inquiry into the crimes (murder) amendment bill 2008€¦ · 1900 (nsw), which was in force in nsw...

S T A N D I N G C O M M I T T E E O N J U S T I C E A N D C O M M U N I T Y

S A F E T Y

Inquiry into the Crimes (Murder) Amendment Bill 2008

A U G U S T 2 0 0 9

Report 2

I N Q U I R Y I N T O T H E C R I M E S ( M U R D E R ) A M E N D M E N T B I L L 2 0 0 8

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Committee membership

Mrs Vicki Dunne MLA Chair

Ms Mary Porter AM MLA Deputy Chair

Ms Meredith Hunter MLA

Secretariat

Dr Hanna Jaireth Committee Secretary

Mr Andrew Dib a/g Inquiry Secretary

Mrs Chiew Yee Lim Research assistance

Mr Glenn Ryall Committee assistant

Ms Lydia Chung Administration

Contact information

Telephone 02 6205 0137 Facsimile 02 6205 0432 Email [email protected] Website www.parliament.act.gov.au

S T A N D I N G C O M M I T T E E O N J U S T I C E A N D C O M M U N I T Y S A F E T Y

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Resolution of appointment

On 11 December 2008 the Legislative Assembly appointed a Standing Committee on Justice and Community Safety to perform the duties of a Scrutiny of Bills and Subordinate Legislation Committee, and examine matters related to community and individual rights, consumer rights, courts, police and emergency services, corrections including a prison, governance and industrial relations, administrative law, civil liberties and human rights, censorship, company law, law and order, criminal law, consumer affairs and regulatory services.1

Terms of reference

On 10 February 2009 the Legislative Assembly for the ACT referred the Crimes (Murder) Amendment Bill 2008 to the Standing Committee on Justice and Community Safety for inquiry and report by the last sitting day in August 2009.2 The Bill can be viewed at http://www.legislation.act.gov.au/b/db_33751/default.asp.

1 Legislative Assembly for the ACT, Minutes of Proceedings, Tuesday 9 December 2008, p 13 2 Legislative Assembly for the ACT, Hansard, 10 February 2009, p 307


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TABLE OF CONTENTS

Committee membership .......................................................................................... i Secretariat ................................................................................................................ i Contact information .................................................................................................. i Resolution of appointment ...................................................................................... ii Terms of reference.................................................................................................. ii

R E C O M M E N D A T I O N S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I V

1 I N T R O D U C T I O N . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Legislative history of current ACT murder provisions........................................3 Structure of the report...........................................................................................4 Basic principles of criminal responsibility ...........................................................5 Rationale for amending the Act............................................................................6 Murder in other jurisdictions ................................................................................7 Earlier scrutiny report..........................................................................................13

2 I S S U E S R A I S E D B Y C O M M U N I T Y S T A K E H O L D E R S . . . . 1 7 Public perceptions about the offence of murder...............................................19 Stakeholder comments on sentencing ..............................................................26

3 C O M M I T T E E C O M M E N T S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 9 Reasons for this proposal ...................................................................................29 Uniformity of the law ..........................................................................................31 Community wishes..............................................................................................32 Deterrence ............................................................................................................32 Sentencing ...........................................................................................................34 The Crimes (Murder) Amendment Bill 2008......................................................35

A P P E N D I X A : D E F I N I T I O N S O F M U R D E R I N S T A T E , T E R R I T O R Y A N D C O M M O N W E A L T H L E G I S L A T I O N . . . . 3 9

A P P E N D I X B : P E N A L T I E S F O R M A N S L A U G H T E R I N A U S T R A L I A N J U R I S D I C T I O N S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 5

A P P E N D I X C : S U B M I S S I O N S A N D W I T N E S S E S . . . . . . . . . . . 4 7


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RECOMMENDATIONS

R E C O M M E N D A T I O N 1

3.12 The Committee recommends that the ACT Law Reform Advisory Council be restructured and provided with sufficient resources to enable it to

be a transparent and participatory body for the consideration of significant

law reform proposals. The Council should be required to make publicly

available its law reform consultation documents and reports.


3.16 The Committee recommends that the Attorney-General place on the agenda of the Standing Committee of Attorneys-General the need for

uniformity in murder offence provisions, given the current differences across

Australia, and the perception that there is uniformity.


3.28 The Committee recommends that the maximum sentence for manslaughter be increased to 25 years imprisonment, and to 31 years for

aggravated manslaughter offences.


3.29 The Committee recommends that the ACT Government consider the need to undertake a general review of sentencing in the ACT.


3.39 The Committee recommends that the Attorney-General consider amending the Bill by replacing the words in clause 4 ‘intending to cause

serious harm to any person’ with ‘intending to cause a bodily injury of such a

nature as to endanger, or be likely to endanger, the life of the person killed or

another person’, and by omitting clause 5.


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1 INTRODUCTION

1.1 On 11 December 2008 the Attorney‐General, Mr Simon Corbell MLA, introduced the Crimes (Murder) Amendment Bill 2008 (the Bill) into the Legislative Assembly for the ACT.3 The Bill proposes to extend the fault elements of the offence of murder in the Territory, so that if it can be established beyond reasonable doubt that a person intended to cause serious harm to a person who died as a result of that person’s actions, then the accused can be found guilty of murder.

1.2 The current Crimes Act 1900 (ACT) provides:

12 Murder

(1) A person commits murder if he or she causes the death of another person—

(a) intending to cause the death of any person; or

(b) with reckless indifference to the probability of causing the death of any person.

(2) A person who commits murder is guilty of an offence punishable, on conviction, by imprisonment for life.

1.3 The Bill, if enacted, would insert a new fault element for a finding of murder, significantly broadening the scope of the offence. It would insert paragraph 12(1)(c) ‘intending to cause serious harm’. The Bill incorporates into the offence the definition of serious harm in the Criminal Code 2002, meaning any harm (including the cumulative effect of more than one harm) that—

(a) endangers, or is likely to endanger, human life; or (b) is, or is likely to be, significant and longstanding.4

1.4 The legal concept of ‘serious harm’ is narrower than the common law concept of ‘grievous bodily harm’ which can be just ‘really serious harm’ or harm ‘of a serious character’.5 ‘Serious harm’ in the Criminal Code means any harm, including the cumulative effect of more than one harm, that endangers, or is

3 Legislative Assembly for the ACT, Hansard, 11 December 2008, pp 283–4 4 Clause 5 – new section 12(3) 5 DPP v Smith [1961] AC 290; R v Saunders [1985] Crim LR 230 (CA) cited in the Memorandum of Compatibility for the Bill


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likely to endanger, human life; or is, or is likely to be, significant and long‐standing.

1.5 Under the current provisions of the Crimes Act, an unlawful homicide which is not murder, but manslaughter, can lead to a sentence of imprisonment for 20 years. The maximum penalty for an aggravated offence is 26 years.6

1.6 In November 2008, when the Bill was first introduced into the Assembly, the Attorney‐General and Department of Justice and Community Safety wrote to stakeholders inviting their views on the proposed amendments. Written submissions were received from the Commonwealth Director of Public Prosecutions (CDPP), ACT Office of the Director of Public Prosecutions (DPP); ACT Policing; the Hon Chief Justice Terence Higgins AO; the ACT Law Society; Civil Liberties Australia; and the ACT Bar Association.7 These views are considered further below.

