BFK v VOCAT
[2017] VSC 736
•6 December 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 1426
| BFK | Appellant |
| v | |
| The Victims of Crime Assistance Tribunal | Respondent |
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JUDGE: | Macaulay J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 November 2017 |
DATE OF JUDGMENT: | 6 December 2017 |
CASE MAY BE CITED AS: | BFK v VOCAT |
MEDIUM NEUTRAL CITATION: | [2017] VSC 736 First Revision: 7 December 2017 |
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JUDICIAL REVIEW AND APPEALS – Appeal pursuant to Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148 – Question of law – Whether there was any evidence to support a particular finding of fact – Whether Member erred in identifying and applying applicable legal test – Finding that a 23 year delay in making an application for financial assistance to the Victims of Crime Assistance Tribunal threatened the capacity of the decision-maker to make a fair decision – No error – Appeal dismissed – Victims of Crime Assistance Act 1996 (Vic), s 29(2) and (3).
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | D Bracken (Victorian Bar Pro Bono Scheme) | |
| For the Respondent | No appearance |
HIS HONOUR:
Introduction and summary
In about November 1991, then a 19 year old first year university student, BFK (the appellant)[1] had sex with her then boyfriend, YVP,[2] became pregnant and later had an abortion. Twenty three years later she made a complaint to the police that she had been raped by YVP on that occasion. After a further six months, in mid-2015, she made an application for financial assistance to the Victims of Crime Assistance Tribunal (VOCAT), the respondent, on the ground that she was a victim of an alleged act of violence, namely the alleged rape in November 1991.
[1]Her name has been anonymised.
[2]His name has been anonymised.
The issue in this proceeding is whether the Victorian Civil and Administrative Tribunal (VCAT) made an error of law when, on review, it affirmed the decision of VOCAT to strike out BFK’s application for assistance for being brought out of time.[3]
[3]Technically, VOCAT had administratively struck out the application and then declined to reinstate it because it would otherwise strike it out for being out of time, but nothing turns on that technicality: see [4] below.
Section 29(2) of the Victims of Crime Assistance Act 1996 (Vic) (VOCA Act) provides that if an application for assistance is not made within two years of the alleged act of violence VOCAT must strike the application out unless in the particular circumstances of the case it considers that it should not do so.
After BFK made her application to VOCAT it was administratively struck out due to her failure to file some required supporting documentation. When she applied for reinstatement of her application a VOCAT member determined the reinstatement question together with the issue under s 29(2)—that is, whether the Tribunal must strike out the application—given that the application was brought well after the two year time period prescribed. For reasons given in writing on 8 June 2016, VOCAT declined to reinstate BFK’s application[4] primarily on the ground that the ability of VOCAT to make a fair decision was ‘greatly impaired’ by the consequences of the delay.[5]
[4]More particularly, it decided to refuse to reinstate the application and ‘retain the status that this application be struck out’.
[5]Victims of Crime Assistance Tribunal, application 215/2998, unreported, R. Saines 8 June 2016.
As she was entitled to do under s 59 of the VOCA Act, BFK applied to VCAT for a review of the decision. At the hearing of the review at VCAT both BFK and VOCAT (each represented by legal practitioners) requested the VCAT member to proceed to determine the substantive application for financial assistance if the member decided to reverse VOCAT’s decision not to reinstate the application.
The VCAT member acceded to that request.[6] Accordingly, both parties called all of the evidence they wished to call on the substantive application (in the event that it should be decided) and the hearing occupied two full days.
[6]No point was taken on appeal that VCAT lacked any jurisdiction to do so and there is no need to address that question.
After reserving his decision, the VCAT member affirmed the decision of VOCAT that the application not be reinstated having determined it must be struck out under s 29(2) of the VOCA Act.[7] BFK’s application not having been reinstated, VCAT made no decision on its substantive merits.
[7]BFK v Victims of Crime Assistance Tribunal (Review and Regulation) [2017] VCAT 289 (‘VCAT’s reasons’).
