Northern Territory Second Reading Speeches

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CRIMINAL CODE AMENDMENT (CRIMINAL RESPONSIBILITY REFORM) BILL (NO. 2) 2005


nformation :
Bill presented and read a first time.

Dr TOYNE (Justice and Attorney-General): Madam Speaker, I move that the bill be now read a second time.

This bill is identical to the Criminal Code Amendment (Criminal Responsibility Reform) Bill 2005 that I presented in the May sittings, save for some drafting changes aimed at clarifying the operation of certain provisions. The bill proposes the most significant set of reforms to the Northern Territory’s Criminal Code that have occurred since its inception. This government has worked consistently during its term to identify areas of criminal law that require reform. There is a tendency for debate on reform of the criminal justice system to focus on punishment to consider reforms in terms of the penalties that are set for offences.

The adequacy of the punishment set for crimes is certainly a matter that requires attention and revision as necessary. However, the punishment set by legislation is, in reality, the final consideration in the criminal justice process. It is even more fundamental that we ensure that existing offence provisions are not flawed in terms of criminalising particular conduct; that, where necessary, new offences are enacted to ensure that particularly abhorrent behaviour is criminalised; and that the evidentiary and procedural rules necessary to safeguard a fair criminal trial process are adequately addressed within our criminal law legislation.

Ongoing review of our criminal laws is required to ensure that they both meet current community expectations and deal with emerging forms of criminal activity. As a legislature in a jurisdiction in which the Criminal Code operates to the exclusion of the common law, we have a greater level of responsibility for ensuring that the Code sets the proper fault standards for conduct in terms of the offences that have been created.

This bill has a two stage effect and purpose. First, it proposes reform of the Criminal Code that goes to the heart of fault theory in criminal law by enacting new general principles upon which persons may be held criminally responsible for their conduct. It does so by enacting a new Part IIAA to the Criminal Code.

The bill establishes a foundation upon which, over a proposed period of at least five years, the new general principles of criminal responsibility set by new Part IIAA will progressively be applied to all offences, eventually replacing existing Part II of the Criminal Code that currently sets out the general principles of criminal responsibility. Secondly, the bill provides for the existing manslaughter and dangerous act provisions to be repealed. They are to be replaced by a revised manslaughter offence and by offences of: recklessly endangering life; recklessly endangering serious harm, negligently causing serious harm, and dangerous driving causing death or serious harm. Significantly, the existing rape offence is also to be amended. Part IIAA of the new Criminal Responsibility Principles will be immediately applied to all of these offences.

This government has given extensive consideration as to whether existing Northern Territory laws which apply to acts of violence against a person are adequate and, in particular, whether those laws are consistent with criminal responsibility standards for that form of conduct in other jurisdictions.

Before I move to detail the contents of the bill, it is necessary to provide some history of the code provisions which are the subject of reform by this bill. The current Criminal Responsibility Provisions of the Northern Territory code differ from the other code states; that is, Queensland and Western Australia who utilise the Griffith code model, and Tasmania. The Northern Territory code was intended to be a unique code formulation; however, it is apparent that its authors drew upon provisions and concepts from other codes including the Griffiths code. It has been described as eclectic in the utilisation of earlier models, containing provisions which are quite individual - indeed, almost idiosyncratic. It is certainly all that and more.

As a result of the current formulation of Criminal Responsibility Provisions in Part 2 where the justice system under which offenders who have caused the death of another have not been held criminally responsible to the same degree as they would have been had they committed an identical act in another jurisdiction. That recognition is hardly new. As early as 1992 in the case of R v Hofschuster, Justice Mildren had this to say:

This would not be such an astonishing observation and circumstance if it was simply that dangerous act was another homicide offence that carried an equivalent degree of culpability for the conduct recognised by the same penalty. However, it most demonstrably is not. It is not part of the division of the code which deals with homicides, and the crime of dangerous act causing death carries only a 10-year maximum, with an increased maximum of 14 years where intoxication is applied as an aggravating factor.