1.7 The Bill was previously considered by this Committee in its role as a Scrutiny of Bills and Subordinate Legislation Committee.8 The Committee reported on 3 February 2009, and the Attorney‐General responded to the Committee’s views on 10 February 2009.9 This Committee, when acting as a Committee for the scrutiny of legislation, tends not to make recommendations to the Assembly, and rather raises issues for consideration in a technical and non‐partisan manner.

1.8 The Committee is considering the Bill again. It was referred to it for further enquiry during debate on the Bill.

6 Crimes Act 1900 (ACT), s 15. The Crimes Act has separate provisions and penalties for industrial manslaughter

7 Letter from the Attorney ‐General, Mr Simon Corbell MLA, to the Chair of the Standing Committee on Justice and Community Safety, Mrs Vicki Dunne MLA, dated 5 August 2009

8 Standing Committee on Justice and Community Safety (performing the duties of a Scrutiny of Bills & Subordinate Legislation Committee), Scrutiny Report No 2, 3 February 2009

9 Standing Committee on Justice and Community Safety (performing the duties of a Scrutiny of Bills & Subordinate Legislation Committee), Scrutiny Report No 3, 23 February 2009


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Legislative history of current ACT murder

provisions

1.9 Murder provisions have not often been amended in the ACT. The Crimes Act 1900 (NSW), which was in force in NSW immediately before 1 January 1911, the date of establishment of the ACT, applied in the ACT until 1992 by virtue of Commonwealth legislation.10 Until ACT self‐government, the NSW Crimes Act had effect in the ACT as if it were an ACT law. Although the Australian Capital Territory (Self Government) Act 1988 (Cth) converted certain former NSW laws in force in the ACT into ACT enactments, and conferred power on the Assembly to legislate in a wide range of areas, it was not until the Crimes Legislation (Status and Citation) Act 1992 (ACT), that the NSW Crimes Act became, in effect, a law made by the ACT Legislative Assembly.

1.10 Before the patriation of the NSW Crimes Act to the Territory, the Commonwealth, on 16 May 1990, amended the NSW Crimes Act applicable in the Territory in relation to its murder provisions. The Commonwealth replaced the definition of murder in section 18 of the Act, with the section which is currently section 12. The former provision included as murder, an act done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm, or done in an attempt to commit or during or immediately after the commission by the accused (or an accomplice) of an act obviously dangerous to life, or of a crime punishable by death or penal servitude for life.

1.11 According to statements made in the Assembly at that time by the then Attorney‐General, Mr Bernard Collaery MLA, the Commonwealth amended those provisions after they had received ‘very careful consideration by the Criminal Law Consultative Committee’.11

1.12 In evidence to this Committee, Mr Collaery advised that a report of the Review of Commonwealth Criminal Law in relation to the principles of criminal

10 Seat of Government (Acceptance) Act 1909 (Cth) and Seat of Government (Administration) Act 1909 (Cth) 11 Legislative Assembly for the ACT, Hansard, 14 August 1990, p 2757


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responsibility had been considered very carefully before the amendment was made, and that the effect of the amendments was to bring the law in the Territory into line with Commonwealth provisions.12 Mr Collaery advised that as Attorney‐General, he had considered a draft of the July 1990 Report on the Principles of Criminal Responsibility and Other Matters13 prior to the amendments being made to the Crimes Act applicable in the Territory. Mr Collaery also advised that he had sought the views of the ACT Criminal Law Consultative Committee.

Structure of the report

1.13 Chapter 1 provides background to the inquiry, including discussion of the principles of criminal responsibility in relation to murder, and approaches to the definition of murder in other jurisdictions. Comments relating to an earlier scrutiny report of this Committee relating to the Bill are also noted.

1.14 Chapter 2 outlines issues raised by community stakeholders during the inquiry.

1.15 Chapter 3 provides the Committee’s comments and conclusions.

1.16 Appendix A outlines current murder offence provisions in State, Territory and Commonwealth legislation.

1.17 Appendix B outlines the penalties for manslaughter in Australian jurisdictions.

1.18 Appendix C lists the submissions received and witnesses heard by the Committee during the inquiry.

Conduct of inquiry

1.19 The Committee received six submissions, and correspondence in relation to this inquiry. It held two public hearings, and deliberated at five private meetings.

12 Standing Committee on Justice and Community Safety, Transcript of evidence, 29 July 2009, pp 79–80 13 The report had been produced by a review committee chaired by the Rt Hon Sir Harry Gibbs GCMG AC KBE, former Chief Justice of the High Court.


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Basic principles of criminal responsibility

1.20 The common law requires for the offence of murder, the physical element, or actus reus, of the act of causing death by voluntary act or omission; and the fault element, or mens rea, of malice aforethought or intent to kill, which must be present in the mind of the accused when the murder is committed.14 While still fundamental to the definition of murder in the ACT, this principle has become less significant in other Australian jurisdictions, where premeditation, or a motive, need not be present in the mind of the accused.15 In the Australian criminal law, most jurisdictions have extended the fault elements for murder in their statutory provisions.

1.21 In the ACT, the current Crimes Act 1900 provides the fault elements for murder as intending to cause death, and reckless indifference to the probability of causing death. For the Crown to prosecute a murder charge based on intent to cause death, the Crown must prove either that the accused’s state of mind ‘was that he or she was aware of or foresaw the certainty that the conduct would cause death’.16 For the Crown to prosecute a murder charge based on reckless indifference, it must be proved that:

…the accused knew that death was a probable (as opposed to possible) consequence of his or her conduct: R v Crabbe (1985) 156 CLR 464. This test is subjective in that it must be proved that the accused rather than an ‘ordinary’ or ‘reasonable’ person knew of the likelihood of causing death...[and] it is immaterial whether or not the accused was indifferent to the risk: R v Brown (1987) 78 ALR 368.17

1.22 The idea that the mental element of the intent to kill (the mens rea of the offence) should correspond with the physical act of killing (the actus reus of the offence) reflects the view that the most culpable form of wrongdoing to be the

14 S Bronitt & B McSherry, Principles of Criminal Law, Lawbook Co., Sydney, 2005, p 468 15 Bronitt & McSherry, Principles of Criminal Law, p 468 16 RB Wilson, Criminal Law, 6th Edition, Lawbook Co., Sydney, 2008, p 25 17 Bronitt & McSherry, Principles of Criminal Law, p 471; see also: R v Crabbe (1985) CLR 464, R v Brown (1987) ALR 368 (a Federal Court decision for an ACT murder, prior to self‐government), Pemble v R 124 CLR and La Fontaine V R (1976) 136 CLR


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knowing and deliberate, intentional or reckless infliction of harm.18

Rationale for amending the Act

1.23 Both the Attorney‐General, Mr Simon Corbell MLA, and the Chief Minister, Mr Jon Stanhope MLA, stated during Assembly debate on the Bill that it had been more than a decade since the last murder conviction in the Territory, and that the government believed that this was of concern to the community.19

1.24 The introduction of the Bill followed an ACT Labor commitment, made in the lead up to the 2008 ACT election, to reform the offence of murder.20 Following the Government’s re‐election in October 2008 the Attorney‐General claimed a mandate to pass the Bill, driven by:

…strong concern voiced in our community over recent months that our legislation does not adequately cover the circumstances in which the taking of a life can be classified as murder.21