Section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) allows a party to a proceeding before VCAT to appeal on a question of law from an order of the tribunal to the Supreme Court of Victoria, with the leave of the court.[8] It follows that the questions to address are whether leave to appeal should be given and, if so, whether the appeal should be allowed.
[8]A decision from a senior member of VCAT (as this one was) is appealed to the trial division of the Supreme Court: s 148(1)(b) of the VCAT Act.
A preliminary issue was raised concerning the timing of BFK’s appeal to this Court: it was filed out of time. An explanation for that delay was provided by affidavit and I am satisfied it is appropriate to grant an extension of time for the filing of the appeal to enable it to proceed.
BFK was represented by counsel at the hearing of the appeal. VOCAT did not appear but forwarded a letter to the Court in standard terms announcing, in accordance with the principles in R v Australian Broadcasting Tribunal: Ex parte Hardiman,[9] it would not appear and would abide the result. While of course that is acceptable, it had the effect that the Court did not have the benefit of any contradictor.
[9] (1980) 144 CLR 13.
For reasons appearing below, I would grant leave to appeal but dismiss the appeal.
Relevant statutory provisions
The purpose of the VOCA Act is to provide assistance to victims of crime: s 1.
To achieve its purpose, its objectives include to assist victims recover from the crime by paying for expenses incurred because of it, to pay financial assistance to some victims as a symbolic expression of the community’s sympathy and condolence for them experiencing significant adverse effects of crime (including grief, distress or trauma) and to provide financial assistance where compensation for injury is not available from the offender or other sources: s 2.
An application is made by the victim in writing, together with prescribed supporting documentation and an election whether to have the application determined with or without a hearing: ss 25, 26. The application must contain specified information, including details of the alleged criminal act and the circumstances in which the injury occurred; the nature of the injury suffered; whether a report was made to police and any criminal proceedings ensued; and the amount and type of assistance sought: s 27.
Section 28 states that the application must be lodged with VOCAT and, critically for this case, s 29 stipulates the time for making the application.
The full terms of the section are as follows:
29 Time for making application
(1)An application must be made within 2 years after the occurrence of the act of violence or, in the case of an application by a related victim or a person who has incurred funeral expenses, within 2 years after the death of the primary victim.
(2) The Tribunal must strike out an application made out of time unless it considers that, in the particular circumstances, the application ought not to be struck out.
(3) In determining whether to further hear and determine an application made out of time, the Tribunal must have regard to—
(a)the age of the applicant at the time of the occurrence of the act of violence;
(b)whether the applicant is intellectually disabled within the meaning of the Disability Act 2006 or mentally ill within the meaning of the Mental Health Act 2014;
(c)whether the person who committed, or is alleged by the applicant to have committed, the act of violence was in a position of power, influence or trust in relation to the applicant;
(d)the physical or psychological effect of the act of violence on the applicant;
(e)whether the delay in making the application threatens the capacity of the Tribunal to make a fair decision;
(f)whether the applicant was a child at the time of the occurrence of the act of violence and the application was made within a reasonable time after he or she reached the age of 18;
(g)all other circumstances that it considers relevant.
(4)The Tribunal must not decide to further hear and determine an application made out of time only because the applicant was unaware of this Act or of the Criminal Injuries Compensation Act 1983 or the Criminal Injuries Compensation Act 1972 or of the time within which applications must be made under any such Act.
The powers and procedures of VOCAT in dealing with applications, including powers of investigation and hearing, are set out in Division 3 of Part 3. Among other things it provides that the standard of proof for deciding any question of fact under the VOCA Act is the balance of probabilities: s 31.
The power to make awards of financial assistance is established in s 50. VOCAT may only make an award if satisfied that an act of violence occurred and the applicant is a victim of that violence. An ‘act of violence’ is defined to mean a criminal act: s 3.