The offence of manslaughter, on the other hand, carries a maximum penalty of life imprisonment. We are left with the result that the Northern Territory Criminal Code has failed to set the proper level of criminal responsibility for many acts that have resulted in the death of another person. A prime example is the case of Dooley v R, in which the killing in question, as observed in the Court of Criminal Appeal, involved a vicious beating of a victim in a vigilante fashion involving premeditation and planning. It was characterised as being within the worst category of offending in its kind. It is doubtful whether a revenge style vigilante killing would result in anything less than, at very least, a conviction of manslaughter in any other jurisdiction. Here in the Territory, it was dealt with as a dangerous act.

This is not a matter which we can remedy simply by increasing the penalty for dangerous act causing death. The dangerous act provision under section 154 of the code is, in itself, unique and has been the subject of much criticism. Section 154 is of remarkable width because it covers an infinite range of conduct ranging from, at one end of the scale, conduct which creates only limited potential danger to the health or safety of a member of the public, to the other end of the scale, conduct involving actual grave danger to the lives, health and safety of many including, as I have said, causing actual death. Again, there is nothing new in this observation. As far back as 1988, the Australian High Court in Baumer v R described section 154 as an:

It would scarcely be an appropriate legislative response to increase the maximum penalty to life imprisonment for an offence that also applies to conduct causing not actual, but only potential, harm.

Members may wonder at this point how such a situation can have arisen. How is it that manslaughter in the Territory does not appear to be the same crime as it is in other jurisdictions? It is the general criminal responsibility provisions of the code that brings this state of affairs about. In particular it is section 31, the key and general criminal responsibility provision of the criminal code that is of pivotal importance in understanding these problems. Amending the manslaughter provisions and repealing section 154, dangerous act, and replacing it with new offences would not be possible without addressing the problems created by section 31.

The former High Court Chief Justice has described this provision as astonishing in its application to manslaughter. Section 31 creates the peculiar result that an accused is excused from criminal responsibility for the death of a person unless he or she personally foresaw that death would result from his or her conduct. It therefore provides a subjective fault standard rather than an objective standard by which criminal responsibility is to be judged. Heavy intoxication is a prevalent element in violent conduct in the Northern Territory. Because of the subject fault requirement in section 31 it is extremely difficult to prove that a heavily intoxicated accused had personal foresight that the beating they were inflicting, or the stabbing that they were committing might result in death. In other jurisdictions conduct of this nature would fall within the category of manslaughter by negligence, and in the Territory, by default, this can amount only to a dangerous act.

Even more surprisingly, the history of section 154 makes it clear that it was actually intended to be used as a default provision for those crimes that section 31 precluded from conviction for manslaughter because of the circumstances of self induced heavy intoxication. It can be used in this way because section 31 does not apply to section 154. Section 154 has even been defended by some on the basis that without such a provision, violent conduct committed by intoxicated persons would go unpunished. In 1989, when the matter of Baumer was returned to the High Court, to the Court of Criminal Appeal, Nader J observed:
Section 154 was considered to be necessary because of the high incident of serious alcohol induced crime in the Territory. It was believed to be unacceptable that a citizen should be left legally unprotected form unprovoked violence where that violence was a consequence of alcohol which had obliterated the capacity of the perpetrator to know what he was doing, or its consequences. Section 154 was corollary to framing the Criminal Code as to accept the law as stated in R v O’Connor, rather than, for example, as stated in section 28 of the Queensland Criminal Code. Let me summarise what the court was saying in that case. Rather than addressing a fundamental flaw in the way in which the criminal responsibility provisions were set in the code to ensure that persons who had committed violent acts causing death could be properly prosecuted for manslaughter.

As in other code jurisdictions, the Northern Territory chose to stick with provisions of lower culpability specifically to apply to the drunken, violent offenders. That is the way the code stood in 1989, and how it still stands. This is not good enough. It is not good enough to be satisfied that a person can just be convicted for some offence, any old offence it seems, if that conduct was committed when if that conduct was committed elsewhere they would be made to bear full criminal responsibility and punishment for manslaughter. It has sent the wrong message about personal responsibility and alcohol. If you get drunk and commit a violet offence, you are not as responsible and get to be treated more leniently than a sober person committing the same offence.

Madam Speaker, the problem with section 31 is not limited to manslaughter. As we know, sexual violence is also a prevalent crime in the Northern Territory. Section 31 has a profoundly unsatisfactory affect when applied to the rape offence under section 192 of the code.

