AB v Victims of Crimes Assistance Tribunal
[2015] VSC 245
•5 June 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2015 1808
| AB | Plaintiff |
| v | |
| VICTIMS OF CRIME ASSISTANCE TRIBUNAL OF VICTORIA and AC and AD | First Defendant Second Defendant Third Defendant |
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JUDGE: | McDONALD J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 May 2015 |
DATE OF JUDGMENT: | 5 June 2015 |
CASE MAY BE CITED AS: | AB v Victims of Crimes Assistance Tribunal and Ors |
MEDIUM NEUTRAL CITATION: | [2015] VSC 245 |
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JUDICIAL REVIEW — Victims of Crime Assistance Act 1996 (Vic) — Decision to excuse witness from giving evidence — Complainant’s mother apprehended that Complainant may self-harm if mother gave evidence — Whether tribunal had power to excuse mother from giving evidence — Whether person found by Tribunal to have committed an act of violence has a right of review to Victorian Civil and Administrative Tribunal.
Victims of Crime Assistance Act ss 1, 3, 7, 32, 33, 34, 38, 50, 59, 60.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Carr | Doogue O’Brien George Criminal Lawyers |
For the First Defendant | Ms E A Bennett | Victorian Government Solicitor’s Office |
| For the Second Defendant | Mr A Furstenberg | Lewenberg Solicitors |
| For the Third Defendant | Mr M Gregurek | Ryan Carlisle Thomas Lawyers |
HIS HONOUR:
The third defendant, AD, has made an application to the Victims of Crime Assistance Tribunal (‘the Tribunal’) for an award of assistance in respect of alleged physical and sexual abuse perpetrated by her father, AB. The application has been made pursuant to the Victims of Crime Assistance Act 1996 (‘the Act’). AB has been given notice by the Tribunal of AD’s application. As a result, pursuant to s 35(4) of the Act he has become a party to the proceedings in the Tribunal. He wishes to call his wife AC, the second defendant, to give evidence in the Tribunal proceedings to corroborate his denial of the allegations against him.
It is not in issue that AD has a history of serious mental health issues, including multiple suicide attempts. At a hearing in the Tribunal on 20 February 2015, a preliminary question arose as to whether AC should be excused from giving evidence in the proceedings. As at 20 February 2015, no summons had been issued requiring AC to give evidence, but counsel for AC informed the Tribunal that a summons was going to be sought by AB.[1]
[1]Transcript of proceedings, AB v AD & Anor (Victims of Crime Assistance Tribunal, 2013/02192, Magistrate T A D Barrett, 20 February 2015) T1 L16.
On 20 February 2015, counsel for AC made the following submission:
So my client’s grave concern your Honour, is that if she were compelled to give evidence the relationship between her and her daughter would be forever gone. But more importantly, she has serious concerns about potential self-harm or attempts on her life as a result of AD seeing my client give evidence.[2]
[2]Ibid T2 LL7–12.
Having heard a submission from AB’s counsel that AB intended to persevere with a request to have AC give evidence on his behalf, the Tribunal Member stated:
Well it seems to me subject to any further submissions by either of you that the risks to self-harm is too great to require AC to give evidence and subject to other submissions that either party wishes to make I intend to make that ruling.[3]
[3]Ibid T3 LL17–21.
In response to a request from AB’s counsel to provide reasons for the ruling that AC be excused from giving evidence, the Tribunal Member stated:
Mental and physical health of the applicant was paramount and should not be threatened, put at risk in the evidence that AC could have given as submitted by Mr Furstenberg.[4]
[4]Ibid T15 LL11–15.
On 21 April 2015, AB commenced proceedings under O 56 of the Supreme Court (General Civil Procedure) Rules 2005. He seeks an order in the nature of certiorari quashing the Tribunal’s decision that AC be excused from giving evidence. He also seeks a declaration that he is permitted to call AC to give evidence or alternatively, an order in the nature of mandamus requiring the Tribunal to permit him to call AC to give evidence in the proceeding.
The plaintiff advanced three principal arguments in support of the proposition that the Tribunal’s decision excusing AC from giving evidence should be quashed. First, that the Tribunal had no power to excuse AC from giving evidence. Second, that in doing so, the Tribunal breached its obligation to afford AB a reasonable opportunity to call evidence. Third, that the Tribunal took into account irrelevant considerations.