It is instructive to note the language and structure of s 29(2) and (3). Unlike some provisions in other statutes, s 29 does not ameliorate the strictness of the time period by simply empowering VOCAT to extend time if it thinks the circumstances justify it doing so. Rather, it mandates that the application be struck out if it is out of time unless VOCAT considers it ought not to strike it out. Structured that way it emphasises, it seems to me, a requirement that the application is only saved from the default position of being struck out if VOCAT is affirmatively persuaded that it should be saved. Sub-section (3) states factors that must be taken into account in assessing whether to do so although, given the ‘catch all’ provision in paragraph (g), those factors are not exclusive.
Relevant legal principles
On a review of the decision from VOCAT under s 59 of the VOCA Act, VCAT was to conduct a rehearing. It was to stand in the shoes of the original decision-maker and make the decision it considered ‘correct’ or ‘preferable’ having regard to the material before it.[10]
[10]Mond v Perkins Architects & Anor [2013] VSC 455, [10] (Emerton J).
Flowing from that principle, at the hearing of the appeal in this Court, BFK argued that when deciding whether to strike out the application on a review from VOCAT, VCAT had to use a different legal test (or standard of proof) to the one VOCAT was required to use in making the original decision. I reject that submission. It proceeds from a misconception of what the principle means. In effect, the principle has the opposite result to what was submitted: in standing in the shoes of the original decision-maker, VCAT is to apply the same legal test that VOCAT was bound to apply in the first instance.
As already stated, an appeal from VCAT under s 148 of the VCAT Act is confined to an appeal on a question of law. It is settled that questions of law upon which such an appeal may proceed include:
(a) whether a tribunal has identified the relevant legal test;
(b) whether a tribunal has applied the correct legal test;
(c) whether there is any evidence to support a finding of a particular fact; and
(d) whether the facts as found will fall within the statute properly construed (including whether the factual findings of a tribunal can support the legal description given to them).[11]
[11]Cosmopolitan Hotel (Vic) v Crown Melbourne Limited (2014) 45 VR 771, 783-784 [48]-[49] (Warren CJ), 805-806 [167]-[168] (Whelan JA with whom Santamaria JA agreed).
I think there is little doubt the VOCA Act is to be seen as beneficial or remedial legislation. It would therefore attract the operation of the principle that beneficial legislation be construed liberally, as put by Brennan CJ and McHugh J in IW v City of Perth:[12]
… beneficial and remedial legislation… is to be given a liberal construction. It is to be given ‘a fair, large and liberal’ interpretation rather than one which is ‘literal or technical’. Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural.…
[12](1997) 191 CLR 1 at 11.
Grounds of appeal
In this proceeding the question of law identified in the notice of appeal[13] is:
Whether it was open on the evidence before the Victorian Civil and Administrative Tribunal to affirm the orders of the Victims of Crime Assistance Tribunal refusing the Plaintiff’s application to reinstate her there [sic] application for special financial assistance and counselling such that the Plaintiff’s application remained struck-out.
[13]At the hearing of the appeal counsel for BFK filed a new notice of appeal in substitution for one that had been prepared by BFK (exhibited to an affidavit she had filed in support of the appeal).
The grounds of appeal as formulated in the notice are as follows:
(a)The Tribunal misdirected itself as to the relevant law by concluding that the Tribunal could not make a fair decision concerning whether the Plaintiff is a victim of an act of violence because:
(i)The alleged act of violence occurred 23 ½ years before the Plaintiff made application for compensation and
(ii)witnesses at the Victorian Civil and Administrative Tribunal hearing of the appeal from the decision of the Victims of Crime Assistance Tribunal gave conflicting evidence
in circumstances where the Tribunal found that the Plaintiff’s claim had potential merit.
