Legislative Codes

Hayman v Cartwright [2018] WASCA 116

When a common law term appears in a legislative code, do we read the code as if it were the common law merely expressed in a different medium?  In this case, a statutory code definition included the term ‘assault’ 5.  Was common law ‘intention’ necessary? 

The court cautioned against any idea that the statute was simply retelling the common law story6.  Reference to common law notions is okay of course as part of the context.  But, consistent with the language and this context, ‘assault’ did not require any element of ‘intention’ to be shown.  iTip – if a common law term is used in a statute, don’t blandly assume that the common law meaning must apply.

This case is from Episode 39 of interpretationNOW!


5 s 222 of the Criminal Code (WA).

6 R v LK [2010] HCA 17 (at [96-97]), Boughey [1986] HCA 29 (at [43]).