Offences Relating to Trains and Railways in New South Wales

Commuter statistics in New South Wales suggest Sydneysiders make a combined total of an estimated 1.2 million trips every day on our trains.

And while the vast majority of them take place without a hitch – except, perhaps, for the regular delays – it is important for those who operate or use trains to be aware there are a number of offences in our state which are intended to keep our trains and railway system safe and efficient.

Here’s a summary of some of those offences:

Criminal offences that apply to railway operators

Section 211 of the Crimes Act 1900 (NSW) sets out two criminal offences for those operate, or have a duty in relation to, railways in New South Wales.

Section 211(1) of the Act prescribes a maximum penalty of 25 years in prison for intending to cause death or injury on a railway.

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

1. You engaged in an act in connection with the operation of a railway, or omitted to do an act in connection with the operation of a railway,
2. Your conduct was in connection with the operation of a railway,
3. You had a duty in relation to the conduct, and
4. You intended by your act or omission to cause the death of, inflict bodily injury on, or endanger the safety of any person on the railway, or in or on any locomotive, or any other rolling stock on the railway.

Section 211(2) of the Act prescribed a maximum penalty of 14 years in prison for intending to cause derailment, destruction or damage on a railway.

1. You engaged in an act in connection with the operation of a railway, or you omitted to do an act in connection with the operation of a railway,
2. You had a duty in relation to the conduct, and
3. You intended by your act or omission to cause any locomotive or other rolling stock on the railway to be derailed, destroyed or damaged.

A “railway” is defined as including a tramway, and all stations, buildings, structures and equipment belonging to or associated with a railway or tramway.

The offence of endangering passengers

Section 212 of the Crimes Act prescribes a maximum penalty of 3 years in prison for endangering passengers on a railway.

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

1. You endangered the safety of a person,
2. That person was on, or being conveyed on, a railway, and
3. You did so by way of an unlawful act or negligent omission

A ‘negligent omission’ is where you were under a duty of care to perform an act, but fell short of the standard of care a reasonable person would exercise by failing to perform that act.

Offences relating to obstructing a railway

Section 213 of the Crimes Act prescribes a maximum penalty of 2 years in prison for obstructing a railway.

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

1. You engaged in an act or omitted to do an act or assisted another to engage in an act or omit to do an act,
2. You did so intentionally,
3. You did so without a lawful excuse, and
4. Your act or omission, or the act or omission of the person you assisted, caused the passage or operation of a locomotive or other rolling stock on a railway to be obstructed.

Legal defences

You are not guilty of an offence outlined above if you are found to have a valid legal defence.

These defences include duress, necessity and self-defence.

In the event you are able to raise evidence of such a defence, the onus then shifts to the prosecution who must prove beyond a reasonable doubt that the defence does not apply in the circumstances.

You are entitled to a finding of not guilty if the prosecution is unable to do this.

Offences relating to conduct on trains

The Passenger Transport (General) Regulation 2017 contains several less-serious fine-only offences.

These include:

• Behaving offensively or using offensive language on public transport under regulation 50, which carries a maximum penalty of 10 penalty units,
• Smoking on public transport under regulation 51, which carries a maximum penalty of 5 penalty units,
• Drinking alcohol on public transport under regulation 52, which carries a maximum penalty of a fine of 5 penalty units.
• Taking a dog, cat, bird or other animal on public transport under regulation 53 without lawful excuse or in a proper conveyance of the animal, which carries a maximum penalty of 5 penalty units.
• Not following a direction by a driver or authorised officer on public transport under regulation 55, which carries a maximum penalty of 10 penalty units.
• Littering on public transport under regulation 59, which carries a maximum penalty of 10 penalty units.
• Vandalising public transport under regulation 61, which carries a maximum penalty of 2 penalty units.
• Lighting a fire on public transport under regulation 62, which carries a maximum penalty of 10 penalty units.
• Touching, or attempting to touch, a moving train with any part of a person’s body under regulation 68F, which carries a maximum penalty of 5 penalty units.
• Trespassing on restricted areas of a train station or parts of the rail infrastructure under regulation 68J, which carries a maximum penalty of 50 penalty units.

A New South Wales penalty unit is equivalent to $110 at the time of writing.

Going to court for a transport-related offence?

If you are going to court over a transport-related offence, call Sydney Criminal Lawyers anytime on 9261 8881 to arrange a free first conference during which one of our experienced defence lawyers will advise you of your options and the best way forward, and fight for the optimal outcome.