Young v Northern Territory of Australia & Anor [2004] NTSC 16

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Young v Northern Territory of Australia & Anor [2004] NTSC 16

PARTIES: YOUNG, Barry Charles

v

NORTHERN TERRITORY OF AUSTRALIA

AND

GUTSCHE, Susan Jane

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION

FILE NO: LA4 of 2003 (20211079)

DELIVERED: 2 April 2004

HEARING DATES: 1 March 2004

JUDGMENT OF: MARTIN (BR) CJ

CATCHWORDS:

EVIDENCE
Whether Magistrate made an error of law in assessment of evidence of appellant - no error of law.

APPEAL
Meaning of victim - conduct of primary or secondary victim to be taken into account - impact upon those applying for assistance under s 10.

Crimes (Victims Assistance) Act 2002 (NT), s 10

APPEAL
Appellant's claim "in respect of" the death of the victim which occurred during the commission of a crime by the victim.

Crimes (Victims Assistance) Act 2002 (NT), s 12(f)

Chabrel v Northern Territory of Australia and Mills (1999) 9 NTLR 69 at 74, applied.
T v State of South Australia (1992) 59 SASR 278 at 288, considered.
Battista v Cooper (1976) 14 SASR 225 at 227, considered.
Tracy Village Sports and Social Club v Walker (1992) 111 FLR 32 at 37, considered.
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156, considered.
Victims Compensation Fund Corp v Brown (2003) 201 ALR 260, considered.


REPRESENTATION:

Counsel:
Appellant: J Lewis
First Respondent: B O'Loughlin
Second Respondent: G Clift

Solicitors:
Appellant: Priestley Walsh
First Respondent: Halfpennys
Second Respndent De Silva Hebron

Judgment category classification: B
Judgment ID Number: Mar0404
Number of pages: 27

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Young v Northern Territory of Australia & Anor [2004] NTSC 16
No. LA4 of 2003 (20211079)


BETWEEN:

BARRY CHARLES YOUNG
Appellant

AND:

NORTHERN TERRITORY OF AUSTRALIA
First Respondent

AND

SUSAN JANE GUTSCHE
Second Respondent
CORAM: MARTIN (BR) CJ

REASONS FOR JUDGMENT

(Delivered 2 April 2004)

