Penal provisions

Aubrey v R [2017] HCA 18

The traditional rule says that doubt in penal provisions is resolved in favour of the accused.  However, Pearce & Geddes (at [9.8]) call this a ‘somewhat naive approach’ and, as far back as 1976, it was described as ‘one of last resort’9

The true position is more nuanced, with penal consequences being part of the context to which regard must be had10.  In Aubrey (at [39]), the majority said penal statutes ‘are to be construed in accordance with ordinary rules of construction’.  This continues a consistent message from the High Court that all statutes are to be approached in the same general way for interpretation purposes.

This case is from Episode 25 of interpretationNOW!


9  Beckwith (1976) 135 CLR 569 (at 576).

10  Alcan [2009] HCA 41 (at [57]), R v A2 (No 24) [2016] NSWSC 737 (at [32]).