

Question 71

227 Criminal deception

Answer 71

(1) Any person who by any deception:
(a) obtains the property of another; or
(b) obtains a benefit (whether for himself or herself or for another),

is guilty of a crime and is liable to the same punishment as if he or she had stolen the property or property of equivalent value to the benefit fraudulently obtained (as the case may be).

    (1A)   In subsection (1), benefit includes any advantage, right or entitlement.

      (2) For the purposes of subsection (1), a person obtains property if he obtains ownership, possession or control of it and obtains includes obtaining for another and enabling another to obtain or retain.
      (3) Any person who by any deception obtains credit or further credit for himself or another, whether for the performance of an obligation that is legally enforceable or for one that is not, is guilty of a crime and is liable to imprisonment for 7 years.
      (4) Any person who, for the purposes of gain for himself or another, by any deception induces a person to engage in any conduct is guilty of a crime and is liable to imprisonment for 7 years.

Question 72

229 Receiving stolen property, &c.

Answer 72

(1) Any person who receives anything that has been obtained by means of a crime or by means of any act done at a place not in the Territory that, if it had been done in the Territory, would have constituted a crime and that is an offence under the law in force in the place where it was done, knowing or believing it to have been so obtained, is guilty of a crime.
(2) Where the thing so obtained has been:
(a) converted into other property; or
(b) mortgaged or pledged or exchanged for other property,

any person who knowing or believing:

(c) that the property is wholly or in part the property into which the thing so obtained has been converted or for which it has been mortgaged or pledged or exchanged; and
(d) that the thing so obtained was obtained under such circumstances as to constitute a crime defined by subsection (1),

receives the whole or any part of the property into which the thing so obtained has been converted or for which it has been mortgaged or pledged or exchanged is guilty of a crime within the meaning of subsection (1) and may be indicted and punished accordingly.

      (3) If the thing received has a value of $100,000 or more, the offender is liable to imprisonment for 14 years.
      (4) In any other case, the offender is liable to imprisonment for 7 years.
      (5) For the purpose of proving the receiving of anything it is sufficient to show that the accused person has, either alone or jointly with some other person, had the thing in his possession or has aided in concealing it or disposing of it.

Question 73

241 Damage to property

Answer 73

(1) A person is guilty of a crime if the person causes damage to property belonging to another person.

Fault elements:

The person:

(a) intentionally causes damage to property belonging to that other person or someone else; or
(b) is reckless as to causing damage to property belonging to that other person or someone else.

Maximum penalty: Imprisonment for 14 years.

      (2)   A person is guilty of a crime if the person makes a threat to another person to cause damage to property.

Fault elements:

The person:

(a) intentionally makes a threat to another person to cause damage to property; and
(b) is reckless as to causing the other person to fear that:
(i) the threat will be carried out; and
(ii) the carrying out of the threat will cause death or serious harm to someone.

Maximum penalty: Imprisonment for 7 years.

      (3)   A person is guilty of an offence if the person makes a threat to another person to cause damage to property belonging to that other person or someone else.

Fault elements:

The person:

(a) intentionally makes a threat to another person to cause damage to property belonging to that other person or someone else; and
(b) intends to cause the other person to fear that the threat will be carried out.

Maximum penalty: Imprisonment for 2 years.

      (4) For subsections (2) and (3): (a) it is not necessary to prove that the threatened person actually feared that the threat would be carried out; and (b) a threat may be made by any conduct, and may be explicit or implicit and may be conditional or unconditional; and (c) a threat to a person includes a threat to a group of persons; and (d) fear that a threat will be carried out includes apprehension that the threat will be carried out.
      (5) A person is guilty of an offence if the person possesses a thing for use by that person or someone else to cause damage to property belonging to another person.

Fault element:

The person intends that the person or someone else will use the thing to cause damage to property belonging to another person.

