Quotable Quotes: too cool for stare decisis

Griffith CJ is too cool for stare decisis: Doodeward v Spence (1908) 6 CLR 406, 412

[Regarding some very old cases on the status of a dead body as property:] I do not, myself, accept the dogma of the verbal inerrancy of ancient text writers. Indeed, equally respectable authority, of equal antiquity, may be cited for establishing as a matter of law the reality of witchcraft. But in my opinion none of the authorities cited afford any assistance in the present case. We are, therefore, free to regard it as a case of first instance arising in the 20th century, and to decide it in accordance with general principles of law, which are usually in accord with reason and common sense.

Words Gone Wrong: Proscribed, prescribed, or something

I feel some sympathy for the people who made this mistake:

Successful applicants will have until last mail October 14, 2011 to claim their rebate. Rebates not claimed by that date in the proscribed manner will be forfeited.

(Emphasis mine.)

Proscribed, not prescribed. For those unfamiliar with the word, here's a definition of "proscribe", courtesy of the OED:

proscribe: verb [with object]
    forbid, especially by law:
        strikes remained proscribed in the armed forces

Therefore, if you replace proscribed with a synonym, such as forbidden, the last sentence reads:

Rebates not claimed by that date in the forbidden manner will be forfeited.

Oops.

The word they're almost certainly looking for is prescribed. If we again substitute a synonym - say required - we get the much more sensible sentence:

Rebates not claimed by that date in the required manner will be forfeited.

As I said, it's an easy mistake to make. Don't be the sucker who makes it next.

Wouldn't Happen Here: driving conviction overturned on a drafting error

Only in America. (Full story at the Washington Post.)


Read (carefully!) this section of a Virginian law.

A person is guilty of reckless driving who fails to stop, when approaching from any direction, any school bus which is stopped on any highway, private road or school driveway for the purpose of taking on or discharging children.

Spot the problem? On it's face, it says a driver must stop a stopped school bus. It's missing an at; probably between "direction," and "any".


There once was an "at", but it was accidentally removed by an amendment. And that two-letter missing word was enough for one very lucky driver to have a reckless driving conviction overturned. The appeal judge, whilst wondering "if there's some latitude" in reading the law, ultimately held that "There probably isn't, because it's a criminal statute." As such, he quashed the conviction.


Now, there's some debate over whether that was the correct decision under US law. But here's why the question would never have come up in WA. The Interpretation Act 1894 (WA) provides the courts with very clear rules about how they are to interpret statutes. Section 18 provides:

In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object.

There is no distinction here between criminal law or civil law --- it applies to all written law. Clearly the construction preferred by the court does not promote the object of road traffic legislation.


Additionally, a court may also refer to extrinsic material in some circumstances. Extrinsic material is material not part of the Act the court is trying to interpret, such as parliamentary debate, or explanatory memorandum. Extrinsic material may be used either to confirm the ordinary meaning of a provision, or to determine the meaning of a provision when --- 

s 19(1)(b) ... 

    (i)    the provision is ambiguous or obscure; or 

    (ii)    the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law leads to a result that is manifestly absurd or is unreasonable.

The construction preferred by the US court would easily be described as unreasonable. So an Australian court would have no problem finding some material explaining what the fateful amendment was supposed to do, and doing that.


So, if you find a missing preposition in an Australian law, don't bet on being able to rely on the strict, literal interpretation of the law.

In (very) brief: ex delicto --- a webcomic of law and nonsense

Amusing.

Pity it isn't being updated.