You are here:
AustLII >>
Databases >>
Supreme Court of New South Wales - Court of Appeal >>
2011 >>
[2011] NSWCA 89
[Database Search]
[Name Search]
[Recent Decisions]
[Noteup]
[Download]
[Help]
Victims Compensation Fund Corporation v JM [2011] NSWCA 89 (13 April 2011)
Last Updated: 21 April 2011
|
Case Title:
|
Victims Compensation Fund Corporation v JM |
|
|
|
Medium Neutral Citation:
|
|
|
|
|
Hearing Date(s):
|
|
|
|
|
Decision Date:
|
|
|
|
|
Jurisdiction:
|
|
|
|
|
|
Macfarlan JA at [1]; Young JA at [8]; Sackville AJA
at [52] |
|
|
|
Decision:
|
Appeal upheld with costs. Judgment of Rothman J
set aside. Decision of Tribunal restored. [Note: The Uniform Civil
Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise
orders, a judgment or order is taken to be entered when it is recorded in the
Court's computerised
court record system. Setting aside and variation of
judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18.
Parties should in particular note the time limit of fourteen days in Rule
36.16.]
|
|
|
|
Catchwords:
|
JUDICIAL REVIEW of administrative decisions-
appeal from an overturned decision of the Victims Compensation Tribunal- whether
the
Tribunal committed error of law and its decision was wholly irrational and
capricious- Tribunal found 500 sexual assaults were "related
acts" within the
meaning of the Victims Support and Rehabilitation Act s 6(3), (4)- whether the
Tribunal failed to take into account
factors of age and location or failed to
give them adequate weight- Tribunal's statutory construction of "related acts"
was within
its mandate- the reasons given by a tribunal are not to be construed
minutely and finely with a keenly attuned eye to the perception
of error- appeal
upheld with costs- decision of Tribunal restored. |
|
|
|
Legislation Cited:
|
|
|
|
|
Cases Cited:
|
|
|
|
|
Texts Cited:
|
|
|
|
|
|
|
|
|
|
Parties:
|
Victims Compensation Fund Corporation
(Appellant) JM (First Respondent) Victims Compensation Tribunal (Second
Respondent) |
|
|
|
Representation
|
|
|
|
|
Counsel: N Hutley SC and C Spruce
(Appellant) R Beech-Jones SC and R Graycar (First Respondent) Second
Respondent submitted |
|
|
|
- Solicitors:
|
Solicitors: I V Knight, Crown Solicitor
(Appellant) Women's Legal Services NSW (First Respondent) |
|
|
|
File number(s):
|
|
|
|
Decision Under Appeal
|
|
|
|
- Court / Tribunal:
|
|
|
|
|
|
|
|
|
|
- Date of Decision:
|
|
|
|
|
- Citation:
|
|
|
|
|
- Court File Number(s)
|
|
|
|
|
Publication Restriction:
|
|
Judgment
- MACFARLAN
JA : I agree with the orders proposed by Young JA and with the reasons that
he and Sackville AJA give for the making of those orders.
I add the following
observations concerning the respondent's submission that the Tribunal's decision
was irrational.
- As
Young JA points out, the question before this Court is not whether the
Tribunal's decision is correct. The Victims Support and Rehabilitation Act
1996 does not confer any right to appeal to this Court against that
decision. The right of appeal that is conferred is one to appeal to
the District
Court on a question of law (s 39(1)) but an appeal on the question presently in
issue, that is, whether acts are related and constitute a single act of
violence, is expressly
excluded (s 39(3)).
- This
exclusion emphasises the legislative intent apparent from s 3(b) that the
determination of whether acts of violence are related is to be left to the
subjective opinion of the Assessor and, when
there is an appeal from the
Assessor, to the Tribunal.