1.25 The Attorney‐General also claimed that bringing the ACT in line with the community standard in place in other states and territories was further reason to pass the Bill. The Attorney‐General acknowledged in February 2009 that other jurisdictions did not have identical offence provisions, with a wide range of violent behaviour causing death falling within the offence of murder.22

1.26 The Attorney‐General claimed that the Northern Territory’s definition of murder provides a ‘much clearer set of criteria’ than the common law definition for grievous bodily harm, which is ‘really serious bodily injury’.23 Further, he suggested it has been tested in the NT Court of Criminal Appeal without controversy.24

18 Attorney –General’s Department, Review of Commonwealth Criminal Law Interim Report Principles of Criminals on Civil Liability and Other Matters, Australian Government Publishing Service Canberra, July 1990, p 32

19 Legislative Assembly for the ACT, Hansard 10 February 2009, pp 563, 570 20 Legislative Assembly for the ACT, Hansard, 10 February 2009, p 562 21 Legislative Assembly for the ACT, Hansard, 11 December 2008, p 284 22 Legislative Assembly for the ACT, Hansard, 10 February 2009, p 563 23 Standing Committee on Justice and Community Safety, Transcript of evidence, 22 July 2009, p 16 24 Standing Committee on Justice and Community Safety, Transcript of evidence, 22 July 2009, p 17


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Murder in other jurisdictions

1.27 The substantive differences amongst the Australian jurisdictions with regard to the fault element category of ‘intent to cause harm’ are summarised in this section, and the relevant statutory provisions are reproduced in Appendix A.

New South Wales

1.28 The Crimes Act 1900 (NSW) provides, in effect, that murder has been committed where a malicious act of the accused which caused the death of another person, was done or omitted:

with reckless indifference to human life, or

with intent to kill or inflict grievous bodily harm, or

in an attempt to commit, or during or immediately after the commission, by the accused or an accomplice of a crime punishable by imprisonment for life or for 25 years.

1.29 ‘Grievous bodily harm’ for the purposes of this murder offence includes:

the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any other harm, and

any permanent or serious disfiguring of the person, and

any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease). 25

1.30 Other punishable homicides are taken to be manslaughter.

Queensland

1.31 The Criminal Code Act 1899 (Qld) defines murder as having occurred when a person unlawfully kills another with intent to cause the death of that person or some other person, or if the offender intends to do to the person killed or to another person some grievous bodily harm. It is immaterial for a murder

25 s18


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charge that the offender did not intend to hurt the particular person who was killed.26

1.32 Grievous bodily harm is defined to mean:

the loss of a distinct part or an organ of the body; or

serious disfigurement; or

any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health;

whether or not treatment is or could have been available.27

1.33 Queensland also has provision for constructive murder, which is said to occur when death is caused by means of an act28 done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life, or if the offender intends to do grievous bodily harm to some person for the purpose of facilitating the commission of a crime, or for the purpose of facilitating the flight of an offender who has committed or attempted to commit such a crime. It is immaterial for a constructive murder charge that the offender did not intend to hurt the particular person who was hurt and died.29 It is also immaterial that the offender did not intend to cause death, or did not know that death was likely to result.30

1.34 Murder can also occur when death is caused by wilfully stopping the breath of a person to facilitate the commission of a crime, or to facilitate the flight of an offender who has committed or attempted to commit a crime.31

26 s302(2) 27 s302 28 including by administering any stupefying or overpowering thing : s302(1)(d) 29 s302(3) 30 s302(4) 31 s302(1)(e)


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Northern Territory

1.35 The Northern Territory’s murder provisions are partially reflected in the proposed ACT Bill. In the Northern Territory, a person is guilty of the crime of murder if their conduct causes the death of another person, and the person intended to cause the death of, or serious harm to that or any other person by that conduct. Serious harm is defined to mean any harm that endangers or is likely to endanger a personʹs life, or that is likely to be significant and long‐standing.32

Tasmania

1.36 Tasmania provides a range of circumstances where culpable homicide is regarded as murder. These include:

with an intention to cause the death of another

with an intention to cause bodily harm to a person which the offender knew to be likely to cause death in the circumstances although he had no wish to cause death

with an intention to inflict grievous bodily harm for the purpose of facilitating the commission or attempted commission of a crime, or the flight of the offender, including administering a stupefying thing for these purposes. Previous bodily harm is defined to mean any bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause serious injury to health33

by wilfully stopping the breath of a person

1.37 In relation to the latter two categories the offender need not have intended to cause death, nor have known that death was likely to ensue.34

32 Criminal Code Act 1983 (NT) s156 33 s158 34 Criminal Code Act 1924 (Tas), s157


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Western Australia

1.38 In Western Australia a person is guilty of murder if they unlawfully kill another person, and

intended to cause the death of the person killed or another person, or intended to cause a bodily injury of such a nature as to endanger, or be likely

to endanger the life of the person killed or another person, or the death is caused by means of an act done in the prosecution of an unlawful

purpose, which act is of such a nature as to be likely to endanger human life.

1.39 It is immaterial in the latter two instances that the person did not intend to hurt the person killed, or to hurt any person.35 This may incorporate into the Western Australian provisions the concept of recklessness causing death,36 although the Committee regards the drafting of this section as particularly unclear.

1.40 These Western Australian provisions followed a 2007 Law Reform Commission of Western Australia review of the law of homicide.37

South Australia

1.41 The offence of murder in South Australia is defined under the common law. A person who commits an intentional act of violence while committing a major indictable offence punishable by imprisonment for 10 years or more (other than abortion), and who thereby causes the death of another, is also guilty of murder.38

Victoria

1.42 In Victoria, as in South Australia, the common law definition of murder applies. Victoria also has statutory constructive murder provisions.39

35 Criminal Code Act Compilation Act 1913 (WA), s279 36 Wilson, Criminal Law, 6th Edition, Lawbook Co., Sydney, 2008, p 27 37 Law Reform Commission of Western Australia, Final Report: Review of the Law of Homicide, September 2007, p 3

38 Criminal Law Consolidation Act 1935 (SA), ss11, 12A 39 Crimes Act 1958 (Vic), s3(A)


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Commonwealth

1.43 The Criminal Code Act 1995 (Cth) includes as the fault element for the murder charge, the offender being ‘reckless as to causing’ death. However, this only applies to offences committed outside of Australia to an Australian citizen or resident, and to offences against a person associated with the United Nations.40

Recent law reform inquiries into murder

Western Australia

1.44 As noted above, in 2007 the Law Reform Commission of Western Australia reviewed the law of homicide.41 The review noted that ‘many legislative provisions dealing with homicide are complex’,42 pointing to the comments of former Chief Justice of the High Court, Murray Gleeson, who drew ‘attention to the complexity of criminal trials, in particular the complicated nature of some jury directions’.43

1.45 The Commission recommended that the WA Criminal Code remove from the elements of murder the intention to do grievous bodily harm, and replace it with intention to cause an injury likely to endanger life.

1.46 The Commission also recommended that:

…an intention to cause a bodily injury of such a nature as to cause or be likely to cause a permanent injury to health is not sufficient to establish the mental element of murder.

