Australian Capital Territory Numbered Acts

CRIMES (OFFENCES AGAINST PREGNANT WOMEN) AMENDMENT ACT 2006 (NO. 5 OF 2006) - SECT 18

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48A     Aggravated offences—offences against pregnant women

    (1)     This section applies to an offence against any of the following provisions:

        (a)     section 15 (Manslaughter);

        (b)     section 19 (Intentionally inflicting grievous bodily harm);

        (c)     section 20 (Recklessly inflicting grievous bodily harm);

        (d)     section 21 (Wounding);

        (e)     section 23 (Inflicting actual bodily harm);

        (f)     section 24 (Assault occasioning actual bodily harm);

        (g)     section 29 (2) or (3) (Culpable driving of motor vehicle).

    (2)     The offence is an aggravated offence if—

        (a)     the offence was committed against a pregnant woman; and

        (b)     the commission of the offence caused—

              (i)     the loss of, or serious harm to, the pregnancy; or

              (ii)     the death of, or serious harm to, a child born alive as a result of the pregnancy.

    (3)     However, the offence is not an aggravated offence if the defendant proves, on the balance of probabilities, that the defendant did not know, and could not reasonably have known, that the woman was pregnant.

    (4)     If the prosecution intends to prove that the offence is an aggravated offence, the relevant factors of aggravation must be stated in the charge.

    (5)     To remove any doubt—

        (a)     it is not necessary for the prosecution to prove that the defendant had a fault element in relation to any factor of aggravation; and

        (b)     the Criminal Code, chapter 2 (other than the applied provisions) does not apply to an offence to which this section applies, whether or not it is an aggravated offence.

    (6)     In this section:

"applied provisions"—see the Criminal Code, section 10 (1).

"cause" loss, serious harm or death—a person's conduct causes loss, serious harm or death if it substantially contributes to the loss, serious harm or death.

"factor of aggravation" means a matter mentioned in subsection (2) (a) or (b).

"harm" to a child—see the Criminal Code, dictionary, definition of "harm".

"harm" to a pregnancy includes maternal haemorrhage, rupture of the uterus or membranes, placental abruption, pre-term uterine contractions, fetal haemorrhage and trauma to the fetus.

"loss" of a pregnancy means a miscarriage or stillbirth.

"serious harm" to a child—see the Criminal Code, dictionary, definition of "serious harm".

"serious harm" to a pregnancy means any harm (including the cumulative effect of more than 1 harm) that—

        (a)     is likely to cause loss of the pregnancy; or

        (b)     endangers, or is likely to endanger, the natural course of the pregnancy.

48B     Alternative verdicts for aggravated offences—offences against pregnant women

    (1)     If, in a prosecution for an aggravated offence mentioned in column 2 of an item in table 48B, the trier of fact is not satisfied that the defendant committed the aggravated offence, but is satisfied beyond reasonable doubt that the defendant committed an offence mentioned in column 3 of the item (the alternative offence ), the trier of fact may find the defendant guilty of the alternative offence but only if the defendant has been given procedural fairness in relation to that finding of guilt.

Table 48B

column 1 item	column 2 aggravated offence	column 3 alternative offences
1	section 15 (Manslaughter), aggravated offence	1.1     section 15, simple offence
		1.2     section 17 (1) (Suicide—aiding etc)
		1.3     section 17 (2)
		1.4     section 20 (Recklessly inflicting grievous bodily harm), aggravated offence
		1.5     section 20, simple offence
		1.6     section 25 (Causing grievous bodily harm)
		1.7     section 29 (2) (Culpable driving of motor vehicle—causing death), aggravated offence
		1.8     section 29 (2), simple offence
		1.9     section 42 (Child destruction)
		1.10     section 47 (Concealment of birth)
2	section 19 (Intentionally inflicting grievous bodily harm), aggravated offence	2.1     section 19, simple offence
		2.2     section 20 (Recklessly inflicting grievous bodily harm), aggravated offence
		2.3     section 20, simple offence
		2.4     section 21 (Wounding), aggravated offence
		2.5     section 21, simple offence
		2.6     section 23 (Inflicting actual bodily harm), aggravated offence
		2.7     section 23, simple offence
		2.8     section 43 (Childbirth—grievous bodily harm)
3	section 20 (Recklessly inflicting grievous bodily harm), aggravated offence	3.1     section 20, simple offence
		3.2     section 23 (Inflicting actual bodily harm), aggravated offence
		3.3     section 23, simple offence
		3.4     section 25 (Causing grievous bodily harm)
		3.5     section 29 (3) (Culpable driving of motor vehicle—causing grievous bodily harm), aggravated offence
		3.6     section 29 (3), simple offence
		3.7     section 43 (Childbirth—grievous bodily harm)
4	section 21 (Wounding), aggravated offence	4.1     section 21, simple offence
		4.2     section 23 (Inflicting actual bodily harm), aggravated offence
		4.3     section 23, simple offence
		4.4     section 24 (Assault occasioning actual bodily harm), aggravated offence
		4.5     section 24, simple offence
		4.6     section 26 (Common assault)

    (2)     In this section:

"aggravated offence"—see section 48A (2).

"simple offence"—a simple offence , in relation to a provision, means an offence against the provision that is not an aggravated offence against the provision.