Analysis of Criminal Law Amendments

Running head: CRIMINAL LAW
CRIMINAL LAW
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CRIMINAL LAW
Clause 3:
As per the latest Criminal Code and Other Legislation Amendment Bill 2019 hereinafter
referred to as “CCOLA Bill”, Clause 3 widens the definition of murder where it includes that if
death is caused by an act or its omission without considering recklessness to human life12. It is
doubtful whether it will be successful to achieve its purpose as the society is yet to accept it
because of its complexity.
The amended provision has attempted to widen the scope of the murder’s definition.
However it is worth mentioning that this amendment is not recommended by the Queensland
Sentencing Advisory Council3. As the QSAC have not recommended the widening of the
definition and as there is complexity of the application, there is a need of review of this.
The present view is that intention and recklessness have different meaning and hence
should not be considered to be equivalent. There can be reckless killing which can be morally
blameworthy as intentional killing. As per decision of High Court in R v Crabbe (1985) 58 ALR
417, it is held that an individual’s conduct who does an act having known that it may result into
death or grievous bodily harm as probable effect can be naturally considered to be blameworthy
in the same way as the conduct of the one who does an act with an intention to kill or to cause
grievous bodily harm4. The main difficulty is to draw the thin line between the two. In the
common law system, it is not admissible as recklessness to grievous bodily harm is a part of
murder definition. It means that a person could be convicted of murder, not manslaughter even if
he does not have intention to do it if it is foreseeable that grievous bodily hurt, not death is a
1 Legislation.Qld.Gov.Au (Webpage, 2019) <https://www.legislation.qld.gov.au/view/pdf/bill.first.exp/bill-2018-
101>.
2 Criminal Code and Other Legislation Amendment Bill 2019, clause 3.
3 "Queensland Sentencing Advisory Council", Sentencingcouncil.Qld.Gov.Au (Webpage, 2019)
<https://www.sentencingcouncil.qld.gov.au/>.
4 R v Crabbe (1985) 58 ALR 417.

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CRIMINAL LAW
probable result of the act. The effect of this amendment is to give mandatory life sentence in
cases of reckless killing.
In 1991, it was recommended by Victoria Law Reform Commission that recklessness is
an element of murder5. This recommendation was made in relation to their other
recommendations that grievous bodily harm is not a part of murder at all and recklessness as to
grievous bodily harm must not be included in the definition of murder. In this regard, it has to be
considered that whether there is a need to rename murder with intent to commit grievous bodily
harm (section 302(1) (a) of the Criminal Code) and felony murder under section 302(1)(b) of the
Criminal Code6.
The potential problems that may arise in the proposed reform of widening the murder
definition are lack of need, overlapping with manslaughter and complicated legal and trial
concepts.
It is not clear to what extent the provisions of present murder or manslaughter fail to
satisfy the objectives of the criminal law. It can be assumed that this proposal of amendment is
an answer to the community expectations regarding child homicide. But it is also given that
manslaughter has the maximum penalty for life imprisonment which is not cogent. Moreover,
several cases of recklessness already come under the murder elements by incorporating the
intention to commit grievous bodily hurt under the sub section 302(1)(a) of the Criminal Code7.
As stated by the Law Reform Commission of Western Australia, the risk awareness does not
5 "Victorian Law Reform Commission", Lawreform.Vic.Gov.Au (Webpage, 2019)
<https://www.lawreform.vic.gov.au/>.
6 "Criminal Code Act 1995", Legislation.Gov.Au (Webpage, 2019)
<https://www.legislation.gov.au/Details/C2017C00235>.
7 The Criminal Code, ss 302(1)(a).

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capture the unintentional killings necessarily that can be compared to intentional killings8.
Moreover, maximum sentence of lifetime imprisonment is available, when needed, for absolutely
depraved crime of manslaughter.
There lies no appropriate ‘bright line test’ to differentiate between depraved recklessness
and ordinary manslaughter. It is again not clear which category of recklessness will account for
murder versus a charge for manslaughter and how such assessment is to be made. The basic
assumption is that recklessness for murder has been reserved for the cases of worst category
where there lies evidence of death of high probability. The knowledge of risk and its assessment
is a very critical subject that has to be reserved to establish recklessness versus intention. In this
regard it has to be borne in mind that foresight and awareness of a consequence do not equate to
intention or recklessness. In this regard, the example of Jehovah’s Witness can be referred where
the parents refuse the blood transfusion for their child in spite of the advice of the doctor that
clearly mentioned that such treatment if not done may cause death to their child.
Again, in a reckless charge of murder, subjective awareness of the death risk must be
considered by the jury whereas in case of reckless manslaughter such assessment is not
subjective but objective, such that what can be foreseen by a reasonable person. This necessarily
includes a consideration of the degree of death risk or extent of the knowledge of the accused
that grievous bodily harm or death is a probable result. This is observed by the High Court in the
case of Crabbe.
8 "Law Reform Commission Of Western Australia", Lrc.Justice.Wa.Gov.Au (Webpage, 2019)
<https://www.lrc.justice.wa.gov.au/>.