In its recent decision, in DPP v WJI, the High Court considered the effect of section 31 on section 192. It held that because of section 31, the fault relevant element for this offence is that the accused must intend the act of having sexual intercourse without consent. The result of this is that if an accused believes that the victim is consenting, even if that belief is an entirely unreasonable one, he cannot be held to have intended to have sexual intercourse without consent and must be acquitted. Further, if an accused does not turn his mind to the issue of consent, claiming, for example, that in his state of intoxication, he gave consent no thought at all, his conduct would again fail to satisfy the requisite fault element imposed by section 31. That is, the intention to have sexual intercourse without consent.

The effect of the WJI ruling is such that in a recent case before the Northern Territory Supreme Court, the jury was instructed in accordance with the decision of WJI that if they accepted that the accused had never given consent a thought, then they must acquit him. In the case in question, the accused had come upon a naked woman asleep in her bed. His argument was that he had had a few beers and thought that he would have sex with her and never gave any thought to whether she was consenting or might not be consenting. He was acquitted.

In his judgement in WJI, Justice Kirby noted that this view of the law had been acted upon in the Territory for some time. He commented upon the failure of the Northern Territory legislature to amend the Code and suggested that it is more reasonable than otherwise to infer that the approach of the Northern Territory courts to the operation of the NT Code was deemed acceptable to the legislature.

Madam Speaker, this is a fundamental flaw. There is no fallback offence provision here for the intoxicated accused. An accused in these circumstances must simply be acquitted. If our laws are to address the problems of intoxication and violent and sexual offending in any significant way, then we must at least start by ensuring that in the Northern Territory, we do not accept lower standards of criminal responsibility than other jurisdictions. It is for this reason that I propose this bill to give effect to fundamental reform in the Criminal Code.

As I have said, the bill proposes a new Part IIAA that provides the general principles of criminal responsibility. The Model Criminal Code Officers Committee established by the Standing Committee of Attorneys-General has produced nine chapters for a Model Criminal Code in work undertaken from over more than a decade. Part IIAA is based on Chapter 2 of the Model Criminal Code.

The Commonwealth has already used Chapter 2 as a basis for criminal responsibility provisions in the Commonwealth Criminal Code, which are now in force in the Territory in respect of the commission of federal offences it creates.

Establishing the general principles of criminal responsibility using the Model Code as the basis for our own Code seeks to create uniformity of standards in the criminal laws that apply in the Territory by aligning the criminal responsibility for Territory offences to that for federal offences.

It will not be possible to immediately apply the new criminal responsibility provisions to the whole of the Criminal Code. This is a significant and substantial reform process that we are embarking on. Each successive report of the Model Criminal Code Officers Committee has included detailed model legislation that is designed to operate with the general principles of criminal responsibility provided by Chapter 2. This bill commences a process by which parts of the Model Code will gradually be considered and new offences introduced to replace current offences under the Territory Code. Those offences will be rewritten to conform to the new general principles of criminal responsibility introduced to the Code by the current bill. Offences will need to be drafted according to the style of the Model Code so that the fault elements of the new part can be applied to them. This new style uses clear and precise language to make our criminal laws more readily understandable.

The Australian Capital Territory has embarked on a similar reform process, having already enacted Chapter 2 of the Model Code. The ACT is gradually enacting provisions to replace the common law and the Crimes Act in that jurisdiction, a process that they also estimate will take at least five years to complete.

New part IIAA of the Code inserted by this bill will immediately be applied to the offences either amended by or created by this bill that I will now describe in detail.

The bill repeals the existing manslaughter offence and replaces it with a crime of manslaughter, which provides that a person will be guilty of manslaughter if they engage in conduct that causes the death of another person and they are either reckless or negligent as to causing that death by their conduct.

New Part IIAA provides the detail of what is encompassed by the fault elements of recklessness and negligence for the purposes of the code. Negligence is not the civil standard with which members may be familiar but rather is a criminal standard drawn from the Victorian decision of R v Nydam (1977) VR 430.

The bill also amends section 192 of the code, sexual intercourse or gross indecency without consent, the offence more commonly referred to as rape. The amendment alters the fault element for the offence so that a person who has sexual intercourse with or commits an act of gross indecency on another person and who knows about or is reckless as to the lack of consent is guilty of a crime.

Once again, Part IIAA provides for definitions of what is encompassed by ‘knowledge’ or ‘recklessness’ for the purposes of this crime. A defence of mistake as to consent will still be available, however, unlike the present situation, such a mistake must be a reasonable one.