(b)The Tribunal misdirected itself as to law by concluding that it was too late for the Tribunal to make a fair decision concerning whether the Plaintiff was a victim of an act of violence because:
(i)The alleged act of violence occurred 23 ½ years before the Plaintiff made application for compensation and
(ii)witnesses at the Victorian Civil and Administrative Tribunal hearing of the appeal from the decision of the Victims of Crime Assistance Tribunal gave conflicting evidence
in circumstances where the Tribunal found that the Plaintiff’s claim had potential merit.
(c)The Tribunal erred in its construction of the operation of s.29(3)(e) Victims of Crime Assistance Act and its operation and effect on the discretion conferred by s.29(2) of that Act to not strike-out the Plaintiff’s claim by not:
(i)taking into account the beneficial nature and purpose of the Victims of Crime Assistance Act,
(ii)assessing whether and if so how the delay in the Plaintiff making application for compensation threatened the capacity of the Tribunal to make a fair decision and
(iii)assessing the seriousness of any identified threat and
(iv)taking into account whether the effect of any such assessment could be ameliorated at the hearing of the application and
in circumstances where the Tribunal found that the Plaintiff’s application had potential merit.
The first two grounds are nearly identical save that the first depicts VCAT’s conclusion as being that it ‘could not’ make a fair decision, whereas the second casts it as that ‘it was too late’ to make a fair decision.
There was a degree of equivocation in the way the appeal was argued. That equivocation is latent in the notice of appeal itself. Ordinarily, an error of law involving the question whether it was ‘open on the evidence’ to make a particular finding is taken to raise the question whether there was any evidence that could support the particular finding.[14] If there was some evidence that could support the finding then there could be no error of law, it not being the task of the appellate court on such an appeal to substitute its own opinion of the facts for that of the original decision maker. So, the formulation of the ‘question of law’ in the notice of appeal suggested that the error relied upon was of the third kind in [22] above ‒ whether there is any evidence to support a finding of a particular fact.
[14]S v Crimes Compensation Tribunal [1998] 1 VR 83, 89.
However, the grounds of appeal tended to suggest that the argument was that VCAT had identified or applied an incorrect legal test (i.e. the first and second kinds of question in [22] above) ‒ that is, that VCAT failed to properly construe or apply the test prescribed under s 29 of the VOCA Act for determining whether or not to strike out an application.
As the argument unfolded on appeal it appeared to involve the following propositions:
(a) on the evidence VCAT found that BFK’s claim for financial assistance had at least potential merit;
(b) VCAT purported to find that BFK’s delay in making her application threatened its capacity to make a fair decision (applying s 29(3)(e)), yet it did not specifically identify any particular consequence flowing from the delay that caused any actual impairment to its ability to do so;
(c) having decided there was potential merit in the claim, if there was no evidence of actual impairment to VCAT’s ability to make a fair decision due to delay then there was no evidence to support a decision (i.e. it was not ‘open to decide’) that the application should be struck out;[15]
(d) alternatively, having decided there was potential merit in the claim, if there was no evidence of actual impairment to its ability to make a fair decision due to delay then VCAT must necessarily have misapplied s 29(3)(e) by failing to consider how the delay threatened or impaired its capacity to fairly decide – in other words, contrary to the requirements of that provision, VCAT only had regard to the duration of delay and not to any relevant consequence of that delay in the particular circumstances of the case; and
(e) in the further alternative, by running together the questions whether the application should be (or remain) struck out and whether BFK was entitled to an award of assistance (if the application was not struck out), VCAT merged and conflated the two different legal tests applicable to those questions and, as a result, applied a higher test on the strike-out question than the statute required.[16]
[15]Transcript of hearing, BFK v The Victims of Crime Assistance Tribunal (1 November 2017) T9.12-25.
[16]Ibid T16.17.
It can be seen that the two contentions set out in (c) and (d) in the preceding paragraph assume the correctness of the proposition in (b), namely that VCAT did not specifically identify any particular consequence flowing from the delay that caused any actual impairment to its ability to make a fair decision. I will deal with this proposition in detail later but, in short, I do not accept it to be correct.