Before addressing these submissions, it is important to consider the nature of the decision which is the subject of the plaintiff’s application for judicial review. The decision to excuse AC from giving evidence is properly characterised as an interlocutory decision. The substantive hearing before the Tribunal of AD’s application for an award of assistance has not commenced. The proceedings on 20 February 2015 were concerned only with procedural matters, which included the question of whether AC should be excused from giving evidence.
Where relief in the nature of certiorari or mandamus is sought in respect of a decision made at an early stage of proceedings, intervention by a court exercising powers of judicial review may be appropriate if it can be clearly established that the tribunal below has purported to exercise a power which it does not have. However, where the challenge to a tribunal’s exercise of power is contestable, a court is required to exercise constraint and not interfere with proceedings in the absence of some clear reason to do so. Such reasons must be sufficient to out-weigh the undesirability of fragmentation and delay in the processes of the law.[5]
[5]See, eg, Jae Kyung Lee v Bob Chae – Sang Cha and Ors [2008] NSWCA 13 [35]–[36] (Baston JA); Wo v Director of Public Prosecutions (NSW) [2009] NSWCA 370 [19] (Baston JA) (Fullerton & McCallum AJJA agreeing); Makucha v Sydney Water Corporation [2011] NSWCA 234 [10] (Baston JA); DPP v Kaba (2014) 69 MVR 137 [11].
The practical effect of the Tribunal’s decision to excuse AC from giving evidence is that AB has been denied the ability to call evidence to corroborate his denials. In relation to appellate intervention — as opposed to judicial review, and in respect of an evidentiary ruling — the Court of Appeal has recently observed: ‘Breaches of natural justice aside, appellate intervention in relation to an evidentiary ruling would only ever be warranted if it could be shown that the Tribunal’s discretion had wholly miscarried…’[6]
[6]Christian Youth Camps Ltd v Cobaw Community Health Services Ltd (2014) 308 ALR 615 [257].
It therefore is necessary to consider whether the Tribunal clearly lacked the power to excuse AC from giving evidence.
Section 32(1)(a) of the Act provides that in all matters before it the Tribunal must act fairly.
Section 34 of the Act provides:
(1)If the Tribunal decides to conduct a hearing of an application, it must fix a time and place for the hearing and give the applicant reasonable notice of it.
(2)The Tribunal may give notice of the time and place for the hearing to any other person whom the Tribunal considers to have a legitimate interest in the matter.
(3)The Tribunal must not under subsection (2) give notice of the time and place for the hearing to the person who committed, or is alleged to have committed, the act of violence without first giving the applicant any opportunity to be heard on the issue of whether or not that notice should be given.
Section 38(1) of the Act provides that on the hearing of a matter, the Tribunal:
(a) is not required to conduct itself in a formal manner;
(b)is not bound by rules or practices as to evidence but may inform itself in relation to the matter in any matter that it thinks fit;
(c)must give a party to the matter a reasonable opportunity to –
(i)call or give evidence;
(ii)examine, cross-examine or re-examine witnesses;
(iii) make submissions to the Tribunal.
During the course of the hearing before me on 11 May 2015, I asked Mr Carr, who appeared as counsel for AB, whether he submitted that the Tribunal had no power in any circumstances to excuse a witness from giving evidence.[7] Mr Carr submitted that s 38(1)(c) of the Act, although not an express power to excuse a witness, does confer power on the Tribunal to limit the right of a party to call or give evidence if this is consistent with affording parties procedural fairness. He submitted that the Tribunal had power to excuse a witness from giving evidence ‘… by virtue of s 38(1)(c), where a party has already had a reasonable opportunity to call or give evidence or to make submissions such that the obligation of procedural fairness has been afforded to that party, a power to control — to limit the right of that party to call further evidence, make further submissions, give further evidence or cross-examine further.’[8] However, Mr Carr submitted that s 38 does not permit the Tribunal to have regard to issues relating to a complainant’s well-being in considering an application to excuse a witness.[9]
[7]Transcript of Proceedings, AB v Victims of Crimes Assistance Tribunal & Ors (Supreme Court Victoria, S CI 2015 1808, McDonald J, 11 May 2015) T12 LL16-18.
[8]Ibid T13 L28–T14 L2.
[9]Ibid T22 LL6-30.
