Wilful Murderers in Western Australia

Western Australia, Parliamentary Debates, Legislative Assembly, 10 September 2003, 10946–10960.

An issues paper was published in May 2006 seeking submissions on a variety of questions about the need to reform WA's homicide laws. Law Reform Commission of Western Australia (WALRC), A Review of the Law of Homicide: An Issues Paper (2005).

See, eg, Morgan I , ‘Sentences for Wilful Murder and Murder’ (1996) 26 University of Western Australia Law Review 207, 213.

See, eg, McGinty Jim , Attorney-General, ‘State's Murder Laws to Go on Trial’ (Press Release, 4 May 2005).

It includes bodily injury which endangers or is likely to endanger life or which causes or is likely to cause permanent injury to health, see s 1 Criminal Code (WA).

United Kingdom, Law Commission, A New Homicide Act for England and Wales? A Consultation Paper, Consultation Paper No 177 (2006), para 3.8.

WALRC, above n 2, 2.

Ibid 2–3.

Such an offence was considered by the English Criminal Law Revision Committee, Working Paper on Offences Against the Person (1976), Report 14, paras 79–87.

Such an offence exists in the German Criminal Code § 216. It applies where a person kills another at their express and earnest request and carries a maximum sentence of five years.

WALRC, above n 2, 8.

Ireland, Law Reform Commission, Homicide: The Mental Element in Murder, Consultation Paper LRC CP17 (2001) 4.083.

The Law Reform Commission of Victoria noted that experienced practitioners made submissions to the effect that juries were generally reluctant to convict for murder under this rule, Law Reform Commission of Victoria, Homicide, Report No 40 (1990–1991), 131; see also Goff Lord , The Mental Element in the Crime of Murder' (1988) 104 Law Quarterly Review 30, 48–9.

McGinty argued in his Second Reading of the Criminal Code Amendment Bill 2003 that removing the distinction would follow the lead taken in other States, WA Parliamentary Debates (Legislative Assembly) 10 September 2006. The Queensland Criminal Code, the closest to the WA Criminal Code, abolished this distinction in 1974.

UK Law Commission, above n 6, para 2.2.

Fisse B , Howard's Criminal Law (5th ed, 1990) 71.

See, eg, Model Criminal Code Officers Committee, ‘Chapter 5: Fatal Offences Against the Person’ (Discussion Paper, 1998) 63.

Ibid 65. Following the United Kingdom, Royal Commission on Capital Punishment, Report (1953), para 111 of the felony murder rule was abolished in England and Wales in 1957. For references to further criticisms see Bronitt S McSherry B , Principles of Criminal Law (2nd ed, 2005) 475.

Lanham David , ‘Felony Murder — Ancient and Modern’ (1983) 7 Criminal Law Journal 90, 101. Sir J F Stephen had already noted in the late 19th century that this rule developed out of a misunderstanding of the law of murder by Lord Coke. Stephen J F , A History of the Criminal Law of England: Vol iii (1883) 57.

The WALRC is questioning whether this form of murder should continue to exist, above n 2, 3.

This principle guided the English Law Commission to recommend the introduction of the offences of ‘first degree’ and ‘second degree murder’, above n 6, 2.3.

Ashworth , Principles of Criminal Law (3rd ed, 1999) 90.

Ibid.

See, eg, UK Law Commission, n 6, 1.97. For Western Australia see Road Traffic Act 1974 (WA) s 59.

McGinty Jim , above n 4.

During the debate on the Criminal Code Amendment Bill 2003 (WA), Johnson R , argued in opposition to the removal of the distinction between wilful murder and murder that the people of WA would share the view that wilful murder was more serious than murder. WA Parliamentary Debates Legislative Assembly, 10 September 2003, 10947.