Consequently, a later court can speculate on, and choose, the formulation of
the rule for itself as it seeks to clarify the rule.
290
Explanation of Rule
Ambiguity consisting of two or more versions of a rule can happen when an
explanation of the rule is mistaken for the rule and therefore becomes another
version of the rule. Once courts have laid down a rule, it is common in later
cases that judges will attempt to explain the rule.
291
But explanation of a rule is
not done in order to make a definitive statement of the rule. It is done to
illustrate, explain or simplify the rule for readers and
so should be treated as
such.
292
Reality, however, may be otherwise. Once a rule has been explained it is
possible that a later court will lose sight of the distinction between the rule and
its explanation and instead see the explanation as an alternative version of the
rule.
293
This would not matter if the two formulas were identical. But it is
almost impossible for two sets of words to be identical,
294
so by this means
there may be two or more versions of a rule. Thus, if the rule is designated as
X, and explanation of the rule designated as Y, what can happen is that later
290
Trade Practices Commission v Abbco (1994) 123 ALR 503, 516-518, per Burchett
J
291
Watson v George (1953) 89 CLR 409, 420 per Fullagar J
292
Kitto (1992) p 798
293
In Strickland v Rocla Concrete Pipes
(1971) 124 CLR 568, 490-491 Barwick CJ
cautioned against allowing definition or explanation of a principle to take over
the principle. He said: "For my part the formula requires no explanation: in any
case, it is the text and no commentary upon it however helpful may displace it”.
In context His Honour was talking about a provision in a statute. There the
warning has more force because courts cannot change a statute whereas common
law is a judicial creation that lives and grows. See also Secretary, Department of
Social Security v Van Luc
Ho
(1987) 77 ALR 491 and Minister for Immigration v Guo
(1996) 144 ALR 567, 578.
294
This can produce problems for a trial judge in a criminal case who has to
explain the law to the jury. If the words of explanation are not close enough in
meaning to the original there will be a misdirection, which can be a ground for
appeal. One troublesome area has been the standard of proof in criminal cases,
namely proof beyond reasonable doubt. Judges sometimes err in trying to explain
this to a jury. Thus there was error when the jury were told that it meant that they
must be "satisfied with regard to the prisoner's guilt" in R v Hepworth [1955] 2 QB
600, "pretty certain" in R v Law [1961] Crim LR 52, and "pretty sure" in R v Woods
[1961] Crim LR 324.
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