The bill proposes the repeal of section 154, dangerous acts or omissions. The conduct previously encompassed by section 154 will now be covered by manslaughter; reckless endangerment offences; negligent harm offence; and an offence of causing death or serious harm by dangerous driving. At present, that conduct is dealt with under the generality of section 154. It is appropriate that these forms of criminal conduct should be separately recognised and prosecuted as such.

The bill also provides for a list of aggravating circumstances for each of the endangerment offences to which an increased penalty applies. The new harm offences draw on the definition of ‘serious harm’ and ‘harm’ from the model code. The bill also replaces all current references to ‘grievous harm’ in the code and other legislation with a new definition of ‘serious harm’ and replaces all references to ‘bodily harm’ with a new definition of ‘harm’.

Each of the current harm standards are considered to have defects which make it preferable that they be immediately repealed and new harm standards applied. The definition of ‘grievous harm’ requires a physical or mental injury that either endangers life or causes or is likely to cause permanent injury to health. The latter requirement is problematic in that it is unlikely that cosmetic injuries, even extensive ones such as facial scarring or loss of an ear, would amount to a permanent injury to health unless accompanied by some lasting psychological consequence. The definition of ‘bodily harm’ is limited by the requirement that the harm be physical in nature. The consequence is curious in terms of establishing proper levels of criminal responsibility. An offender who causes psychiatric injury but no physical harm to a victim may be guilty of a grievous harm offence but not bodily harm. If a psychiatric injury is not permanent, then they will not be able to be convicted of either, and the offence would revert to a common assault.

The new definition of ‘harm’ removes these odd distinctions and provides that harm includes physical harm and harm to a person’s mental health. ‘Serious harm’ removes the requirement for permanency and replaces it with a requirement that the harm is or is likely to be significant and long-standing.

As I have said, the bill proposes a new offence of causing death or serious harm by driving a motor vehicle. The code has not previously provided for this offence because section 154 was intended to cover culpable driving offences. These offences had existed as statutory offences under the Criminal Law Consolidation Act prior to the introduction of the Criminal Code. Section 154 has caused difficulty here also, again particularly where alcohol is involved. Driving under the influence of alcohol or another drug may not in itself amount to a ‘dangerous act’, nor is driving at an excessive speed necessarily dangerous. This has led to an acquittal in a case where an intoxicated person drove at an excessive speed causing death (Volz v R (1990) 100 FLR 393 at 404).

The Northern Territory is the only jurisdiction that does not have a specific offence of causing death or serious harm by driving a motor vehicle. The bill proposes that such an offence be enacted. Persons who drive a vehicle under the influence of alcohol or a drug so as to be incapable of exercising proper control over a vehicle or who drive in a manner or at a speed dangerous to another person will be guilty of this crime. Dangerous driving causing death or serious harm will be an offence of strict liability. In other words, the prosecution will not be required to prove any fault elements - for example, recklessness - but must prove only the physical elements of the offence. However, the defence of mistake of fact remains available.

The creation of a specific offence of causing death or serious harm from driving a motor vehicle will not preclude, in proper cases, such cases being prosecuted as manslaughter. Under the present structure of the crime of manslaughter, such a prosecution was unlikely to be considered because the prosecution was required to prove that a defendant foresaw the victim’s death as a possible consequence of his or her conduct. Under the new manslaughter offence, if there is a level of recklessness or criminal negligence in the driving of a vehicle which is considered to be such that a higher degree of culpability should be considered, then a prosecution for manslaughter may be available.

Of the criminal justice reforms undertaken so far by this government, this will be of the most far reaching, and will be of enduring importance in ensuring that the standards of criminal responsibility in the Northern Territory are set at a proper level. It is high time we moved away from an acceptance that intoxication can excuse criminal behaviour; it may explain it, but it should never excuse it. Inadequate criminal responsibility provisions which have allowed for the situation to exist will no longer be tolerated.

The reform path that I have announced will be long and complex; however, at the end of the day, Territorians will have a Criminal Code which sets appropriate standards for criminality in our community.

Madam Speaker, that concludes my explanation of the bill, and I table the explanatory statement which accompanies the bill. I commend the bill to honourable members.

Debate adjourned.

 

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