Attorney General for Western Australia v Her Honour Judge Schoombee
[2012] WASCA 29
•9 FEBRUARY 2012
ATTORNEY GENERAL FOR WESTERN AUSTRALIA -v- HER HONOUR JUDGE SCHOOMBEE [2012] WASCA 29
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 29 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:10/2011 | 5 SEPTEMBER 2011 | |
| Coram: | MARTIN CJ NEWNES JA MURPHY JA | 9/02/12 | |
| 23 | Judgment Part: | 1 of 1 | |
| Result: | CACV 10 of 2011 Appeal upheld Decision SW v BB [2010] WADC 86 quashed CACV 135 of 2011 Application for leave to appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | ATTORNEY GENERAL FOR WESTERN AUSTRALIA HER HONOUR JUDGE SCHOOMBEE SW |
Catchwords: | Criminal injuries compensation Second respondent injured when committing a separate offence District Court judge awarded compensation Jurisdiction to quash District Court decision Jurisdictional error in application of s 39(1) of the Criminal Injuries Compensation Act 2003 (WA) Certiorari granted |
Legislation: | Supreme (Court of Appeal) Rules 2005 (WA), r 33 Criminal Injuries Compensation Act 2003 (WA), s 12, s 30(1), s 36, s 38, s 39, s 39(1), s 39(1)(b), s 41, s 56 District Court of Western Australia Act 1969 (WA), s 42, s 50, s 80 Interpretation Act 1984 (WA), s 19 Misuse of Drugs Act 1981 (WA), s 5(1)(b), s 6(2) |
Case References: | Commissioner of Taxation v Anstis [2010] HCA 40; (2010) 241 CLR 443 Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163 Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531 Lacy v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573 March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; (2003) CLR 476 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Re Her Honour Judge Schoombee; Ex parte Attorney General for Western Australia [2011] WASC 23 Re Richardson [2009] WADC 93 Singh v Commonwealth of Australia [2004] HCA 43; (2004) 222 CLR 322 SW v BB [2010] WADC 86 The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40 Victims Compensation Fund Corp v Brown [2003] HCA 54; (2003) 201 ALR 260 Victims Compensation Fund v Brown [2002] NSWCA 155; (2002) 54 NSWLR 668 Wilson v Metaxas [1989] WAR 285 Zheng v Cai [2009] HCA 32; (2009) 239 CLR 446 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ATTORNEY GENERAL FOR WESTERN AUSTRALIA -v- HER HONOUR JUDGE SCHOOMBEE [2012] WASCA 29 CORAM : MARTIN CJ
- NEWNES JA
MURPHY JA
- Applicant
AND
HER HONOUR JUDGE SCHOOMBEE
First Respondent
SW
Second Respondent
- Appellant
AND
ATTORNEY GENERAL FOR WESTERN AUSTRALIA
Respondent
(Page 2)
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : CORBOY J
Citation : RE HER HONOUR JUDGE SCHOOMBEE; EX PARTE ATTORNEY GENERAL FOR WESTERN AUSTRALIA [2011] WASC 23
File No : CIV 2670 of 2010
Catchwords:
Criminal injuries compensation - Second respondent injured when committing a separate offence - District Court judge awarded compensation - Jurisdiction to quash District Court decision - Jurisdictional error in application of s 39(1) of the Criminal Injuries Compensation Act 2003 (WA) - Certiorari granted
Legislation:
Supreme (Court of Appeal) Rules 2005 (WA), r 33
Criminal Injuries Compensation Act 2003 (WA), s 12, s 30(1), s 36, s 38, s 39, s 39(1), s 39(1)(b), s 41, s 56
District Court of Western Australia Act 1969 (WA), s 42, s 50, s 80
Interpretation Act 1984 (WA), s 19
Misuse of Drugs Act 1981 (WA), s 5(1)(b), s 6(2)
Result:
CACV 10 of 2011
Appeal upheld
Decision SW v BB [2010] WADC 86 quashed
CACV 135 of 2011
Application for leave to appeal dismissed
(Page 3)
Category: A
Representation:
CACV 10 of 2011
Counsel:
Applicant : Mr R M Mitchell SC & Mr A K Sharpe
First Respondent : No appearance
Second Respondent : Mr C P Shanahan SC
Solicitors:
Applicant : State Solicitor for Western Australia
First Respondent : No appearance
Second Respondent : Leonard Cohen Legal
CACV 135 of 2010
Counsel:
Appellant : Mr C P Shanahan SC
Respondent : Mr R M Mitchell SC & Mr A K Sharpe
Solicitors:
Appellant : Leonard Cohen Legal
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Commissioner of Taxation v Anstis [2010] HCA 40; (2010) 241 CLR 443
Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163
Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531
Lacy v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; (2003) CLR 476
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
(Page 4)
Re Her Honour Judge Schoombee; Ex parte Attorney General for Western Australia [2011] WASC 23
Re Richardson [2009] WADC 93
Singh v Commonwealth of Australia [2004] HCA 43; (2004) 222 CLR 322
SW v BB [2010] WADC 86
The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40
Victims Compensation Fund Corp v Brown [2003] HCA 54; (2003) 201 ALR 260
Victims Compensation Fund v Brown [2002] NSWCA 155; (2002) 54 NSWLR 668
Wilson v Metaxas [1989] WAR 285
Zheng v Cai [2009] HCA 32; (2009) 239 CLR 446
(Page 5)
- MARTIN CJ:
Summary
1 There are two matters before the court. The first is the return of an order nisi granted by Corboy J at the request of the Attorney General of Western Australia, who seeks an order that a writ of certiorari be issued quashing an order made by a judge of the District Court allowing an appeal from a decision of an Assessor made under the Criminal Injuries Compensation Act 2003 (WA) (the Act). The judge awarded SW, the applicant for compensation, $40,592 by way of compensation pursuant to the provisions of the Act: see SW v BB [2010] WADC 86. The Attorney General asserts that the judge misconstrued the jurisdiction to award compensation conferred by the Act, thereby exceeding the jurisdiction conferred upon the court by the Act. SW contends that even if the judge was in error in her construction of the Act, her decision should nevertheless be upheld for reasons other than the reasons which she gave.
