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Constructing a Tunnel to Facilitate an Escape from Lawful Custody

Constructing a tunnel to facilitate an escape from lawful custody is an offence under section 310E of the Crimes Act 1900, which carries a maximum penalty of 10 years in prison.

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

  1. You constructed, or took part in the construction of a tunnel, and
  2. The tunnel could reasonably be considered as being intended for use in facilitating an inmate’s escape from lawful custody.

For the purposes of the offence, an ‘inmate’ includes:

  1. A person detained in a correctional centre whether on remand, sentenced or otherwise lawfully detained there, and
  2. A detainee held in an immigration detention centre.

It does not include:

  1. A person in lawful custody for the purpose of serving an intensive correction order, or
  2. A detainee in a youth detention centre.

A ‘tunnel’ includes any partially completed tunnel, and any excavation undertaken for the purpose of completing a tunnel.

The prosecution is not required to prove that the tunnel was actually intended for use to facilitate an escape however, you must be found not guilty if you are able to establish on the ‘balance of probabilities’, that you did not actually intend the tunnel to be used to facilitate an escape.

Defences to the charge include:

  1. Duress
  2. Necessity, and
  3. Self defence, which includes the defence of another.

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