What is the 'it'?

The High Court is regularly asked to hear cases that engage, to some degree, with what is known as the common form criminal appeal provision, and/or the “proviso” to that provision. This probably comes as no great surprise to those who are active in the field. The provision itself has a lot of moving parts, even without the extra degree of difficulty that comes with the hoops (in the form of multiple negatives) that I am required to jump through when I am thinking about the proviso.

It does my head in.

And yet I often find myself being drawn back to it. Even on weekends. Am I just a sucker for punishment? Maybe. Lately I have found myself unsettled by a nagging suspicion that the wording of this provision might be harbouring some kind of latent ambiguity. And, as you know, I would never let a good ambiguity go to waste. Thus, I found myself destroying a perfectly good weekend by googling my way through the State and Territory legislation that embodies the provision. (Like the road rules, every jurisdiction has its own. Thank you, Australian Constitution.)

I discovered that what I sensed might be the case is, in fact, the case: even though they are all essentially the same, they adopt different wording. “Common form”, you say? What could possibly go wrong?

My focus was on one specific element of the provision: the part that says that a court of criminal appeal is to allow an appeal against conviction if it forms the view that the jury’s verdict should be set aside “on the ground that it is unreasonable or cannot be supported having regard to the evidence”.

That wording is pretty standard. But how do the words fit together? (Or, to borrow a phrase that I learnt from a former High Court Chief Justice: parse this sentence!)

Specifically: are “unreasonable” and “cannot be supported” both qualified by the words “having regard to the evidence”? Or does “unreasonable” stand on its own, unqualified, so that the two metrics that the court of criminal appeal has to wrestle with are:

(1) whether the conviction is unreasonable; and

(2) whether the conviction cannot be supported having regard to the evidence.

In other words, the ambiguity lies in whether unreasonableness here is an absolute and unbounded concept, or whether it is a narrower form of unreasonableness: whether the verdict was unreasonable having regard to the evidence.

I don’t think it’s too much of a stretch to suggest that there would be cases where the two different readings would lead to different outcomes.

The wording I used above – “on the ground that it is unreasonable or cannot be supported having regard to the evidence” – is what appears in the relevant legislation in Victoria, South Australia and the Northern Territory. If you are a criminal appellant in one of those jurisdictions, the type of unreasonableness you will be required to establish is less than clear.

Courts may well have ruled on this. That’s not my department. I’m only interested in what the words say. And to me that isn’t at all free from doubt.

Not convinced? Well, what if I told you that the other five jurisdictions have built some structure into the words, by way of punctuation, but that they have gone in different directions?

The legislation in Queensland says that the court is to allow the appeal “if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or can not be supported having regard to the evidence”.

The punctuation in Tasmania is the same.

As a matter of sentence construction, the comma after “unreasonable”, combined with the absence of a comma after “supported”, can only mean that “unreasonable” stands on its own; if a court of criminal appeal limited its consideration of unreasonableness to what it could conclude having regard only to the evidence in the case, the court would be misapplying the provision.

New South Wales, Western Australia and the ACT have taken the opposite view: they adopt punctuation that makes it clear that, in those jurisdictions, “unreasonable” is qualified by “having regard to the evidence”. They have gone about it in different ways, but the result is the same. New South Wales and the ACT use the words:

“the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence”,

whereas the Western Australian legislation has it as:

“the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported”.

Obviously this is a matter of substance, not just form – especially for a criminal appellant. The legislative framework within which they will be seeking to convince an appellate court to throw out their conviction isn’t quite as “common” as the words “common form” might suggest.

But this is a blog about proofing, not about difficult questions of statutory interpretation. (We have judges for that.) If you are proofing a judgment in which your judge has to write about this part of the provision, you might want to keep a close eye on how the specific provision your judge is dealing with is punctuated, and try to hew your judge’s own punctuation as closely as possible to what is in the legislation. (I have found that the words “to follow what is in the legislation” are the kinds of words a judge might favourably respond to.)

And if raising the punctuation question happens to engage the judge in what that string of words is actually saying, well, maybe we might all learn something.