2 The second matter before the court is an application for leave to appeal from the decision of Corboy J granting the order nisi in the first matter before the court: see Re Her Honour Judge Schoombee; Ex parte Attorney General for Western Australia [2011] WASC 23.
3 For the reasons which follow, the orders sought by the Attorney General should be granted and the decision of the District Court judge quashed. SW's notice of contention and her application for leave to appeal should each be dismissed.
SW's claim for compensation
4 SW claimed compensation under the Act in respect of injuries which she suffered as a consequence of the commission of the offences of indecent assault and sexual penetration without consent which were perpetrated against her at her home in November 2007. The perpetrator of each offence, a person I shall call BB, pleaded guilty to each offence and was convicted and sentenced for each in the District Court. Amongst the materials provided to the Assessor of compensation was an unsigned copy of a statement made by SW to police shortly after the commission of the offences. SW accepts that she signed each page of a statement in the same terms (appeal ts 6).
5 The statement provides evidence of the circumstances in which the offences were committed. Its salient features follow.
(Page 6)
6 SW was 37 years of age at the time of the commission of the offences and lived with her husband and their five children, and a friend. Shortly before midday on the day of the offences, SW was visited by the friend who shared her house, another friend of hers, and BB, who was acquainted with the visitors. SW was told that the visitors had amphetamines. According to her statement, SW and her husband took amphetamines once every few months, by smoking it through a glass pipe.
7 BB asked SW if she had a pipe, which she took to mean a pipe to be used to smoke amphetamines. She advised BB that there was one in her bedroom and suggested that they smoke the amphetamines in that room. She and BB went to the bedroom where she retrieved the pipe from a cupboard in the adjoining bathroom, and gave it to BB. BB produced a plastic bag containing amphetamine, some of which he put into the pipe which he had been given by SW. He then used a lighter to heat the amphetamine in the bowl of the pipe. BB and SW then proceeded to smoke the amphetamine, after which BB refilled the pipe and had another smoke.
8 SW's housemate and her friend then left, leaving SW and BB alone in the house. BB had a shower, after which he returned to SW's bedroom. According to SW's statement, although she was not sure, they may have smoked more amphetamines at that point. At all events, BB went to his car, returning with a music player and speaker set which he assembled in SW's bedroom. After some social discussion, BB indecently assaulted and sexually penetrated SW without her consent.
9 The telephone rang and SW left the bedroom to answer the phone. SW then suggested that they have a swim in the swimming pool, which they did. While they were in the pool, BB was rubbing SW on her hips, upper thighs and stomach.
10 After their swim, BB and SW returned to the house and sat in the lounge room. SW offered to retrieve the pipe in order that they could smoke more amphetamines. She went to the bedroom and returned to the lounge room with the pipe. According to her statement:
I didn't really want to smoke but I was just trying to fill in time because I knew [my husband and daughter] weren't far away.
…
I think there was a bit of speed left in the pipe and so I had a little smoke myself.
(Page 7)
- I put the pipe back in the bathroom and went and sat back down (GAB, 24).
11 SW's husband returned home at about 3.15 pm, after which he and BB smoked amphetamines in the bedroom of the house. SW entered the bedroom and was offered amphetamines by BB, but she declined.
12 Over that evening other visitors called at the house for the purpose of buying amphetamines from BB. Before the transaction was completed, the visitors sampled the amphetamines that were to be sold by smoking a portion of them.
