LEGISLATION AND POLICY BRANCH

Memorandum of Compatibility

CRIMES (MURDER) AMENDMENT BILL 2008

This memorandum advises on the compatibility of the Crimes (Murder) Amendment Bill 2008 (the Bill) with the Human Rights Act 2004 (the HRA).

Overview

1.	The Bill amends section 12 of the Crimes Act 1900 to add a new fault element, or mens rea, to the offence of murder.

2.	The effect of the amendment is that if, in a criminal prosecution, the prosecution can prove beyond reasonable doubt that a person caused the death of another, and at the time they caused that death, they intended to cause serious harm, they will be guilty of murder.

3.	The term ‘serious harm’ is defined in the Bill to mean the definition of ‘serious harm’ in the dictionary to the Criminal Code 2002. ‘Serious harm’ is defined in the Criminal Code to mean “any harm (including the cumulative effect of more than one harm) that:  (a) endangers, or is likely to endanger, human life; or (b) is, or is likely to be, significant and longstanding.

4.	The Code definition of ‘serious harm’ sets a higher threshold than the equivalent common law concept of ‘grievous bodily harm’.  At common law, grievous bodily harm can be any harm which is “really serious harm”, or harm which “is of a serious character”: DPP v Smith [1961] AC 290; R v Saunders [1985] Crim LR 230 (CA). The Courts have been reluctant to define the term in any greater detail, and leave it to the jury to determine whether a given injury constitutes harm of ‘a really serious character’. At common law, for an injury to constitute ‘really serious harm’, it need not be permanent or longstanding.  For this reason, if a person intentionally broke another person’s arm, and death ensued from unforeseen or unanticipated medical complications, the person might be guilty of murder: R v Cunningham [1982] AC 566, 582 per Edmund-Davies LJ.  

5.	The inclusion of the adjectives ‘substantial’ and ‘longstanding’ in the Code definition of serious harm are significant, and as is indicated by the Explanatory Statement to the Bill, should provide greater certainty than the common law as to what type of injuries constitute serious harm. This should prevent people from being convicted of murder when the injury they intend to cause is not particularly serious.

Human Rights Implications

6.	The only right that it arguably engaged is the right to be free from arbitrary detention in section 18(1) of the HRA.

The right to be free from arbitrary arrest and detention

7.	Section 18(1) of the HRA provides that:

	(1)	Everyone has the right to liberty and security of person.  In particular, no-one may be arbitrarily arrested or detained.

8.	Section 30(1) of the HRA provides that international law, and the judgments of foreign and international tribunals, may be considered when working out the nature and extent of a right in the HRA.  For the purpose of this memorandum, jurisprudence will be referred to from the European Court of Human Rights, the Canadian Supreme Court, the Privy Council, the House of Lords, the Hong Kong Court of Final Appeal, and the commentary of the United Nations Human Rights Committee.

The concept of arbitrariness
9.	Key to section 18(1) of the HRA is the concept of arbitrariness.  In Hugo Van Alphen v The Netherlands (Communication No. 305/1988, 15 August 1990), the United Nations Human Rights Committee held that ‘arbitrariness’ is not to be equated with ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability. 

10.	In Fok Lai Ying v Governor in Council (1997) 7 HKPLR 327, Cooke LJ, sitting on the Privy Council, considered the meaning of ‘arbitrary’ in the context of the right to privacy.  He approved of the Human Rights Committee’s interpretation of “arbitrariness” in Hugo Van Alphen, and added that:

…The introduction of the concept of arbitrariness is intended to guarantee that every interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances.

11.	In  Neilsen v Attorney-General [2001] 3 NZLR 433, Richardson P of the New Zealand Court of Appeal considered the meaning of ‘arbitrariness’ in relation to section 22 of the New Zealand Bill of Rights Act 1990 (NZ), which is expressed in similar terms to section 18 of the HRA.  His honour opined that “[a]n arrest or detention is arbitrary if it is capricious, unreasoned, without reasonable cause: if it is made without reference to an adequate determining principle or without following proper procedure”.

12.	The test as set out by Richardon P as not inconsistent or divergent with the comments of the United Nations Human Rights committee in Hugo Van Alphen.  Rather, his honor’s comments  expand upon some of the factors which would make an intrusion on a right inappropriate or unjust, and hence arbitrary.

13.	For the purpose of this Bill, the ultimate question is whether or not a mens rea of intention to cause serious harm for murder involves elements of ‘inappropriateness’ or ‘injustice’, therefore making it an arbitrary limitation of the right contained in section 18(1) of the HRA.  

