Criminal Law 7719LAW: Analysis of Statutory Interpretation Cases

This report examines statutory interpretation within the context of criminal law, focusing on two key cases: Paul Olaf Grajewski v Director of Public Prosecutions and R v A2, Magennis and Vaziri. The analysis delves into how courts apply different interpretation rules, specifically highlighting the 'rule of lenity' and literal construction. The Grajewski case explores the interpretation of 'damage' under the Crimes Act 1990 (NSW), while the R v A2 case addresses female genital mutilation and the application of Section 45 of the Crimes Act. The report discusses the associated word doctrine and the internationalism theory of interpretation, providing a comprehensive overview of legal principles and their practical application in Australian criminal law. The report underscores the importance of statutory interpretation in determining the outcome of criminal cases and highlights the complexities involved in balancing legal principles with humanitarian considerations.

Running head: CRIMINAL LAW
CRIMINAL LAW
Name of the Student
Name of the University
Author Note

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Statutory interpretation is one of the important tasks that have been done by the court
of law while deciding various cases. In deciding the case, the interpreters often has to deal
with a provision or word, the meaning of which is not clearly stated in any part of the statute
and it is hard to give it a reasonable meaning. Therefore, the courts have to interpret
provisions of such statute or remove the ambiguity of such word by adopting different
interpretation rule. In this study the two cases emphasizes situation where the judges took
decision adopting different approaches of interpretation.
In the case of Paul Olaf Grajewski v Director of Public Prosecutions 1, the appellant
was the part of a protest. In showing his protest the appellant mounted up on a ship's loader
and through harness and rope, he fastened himself to the ship's loader and lowers his bodily
position in such a way that posed a risk of serious harm to him. Therefore, the operation of
the ship loader was immediately stopped due in order to maintain safety. The functioning of
the ship loader remains ceased for two hours that is the time it took for the man to be
removed from the loader. The appellant was convicted under section 195 (1)(a) of the Crimes
Act 1990 (NSW)2. The appellant was held guilty by the local court of Newcastle under
section 195(1) (a) of the Crime Act. Upon his appeal to the District Court, the District Court
referred the matter to the Appellate Court. The Appellate Court has struck down the order of
Conviction of the appellant as stated by the Local Court by stating that facts of the case
regarding damaging or destroying the property of another do not comply with the provision
of section 195 (1)(a) of the Crimes Act 1990 (NSW).
According to the provision of section 195 (1)(a), a person if destroying or cause
damage to the property of another is said to have committed a criminal offense and held
1 Paul Olaf Grajewski v Director of Public Prosecutions (NSW) [2019] HCA 8
2 Legislation.nsw.gov.au, 2020. NSW Legislation. [online] Legislation.nsw.gov.au. Available at:
<https://www.legislation.nsw.gov.au/#/view/act/1900/40> [Accessed 15 April 2020].

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liable for punishment3. The court in this held that there was no such proof that can prove that
the appellant's action actually caused any alteration in respect of the physical integrity of the
ship loader. The court further held that such function has stopped due to the safety concern
and not that the appellant’s conduct has brought some changes to the physical presence of the
ship or ship loader.
It can be said from the fact of the case that, the court while determining the question in the
issue that whether the hanging of the appellant from the loader has a proximate relationship
with the stoppage of the shipping function and can be considered as damage or alteration of
property envisaged under section 195, took the help of the principle of ‘rule of lenity’ in
order to interpret the non-application of the specific section of section 1954. The word
damages destruction and alteration have a wide-ranging meaning, however, applying the
literal construction theory to the fact of the case it can be said that definitely, the conduct of
the appellant does not sourced to any damage or alteration in the physical reliability of the
ship or ship loader5.
In the second case of R v A2, Magennis and Vaziri, two girls named C1 and C2
were subjected to a genital mutilation process as referred as ‘khatna’ under the Dawoodi
Bohra community, which involves the cut of the clitoris on a certain extent in order to make
them available to the culture after they have attained the age of seven. The surgery was
performed by a nurse called Kubra Magennis in the presence of the mother of the two girls
named A2. The whole process was completed by Kubra by using a metal instrument that can
be categorized as a scissor. The whole act was supported and committed in the presence of
another person named Shabbir Vaziri, who was the religious leader of the Dawoodi Bohra
3 Timebase.com.au, 2019. Timebase - Grajewski V DPP (NSW) [2019] HCA 8 - Meaning Of Damaging
Property. [online] Timebase.com.au. Available at: <https://www.timebase.com.au/news/2018/AT04858-
article.html> [Accessed 15 April 2020].
4 Rabb, Intisar. "The Appellate Rule of Lenity." Harv. L. Rev. F. 131 (2017): 179.
5 Ortner, Daniel. "The merciful corpus: The rule of lenity, ambiguity and corpus linguistics." BU Pub. Int. LJ 25
(2016): 101.