Mr Carr submitted that the well-being of an applicant can only be taken into consideration under s 34(2) and (3) of the Act when the Tribunal is determining whether to notify a person who is alleged to have committed an act of violence of the existence of the proceedings. Mr Carr submitted that if the Tribunal is appraised of a risk of self-harm or suicide of an applicant it could legitimately take this into account in deciding to refrain from notifying a person alleged to have committed an act of violence. However, once the Tribunal has notified a person alleged to have committed an act of violence of the time and place of a hearing, the Tribunal is precluded from taking into account thereafter the risk of self-harm to the applicant. In particular, it cannot take account of that risk in considering an application by a witness to be excused from giving evidence. Mr Carr submitted that this would be so even in an extreme case where the Tribunal had direct expert evidence from a psychiatrist that there was a significant risk of suicide by an applicant if a witness gave evidence corroborating the evidence of an alleged perpetrator of violence.[10]
[10]Ibid T23 L22–T24 L6.
Ms Bennett appeared in the proceedings before me on behalf of the Tribunal. The Tribunal is the first defendant in these proceedings. It did not adopt the course of simply submitting to the outcome of the plaintiff’s application. Rather, Ms Bennett appeared on behalf of the Tribunal and made helpful submission on its behalf regarding the construction of the Act. Ms Bennett rejected Mr Carr’s submission that the power of the Tribunal to excuse a witness can only be utilised in circumstances where the exercise of that power is related to questions of procedural fairness. Ms Bennett also rejected Mr Carr’s submission that the Tribunal’s capacity to take into consideration any potential adverse impact on the well-being of an applicant is limited in point in time to the time at which the Tribunal gives consideration as to whether or not an alleged perpetrator of an act of violence is to be notified of the hearing. Ms Bennett submitted that the power to determine the Tribunal’s procedures is ‘not fettered so that it is exhausted at the s 34(2) stage.[11] Ms Bennett submitted that the Tribunal’s capacity to take into account potential ill-effects upon an applicant arising from an alleged perpetrator’s involvement in proceedings is not confined to the pre-hearing stage but extends to the substantive hearing of an application.
[11]Ibid T37 LL24-7.
Mr Carr submitted that the duty of the Tribunal under s 32(1)(a) of the Act to conduct itself fairly is confined to affording procedural fairness to the parties to proceedings in the Tribunal. To the contrary, Ms Bennett submitted that the duty to act fairly is not confined to questions of procedural fairness. Ms Bennett submitted that ‘… this is a Tribunal that has substantial discretion to act in the substantial interests of the case and the Tribunal resists any construction that would limit its capacity to determine what is fair in the circumstances of the case.’[12]
[12]Ibid T38 LL19-23.
The fact that the Tribunal has seen fit to brief counsel to advance submissions regarding the construction of the Act which are inconsistent with those advanced on behalf of AB, is a matter which I have taken into account in concluding that it is not clear that the Tribunal did not have power to excuse AC from giving evidence. However, independently of the submissions advanced on behalf of the Tribunal, I have concluded that it is not clear that the Tribunal does not have power to excuse a witness in the circumstances of the present case. In reaching this conclusion, I am prepared to assume in the plaintiff’s favour that the duty to act fairly under s 32(1)(a) of the Act is confined to a duty to afford parties procedural fairness. I am also prepared to assume that the requirement imposed on the Tribunal by s 38(1)(c) to give a party a reasonable opportunity to call evidence requires the Tribunal to afford procedural fairness to the party seeking to call the evidence.
In Kioa v West[13] Mason J stated that what is appropriate in terms of procedural fairness depends on the circumstances of the case and will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting:
In this respect the expression ‘procedural fairness’ more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of a particular case. The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permit to be taken into account as legitimate considerations.[14]
[13](1985) 159 CLR 550 (‘Kioa’).
[14]Ibid 585.
When considering the parameters of the duty of the Tribunal to afford procedural fairness to a party to proceedings before the Tribunal (whether an applicant or an alleged perpetrator of an act of violence), a number of aspects of the scheme of the Act are significant.
The purpose of the Act is to provide assistance to victims of crime: s 1(1). A primary victim of an act of violence is a person who is injured or dies as a direct result of an act of violence committed against him or her: s 7(1). An ‘act of violence’ means a criminal act or a series of related criminal acts that have occurred in Victoria and directly resulted in injury or death: s 3(1). A primary victim may be awarded assistance by the Tribunal of up to $60,000 plus special financial assistance for significant adverse effects: s 8(1). The Tribunal may determine an application or make a decision in relation to an application without conducting a hearing: s 33(1). The Tribunal must not give notice of the time and place for the hearing to the person who committed, or who is alleged to have committed, the act of violence, without first giving the applicant the opportunity to be heard on the issue of whether or not that notice should be given: s 34(3). The Tribunal may, on its own initiative or on the application of a party to a proceeding, direct that alternative arrangements be made for the giving of evidence by a witness: ss 34(2) and (3). The Tribunal has investigative powers, including the power to authorise a person to make any inquiry or carry out any investigation on behalf of the Tribunal necessary to furnish the Tribunal with further information that it requests: s 39.
