Adding words

Pell v The Queen [2019] VSCA 186

The accused was convicted of child sex offences and jailed for 6 years.  Appeal ground 3 was that he had not been arraigned ‘in the presence of’ the jury2.  With his consent, the jury had seen the process in full via video-link.  All judges rejected the argument that ‘presence’ meant only physical presence. 

Weinberg JA (at [1163-1164]) said the idea that presence had only one meaning was ‘unconvincing’, and against the requirement to read provisions purposively.  Adding ‘physical’ to the composite expression ‘in the presence of’ was not permitted without ‘good reason’.  Also, in the light of modern technology, a restrictive reading was not warranted3.       

This case is fromEpisode 52 of interpretation NOW!


2 ss 210(1) and 217(a) of the Criminal Procedure Act 2009 (VIC).

3 (at [1165, 1174] respectively), cf Amagwula [2019] NSWCCA 156.