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Community. All of them were held guilty under the provision of section 45 of the Crimes Act
for committing the criminal offense of female mutilation. The defense claimed that the
whole process does not cause any injury to both of the girls and merely symbolic which was
rejected by the jury during trial6.
Although the medical report of the two girls stated that there was no such serious or
permanent injury, the judge took into consideration various factors that decided the offense of
the offenders. Firstly, the legal possession of the Crime Act 1990 clearly specifies that except
surgical operation, if a person excites or mutilates a female genital, the act is said to be an
offense under section 45 of the same Act7. Therefore, in this case, the absence of permanent
injury does not go to faded away from the presence of the criminal act committed by all the
offenders either by assisting or by performing such an act. Furthermore, A2 has breached the
trust of the girls which they have upon their mother. In the case of Shabbir Vaziri, the court
took into consideration the fact he took undue advantages of his position also gave a
misleading statement to the police. However, the court, in order to consider the humanitarian
approach such as considering the health and financial issues of the offenders states that, the
crime committed by the offenders is the way to serious that requires imprisonment even if in
the home detention.
Therefore, it can be said that the court, in this case, took the plain meaning approach which
states that a statue should be considered through its ordinary and reasonable meaning. In the
present case, while applying the provisions of Section 45 of the Crime Act, 1900, the court
held that whenever a person infibulates, excises or otherwise mutilates the of labia minora or
clitoris of another person is said to have committed an offense irrespective of the fact that
such injury has been imposed upon the whole or a part of the genital. Therefore, the court, in
6 R v A2, Magennis and Vaziri [2019] HCA 35
7 Legislation.nsw.gov.au, 2020. NSW Legislation. [online] Legislation.nsw.gov.au. Available at:
<https://www.legislation.nsw.gov.au/#/view/act/1900/40> [Accessed 15 April 2020].

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this case, took the literal meaning of the words of the provision and rejected the plea of no
serious injury has been caused to the girl's8.
Therefore, it can be seen from the fact of cases that, in both cases, the literal rule of
construction has been adopted. However, the difference in the first and the second case is
that, in the first case while delivering the judgment the judge has adopted the rule of lenity in
order to remove the ambiguity of the word damages used in section 195 and pronounced the
judgment in favor of the appellant9. However, in the second case, the judge did not apply the
rule of lenity in order to consider the humanitarian ground of the case.
In the first case, it has been held that the judge took a narrower approach in
interpreting the word damage and it is very much present in the fact of the case, that it has
caused damage to the regular working hour of the ship. However, it can be said that the
judges view the first case-based on various rules of interpretation of the statute. Firstly is the
'associated word doctrine' which states that associated words stand on each others meaning.
This doctrine is helpful when one is trying to interpret a word that is combined with two or
more terms which contains identical meanings10. In case of interpreting an ambiguous word
of the statue, the interpreter must take into consideration the associated word of the statute to
understand the intention of near meaning of the prior word11. This doctrine is a handful in
those cases when two or more word is grouped together with such words which have similar
meanings. Therefore, in such cases prior or later terms of the ambiguous word can give some
sense to the use of the word in that place of the statue. In the case of Mcdonell Vs. The United
States, The question in issue was whether acts of Governor Mcdonell such as attending
meetings or calling officials can be referred to as the use of governmental power. It has been
8 Gluck, Abbe R., and Richard A. Posner. "Statutory Interpretation on the Bench: A Survey of Forty-Two
Judges on the Federal Courts of Appeals." Harv. L. Rev. 131 (2017): 1298.
9 Semet, Amy. "An Empirical Examination of Agency Statutory Interpretation." Minn. L. Rev. 103 (2018): 2255.
10 MacCormick, D. Neil, and Robert S. Summers. Interpreting statutes: a comparative study. Routledge, 2016.
11 Krishnakumar, Anita S. "Textualism and Statutory Precedents." Va. L. Rev. 104 (2018): 157.