Maximum penalty: Imprisonment for 2 years

Question 74

243 Arson

Answer 74

(1) A person is guilty of a crime if the person causes damage to a building or conveyance by using fire or an explosive substance.

Fault elements:

The person:

(a) intentionally uses fire or an explosive substance; and
(b) intentionally causes, or is reckless as to causing, damage to a building or conveyance.

Maximum penalty: Imprisonment for life.

      (2)   A person who is convicted of the offence of attempting to commit a crime against subsection (1) is punishable by imprisonment not exceeding 14 years.

Note for subsection (2)
For the offence of attempting to commit the crime, see section 43BF.

      (3)   A person is guilty of a crime if the person makes a threat to another person to use fire or an explosive substance to cause damage to a building or conveyance.

Fault elements:

The person:

(a) intentionally makes a threat to another person to use fire or an explosive substance to cause damage to a building or conveyance; and
(b) intends to cause, or is reckless as to causing, another person to fear that the threat will be carried out.

Maximum penalty: Imprisonment for 7 years.

      (4) For subsection (3): (a) it is not necessary to prove that the threatened person actually feared that the threat would be carried out; and (b) a threat may be made by any conduct, and may be explicit or implicit and may be conditional or unconditional; and (c) a threat to a person includes a threat to a group of persons; and (d) fear that a threat will be carried out includes apprehension that the threat will be carried out.
      (5) In this section:

building includes:

(a) a part of a building; and
(b) all or part of any other structure or thing (whether or not moveable) that is used, designed or adapted for residential purposes (for example, a caravan).

conveyance means an aircraft, vessel, train, motor vehicle or trailer attached to a motor vehicle.

Question 75

277 Attempts to commit offences

Answer 75

(1) Any person who attempts to commit a crime or a simple offence is guilty of an offence.
(2) If the offence attempted to be committed is a crime he is, unless otherwise stated, guilty of a crime.
(3) When a person who commits a crime is punishable on being found guilty summarily, a person who attempts to commit such a crime may also be found guilty summarily.

Question 76

441 Arrest without warrant

Answer 76

(1) A person shall not be arrested without warrant except in accordance with this Code or an Act expressly giving power to arrest without warrant.
(2) A person, not being a member of the Police Force, may without warrant arrest a person (the offender) where the person:
(a) finds the offender committing an offence or doing an act or behaving or conducting himself, or in such circumstances, that the person believes on reasonable grounds that the offender has committed an offence and that the arrest of the offender is necessary:
(i) to ensure the appearance of the offender before a court of competent jurisdiction; or
(ii) to preserve public order; or
(iii) to prevent the continuation or repetition of the offence or the commission of a further offence; or
(iv) for the safety or welfare of members of the public or of the offender; or
(b) is instructed to do so by a member of the Police Force having power under an Act to apprehend the offender; or
(c) believes on reasonable grounds that the offender is escaping from legal custody or aiding or abetting another person to escape from legal custody or avoiding apprehension by some person having authority to apprehend the offender in the circumstances of the case.

    (2A)   A reference in subsection (2) to a member of the Police Force does not include a person who has not taken an oath under section 26 of the Police Administration Act.

      (3) A person who is arrested under subsection (2) and in custody shall not be questioned in relation to an offence other than by a member of the Police Force in accordance with the Police Administration Act.
      (4) As soon as practicable after a person is arrested under subsection (2), the person shall be delivered to a member of the Police Force, and the Police Administration Act shall apply to and in relation to the person and the member as if the arrest had been made under that Act.
      (5) A person who is arrested under subsection (2)(a) shall be held in custody only while the reason for the person's arrest, as referred to in that paragraph, continues.
      (6) A person who is arrested under subsection (2)(a) shall be released immediately from custody where it becomes apparent that the person did not commit the offence for which the person was arrested.
      (7) For the purposes of subsection (2)(a), offence does not include a contravention of or failure to comply with an instrument of a legislative or administrative character.