1.47 The then Western Australian Attorney‐General, Mr Jim McGinty, supported these recommendations, and the WA Parliament amended the WA Criminal Code in 2008. Mr McGinty argued that the grievous bodily harm element for

40 Criminal Code Act 1995 (Cth), s115.1 41 Law Reform Commission of Western Australia, Final Report: Review of the Law of Homicide, September 2007, p 3

42 Law Reform Commission of Western Australia, Final Report: Review of the Law of Homicide, September 2007, p 8

43 Law Reform Commission of Western Australia, Final Report: Review of the Law of Homicide, September 2007, p 8


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murder was archaic, making the following statement in Parliament in May 2008:

The offence of grievous bodily harm was really founded in a time when the nature of medicine was such that if someone had a serious bodily injury, it was most probably going to kill that person. However, today there is a world of difference between the cutting off of a finger and shooting someone with a bullet through the heart; yet the law still treats them as being somewhat the same sort of action. The Criminal Law Amendment (Homicide) Bill tries to bring a new order into play, placing the law of homicide in this state in a new context in the twenty‐first century. The Bill attempts to sever all those links with its historical origins to make something that is contemporary and relevant to deal with the circumstances that we find.44

United Kingdom

1.48 In November 2006 the United Kingdom (UK) Law Commission produced its review of the law on murder, manslaughter and infanticide in England and Wales.45 That report considered existing law and the problems with it. It commented on the structure of offences, and the problems with those offences. Identified problems included: the serious harm rule, reckless manslaughter, the structure of general homicide offences, and complicity in murder committed by another person.

1.49 The Commission’s discussion of the serious harm rule is most pertinent to this inquiry, and so the Committee quotes from the report at some length:

Under the current law D is liable for murder not only if he or she kills intentionally but also if he or she killed while intentionally inflicting harm the jury considered to have been serious. In our view, the result is that the offence of murder is too wide. Even someone who reasonably believed that no one would be killed by their conduct and that the harm they were intentionally inflicting was not serious can find themselves

44 Western Australian Legislative Assembly, Hansard, 8 May 2008, p 11 45 United Kingdom Law Commission, Murder, Manslaughter and Infanticide: Project 6 of the Ninth Programme of Law Reform: Homicide, Law Com no 304, 28 November 2006


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placed in the same offence category as the contract or serial killer. Here is an example:

D intentionally punches V in the face. The punch breaks V’s nose and causes V to fall to the ground. In falling, V hits his or her head on the curb causing a massive and fatal brain haemorrhage.

This would be murder if the jury decided that the harm that D intended the punch to cause (the broken nose) can be described as ‘serious’. Whilst it is clear that a person who kills in the circumstances should be guilty of a serious homicide offence it is equally clear to the great majority of our consultees that the offence should not be in the top tier or highest category of offence.

…

The inclusion of all‐intent‐to‐do‐serious‐harm cases within murder distorts the sentencing process of murder.

…

We have been informed by research, carried out by Professor Barry Mitchell, into public opinion about murder…. This shows that the public assumes that murder involves an intention to kill or its moral equivalent, namely a total disregard for human life.46

1.50 The Commission recommended new categories of first degree murder and second degree murder, and manslaughter. The Commission recommended that extending the definition of murder to include serious harm was unwarranted.47

Earlier scrutiny report

1.51 This Committee, when earlier scrutinising the Bill, reflected on its potential to trespass unduly on people’s personal rights and liberties.

1.52 In noting the views of the Model Criminal Code Officers Committee’s (MCCOC) 1998 discussion paper, Fatal Offences against the Person, the

46 The Law Commission, Murder, Manslaughter and Infanticide, pp 4–5 47 The Law Commission, Murder, Manslaughter and Infanticide, pp 4, 10


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Committee advised caution with regard to extending the current parameters for murder covered by current common law and section 12 of the Crimes Act. The Committee referred to sections 18(1) and 28 of the Human Rights Act 2004 (ACT) (HRA), suggesting the potential for inconsistency. The Attorney‐General later disagreed with these concerns.

1.53 The Bill extends the definition of murder to incorporate ‘serious harm’ as a cause element for the conviction of murder. The Committee cited MCCOC’s view that this provision is outdated and carries the potential for ‘inconsistent verdicts and unacceptably uncertain results’. MCCOC argued that medical technology has progressed, enabling the distinction between the criminal intent to kill and the intention to do serious harm to be distinguished more readily. MCCOC recommended that ‘an intention to do serious harm without being aware of the substantial risk of death should only establish manslaughter…’48

1.54 The Committee outlined other models that could extend the current definition in section 12 of the Act. This would provide a narrower reform than proposed in the Bill. A model based closely upon that recommended by the Law Reform Commission of Western Australia (LRC) would see only part (a) of the ‘serious harm’ definition included in section 12 of the Bill.49 The LRC stated that ‘an intention to cause permanent injury to health does not correspond with harm caused’ and ‘[w]hile the conduct is clearly reprehensible there is an insufficient connection between the accused’s intention and the resulting death’.

1.55 The Committee pointed out that other law reform commissions have recommended that the definition of ‘serious harm’ be amended to require the accused be proven that he or she was aware that the harm caused ‘would be likely to endanger human life’. It is noted that in its current form the definition in the Criminal Code would probably not be interpreted in this way. However, they add that it is argued ‘severe moral condemnation is merited’ if a person

48 Standing Committee on Justice and Community Safety (performing the duties of a Scrutiny of Bills & Subordinate Legislation Committee), Scrutiny Report No 2, 3 February 2009, p 9



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does not account for the potential jeopardy of his or her actions.50

1.56 The Committee considered the assertion that the amendment will bring the ACT in line with ‘all other Australian jurisdictions’ with regard to the ‘intention to inflict a form of serious bodily harm’, 51 and noted that there is variance across jurisdictions as to the meaning and scope of ‘serious bodily harm’. Only the Northern Territory’s legislation corresponds with the Bill’s definition of ‘serious harm’.

Attorney-General’s response

1.57 On 10 February 2009 the Attorney‐General wrote to the Committee in response to the Scrutiny Committee findings. He noted the Committee’s support for the recommendation made by the Model Criminal Code Officers Committee (MCCOC) and the Law Reform Commission of Western Australia. The Attorney‐General cited community expectations as reason to broaden the definition of murder, although provided no substantive evidence of this. He also pointed to the fact that since MCCOC made this recommendation in 1998, no other Australian state or territory had adopted it.




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2 ISSUES RAISED BY COMMUNITY STAKEHOLDERS

2.1 On 23 February 2009 the Committee invited submissions to this inquiry into the Bill. The submissions received are listed in Appendix C. The Committee conducted two public hearings, on 22 and 29 July 2009, inviting witnesses from community advocate groups and legal and law enforcement professions to participate further in the inquiry. The witnesses who appeared before the Committee is also at Appendix C.

2.2 A common argument in the submissions received for this inquiry was that a manslaughter finding in the ACT would most likely result in a murder finding across the border in New South Wales,52 and that the Bill seeks to redress this.