- Whilst
the Act does not attempt to exclude this Court's supervisory jurisdiction to
conduct a judicial review of the decision, the
opportunity for an applicant for
compensation to mount a challenge by way of judicial review to a decision of the
Tribunal that acts
of violence are related is a very limited one. The grounds
upon which this may occur are described in the following passage from
the
judgment of Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation
[1949] HCA 26; (1949) 78 CLR 353:
"But it is for the commissioner, not for me, to be satisfied of the
state of the voting power at the end of the year of income. His
decision, it is
true, is not unexaminable. If he does not address himself to the question which
the sub-section formulates, if his
conclusion is affected by some mistake of
law, if he takes some extraneous reason into consideration or excludes from
consideration
some factor which should affect his determination, on any of these
grounds his conclusion is liable to review. Moreover, the fact
that he has not
made known the reasons why he was not satisfied will not prevent the review of
his decision. The conclusion he has
reached may, on a full consideration of the
material that was before him, be found to be capable of explanation only on the
ground
of some such misconception. If the result appears to be unreasonable on
the supposition that he addressed himself to the right question,
correctly
applied the rules of law and took into account all the relevant considerations
and no irrelevant considerations, then it
may be a proper inference that it is a
false supposition. It is not necessary that you should be sure of the precise
particular in
which he has gone wrong. It is enough that you can see that in
some way he must have failed in the discharge of his exact function
according to
law" (at 360).
- The
statement of principle by Latham CJ in R v Connell; Ex parte The Hetton
Bellbird Collieries [1944] HCA 42; (1944) 69 CLR 407 at 432 was to similar
effect (see also Minister for Immigration and Multicultural Affairs v Eshetu
[1999] HCA 21; (1999) 197 CLR 611 at [131] - [137] and Minister for
Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at
[23], [34], [104]-[105] and [122]). As pointed out in SZMDS at [105],
Avon was a case in which no reasons were given by the decision-maker
(there being no obligation to do so). The position was the same in
Connell
. Whilst a challenge will still be difficult where (as here) reasons for
decision are given, a challenge will to some extent be facilitated
by the
Court's ability to examine the decision-maker's reasons.
- An
applicant's difficulty in challenging the Tribunal's decision is exacerbated by
the legislature's lack of guidance as to what is
involved in the concept of acts
of violence being related for the purposes of the Act. The features that are
intended to characterise
acts of violence as related are left unstated. As a
result widely different views may be reached about the same factual situation.
The legislature has given primacy to the subjective view of the Tribunal (where
there has been an appeal from a decision of an Assessor).
Unless that view falls
outside the range of reasonable and rational views that could possibly be
arrived at (or reflects one of the
other errors described in the authorities to
which I have referred above), it is not open to challenge. Bearing in mind the
breadth
of the concept of relationship and the lack of delimitation of this
concept by the Act, I do not consider that the Tribunal's views
in this case
fell outside that range.
- It
follows that I respectfully disagree with the view expressed by the primary
judge that "a result that concluded that a rape of
a person at the age of 5 and
a rape of [a] person at the age of 15, even if perpetrated by the same person in
the same place, were
related acts of violence is wholly irrational and
capricious" (Judgment [50]). By reason particularly of the intervening and
uninterrupted
pattern of acts, the relationship of the perpetrator and the
victim, and the location of the acts, a finding that the acts were related
was
in my view open to the Tribunal.
- YOUNG
JA: This is an appeal from a judgment of Rothman J in the Common Law
Division of this Court on a summons brought by the respondent, a
woman now in
her thirties, who both below and in this Court, has been nominated simply as
"JM".
- JM
sought to get prerogative relief against the Victims Compensation Fund in
respect of the compensation it assessed she should receive
as a result of the
criminal conduct of a Mr Gibson.
- Essentially,
the background facts are that JM became a resident in a children's home in
Brewarrina when she was very young, and that,
between the ages of 5 and 15, she
was raped almost weekly by Gibson. Gibson was eventually charged and found
guilty of three counts
of rape against JM and sentenced to a long term of
imprisonment.
- JM
initially made a claim under the legislation that is now named Victims
Support and Rehabilitation Act 1996. The first application was made in 2001
and was a claim in respect of the whole period in which there were approximately
500 separate
sexual assaults. However, she later changed her solicitors and the
new solicitors filed six more applications in 2007 in respect
of specific
offences and it was commonly assumed that the original application covering the
remaining incidents, mainly those occurring
after Sunday School, had virtually
been superseded.
- I
should now pass to set out the principal provisions of the legislation. Section
6 makes it clear that the primary victim of an act of violence is eligible for
statutory compensation under the Act. Section 5 defines "act of violence".
Essentially, the definition is that an "act of violence" means "an act or series
of related acts" that
has resulted in injury and has apparently occurred in the
course of the commission of a crime. The section makes it clear that sexual
assaults are comprehended. Subsections (3) and (4) should be set out in full:
"(3) An act is related to another act if:
(a) both of the acts were committed against the same person, and
(b) in the opinion of the Tribunal or compensation assessor, both of the acts
were committed at approximately the same time or were,
for any other reason,
related to each other.
