Criminal Code Act 1995 (Australia, unsourced)/Chapter 10/10.5

by Commonwealth of Australia

Part 10.5—Postal services

Division 470—Preliminary

470.1 Definitions

In this Part:

article has the same meaning as in the Australian Postal Corporation Act 1989.

article in the course of post means an article that is being carried by post, and includes an article that has been collected or received by or on behalf of Australia Post for carriage by post, but has not been delivered by or on behalf of Australia Post.

Australia Post means the Australian Postal Corporation.

carry, in relation to an article, has the same meaning as in the Australian Postal Corporation Act 1989.

carry by post has the same meaning as in the Australian Postal Corporation Act 1989.

constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.

mail‑receptacle means a mail‑bag, package, parcel, container, wrapper, receptacle or similar thing that:

(a) belongs to, or is in the possession of, Australia Post; and

(b) is used, or intended for use, in the carriage of articles by post (whether or not it actually contains such articles).

postage stamp has the same meaning as in the Australian Postal Corporation Act 1989.

postal message means:

(a) a material record of an unwritten communication:

(i) carried by post; or

(ii) collected or received by Australia Post for carriage by post; or

(b) a material record issued by Australia Post as a record of an unwritten communication:

(i) carried by post; or

(ii) collected or received by Australia Post for carriage by post.

postal or similar service means:

(a) a postal service (within the meaning of paragraph 51(v) of the Constitution); or

(b) a courier service, to the extent to which the service is a postal or other like service (within the meaning of paragraph 51(v) of the Constitution); or

(c) a packet or parcel carrying service, to the extent to which the service is a postal or other like service (within the meaning of paragraph 51(v) of the Constitution); or

(d) any other service that is a postal or other like service (within the meaning of paragraph 51(v) of the Constitution); or

(e) a courier service that is provided by a constitutional corporation; or

(f) a packet or parcel carrying service that is provided by a constitutional corporation; or

(g) a courier service that is provided in the course of, or in relation to, trade or commerce:

(i) between Australia and a place outside Australia; or

(ii) among the States; or

(iii) between a State and a Territory or between 2 Territories; or

(h) a packet or parcel carrying service that is provided in the course of, or in relation to, trade or commerce:

(i) between Australia and a place outside Australia; or

(ii) among the States; or

(iii) between a State and a Territory or between 2 Territories.

property has the same meaning as in Chapter 7.

unwritten communication has the same meaning as in the Australian Postal Corporation Act 1989.

470.2 Dishonesty

For the purposes of this Part, dishonest means:

(a) dishonest according to the standards of ordinary people; and

(b) known by the defendant to be dishonest according to the standards of ordinary people.

470.3 Determination of dishonesty to be a matter for the trier of fact

In a prosecution for an offence against this Part, the determination of dishonesty is a matter for the trier of fact.

Division 471—Postal offences

471.1 Theft of mail‑receptacles, articles or postal messages

(1) A person is guilty of an offence if:

(a) the person dishonestly appropriates:

(i) a mail‑receptacle; or

(ii) an article in the course of post (including an article that appears to have been lost or wrongly delivered by or on behalf of Australia Post or lost in the course of delivery to Australia Post); or

(iii) a postal message; and

(b) the person does so with the intention of permanently depriving another person of the mail‑receptacle, article or postal message.

Penalty: Imprisonment for 10 years.

Dishonesty

(2) For the purposes of this section, a person’s appropriation of a mail‑receptacle, article or postal message may be dishonest even if the person or another person is willing to pay for the mail‑receptacle, article or postal message.

Intention of permanently depriving a person of a mail‑receptacle, article or postal message

(3) For the purposes of this section, if:

(a) a person appropriates a mail‑receptacle, article or postal message without meaning another permanently to lose the thing itself; and

(b) the person’s intention is to treat the thing as the person’s own to dispose of regardless of the other’s rights;

the person has the intention of permanently depriving the other of it.

(4) For the purposes of subsection (3), a borrowing or lending of a thing amounts to treating the thing as the borrower’s or lender’s own to dispose of regardless of another’s rights if, and only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.

471.2 Receiving stolen mail‑receptacles, articles or postal messages

(1) A person is guilty of an offence if the person dishonestly receives stolen property, knowing or believing the property to be stolen.

Penalty: Imprisonment for 10 years.

Stolen property

(2) For the purposes of this section, property is stolen property if, and only if:

(a) it is original stolen property (as defined by subsection (3)); or

(b) it is tainted property (as defined by subsection (5)).

