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| Dr TOYNE (Justice and Attorney-General): Madam Speaker, I move that the bill be now read a second time. The purpose of this bill is to provide a minor amendment to the Criminal Code Amendment (Criminal Responsibility Reform) Act 2005 and to the Criminal Code. The Criminal Code Amendment (Criminal Responsibility Reform) Act 2005 reformed the Criminal Code by enacting new general principles upon which persons may be held criminally responsible for their conduct. It then applies those new principles to offences that are introduced or replaced by that act. The government is in the process of continuing this reform. The stakeholders have been recently consulted on the potential next stage of revision. In the meantime, it is appropriate to commence the law of manslaughter, dangerous act and dangerous driving offences contained in the Criminal Code Amendment (Criminal Responsibility Reform) Act 2005 that remedy some serious defects in the Criminal Code. To commence this act, a technical amendment is required to the Criminal Code Amendment (Criminal Responsibility Reform) Act 2005. The crime of manslaughter is of two kinds; voluntary and involuntary manslaughter. A person may be found guilty of voluntary manslaughter where there is a defence of provocation, diminished responsibility or coercion and reduce the culpability of the crime from murder to manslaughter. The term ‘involuntary manslaughter’ is used to describe the other forms of manslaughter that exist at common law or under the codes that do not involve an intention to kill but some lesser fault element such as criminal negligence. Section 167 of the Criminal Code was to be repealed by section 11 of the Reform Act. Section 167 provides simply that any person who commits the crime of manslaughter is liable to imprisonment for life. It therefore has application as a penalty provision for both forms of manslaughter. New section 163, enacted by section 10 of the Reform Act, provides for the new offences of involuntary manslaughter, filling a gap within that crime under the current code provisions. It likewise applies a maximum penalty of life imprisonment for those offences. However, to preserve the penalty for voluntary manslaughter, this bill repeals section 11 of the Criminal Code amendment, Criminal Responsibility Reform Act 2005, effectively reinstating a single provision that applies the penalty to both forms of the crime of manslaughter to avoid any confusion that might otherwise arise. Madam Speaker, there are often minor structural challenges encountered to take in a reform of an extensive statute such as the Criminal Code Act, particularly where the legislation is divided into parts and divisions, and where a different style of language is used in the old provisions than in the new provisions. Some provisions that will ultimately be placed in the act so as to have general application will presently need to be replicated to individual provisions so as to ensure their application. This bill therefore replicates into the new manslaughter offence, the test of causal responsibility that also appears at section 174A and which, in due course, will be applied across the relevant offences in the code as a whole. In addition, the bill will amend section 37 of the Criminal Code which deals with the defence of diminished responsibility. Diminished responsibility is a statutory defence that does not exist in all jurisdictions. It is currently the law of the Northern Territory, and there is a matter in relation to the defence that requires correction. Madam Speaker, some years ago we moved from the Criminal Code the defence of insanity, and replaced that defence with the defence of mental impairment based on the model Criminal Code. In the process, section 6 of the Criminal Code that presumed normality of mind was repealed and a new section 43D was enacted to provide for a presumption of competence, and for the burden of proof to lie on the person raising the defence. In a recent trial, the court held that the effective repeal in section 6 in relation to the defence of diminished responsibility was that the Crown now bore the onus of disproving diminished responsibility beyond a reasonable doubt. In the case in question, the prosecution was able to discharge this onus. However, this bill clarifies that the presumption is that an accused mind is normal and, as a consequence, reinstates the burden of proof of abnormality on the accused. Madam Speaker, I commend the bill to honourable members and table a copy of the explanatory statement. Debate adjourned. |