Page 4167 - Week 11 - Thursday, 17 Sept 2009
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The committee also recommends omitting clause 5 of the government’s bill, which is the statutory definition of serious harm. This implies that the committee is recommending that the meaning of bodily injury in its proposed amendment would be informed by case law rather than a statutory definition. Omitting the statutory definition and using a term foreign to ACT jurisprudence will run the risk of making it very difficult for the court to settle an appropriate meaning for bodily injury.
At common law in Australia, supreme courts of states and territories do pay significant deference to each other’s decisions. However, the starting point of statute law is of course the statute itself and the judicial interpretation of it. The ACT Supreme Court recognition of Western Australian Supreme Court jurisprudence would be difficult in the absence of the same or very similar legislation being considered. These are the risks inherent in the committee’s recommendation, and it is for these reasons the government believes it cannot be agreed to.
I would like to turn to the issue of Northern Territory case law. As I mentioned earlier, the Northern Territory and the ACT are adopting the commonwealth Criminal Code incrementally. The Northern Territory provisions dealing with murder came into effect on 20 December 2006. Serious harm in the Northern Territory is defined in almost exact terms as the definition of serious harm in the government’s bill.
In March 2009, the Northern Territory Court of Criminal Appeal heard the case of Ladd v the Queen, which was an appeal involving murder on the basis of intent to cause serious harm. In the case of Ladd, the appellant made submissions that comprehensively challenged the Northern Territory statutory offence and, in particular, murder on the basis of intent to cause serious harm.
So that particular provision as proposed by the ACT was challenged effectively in that Northern Territory case. And the court found that the definition of serious harm had the same practical meaning as the previous iteration of the Northern Territory law. The court also decided that the new offence of murder, if the person intends to cause death or serious harm, works along the same lines as the common law offence. In short, this case provides strong evidence that the formulation in the government’s bill is sound and is applicable in the ACT. It has been tested in another jurisdiction which has the same basis for its murder law as the ACT does.
Let us turn to some other issues in the committee’s report. The committee’s report makes a lot of the homicide report by the Law Reform Commission of Western Australia. The committee sets aside the United Kingdom report which in fact supported intention to cause grievous bodily harm as within the ambit of murder. I would like to talk a little more about that in a moment.
However, in short, the committee’s approach is a selective one in how it presents the deliberations and findings of the Western Australian report. The committee’s selection gives the impression that intent to cause grievous bodily harm as a threshold for murder is regarded as inherently wrong. In fact, the Western Australian court itself noted on page 83 that an intention to kill and an intention to cause an injury likely to endanger life are morally equivalent. That was the Western Australian report’s own
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