...
(4) For the purposes of this Act, a series of related acts, whether committed
by one or more persons, constitutes a single act of
violence."
- Section
10 introduces a schedule of compensable injuries. That schedule, by clause 6,
splits sexual assaults into three categories, essentially,
category 1 is
indecent assault, category 2 is unlawful sexual intercourse, whilst category 3
is defined as follows:
- "A pattern of
abuse involving category 1 or category 2 sexual assault, or
- unlawful sexual
intercourse in which serious bodily injury is inflicted, or
- unlawful sexual
intercourse in which two or more offenders are involved, or
- unlawful sexual
intercourse in which the offender uses an offensive weapon."
The schedule then goes on to specify a money sum for
various assaults, the maximum for category 2 sexual assault is $25,000 and for
category 3, $50,000.
- The
seven claims made by JM involve three claims at $50,000 and four at $25,000, so
that she claims a total of $250,000. The appellant
says that the claims are all
related and that she is entitled to only $50,000.
- There
is no doubt at all that JM is entitled to compensation and that the real
difference between the parties is whether the 500 assaults
are properly said to
be a series of related acts of violence.
- However,
in one sense, that is too facile a way of looking at this case. The structure of
the legislation is that it is for a "compensation
assessor" to deal with every
application for statutory compensation without conducting a hearing (s 27).
- Section
36 provides that "an applicant for statutory compensation who is aggrieved by
the determination of a compensation assessor in respect
of the application may
appeal to the Tribunal against the determination." The Tribunal is apparently
constituted by a magistrate
and is the second respondent to this appeal.
- Section
38 provides that the appeal is to be determined on the evidence and material
provided to the compensation assessor with liberty to the
Tribunal to receive
further evidence. The appeal is almost a rehearing and the Tribunal takes the
place of the Compensation Commissioner.
- Section
39 then provides that an applicant for statutory compensation may, with the
leave of the District Court, appeal to that Court on a question
of law arising
in any determination of the application by the Tribunal. However, s 39(3)
provides:
"For the purposes of this section, the following matters are not
questions of law:
(a) ...
(b) a determination of whether a series of acts are related and constitute a
single act of violence."
- It
is common ground that s 39(3) does not apply when the Supreme Court is reviewing
a decision made by the Tribunal under its prerogative jurisdiction. There was
no
reliance on s 39(3) by any party to this appeal. However, I would not wish it to
be thought that s 39(3) in an appropriate case may not be of some value to the
Supreme Court when it is construing the Act generally.
- In
the present case, compensation was determined by a Tribunal, there was an appeal
to the District Court and Judge Quirk set the
assessment aside and remitted the
matter to the Tribunal. The Tribunal redetermined the matter on 2 October 2008.
After setting out
the facts, the magistrate who constituted the Tribunal said
(Blue 56) that JM's representatives had submitted that the assessor failed
to
take into account the individual facts constituting the crimes, first that her
age at the time of the assaults was a significant
factor in distinguishing them,
secondly, that each claim involves a particular type of offence and those
offences differ. Further,
that these factors, combined with the different
locations and circumstances of the sexual assaults, clearly indicate the sexual
assaults
were not part of a single transaction.
- The
Tribunal said that the ongoing abuse occurred in a situation where JM was an
inmate of a children's home and the offender was
an employee of the organisation
that conducted the home, so that -
"in other words there was an ongoing association/relationship
between the appellant and the offender over a prolonged period of time.
I use
the words 'association/relationship' in the sense in which Blanch J used the
word 'relationship' in MJW - a relationship 'where
the appellant was manipulated
and exploited by the offender who was a much older person and where the
appellant was a young boy'.
In the circumstances of these appeals where the
abuse was ongoing I do not consider that the age of the appellant at the time of
the various acts necessarily gives rise to claims for separate acts."
The reference to "MJW" is a reference to the decision of Justice Blanch as
Chief Judge of the District Court in MJW v Victims Compensation Fund
Corporation , 18 November 1997, reported in (1997) 3 NSWCR 33.
