Why the Queensland, Western Australian and Tasmanian Criminal Codes are anachronisms

Why the Queensland, Western Australian and Tasmanian Criminal Codes are anachronisms

This paper mounts three fundamental arguments as to why the Criminal Code 1899 (Qld), the Criminal Code 1913 (WA), and the Criminal Code 1924 (Tas) are anachronisms. For the purpose of this paper, these three Codes are collectively described as the Griffith Codes. The Criminal Code 1899 (Qld), as the original Griffith Code, is the primary vehicle of analysis, with attention focused on the main criminal responsibility section, s 23, which deals with voluntariness and the 'reasonably foreseeable consequence' test (previously accident). The first argument underlines that s 23 was drafted before the House of Lords decision in Woolmington v DPP. When Sir Samuel Griffith designed s 23, the law was as stated in Foster's Crown Law (1762), which meant that the legal onus was on the defence to prove accident. The second argument is that the Griffith Codes suffer the fatal flaw recognised by Dixon CJ in Vallance v The Queen that the central criminal responsibility section is expressed in general but negative terms and often has little or nothing to say as to the elements of offences. The third argument turns on the sub silentio underlying fault element in the Griffith Codes being negligence, as the Codes do not recognise recklessness or knowledge as a fault element. By contrast, the Criminal Code 1995 (Cth), which is based on the Model Criminal Code, explicitly adopts recklessness as the underlying and default fault element in the absence of a legislative intention to the contrary, and in addition sets up a regime where no fault elements are required for specified offences if the legislature so decrees. This is more than a difference in drafting convention and goes to the heart of what is meant by a Criminal Code. The contention is made that put together these three arguments present on overwhelming case for a root and branch reform of the Griffith Codes and the abandonment of s 23 altogether (s 13(1) in the Criminal Code 1924 (Tas)).

The goal of the paper is therefore not doctrinal, but leads to a recommendation for a major overhaul by bringing the Griffith Codes in line with the Criminal Code 1995 (Cth). The challenges would be to re-educate a legal profession steeped in the Griffith tradition, and to manage the period of transition, although guidance could be taken from the Australian Capital Territory and the Northern Territory who have already taken the decision to adopt Criminal Code 1995 (Cth).

The pragmatic or realistic reader may object that if the judiciary and legislatures in Queensland, Western Australia and Tasmania have ironed out the inadequacies in their respective Codes, then why do the arguments mounted in this paper matter? The answer to this important question has multiple facets. At one level it can be argued that Australia should, like Canada, have a single Criminal Code which should be infused with the developments in criminal law theory post the 19th century, as represented by the U.S. Model Penal Code and the Model Criminal Code. At another level, 'the ironing out' of the inadequacies of the Griffith Codes is illusory, because every example of judicial inventiveness or legislative inertia weakens the foundation of the Code until it is overrun with judicial interpretation and the 'wilderness of single instances'.

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