Tribunal proceedings are confidential unless an order to the contrary is made: s 43. The Tribunal may award assistance in respect of an act of violence even though no person has been charged with, or found guilty of, an offence arising out of the commission of that act of violence: s 50(4).
The Tribunal’s power to make an award of assistance to an applicant is preconditioned upon a finding that the applicant is a victim of a criminal act. Notwithstanding this, the exercise of the Tribunal’s powers is not constrained by the accusatorial system of criminal justice which underpins the trial of a criminal charge.[15] The Act does not enshrine the concept of a fair trial of a person alleged to have committed the criminal act which enlivens the Tribunal’s power to award compensation to a victim. So much is plain from ss 33 and 34 of the Act. Under s 33, the Tribunal has power to make an award of compensation without even conducting a hearing. Under s 34(3) the Tribunal has the power to conduct the hearing without providing notice to the person who is alleged to have committed an act of violence. A necessary corollary of these powers is that the Tribunal can make a finding that a person has committed a criminal act and proceed to make an award of compensation, without that person being given an opportunity to defend him or herself against such an allegation.
[15]See Lee v New South Wales Crime Commission [2013] HCA 39 [125] (Crennan J), [171] (Kiefel J).
In Ainsworth v The Criminal Justice Commission the High Court observed:
It is now clear that a duty of procedural fairness arises, if at all because the power involved is one which may ‘destroy, defeat or prejudice a person’s rights, interests or legitimate expectations.’ Thus, what is decisive is the nature of the power, not the character of the proceedings which attends its exercise. That is not to deny that provision may be made permitting or requiring procedures which are wholly inconsistent with a requirement of procedural fairness.[16]
Plainly ss 33 and 34(3) fall into the category of provisions which are wholly inconsistent with a requirement of procedural fairness.
[16](1992) 175 CLR 564, 576 (emphasis added).
In the proceedings before me counsel for AB sought to rely upon the judgment of the Court of Appeal in Audsley v The Queen[17] in support of the proposition that it would be a rare occasion that would permit the exercise of the power to exclude otherwise admissible evidence sought to be led in a criminal trial.[18] The plaintiff’s reliance upon Audsley is misconceived. The Tribunal proceedings bear no comparison with a criminal trial. As between the applicant and a person alleged to have committed a criminal act, the interests of the applicant are afforded considerably more weight.
[17][2014] VSCA 321 (‘Audsley’).
[18]Ibid [46].
What does the duty to act fairly require in the circumstances of the present case? Having regard to the nature of proceedings before the Tribunal, it is inevitable that an applicant could be traumatised by the experience of encountering an alleged perpetrator in Tribunal proceedings. This is expressly acknowledged by the power to conduct a hearing without giving notice to the alleged perpetrator and the power to make alternative arrangements for the giving of evidence by a witness, as set out at para [22] above. These provisions demonstrate that the Act seeks to protect the interests of an applicant. The duty to act fairly — and the parameters of the obligation to provide an alleged perpetrator with a reasonable opportunity to call evidence— must be considered in the context of the statutory scheme. That scheme requires the interests of the applicant to be given due weight vis a vis the right of an alleged perpetrator to be accorded a reasonable opportunity to call evidence.
In the context of a statutory scheme which clearly affords greater weight to protecting and advancing the interests of an applicant, as opposed to affording the protections of the criminal justice system to an alleged perpetrator, the following question must be answered: Did the duty to act fairly permit the Tribunal to have regard to the possibility of AD committing suicide if AC gave evidence? Plainly, it is arguable that this question should be answered in the affirmative. As a matter of statutory construction, it would be a strange outcome if, as contended by the plaintiff, the Tribunal is only permitted to have regard to potential ill-effects upon an applicant prior to the commencement of a hearing.