- The
Tribunal continued with a reference to the decision of this Court in
Director-General of The Attorney-General's Department v District Court of NSW
and Stark (1993) 32 NSWLR 409. The Tribunal said (Blue 57):
"As submissions point out, 'Stark clearly establishes that it is
not necessarily important that the sexual assaults be of a different
nature or
involve different types of offences'. Blanch J in MJW in determining whether or
not various acts were related did take
into account, inter alia, the nature of
the acts. I do not consider that the nature of the various acts is the sole
factor in determining
whether or not the acts are separate or related ...".
The Tribunal then mentioned that the offences did occur at different
locations but noted that they were all within the confines of
the Children's
Home. Finally, the Tribunal referred to the fact that whilst the Act was a piece
of beneficial legislation, its language
is to be construed in the light of
authority.
- The
respondent says that the Tribunal just never mentioned at all the effect on the
victim of the assaults and while it did not altogether
dismiss the matter of
age, it did not give any weight to it. In the Tribunal's penultimate paragraph
it noted that the acts were
committed by the same offender against the same
victim over a prolonged period of time in the course of an association, contact
or
relationship which enabled repetition, the nature of the acts were generally
the same and that, in the opinion of the Tribunal, the
acts were related acts
constituting a single act of violence.
- On
appeal, by way of prerogative order, Justice Rothman disagreed with the
Tribunal. His Honour said at [47]:
"I consider that the approach of the Tribunal discloses error in
that it treats relationship as defined, simply, by the formal positions
of
perpetrator and victim, and treats the fact of the same relationship as
mandating a finding that the acts were related, without
regard to the changing
circumstances of the victim, in terms of age, location and nature of the
offences."
- Mr
Hutley SC, who appeared for the appellant with Ms Spruce, puts that, with
respect to his Honour, that was not a fair and accurate
summary of the
Tribunal's decision.
- The
appellant's argument correctly states that there are three aspects to the error
that the primary judge attributed to the Tribunal,
viz:
(a) The Tribunal defined "relationship" as simply the formal
relationship of victim and perpetrator;
(b) The Tribunal treated the mere fact of a formal relationship of victim and
perpetrator as sufficient to result in the acts being
related; and
(c) The Tribunal failed to have regard to the victim's age and the location
of the offences.
- The
appellant submits that when one applies the test discussed by the High Court in
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6;
185 CLR 259, 272 and 291, the Tribunal did not make any such error at all. In my
view, that submission should be upheld but I will deal with
it in more detail
shortly.
- The
primary judge also considered that the decision of the Tribunal was wholly
irrational and capricious and that the Tribunal gave
inadequate reasons. I
consider these matters are really bound up in the same considerations as the
first and that neither is established.
- I
am conscious that when one is construing an Act one is in many respects
performing an easier task than the person who drafts the
Act, but with respect,
the present Act is not well drafted to deal with fact situations which can vary
immeasurably, one from the
other.
- The
focus is on what are "related acts". Lord Denning MR said in Regina v
Sheffield Crown Court; Ex parte Brownlow [1980] QB 530, 539 that the word
"related" can mean "closely related to", or indirectly or distantly related to,
or somewhere in between. Insofar
as personal relationships are concerned, in one
sense it can be said we are all related to Adam but people generally would more
easily
understand one saying that one is related to one's son or daughter. It is
a matter for construing each piece of legislation to see
what the legislator
intended. Unfortunately, little indication is given in the present legislation.
- Section
5(3) says that an act is related to another act if both are committed against
the same person at approximately the same time. However,
one can see that there
may be situations where a person is unfortunate enough to be mugged by two
separate gangs on the same day
and it would not appear sensible to say that the
act meant that those two crimes were related.
- Then
we get "for any other reason related to each other". Normally one would read
those words ejusdem generis except that there is
no genus, one cannot even apply
the rule that general words are read noscitur a sociis; again there are no
"friends" of the word
"related". Again the legislature is a little obscure in
that subs (3) deals with two acts and uses the word "both" but subs (4) then
goes on to talk about "a series of related acts". So one looks to see whether
two acts are related under subs (3) and if the answer
to that is in the
affirmative, then one has related acts and then one has to proceed and ask
whether acts other than those two form
part of a series.