2.3 The Attorney‐General has said that the Bill ‘is not a very complex’ one and ‘in legislative terms, is quite straightforward’.53 However, Barrister and former Attorney‐General, Mr Bernard Collaery54 and Mr Shane Gill from the ACT Law Society held the opposite view, stating that the changes proposed in the Bill were ‘complicated provisions’.55 Further, the Law Society stated:

The proposed amendment is uncertain in its reach, with potential to categorise as murder matters which the public at large would not consider to be murder. The uncertainty of the reach… combined with the confusion likely to be caused by the terms of the amendment in its incorporation of differing mental elements in the same charge do not make good law.56

2.4 Within the submissions the Committee received, the ACT’s current definition

52 Submissions no 1, 2 & 3; J White, Director of Public Prosecutions, quoted in ‘Police, DPP back new murder laws’, The Canberra Times, 5 June 2009, p 8

53 Legislative Assembly for the ACT, Hansard, 10 February 2009, p 567 54 Standing Committee on Justice and Community Safety, Transcript of evidence, 29 July 2009, pp 85–86 55 Mr Shane Gill, ACT Law Society, quoted in ABC report, 10 Feb 2009, http://www.abc.net.au/news/stories/2009/02/12/2489327.htm

56 Letter from Mr Shane Gill, ACT Law Society to the Shadow Attorney ‐General Mrs Vicki Dunne MLA, dated 11 February 2009


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of murder was frequently contrasted with provisions in other states and territories. The lack of harmonisation was a particular issue of contention for those responsible for prosecuting offenders in the ACT. The Australian Federal Police Association (AFPA), for example, would like to see ACT criminal law brought into line with other Australian jurisdictions. They emphasised that the ACT was ‘the only jurisdiction without a similar fault element.’57 According to the AFPA, the ACT provisions had undermined the work of the police force, ultimately affecting morale.58

2.5 The Australian Federal Police (AFP) ACT division expressed the view that not only should the fault elements for the offence of murder in the ACT be in harmony with other jurisdictions, but that it should go further in adding the element ‘reckless about whether serious harm would result’.59 Commander Kevin Zuccato, a/g Chief Police Officer of ACT Policing, suggested that a uniform approach to the definition of murder across all states and territories would ensure ‘individuals have a clear understanding of… laws’.60

2.6 The ACT Director of Public Prosecutions, Mr Jon White, agreed with the principle of uniformity, suggesting the law ought to reflect the ‘high value placed on human life by the common law’.61

2.7 Mr Shane Gill, representing the ACT Law Society and the ACT Bar Association, agreed that a uniform code would be optimal, however, only if it was a ‘good law’, and ‘culpability [was] assigned correctly’.62 Mr Gill viewed the proposed changes as needlessly complicating what was currently effective legislation.63

2.8 Civil Liberties Australia (CLA) argued that any changes to the current Act would be needlessly regressive. CLA was concerned that any changes to the Act would be ‘contrary to the weight of scholarly consensus and learned

57 Submission 3, AFP Association, p 3 58 Submission 3, AFP Association, p 1 59 Submission 1, ACT Policing, p 3 60 Standing Committee on Justice and Community Safety, Transcript of evidence, 22 July 2009, p 2 61 Standing Committee on Justice and Community Safety, Transcript of evidence, 22 July 2009, p 29 62 Standing Committee on Justice and Community Safety, Transcript of evidence, 22 July 2009, p 74 63 Standing Committee on Justice and Community Safety, Transcript of evidence, 22 July 2009, p 71


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opinion on this issue’.64 It would also go against recommendations made by the Model Criminal Code Officers Committee (MCCOC), which were that

…the mens rea for murder should consist only of an intention to cause death, or reckless indifference as to whether death will result from a person’s conduct.65

2.9 CLA pointed to the fact that we have a ‘model code organisation that develops law for all of Australia’ that we should be following ‘rather than implementing individual laws’.66

2.10 The Attorney‐General pointed out, however, that no other jurisdiction has adopted this MCCOC recommendation.67

Public perceptions about the offence of murder

2.11 The fault elements for a murder charge, currently set out in ACT legislation, are central to the current debate. Establishing the community standard on what should be defined as murder, and what constitutes a lesser offence, such as manslaughter, is difficult to quantify. Unfortunately, despite some survey data on public attitudes towards crime and justice, there is not sufficient documented evidence reflecting Australians’ views of how murder should be defined. 68 However, the United Kingdom Law Commission report cited research into public opinion about murder. As noted above, it showed that the public assumed that murder involved an intention to kill or its moral equivalent.69

2.12 In relation to one of the ACT Government’s stated rationales for this Bill – the lack of murder convictions in the Territory during the past decade – the Committee notes that a murder conviction against Steven Hillier in 2004 was

64 Submission 5, Civil Liberties Australia, p 2 65 Submission 5, Civil Liberties Australia, p 2 66 Standing Committee on Justice and Community Safety, Transcript of evidence, 22 July 2009, p 47 67 Standing Committee on Justice and Community Safety, Transcript of evidence, 22 July 2009, p 16 68 L Roberts & D Indermaur, What Australians think about crime and justice: results from the 2007 survey of social attitudes, Australian Institute of Criminology, Canberra, 2009

69 The Law Commission, Murder, Manslaughter and Infanticide, p 5


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set aside in 2008,70 and that Mr Viet Dung Tran successfully appealed against a conviction and sentence for murder handed down in 2000.71 Neither of these successful appeals dealt with the issues which are the focus of this inquiry.

2.13 The Committee is also cautious about accepting the Attorney‐General’s claims about community opinion, as it is not clear how the Government came to that conclusion when developing the proposal to amend murder offence provisions in the manner proposed.72

2.14 The Committee is concerned that some witnesses, in submissions and during public hearings, referred to particularly sensitive cases using emotive language. This was particularly evident in relation to references to the cases of R v Porritt [2008] ACTSC 33 (22 April 2008) and R v Cassidy ACTSC 13 (25 February 2008). In relation to the Porritt matter, the Committee is concerned that erroneous reference was made to ’57 stab wounds’ both in evidence and in media reports, when the judgement in that case referred to ‘57 incised wounds, only a few of them being stab wounds’.73

2.15 Nevertheless, most stakeholders who provided evidence to this Committee claimed to represent the views of the Australian community.

2.16 The Attorney‐General claimed community support because the government took a commitment to amend the Crimes Act 1900 to the last election.74 He added that key stakeholders were consulted at the time the Bill was introduced to the Assembly, and that the government ‘remained open to amendments if necessary and, indeed, that was the purpose of the [consultation] process that I adopted’.75

2.17 The Attorney‐General believed it is:

…unfair to the Canberra community that such offences are treated as

70 Hillier v R [2008] ACTCA 3. The appeal was upheld, the conviction and sentence were set aside, and the case remitted for re‐trial, which has not yet been listed for hearing.

71 Queen v Tran (includes corrigendum dated 8 January 2001) [2000] FCA 1888 (22 December 2000) 72 Standing Committee on Justice and Community Safety (performing the duties of a Scrutiny of Bills & Subordinate Legislation Committee), Scrutiny Report No 2, 3 February 2009, p 15

73 R v Porritt [2008] ACTSC 33, para 67 74 Standing Committee on Justice and Community Safety, Transcript of evidence, 22 July 2009, p 17 75 Standing Committee on Justice and Community Safety, Transcript of evidence, 22 July 2009, pp 17–18


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murder in every other part of the country but they only attract the potential conviction of manslaughter here in the ACT.76

2.18 The Committee requested from the Attorney‐General copies of the submissions the ACT Government had received in response to its request for comments, as well as submissions received for this inquiry. The Committee thanks the Attorney‐General for his prompt response.

2.19 The Committee notes that the CDPP, DPP and ACT Policing wrote to the ACT Government in support of the Bill; while Chief Justice Higgins wrote that he saw ‘no difficulty with the proposal as drafted’.77 These stakeholders noted that the Bill would bring the ACT in line with other jurisdictions. However, as discussed below, murder definitions differ significantly among the states, and the proposed amendment would only bring the ACT and the NT into harmony.