Does section 18(1) require an examination of substantive provisions of the criminal law?
14.	As a preliminary question, it is necessary to establish whether the rights contained in section 18(1) afford procedural or substantive protections.  The European Court of Human Rights has held that, as a general rule, procedural safeguards only affect the way in which an offence can be proved, and do not entitle the courts to scrutinise the mens rea (or lack thereof) that a parliament attaches to an offence.  In the context of the procedural fair trial rights guaranteed in Article 6(2) of the European Convention on Human Rights, the European Court of Human Rights has held in Salabiaku v France [1988] 13 EHRR 379 that:

in principle the Contracting States remain free to apply the criminal law to an act where it is not carried out in the normal exercise of one of the rights protected under the Convention, and accordingly, to define the constituent elements in the resulting offence. In particular, and again in principle, the Contracting States may, under certain conditions, penalise a simple or objective fact as such, irrespective of whether it results from criminal intent or from negligence.

15.	 The British High Court has reached a similar conclusion in a number of cases: Barnfather v London Borough of Islington Education Authority [2003] EWHC 418; Re Daniel [2002] EWCA Crim. 959.

16.	It is considered that section 18(1) provides a substantive protection, and will be engaged where criminal liability may be found to exist, and a person may lose their liberty as a consequence, in circumstances which involve elements of inappropriateness or injustice.  It should be noted that the UN Human Rights Committee has advised that Article 9 of the International Covenant on Civil and Political Rights (ICCPR), on which section 18(1) of the HRA is based and to which it is identical to, is “applicable to all deprivations of liberty whether in criminal cases or other cases”: Shafiq v Australia (Communication No. 1324/2004, 13 November 2006). As such, it applies to imprisonment for criminal offences.  In determining whether an order of imprisonment is arbitrary, it will, as a matter of common sense, be necessary to examine the circumstances giving rise to it; a person may be treated in accordance with the highest standards of humanity whilst imprisoned, but if the reasons for their imprisonment are plainly unfair or unjust, then the person’s imprisonment could nonetheless be fairly described as involving elements of inappropriateness or injustice, and therefore arbitrary.

17.	This conclusion is supported by the decision of the Hong Kong Court of Final Appeal in Lau Cheong v HKSAR [2002] 2 HKLRD 612.  In that case, the Court considered whether Article 28 of the Hong Kong Basic Law, which provides that no one will be subject to arbitrary arrest detention or imprisonment, allows for the courts to examine the elements of an offence leading to that imprisonment.  The Court concluded that:

Article 28 prohibits not merely “unlawful” imprisonment but “arbitrary or unlawful” imprisonment.  It envisages that a term of imprisonment lawfully ordered may nonetheless be “arbitrary”.  It follows that such arbitrariness may reside in the substantive rules of criminal liability whose breach led to the imprisonment ordered.

Does a mens rea of intention to cause serious harm for murder violate the fundamental principles of justice?

Canadian jurisprudence
18.	In R v Martineau [1990] 2 S.C.R. 633, the Canadian Supreme Court considered whether a provision of the Canadian Criminal Code which gave statutory effect to what is commonly known as the ‘felony murder’ or ‘constructive murder’ rule was compatible with section 7 of the Canadian Charter of Rights and Freedoms.  Section 7 of the Charter prohibits, inter alia, the imprisonment of people other than in accordance with the ‘fundamental principles of justice’.  In that case the Court concluded that “it is a fundamental principle of justice that a conviction for murder cannot rest on anything less than proof beyond reasonable doubt of a subjective foresight of death.”  In reaching that conclusion, the Court reasoned that:

A conviction for murder carries with it the most severe stigma and punishment of any crime in our society.  The principles of fundamental justice require, because of the special nature of the stigma attached to a conviction for murder, and the available penalties, a mens rea reflecting the particular nature of that crime.

19.	The Court continued that:

The rationale underlying the principle that subjective foresight of death is required before a person is labelled and punished as a murderer is linked to the more general principle that criminal liability for a particular result is not justified except where the actor possesses a culpable mental state in respect of that result:  see R. v. Bernard [1988] 2 S.C.R. 833, per McIntyre J., and R. v. Buzzanga and Durocher, (1979), 49 C.C.C. (2d) 369 (Ont. C.A.), per Martin J.A.  In my view, in a free and democratic society that values the autonomy and free will of the individual, the stigma and punishment attaching to the most serious of crimes, murder, should be reserved for those who choose to intentionally cause death or who choose to inflict bodily harm that they know is likely to cause death.  The essential role of requiring subjective foresight of death in the context of murder is to maintain a proportionality between the stigma and punishment attached to a murder conviction and the moral blameworthiness of the offender.  Murder has long been recognized as the "worst" and most heinous of peace time crimes.  It is, therefore, essential that to satisfy the principles of fundamental justice, the stigma and punishment attaching to a murder conviction must be reserved for those who either intend to cause death or who intend to cause bodily harm that they know will likely cause death.  

