Escape Lawful Custody Offences (NSW)

Escaping from custody is different to resisting arrest. A person resists arrest when they fail to co-operate with police who are attempting to arrest them. A person escapes from lawful custody if they break free of the control of police or other officials after they have already been effectively placed under arrest. Escape from custody offences are contained in Part 6A of the Crimes Act.

These offences are taken seriously by NSW courts and can result in significant penalties, including lengthy prison sentences. Understanding the legal framework surrounding escape from lawful custody is crucial for both legal practitioners and individuals who may find themselves facing such charges.

What is 'lawful custody'?

A person is in lawful custody if they have been arrested and detained in a way that the law authorises. This definition encompasses various scenarios and locations where individuals may be legally held.

Types of Lawful Custody

Lawful custody can occur in several contexts under NSW law. This includes custody following arrest by police officers under the Law Enforcement (Powers and Responsibilities) Act 2002, detention in correctional facilities under the Crimes (Administration of Sentences) Act 1999, or custody during court proceedings. The custody must be authorised by law and conducted according to proper procedures.

Requirements for Lawful Custody

For custody to be considered lawful, certain conditions must be met. The arresting officer must have reasonable grounds to suspect the person has committed an offence, the arrest must be conducted using reasonable force only, and proper procedures must be followed throughout the detention process. Any breach of these requirements may render the custody unlawful.

Possible defences

A charge of escape lawful custody can be defeated if the defendant can raise reasonable doubt about key elements of the offence. The prosecution must prove beyond reasonable doubt that all elements of the charge are satisfied.

Challenging the Lawfulness of Custody

The primary defence against escape charges involves challenging whether the custody was lawful in the first place. A charge of escape lawful custody can be defeated if the defendant can raise reasonable doubt that:

• They were in lawful custody;
• They escaped or attempted to escape

If the accused was arrested by police who did not have a reasonable suspicion that they had committed an offence, or the police used more than reasonable force to arrest them, the defence that the arrest was not lawful could be run. This defence could also be advanced if the accused was arrested mistakenly or held in custody beyond the point when they should have been released and was, therefore, the victim of false imprisonment.

Other Available Defences

Additional defences may include duress, where the accused was forced to escape due to threats of harm, necessity, where escape was required to prevent greater harm, or mental illness that affected the person's capacity to understand their actions. Each defence requires specific evidence and legal arguments to be successful.

Rescuing inmate from lawful custody

Section 310B of the Crimes Act makes it an offence to rescue or attempt to rescue an inmate from lawful custody by force. This offence is punishable by a maximum penalty of imprisonment for 14 years.

Elements of the Rescue Offence

To prove this offence, the prosecution must establish that the accused used force or violence to free someone from lawful custody. The offence applies whether the rescue was successful or merely attempted. The severe maximum penalty reflects the seriousness with which the law views attempts to undermine the justice system through force.

Aiding escape

Section 310C of the Crimes Act makes it an offence to aid an inmate in escaping or attempting to escape from lawful custody or to convey something to a correctional centre or to an inmate to facilitate the escape of an inmate. This offence carries a maximum penalty of imprisonment for seven years.

What Constitutes Aiding an Escape

Aiding an escape can involve various activities, including providing tools or equipment that could facilitate escape, giving information about security procedures, providing transportation, or offering financial assistance. The assistance does not need to be successful for the offence to be complete.

Escaping

Section 310D of the Crimes Act makes it an offence to escape or attempt to escape from lawful custody or to fail to return to lawful custody after being temporarily released. This offence carries a maximum penalty of imprisonment for 10 years.

Circumstances of Escape

This provision covers various scenarios, including breaking out of a correctional facility, fleeing from police custody during transport, or failing to return from temporary leave. The offence is complete once the person leaves their lawful custody without permission, regardless of how far they travel or how long they remain at liberty.

Tunnels

Under Section 310E of the Crimes Act a person commits an offence if they construct tunnels that could be used to facilitate an inmate's escape from lawful custody. This offence carries a maximum penalty of imprisonment for 10 years.

Scope of Tunnel Construction Offence

This unique provision recognises the serious planning involved in tunnel construction for escape purposes. The offence applies to any excavation or construction work designed to create a passage that could be used for escape, whether completed or not.

Permitting escape

Under Section 310F of the Crimes Act, a person who has custody of an inmate (such as a police officer or an officer of a correctional centre), commits an offence if they wilfully permit the inmate to escape from custody. This offence carries a maximum penalty of imprisonment for seven years. If the act is done negligently rather than intentionally, the maximum penalty is imprisonment for two years.

Distinction Between Wilful and Negligent Conduct

The law recognises different levels of culpability for custodial officers. Wilful permission involves deliberate action to allow escape, while negligent permission results from carelessness or failure to follow proper procedures. Both carry serious consequences but reflect different degrees of misconduct.

Harbouring escapee

Section 310G of the Crimes Act makes it an offence to harbour, maintain or employ an escaped inmate. This offence carries a maximum penalty of imprisonment for three years. This offence also applies to prisoners who have escaped from custody in another Australian jurisdiction.

Interstate Application

The harbouring provision extends beyond NSW borders, recognising that escaped prisoners may cross state boundaries. This ensures comprehensive coverage and prevents jurisdictional gaps in enforcement.

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