The contention in (e) was founded on a particular argument about the structure and construction of s 29 which requires some careful elaboration and discussion. In short, in my view the construction put forward by BFK was fundamentally flawed for the reasons I will set out below.
VCAT member’s reasons
The written reasons of the VCAT member are extensive and detailed. After identifying the issues the member set out the relevant provisions of s 29 of the VOCA Act and observed that under the catch all provision in s 29(3)(g)— ‘all other circumstances that it considers relevant’ — relevant other circumstances would likely include the potential merits of the substantial application and the effect which allowing the application for an extension of time may have on third parties. The member noted the discretionary nature of the power to allow or deny a late claim and the standard of proof to be applied. The member then set out the relevant statutory provisions from the Crimes Act 1958 (Vic) for the crime of rape which, relevantly, require proof that the victim did not consent to the sexual penetration and that the perpetrator did not reasonably believe that the victim consented to the penetration (s 38(1)(b) and (c)).
The member then turned to the evidence adduced at the hearing.[17] He listed the witnesses who gave evidence before him, namely BFK, YVP, a friend of BFK’s from high school and a counsellor whom BFK commenced seeing in November 2014. Some other witness evidence was submitted in the form of written statements, and there was a body of documentary evidence tendered.
[17]VCAT’s reasons [20]-[113].
BFK’s account concerning the occasion of the alleged rape was summarised in VCAT’s Reasons as follows:
25BFK comes from a rural town in Victoria. In 1991, aged 18, she left to study at university, also in Victoria. In mid-1991, she met YVP through friends. YVP was 19 years old. YVP entered foster care as a young boy and for a time lived in an orphanage, after which he lived with foster parents.
26They commenced a sexual relationship, most often having sex where BFK lived. This was BFK’s first experience of sexual intercourse. YVP had previous experience. When toward the end of 1991, BFK moved from one house to another, they were no longer able to have sex at her place. They had sex in YVP’s car. According to BFK, YVP always used a condom, except on the night of the alleged rape.
27According to a police statement given by BFK in November 2014, on a night in November 2011 [sic, 1991], they went to YVP’s parents’ home. YVP asked BFK to come into his room because he wanted to show her something. While nervous about this, she followed him in. He pulled a cupboard against the door. YVP pulled a handkerchief or rag from a drawer which was covered in blood. He told her he had been cutting himself. The police report records, ‘he started to open up to me and I felt sorry for him and gave him a cuddle. I was sitting on the bed at the time with my legs crossed and YVP was sitting on the bed beside me.’
28It is necessary to quote the following passage from the police record of interview with BFK:
YVP then grabbed my head with of his both hands. He had a hand on the each side of my head and he was forcing me to look at him. He said, ‘I have nothing to live for. If I had a baby, I would. Will you give me a baby?’ I remember my head nodding but I’m not sure if it was me nodding or him forcing me to nod. YVP then pushed my shoulders back so that my back was on the bed. It wasn’t a shove, he just pushed me. YVP took my jeans and underpants off all in one. I knew what was coming so I just turned my head and looked at the wall. I didn’t say anything to him because I was worried about his state of mind and that he was going to hurt himself. I began to cry when YVP took my pants off. I’m not sure if he knew I was crying. YVP then pulled his pants down to just above his knees. He pulled my legs apart and knelt on the bed and put his penis into my vagina. YVP did not put a condom on. I just lay there crying.
YVP all of a sudden stopped and then looked at me. I turned my head to look at him. I could see that YVP had tears in his eyes and I believe that he would have been able to see me crying. He did not take his penis out of my vagina. He said, ‘I can’t do this to you. You’d do anything for me.’ I just looked at the wall again without answering him. YVP then started penetrating me again but it was faster and harder. I can remember him panting and puffing in my ear. YVP knew that I wasn’t wanting to have sex with him. Sex was always fun for us and we would cuddle and kiss. It certainly wasn’t like this on this occasion. YVP kept going for about five minutes and then he ejaculated inside me. I was all sticky and wet. I had never been like this before. YVP kissed me on the forehead and got off me and pulled his pants up. He threw me my pants and I got dressed and went home. [BFK says this was at 2 am][18] We didn’t have any further conversation after he did what he did. [19]
[18]Chronology provided to VOCAT, section 49 statement, page 110.