13 SW related the events which had occurred to police a few days later. BB was charged on an indictment which contained three counts of supplying amphetamine and the two sexual offences to which I have referred.
14 The Assessor of criminal injuries compensation wrote to SW referring to the statement which she had provided to police. The letter advised SW that:
From the material available to me it is clear that you and the offender consumed amphetamines together on a number of occasions prior to and after the offence was committed. This of course constitutes an alleged offence contrary to the Misuse of Drugs Act 1981. Being satisfied that you were committing a separate offence at the time you were injured it is my provisional determination I must refuse your application for compensation (GAB, 34).
15 In the letter the Assessor advised SW of the provisions of s 39 of the Act, to the effect that compensation must be denied if the injury was suffered when the claimant was committing a separate offence. The Assessor invited SW to provide submissions with respect to the issue which had been raised.
16 SW provided submissions to the Assessor, after which the Assessor affirmed her provisional determination on the basis that she was satisfied that SW was committing an offence at the time she suffered her injuries.
The appeal to the District Court
17 SW appealed to the District Court. The judge commenced her reasons for upholding the appeal by setting out s 39(1) of the Act. I will set out s 39 in full:
39. No award if victim was engaged in criminal conduct
(Page 8)
- (1) If an assessor is satisfied -
(a) that a person was injured as a consequence of the commission of an offence; and
(b) that the injury was suffered when the person was committing a separate offence,
the assessor must not make a compensation award in favour of the person.
(2) If an assessor is satisfied -
(a) that a person died as a consequence of the commission of an offence; and
(b) that the death occurred when the person was committing a separate offence,
the assessor must not make a compensation award in favour of a close relative of the person for any loss suffered by the close relative as a result of the death.
The first step in the interpretation of a statute is to determine the grammatical meaning of a word. The New Shorter Oxford Dictionary defines the word 'when' as 'at the time that; on the occasion that; in the circumstances which'. The word 'when' is used in everyday language, not only to describe a period of time during which something happened, but also an occasion when something occurred. The plain grammatical meaning of the word 'when' as used in s 39(1)(b) can therefore not be said to be limited to 'at the time that' or be confined to a temporal connection. At the very least, the word 'when' includes the meaning 'on the occasion that' the victim committed the separate offence [32].
19 It is clear from the observations that followed that the judge considered that construing 'when' to mean 'on the occasion that' imposed a requirement of some degree of causal connection between the separate offence committed by the claimant for compensation, and the injury suffered by the claimant as a consequence of the commission of an offence by another.
20 The judge referred to the decision of Yeats DCJ in Re Richardson [2009] WADC 93 in which her Honour concluded that s 39(1) of the Act did not require any causal connection between the injury suffered by the
(Page 9)
- victim and the separate offence committed by the victim - merely a temporal connection [30]. However, the judge considered that construction of s 39 of the Act produced an irrational result, which justified resort to extrinsic materials as an aid to the interpretation of the section pursuant to s 19 of the Interpretation Act 1984 (WA) [38]. Amongst the extrinsic materials to which she referred were statements made by the Attorney General in the course of parliamentary debates relating to the Offender's (Legal Action) Bill 2000 (WA) which introduced s 39 into the Act. She relied upon those statements, and her view that the Act should construed beneficially because it was remedial in character, to conclude that the word 'when' should be construed as requiring a causal connection between the separate offence and the injury for which compensation was claimed [50], contrary to the decision of Yeats DCJ in Re Richardson. The judge then expressed the view that the test of causation in tort, enunciated in cases such as March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 should be applied to assess whether there was the requisite causal connection between the separate offence committed by the claimant, and the injury for which compensation was sought: see [51] - [57].
21 With respect, this is an unusual application of the test of causation in tort. That test is applied to assess whether a breach of duty which has been established is the cause of a particular loss or injury for which the appellant seeks damages. Section 39 and a number of other sections of the Act, require that a causal connection be established between the injury for which compensation is claimed and the offence committed by the offender. The construction at which her Honour arrived would only exclude compensation if the separate offence committed by the claimant caused the offender to commit the offence which in turn caused the claimant's injuries. The notion that an offence committed by one person has 'caused' another person to commit another offence is a quite different concept to the concept of causation in tort, which is concerned with the nexus between breach of duty and compensable injury. It will also be noticed that, in the nature of things, the circumstances in which it might be concluded that the commission of one offence has 'caused' the commission of another offence by a different offender will be quite rare (apart from offences committed jointly or by accomplices).
22 The judge applied her view as to the operation and effect of s 39 of the Act to the circumstances which she took to be established by the evidence before her in the following portion of her reasons:
(Page 10)
- SW admitted in her statement to the police to smoking amphetamines with BB before the sexual offending when her housemate and friend were still at the house, smoking some more when she was alone with BB and again smoking in his presence after the offending. It appears that the amphetamine that SW smoked was on each occasion supplied by BB. Nevertheless, SW was in possession of the amphetamine while she smoked the pipe.
