A law passed in the ACT Assembly on Thursday to change the meanings of choke, strangle and suffocate in the criminal law have been labelled unfair by the ACT Law Society, which says the changes will apply to people retrospectively.
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But the ACT government denied that what it called a technical clarification created a retrospective crime, and said it made no apologies for ensuring the best justice outcomes for victims of domestic violence.
The amendments follow an ACT Supreme Court trial earlier this year of a man who lived with and cared for his mother and who was accused of squeezing the woman's neck and smothering her with a pillow.
The judge in that case, in a rare move, told the jury to find the man not guilty, after interpreting the law to require proof that the victim's breathing had stopped in cases of choking, smothering or strangulation. The judge said the evidence at its highest had not shown the mother had stopped breathing.
That was not the original intent of the laws. The government and Assembly had already accepted the risk non-fatal strangulation poses, not only in terms of serious health effects but also as a red flag for future harm, particularly homicide of women by their domestic partner.
But the law society - while not commenting on nor criticising the laws themselves - said that as drafted the amendments acted retrospectively and for that reason they were unfair, offensive to long-established legal principles and inconsistent with the ACT's human rights act.
Chair of the society's criminal law committee, Michael Kukulies-Smith it was a basic concept and a matter of fundamental fairness that "laws have to be predictable and known" but that the society's concerns had been brushed off. He said that a simple fix would be to include a line that said the new definitions were to apply from the date the law came into effect.
The Attorney-General Gordon Ramsay told the Assembly on Thursday that he disagreed with the law society's view, saying it was always the legislature's intention to criminalise this kind of behaviour.
A spokesman for Mr Ramsay told The Canberra Times that the change meant a person who admitted strangling someone could not use a technical defence to avoid conviction.
"The government does not agree that this technical clarification creates a retrospective crime and makes no apology for ensuring the best justice outcomes for victims of domestic and family violence," the spokesman said.
The society raised a similar issue with an amendment to firearms laws also passed in the omnibus bill on Thursday, but the government's response was that it was a procedural change and again that the government made no apology for strengthening firearms laws.
Mr Kukulies-Smith said the law society was concerned an omnibus bill was "again presented to the Assembly on the basis that it proposes only minor or technical changes, but when in fact significant issues arise from the bill."
The omnibus bill passed in the Assembly unopposed. A joint statement from Mr Ramsay and Police Minister Mick Gentleman said the bill strengthened the ACT's ability to fight organised crime and supported the national unexplained wealth scheme that helps all jurisdictions to effectively deprive criminals of their wealth.