[1] This is an appeal against a decision of a Magistrate rejecting the appellant's application for an Assistance Certificate pursuant to the provisions of the Crimes (Victims Assistance) Act ("the Act").
[2] The applicant was born on 13 March 1931. At the age of 23 he married. He and his wife adopted four children; two boys and two girls. The youngest of the children was Simon John Young who was born on 17 December 1968. Simon died on 11 August 2001 as a consequence of being stabbed by his partner, the second respondent. They had been living together since 1997.
[3] The second respondent pleaded guilty to having stabbed Simon and thereby caused his death at a time when she was under the influence of alcohol, contrary to s 154 of the Criminal Code. On 30 May 2002 a Judge of this Court imposed a sentence of three years imprisonment which was suspended forthwith.
[4] In support of the application for an Assistance Certificate, the appellant placed before the Magistrate his affidavit dated 10 February 2003 and an affidavit of Dr Carol Newlands, a consultant psychiatrist, dated 21 February 2003. Annexed to the affidavit of Dr Newlands was her report dated 6 June 2002 detailing her examination of the appellant on 27 May 2002 and setting out her opinions. The Magistrate was also provided with a transcript of the sentencing remarks and a copy of the joint victim impact statement of the appellant and his wife.
[5] The Magistrate correctly directed himself as to the burden of proof and correctly identified that it was necessary for the appellant to prove that he was a victim for the purposes of the Act. Section 5(1) provides that a "victim" may apply for an Assistance Certificate in respect of an injury suffered by the victim as the result of the commission of an offence. Section 4(1) defines victim as meaning "a person who is injured or dies as the result of the commission of an offence by another person". The appellant was required to prove, therefore, that he was injured as a result of the offence by the second respondent.
[6] For the purposes of establishing that he was a victim, the appellant sought to prove that as a consequence of the killing of his son he had suffered a "mental injury". As Mildren J pointed out in Chabrel v Northern Territory of Australia and Mills (1999) 9 NTLR 69 at 74[12], the words "mental injury" in s 4(1) are wide enough to include grief, but as the deceased was over the age of 18 years the Act prevents the award of any amount to the deceased's parent in respect of grief. Mildren J cited with approval the remarks of Olsson J in T v State of South Australia (1992) 59 SASR 278 at 288. Olsson J was concerned with a statutory definition of "injury" as meaning "physical or mental injury sustained by any person, and includes pregnancy, mental shock and nervous shock". His Honour said (288):
"Like the learned trial judge, I am of the opinion that the definition contained in the statute does not require the court to conclude that the evidence unequivocally establishes that symptomatology exhibited by a claimant is such as to warrant medical classification as some recognisable, psychiatric condition, as a prerequisite to coming to a conclusion that a claimant has proved the existence of a relevant injury. Indeed, such a conclusion would run counter to its express terms.
The statutory definition itself stipulates that the existence of mental shock or nervous shock alone is sufficient to constitute an injury in the relevant sense. In my opinion it is quite impracticable and undesirable to attempt to do that which the statute itself does not attempt to do, and develop precise definitions or identify ranges of practical situations which do or do not fall within the concept of injury as defined.
What is essentially involved is a question of fact and degree which needs to be considered on a case by case basis.
Whilst I accept that the statute obviously has in contemplation something more than a condition of mere sorrow and grief, nevertheless, what the court is required to do is to consider the situation of a claimant following a relevant criminal act and contrast it with that which pre-existed the act in question. Leaving aside proven conditions of mental or nervous shock, if the practical effect of the relevant conduct has been to bring about a morbid situation in which there has been some more than transient deleterious effect upon a claimant's mental health and well-being, so as adversely to affect that person's normal enjoyment of life beyond a situation of mere transient sorrow and grief, then, in the relevant sense, the person has sustained mental injury."
[7] I also agree with the remarks of Olsson J. In addition, in my opinion it is appropriate to bear in mind the observations of Bray CJ in Battista v Cooper (1976) 14 SASR 225 made in the context of a definition that "injury" meant "physical or mental injury sustained by any person, and includes pregnancy, mental shock and nervous shock". The Full Court held that emotional upset which resulted in actual injury to physical or mental health was an injury for the purposes of that definition. Bray CJ said (227):