Mental illness is unpredictable. The condition of a person suffering from a mental illness can deteriorate rapidly and unexpectedly. At the time of considering whether an alleged perpetrator is to be notified of a hearing, the condition of an applicant suffering from a mental illness may be such that there is no basis for apprehension of adverse consequences if the alleged perpetrator is notified of the proceeding. However, that situation could change significantly within a short period of time. If a literal construction of the Act produces the result that once an alleged perpetrator has been notified of a hearing, the Tribunal is precluded from having regard to an applicant’s mental illness when considering whether a witness should be excused from giving evidence, it is strongly arguable that the consequences of such a construction requires the Act to be read in a way which does not correspond with the literal construction.[19]
[19]See, eg, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 [78]; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, 47; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 321 (Mason and Wilson JJ).
In circumstances where AB seeks judicial review of the Tribunal’s decision — being an interlocutory decision — to excuse AC from giving evidence, it is unnecessary for me to express a concluded view as to whether the Tribunal had power to excuse AC from giving evidence. It is sufficient to conclude that a credible argument can be mounted that, in the circumstances before the Tribunal, the duty to act fairly under s 32(1) of the Act, in conjunction with the requirement to give AB a reasonable opportunity to call evidence, empowered the Tribunal to excuse AC from giving evidence. The question of whether the Tribunal had power to excuse AC from giving evidence is properly characterised as contestable. In these circumstances, I must exercise restraint and not interfere in the Tribunal’s proceedings absent a clear reason for doing so, sufficient to outweigh the undesirability of disruption and delay to those proceedings.[20]
[20]See above n 5. See also by way of analogy the established line of authority in respect of intervention in committal proceedings: Sankey v Whitlam (1978) 142 CLR 1 [25]-[26] (Gibbs ACJ), [80] (Stephen J), [81]-[82] (Mason J).
Far from there being a clear reason for the court intervening to grant the relief sought, there are a number of discretionary considerations which weigh heavily against doing so.
AB’s complaint as to the potential adverse consequences of being denied the opportunity to lead evidence from AC may prove to be entirely moot. Absent AC’s evidence, the Tribunal may nevertheless conclude that AB did not engage in the alleged criminal conduct. Counsel for AB conceded that in relation to the key allegations of sexual assault, AB has available testimony from his 18 year old son to corroborate his denials.[21] On no view could it be said that the Tribunal’s decision to excuse AC from giving evidence prevents AB from advancing a defence against the allegation that he sexually assaulted AD.[22]
[21]Transcript of Proceedings, AB v Victims of Crimes Assistance Tribunal & Ors (Supreme Court Victoria, S CI 2015 1808, McDonald J, 11 May 2015) T26 L17–T27 L15.
[22]Cf Rozenes v Beljajev [1995] I VR 533.
Further, if a final award of compensation is made in AD’s favour, it is arguable that AB has a right to apply to the Victorian and Civil Administrative Tribunal (‘VCAT’) for a review of the award pursuant to s 59(1)(b) of the Act. Section 59(1)(b) provides that:
A person whose interests are affected by the relevant decision may apply to the Victorian Civil and Administrative Tribunal for review of a final decision of the Tribunal –
(b)determining the amount of assistance on an application under Div 2 of Part 3.
Counsel for AB submitted that s 59(1)(b) of the Act only permits a review by VCAT of the quantum of an award of assistance and would not permit AB to challenge any underlying finding by the Tribunal that AB had engaged in the alleged criminal activity. I was informed by counsel that they were unaware of any authority which had considered the scope of the appeal rights conferred by s 59(1)(b) of the Act. My own research has confirmed the absence of any relevant authority. Nevertheless, I consider that it is arguable that AB would have a right to appeal to VCAT under s 59(1)(b) to challenge not only the quantum of any assistance awarded by the Tribunal, but also any underlying finding that he had engaged in criminal conduct.
First, AB would be a ‘person whose interests are affected’ by a decision of the Tribunal to make any award of assistance to AD. This is a necessary consequence of s 50(1) which prescribes that the Tribunal’s power to award assistance is contingent upon a finding by the Tribunal that an act of violence has occurred.
Second, the fact that the right to make an application extends to a person whose interests are affected by a relevant decision is consistent with the right to review under s 59(1)(b) of the Act extending beyond the person in whose favour an award of assistance has been made. The use of the phrase ‘a person whose interests are affected’ in s 59(1) is to be contrasted with s 60(1) relating to applications for variation of an award. Only the person ‘to whom, or for whose benefit, an award of assistance was made’ may make an application to vary an award.