- The
word "series" connotes "cases where the relationship between the [assaults] is
an integral and not a fortuitous one depending
merely on such circumstances as
contiguity in time or place" (per Greene LJ in Attorney General v Cohen
[1937] 1 KB 478, 491). In Distillers Co Bio-Chemicals (Aust) Pty Ltd v
Ajax Insurance Company Ltd (1974) 130 CLR 1 at 6, Menzies J said: "The word
'series' does, I think, normally carry with it the notion of a sequence with
some connection between
the items in the sequence." In the same case, Stephen J
said at 21 that series denoted "a number of events of a sufficiently similar
kind following one another in temporal succession." He followed what Lord
Justice Greene had said in Cohen's case.
- I
believe that it is of some significance that in defining category 3 sexual
assault the word "pattern" of abuse is used. The prime
meaning of "pattern",
according to the Oxford English Dictionary, is "an example or model deserving of
imitation". A pattern of abuse
indicates that there has been a particular form
of abuse and thereafter it has been either exactly imitated or alternatively,
other
acts which fit in closely with the original model have occurred.
- If
one has to look first for that sort of pattern, it would be odd if one also had
to look for the same thing for related acts because,
almost by definition, where
there has been a pattern of abuse there must be related acts if that were so.
However, that argument
was not relied upon by the Tribunal and this is not a
case where we are ourselves making the decision: we are deciding whether the
primary judge was wrong in finding that the Tribunal made the wrong decision.
- Prima
facie what we have here is a series in the sense referred to by those learned
judges. However, it would be falling into error
to decide this case on such a
basis because the question here is not what this Court would have done, but
rather whether the Tribunal,
to whom the matter was committed, has made a
determination outside its mandate.
- Accordingly,
matters of speculation have little part to play in our consideration. I say this
because it does not take much imagination
to see that the legislation, as
construed by the Tribunal, can have bizarre consequences. For instance, if, in
the instant case,
the attacks on JM had ceased for a few years and then
recommenced, it may well have been that she would have received multiple awards
of $50,000 for each tranche of the assaults. That position might even have been
the same had there been persons in authority at the
home who, independently of
each other, assaulted JM at different times. It is odd that, in a worse
situation for JM, which in fact
occurred, where she was raped regularly week by
week and either whipped with the "red strap" or beaten with a pepper tree branch
if she did not submit, she gets far less compensation.
- There
is nothing to suggest, one way or the other, whether the Tribunal took these
matters into account and it may need be that there
are other examples based on
different constructions of the Act which may also lead to apparently bizarre
results. It may well be
that this is why the legislature enacted s 39(3) so that
there would not be litigation over what is essentially a rather difficult matter
of degree. It will be remembered what is
called "the beard argument", that is,
although it is very difficult to draw the line between a man whose facial hair
has grown after
not shaving for a few days from a man who has actually started
to grow a beard one can still truly say "that man has a (or has no)
beard". So
in the present case it may be very difficult to draw the line as to where there
are related matters and where there is
not and the legislature's intent is to
leave these matters to the Tribunal without further close examination.
- I
earlier referred to the case of Wu Shan Liang.
- The
plurality at 272 quoted with approval the words of Brennan J in Attorney
General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 35-36:
"The duty and jurisdiction of the Court to review administrative
actions do not go beyond the declaration and enforcing of the law
which
determines the limits and governs the exercise of the repository's power. If, in
so doing, the Court avoids administrative
injustice or error, so be it; but the
Court has no jurisdiction simply to cure administrative injustice or error. The
merits of administrative
action, to the extent that they can be distinguished
from legality, are for the repository of the relevant power and, subject to
political control, for the repository alone."
- As
to the reasons, in Wu's case the plurality at 271-272 quoted the decision
of the Federal Court in Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR
280 at 287, "the reasons for the decision under review are not to be construed
minutely and finely with an eye keenly attuned to the
perception of error". The
High Court then said:
"These propositions are well settled. They recognise the reality
that the reasons of an administrative decision-maker are meant to
inform and not
to be scrutinised upon over-zealous judicial review by seeking to discern
whether some inadequacy may be gleaned from
the way in which the reasons are
expressed."
- Kirby
J, who agreed with the plurality, set out a number of propositions at 291-293 to
the same effect. However, his Honour did note
that, whilst the basal proposition
was directed to a tribunal consisting of lay people, it was appropriate to take
into account the
fact that the Tribunal did not consist of untrained lay people,
and indeed in Wu's case consisted of lay people who were specialised in
that area of decision-making and had access to good legal advice (p 292,
proposition
6). Likewise, in the instant case, one takes into account the fact
that the Tribunal does appear to have been constituted by a legally
trained and
highly qualified magistrate.
