I CASE BRIEF

On the 14 of December 2023, the case of Farshchi v The King [2025] HCA 46 commenced in the County Court of Victoria. Mr Patterson worked at Candoo Confectionery, operated by the accused. Through repeated threats relating to his immigration status, he was made to feel unable to leave and remained in a condition of forced labour for a substantial period. Farshchi was found guilty of two charges: one, causing a person to remain in forced labour, and two, conducting a business involving forced labour.[1]

II BACKGROUND

The case was initiated in the County Court of Melbourne and heard by Chief Judge Kidd, who sentenced the accused and his wife to 3 years and 6 months imprisonment, with a non-parole period of 18 months on the 30th of January 2024. Farshchi believed that the trial judge erred by directing the jury that ‘a reasonable doubt is not an unrealistic possibility’[2] and by failing to warn that the complainant’s evidence may be unreliable due to drug use. He also argued that the sentence was manifestly excessive and insufficient weight was given to family hardship. The court dismissed the appeal, holding that the jury direction did not reduce the standard of proof beyond a reasonable doubt and was permitted under the Jury Directions Act 2015 (Vic). It also found no miscarriage of justice and concluded the sentence was within the appropriate range. Priest JA rejected the appeal with Niall and Taylor JJA also agreeing,[3] and on the 14th of October, the appeal was dismissed.

III ISSUES

However, the appellant then brought a final appeal to the High Court of Australia, where he argued that Ground 1: whether the words ‘a reasonable doubt is not… an unrealistic possibility’ in s 64(1)(e) of the Jury Directions Act 2015 (Vic) were consistent with s 13.2(1) of the Criminal Code (Cth).[4] Ground 2 was that those words are inconsistent with s 80 of the Constitution.[5] Ground 1 is dispositive to the case where one ground failed or succeeded; the other was unnecessary.[6]

IV JUDGEMENT

Their Honours emphasised that s 64(1)(e) must be read as a compound phrase ‘an imaginary or fanciful doubt or an unrealistic possibility’[7] in which each element derives its meaning from the others. They also stressed that s 64(1)(e) should be interpreted as a single, combined expression and not read in isolation.[8] However, reading words in isolation may still be vulnerable to subjectivity, as Jagot J acknowledges. Her Honour reasoned that “unrealistic” is simply “unreal” with the suffix “-istic”, meaning having the character or quality of being not real,[9] suggesting it is consistent with the definition of the law. To further this, Edelman and Steward JJ recognised the importance of the definition and emphasised the need to differentiate between a definition and an explanation of a legal concept.[10] The 7 judges present acknowledged how the court of appeal correctly held the jury direction and correctly aligns itself with the Code, and picked up and applied by s 68(1)(c) of the Judiciary Act 1903 (Cth).[11] Since the argument of ground one did not stand, ground 2 lacks reason to arise.[12] The judges unanimously agreed to dismiss the appeal on 3 December 2025.

On a theoretical level, it mirrors a broader idea of the relationship between the rule of law and statutory interpretation and its importance within our justice system, which will be the focus of the commentary.

V COMMENTARY

The relationship between the rule of law and statutory interpretation is crucial in the Australian legal system. The rule of law provides the skeleton of the legal system, ensuring the vitality of core legal values; without it, statutory interpretation has no principled basis to operate. Th rule of law relies on statutory interpretation to give concrete and consistent effect to the values the rule of law seeks to protect, thus preventing undoing the justice the rule of law initially intended to create. Through the lens of Farshchi v The King, the connection between these two major building blocks of Australian legislation is clearly illustrated.

VI STATUTORY INTERPRETATION

Reading compound phrases in statutory interpretation enables precise definitions tailored to their context, portraying the intended meaning of the legislation. This reflects the principle noscitur a sociis, or the ‘immediate context rule’, where individual words derive meaning from surrounding words.[13] The joint majority used this principle, emphasising that ‘the provision should be construed in its entirety’, treating s 64(1)(e) as ‘a composite phrase in which the words “unrealistic possibility” take their colour from the reference to “an imaginary or fanciful doubt”.’[14] Reading the phrase holistically, ‘unrealistic possibility’ was given a precise meaning consistent with ‘imaginary’ and ‘fanciful’, preserving the intended legislative standard. However, Pearce contradicts this framework, identifying words as ‘building blocks whose meaning cannot be affected by the rest of the sentence’, where in fact ‘the significance of individual words is affected by other words and the syntax of the whole.’[15] He argues the individual definition stays constant, but it’s the interpretations when combined within a sentence that alter significance; however, this threatens words with duplicitous meanings. Therefore, reading statutory provisions as compound phrases allows for more contextual interpretations, ensuring the intended meaning of the legislation is preserved rather than distorted by isolating individual words.