The separate offence committed by SW is therefore that of possession of prohibited drugs contrary to s 6 of the Misuse of Drugs Act 1981. There is no particular offence of 'smoking of prohibited drugs'. However, in deciding whether the possession of the amphetamines is causally related to SW's suffering the injury, I have to take into account the circumstances under which the possession of the amphetamines occurred and this was in circumstances where SW was smoking the drug.
The sexual offending occurred on the same occasion as that of SW's smoking of amphetamines. However, SW's smoking of amphetamines was not causally connected with the sexual offences against her. It could be said that but for her smoking of amphetamines she would not have allowed herself to be in the situation where she was alone with BB in her bedroom and responded to his request to kiss him. It could also be argued that the effect of amphetamines on her rational thinking is indicated by her own statement that she was 'spinning out'. But even if it is accepted that the smoking of amphetamines had affected her ability to think rationally and to control the situation, it is quite a different matter to make a finding that 'but for' her smoking of amphetamines, the sexual offending would not have occurred.
Firstly, despite being under the influence of the amphetamine SW made it clear on a number of occasions that she did not want BB's sexual advances to progress. The fact that she had smoked amphetamines therefore had no effect on the sexual penetration occurring without her consent. She was still capable of making it clear that she did not consent. Just prior to the penetration occurring SW told BB: 'No, I've told you, please, just get off me. No more. Just get off me, please.' Whereas it could be said that the smoking of amphetamines causally contributed to SW allowing herself to be in a situation where she was alone with BB in her bedroom and was kissing him, this does not mean that it causally contributed to her being sexually penetrated without consent.
Secondly, it is far from clear that BB's offending would not have occurred if SW had not smoked amphetamines with him. It should be noted that BB pleaded guilty to another offence of sexual penetration without consent which occurred on a totally different date and place to a different complainant [67] - [71].
23 Although nothing much turns on it in this case, the judge's assertion that there is no particular offence of 'smoking a prohibited drug' is wrong -
(Page 11)
- s 6(2) of the Misuse of Drugs Act 1981 (WA) prohibits possession or use of a prohibited drug.
24 More pertinently to the present issues, however, it seems clear from her reasons that the trial judge considered that a temporal connection had been established between offences committed by SW contrary to the Misuse of Drugs Act, and the sexual offences that were committed against her. However, because the judge did not consider that SW's drug use had caused BB to sexually assault her, she concluded that the prohibition upon the award of compensation contained in s 39 of the Act did not apply to SW's case.
The application for leave to appeal from the order nisi
25 The application for leave to appeal from the decision of Corboy J to grant the order nisi in the prerogative proceedings can be shortly dealt with. The application is misconceived and should never have been brought. The grant of an order nisi is a procedural step which does not determine any party's substantive rights. As such, it is difficult to see how an application for leave to appeal from the grant of an order nisi could ever satisfy the requirement that substantial injustice would be done by leaving the decision unreversed, which is, of course, an established pre-requisite for the grant of leave to appeal from interlocutory decisions - see Wilson v Metaxas [1989] WAR 285, 294; The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40, 54 - 55. The only question which arises at the order nisi stage is whether a sufficiently arguable case has been established to justify the continuation of the proceedings. That is why it is usually unnecessary and inappropriate to provide detailed or elaborate reasons for a decision to grant an order nisi. Of course, different considerations apply if the order nisi is refused because, absent a successful appeal, that is the end of the case, and sufficient reasons must be given to enable the applicant to know why the application has been dismissed.
26 The merits of the Attorney General's assertion that the judge misconstrued the Act and therefore exceeded the jurisdiction to award compensation under the Act will be determined in the course of the prerogative proceedings. The application for leave to appeal from the decision to enable the prerogative proceedings to continue adds nothing to the issues in those proceedings and is an irrelevant distraction. Leave to appeal should be refused.
(Page 12)
SW's notice of contention
27 SW's notice of contention is also procedurally misconceived. A notice of contention is a document for which provision is made by r 33 of the Supreme Court (Court of Appeal) Rules 2005 (WA), and enables a respondent to an appeal to seek to uphold the decision under appeal on a ground not relied upon by the primary court. It is not a procedure that has any application to prerogative proceedings.
28 In this case, if the Attorney General succeeds in establishing that the District Court judge exceeded the jurisdiction conferred upon her by misconstruing the ambit of the power to award compensation under the Act, no process of reasoning not relied upon by the judge could somehow bring her back within jurisdiction. However, there is a discretion to refuse relief in prerogative proceedings, and I will treat the issues raised in SW's notice of contention as issues going to the exercise of the discretion to refuse relief notwithstanding that it might be concluded that the District Court judge has misconstrued the Act.