If an award of assistance is made in favour of AD, AB could contend that the Tribunal erred in concluding that an act of violence occurred with the consequence that the Tribunal did not have any power to make any order. Pursuant to s 51 of the Victorian Civil and Administrative Tribunal Act 1998, when exercising its review jurisdiction, VCAT has all the functions of the Tribunal. As such, in any review proceedings, VCAT would need to be satisfied that an act of violence has occurred. The existence of a right of review in either VCAT or by way of O 56 is a matter which weighs heavily against the grant of certiorari and/or mandamus.[23] If I am incorrect — and s 59(1)(b) does not provide a right of review to VCAT — it is clear that AB would have the right to make further application under O 56 in the event the Tribunal makes an award of assistance to AD.
[23]R v Galvin; Ex parte Metal Traders Employers’ Association (1949) 77 CLR 432; R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100, 118–19.
All of the matters referred to above apply with equal force to the plaintiff’s application for declaratory relief. The grant of such relief is discretionary.[24] All of the matters referred to above weigh heavily against the exercise of discretion in favour of the grant of declaratory relief.
[24]XX v WW and Middle South Area Mental Health Service [2014] VSC 564 [45].
The second argument advanced by the Plaintiff is that, contrary to s 38(1)(c) of the Act, he was denied a reasonable opportunity to call evidence. The grounds in the Plaintiff’s originating motion dated 21 April 2015 do not contend jurisdictional error by reason of a denial of natural justice. The Plaintiff’s contention that he was denied a reasonable opportunity to call evidence was advanced as part of his contention that the Tribunal did not have power to excuse AC from giving evidence. However, even if the contention was advanced in support of an argument of denial of natural justice, I would reject it.
Whether, for the purposes of s 38(1)(c) of the Act, it is reasonable for a party to call evidence, consideration is required not only of the interests of the party proposing to call the evidence, but also other parties who may be affected by the evidence. The tribunal was entitled to have regard to the potentially serious adverse impact upon AD if AB was permitted to call AC to give evidence. As Mason J observed in Kioa, what is appropriate in terms of procedural fairness will depend on the circumstances of the case, including the nature of the inquiry before the Tribunal involved and determination of whether AD had been the victim of an act of violence. In according procedural fairness to AB, it was legitimate for the Tribunal — when assessing whether it was reasonable for AC to be excused from giving evidence — to take into account the potentially serious adverse impact upon AD of the proposed evidence.
The final matter advanced by the plaintiff in support of the relief sought is the contention that the Tribunal took into account irrelevant considerations. First, the plaintiff submitted that the Tribunal took into account the fact that — as sexual offences tend to occur in private — in most cases of alleged sexual wrongdoing the person accused is left with a bare denial, that is, a word-on-word case. Second, the plaintiff submitted that the Tribunal took into account that it is common that applications by family members to not give evidence are granted in criminal cases. He submits that the Tribunal failed to have regard to the fact that where family witnesses do not give evidence in criminal trials this protects the accused, not the accuser.
Neither of these alleged irrelevant considerations justifies the relief sought by the plaintiff. I have set out earlier in this judgment the primary consideration which underpinned the Tribunal’s decision to excuse AC from giving evidence. I have no hesitation in concluding that the primary consideration underpinning the Tribunal’s decision was a submission advanced on behalf of AC that if she gave evidence corroborating AB’s denial, there was a risk of AD self-harming, including suicide. This is the matter which the Tribunal identified in response to a specific request on behalf of AB’s counsel to give reasons for the decision.
Further, in order for a decision to be impugned on the ‘irrelevant considerations’ ground, not only must the consideration have been irrelevant, but the Act must have forbidden its consideration.[25] On a fair reading of the Tribunal’s decision, the alleged irrelevant considerations were not the basis of the Tribunal’s decision. However, even if they were, there is nothing in the scheme of the Act which forbade the Tribunal from taking the two matters into consideration.
[25]Aronson and Groves, Judicial Review of Administrative Action (Thomson Reuters, 5th ed, 2013) [5.30]; Love v State of Victoria & Anor [2009] VSC 215 [191].
Conclusion
I am not satisfied that it is clear that the Tribunal did not have power to excuse AC from giving evidence. To the contrary, I am satisfied that there are credible arguments in support of the Tribunal having the power to excuse a witness from giving evidence in circumstances where such evidence could result in an applicant committing an act of self-harm, including suicide. I am not satisfied that the plaintiff had identified discretionary considerations which outweigh the undesirability of fragmenting and further delaying the proceedings in the Tribunal. The plaintiff’s application by originating motion is dismissed. The plaintiff will be ordered to pay the second and third defendant’s costs. The first defendant did not seek an order for costs.
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