"I think the intention of the definition is to equate (with the possible exception of pregnancy) the sort of physical or mental injury for which compensation may be recovered under the Act with the sort of physical or mental injury for which damages may be recovered at common law. There is a familiar distinction between mere sorrow and grief which cause emotional distress and no more and something which causes in addition some sort of physical, mental or psychological trauma with consequential effect on physical or mental or psychological health. This distinction may ultimately, with the development of science, turn out to be an unreal one. It may be found that all emotional distress produces some effect on physical or mental health. For the present it is to be treated as a real distinction."
[8] The Magistrate referred to the remarks of Olsson J and the appellant accepts that his Worship correctly directed himself as to the essential facts the appellant was required to prove in order to establish that he sustained a mental injury. The appellant's essential complaint is that in reaching the view that he was not satisfied that the appellant had suffered a mental injury, the Magistrate erred in his assessment of the evidence advanced for the appellant to such a degree that an error of law is established. There is an additional complaint that the Magistrate erred in the application of s 10(1) of the Act by taking into account the conduct of the deceased as described in the reasons of the sentencing Judge.
[9] As to the facts, the Magistrate analysed the affidavit of the appellant and concluded that the claim was vague and not supported "by particulars pointing to aspects of his enjoyment of life prior to the commission of the offence and after the commission of the offence". His Worship reached a similar view with respect to the information provided in the psychiatrist's report. His conclusion was as follows:
"I reject the psychiatrist's opinion that Mr Young has suffered a psychiatric illness related to the killing of his son. She has not asked enough questions pertaining to the particulars of the applicant's behaviour before the commission of the offence and after the commission of the offence to show how his normal enjoyment of life has been affected. She does not demonstrate a thoroughness of inquiry which might give me a basis to accept her diagnosis."
[10] The Magistrate added an observation that a reference by the psychiatrist to the appellant recently building a shearing shed on his farm and helping his other son in various ways "provides a hint that the applicant is getting out and not sitting closeted at home, dwelling on his son's death."
[11] The Magistrate's decision was based entirely on the written material before him. As to the affidavit of the appellant, his Worship referred to a number of symptoms described by the appellant, but concluded that the description by the appellant did not assist the appellant's case because the appellant did not supply particulars of the symptoms. In some instances his Worship said he was not assisted because the appellant spoke of a "continuing" symptom without comparing the present condition with his condition prior to the offence.
[12] In my opinion the Magistrate erred in his assessment of the material before him. Although the wording of the appellant's affidavit was not ideal, a proper reading demonstrates that the appellant's description of his symptoms was given on the basis that he was adding to or supplementing the information that he provided to the psychiatrist. Having referred to his attendance upon Dr Newlands for assessment and to the report of Dr Newlands, the appellant stated: "Further to the report of Dr Newlands I have suffered a great loss of motivation since the death of my son." The following paragraphs then refer to symptoms "continuing" to be a problem meaning the symptoms had continued to exist since the consultation with Dr Newlands. The Magistrate misread these types of statements as suggesting that the appellant suffered from the particular symptom prior to the commission of the offence and that he was describing a continuance of such a pre-existing symptom.
[13] In my opinion, his Worship also erred in his assessment of the report of the psychiatrist. In that report, Dr Newlands set out background details and past medical history provided by the appellant which included a reference to "hypertension diagnosed three years ago and treated with the medication Dabatab". Dr Newlands then described a series of questions that she put to the appellant and his answers. The relevant part of the report was as follows:
"CURRENT PSYCHIATRIC SYMPTOMS:
Mr Young described the impact of his son's death in the following terms. He described himself as being angry at the situation and had many questions as to why it happened, which he found unable to get responses to. He described a lack of sleep and pondering issues.
Overall he was concerned in that he felt things did not add up. He had spoken to Suzie who had been out on bail an (sic) he was trying to piece things together. However he felt he would never know the truth. He felt he had not had time to stop and think since the death, in that he had had to finalise the estate.
SPECIFIC QUESTIONS:
In order to clarify Mr Young's functioning, I put specific questions to him and obtained the following answers:
1. Sleep Pattern:

Upon retiring, Mr Young had no difficulty getting to sleep but usually awakened between 2 and 5am. He stated that "If I sleep beyond five o'clock it's a miracle." He rarely managed to get back to sleep after waking. However he stated that he functioned well by day and that he had recently been building a shearing shed on his farm. He had also been helping his other son in various ways.
2. Mood:

Mr Young stated that others had told him they found him more irritable and less patient than usual.
3. Concentration:

Mr Yong (sic) saw himself as having a reduced concentration and being unable to stick at one thing. He found it was taking him longer to complete things than it once did.
4. Appetite:

Mr Young felt that this was unchanged.
5. Motivation:

Mr Young saw himself as less motivated than he once was and stated that he no longer wished to take on the leadership roles he once held, stating "I haven't got the heart".
6. Pleasures:

Mr Young no longer found joy in things as he once did. He also saw himself as needing to be on the move and being restless, as he was unable to stop still.
7. Memory:

Mr Young felt that this was still reasonable.
8. Anxieties:

Mr Young stated that he was concerned regarding his wife, who had developed various physical limitations and problems since her son's death. He was particularly concerned as to whether she ought to be driving given her somewhat slowed reflexes."
[14] An example of the Magistrate's approach to the report of the psychiatrist is found in his Worship's observation that there was a difficulty because the psychiatrist had not set out the history of sleep pattern, mood, concentration, motivation and pleasures that existed prior to the commission of the offence. In my view, his Worship misread the report. The appellant was plainly telling the psychiatrist that others told him they found him more irritable and less patient than usual since the offence. Similarly with concentration, motivation and pleasures; the psychiatrist was reporting on the basis that these were symptoms that had developed since the offence.
[15] The psychiatrist reported that the appellant "has noted many changes within himself since his son's death". She was careful to distinguish between "normal" bereavement and a diagnosis of a major depressive episode. She concluded on balance that the appellant was exhibiting symptoms of a major depressive episode causally related to the death of her son. In answer to a question as to whether Mr Young had suffered any mental injury causally related to the death, the psychiatrist answered that in her opinion he had suffered "a psychiatric illness related to the killing of his son", namely, a major depression.
[16] As I have said, in my view the Magistrate erred in his assessment of the report of Dr Newlands. In addition, there was no satisfactory basis upon which his Worship could have concluded that the psychiatrist had not demonstrated what his Worship described as a "thoroughness of inquiry" which might give him a basis to reject her diagnosis.
[17] In my opinion the Magistrate also erred in finding that the reference by the psychiatrist to the applicant building a shearing shed on his farm and helping his other son provides a hint that the applicant is getting out and not sitting closeted at home dwelling on his son's death. His Worship appears to have overlooked a later reference in the psychiatrist's report that both the appellant and his wife told the psychiatrist that the appellant is "restless and cannot stop still". The psychiatrist then referred to a description by the appellant's wife that the appellant "coped with his grief by being excessively busy and not stopping". In my view, the fact that the appellant was out and about was not an indication that he had not suffered a psychiatric illness as a consequence of the killing of his son.
[18] The case for the appellant was not particularly strong. On a proper assessment of the evidence it would have been open to the Magistrate to dismiss the application. However, if the appeal had been by way of rehearing, by reason of the significant errors by the Magistrate I would have allowed the appeal.
[19] This appeal is not by way of rehearing. It is brought pursuant to s 19 of the Local Court Act 1989 which provides that the appellant may appeal to the Supreme Court only "on a question of law". This raises the difficult question as to whether any of the errors by the Magistrate on the cumulative effect of those errors can properly be described as an error of law for the purposes of s 19.
[20] In Wilson v Lowery (1993) 110 FLR 142, the Full Court of the Northern Territory had occasion to consider the nature of an appeal from the Workers' Compensation Court which was limited to appeal "on a question of law". In a joint judgment the Court referred to the convenient summary of the authorities by Mildren J in Tracy Village Sports and Social Club v Walker (1992) 111 FLR 32 at 37 and, with apparent approval, in the following passage restated the principles to which Mildren J referred (p 146):
"1. In the process of arriving at an ultimate conclusion a trial judge goes through a number of stages. The first stage is to find the preliminary facts. This may involve the evaluation of witnesses who gave conflicting accounts as to those facts. If the trial judge prefers one account to another, that decision is a question of fact to be determined by him and is not reviewable on appeal. It may be that the reason given for preferring one witness to another is patently wrong. Nevertheless, no appeal lies: R v District Court of the Metropolitan District Holden at Sydney; Ex parte White (1966) 116 CLR 644 at 654; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156; Haines v Leves (1987) 8 NSWLR 442 at 469-470.
2. Regardless of the trial judge's reasons, if there is evidence which, if believed, would support the finding, there is no error of law: Nicolia v Commissioner of Railways (NSW) (1970) 45 ALJR 465.
3. If, on the other hand, there is no evidence to support a finding of fact which is crucial to an ultimate finding that the case fell within the words of the statute (for example, that injury by accident arose out of the course of the employment, or that the failure to give notice was occasioned by mistake), there is an error of law: Nicolia v Commissioner of Railways (supra); Tiver Constructions Pty Ltd v Clair (supra), per Martin and Mildren JJ (at 145-146); Haines v Leves (supra) (at 156).