The proper construction of s 39 of the Act
29 The objective of statutory construction is to give to the words of the statutory provision the meaning which the legislature is taken to have intended them to have: see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, [78] (McHugh, Gummow, Kirby & Hayne JJ); Lacy v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573, [43] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
30 The legislative intention to which reference is made in this context is not the ascertainment of the mental state of the legislators at the time the legislation was passed, either collectively or individually: see Zheng v Cai [2009] HCA 32; (2009) 239 CLR 446, [28]; Lacy [43]. Rather, the ascertainment of legislative intention is a statement of compliance with the established rules of construction known to parliamentary drafters and to the courts and which govern the relationships between the arms of government in a system of representative democracy (see Zheng v Cai and Lacy).
31 As the District Court judge correctly noted in the passage which I have set out above [18], one of the well-established rules of statutory construction requires primary regard to be given to the natural and ordinary meaning of the words used in the statute. As she correctly noted, the natural and ordinary meaning of the word 'when' read in its context in
(Page 13)
- s 39(1)(b) of the Act is 'at the time that': see The Macquarie Dictionary (1981). The focus of the word is temporal. In its natural and ordinary meaning it can be used to identify a period of time measured in hours or minutes or seconds. However, it can also be used to describe a period of time reckoned more generally such as, by reference to an incident or occasion, as the District Court judge noted. So, while the word 'when' is capable of referring to a precise instant in time at which two separate events are occurring, it is also capable of referring more generally to a period of time more loosely defined - as in 'when I was a child', or 'when I was on holiday'.
32 Another accepted principle of a statutory construction allows attention to be given to the evident purpose of the statute, ascertained by reference to the words used. The evident purpose of s 39 is to preclude the payment of compensation to a person who suffers injury as a consequence of the commission of an offence when that person is themselves engaged in criminal conduct. That evident purpose would be defeated if too narrow or precise a view is taken of the temporal connection between the offence giving rise to the injury for which compensation is claimed, and the offence committed by the claimant. Take the obvious example of a claimant seeking compensation for injury suffered during an assault which was the retaliatory response to an assault which the claimant initiated but the retaliation went beyond self-defence. It would very often be the case that the offence in the form of the initial assault committed by the claimant would have been completed before the retaliatory response occurs, with the result that if the matter is approached by reference to precise instants in time, it could not be said that the two offences were committed 'at the same time'. Another obvious example is the case of a claimant who suffers injury as a result of an offence committed while fleeing from the scene of a crime which he or she committed, but which was complete at the time injury was suffered. It is clear from the language used in s 39 of the Act, and from the secondary materials referred to by the District Court judge, that it was intended that compensation would not be available in either of these examples.
33 In my respectful view, the proper approach to the construction of s 39 of the Act was put well by Yeats DCJ in Richardson:
I agree with respect that s 39(1) does not require any causal connection between the injuries suffered by the appellant and the separate offence allegedly being committed by the appellant. The only relationship is a temporal one. No award can be made if the injury was suffered when the appellant was committing a separate offence. The appellant contends for a narrow interpretation of the temporal connection so that if the separate
(Page 14)
- offence is committed before the offence causing injury, the appellant could nonetheless receive an award of compensation. The Amicus contends that too narrow an interpretation of the temporal limitation could defeat the purpose of this section. On the other hand too broad an interpretation would bar a victim of crime from obtaining compensation in an otherwise appropriate case. Whether there is a temporal connection requires judgment by the Assessor of all the facts and circumstances of the case to determine whether at the time the applicant was injured the applicant was committing a separate offence. Generally, if the applicant's injury and the applicant's offence are part of the one incident, that would be sufficient to show a temporal connection [31].
34 There are other established principles of statutory construction which strongly reinforce the conclusion that the legislature did not intend that a causal connection was required between the offence committed by the claimant for compensation, and the offence which gave rise to that person's injuries. The Act is replete with examples of instances in which the legislature has expressly stipulated that a causal connection is required between some action and its consequence. Most obvious is s 39 itself which in each of its two subsections refers specifically to a causal connection between the commission of an offence and either injury or death by using the words 'as a consequence of' (see s 39(1)(a) and s 39(2)(a)). By contrast, those words have not been used in the specification of the relationship between the injury for which compensation is claimed (s 39(1)(b)), and the commission of the separate offence by the claimant (s 39(2)(b)). In that instance the legislature has specifically chosen to use the word 'when' to denote the requisite connection, and must be taken to have intended that only a temporal connection was required.
35 Other examples of the express stipulation of a causal connection in the Act are easily found. Section 12 of the Act provides:
Proved offence
(1) A person who suffers injury as a consequence of the commission of a proved offence may apply for compensation for the injury and any loss also suffered.
(2) If a person, being a close relative of a person who dies as a consequence of the commission of a proved offence, suffers loss as a result of the death, the personal representative of the deceased may apply for compensation for that loss.
