Criminal Code Act 1995
Schedule
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The Criminal Code
Division 474
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Telecommunications offences
Subdivision C
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General offences relating to use of telecommunications
SECTION 474.17AB
Double jeopardy etc. provisions
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offences involving transmission of sexual material without consent
Double jeopardy
(1)
A person who has been convicted or acquitted of an offence (the aggravated offence ) specified in column 1 of an item of the following table may not be convicted of an offence specified in column 2 of the item in relation to the conduct that constituted the aggravated offence.
(2)
Subsection (1) does not prevent an alternative verdict under section 474.17B .
(3)
A person who has been convicted or acquitted of an offence (the underlying offence ) against subsection 474.17A(1) may not be convicted of an offence against subsection 474.17AA(1) or (5) in relation to the conduct that constituted the underlying offence.
When conviction must be set aside
(4)
If: (a) a person has been convicted by a court of an offence against subsection 474.17AA(1) on the basis that 3 or more civil penalty orders were made against the person under the Regulatory Powers (Standard Provisions) Act 2014 in relation to either or both of the following:
(5)
If: (a) a person has been convicted by a court of an offence (the aggravated offence ) against subsection 474.17AA(1) ; and (b) the court sets aside the conviction under subsection (4) of this section;
Section 3
CHAPTER 10 - NATIONAL INFRASTRUCTURE Part 10.6 - Telecommunications Services
View history note
Hide history noteDouble jeopardy
(1)
A person who has been convicted or acquitted of an offence (the aggravated offence ) specified in column 1 of an item of the following table may not be convicted of an offence specified in column 2 of the item in relation to the conduct that constituted the aggravated offence.
| Double jeopardy | ||
| Item |
Column 1
Aggravated offence |
Column 2
Other offence |
| 1 | subsection 474.17AA(1) | subsection 474.17A(1) or 474.17AA(5) |
| 2 | subsection 474.17AA(5) | subsection 474.17A(1) or 474.17AA(1) |
(2)
Subsection (1) does not prevent an alternative verdict under section 474.17B .
(3)
A person who has been convicted or acquitted of an offence (the underlying offence ) against subsection 474.17A(1) may not be convicted of an offence against subsection 474.17AA(1) or (5) in relation to the conduct that constituted the underlying offence.
When conviction must be set aside
(4)
If: (a) a person has been convicted by a court of an offence against subsection 474.17AA(1) on the basis that 3 or more civil penalty orders were made against the person under the Regulatory Powers (Standard Provisions) Act 2014 in relation to either or both of the following:
(i) contraventions of subsection 75(1) of the Online Safety Act 2021 ;
(b) one or more of those civil penalty orders are set aside or reversed on appeal; and (c) if the civil penalty orders covered by paragraph (b) of this subsection had never been made, the person could not have been convicted of the offence; and (d) the person applies to the court for the conviction to be set aside;
(ii) contraventions of section 91 of the Online Safety Act 2021 that relate to removal notices given under section 89 of that Act; and
the court must set aside the conviction.
(5)
If: (a) a person has been convicted by a court of an offence (the aggravated offence ) against subsection 474.17AA(1) ; and (b) the court sets aside the conviction under subsection (4) of this section;
the setting aside of the conviction does not prevent proceedings from being instituted against the person for an offence against subsection 474.17A(1) or 474.17AA(5) in relation to the conduct that constituted the aggravated offence.
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