2.20 In opposition to the Bill were the Law Society, the Bar Association and Civil Liberties Australia. The Law Society and Bar Association emphasised that the Bill would produce confusion and unnecessary complexity,78 while CLA wrote that the amendment was anachronistic; not ‘modernising’.79

2.21 The ACT Law Society and ACT Bar Association suggested that the extension of what can be called murder did not fit with the community’s expectations. Mr Gill provided an example to illuminate this:

Picture a young man out on the town—and in this particular instance the young man has previously been assaulted while out on the town. The previous assault that this person endured caused him to have a broken jaw, a plated jaw, which is not at all uncommon as one roams through Civic. Assume that years after that has occurred, this person is out on the town and accompanied by a girlfriend. That girlfriend is accosted by

76 Standing Committee on Justice and Community Safety, Transcript of evidence, 22 July 2009, p 16 77 Letter from the Hon Chief Justice Terence Higgins AO to Mr Simon Corbell MLA, Attorney‐General, dated 12 January 2009

78 Letter from Mr Rod Barnett, President, ACT Law Society to Mr Simon Corbell MLA, Attorney‐General, dated 11 February 2009; Letter from Mr Stuart Pilkinton, President, The ACT Bar Association, to Mr Simon Corbell MLA, Attorney‐General, dated 4 February 2009

79 Letter from Dr Kristine Klugman, President, Civil Liberties Australia, to Mr Simon Corbell MLA, Attorney‐General, dated 27 January 2009


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another person who touches the girlfriend and makes salacious remarks to her. He is promptly told to back off by the man who has previously had a broken jaw and laughed at. What the man with the broken jaw does is throw a single punch at this person.80

2.22 He went on to suggest that if the recipient of the punch were to die as a result, the offender being aware that one punch can cause serious harm, then:

…under the new law, that person would be convicted of murder, despite not having that culpable mind of thinking, ‘I am going to kill this person,’ or ‘I don’t care if I kill this person.’ What is of particular concern is that the complexity which flows from the amendments will cause a breach of offence that is very difficult to predict and is not necessarily connected to what the community as a whole would see as being murder.81

2.23 The AFPA and ACT Policing expressed the view in their evidence that the current ACT provisions for murder are out of step with the community’s point of view. The AFPA believe that the ‘law should be ahead of the crime’; that with time and an increase in population, violent offences will increase.82

2.24 The Victims of Crime Coordinator, Mr John Hinchey, argued that quite often the charge of manslaughter was insufficient, and that the worth and value of human life was not being accurately reflected in current ACT murder law. In acknowledging the concern and ‘great distress’ that families, friends and significant others have expressed, he believed that current ACT law did ‘not adequately recognise the circumstances that gave rise to the death of their loved one’.83 The VOCC supported the amendment on the basis that ‘it allows for greater recognition of the range of circumstances that may give rise to homicide’.84 However, he also acknowledged that victims of crime did not necessarily ‘want to see offenders punished to the extent that it might extinguish any hope for the offenders. But they do have a desire for justice’.85

80 Standing Committee on Justice and Community Safety, Transcript of evidence, 29 July 2009, p 72 81 Standing Committee on Justice and Community Safety, Transcript of evidence, 29 July 2009, p 72 82 Standing Committee on Justice and Community Safety, Transcript of evidence, 29 July 2009, p 58 83 Submission 4, Victims of Crime Coordinator, p 1 84 Submission 4, Victims of Crime Coordinator, p 1 85 Standing Committee on Justice and Community Safety, Transcript of evidence, 29 July 2009, p 64


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2.25 Executive Director of the ACT Law Society, Mr Larry King, suggested that it was easier to determine the views of victims of crime as they are well organised in society and ‘quite vocal’.86 Mr King asserted that the views he espoused reflected the membership of the ACT Law Society and the ACT Bar Association. He believes it is important that a legislative proposal should pass two significant tests. The first:

It has to balance the principle interests in society. It has got to take care of the major interests and, if possible, it should cater for minor interests as well… The second test… is that it has got to be easy to comply with.87

Public consultation on the proposed reform

2.26 The fault elements for a murder charge, currently set out in ACT legislation, are central to the current debate.

2.27 Civil Liberties Australia (CLA) expressed concern that the ACT Government’s consultation took place after tabling the Bill, and not in its developmental stage. ‘Consultation should be a proactive process that occurs prior to the preparation of drafting instructions and tabling of a Bill’.88 The CLA further criticised the government for not referring such an important Bill to the ACT Law Reform Commission.89

2.28 Mr Bernard Collaery, Barrister and former ACT Attorney‐General, recalled that the removal in 1990 of the grievous bodily harm category of murder, and the felony murder rule, from ACT legislation, was preceded by consideration by an eminent national law reform body, and the ACT Criminal Law Consultative Committee. Mr Collaery believed that the committee:

…tested the waters, explained [the changes], provided a report to the Assembly people and made the burden which is on this very important Committee a little lighter.90

86 Standing Committee on Justice and Community Safety, Transcript of evidence, 29 July 2009, p 75 87 Standing Committee on Justice and Community Safety, Transcript of evidence, 29 July 2009, p 75 88 Standing Committee on Justice and Community Safety, Transcript of evidence, 22 July 2009, p 40 89 Standing Committee on Justice and Community Safety, Transcript of evidence, 22 July 2009, p 40 90 Standing Committee on Justice and Community Safety, Transcript of evidence, 29 July 2009, p 83


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2.29 The ACT Office of the Director of Public Prosecutions (DPP), in noting the ACT’s pre‐1990 position that ‘intention to inflict grievous bodily harm resulting in death’ was sufficient for a murder charge, argued that harmonisation was a worthwhile end in itself. The DPP’s submission cited two cases in the ACT where the court dealt with the matter as manslaughter after establishing ‘intent to do grievous bodily harm … which in New South Wales would suffice for murder’.91 In the case of R v Cassidy [2008] ACTSC 13:

The accused hit his partner’s four year old daughter repeatedly over the head with a heavy metal saucepan, having become angry with her because she wet her pants … He was charged with and pleaded guilty to manslaughter, on the basis that he had no intent to kill… [and] was sentenced to a maximum term of 15 years imprisonment.92

2.30 The AFPA, with reference to comments by Chief Justice Higgins in R v Cassidy (cited above), noted that while the offender’s intent may not have been to kill, ‘he did, however, intend to injure’ and ‘was reckless as to how severe that injury was’.93 This ought to have been sufficient for the prosecution of murder according to the AFPA. However, the test for reckless indifference is narrower than this, as discussed above.