(3) An assessor must not make a compensation award in respect of a compensation application made under this section unless satisfied -
- (a) if the application is made under subsection (1) - that the claimed injury and any claimed loss has occurred and did so as a consequence of the commission of a proved offence;
(b) if the application is made under subsection (2) - that the death occurred as a consequence of the commission of a proved offence and that the claimed loss has occurred.
36 Section 30(1) of the Act provides:
30. Compensation awards, general
(1) On a compensation application in respect of injury suffered by a victim as a consequence of the commission of an offence, an assessor may award such compensation that the assessor is satisfied is just for the injury and for any loss also suffered.
37 Section 41 provides:
Behaviour etc. of victim to be considered
In deciding whether or not to make a compensation award, or the amount of a compensation award, in favour of a victim, or a close relative of a deceased victim, an assessor -
(a) must have regard to any behaviour, condition, attitude, or disposition of the victim that contributed, directly or indirectly, to the victim’s injury or death; and
(b) may, if he or she thinks it is just to do so -
(i) refuse to make a compensation award because of that contribution; or
(ii) reduce the amount that the assessor would otherwise have awarded.
(Page 16)
Irrational or absurd results
39 The District Court judge was encouraged to her view of s 39 of the Act by her conclusion that a construction of the section which required only a temporal connection between the commission of the separate offence by the claimant and the injury suffered would produce an irrational or absurd result. However, that approach to statutory construction must be used sparingly. As Gibbs CJ observed in Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) [1981] HCA 26; (1981) 147 CLR 297:
[I]f the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust … The danger that lies in departing from the ordinary meaning of unambiguous provisions is that 'it may degrade into mere judicial criticism of the propriety of the acts of the Legislature'… it may lead judges to put their own ideas of justice or social policy in place of the words of the statute (citations omitted) (305).
40 With respect to the District Court judge, I can see nothing irrational or absurd arising from the approach to the application of the section suggested by Yeats DCJ in Richardson. Under that approach, whether the requisite temporal connection exists will be a matter to be determined by reference to all the facts and circumstances of the case. In this way, capricious or absurd results will be avoided. It might also be said with some force that the construction placed upon the section by the District Court judge in the present case was also capable of producing outcomes that could at least be described as unexpected - given the very limited circumstances in which one offence might be said to have been 'caused' by a separate offence committed by another offender (apart from offences committed jointly).
Remedial legislation
41 The District Court judge was also encouraged in her conclusions by her characterisation of the legislation as remedial, with the result that it should be construed beneficially. However, with respect, that approach is not appropriate to the construction of a provision such as s 39 which is plainly intended to exclude the availability of compensation in the cases to which it refers. In a similar legislative context, Spigelman CJ observed in Victims Compensation Fund v Brown [2002] NSWCA 155; (2002) 54 NSWLR 668:
(Page 17)
- With respect to a clause intended to be limiting, it is not appropriate to apply the principle of statutory construction that beneficial legislation should be construed liberally…
In the present proceedings, the Respondent submitted that the purpose was to compensate victims. Even if I were to accept a legislative purpose stated at that level of generality, that would not entail that any ambiguity must be construed in such a way as to maximise compensation… In any event, the very specificity of the provisions of the legislation indicate that the legislative purpose is to provide compensation in accordance with the Act and not otherwise [8] - [10].
- (Although Spigelman CJ was in dissent, his reasoning was endorsed by the High Court in Victims Compensation Fund Corp v Brown [2003] HCA 54; (2003) 201 ALR 260.)
42 Put another way, it is clear from the Act as a whole that it reflects a legislative intention to provide compensation to victims of crime in some but not all circumstances. There are a number of provisions of the Act which limit the circumstances in which compensation is available. In addition to the exclusion of compensation by s 39 of the Act, s 36 provides that compensation must not be awarded if there is a relationship or connection between the offender and victim and that by reason of that relationship, money paid under the award is likely to benefit or advantage the offender. Section 37 of the Act excludes compensation for injuries arising as a consequence of the commission of an offence caused by the use of a motor vehicle in other than limited circumstances. Section 38 of the Act precludes the award of compensation if the claimant did not do what ought reasonably to have been done to assist in the identification, apprehension or prosecution of the offender. In light of these (and other) provisions of the Act, it would be wrong to approach the construction of the Act on the basis that it reflects a legislative intention that every victim of crime should receive compensation under the Act. As it is clear that the legislature has endeavoured to exclude the availability of compensation in some cases, the task of the court is to identify the range of cases in which compensation is not available by reference to the words used by the legislature in the limiting provisions of the Act, without predisposition toward either expanding or restricting the ambit of the exclusionary provision.