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seen that in the relevant act of the case, the term "official act" is referred to like every
decision, question or action, cause, matter, suit, proceeding or controversy. The court held
that as the term cause, proceeding, suit or controversy is used with the word question or
matter, it can be used under a similar meaning as a word is known by the company and can be
used as a formal execution of the power of the governmental authority. Therefore, the court
held that acts of Governor do not fall within the purview of governmental exercise of
power12.
Therefore in the present case, the court determines damage or destruction means
causing demolition to another person’s property, which can be determined from its ordinary
and reasonable meaning. Therefore, as no such event took place in the recent case, the court
altered the judgment of conviction of the appellant13.
The court, however, took another approach while interpreting the statue is the
internationalism theory of interpretation, which states that the interpreter while interpreting
the words of the statute must look for the intention of the legislator behind using the word at
such place or at such statement of the statue. Therefore court should interpret a statute in a
manner in order to give meaning to the objective of the interpreter behind the construction of
such law. In the case where the words of a statute are unambiguous, the task of interpretation
generally ends by giving a meaning according to the general meaning of the words. However,
in cases of interpreting the ambiguous words, the judges should take into account the other
available interpretive materials which might be helpful to understand the words of the statute
or to make out the meaning from the statue. Therefore, in the present case, it can be seen that
in ordinary parlance, the legislature of the Crime Act, 1900 wanted to make punishable those
conducts which cause destruction or damage to property of another. Therefore, due to the
12 McDonnell v. the United States, 579 U.S. ___ (2016)
13 Peterson, Farah. "Interpretation as Statecraft: Chancellor Kent and the Collaborative Era of American
Statutory Interpretation." Md. L. Rev. 77 (2017): 712.

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absence of any such thing in this case the court did not consider any other kind of damages to
decide the case.
The 'rule of lenity' is said to be a legal principle which can also be termed as a rule of
strict construction. This can be said to be a rule of criminal statutory interpretation which
mandates that a court in order to terminate the use of ambiguous words from a statue by
referring the meaning of the same in favor of the defendant of a case14. In the case of the rule
of lenity, the burden is positioned at the prosecution in a criminal case. The theory behind this
rule is that an accused must not get punishment for an act the penal provision of which is not
envisaged in any of the criminal law. However, the court in many cases has refused to
consider the application of the rule of lenity. In the case of Muscarello v. U.S., the court held
that rule of lenity cannot be applied when the defendant knows about the criminal
consequences of his or her activity.15 However, the modern use of this rule is very limited. It
has agreed by various jurists that the application of this doctrine can be used as a last resort
where after applying all theories of interpretation, the meaning of the word in a statue still
remains ambiguous. In Australia, the legal system is a concrete one, where the court of law
had to interpret 16much legislation under the modern judicial system. Therefore, it is not
permissible for the judges to adopt the rule of lenity without considering other outcomes for
interpreting the word, as this might result in denial of justice. For example, in the case of
Illinois Tool Works Inc. v. Independent Ink, Inc., it has been held that the rule of lenity has no
place to resolve the debate in the issue regarding Section 2 of Sherman Act, as it comes into
the picture at the end of the method of seeing what has expressed by the Congress and must
not comes, in the beginning, to provide help to the wrongdoers from escaping from their
14 McNally v. the United States, 483 U.S. 350 (1987)
15 Muscarello v. U.S., 524 U.S. 125 (1998)
16 Tushnet, Mark. "New forms of judicial review and the persistence of rights-and democracy-based
worries." Bill of Rights. Routledge, 2017. 265-290.