4. But, a finding of fact cannot be disturbed on the basis that it is "perverse", or "against the evidence or the weight of the evidence or contrary to the overwhelming weight of evidence". Nor may this Court review a finding of fact merely because it is alleged to ignore the probative force of evidence which is all one way, even if no reasonable person could have arrived at the decision made, and even if the reasoning was demonstrably unsound: Haines v Leves (at 469-470).
5. The second stage is the drawing of inferences by the trial judge from the primary facts to arrive at secondary facts. This is subject to the same limitations that apply to primary facts.
6. If there are no primary facts upon which a secondary fact could be inferred, and the secondary fact is crucial to the ultimate finding as to whether or not the case fell within the words of the statute, there is an error of law. If there are primary facts upon which a secondary fact might be inferred, there is no error of law.
7. It is not sufficient that an appellate court would have drawn a different inference from those facts. The question is, whether there were facts upon which the inference might be drawn. If a tribunal draws an inference which cannot reasonably be drawn, it errs in point of law and its decision can be reviewed by the courts: Instrumatic Ltd v Supabrase Ltd [1969] 1 WLR 519 at 521; [1969] 2 All ER 131 at 132, Lord Denning MR, with whom Edmund Davies LJ and Phillimore LJ agreed; Edwards (Inspector of Taxes) v Bairstow [1956] AC 14."
[21] One of the authorities to which the Court in Wilson v Lowery referred was Azzopardi v Tasman UEB Industries Ltd. In the course of a judgment with which Sammuels JA agreed, Glass JA made the following observations (p156):
"It has been suggested that since judges unlike juries are required to give reasons a perversity of result will or may suggest an error at some stage of the reasoning process and the perversity will then rise to the level of an error of law. It is important, I believe, to remember that whether an error is one of fact or law is determined by legal theory and the theory is the same whether the tribunal be divided or undivided. Errors may be committed by a Workers' Compensation judge at any one of three points viz determining the facts by way of primary findings and inferences, directing himself as to the law and applying the law to the facts found. At the first stage the determination of facts by a reasoning process marred though it be by patent error, illogicality or perversity will, as has been said, never be vulnerable to attack as an error of law by an applicant for compensation. At the second stage any error made will by definition be an error of law. At the third stage when the law correctly stated is applied to the facts found in order to produce a conclusion error may intrude again. An erroneous conclusion that facts properly determined fail to satisfy a statutory test, for example, injury arising out of the cause of employment, substantial interruption to journey, or failure to provide suitable employment will ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open: Hope v Bathurst City Council (at 10); Australian Gas Light Co v Valuer-General (at 138; 55). Accordingly this Court will not entertain unexplained perversity of result as a ground for intervention although it will correct perverse or unreasonable applications of law to the facts found."
[22] In Azzopardi, although Kirby P agreed with the majority that the appeal should be dismissed, his Honour dissented as the appropriate test to be applied in determining whether an error of law has occurred. After reviewing the history of the appeal process and authorities centered on perverse and unreasonable decisions, his Honour expressed the following conclusions (p 151):
"The finding of what have been called the primary facts of a case does not, in itself, expose the trial judge to review on a point of law, unless it can be shown that there is no evidence of a primary fact and that, this being crucial to his decision, the judge's fact finding has involved an error of law. If there is evidence, or if there are available inferences which compete for the judge's acceptance, no error of law occurs simply because the judge prefers one version of the evidence to another or one set of inferences to another. This is his function. The evaluation of competing evidence and inferences is reserved in compensation cases to the judge of the Compensation Court. Even if the evidence is strongly one way, the appeal court may not intervene simply because it reaches a different conclusion and this even if it regards the conclusion of the trial judge as against the weight of the evidence. Where the evidence points only in one direction, and, as in Poricanin the trial judge nonetheless states that he disbelieves it, the onus being upon that person, the court, on appeal, may not intervene.
But where, because of the development of the obligation of reasoned decision-making, the judge, unlike a jury, exposes his reasons and these reasons demonstrate manifest error or illogicality in the reasoning process; rely on facts which are not established by the evidence or indicate such an unexplained perversity as to suggest that an error has taken place in one of the three stages of the process of judicial decision-making, an error in point of law will be established such as will attract the jurisdiction of this Court and warrant its intervention. It is not to the point to refer to the practice of juries. They give no reasons. Judges do. If the reasons given by judges manifest error in fact-finding, rule stating or application of the rule to the facts or lead inescapably to the conclusion that such an error has occurred, that error will amount to a point of law and the beneficial appellate review provided by the legislation will be available.
There need be no concern that such a principle will lead to a flood of appeals on factual issues, contrary to the provisions of the Act. By the Act, fact-finding and evaluation remain the province of the trial judge. But in the limited class of case where a point of law arises, the facility of review is entirely justifiable. It is consonant with the legislative purpose of s 37(4)(a) where provision is made for appeal. It should be no part of our system of justice to condone perverse and completely unreasonable decisions. Least of all should it be so where those decisions are made by judges. Their immunity from appellate review in determining the facts does not extend so far as to exclude appeal where gross error, manifest illogicality and unreasoned perversity demand the intervention of this Court."
