For obvious reasons, adjectives of degree normally are not used in statutes,
but instead the required degree is quantified. Thus the entrance requirement for
policemen would not be "tall men," but, for example, "men 178 centimetres in
height”.
Partial Satisfaction
Sometimes a fact partially satisfies the expressed or assumed requirements of
a legal term. For example, in his poem Clancy of the Overflow Banjo Patterson
referred to a letter written by a shearer with a “thumbnail dipped in tar”. Is this
a “pen”? Or is an inverted wooden packing case a “table”? This ambiguity is
sometimes described by reference to words having an umbra of certainty and
a penumbra of uncertainty. Cases that definitely fall within the term are the
umbra. Cases on the fringe such as the thumbnail dipped in tar and the
inverted wooden packing case fall within a penumbra of uncertainty. Items
within the penumbra fall within the particular term only if the court gives it a
“strained”
164
or “ambulatory”
165
construction.
A special case of partial satisfaction occurs where words refer to a process
and there are stages in the process. Are all stages necessary or just some? If it
is just some stages, which ones are necessary? For example in Timbu Kolian
v The Queen
166
the accused, in the dark, struck a blow at his wife with a stick
that he held in his hand. Had the blow hit his wife he would have inflicted, in
the words of the court, "moderate chastisement" on her. But, unbeknown to
Timbu Kolian, his wife was holding their five months old son in her arms. The
blow with the stick struck and killed the son. The relevant section of the
Criminal Code provided that there was no criminal responsibility "for an act or
omission [of an accused] which occurs independently of the exercise of his
will”. Timbu Kolian had intended the blow, but he had not intended either to
hit, or to kill, his infant son. Thus his guilt depended on the meaning of "act”.
Did it mean merely taking up the stick and striking the blow, which were both
done in the exercise of his will, or did it mean the whole process including its
consequences of striking and killing his son which were not what he intended.
In the result, the High Court of Australia held that the relevant act was causing
death, not aiming a blow at his wife, and since death was unintentional Timbu
Kolian was acquitted.
Sometimes, as they did in Timbu Kolian, courts will stretch the meaning of a
term to include cases of partial satisfaction. Their fundamental justification for
this is to “give effect to the purpose of the legislation”
167
in cases of
164
Bermingham v Corrective Services Commission (1988) 15 NSWLR 292, 302
165
R v Young (1999) 46 NSWLR 681, 687-688
166
Timbu Kolian v The Queen (1968) 119 CLR 47
167
Bermingham v Corrective Services Commission (1988) 15 NSWLR 292, 302
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