Glascott v The King [2026] VSCA 42
The court gave 9 reasons why it could not have been intended that a special hearing on mental competence was invalid for being conducted outside the statutory time limit. The provision said the ‘court must hold a special hearing … within 3 months …’6 The last reason given (at [122-123]) was that the obligation here was expressed as an ‘affirmative prescription’ rather than as a ‘negative stipulation’7.
Negative words, it was said, ‘carry a stronger mandatory import than affirmative words’. This case is a good example of there being less propensity for affirmative words to produce invalidity where ‘inconvenience will flow from such a result’8.
This principle is from Episode 131 of interpretation NOW!
Footnotes:
6 s 14F(5) Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
7 Davis [2016] VSCA 272 [61] cited, cf Forrester [2012] NTSC 61 [31].
8 Pearce 10th ed [11.24], Tilbury [1940] VLR 245 (255), cf MBW [1965] VR 143.