[19]VCAT’s reasons [25]-[28].
The VCAT member continued to describe BFK’s evidence of what occurred thereafter throughout 1992 and 1993. In substance this concerned BFK’s pregnancy and abortion, some counselling she obtained, her evidence about attempting to see YVP in hospital after his suicide attempt, her difficulties in returning to university and the claim that she told three of her friends in about 1992 of her pregnancy and abortion and that she had only agreed to having sex on the relevant occasion because of YVP’s threats of self-harm. According to the member’s summary, the account given by two of BFK’s friends did not support her evidence that she had told them, in substance, that she had been raped but the third friend gave evidence of BFK confiding to her that she had had ‘un-consented sex’.
In the narrative, the member recounted that BFK ‘moved on’, married in 1996 and had children. She evidently believed that YVP had died. Much later, in May 2011, BFK noticed a photo of YVP on Facebook and attempted to initiate a friendly Facebook exchange with him to which YVP did not respond. The evidence then moved to a flurry of Facebook exchanges between YVP and BFK between mid-May 2012 and mid-June 2012 after YVP learnt, seemingly for the first time, of BFK’s earlier pregnancy and abortion. Details of those exchanges are set out in the reasons.
The VCAT member described the circumstances of BFK reporting the alleged rape to Victoria Police:
78In late 2014, BFK’s husband discovered the Facebook messages. He messaged YVP accusing him of raping BFK. He asked YVP to write a letter to BFK acknowledging the rape and asking for forgiveness, so that BFK could move on with her life. YVP did not respond.
79In November 2014, BFK reported the alleged rape to Victoria Police … and commenced therapy with the Counsellor …
80In December 2014, YVP sought and in January 2015 obtained an intervention order against BFK and her husband. Without admitting what he alleged, they did not contest the application.[20]
[20]Ibid [78]-[80].
After Victoria Police interviewed YVP in early 2015 and made other investigations, they decided not to lay any charges against him in relation to the alleged incident.
The VCAT member also summarised the evidence of BFK’s counsellor concerning BFK’s well-being in November 2014 and following, and the therapeutic course she recommended.
Next, the VCAT member outlined the evidence given by YVP, first from the police statement he made to Victoria Police when interviewed in early 2015 and then from evidence given at the VCAT hearing itself. The substance of YVP’s account of what occurred on the night in question, as gleaned from the account given to police, appears in the following passage from the VCAT reasons:
92At the time of the interview, YVP was 43 years old. On being asked about his relationship with BFK he said he was about 19 or 20 and she was about the same age and they went out for about four or five months. According to him, for the whole period she lived with another young woman, and they had sex at her place. He described the relationship as, ‘all right, not the best’. He agreed she was probably a virgin. He said BFK did not move to another home during their relationship and denied ever having sex with her at the local airport in a car. He said he lived at his foster parents’ home during the entire time.
93Concerning the night in question, he said he was not allowed to bring girlfriends home to have sex in his room and on this occasion he was pushing the boundaries. According to him they had sex in bed between the sheets.
94The police officers then questioned him based on BFK’s statement to Victoria Police. He spoke of it being late and his parents in bed and they went to his room intending to have sex. He denied pulling a cupboard across the door, saying due to the layout of the room that was not possible. He said the only movable furniture in the room was a short chest of drawers.
95He denied saying that he had nothing to live for and asking her to have his baby. He said he was 20 years old and ‘in party mode’ with no wish to have a child. He entirely denied the allegations made against him and that anything other than their usual consensual sex occurred. He said they never used condoms because he understood BFK was on the pill.