[23] I find the reasoning of Kirby P very persuasive. However, as his Honour later recognised in Haines v Leves (1987) 8 NSWLR 442 at 470, his suggestion in Azzopardi that perversity and illogical reasoning could attract the jurisdiction of a court was a minority view and the majority opinion was binding. That majority opinion was approved in Wilson v Lowery and is binding upon me.
[24] In these circumstances, notwithstanding my opinion that the Magistrate's process of reasoning was flawed in the manner I have described, those flaws cannot be elevated to an error in law for the purposes of s 19 of the Local Court Act. The Magistrate had regard to all the evidence and upon a proper consideration of the evidence untainted by error it would have been open to his Worship to reject the application. The errors lie in the understanding and assessment of the evidence. However, as the law presently stands, those errors cannot be properly categorised as an error of law.
[25] In addition to finding that the appellant had not made out his case of mental injury, the Magistrate determined that the claim should be dismissed by reason of the operation of s 10(1) of the Act. The appellant submits that his Worship was in error.
[26] Section 10 is concerned with conduct of the "victim" which contributes to the death or injury of the "victim" and is in the following terms:
"(1) In considering an application for assistance, and in assessing the amount of assistance to be specified in an assistance certificate, the Court shall have regard to the conduct of the victim and to any other matters it considers relevant.
(2) Where the Court, on having regard under sub-section (1) to the conduct of the victim, is satisfied that the victim's conduct contributed to the injury or death of the victim it shall reduce the amount of assistance specified in the assistance certificate by such amount as it considers appropriate in all the circumstances."
[27] The Magistrate concluded that by reason of the words "any other matters it considers relevant" in s 10(1), he was required to take into account the conduct of the deceased as disclosed in the sentencing remarks of the sentencing Judge. From those remarks his Worship concluded that the deceased's conduct contributed to his death in that had he not been the aggressor it was unlikely that he would have been stabbed to death. In those circumstances his Worship expressed the view that had the deceased survived and sought crimes victims assistance "it is unlikely he would have received an assistance certificate specifying an amount greater than zero". His Worship then expressed the opinion that it would be contrary to public policy that a parent receive crimes victims assistance when the child would not have received that assistance had the child survived and, therefore, there was "a public policy reason here for there being no crimes victims assistance".
[28] The wording of s 10 is broad. It applies to all applications for assistance and is not limited to applications by "victims" for assistance. Section 5(2) enables dependants of a deceased victim to apply for an Assistance Certificate in respect of financial loss suffered by the dependants. Section 5(2A) enables the widow, widower or de facto partner of a deceased victim or the parent of a deceased victim who had not attained the age of 18 years to apply for an Assistance Certificate in respect of grief suffered by the complainant as a result of the death of the victim. Such applicants may pursue a claim even if they are not a "victim" because they did not suffer an "injury" as defined in s 4(1).
[29] Section 10(1) directs the Court to have regard to the conduct of "the victim" when considering an application for an Assistance Certificate and in assessing the amount of assistance to be specified in a certificate. "Victim" is defined in s 4(1) of the Act as meaning "a person who is injured or dies as a result of the commission of an offence by another person".
[30] Subsection (2) of s 10 is linked to subs (1) by its wording. It directs that where the court, on having regard under subs (1) to the conduct of "the victim", is satisfied that "the victim's" conduct contributed to the "injury or death of the victim", the court shall reduce the amount of assistance by such amount as it considers appropriate. In my opinion when s 10(2) refers to the "injury of death of the victim", it is referring to the injury or death of the same victim to whose conduct the court is required by s 10(1) to have regard.
[31] The appellant submitted that on his application for assistance the Court was required to have regard only to his conduct and not to the conduct of the deceased victim who was the immediate subject of the offence ("the deceased primary victim"). Counsel contended that a victim such as the appellant who is not the immediate subject of the offence, but is nonetheless injured as a result of the commission of the offence ("a secondary victim"), should not be put in the position where a claim for assistance could be adversely affected by the conduct of the deceased primary victim over whom the appellant had no control.
[32] Counsel for the respondents submitted that an attempt to construe s 10 as requiring consideration only of the conduct of a secondary victim such as the appellant, thereby excluding consideration of the conduct of the deceased primary victim, runs foul of both the definition of "victim" and the reference in s 10(2) to the victim's conduct contributing to the "injury or death" of the victim. In addition, counsel contended that as s 10 applies to an application for assistance by persons such as dependants or widows pursuant to s 5(2) and (2A) and requires the court on such applications to take into account the conduct of the deceased primary victim, unless the plain wording of the statute dictates otherwise, the same interpretation should apply on an application by a secondary victim such as the appellant.
[33] As to the second point made by the respondents, I have already indicated my view that s 10 applies to all applications for assistance even if the applicant is not a victim for the purposes of the Act. When s 5(2) and (2A) are read together with s 10, in my opinion s 10 requires the court on an application by a dependant or widow to have regard to the conduct of the deceased primary victim. In those situations, the claim for assistance might be adversely affected by the conduct of the deceased primary victim over whose conduct the applicant had no control. The legislation contemplates that "innocent persons" who suffer indirectly as a result of the commission of the offence and whose conduct in no way contributed to the death of the deceased might have their claims reduced or denied by reason of the conduct of the deceased primary victim.