Extrinsic materials
43 The District Court judge was also encouraged to her view of s 39 of the Act by remarks made in the course of parliamentary debate on the Bill which introduced the section. However, as Gleeson CJ observed in Singh
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- v Commonwealth of Australia [2004] HCA 43; (2004) 222 CLR 322, care must be taken to avoid scrutiny of parliamentary debates degenerating into 'an exercise in psychoanalysis of the individuals involved in the legislative process' [19]. Although extrinsic materials which have been carefully considered and prepared by those involved in the drafting process (such as explanatory memoranda or the Second Reading speech) might be considered more reliable guides to legislative intention in the case of ambiguity than casual remarks made on the spur of the moment during parliamentary debate that may have a political imperative, there are nevertheless risks in placing too much reliance upon extrinsic materials of this kind: see Commissioner of Taxation v Anstis [2010] HCA 40; (2010) 241 CLR 443.
44 When regard is had to the materials relating to the passage of this legislation through the Parliament, in this case, like many others, there are conflicting and contradictory indications which might be drawn from different portions of the materials, although it is clear that all speakers assumed that compensation would be denied in cases such as those which I instanced at [32] above. With respect to the District Court judge, the materials do not provide any clear or unequivocal indication of an intention that compensation would only be denied in cases in which there was a causal connection between the commission of the separate offence by the claimant and the commission of the offence which occasioned the injury for which compensation is claimed.
Jurisdictional error
45 The District Court judge was exercising the jurisdiction conferred upon the District Court to entertain appeals from a decision of an Assessor made under the Act and which is conferred by pt 7 of the Act. At least in the exercise of that jurisdiction, the District Court is an inferior court. As the High Court observed in Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163:
An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction.
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- … An inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In the last-mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern (177).
46 The District Court judge misconstrued the statute which was the source of the court's jurisdiction and thereby misconceived the nature of the function which she was required to perform, and in particular proceeded on the mistaken view that unless a causal connection was established between SW's criminal conduct and the injuries for which she was claiming compensation, she was entitled to compensation. That misconception critically affected the appeal from the Assessor and its outcome to such an extent that there can be little doubt that the error resulted in the court failing to discharge the jurisdiction conferred upon it by pt 7 of the Act.
The availability of relief
47 Section 80 of the District Court of Western Australia Act 1969 (WA) provides that:
No judgment or order of a District Court judge, nor any proceedings brought before him or pending in the Court, shall be removed by appeal, motion, certiorari or otherwise into any other court, except in the manner and according to the provisions of this Act.
48 Counsel for SW initially contended that this section precluded the grant of the prerogative relief sought by the Attorney General in this case. However, that submission is no longer pressed. In those circumstances, the reasons why prerogative relief is available, notwithstanding s 80 of the District Court Act, can be shortly stated.
49 It should first be noted that in this case the District Court was not exercising the plenary jurisdiction of the Supreme Court conferred upon it by s 42 and s 50 of the District Court Act. Rather, it was exercising the limited appellate jurisdiction specifically conferred upon it by pt 7 of the Act. Accordingly, if and to the extent that the orders made by the court were vitiated by jurisdictional error, and to that extent exceeded the limited jurisdiction conferred upon the court, the orders should not be construed as orders of the court falling within the scope of s 80 of the District Court Act which should be construed as applying to orders made within the jurisdiction of the court - see Plaintiff S157/2002 v The
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- Commonwealth [2003] HCA 2; (2003) CLR 476. That construction of s 80 of the District Court Act is reinforced by the decision of the High Court in Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [97] - [100] (French CJ, Gummow, Hayne, Crennan, Keifel & Bell JJ, Heydon J dissenting). If s 80 were not construed as permitting the grant of relief for jurisdictional error on the part of an inferior court, it would exceed the legislative power of the State Parliament by excluding one of the defining characteristics of this court's jurisdiction, which includes ascertaining the metes and bounds of the legitimate exercise of State executive and judicial power.
The discretion to refuse relief
50 SW's opposition to the relief sought by the Attorney General, and the notice of contention filed on her behalf, and the misconceived appeal from the grant of the order nisi, all include an assertion to the effect that there was no evidence before the Assessor of the District Court judge to sustain a conclusion that she was committing an offence 'when' she was injured by the sexual assaults perpetrated against her.
51 The first point to note about this contention is that it provides no answer to the conclusion that the District Court judge exceeded the limited jurisdiction conferred upon her. She exceeded that jurisdiction by misconstruing the Act which was its source, and by misconceiving the function which she was required to perform in the discharge of appellate jurisdiction. The evidence which was before her, or the Assessor, is quite incapable of overcoming or precluding the process of reasoning which leads to the conclusion that her decision is vitiated by jurisdictional error.
52 However, as I have already noted, there is a discretion to refuse prerogative relief. The assertion advanced by SW to the effect that there was no evidence capable of sustaining the conclusion that she was committing an offence 'when' she suffered her injury could, if established, provide a basis for the exercise of the discretion to refuse relief, because it would support the conclusion that the error made by the District Court judge as to the construction of the Act could not have affected the outcome.