96On the issue of when they went to his room, he put it as in the middle of their relationship. He said he attempted suicide about a year after their relationship finished. He said he was having a hard time, including dealing with ‘orphanage stuff’. He was quite vague on the year, describing at one point as 1991, 1992 or 1993. He described himself as hopeless with dates.[21]
[21]Ibid [92]-[96].
After concluding his survey of the evidence the VCAT member stated his decision to affirm VOCAT’s decision not to reinstate BFK’s application, ‘retaining the status that the application is struck out’.
He proceeded to explain his decision by reference to a discussion of the criteria set out in s 29(3) of the VOCA Act. In doing so he briefly stated how each of the considerations raised by sub paragraphs 29(3)(a), (b), (c) and (d) bore upon the decision: some supported and some tended against allowing the application to be made out of time.
Next, he addressed the consideration in s 29(3)(e) whether the delay in making the application threatened VCAT’s capacity to make a fair decision.[22] He commenced his discussion as follows:
120The 23 ½ year delay between the alleged act of violence and making the application to VOCAT, deny VOCAT, and now VCAT, the opportunity to make a fair decision.
121Where rape is alleged and denied, in order to make a fair decision, the fresher the recollections of the accuser and the accused the better. Here, well over two decades had passed before BFK and YVP made police statements. This delay raises questions as to the accuracy of memories of events long past, particularly in the context of conflicting evidence and all potential corroborating evidence being no longer available.[23]
[22]Ibid [120]-[143].
[23]Ibid [120]-[121].
He proceeded to set out some of the conflicting elements of the evidence about consent and YVP’s belief concerning BFK’s consent. He made particular reference to the Facebook exchanges in 2011 and 2012, and to the absence in those communications of any allegation by BFK that the sexual act in 1991 had occurred without her consent. On the issue of establishing YVP’s lack of reasonable belief in BFK’s consent he said ‘the evidence is weak’.[24] The member continued:
140If I preferred BFK’s evidence concerning the night in question, her evidence is inconclusive. She does not describe her taking any positive action to indicate non-consent either before or during sex. At the highest, BFK assumes YVP would have seen tears in her eyes, her turning her head away and would have been aware of the lack of her consent given the different nature of this sex to their earlier encounters.
141 Again the Facebook posts contradict her evidence.[25]
[24]Ibid [139].
[25]Ibid [140]-[141].
On the topic of delay and its effect on fair decision making, the VCAT member then concluded:
142Concerning the ability to make a fair decision, given the 23 ½ year delay between the alleged act of violence and BFK making the VOCAT application, in the context of the above conflicting evidence, it was too late to, if VOCAT had reinstated the application, to make a fair decision concerning whether or not BFK is a victim of the alleged act of violence.[26]
[26]Ibid [142].
He further observed that the period between the alleged act of violence and the time of the VCAT hearing was then more than 25 years.
Finally, the VCAT member turned to other factors that were relevant to his decision. He found that ‘if it was not too late to make a fair decision’, BFK would have had a reasonable explanation for the delay,[27] that any unsettling effect on YVP would be given no weight because of the seriousness of the allegation and that the potential merit of the case would support granting BFK’s application for reinstatement.[28]
[27]Ibid [144].
[28]Ibid [146].
In conclusion he held ‘… [w]ith reference to all the criteria referred to above, in the particular circumstances in this proceeding, the application to reinstate the proceeding remains refused’.[29]
[29]Ibid [147].
Did VCAT fail to consider how delay threatened its capacity to fairly decide?
I should explain again that this question is addressed because it is the factual premise lying behind two grounds of challenge on a question of law as identified in (c) and (d) of paragraph [29] above. If the factual premise fails, those challenges fall away.
BFK complains that there were two areas in which VCAT failed to link particular findings (or observations) of fact with its ultimate conclusion that it was ‘too late to reach a fair decision’: first, the fact that the application was 23 years late and, secondly, the fact that there was conflicting evidence that would have to be reconciled or resolved.