2.31 ACT Policing offered four case studies in their submission,94 suggesting that the accused in each case was (wrongfully) charged or convicted with lesser crimes. They quoted Chief Justice Higgins and Justice Weinberg who highlighted the inconsistency between NSW and ACT legislation. They contended that ACT convictions of manslaughter would more than likely result in murder in another Australian jurisdiction.95

2.32 This Committee notes that in the cases referred to by the AFPA and ACT Policing submissions, sentencing had been relatively low. Mr Gill pointed out that a court must consider section 33 of the Crimes (Sentencing) Act 2005 when determining a sentence for manslaughter. This requires consideration of:

91 Submission 2, ACT Director of Public Prosecutions, p 2 92 Submission 2, ACT Director of Public Prosecutions, p 2 93 Submission 3, AFP Association, p 2 94 R v Porritt, R v Darren Cassidy, R v Leon Bayer and R v Collins 95 Submission 1, ACT Policing


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…the nature and circumstances of the offence, the injury, loss or damage caused, the effect on the victim and the effect on the victim’s families and the degree of responsibility of the person who has committed the offence.96

2.33 In R v Porritt Chief Justice Higgins found the accused ‘not guilty of murder and guilty of unlawful homicide (manslaughter)’.97 The accused admitted to stabbing his mother; however the defendant’s submission ‘that the accused neither intended nor foresaw that his acts would cause the severe injuries that resulted’,98 was successful in acquiring a manslaughter charge for the accused. Porritt was sentenced to ‘[f]ive years imprisonment, to be released upon serving 22 months of that sentence…’99

2.34 ACT Policing asserted that Porritt would have been found guilty of murder under the proposed amendment. Their view was that a murder charge was warranted, given the scope of the evidence brought forward, and the severity of the crime.100 However, Barrister and former Attorney‐General, Mr Collaery, suggested that under the proposed Bill, there would not be any difference in the outcome in the Porritt case.101

2.35 The ACT Bar Association suggested that it would not like to see the offence of ‘murder watered down’ so as to ‘encompass less culpable acts’.102 They believe that the ‘community at large’ would not regard the proposed amendment as an acceptable extension of the offence of murder.103

2.36 Stakeholders differed in their views about how broad the definition of murder should be in the Crimes Act. The AFPA was concerned that because of the fine line between murder and manslaughter it may be impossible to determine ‘intention’ where the court must rely on material evidence. They attributed this to the common (‘and uncontroversial’) occurrence where a suspect was

96 Standing Committee on Justice and Community Safety, Transcript of evidence, 29 July 2009, p 71 97 Submission 1, ACT Policing, p 4 98 Submission 1, ACT Policing, p 4 99 Submission 1, ACT Policing, p 4 100 Submission 1, ACT Policing, p 5 101 Standing Committee on Justice and Community Safety, Transcript of evidence, 29 July 2009, p 80 102 Submission 6, ACT Bar Association, p 1 103 Submission 6, ACT Bar Association, p 1


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advised by their legal counsel not to participate in a criminal interview.104 The AFPA argued that because of this, the physical act of causing another’s death, and not their intent, ought to be the primary determinant for a murder charge.

Stakeholder comments on sentencing

2.37 ACT Policing saw a disparity between sentences and the gravity of offences.105 They attributed this to current legislation. Commander Zuccato expressed the view that it:

…diminishes our ability to produce [relevant] evidence and actually put that before a jury. It does not give the jury the opportunity to consider all of the facts of the case in order to determine whether or not it was murder or manslaughter.106

2.38 ACT Policing would like to see the sentence reflect the crime. Further to this, proper rehabilitation time ‘would take possibly a lot longer than two years’ to properly address the underlying issues contributing to such serious and violent offences.107 Most significantly though, it is important for ACT Policing ‘to have the ability to successfully prosecute an individual for what we would consider to be murder’.108

2.39 Mr Collaery109 and Mr Rowlings110 of the CLA both suggested that the main issue lay in sentencing, and not the definition of murder. Mr Collaery suggested that the penalty for manslaughter be increased, rather than tampering with the provisions for murder.111 He commented that:

One issue that needs urgent reform is… the penalty for manslaughter… Armed robbery is 25 years; manslaughter is 20 years. I see there has been quite a bit of discussion about the Porritt case. I was not in that case, but I

104 Submission 3, AFP Association, p 1 105 Standing Committee on Justice and Community Safety, Transcript of evidence, 22 July 2009, p 8 106 Standing Committee on Justice and Community Safety, Transcript of evidence, 22 July 2009, p 4 107 Standing Committee on Justice and Community Safety, Transcript of evidence, 22 July 2009, p 7 108 Standing Committee on Justice and Community Safety, Transcript of evidence, 22 July 2009, p 9 109 Standing Committee on Justice and Community Safety, Transcript of evidence, 29 July 2009, p 81 110 Standing Committee on Justice and Community Safety, Transcript of evidence, 22 July 2009, p 48 111 Standing Committee on Justice and Community Safety, Transcript of evidence, 29 July 2009, p 84


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do not think it would make any difference if Porritt were to be put to his trial again. Under the law as it is proposed to change or as it is now, there would not be much difference.112

2.40 The CLA was concerned that in ‘lowering the threshold for murder you would, in effect, be ‘cheapening’ the offence of murder’,113 branding someone who, without intent, caused another’s death the same as someone who makes a premeditated decision to murder. Instead the CLA agreed with the ACT Law Society114 that the scope of penalty for manslaughter could instead be increased.115 This would provide the appropriate penalty for serious crimes that were not coupled with an intent to kill.

2.41 In acknowledging the concern that some stakeholders had that offenders were escaping the appropriate charge or sentence, Mr Gill noted that ‘manslaughter is a statutory alternative to murder’.116 If an offender was acquitted of murder, manslaughter was automatically available to the prosecutor.117 Therefore if a court ruled that murder was not applicable, an offender could be sentenced for up to 20 years imprisonment for manslaughter, and 26 years for an aggravated offence.118

2.42 The DPP noted that if the amendment were passed, the manslaughter charge would still be open for a jury to use.119

112 Standing Committee on Justice and Community Safety, Transcript of evidence, 29 July 2009, p 80 113 Submission 5, Civil Liberties Australia, p 4 114 Letter from Mr Shane Gill, ACT Law Society to the Shadow Attorney‐General Mrs Vicki Dunne MLA, dated 11 February 2009

115 Submission 5, Civil Liberties Australia, p 4 116 Standing Committee on Justice and Community Safety, Transcript of evidence, 29 July 2009, p 70 117 Standing Committee on Justice and Community Safety, Transcript of evidence, 29 July 2009, p 70 118 Crimes Act 1900 (ACT) 119 Submission 2, ACT Director of Public Prosecutions, p 2


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3 COMMITTEE COMMENTS

3.1 The Committee thanks those who assisted with the inquiry. Many stakeholders and witnesses provided detailed submissions and valuable evidence, and the Committee appreciates the time and effort involved.

3.2 Having heard and reflected on the evidence from a diverse range of individuals and organisations the Committee makes the following comments and recommendations.

3.3 The Committee considers that the community would think that murder is the most serious crime on our statute books, warranting the most serious consideration both in the exercise of the law and in the reform of the law. The Committee has approached this inquiry with the seriousness that a review of this grave crime demands.

Reasons for this proposal

3.4 In considering this proposal the Committee reflected on the impetus for the changes and the arguments for and against change.

3.5 At the time this proposal was introduced the Attorney‐General’s argument in support of the change was so brief that the Committee has decided to reproduce it here in full:

The Crimes (Murder) Amendment Bill introduces an amendment to the Crimes Act 1900 so that there is a third fault, or mental element, for the offence of murder. I am pleased to be introducing this amendment today consistent with the commitments the Labor Party gave during the recent ACT election.

Murder is regarded as the most serious of all criminal offences. There has been strong concern voiced in our community over recent months that our legislation does not adequately cover the circumstances in which the taking of a life can be classified as murder. This Bill is a response to those concerns.

The current provision for murder allows it to be found when the


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person who causes the death of another does so with the intention of causing death, or being reckless as to the likelihood that death will result from their actions. The third limb that is contained in the Bill is that a person who takes a life when they had the intention to cause serious harm to another is also guilty of murder.

