THE PRESS SATURDAY, OCTOBER 21, 1989. New look at Crimes Bill

Press, 21 October 1989, Page 24

THE PRESS SATURDAY, OCTOBER 21, 1989. New look at Crimes Bill

Parliament’s Justice and Law Reform Select Committee has been struggling for months with the Crimes Bill. The bill is an attempt to bring up to date the Crimes Act that was passed into law almost 30 years ago. The bill has drawn strong criticism from judges and lawyers who have described it as sloppy legislation that is, in parts, unworkable. The extensive condemnation of the bill by jurists from the President of the Appeal Court, Sir Robin Cooke, down has convinced the Government that the bill cannot proceed in its present form. Part of the problem is that the bill presents new definitions of criminal activity and attempts to codify what is loosely described as the mental element in crime. New emphasis would have been given by the bill to the intentions of offenders, and the courts would have been required to decide whether deeds had been committed recklessly, or negligently, or heedlessly, or with wilful intent.

As well, the bill would shift the emphasis from the consequences of an action — the general measure of most crimes at present — to the action itself. This was most pronounced in the creation of offences of endangerment, which were built upon the notion of inherently dangerous conduct, regardless of whether actual harm results. In other words, the potential harm rather than the actual harm would establish a liability, and the liability would be neither increased nor decreased according to the actual results of actions.

The theory behind this shift has a certain logic about it. Already the concept is apparent in driving offences: dangerous or careless use of a vehicle is an offence, regardless of whether the result harms someone else. In driving offences, however, a separate and more serious offence is created if, for example, death results from careless use of a motor vehicle. The new proposal in respect of endangerment is that the same offence has been committed, whether or not death or bodily harm ensues. The consequences of an offence would continue to be something to take into account in sentencing; but in aspects of this bill the consequences, or lack of them, do not aggravate or diminish the crime. In simple terms, a poor aim should not absolve a person who fires a gun at another, any more than deadly accuracy should increase the guilt of a marksman who kills someone. The bill attempts to define the mental attitudes behind an act or omission, to prescribe more

precisely the justification or excuses for acts or omissions, such as insanity, duress, emergency or intoxication, and the degrees of responsibility for acts or omissions that entail intention, knowledge, recklessness, heedlessness or negligence.

All of this would be liable to a great variety of interpretations, and much of the precedent established by a long history of legal decisions would entirely lose applicability and force. The Chief Justice, Sir Thomas Eichelbaum, had the support of all judges of the High Court of New Zealand when he said that the bill could lead to error, mistrials, retrials, and clogging of the justice system. Sir Robin Cooke also noted that the bill was remarkable for its omissions. Four disturbing trends had dominated crime since the 1961 act — an increase in violent crime, an increase in drug crimes, an increase in sexual abuse of children, and an increasing depravity in sexual crimes — and yet the bill did little to address the growth in drugrelated offences, for instance.

Criticisms such as these and others from jurists were fatal to the bill. The select committee had suggested sending it back to the Justice Department, or referring it to the Law Commission, so that extensive redrafting could be done. Instead, the Minister of Justice, Mr Jeffries, proposed that it go to a special consultative committee, whose members would be drawn from the main participants in the criminal law system. This is the course that has been adopted. The bill’s main critics now have the job of trying to make sensible law of the ideas which prompted the bill or, presumably, of demonstrating that those ideas simply will not work.

This is not just a deft side-step by the Government, though it certainly removes another responsibility from Government shoulders and ultimately might help to distance the Government once again from liability for what finally emerges. In this instance, the Government’s retreat and the transfer of a measure of its function to an outside committee is warranted. When such universal and complete disapproval is ranged against a proposed law change from the very people who are expected to make it work, the Government must admit it has not got it right and is wise to consult further in an effort to dispose of the problems raised or to refine the ideas in the bill so that the law is workable in the view of those who have to make it work.