53 However, SW's assertion must be rejected. Its success depends critically upon the narrow approach to the construction of the temporal connection between the commission of the offence by the claimant, and the suffering of the claimant's injuries, which I have rejected because it would be inconsistent with the evident purpose of s 39 of the Act. Put another way, SW's assertion is essentially to the effect that in order to be
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- excluded from compensation by the operation of s 39, it would have to be concluded that she was committing a criminal offence at the exact instant in time at which she was indecently assaulted or sexually penetrated. It is asserted on her behalf that because there is no evidence to the effect that she was using amphetamines at the precise time she was sexually assaulted, it could not be concluded that she was committing an offence 'when' she suffered the injuries for which she claims compensation.
54 Under the approach to the application of s 39 of the Act enunciated by Yeats DCJ in Richardson, which I favour, the question of whether there is a sufficient temporal connection between the offending behaviour of the claimant, and the suffering of the injuries caused by the separate criminal offence so as to preclude compensation, will depend upon questions of fact and degree to be evaluated in all the circumstances of the case - in the first instance by the Assessor and secondly on appeal by the District Court. There was evidence before each of the Assessor and the District Court judge to enable them to conclude, and indeed each did conclude, that SW was engaged in a course of criminal conduct in the form of use of amphetamines 'when' or 'at the time that' she was sexually assaulted. It is open on the evidence, most particularly the evidence in the form of SW's statement, to conclude that she and BB were engaged in a continuing course of criminal conduct during the afternoon in question, in the course of which she was sexually assaulted.
55 Even if a narrower view is taken of the requisite temporal connection, such that there must be a precise temporal overlap between the two offences, in this case the evidence before the Assessor and the judge is capable of sustaining the conclusion that SW was committing a number of continuing offences throughout the entire period in question, including the period during which she was sexually assaulted. Those continuing offences include the offence of being the owner or lessee of any premises who knowingly permits the premises to be used for the purpose of using a prohibited drug (Misuse of Drugs Act, s 5(1)(b)), possession of a pipe for use in connection with the smoking of a prohibited drug in or on which pipes or utensils there are detectable traces of a prohibited drug (Misuse of Drugs Act, s 5(1)(d)), and possession of a prohibited drug (Misuse of Drugs Act, s 6(2)), in the form of the methylamphetamine that remained in the pipe belonging to her and her husband at the time the sexual offences were committed and which she smoked after those offences. On the evidence, it would be open to conclude that SW was committing those offences at the very instant in time at which she was sexually assaulted.
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56 SW also asserts that it should be concluded that she did not commit the offence of using amphetamine after she was sexually assaulted, because she was only doing so under duress, in the sense that her purpose was to distract BB from further sexual offending. However, whether or not that proposition can be made good is a question of fact for the Assessor or a District Court judge, not for this court. It is certainly not an assertion of fact which is self-evidently correct from the evidentiary materials which were available to the Assessor and the District Court judge, and which would therefore provide a basis for the discretionary denial of relief.
57 Finally, it is asserted on behalf of SW that relief should be refused because the Attorney General failed to request the District Court judge to refer a question of law as to the proper construction of the Act to the Supreme Court for determination in accordance with the power conferred upon the District Court by s 56 of the Act. This assertion must be rejected for a number of reasons.
58 First, assuming that the Attorney General can be equated with the CEO of the department who appeared as amicus during the proceedings before the District Court judge, it was reasonable to suppose that the District Court judge would follow the decision in Richardson and remain within the jurisdiction conferred upon her by the Act. In those circumstances it cannot be said that the failure to request reference of a question of law to the Court of Appeal was unreasonable conduct which should preclude the Attorney General from invoking the supervisory jurisdiction of this court.
59 Second, acceptance of this proposition would carry the risk of inappropriately encouraging applications for, and references to this court whenever a question of law arose in relation to the construction of a statute. It will usually be much more appropriate for those questions to be resolved in the first instance by the court or tribunal of primary jurisdiction, and then later referred to this court in the event of contention or controversy. In this way, the number of cases referred to the court will be kept within manageable bounds, and this court will receive the benefit of views expressed at first instance.
60 In this case there is no reason why the discretion of the court should be exercised to refuse relief. On the contrary, it is clear that the appeal to the District Court judge miscarried because of her mistaken view as to the operation and effect of s 39 of the Act. The proper course for this court to follow is to grant the relief sought by the Attorney General, which will
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- have the effect of quashing the decision of the District Court judge. Whether or not SW pursues her appeal from the decision of the Assessor before another judge of the District Court will be a matter for her.
61 NEWNES JA: I agree with Martin CJ.
62 MURPHY JA: I agree with Martin CJ.
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