Serious harm is harm that endangers or is likely to endanger life, or harm that is, or is likely to be, significant and longstanding. This amendment Bill will bring the ACT into line with all other Australian jurisdictions. It is a further step in ensuring that the laws of the ACT reflect the wishes and views of the broader ACT community. I commend the Bill to the Assembly.i

3.6 By contrast, as the Committee learnt during its inquiry, the last changes to the ACT laws were as the result of a federal law reform inquiry conducted by eminent jurists and reviewed by the ACT Community Law Reform Committee, a group made up of eminent jurists and members of the wider community.

3.7 Recent changes to murder law in Western Australia were the result of eminent review, as was the case for murder law reform in the UK.

3.8 There was no evidence of any such consideration in the ACT’s case despite the Attorney‐General having recently appointed a law reform body.

3.9 The Law Reform Advisory Council was established by the ACT Government in 2008. It is chaired by Associate Professor Simon Rice, Director of Law Reform and Social Justice at the Australian National University’s College of Law. Members, who serve in a voluntary capacity, include esteemed legal professionals and academics: the Chief Justice of the ACT Supreme Court; the Chief Magistrate of the ACT Magistrates Court; the President of the ACT Bar Association; the President of the ACT Law Society; the ACT Director of Public Prosecutions; and the Victims of Crime Co‐ordinator.120

3.10 The Committee believes that law reform should be a considered process which

120 ACT Attorney‐General, Simon Corbell MLA, Media Release, ‘New Independent Law Reform Advisory Council established,16 October 2008, http://www.chiefminister.act.gov.au/media.php?v=7505&m=53&s=2


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reflects on legislation and case law in its broad and comparative context. The Committee would like to see a more prominent role for the Law Reform Advisory Council in reform initiatives, but considers that members on the Council should be appropriately remunerated for their services.

3.11 The Committee wishes to place on the public record the challenging nature of this inquiry. Whilst the Committee very much appreciated the evidence provided, we note that when such an important reform to criminal law was previously undertaken, policymakers had the benefit of a very considered report prepared by eminent people over a number of years. We would like to reiterate that any future changes similar to those proposed in this Bill should be subject to a lengthy, transparent and considered public inquiry process reflecting the significance of the proposed changes.


3.12 The Committee recommends that the ACT Law Reform Advisory Council be restructured and provided with sufficient resources to enable it to be a transparent and participatory body for the consideration of significant law reform proposals. The Council should be required to make publicly available its law reform consultation documents and reports.

Uniformity of the law

3.13 In his presentation speech for the Bill, the Attorney‐General claimed that this proposal would bring the ACT into line with other jurisdictions. While it is true that this proposal would insert a similar fault element into ACT law as exists in some form in all other states and the Northern Territory, it is not the case that there would be uniformity as the evidence brought to the Committee and the committee’s own research has demonstrated.

3.14 The Committee notes that there are significant differences between states and territories. It is therefore incumbent on the Attorney‐General to explain to the Assembly why he proposed the Northern Territory provisions rather than any of the other models.

3.15 The Committee also considers that there is a genuine case for pursuing


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uniformity in homicide provisions across Australian jurisdictions.


3.16 The Committee recommends that the Attorney-General place on the agenda of the Standing Committee of Attorneys-General the need for uniformity in murder offence provisions, given the current differences across Australia, and the perception that there is uniformity.

Community wishes

3.17 The other argument that the Attorney‐General used for this proposal was that it accorded with the community’s wishes.

3.18 The evidence before the Committee was quite contradictory. As discussed in chapter 2, witnesses presenting for both sides of the argument claimed that their views reflected the views of the community. At present there is no definitive information available in the form of credible research that would indicate exactly what the community thinks about the murder laws in the ACT.121

3.19 The Committee believes that there is some disquiet about elements of the law which is exacerbated at the time of high profile cases. Some of these concerns were expressed by a range of witnesses as they relate to deterrence and the appropriateness of sentencing.

Deterrence

3.20 One of the criticisms of the definition of murder in the ACT is that it is relatively lenient and will lead to a higher incidence of violent crime in the Territory than otherwise would occur. However, the statistics do not bear this

121 See more generally: L Roberts and D Indemaur, ‘What Australians think about crime and justice: results from the 2007 Survey of Social Attitudes, Australian Institute of Criminology Research and Public Policy Series 101, ; B Duffy, R Wake, T Burrows and P. Bremner, ‘Closing the Gaps: Crime and Public Perceptions, 2008, Ipsos MORI Social Research Institute,


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out. Since the abolition of the felony murder rule and the grievous bodily harm provision in the ACT in 1990 charges of armed robbery, for example, have not increased beyond that of other states and territories. In fact it has increased at a lower rate than those jurisdictions boasting tougher murder legislation. 122 As the number of homicides in the ACT is very low (4 in 2006‐07), it is very difficult to make a meaningful comparison between ACT homicide rates and the rest of the country.123

3.21 The Committee is concerned that deterrence as an underlying principle for this legislative change is overstated. The Committee questions how often offenders are thinking in a meticulous and rational way at the time of violent crimes. Both ACT Policing and the AFPA adhere to the notion that the changes will have the effect of deterrence in some cases.124

3.22 A report into sentencing trends for violent offenders issued by the Crime Research Centre at the University of Western Australia125 found no correlation between increased sentencing and a reduction in the incidence of violent crimes:

…there is no evidence to suggest that, as penalties for violent offences increase in severity, there is any corresponding decrease in the incidence of violent crime. Nor is there any evidence to support a conclusion that the incidence of violent crime was any greater during periods when less severe penalties were imposed.126

3.23 The Attorney‐General informed the Committee that the linkage between

122 ABS Recorded Crime – Victims, Australia: 2003, pp 21–28, http://www.ausstats.abs.gov.au/ausstats/subscriber.nsf/0/5C23F365908564F6CA256EA00079BD77/$File/45100_2003.pdf; 2006, pp 17–24. http://www.ausstats.abs.gov.au/ausstats/subscriber.nsf/0/E9E9A8A4336E01D1CA2572F10017BA43/$File/45100_2006.pdf

123 J Dearden & W Jones, Homicide in Australia: 2006–07 national homicide monitoring program annual report, Australian Institute of Criminology, Canberra, 2008

124 Standing Committee on Justice and Community Safety, Transcript of evidence, 22 July 2009, pp 9 & 11 125 N Morgan, ‘Sentencing Trends for Violent Offenders in Australia’, http://www.criminologyresearchcouncil.gov.au/reports/2002‐Morgan.pdf

126 N Morgan, ‘Sentencing Trends for Violent Offenders in Australia’, p 129, http://www.criminologyresearchcouncil.gov.au/reports/2002‐Morgan.pdf


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legislation and deterrence is ‘notoriously difficult to prove’.127 He claimed that the impetus for the changes to the murder definition is more about linking the ‘community standard’ with the appropriate sanction.128 And moreover, the Attorney‐General said:

It is a proportionate standard…that is consistent with human rights jurisprudence in other places… This type of behaviour is abhorrent and why should not we impose the same standard in terms of the sanction that exists elsewhere?129

Sentencing

3.24 One of the persistent themes that came out in both written and oral evidence was a concern that people who had perpetrated violent crimes that resulted in d

inquiry into the crimes (murder) amendment bill 2008€¦ · 1900 (nsw), which was in force in nsw...

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