Page 558 - Week 02 - Tuesday, 10 February 2009
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I commend the report of the scrutiny of bills committee on this bill, and I urge members to read it if they have any doubts about the possible scope and practical effect of these proposed amendments. I note that while the committee does not support these amendments in their totality, they are much more receptive to incorporating the first half of the code definition of serious harm. Incorporating the first part of the code definition would expand the current definition of murder to include actions that endanger or would be likely to endanger human life.
I am not a criminal lawyer, and fortunately I have not needed to examine the definition of murder since my days studying law at ANU. A lay man or woman might think that such an amendment would be unnecessary, because the existing mental element of recklessness as to whether one’s actions might cause death would seem already to cover the field. But recklessness in this context is exceedingly hard to prove, and from the DPP’s perspective, convictions are exceedingly difficult to obtain. The gravity that attaches to the crime of murder is so high that courts have rightly read down the various definitional elements of a crime in order to reserve it for the most heinous of offences.
The government argues that these amendments are necessary to bring the ACT’s laws into line with other Australian jurisdictions. In fact, the amendments would bring us into line with only the Northern Territory. None of the other states rely on the code definition of serious harm to describe the crime of murder. In many areas, the ACT government has sought to standardise our laws with those of the other states and territories. It appears somewhat anomalous that the ACT should follow the recommendations of the Model Criminal Code Officers Committee in so many other areas and yet go directly against their recommendations in this area.
The Model Criminal Code Officers Committee recommends that the crime of murder should not extend to cases in which the accused intended serious harm rather than death, unless the accused was reckless as to the risk of death. That is a position I support, and it would take quite a deal of convincing to persuade me otherwise. I have not heard any argument today which would make me consider changing my mind.
The criminal law embodies a kind of continuum of culpability, from minor misdemeanours and victimless crimes, which reasonable people can and do disagree upon as to whether they belong in the realm of criminality, all the way to acts of premeditated and nightmarish violence resulting in death. These gradations in culpability are a necessary and intrinsic feature of our criminal justice system. The proposed amendments would blur the gradation between manslaughter and murder by introducing additional ambiguity into the definition of murder. This is the core of my concerns.
The second half of the code definition of serious harm which these amendments seek to import into the definition of murder reads:
… harm that is or is likely to be significant and longstanding.
The question as to whether any particular harm is likely to be significant and longstanding is fraught with uncertainty. Modern or future medical technology means
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