Crimes Act 1914

Part III - Offences relating to the administration of justice

Division 5 - Escape from criminal detention

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SECTION 46 AIDING PRISONER TO ESCAPE

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46(1)
A person (the first person ) commits an offence if:

(a) another person (the prisoner ) is in criminal detention; and

(b) the first person aids the prisoner:

(i) to escape from that detention; or

(ii) to attempt to escape from that detention; and

(c) the prisoner escapes, or attempts to escape, from that detention; and

(d) the detention is lawful federal criminal detention.

Penalty: Imprisonment for 5 years.

46(2)
Absolute liability applies to the paragraph (1)(d) element of the offence.

Note:

For absolute liability, see section 6.2 of the Criminal Code .

46(3)
Subsection (1) does not apply if, before the escape or attempted escape, the first person:

(a) terminates his or her aid to the prisoner; and

(b) takes all reasonable steps to prevent the escape of attempted escape.

Note:

A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code ).

46(4)
The first person may be found guilty of the offence even if the prisoner has not been prosecuted for, or has not been found guilty of, an offence in relation to the escape or attempted escape.

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History

S 46 substituted by No 3 of 2011, s 3 and Sch 2 item 18, effective 3 March 2011. S 46 formerly read:

SECTION 46 AIDING PRISONER TO ESCAPE
46(1)
Any person who:

(a) aids a person in escaping, or attempting to escape, from lawful custody in respect of any offence against the law of the Commonwealth or of a Territory;

(aa) aids a person who has been lawfully arrested in respect of any offence against a law of the Commonwealth or of a Territory to escape, or to attempt to escape, from that arrest;

(ab) aids a person who is lawfully detained under Division 6 or 7 of Part IB or section 20BS in respect of any offence against the law of the Commonwealth or of a Territory to escape, or to attempt to escape, from that detention; or

(b) conveys anything into a prison, lock-up or other place of lawful detention with intent to facilitate the escape therefrom of a prisoner who is in custody in respect of an offence against the law of the Commonwealth or of a Territory;
shall be guilty of an indictable offence.

Penalty: Imprisonment for 5 years.

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History

S 46(1) amended by No 41 of 2003, s 3 and Sch 3 item 11, by substituting ``Part IB'' for ``Part IB'' in para (ab), effective 3 June 2003. For saving provision, see note under s 23C(7).

46(1A)
For a person to be guilty of an offence against paragraph (1)(a), (aa) or (ab):

(a) the person's conduct must have in fact aided the escape or attempted escape by the person in custody, under arrest or in detention (the escapee ); and

(b) the escapee must have actually escaped or attempted to escape.
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S 46(1A) inserted by No 24 of 2001, s 3 and Sch 10 item 54. For application provisions, see note under s 3BA.

46(1B)
For a person to be guilty of an offence against paragraph (1)(a), (aa) or (ab), the person must have intended that his or her conduct would aid the escape or attempted escape by the escapee.
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History

S 46(1B) inserted by No 24 of 2001, s 3 and Sch 10 item 54. For application provisions, see note under s 3BA.

46(1C)
A person cannot be found guilty of an offence against paragraph (1)(a), (aa) or (ab) if, before the escape or attempted escape, the person:

(a) terminated his or her aid to the escapee; and

(b) took all reasonable steps to prevent the escape or attempted escape.
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History

S 46(1C) inserted by No 24 of 2001, s 3 and Sch 10 item 54. For application provisions, see note under s 3BA.

46(1D)
A person may be found guilty of an offence against paragraph (1)(a), (aa) or (ab) even if the escapee has not been prosecuted, or has not been found guilty of an offence, in relation to the escape or attempted escape.
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History

S 46(1D) inserted by No 24 of 2001, s 3 and Sch 10 item 54. For application provisions, see note under s 3BA.

46(2)
In this section:
Territory
does not include the Australian Capital Territory.

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