Alternative Law Journal
Western Australia is unique among Australian criminal jurisdictions in distinguishing between wilful murder requiring an intention to kill, and murder where the offender intends to do grievous bodily harm. The Attorney General of WA has for some time been pushing for the abolition of this distinction and the creation of a single offence of murder to cover both states of mind. The reason for this push is the view that the distinction complicates trials because of the difficulty juries face in distinguishing which intention an accused actually had. This in turn means that trials may become more traumatic for victim’s families and may mean that people who ought to be convicted of wilful murder are only convicted of murder. In 2003 there was a move to remove this distinction in the Criminal Code Amendment BiIl 2003 (WA). However, in the light of opposition to this proposal the Bill was split into two parts and the separate Criminal Code Amendment Bill (No 2) 2003 (WA) containing the new wider offence of murder lapsed. Continuing the efforts to reform WA’s homicide laws the Attorney General commissioned the WA Law Reform Commission in 2005 to examine and report on whether the homicide laws in WA are in need of change and particularly whether wilful murder and murder ought to be retained as separate offences. The aim of this article is to evaluate whether this unique feature of WA criminal law is merely an historical relic which it is time to modernise or whether there are good reasons for the retention of the distinct offences of wilful murder and murder.
The main argument in favour of abolishing the distinction between wilful murder and murder is that it complicates trials because it is difficult for juries to discern whether an accused intended to kill or intended to do grievous bodily harm. Removing the distinction between the offences would alleviate this difficulty. It would also mean that trials would become less lengthy and traumatic for the families of victims because there would no longer be an incentive for the accused to deny an intention to kill in order to escape conviction for the more serious offence of wilful murder. Furthermore, removing the distinction would not mean that the difference in intention would become irrelevant; it could be taken into account by the judge at the stage of sentencing.
While it cannot be denied that it may be difficult to determine whether an offender intended to kill or intended to cause grievous bodily harm (especially given the relatively narrow definition of grievous bodily harm in WA compared to common law jurisdictions), there is no reason to believe that a judge would be in a better position than 12 ordinary people to determine which intention an offender actually had. It is the role of the jury to determine matters of fact even when they are difficult. Taking this decision away from the jury and giving it to the judge denies the community input into the trial process, which is a fundamental value of a jury system. It also removes some of the transparency of conviction because while the sentence imposed may reflect the actual intention of the offender this is not as clear as the label of the offence for which the offender is convicted. Furthermore, if this argument were to be taken seriously then the offence of attempted murder would also need to be abolished or merged with another offence because this too requires the determination of an intention to kill. However, the argument that it is difficult to obtain convictions has not been raised in regard to this offence or indeed other offences where a specific intention needs to be proven. Indeed the English Law Commission has noted that in England and Wales there are around 80–90 convictions a year for attempted murder, which, it is argued, shows that an offence of ‘first degree murder’ (which would be roughly the same as wilful murder in WA) is clearly viable.
A further argument in favour of removing the distinction between wilful murder and murder is that a person who intends to kill may not be as morally blameworthy as a person who intends grievous bodily harm. There may be cases, for instance, where a person intentionally ends the life of their terminally ill spouse who is suffering intolerable pain, or a person intentionally kills their partner who has subjected them to years of abuse. In such cases it would seem unjust to convict a person of wilful murder while a person who sets fire to another intending to cause them grievous bodily harm is convicted of the lesser offence of murder where death results. While this may be true it does not convince of the need to abolish the distinction between wilful murder and murder, as it may be the case that it would also seem wrong to convict a person for murder in such compassionate circumstances. What this argument does suggest is the need to develop either appropriate offences or defences to reflect the reduced culpability of such a person. For the first example a new offence or partial defence (reducing a charge to manslaughter) of mercy killing or killing on request could be introduced. This could cover cases where a person who is in a close relationship to the victim kills the person at their express request provided that the victim had been diagnosed with a terminal illness. With regard to a person who kills someone who has subjected them to abuse, the WA Law Reform Commission is considering either amending the defences of self-defence and provocation to better enable battered women to rely on them or introducing a separate defence ‘for women who kill in response to serious and prolonged domestic violence’.