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wrongdoings17. It has further been held that judges when using the rule of lenity in deciding a
case must state in clear and in unambiguous words the reason behind such decision18.
Usually, there are four rules of interpretation of a statute, such as literal, golden
mischief and purpose rule. It has been held that, by the increase in the amount of enactment
of new legislation from both the Commonwealth and the State Parliament, therefore, in order
to determine the complex nature of the legislations the interpretation of such statutes are
somehow have been handed over to the courts19. Therefore, it can be said that it has been a
drastic change in the view that the legislation had one precise connotation and the Judge's
duty is only to conclude over that meaning. In recent times, so many rules have been enacted
by the judges of the High Court of Australia along with the Parliament of Australia. To make
this objective successful, the purpose rule has been given supremacy by both the
Commonwealth legislation and the State legislation. The section 15AA (1) Of The Acts
Interpretation Act 1901 (Cwlth) states that while construing the provision of an Act, a
particular construction which would promote the objective underlying with the Act, shall be
favored as construction which cannot promote the purpose of the Act, irrespective of the
presence or absence of the fact that whether or not the objective is expressly stated in the
Act20. The High court of Australia usually use the following principles while interpreting a
statute, they are; in case the law has been stated, then the starting point of the text can be
referred as the text of the legislation, the objective of the statutory construction is to uphold
the aim of the Parliament expressed through a statutory provision while interpreting a statute
whole sentence or paragraph of the ambiguous provision must be read21.
17 Illinois Tool Works Inc. v. Independent Ink, Inc., 547 U.S. 28 (2006),
18 Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277
19 French, Robert. "United states influence on the Australian legal system." UW Austl. L. Rev. 43 (2018): 11.
20 Hanna, Nathan. "Commonwealth of Australia." (2019): 295-300.
21 Chen, Vivien. "The Statutory Derivative Action in Malaysia: Comparison with an Australian Judicial
Approach." AsJCL 12 (2017): 281.

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However, it can be seen that in modern days, judges are using the power of
interpretation in an arbitrary way, which can be seen in the first case. However, the contrary
view has also been noticed in the second case, where the judges actually convicted all the
offenders irrespective of the presence of humanitarian ground to reconsider the decision of
conviction. Therefore, keeping this in mind, it can be said that, in some of the cases the
judges while interpreting a statute with the fact of the case took a Pragmatic approach, that is
to interpret the statute in order to maintain balances between various factors such as
predictability, certainty, fairness, economic efficiency and the interest of the public22.
However, it is important for the judges to adopt real-world outcomes and societal perceptive
into consideration while construing the ambiguous stipulations of a statute in order to avoid
conflict of interest.
22 Listwa, Daniel B. "Uncovering the Codifier's Canon: How Codification Informs Interpretation." Yale
LJ 127 (2017): 464.

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Bibliography:
Books and Journals:
Chen, Vivien. "The Statutory Derivative Action in Malaysia: Comparison with an Australian
Judicial Approach." AsJCL 12 (2017): 281.
French, Robert. "United states influence on the Australian legal system." UW Austl. L.
Rev. 43 (2018): 11.
Gluck, Abbe R., and Richard A. Posner. "Statutory Interpretation on the Bench: A Survey of
Forty-Two Judges on the Federal Courts of Appeals." Harv. L. Rev. 131 (2017): 1298.
Hanna, Nathan. "Commonwealth of Australia." (2019): 295-300.
Krishnakumar, Anita S. "Textualism and Statutory Precedents." Va. L. Rev. 104 (2018): 157.
Legislation.nsw.gov.au, 2020. NSW Legislation. [online] Legislation.nsw.gov.au. Available
at: <https://www.legislation.nsw.gov.au/#/view/act/1900/40> [Accessed 15 April 2020].
MacCormick, D. Neil, and Robert S. Summers. Interpreting statutes: a comparative study.
Routledge, 2016.
Ortner, Daniel. "The merciful corpus: The rule of lenity, ambiguity and corpus
linguistics." BU Pub. Int. LJ 25 (2016): 101.

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Peterson, Farah. "Interpretation as Statecraft: Chancellor Kent and the Collaborative Era of
American Statutory Interpretation." Md. L. Rev. 77 (2017): 712.
Rabb, Intisar. "The Appellate Rule of Lenity." Harv. L. Rev. F. 131 (2017): 179.
Semet, Amy. "An Empirical Examination of Agency Statutory Interpretation." Minn. L.
Rev. 103 (2018): 2255.
Timebase.com.au, 2019. Timebase - Grajewski V DPP (NSW) [2019] HCA 8 - Meaning Of
Damaging Property. [online] Timebase.com.au. Available at:
<https://www.timebase.com.au/news/2018/AT04858-article.html> [Accessed 15 April 2020].
Tushnet, Mark. "New forms of judicial review and the persistence of rights-and democracy-
based worries." Bills of Rights. Routledge, 2017. 265-290.
Case studies:
Illinois Tool Works Inc. v. Independent Ink, Inc., 547 U.S. 28 (2006),
McDonnell v. United States, 579 U.S. ___ (2016)
McNally v. United States, 483 U.S. 350 (1987)
Muscarello v. U.S., 524 U.S. 125 (1998)
Paul Olaf Grajewski v Director of Public Prosecutions (NSW) [2019] HCA 8
Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277
R v A2, Magennis and Vaziri [2019] HCA 35