This subsection has effect subject to subsection (4).

Original stolen property

(3) For the purposes of this section, original stolen property is property, or a part of property, that:

(a) was appropriated in the course of an offence against section 471.1 (whether or not the property, or the part of the property, is in the state it was in when it was so appropriated); and

(b) is in the possession or custody of the person who so appropriated the property.

(4) For the purposes of this section, property ceases to be original stolen property:

(a) after the property is restored:

(i) to the person from whom it was appropriated; or

(ii) to other lawful possession or custody; or

(b) after:

(i) the person from whom the property was appropriated ceases to have any right to restitution in respect of the property; or

(ii) a person claiming through the person from whom the property was appropriated ceases to have any right to restitution in respect of the property.

Tainted property

(5) For the purposes of this section, tainted property is property that:

(a) is (in whole or in part) the proceeds of sale of, or property exchanged for, original stolen property; and

(b) is in the possession or custody of the person who so appropriated the original stolen property.

Alternative verdicts

(6) If, in a prosecution for an offence against section 471.1, the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence against this section, the trier of fact may find the defendant not guilty of the offence against section 471.1 but guilty of the offence against this section, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

(7) If, in a prosecution for an offence against this section, the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence against section 471.1, the trier of fact may find the defendant not guilty of the offence against this section but guilty of the offence against section 471.1, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

Receiving stolen property before commencement

(8) For the purposes of this section:

(a) it is to be assumed that section 471.1 had been in force at all times before the commencement of this section; and

(b) property that was appropriated at a time before the commencement of this section does not become stolen property unless the property was appropriated in circumstances that (apart from paragraph (a)) amounted to an offence against a law of the Commonwealth in force at that time.

471.3 Taking or concealing of mail‑receptacles, articles or postal messages

A person is guilty of an offence if the person dishonestly takes or conceals:

(a) a mail‑receptacle; or

(b) an article in the course of post (including an article that appears to have been lost or wrongly delivered by or on behalf of Australia Post or lost in the course of delivery to Australia Post); or

(c) a postal message.

Penalty: Imprisonment for 5 years.

471.4 Dishonest removal of postage stamps or postmarks

A person is guilty of an offence if the person dishonestly:

(a) removes any postage stamp affixed to, or printed on, an article; or

(b) removes any postmark from a postage stamp that has previously been used for postal services.

Penalty: Imprisonment for 12 months.

471.5 Dishonest use of previously used, defaced or obliterated stamps

(1) A person is guilty of an offence if the person dishonestly uses for postal services a postage stamp:

(a) that has previously been used for postal services; or

(b) that has been obliterated; or

(c) that has been defaced.

Penalty: Imprisonment for 12 months.

(2) If, in proceedings for an offence against subsection (1), it is proved that the defendant caused an article to or on which was affixed or printed a postage stamp:

(a) that had previously been used for postal services; or

(b) that had been obliterated; or

(c) that had been defaced;

to be carried by post, it is presumed, in the absence of evidence to the contrary, that the defendant used the stamp for postal services.

(3) The burden of proof in respect of evidence to the contrary is an evidential burden of proof.

471.6 Damaging or destroying mail‑receptacles, articles or postal messages

(1) A person is guilty of an offence if:

(a) the person engages in conduct; and

(b) the person’s conduct causes damage to, or the destruction of:

(i) a mail‑receptacle; or

(ii) an article in the course of post (including an article that appears to have been lost or wrongly delivered by or on behalf of Australia Post or lost in the course of delivery to Australia Post); or

(iii) a postal message; and

(c) the person:

(i) intends that his or her conduct cause that damage; or

(ii) is reckless as to whether his or her conduct causes that damage.

Penalty: Imprisonment for 10 years.

(2) For the purposes of this section, a person’s conduct is taken to cause the destruction of a thing if the person’s conduct causes the physical loss of the thing by interfering with the thing (including by removing any restraint over the thing or abandoning the thing).

(3) For the purposes of this section, a person’s conduct is taken to cause damage to a thing if:

(a) the person’s conduct causes any loss of a use of the function of the thing by interfering with the thing; or

(b) the person’s conduct causes the thing to be defaced.

471.7 Tampering with mail‑receptacles

(1) A person is guilty of an offence if the person dishonestly:

(a) opens a mail‑receptacle; or

(b) tampers with a mail‑receptacle.

Penalty: Imprisonment for 5 years.

