Legislative codes

Stefanski v Western Australia [2022] WASCA 5

The instruction to ‘start with the statute’ has particular bite when it comes to legislative codes replacing the common law.  This appeal raised criminal code ‘unsoundness of mind’ provisions regarding intentional intoxication or stupefaction8.

Buss P (at [119-120]) said the code had to be read ‘without any presumption that it was intended to do no more than restate the existing law’9.  ‘[L]ook at the current text rather than at the old writing which has been erased’10.  Intoxication in this case was intentional – appeal dismissed.  The old common law learning on drunkenness has a fascination, but it doesn’t control the answer under a modern code.

This principle is from Episode 82 of interpretation NOW!


8 ss 27 and 28 of the Criminal Code (WA).

9 Brennan 55 CLR 253 (at 263), Episode 73, Namoa [2021] HCA 13 (at [11]).

10 Stuart 134 CLR 426 (at 437), Episode 63, Pickett [2020] HCA 20 (at [23]).