Similar to the above discussion it could also be argued that a person who intends to do grievous bodily harm has shown such disregard for human life that they are as morally blameworthy as a person who intends to kill. This argument may carry more weight in Western Australia, where the definition of grievous bodily harm is not as open as in common law jurisdictions. Nonetheless, there is a moral difference between an offender who acts intending to kill a person and an offender who intends to inflict an injury which endangers (or is likely to endanger) life or causes permanent injury to health. In the latter case although the offender is crossing a moral boundary in putting another’s life at risk they may not even foresee the death of the victim and yet still be liable for murder. There is, therefore, a clear difference in moral culpability which ought to be reflected in the label of the offence. Furthermore, if murder were to cover both intention to kill and to cause grievous bodily harm, juries may be reluctant to convict a person of this most serious offence where the perpetrator intended to do grievous bodily harm but did not intend to kill the victim and did not foresee death. This is because the jury may judge such cases as distinct from, and less culpable than, the situation where a person kills intending to kill. Retaining the offences of wilful murder, murder and manslaughter allows the law to create a series of offences graded according to the moral blameworthiness of the mental state of the offender and which reflect community understanding of the gravity of the wrongfulness of the killing.
A final argument for no longer retaining separate offences of wilful murder and murder is that this would bring the law in WA in line with the law in the other jurisdictions of Australia. At common law both an intention to kill and an intention to do grievous bodily harm are classified as murder. However, while consistency in the criminal law throughout Australia is desirable it is not in itself a compelling reason to abolish the distinction when there are good reasons for its retention. Furthermore, WA could actually be an example to other jurisdictions. The English Law Commission has proposed in its 2006 Consultation Paper that England and Wales introduce homicide offences similar to those existing in WA. According to the proposal, ‘first degree murder’ would be the same as wilful murder and cover cases where there is an intention to kill. The offence of ‘second degree murder’ would be wider than murder in WA and include cases where the offender intended serious harm, killed with reckless indifference or where the offender has a partial defence such as provocation or diminished responsibility.
None of the above arguments convince that there is a need to abolish the distinction between wilful murder and murder. Indeed, there is much that speaks in favour of retaining this unique feature of WA law. In general a person who acts intending to kill is committing a more serious wrong and is morally more culpable than a person who intends to do grievous bodily harm and who may not even foresee that death may occur. This difference in moral culpability ought to be reflected in the offence for which the offender is convicted.
An even greater difference in moral culpability can be seen between a person who intends to kill and cases where a person did not even foresee death as a possibility. Currently under s 279(2) it is possible that an offender be convicted of murder even where they do not foresee the risk of death or serious injury. This form of murder (sometimes called constructive murder or the felony murder rule) has been criticised for allowing conviction based on the commission of an objectively dangerous act for a further unlawful purpose rather than liability for murder being based on a subjective mental element. The only factor distinguishing this form of murder from manslaughter is the fact that the offender happens to be involved in committing the act for a further unlawful purpose. This factor is, however, as Fisse points out, ‘not a rational ground of distinction’. If death is accidental in the sense that it is not foreseen by the offender, then it should not constitute the same offence as an intentional infliction of life threatening harm with resulting death. There have been calls for some time for the abolition of this form of murder throughout Australia and, from an historical perspective, this rule should also be seen as an error which it is time to rectify. In an article tracing the history of the doctrine Lanham concludes, ‘[i]t is a rule of such doctrinal feebleness that it ought never to have survived the seventeenth century, much less the twentieth’. However, this form of murder does continue to exist in the 21st century and, while it does, wilful murder should be retained as a distinct offence because a person who does not foresee death or grievous bodily harm as possible is clearly not as morally culpable and should not be liable for the same offence as a person who intends to kill.
Retaining the distinct offences of wilful murder and murder satisfies two principles of criminal law: the ‘ladder’ and the ‘fair labelling’ principles. According to the ‘ladder principle’ the homicide offences should be distinguished and ordered in a way which reflects the variety in kind and degree of culpability. The degree of harm intended or foreseen as a virtual certainty should therefore be the determining factor in the steps of the homicide offences. This supports a structure where if death is intended or foreseen as a virtual certainty, it is wilful murder; if serious harm is intended or foreseen as a virtual certainty, it is murder; if some harm is intended or risked, it is manslaughter.
