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Assisting Prisoners of War to Escape

Assisting prisoners of war to escape is an offence under section 83.2 of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 15 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You engaged in conduct
  2. Your conduct assisted a prisoner of war to escape from custody
  3. That custody was controlled wholly or partly by the Commonwealth or the Australian Defence Force, and
  4. Your conduct occurred within the context of international armed conflict.

‘Prisoners of war’ include any of the following who have “fallen into the power of any enemy”:

  1. Members of armed forces
  2. Members of militia or voluntary corps who form part of armed forces
  3. Members of other organised militia or voluntary corps who are under command, have a fixed distinctive symbol, carry arms openly, and conduct their operations according to the laws and customs of war
  4. Persons who accompany armed forces, including crew members, war correspondents, supply contractors, members of labour units and those responsible for welfare, and
  5. Inhabitants of non-occupied countries who approach the enemy and take up arms.

‘International armed conflict’ includes:

“all cases of declared war or of any other armed conflict which may arise between two or more… [nations] even if the state of war is not recognized by one of them”.

It covers “all cases of partial or total occupation of the territory… [of a nation] even if the said occupation meets with no resistance”.

Proceedings for the offence cannot be commenced without the Attorney-General’s consent.

Defences to the charge include:

  1. Duress, and
  2. Self defence, including the defence of another or others.

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