20.	Taking these comments on face value, it could be argued that the Bill violates the fundamental principles of justice as a person who causes death whilst intending to cause serious harm may be found guilty of murder even though they may not subjectively foresee the likelihood of death of the victim.  Although this argument may have some force, it is important to read this case in light of the Court’s other jurisprudence on the offence of murder, and the differences in the available penalties for murder in Canada and the ACT.

21.	As the Court made clear in Martineau, the principles of fundamental justice require subjective foresight as to the likelihood of death as the minimum mens rea for murder because of the stigma which attaches to the offence, and the available penalty.  As the Court noted in R v Vaillancourt [1987] 2 S.C.R. 636, “[t]he punishment for murder is the most severe in our society and the stigma that attaches to a conviction is similarly extreme.” 

22.	In Canada, murder is punishable by a mandatory sentence of life imprisonment: section 235(1), Canadian Criminal Code.  By contrast, ACT sentencing law is not as ‘extreme’, and provides that life imprisonment is the maximum sentence for murder, but it is not mandatory, and the sentencing judge may craft a sentence based on the unique facts of the case and the offender’s level of culpability and moral blameworthiness: sections 32 and 33, Crimes (Sentencing) Act 2005. 

23.	It is clear from Vaillancourt and Martineau that the stigma alone flowing from a conviction for murder did not require the high level of mens rea ― the ‘extreme’ penalty of a mandatory life sentence was also an important factor. It is noted, however, that in R v Logan [1990] 2 S.C.R. 731, the Court did emphasise that the social stigmatization flowing from an offence is to be a prominent consideration in deciding whether an offence contravenes the fundamental principles of justice.  That said, there is nothing in any of these judgments which suggests that the prejudice flowing from the stigmatisation of a conviction is, taken by itself, a sufficient basis to find that a mens rea of intention to cause grievous bodily harm for murder violates the fundamental principles of justice.

24.	It is asserted that had the offence of murder under Canadian law also allowed for discretionary sentencing, it would be consistent with the Court’s rationale to hypothesise that it may have arrived at a different conclusion, recognising that such a sentencing discretion would adequately take account of differences in culpability and moral blameworthiness. This is an important distinction, and means that that the Canadian jurisprudence is not directly applicable and apposite for the purpose of determining whether the mens rea in this Bill can give rise to arbitrary detention.

25.	In the interests of completeness, it is useful to refer to the vigorous dissent of L’Heureux-Dube J in Martineau.  In his judgment, his honor undertook a comprehensive survey of the offence of murder in statute and common law in the United States and a number of other common law jurisdictions, all of which provide for the felony murder rule and then an intent to cause grievous bodily harm as a head of mens rea for the offence.  His honor found that “no other common law jurisdiction has found that fundamental justice is offended by something less than an exclusive subjective foresight standard for the crime of murder.”

Hong Kong jurisprudence
26.	In Lau Cheong v HKSAR [2002] 2 HKLRD 612, the Hong Kong Court of Final Appeal considered the very question at issue here: does the offence of murder under Hong Kong law, which allows for a conviction upon proof of an intention to cause grievous bodily harm, offend against Article 5(1) of the Bill of Rights (HK), and Article 28 of the Hong Kong  Basic Law, both of which prohibit arbitrary detention.  The Court held that it clearly did not.

27.	It is instructive to note that Article 5(1) of the Bill of Rights (HK) is based on Article 9 of the ICCPR, and is expressed in substantially similar terms to section 18(1) of the HRA.

28.	In reaching it’s conclusion, the Court surveyed the mens rea for murder in other jurisdictions, principally in Britain and Canada.  It noted the comments made by Edmund-Davies LJ in R v Cunningham [1982] AC 566, where his Lordship observed that there are forceful arguments both for and against retaining an intention to cause grievous bodily harm as a head of mens rea for murder.  His Lordship acknowledged the force of the view that:

The outcome of intentionally inflicting serious harm can be so unpredictable that anyone prepared to act so wickedly has little ground for complaint if, when death results, he is convicted and punished as severely as one who intends to kill.