- In
the present case, we have here a reasoned decision. The decision considers the
principal aspects of the matter, and it is not appropriate
to speculate that it
may have perhaps not considered other factors to be of importance, or
alternatively, given more weight to some
factors and less weight to others than
this Court would have done. Furthermore, the matter of what is related, at least
by inference
from s 39(3), is a very awkward matter which the legislature seems
to have committed to the Tribunal.
- Although
one might at first blush think that a decision which says that a woman who has
been raped 500 times between the age of 5
and 15 by the same man are so related
that she should only get one piece of compensation is capricious, when one looks
at the structure
of the legislation that conclusion does not follow. Indeed, the
Act is so drafted that it may well be that whatever construction
one puts on the
Act, one comes to an odd result in many cases.
- Thus
I do not agree that the Tribunal's reasons were inadequate.
- Nor
do I agree with Rothman J's assessment that the Tribunal's decision was
capricious. It may be that an uninformed layperson could
consider the Tribunal's
decision or its consequences to be bizarre. However, that is the fault of the
way the legislation is drafted
rather than the fault of the decision maker.
Furthermore, as noted earlier and further noted below, whatever construction of
the
legislation one takes, one probably ends up with some strange consequences.
- Accordingly,
in my view, there was insufficient justification, with respect to his Honour, to
set aside the Tribunal's decision.
- It
must always be remembered that it is the role of this Court to supervise the
Tribunal and to see to it that proper decisions are
upheld and defective
decisions set aside. The Supreme Court's views of the merits are irrelevant. On
this point I gratefully adopt
Macfarlan JA's exegesis of the legal principles.
- The
result of this case may well be thought by many in the community to be one which
should be studied hard by the proposed Committee
that is to review the procedure
in New South Wales courts for reviewing decisions of inferior tribunals. It may
be that a power to
review decisions like this one on the merits may have turned
in a different result. It may be that the community generally would
have thought
that a different result was appropriate. However, all of that at the moment is
irrelevant as this Court's sole function
is to say that the decision was
committed to a tribunal, the Tribunal has made its decision within its powers
and it has to be upheld.
- Accordingly,
in my view, the appeal should be upheld with costs, the judgment of Rothman J
set aside and the decision of the Tribunal
restored.
- SACKVILLE
AJA: Young JA has set out the background to this appeal and the relevant
provisions of the Victims Support and Rehabilitation Act 1996 (NSW) ("
VSR Act "). The arguments advanced by the appellant were narrow in scope.
- Mr
Beech-Jones SC, who appeared for the first respondent (" JM "), did not
submit that the Victims Compensation Tribunal (" Tribunal ") had
misconstrued s 5(3) and (4) of the VSR Act , the terms of which have been
set out by Young JA. Nor did Mr Beech-Jones seek to support a number of
criticisms made of the Tribunal's
decision by the primary Judge.
- Mr
Beech-Jones' principal argument on the appeal was that the Tribunal, in
determining that all of the offences perpetrated against
JM were related acts or
a " series of related acts ", did not take into account the great
differences in JM's age at the times the various offences occurred. It followed,
so he argued,
that the Tribunal had failed to take a relevant consideration into
account. The Tribunal therefore committed an error of law which
justified the
primary Judge's grant of prerogative relief.
- In
my opinion, the Tribunal's reasons, when read fairly in the manner required by
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6;
185 CLR 259, at 272 per Brennan CJ, Toohey, Gummow and Gaudron JJ, demonstrate
that the Tribunal did take into account that JM was subjected
to repeated sexual
assaults when she was aged from five to 15. The Tribunal also clearly
appreciated that the nature of a sexual
assault on a five year old child may be
different from a sexual assault perpetrated on a 15 year old girl, although each
is obviously
an extremely serious criminal offence.
- The
Tribunal expressly noted that JM's representatives had argued that the
differences in her age at the times the various assaults
occurred provided a
basis for distinguishing each of the assaults for the purposes of s 5(3) and (4)
of the VSR Act . The Tribunal also noted that JM's written submissions
had developed the argument summarised in the Tribunal's reasons. This was
clearly a reference to the written submissions incorporated in JM's notice of
appeal to the Tribunal. Those submissions contended
that there was a significant
difference between a sexual assault on a young girl aged five and a sexual
assault on a girl aged thirteen.
