In the High Court case of Aubrey v The Queen [2017] HCA 18 (Aubrey), t the primary point of contention was whether to accept R v Clarence (Clarence) where, as Bell J noted in [64], “the facts in this appeal mirror those in Clarence in essential respects.”.
This commentary takes the position that certainty is an important principle in the criminal justice system, and which Courts should more seriously consider in their decisions. This section will consider the exceptions to Aubrey, as well as the impact of the case across various jurisdictions. Finally, it discusses the principle of certainty in the criminal justice system.
Impact of Aubrey on the Jurisprudence of Australia
In considering Aubrey as a binding authority, the judgement is lacking in its overall impact in the development of common law in the State. Aubrey was tried under the historical version of s 35 of the Crimes Act, which consisted of “inflict” instead of “causing”, as well as a mental element of “recklessness”, instead of “malicious”. Whereas previously, there was no explicit offence under the Crimes Act pertaining to the contraction of diseases within the statutes, amendments were made in September 2007 to explicitly include the contraction of diseases under the Crimes Act. Within the speeches made in both the legislative assembly and council, the speakers refer to the doubt that Clarence brings, and clarifies the stance of the State. In the amended version of the act, the definition of “grievous bodily harm” included grievous bodily diseases. Hence, the decision of the Court in Aubrey to extend the definition of “maliciously inflicting grievous bodily harm” to encompass diseases had been achieved through statutory amendments.
Aubrey similarly has little persuasive authority where the transmission of diseases has been codified. However, in Australian Capital Territory (ACT) and Tasmania, Aubrey may form strong persuasive precedence. In ACT, statutory construction of s 20(1) of the Crimes Act 1900 (ACT) is similar to the historic version of its NSW variant in s 35(b), where “inflict” is used pertaining to an offence of grievous bodily harm. In Tasmania, the Criminal Code Act 1924 (TAS) uses the word “cause” throughout the act, with the exception of “inflict” in homicide, and in its definition of grievous bodily harm laid out under s 1, does not include the transfer of diseases.
R v Clarence and the Principles of Certainty
In its overruling of Clarence, the majority had neglected the principle of certainty in the criminalisation of the transference of diseases in Aubrey when extending statutory provisions through interpretation. However these wider statutory interpretations could potentially affect future accused persons due to:
- The lack of knowledge due to changing societal norms and perceptions towards wrongfulness
- Uncertainty in predicting the law due to differences in jurisdictions
In Aubrey, Bell J in dissent held that Clarence should be followed:
‘In the circumstances I consider that the Court should not depart from it. Certainty is an important value in the criminal law. That importance is not lessened by asking whether it is likely that persons would have acted differently had they known that the law was not as it had been previously expounded.’
In essence, the principle of certainty is founded on the basis of a persons ability to conduct themselves without breaking the law. In Director of Public Prosecutions (Cth) v Keating, this was further emphasised, where criminal law “should be certain and its reach ascertainable by those who are subject to it”.
While the law has to adapt to reflect changing societal norms, these societal norms are often unquantifiable and perceived instead of explicitly laid out. This creates some uncertainty within the criminal code as the Courts or jury extends or confines their decisions based on what they perceive as a proper justification of risk. This was considered in Aubrey, where the majority observed that “if the act in question is devoid of social utility, a jury might properly and more readily consider that foresight of a mere possibility of harm is enough to amount to recklessness.” As juries are reflective of the community, it can be argued that they are best suited to decide should a wrong breach the community standards and values. Trial judges then, in their instructions towards the jury, has to weigh certainty within the criminal justice system in their interpretation of the legislature, with the current societal perception of justice. The majority considers the use of English cases in Aubrey to aid trial judges in this aspect. However, these cases are merely persuasive in nature and would not put a future accused persons mind at ease. Instead, the Courts could consider adopting guidelines in this area to uphold certainty in the criminal justice system, which could include adopting civil case directions, as well as a clear standard of proof in the changing of societal norms for the defence.
Further, in Aubrey, there seemed to be competing stances of judiciaries among states, creating unpredictability and thus, uncertainty in the Court’s interpretation of the relevant statutory material. Clarence was previously adopted in the Victorian Courts in R v Salisbury (Salisbury), however, was rejected in the High Court in Aubrey. Among other reasons, the majority cited a series of cases in the United Kingdom where the law in Clarence had slowly eroded, and held that these should be followed. Further, Salisbury was rejected in Aubrey. When the majority held in their judgement to overrule the 1888 decision of Clarence, and contradict their Victorain counterparts, they traded off the principle of certainty, for upholding what they perceived to be core of criminal law. This inconsistency across state judiciaries makes it difficult for future accused to predict the directions various Courts would take. While it can be justified that the unique cultures and characteristics of each state require different governing laws, a clear and consistent stance towards statutory interpretation should still be maintained. Alternatively, the Model Criminal Code, while currently partially implemented in some states, could be considered in harmonising criminal law and consolidating judicial interpretation across states, thus, further enhancing certainty within the criminal justice system.
Ultimately, there has been a lack of concern of the principle of certainty as a common law right by the majority in their judgements. While it can be argued that the social and political context of the case was different, these long-standing judgements should still be respected in its proper authority, and upheld as such. Further, conflicting attitudes of state jurisdictions could also be consolidated, unifying the criminal code in Australia to further enhance this principle of certainty in judiciary.
Conclusion
Ultimately, legislative amendments have consolidated and clarified the areas of doubt which have arisen in Aubrey with regards to Clarence in most states. Nevertheless, Aubrey provides a useful indication of the High Court’s attitude in extending the definition of grievous bodily harm, and the High Court may further choose to do so in future cases should statutory doubt arise. However, the Courts should still show restraint when extending definitions through their statutory interpretations, bearing in mind the principle of certainty in the criminal justice system.
2019-8-8-1565251702