Project No. 97
The starting point when considering the law of homicide is s 268 of the Criminal Code 1913 (WA) which provides: 'It is unlawful to kill any person unless such killing is authorized or justified or excused by law.' According to s 270 of the Code, '[a]ny person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person'. The question who can be unlawfully killed is complex and depends on statutory definitions of when human life begins and when it ends.
Terms of Reference
The Law Reform Commission of Western Australia (the Commission) is a government agency responsible to the Attorney General. It reviews areas of law in need of reform and makes recommendations as to how the law should be changed. On 26 April 2005 the Commission received a reference from the Attorney General to examine and report upon the law of homicide and to give consideration to:
- the distinction between wilful murder and murder;
- the defences to homicide, including self-defence and provocation;
- current penalty provisions relating to the law of homicide; and
- any related matter.
The Commission was also asked to report upon the adequacy of the existing laws in Western Australia in relation to homicide and to recommend desirable changes to the existing laws, practices and procedures.
The Criminal Law Amendment (Homicide) Bill 2008 was introduced into the Legislative Assembly on 19 March 2008. The bill seeks to implement many of the Commission’s recommendations including-
- repealing the offence of wilful murder and creating a new offence of murder (recommendations 6-7);
- amending the mental element of murder so that an intention to cause a bodily injury of such a nature as to cause or be likely to cause permanent injury to health is not sufficient to establish the mental element of murder (recommendation 4);
- repealing unnecessary categories of felony-murder (recommendation 5);
- abolishing mandatory life imprisonment for murder (recommendation 43);
- abolishing the sentence of strict security life imprisonment and providing a broader range of minimum terms if life imprisonment is imposed for murder (recommendation 43-44) (The Commission recommended that the minimum term for life imprisonment for murder should range from 10–30 years (unless a whole-of-life term was required); however, the bill does not provide for a maximum limit);
- proving additional statutory alternative offences for manslaughter (recommendation 8);
- implementing in part, the Commission’s recommendations in relation to the penalty for dangerous driving causing death and dangerous driving causing grievous bodily harm (recommendation 15-17);
- repealing the offence of infanticide (recommendation 13);
- creating a new offence to deal with, among other things, dangerous navigation of vessels (recommendation 18). (The bill provides for an offence of culpable driving which deals with any conveyance other than a motor vehicle);
- repealing the defence of provocation (recommendation 29);
- separating section 23 of the Code into three sections consisting of: intention and motive; unwilled conduct; and accident, and incorporating the egg-shell skull rule into the defence of accident (recommendations 19-21);
- simplifying and clarifying the defence of self-defence (recommendation 23);
- expressly providing that there does not need to be an immediate threat of harm to rely on self-defence (recommendation 22) (The provisions of the bill are similar although not identical to the Commission’s recommendations in relation to self-defence);
- repealing s 31(3) of the Code (recommendation 24);
- introducing the partial defence of excessive self-defence (recommendation 26);
- providing that, for the defence against home invasion, force intended or likely to cause death or grievous bodily harm cannot be used to defend property only (recommendation 25);
- extending and clarifying the defence of duress (recommendation 27); and
- clarifying the defence of extraordinary emergency (recommendation 28).
The bill also requires that the minister review the operation and effectiveness of these amendments as soon as practicable, five years after their implementation (recommendation 2).
The government has also indicated that it will carry out the reviews and inquiries into sections 59 and 59B of the Road Traffic Act 1974 (WA), and into the law’s response to euthanasia and suicide pacts as recommended by the Commission (recommendations 1 &14).
The bill also introduces a ‘one-punch’ homicide offence of ‘unlawful assault causing death’. This new offence did not form part of the Commission’s recommendations.
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