Page 4165 - Week 11 - Thursday, 17 Sept 2009
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• thirdly, the concept would be applied and interpreted in isolation from Western Australian case law; and
• fourthly, the new Western Australian provision was only made in 2008 and no cases testing the new law have been decided.
The High Court has consistently identified the common law offence of murder as follows:
• (a) an intention to cause the death of, or grievous bodily harm to, any person, whether such person is the person actually killed or not; or
• (b) knowledge or recklessness that an act which causes death will probably cause the death of, or grievous bodily harm to, some person, whether such person is the person actually killed or not.
The old terms of the common law have been made into statute law in most jurisdictions in Australia. Each criminal statute in the states and territories is based upon a different method of drafting the same variations of the offence. In Australia there are now four methodologies informing the construction of criminal offences, including murder:
• the common law, which, as we recognise, is many centuries old and established in case law;
• the statutory compilation of common law, which dates from the mid 1800s to the 1900s, such as the New South Wales Crimes Act 1900 and the ACT Crimes Act 1900;
• the criminal code developed by Sir Samuel Griffith, called the Griffith code, which Queensland established from 1899 onwards; and
• the commonwealth code, established by the commonwealth from 1995 via the Criminal Code 1995.
Different states and territories rely on different elements of these four constructions for the common law offence of murder. Victoria and South Australia rely on the common law to inform the offence. Queensland, Western Australia, the Northern Territory and Tasmania adopted statutes based upon Griffith’s code. But New South Wales and the ACT use the Crimes Act 1900. The ACT and the Northern Territory are adopting the commonwealth code incrementally. Of course the commonwealth uses the commonwealth code. Currently two methodologies work side by side in the ACT: the statutory version of common law from 1900 and the commonwealth code methodology, which commenced in the ACT in 2002 by the Criminal Code 2002.
Just prior to full self-government, the commonwealth amended the ACT’s Crimes Act 1900 to remove the element of murder involving intent to cause grievous bodily harm. Consequently, the offence of murder currently contained in the Crimes Act only
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