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Legislative Assembly for the ACT: 2009 Week 11 Hansard (15 September) . . Page.. 3976..


MR CORBELL (continuing):

However, I think it is important to make it clear that the government has considered carefully the committee's recommendations but, unfortunately, it believes that the committee's recommendations are fundamentally flawed. They are particularly flawed because the committee has recommended the adoption of a clause from the WA statute which is not based on any jurisprudence here in the ACT.

Indeed, the government has received advice from the Director of Public Prosecutions which indicates that the response adopted by the committee is of significant concern. In his advice to me, the DPP has noted:

Western Australia is a Griffith code state. It shares no historical roots with the ACT criminal law, and is different from the model criminal code of the commonwealth which it is adopting. It does not seem like good policy to pluck one aspect of the ACT law in isolation ... and place it in a foreign context in the ACT.

The committee's recommendations borrow from recommendation 7 of the Western Australian Law Reform Commission report on the review of the law of homicide. The WA report's recommendation is a reconfiguration of the existing words in section 279 of the WA Criminal Code.

The committee's recommendation to adopt these words is fundamentally flawed. First of all, it would require the ACT's legal system to start from scratch with the concept of bodily injury, which has no modern legal history in the ACT. Secondly, transplanting WA words into the ACT statute book would inherently give the words a different meaning from the WA context, while the ACT statute book contains none of the terminology or definitions used in the WA code.

The concept would be applied and interpreted in isolation from WA case law, and the new WA provision was only made in 2008. No cases testing the new law have been decided. Further, the imposition of a new term "bodily injury"in the ACT jurisdiction would likely mean that the courts would have to establish new jurisprudence on the term. It is also likely that defence and prosecution practitioners would need to develop significant submissions on the term for each new case before the ACT courts.

The term "bodily injury"has no statutory definition in Western Australia. The term is informed only by WA case law. There is no statutory method to apply Western Australian jurisprudence to ACT law, nor is there a way of articulating the Western Australian law in a manner consistent with ACT law without using the language already contemplated in the government's bill.

The term "bodily injury"has jurisprudence in Western Australia and in other states and the Northern Territory that use the Griffith criminal code but not in the ACT, as we do not use the Griffith criminal code. The WA Criminal Code has particular provisions dealing with issues such as the meaning of intent and motive, the notion of acts and omissions, insanity, intoxication et cetera. While these provisions are similar to the concepts in the ACT Criminal Code, they are not the same and transplanting the words from the Western Australian code into the ACT statute book would inherently give the words a different meaning from the Western Australian context.


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