29.	Cunningham Edmund-Davies LJ went on to acknowledge that the question of whether the offence of murder should include a mens rea of intent to inflict grievous bodily harm is an argument:

of the greatest public consequence, particularly in these turbulent days when, as the Lord Chancellor has vividly reminded us, violent crimes have become common place. Resolution of that conflict cannot, in my judgment, be a matter for your Lordships’ House alone.  It is a task for none other than Parliament, as the constitutional organ best fitted to weigh the relevant and opposing factors.

30.	In Lau Cheong, the Court of Final Appeal also distinguished between the jurisprudence of the Canadian Supreme Court in Vaillancourt and Martineau and the case at bar, and found that the Canadian jurisprudence was not applicable:

The Canadian Supreme Court was examining the constitutional validity of the specific provisions of sections 212 and 213 of the Criminal Code. As Lamer J had indicated in R v Vaillancourt, these sections set out "an interesting progression" of required mental states ranging from an intention to kill down to liability that was constructive and virtually absolute. When Lamer CJC in R v Martineau concluded that the principles of fundamental justice required the offence of murder to be "reserved for those who choose to intentionally cause death or who choose to inflict bodily harm that they know is likely to cause death", he was echoing the language of the Code and drawing a line which affirmed the constitutionality of ss 212(a)(i) and (ii) as well as that part of s 212(c) which imposed liability on a subjective basis (see Lamer CJC at 362-363). Drawing the line at that point invalidated or at least cast doubt on the constitutionality of the other, less stringent mental requirements provided for by s 212(c) and 213.
… An intention to cause grievous bodily harm does not feature as a category of mens rea in sections 212 or 213 and the Canadian cases provide no basis for postulating that if, hypothetically, the grievous bodily harm rule had represented a point on the progression, it would have been considered unconstitutional. It is therefore incorrect to conclude that on the reasoning of these cases, the grievous bodily harm rule offends any principles of fundamental justice.

31.	In ultimately concluding that intention to cause grievous bodily harm as a head of mens rea for murder was not arbitrary, the Court of Final Appeal reasoned that:

A person convicted of murder under the rule is one who acts with the intention of causing someone really serious bodily harm and whose actions in the event cause another's death. A person who takes another's life in such circumstances brings to realisation the risk which is necessarily inherent in his conduct. In our view, there is nothing capricious or unreasonable in classing such conduct as murder as a matter of legal policy. A person may not subjectively intend or even foresee that he will cause death. He may desire to limit the consequences of his actions to the infliction of grievous bodily injury. However, as a matter of commonsense it is impossible to predict that the consequences of an intentional infliction of really serious bodily harm will necessarily be successfully limited and will not prove to be life-threatening.

Conclusion

32.	It is asserted that it cannot be said that a mens rea for murder of intent to cause grievous bodily harm breaches the fundamental principles of justice, and cannot be said to involve elements of inappropriateness or injustice.  This is supported by the relevant jurisprudence referred to above.

33.	Whilst it is accepted that each unlawful killing will turn on its own facts and will occur in unique circumstances, and that different offenders can therefore be described as having acted with differing levels of culpability or blameworthiness, there is nothing fundamentally unjust in deeming a person who kills another person after having acted with an intention to cause serious harm to be a murderer and punishing them as such.  To the extent that unique cases arise where a person may commit the offence in such circumstances as to suggest that they are not particularly blameworthy and a significant sentence of imprisonment would be unfair, the wide sentencing discretion afforded to the ACT Supreme Court will allow the offender’s level of culpability to be reflected through a more lenient sentence.

34.	It is also noted that all Australian jurisdictions, and a number of common law countries including Britain, Scotland, New Zealand, the United States and Hong Kong (which has a separate legal system to China), all of which pride themselves on having civilized and progressive justice systems, continue to define murder to include a mens rea of intention to cause grievous bodily harm.  As such, it is difficult to conclude that such a mens rea is inappropriate or unjust.

35.	Further support for the position is provided by the comments of Edmund-Davies LJ in Cunningham where he observed that such issues are ultimately best left to be decided by the legislature.  Numerous law reform bodies have made recommendations to the parliaments of the countries referred to above, and all of those parliaments have decided not to remove intent to cause grievous bodily harm as a head of mens rea for murder on the grounds that it is unfair or unjust on criminal defendants.

36.	On the basis of the discussion a finding that section 12 of the Crimes Act 1900 as would be amended by the Bill does not give rise to arbitrary detention (imprisonment) in contravention of section 18(1) of the HRA. Accordingly,  the conclusion is that the Bill is compatible with the HRA.