(2) A person is guilty of an offence if:

(a) the person intentionally opens a mail‑receptacle; and

(b) the person is not authorised by Australia Post to open the mail‑receptacle; and

(c) the person does so knowing that he or she is not authorised by Australia Post to open the mail‑receptacle.

Penalty: Imprisonment for 2 years.

471.8 Dishonestly obtaining delivery of articles

A person is guilty of an offence if the person dishonestly obtains delivery of, or receipt of, an article in the course of post that is not directed to the person.

Penalty: Imprisonment for 5 years.

471.9 Geographical jurisdiction

Section 15.3 (extended geographical jurisdiction—category C) applies to an offence against section 471.1, 471.2, 471.3, 471.4, 471.5, 471.6, 471.7 or 471.8.

471.10 Hoaxes—explosives and dangerous substances

(1) A person is guilty of an offence if:

(a) the person causes an article to be carried by a postal or similar service; and

(b) the person does so with the intention of inducing a false belief that:

(i) the article consists of, encloses or contains an explosive or a dangerous or harmful substance or thing; or

(ii) an explosive, or a dangerous or harmful substance or thing, has been or will be left in any place.

Penalty: Imprisonment for 10 years.

(2) To avoid doubt, the definition of carry by post in section 470.1 does not apply to this section.

471.11 Using a postal or similar service to make a threat

Threat to kill

(1) A person (the first person) is guilty of an offence if:

(a) the first person uses a postal or similar service to make to another person (the second person) a threat to kill the second person or a third person; and

(b) the first person intends the second person to fear that the threat will be carried out.

Penalty: Imprisonment for 10 years.

Threat to cause serious harm

(2) A person (the first person) is guilty of an offence if:

(a) the first person uses a postal or similar service to make to another person (the second person) a threat to cause serious harm to the second person or a third person; and

(b) the first person intends the second person to fear that the threat will be carried out.

Penalty: Imprisonment for 7 years.

Actual fear not necessary

(3) In a prosecution for an offence against this section, it is not necessary to prove that the person receiving the threat actually feared that the threat would be carried out.

Definitions

(4) In this section:

fear includes apprehension.

threat to cause serious harm to a person includes a threat to substantially contribute to serious harm to the person.

471.12 Using a postal or similar service to menace, harass or cause offence

A person is guilty of an offence if:

(a) the person uses a postal or similar service; and

(b) the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.

Penalty: Imprisonment for 2 years.

471.13 Causing a dangerous article to be carried by a postal or similar service

Offence

(1) A person (the first person) is guilty of an offence if:

(a) the first person causes an article to be carried by a postal or similar service; and

(b) the person does so in a way that gives rise to a danger of death or serious harm to another person; and

(c) the first person is reckless as to the danger of death or serious harm.

Penalty: Imprisonment for 10 years.

Danger of death or serious harm

(2) For the purposes of this section, if a person’s conduct exposes another person to the risk of catching a disease that may give rise to a danger of death or serious harm to the other person, the conduct is taken to give rise to a danger of death or serious harm to the other person.

(3) For the purposes of this section, a person’s conduct gives rise to a danger of death or serious harm if the conduct is ordinarily capable of creating a real, and not merely a theoretical, danger of death or serious harm.

(4) For the purposes of this section, a person’s conduct may give rise to a danger of death or serious harm whatever the statistical or arithmetical calculation of the degree of risk of death or serious harm involved.

(5) In a prosecution for an offence against subsection (1), it is not necessary to prove that a specific person was actually placed in danger of death or serious harm by the conduct concerned.

Definition

(6) To avoid doubt, the definition of carry by post in section 470.1 does not apply to this section.

471.14 Geographical jurisdiction

Section 15.1 (extended geographical jurisdiction—category A) applies to an offence against section 471.10, 471.11, 471.12 or 471.13.

471.15 Causing an explosive, or a dangerous or harmful substance, to be carried by post

Offence

(1) A person is guilty of an offence if:

(a) the person causes an article to be carried by post; and

(b) the article consists of, encloses or contains:

(i) an explosive; or

(ii) a dangerous or harmful substance or thing that the regulations say must not, without exception, be carried by post.

Penalty: Imprisonment for 10 years.

Geographical jurisdiction

(2) Section 15.3 (extended geographical jurisdiction—category C) applies to an offence against subsection (1).

Division 472—Miscellaneous

472.1 Saving of other laws

This Part is not intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory.

472.2 Interpretation of other laws

In determining the meaning of a provision of:

(a) Part VIIA of the Crimes Act 1914; or

(b) the Australian Postal Corporation Act 1989;

this Part is to be disregarded.