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Legislative Assembly for the ACT: 1995 Week 03 Hansard (Tuesday, 30 May 1995) . . Page.. 535 ..


There was an earlier case back in the 1970s where a person fishing on the bank of the river in Victoria was shot by a person on the New South Wales side of the river and died. There was a question as to where the murder took place, and that turned on where New South Wales ended and Victoria started. Much to the annoyance of Victorians, who would have thought that the fair thing was to draw a dividing line down the middle of the Murray, the view was taken that New South Wales stretches - if my recollection serves me correctly - to the high water mark of the river across the border. So, the person who had been fishing on the Victorian side of the border and no doubt thought they were in Victoria, by putting their feet in the water to cast their line had entered New South Wales; thus the killing took place in New South Wales and not Victoria. The model Bill that has been prepared by the officers of the Attorneys-General Standing Committee will remove those interesting little points of law and, no doubt, deprive future lawyers of arguing nice issues in the High Court; but it is a sensible reform.

The second reform relates to the “year and a day” rule, which is a very old principle of English common law that says that, for the elements of murder to be established, as well as the necessary mental element and causation and other issues, the death must occur within a year and a day of the act that is alleged to have caused the death. This was a sensible rule when it was introduced, because medical knowledge in the mid-fifteenth century would have made it very difficult to establish after a year that the act that allegedly caused the death was in fact the cause of the death.

Proposals to abolish the “year and a day” rule were quite controversial some years ago. Members might wonder why the former Government did not move in relation to the “year and a day” rule. It was simply because this issue first rose to prominence in Australia three or four years ago, at a time when there was an element of, I think it would be fair to say, some hysteria in relation to dealing with AIDS and HIV issues. Some media commentators and some governments rather rapidly jumped in to say, “We are going to abolish the ‘year and a day’ rule in order to ensure that AIDS killers can be prosecuted”. There was quite a deal of concern within community sectors dealing with HIV that abolition of the “year and a day” rule for that motive could be seen to be adding to community hysteria and fear about HIV.

I think it was appropriate, for those reasons, that the ACT, along with a number of other States, let a bit of time pass before moving down what is, at the end of the day, a sensible reform. It does make sense that a rule introduced simply because of lack of medical knowledge in the fifteenth century be abolished; but there was some rather unfortunate community agitation at the time when the first State moved - I think it was Victoria first, but it may have been New South Wales. This was seen to be a knee-jerk reaction in relation to a fear of a rush of blood-syringe instruments - that if you did not legislate people would get away scot-free with needle-stick attacks. Of course, there were always substantial other crimes that you could charge them with, short of murder. We support the change. It does make sense; but I think it also made sense that a little bit of time passed so that this legislation would not be seen as a knee-jerk reaction to what was once perceived to be an issue of concern. Certainly, there has been no adverse reaction from those community groups in relation to the legislation at this time, whereas some years ago this was very contentious.


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