[34] In those circumstances, there is considerable force in the submission of the respondents that the same interpretation of s 10 should apply in respect of an application by a secondary victim such as the appellant. It could be argued that a secondary victim such as the appellant is in a different position from a widow or dependant because, for the purposes of the Act, the appellant is injured and is, therefore, a "victim" whereas for the purposes of these types of claims a dependant or widow is not a victim and the claim is not for a injury suffered as a result of the commission of the offence. However, in my opinion that approach would take an excessively narrow view of the impact of the offence upon a dependant or widow. While for the purposes of a claim pursuant to s 5(2) and s 5(2A) the dependant or widow may not be a victim and may not be regarded as having suffered an "injury" as defined by the Act, both are claiming for losses sustained as a result of the death of the deceased person upon whom they were dependent. A claim by a dependant is a claim for financial loss while the claim by the widow is for grief, that is, a claim for suffering as a result of the death. All of the claimants have suffered and the only difference for these purposes is the nature of the suffering for which the claim is made. In those circumstances it would be surprising if the Legislature intended that the conduct of a deceased primary victim could adversely affect a claim by a dependant or widow, but would have no impact upon a claim by a secondary victim such as the appellant.
[35] I return to the wording of s 10. For the purposes of s 10, who is "the victim" to whose conduct the court must have regard? Applying the definition of "victim", the court is directed to have regard to the conduct of "a person who is injured or dies as the result of the commission of an offence by another person". On an application by a secondary victim such as the appellant, on its face that definition would encompass both the appellant and the deceased primary victim.
[36] Read in this way, on an application by the appellant, there are two victims to whose conduct the court is required to have regard, namely, the deceased primary victim and the appellant.
[37] Separate exercises are required. When attention is directed to the conduct of the deceased primary victim under subs (1), pursuant to subs (2) the court then considers whether the conduct of that victim contributed to that victim's death. When having regard to the conduct of the secondary victim who is making the application, the court considers whether that secondary victim's conduct contributed to the injury of that secondary victim.
[38] Read in this way, there is nothing difficult or strained about the application of the words of s 10 to the circumstances under consideration or to other types of applications. In addition, there is nothing in the wording of s 10 or any other part of the Act which would suggest that on an application by a secondary victim for assistance, s 10 was not intended to require the court to take into account the conduct of a deceased primary victim. However, in support of the construction for which he contended, counsel for the appellant submitted that such an interpretation does not sit well with the remedial nature of the legislation and the general approach taken to such legislation by way of beneficial construction.
[39] The concept of beneficial construction of remedial legislation is often called in aid of an interpretation that supports a claimant for compensation. This issue was discussed recently by the High Court in Victims Compensation Fund Corp v Brown (2003) 201 ALR 260. The Court emphasised that to focus on a beneficial interpretation because of the remedial objectives of a statute can tend to obscure the essential task of the Court which is to determine the interpretation that the wording of the legislation requires. In a judgment with which the other four members of the Court agreed, Heydon J observed [33]:
"Although the purpose of the Act is beneficial, it does not follow that recovery is contemplated for every act of violence or every consequence that could be described as an injury."
[40] In that matter the High Court was concerned with New South Wales legislation of a type similar to the legislation under consideration in this matter. Earlier in his judgment, in referring to a particular construction which might appear to be harsh in the context of remedial legislation, his Honour observed [29]:
"Even if it 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."
[41] In my opinion, the plain wording of s 10 and its relationship with applications pursuant to s 5, particularly those applications made by applicants who are not victims, evinces an intention on the part of the Legislature to impose limits on amounts to be paid pursuant to the Act based on considerations of the conduct of the primary victim who was the immediate subject of the offence. A policy is evident which contemplates that notwithstanding that a claimant for assistance might not have contributed in any way to the injury or death of the primary victim, nevertheless the opportunity for such claimants to obtain assistance might be adversely affected and limited by reason of the conduct of the primary victim which contributed to the injury or death caused to the primary victim.
[42] In view of the decision I have reached as to the interpretation of s 10, it is unnecessary to consider the precise meaning and reach of the direction in s 10(1) that the court shall take into account "any other matters it considers relevant". A number of authorities have examined the meaning of that type of expression in compensation legislation. A useful discussion appears in South Australia v Nguyen (1991) 57 SASR 252.
[43] For present purposes, it is sufficient for me to observe that in my opinion there are considerable difficulties that attend the reasoning of the Magistrate. If, as his Worship apparently incorrectly reasoned, the reference in the body of s 10 to the conduct of the victim did not include the conduct of a deceased victim, the words "any other matters [the court] considers relevant" could not be properly used to bring into account the conduct of a deceased victim as a basis for denying or reducing an Assistance Certificate.
[44] A further basis for refusing an Assistance Certificate to the appellant was argued. Counsel for the respondents submitted that the Magistrate was obliged to refuse to grant an Assistance Certificate as a consequence of the operation of s 12(f) of the Act.