The principle of ‘fair labelling’ aims to ensure fairness in requiring that the differences in culpability and relative seriousness of homicides be reflected in the label of the offence. Respecting this principle strengthens social standards and values in allowing the community to see that offenders are convicted according to the perceived wrongfulness of their behaviour. When labels of offences do not reflect community values there may be reluctance among juries to convict offenders for certain offences. This has been noted in relation to causing death while driving. Here juries were reluctant to convict of manslaughter and therefore an offence with an appropriate label had to be created.
Where the offender is not convicted of an offence which coincides with community perceptions of the wrongfulness of the behaviour, this can undermine public confidence in the justice system. In this regard the Attorney General of WA has expressed concern that in having two murder offences ‘there is a real incentive for killers to avoid harsher punishment by pleading guilty only to murder’. This could mean that there is a public perception that those who ought to be convicted of wilful murder are ‘getting away with murder’. It does not, however, follow that the remedy to this situation would be to abolish the distinction between the offences. Public dissatisfaction with some people evading conviction for wilful murder does not mean that the public would support removing the distinction between wilful murder and murder altogether. Indeed, as these labels have existed since the introduction of the Criminal Code in WA it is likely that the labels ‘wilful murder’ and ‘murder’ have symbolic significance to the West Australian public. Therefore, removing the distinction between the offences could cause a perception in the community that the government is devaluing the offence and is letting wilful murderers get away with murder because it no longer wishes to signify those worst case murders.
Western Australia is unique in Australia in distinguishing wilful murder from murder. This distinction could be seen to be an historical relic which it is time to change to bring WA’s homicide laws into line with the law in other Australian jurisdictions. There is no doubt that distinguishing between wilful murder and murder on the basis of whether an offender intended to kill or intended to do grievous bodily harm can make homicide trials more complex. This is because there is an incentive for an offender to seek to raise doubt about whether they intended to kill to avoid conviction for wilful murder and the severest penalty. It may then be difficult for the jury to discern whether an intention to kill or do grievous bodily harm existed and this may complicate and prolong the trial.
Neither of these arguments convince that there is a need to merge wilful murder and murder. There is always an incentive for an offender to plead guilty to a lesser offence in order to avoid a more severe penalty. If this argument were taken seriously then distinctions between related offences ought to be removed leaving broad ranging offences so that it is easier to convict offenders. This would, however, go against the principle of fair labelling. It would mean that the symbolic value of the label of offences would be reduced and offences would no longer appropriately signal the degree of wrongfulness of the offender. Furthermore, while it may be difficult to distinguish an intention to kill from an intention to do grievous bodily harm, this clearly is possible, otherwise there would be no convictions for attempted murder. There is also little reason to think that this decision will become easier if removed from the jury and given to the sentencing judge. Such an approach would deny community input and cloud the transparency of the conviction.
Retaining the offences of wilful murder and murder allows the most serious forms of homicide to be clearly identified. A person who intends to kill is generally committing a more serious act and is more morally blameworthy than a person who intends to do grievous bodily harm or a person who is committing a dangerous act for a further unlawful purpose. In the latter cases a person can be liable for murder without even foreseeing death. It is also interesting to note that the English Law Commission is proposing the introduction of ‘first degree murder’ and ‘second degree murder’, offences which would be broadly similar to those already existing in WA. This shows that far from being outdated and in need of reform the West Australian offences may actually be an example of the way to go for other jurisdictions.
[*] THOMAS CROFTS teaches law at Murdoch University, Perth. email: T.Crofts@murdoch.edu.au
© 2006 Thomas Crofts
 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, I Morgan, ‘Sentences for Wilful Murder and Murder’ (1996) 26 University of Western Australia Law Review 207, 213.
 See, eg, Jim McGinty, 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 Lord Goff, ‘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.
 B Fisse, 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 S Bronitt and B McSherry, Principles of Criminal Law (2nd ed, 2005) 475.
 David Lanham, ‘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. J F Stephen, 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.
 See, eg, UK Law Commission, n 6, 1.97. For Western Australia see Road Traffic Act 1974 (WA) s 59.
 Jim McGinty, above n 4.
 During the debate on the Criminal Code Amendment Bill 2003 (WA), R Johnson 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.