JM's written submissions also argued that:
"[t]he different ages, maturity and understanding of the acts of
violence [of the victim] suggest that they are separate and not part
of the same
pattern."
- Further,
the Tribunal expressly found that the offences occurred over a period when JM
was aged five to 15 years. The reasons recorded
her age at the time of each of
the offences upon which she relied on to support her claim to compensation and
stated that she had
endured " ongoing sexual abuse over a period of some 10
years ". However, the Tribunal observed that in circumstances where the
abuse was ongoing, JM's age at the times the various sexual assaults
occurred
did not necessarily lead to the conclusion that the assaults were not related
acts.
- Under
the heading " Are the acts related acts ?", the Tribunal reasoned as
follows:
"The acts were committed by the same offender against [JM] over a
prolonged period of time and it was the association, contact or
'relationship'
between the parties that enabled the repetition of the offence in those
circumstances ... The nature of the acts was
generally the same."
- In
determining whether the Tribunal failed to take into account JM's age at the
times of the various offences, it is necessary to
bear in mind a number of
matters: the Tribunal accurately summarised the argument advanced on JM's
behalf; it correctly recorded
her age at the time the various offences occurred;
and it gave reasons, albeit brief, for rejecting the argument that her age at
the relevant times militated against a conclusion that the offences were not a
series of related acts. In these circumstances, I
do not think it can be said
that the Tribunal failed to take into account JM's age at the time the offences
occurred in reaching
its conclusion.
- Mr
Beech-Jones also submitted that the Tribunal had erred in that it treated the
fact that the victim and the perpetrator had an ongoing
relationship as
sufficient to establish that each of the sexual assaults was related to the
others and that the assaults constituted
a series of related acts. In making
this submission, Mr Beech-Jones appeared to adopt the primary Judge's view (at
[39]) that it
was difficult to discern the Tribunal's reasons for being
satisfied that the sexual assaults perpetrated on JM were all acts related
to
each other in the relevant sense.
- In
my opinion, the Tribunal did not assume that a relationship between the victim
and the perpetrator was sufficient to establish
that each criminal act was
related to the others. The Tribunal took into account a number of other factors,
which it identified in
its reasons. These included the common nature of the
sexual assaults perpetrated on JM; the position of dominance maintained by the
perpetrator over JM for the entirety of their relationship; the fact that all
the assaults took place at the same general location;
and the regularity of the
abuse, on average once a week, through the whole of the period.
- I
therefore do not think that the primary Judge was correct in concluding that the
Tribunal had not explained its finding that the
sexual assaults were related to
each other. Nor do I think that the Tribunal committed the error of law
attributed to it by Mr Beech-Jones.
- As
Young JA points out, the result in the present case might be seen by many as
harsh. It is, however, the consequence of a statutory
scheme which provides
compensation for victims of crime, but in a manner which attempts to curtail the
costs of the scheme. Not infrequently,
legislation which seeks to reconcile
competing objectives can lead to apparently anomalous or harsh results.
- In
Victims Compensation Fund Corporation v Brown [2003] HCA 54; 201 ALR 260,
Heydon J (with whom all other members of the Court agreed) commented (at [29])
on the approach to construction of the VSR Act :
"It is ... not a decisive argument against [a particular]
construction that it is possible to point to various outcomes of it which
might
be thought irrational, anomalous or harsh. ... Even if [the construction] were
considered harsh or anomalous, it could not
be said that this would be fatal to
the construction urged by the appellant if the text otherwise required that
construction. The
introduction of caps and limitations upon recovery, usually
justified by reference to supposed affordability, has been a relatively
common
feature of Australian compensation legislation in recent times."
See also Victims Compensation Fund v Brown [2002] NSWCA 155; 54 NSWLR
668, at [8]-[11], per Spigelman CJ.
- If
the statutory scheme provides inadequate compensation to a victim of the
appalling pattern of sexual abuse to which JM was subjected,
the solution must
be found in a review of the legislative scheme that has produced the result. The
difficulty facing policy makers,
within a framework in which the resources
available to compensate victims of crime are limited, is to ensure that curing
one anomaly
or injustice does not create worse anomalies or injustices.
- For
these reasons, I agree with the orders proposed by Young JA.
**********
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/nsw/NSWCA/2011/89.html