However, where contextual interpretation produces a precise statutory meaning, a gap remains between the meaning courts ascribe and how it's understood in practice. Jagot J reasons that ‘unrealistic’ bearing the character or quality of being not real would not be misread by any jury as permitting a merely improbable possibility to find a reasonable doubt.[16] Even where a statutory provision can be logically interpreted, its application in practice can cause a wider range of understandings than the court intended. Essex and Goodman-Delahunty contradict this and find that judicial directions cause the standard to be ‘more appropriately understood and applied’,[17] suggesting that statutory explanation through s 64(1)(e) bridges this gap between legislative intent and practical application. Trimboli’s empirical research acknowledges this problem, finding that nearly 23% of jurors believed ‘beyond a reasonable doubt’ required only being ‘almost sure’, with a further 10% considering ‘pretty likely’ sufficient.[18]He demonstrated that even settled statutory language can be misapplied at the point of application and challenged the naivety of Jagot’s argument. Thus, the statutory provision should be acknowledged from both the literal meaning and the meaning that would be accepted by those bound by it, neither of which should be done in isolation.

Lastly, to maintain consistency with legislative intent, a distinction between a definition and an explanation is crucial in accurately presenting the law to those bound by it. Edelman and Steward JJ acknowledged the minor difference between the two, illustrating how a definition is of a controlling nature and can be interchanged with the word when it appears.[19] In contrast, an explanation is an extension of that and is meant to clarify, carrying the risk of ‘expanding or contracting the meaning that the term would otherwise have in its context.’[20] Applying this to the case where “unrealistic” was used as an explanation, their Honours concluded that the explanation was simply used to remove uncertainty and remained within the bounds of the definition.[21] Further, Essex and Goodman-Delahunty found that judicial directions cause the standard to be ‘more appropriately understood and applied’ by jurors,[22] Without an explanation, recipients are likely to create an altered view of the law to fill gaps where there is a lack of understanding. Overall, an explanation, when followed in a disciplined manner, allows for the true definition and original intent of the law to be upheld, initiating fairness by those bound by it.

VII THE RELATIONSHIP BETWEEN STATUTORY INTERPRETATION AND THE RULE OF LAW

The relationship between statutory interpretation and the rule of law is made quite clear through this case. The appellant’s view of s 64(1)(e) fundamentally challenged the foundations of the rule of law, where ambiguous legislative language might erode the standard of proof beyond a reasonable doubt, a value the High Court in Cheatle v The Queen[23] recognised as essential to protecting accused persons from arbitrary conviction. Statutory interpretation is what ensures the rule of law is protected and applied practically. Hume mirrors this where he argues predictability and continuity are values any constitutional system must preserve, and unprincipled interpretation threatens both.[24] This was the root of what was at stake in Farshchi, where the appellant’s decontextualised reading of “unrealistic possibility” risked eroding the very standard upon which individual liberty depends, which occurs not by legislative intent, but by lack of fitting use of statutory interpretation. As Hemming has observed, the meaningful communication of legal standards to those who apply them is itself a rule of law value; one that ss 63 and 64 of the Jury Directions Act 2015 (Vic) were designed to serve.[25] Hemming further exemplified this relation between the rule of law and statutory interpretation by identifying the value on effective ‘communication’ of the law so that those who are bound by it have a clear awareness of right from wrong, addressing this concept as a rule of law.[26] The statutory interpretation approach by different angles by all judges in the case collectively presented a contextual and principled approach of statutory interpretation intern providing a consistent meaning that the rule of law demands.

Farshchi, among many other cases, provides a perspective where statutory interpretation is not merely a technical process but the principled foundation upon which justice and equality are consistently given effect. Through this relationship with the rule of law, the Australian legal system maintains its coherence and integrity.

VII FOOTNOTES

[1]Criminal Code Act 1995 (Cth) sch 1 ss 270.6A(1), (2).

[2]Farshchi v The King (2025) HCA 46, [4] (Gageler CJ, Gordon, Gleeson and Beech-Jones JJ).

[3]Farshchi v The King (2024) 390 FLR 97, [47] (Priest JA).

[4]Farshchi v The King (n 2) [5].

[5]Ibid.

[6]Ibid [6].

[7]Farshchi v The King (n 2) [13].

[8]Ibid.

[9]Farshchi v The King (2025) HCA 46, [84] (Jagot J).

[10]Farshchi v The King (2025) HCA 46, [59]–[60] (Edelman and Steward JJ).

[11]Farshchi v The King (n 2) [17].

[12]Ibid [18].

[13]DC Pearce, Statutory Interpretation in Australia (LexisNexis, 10th ed, 2024) [4.33].

[14]Farshchi v The King (n 2) [13].

[15]DC Pearce, Statutory Interpretation in Australia (LexisNexis, 10th ed, 2024) [4.33].

[16]Farshchi v The King (n 9).

[17]S Essex and J Goodman-Delahunty, ‘Judicial Directions and the Criminal Standard of Proof: Improving Juror Comprehension’ (2014) 24 Journal of Judicial Administration 75, 93.

[18]L Trimboli, ‘Juror Understanding of Judicial Instructions in Criminal Trials’ (2008) 119 Crime and Justice Bulletin 1.

[19]Farshchi v The King (n 10).

[20]Ibid [60].

[21]Ibid. [72].

[22]Essex and Goodman-Delahunty (n 17) 93.

[23]Cheatle v The Queen (1993) 177 CLR 541, 561.

[24]D Hume, ‘The Rule of Law in Reading Down: Good Law for the “Bad Man”’ (2013) 37(3) Melbourne University Law Review 620.

[25]A Hemming, ‘Do Juries Understand the Criminal Standard of Proof of Beyond Reasonable Doubt?’ (2021) 30(3) Journal of Judicial Administration 103.

[26]Ibid.