[45] Section 12 identifies a number of circumstances in which a court shall not issue an Assistance Certificate. In particular s 12(f) provides that the court shall not issue an Assistance Certificate "in respect of an injury or death that occurred during the commission of a crime by the victim". The respondents submitted that the appellant's claim is barred because the death of the deceased occurred during the commission of a crime by the deceased upon the second respondent, namely, an aggravated assault (s 3 and s 188(2)(b) of the Criminal Code).
[46] The evidence of the aggravated assault was said to come from the sentencing remarks of the sentencing Judge which were tendered as part of the appellant's case. It is unnecessary to decide whether sentencing remarks can amount to a sufficient basis for a finding that the death occurred during the commission of a crime by the deceased victim. Section 17 of the Act provides that the court may receive in evidence any "transcript of evidence" in proceedings in another court and may draw conclusions of fact from such transcript. However, the remarks of a sentencing Judge are not transcript of evidence.
[47] Section 15 of the Act directs the court to conduct the proceedings with as little formality and technicality as the requirements of the Act and a proper consideration of the application permit. Subsection (3) provides that the court is not bound by any rules of evidence and that the court may inform itself on any matter in such manner as it thinks fit. Read literally those words would include the use of sentencing remarks as a basis for finding that the death of a deceased victim occurred during the commission of a crime by that victim. However it should be remembered that wording such as that which appears in s 15(3) does not give the court a completely unfettered discretion. There are limits to the way in which a court may inform itself notwithstanding the apparent breadth of the words. It should also be remembered that in cases where a death has occurred, a sentencing court is often left with no option but to act upon an offender's version of the facts which is untested by cross-examination and which cannot be contradicted because the victim is deceased.
[48] On the assumption that as the appellant tendered the sentencing remarks they provided a sufficient basis for a finding that the deceased's death occurred during the commission of a crime by him, the critical question is whether s 12(f) is capable of applying to a claim by a secondary victim such as the appellant.
[49] Section 12 contains a general direction that the court shall not issue an Assistance Certificate in particular circumstances. The section applies to all applications for an Assistance Certificate. Included in the circumstances in which the court is directed not to issue an Assistance Certificate are circumstances relating to the conduct of an applicant or a victim. For example, s 12(c) requires that the court shall not issue a certificate "where an applicant or victim has failed to assist the Police Force in the investigation or prosecution of the offence". As an "applicant" is defined in s 4(1) as meaning a person who makes an application under s 5, an applicant may be a victim or a person such as a dependant or widow. On a claim by a dependant or widow under s 5(2) or (2A), therefore, the reference to "victim" in s 12(c) must be a reference to a deceased primary victim. The Legislature contemplated that an applicant such as a dependant or a widow might be denied an Assistance Certificate if a deceased primary victim had the opportunity to assist the Police Force in the investigation of the offence and failed to do so.
[50] Bearing in mind the context in which s 12 operates, in my opinion the ordinary meaning of the words "in respect of" in s 12(f) extends the operation of that subsection to a claim by a person such as a dependant who seeks assistance in respect of the financial loss suffered as a consequence of the death of the victim. Similarly, the subsection would apply to a claim pursuant to s 5(2A) in respect of grief suffered as a result of the death of the victim. They are claims "in respect of" the death of the deceased. If that death occurred during the commission of a crime by that victim, the effect of s 12(f) is to deny a claim for assistance by a person such as a dependant or widow.
[51] As to a claim by the appellant who was a secondary victim, and on the assumptions that the appellant suffered a mental injury and that the deceased died during the commission of a crime by the deceased, there are two circumstances in which s 12(f) would require that an Assistance Certificate be refused. First, if the appellant's mental injury occurred during the commission of the crime by the deceased. Secondly, if the appellant's claim based on mental injury is a claim "in respect of" the death of the deceased.
[52] In my opinion the ordinary meaning of the words "occurred during the commission of a crime" mean that the injury for which the claim is made must have been sustained contemporaneously with the commission of the crime by the deceased victim. The appellant's mental injury was not sustained contemporaneously with the commission of the crime by the deceased.
[53] In my view, however, the claim based on mental injury is a claim for assistance "in respect of" the death of the deceased. The appellant's case is that his mental injury was directly caused by the death of his son. It is a claim for assistance in respect of that death.
[54] My view in this regard is confirmed when regard is had to the policy that is evident in the Act and, in particular, in s 12(f). The Legislature intended that in respect of claims for assistance arising out of the death of a primary victim, Assistance Certificates should be reduced or denied if the deceased's conduct contributed to the death or occurred during the commission of a crime by the deceased. The wording of the Act has the effect that this policy prevails even if the person claiming assistance did not and could not have contributed to the conduct of the deceased. This is the type of policy to which the High Court referred in Victims Compensation Fund Corp v Brown.
[55] In my opinion, the ordinary meaning of the words "in respect of", combined with both the fact that s 12(f) applies to a claim by a person such as a dependant or widow and the policy of the Act, require an interpretation that applies s 12(f) to the appellant's claim because his claim is "in respect of" the death of the victim which occurred during the commission of a crime by the victim.
[56] The appeal is dismissed.
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