Impermissibly importing the common law into Criminal Codes: Pollock v The Queen

Impermissibly importing the common law into Criminal Codes: Pollock v The Queen

In the recent case of Pollock v The Queen, the High Court stated that: 'In interpreting the language of s 304 [of the Criminal Code 1899 (Qld) which deals with the partial defence to murder of provocation] it is permissible to have regard to decisions expounding the concept of ''sudden provocation'' subsequent to the Code's enactment.' This paper takes issue with the purported 'permissibility' of importing into a section originally drafted in 1897 and which reflected the law as expressed by Chief Justice Tindal in the 1833 case of R v Hayward, the current common law test for provocation in Australia as per Stingel v The Queen and Masciantonio v The Queen. The basis for this attack on the High Court's jurisprudence on Code interpretation is both specific and general. Specifically, this paper argues that the High Court impermissibly imported the current common law test for provocation into s304 in a strained manner by relying on a contrived reading of the phrase 'and before there is time for the person's passion to cool', whilst simultaneously ignoring the use of 'the person' not 'an ordinary person', in s304. More generally, it is respectfully argued that the High Court has broken the golden rule of code interpretation of not looking outside of the code to the common law unless the meaning is either unclear or has a prior technical meaning. The wider implication of such an approach is that the courts are infusing the common law into Criminal Codes despite the stated intention of codification being the replacement of 'all existing law and becomes the sole source of the law on the particular topic'. The relevance of a case study such as Pollock lies in highlighting the dangers to the internal consistency of codes, in the absence of legislative reform, flowing from judicial attempts to interpret a single section of a code in line with modern sensibilities. Furthermore, the case study draws attention to the opposite positions taken by the judiciary of Queensland and Western Australia in reading the definition of provocation for assault into the respective sections dealing with provocation and murder in the two Griffith Codes. This goes to the heart of Code interpretation and is testimony to the strength of precedent and 'settled' law, with the Queensland Government ignoring the opportunity to specifically insert an objective test into s304 when it amended the section in 2011.
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