Page 4166 - Week 11 - Thursday, 17 Sept 2009
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applies if the offender intends to cause the death of someone or is reckless to the probability of causing the death of someone. And this is where the ACT is different—different from every other jurisdiction in the country and different from the common law definition of murder—and it is that issue which the government wants to fix.
We believe that the murder offence in the territory should not be substantially different from the offence of murder as it applies in New South Wales—in Queanbeyan, for example—or in any other state or territory, and that is what this bill is designed to fix. It is a straightforward and sensible reform that will bring the law of murder into line with every other part of Australia.
Although drafted using different historical methodologies, every jurisdiction, apart from Western Australia and the commonwealth, has a form of murder that is informed by the original common law of intent to cause grievous bodily harm. Consequently, cases tried in the ACT that meet the factual threshold of a death as a consequence of intending to cause grievous bodily harm are tried on the basis of manslaughter rather than murder, as they would be in other jurisdictions. I reiterate: that is the issue that we are trying to address.
I would now like to turn in some detail to the committee’s fifth recommendation and the risks on that. The committee’s recommendation borrows from recommendation 7 of the Western Australian report. The Western Australian report’s recommendation is a reconfiguration of the existing words in section 279 of the Western Australian Criminal Code.
The committee’s recommendation to insert specific words from Western Australia is, in the government’s view, flawed. The imposition of a new term “bodily injury” in the ACT jurisdiction would mean that the courts would have to establish new jurisprudence on the term. It is also likely that defence and prosecution practitioners will need to develop significant submissions on the term for each new case before ACT courts.
The term “bodily injury” has no statutory definition in Western Australia. The term is informed by Western Australian case law. There is no statutory method to apply the 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 bill.
The term “bodily injury” has jurisprudence in Western Australia and other states and the Northern Territory that use the Griffith criminal code but not in the ACT. The Western Australian Criminal Code has particular provisions dealing with issues such as the meaning of intent and motive, the notion of acts and omissions, insanity, intoxication and so on. While these provisions are similar to the concepts in the ACT’s Criminal Code, they are not the same. Transplanting the Western Australian words into the ACT statute book would inherently give the words a different meaning from the Western Australian context.
As I mentioned earlier, the Western Australian parliament passed this new law in 2008. The Western Australian Office of the Director of Public Prosecutions has advised that at this time no cases have been tried that test the new provisions.
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