As to the first, BFK complains that VCAT did not specifically identify in any particular way how the 23 year delay per se meant that it could not reach a fair decision. This failing, she argued, needed to be seen in the context that witnesses were apparently still able to give their accounts as to what had occurred and be tested on those accounts, and that no one had indicated they could not remember the events in question or that they were unable to give an account about it.
As to the second point, the existence of conflicting accounts, BFK argued that there is nothing significant or unusual about courts or tribunals having to resolve conflicting accounts whether they be about events a long time ago or more recently. Again, she argued, nothing was specifically identified by VCAT as to why conflicting accounts per se meant that it was impaired in reaching a fair decision.
Perhaps another way of understanding BFK’s argument is to observe that the test in s 29(3)(e) is whether the delay ‘threatens the capacity’ of the Tribunal to make a fair decision whereas, on one view, VCAT here simply stated its conclusion that it was ‘too late’ to make a fair decision. By adopting the expression ‘too late’ it (arguably) avoided identifying (or considering) in what way the delay actually ‘threatened the capacity’ of VCAT to make a fair decision. In other words, it might be argued that ‘too late’ is a conclusion from an unstated finding that the delay in some way impaired VCAT’s ability to make a fair decision without identifying exactly how that is so.
If that was correct, it might suggest something more than simply failing to articulate its true reasons (i.e. inadequate reasons); rather, it might denote that VCAT applied the wrong test because it shows that it did not in fact consider whether the delay ‘threatened’ its capacity to make a fair decision.
In addressing BFK’s argument, it is important to understand that in evaluating its ability to make a fair decision, VCAT related the effect of a 23 year delay on memories to the context of conflicting accounts as to facts. In other words, those two circumstances (a 23 year delay and conflicting accounts) were not independent or unrelated reasons for concluding it was ‘too late’ to make a fair decision. Self-evidently, had there been no controversy about what occurred, the effect of the duration of time on memory and the integrity of evidence would have been of little relevance. So, they were not considered by VCAT as individual strands separately contributing (without explanation) to the conclusion. Rather, it was the one in the context of the other that of itself supplied a partial rationale for VCAT’s conclusion.
But, on a much simpler level, I think that VCAT did identify how the delay undermined or threatened its capacity to make a fair decision. For example:
(a) at [121], the member observed that the accuracy of memories diminish over time, the significance of which was particularly acute in the context of conflicting evidence and the absence of ‘all potential corroborating evidence’ being available;
(b) at [137], by way of example of that proposition, the member highlighted the possibility that, due to the passage of time, YVP may be mistaken in his recollection about when the night in question occurred (which, in turn, may have a bearing on whose account should be believed overall); and
(c) at [129], the member referred to the added difficulty now, years later, of delineating whether the turmoil of life post-1991 (as one piece of circumstantial evidence that may potentially support the alleged act of violence) was a product only of pregnancy and abortion as opposed to rape, pregnancy and abortion.
In short, VCAT explicitly stated how the delay in general terms diminished its capacity to make a fair decision; then pointed to some particular parts of the contested evidence that could help decide whose account to believe, the quality or reliability of which the passage of time had diminished.
Additionally, VCAT’s careful account of the whole body of evidence generally demonstrated the way in which the passage of time impacted the capacity to make a fair decision. In particular, it showed how events between the alleged act of violence and the application ‒ events such as the communications between the parties in 2012, their new circumstances, marriages and intervention orders (which in turn potentially overlaid new motivations and psychological effects) ‒ significantly muddied the water concerning the reliability of their accounts of what happened 23 years earlier.
So, I reject BFK’s fundamental complaint that VCAT failed to address the issue of how the delay threatened its capacity to make a fair decision. With that conclusion, I reject any argument that VCAT applied a wrong construction of the test in s 29(3), or that the test was misapplied. I also reject the argument that it was not open on the evidence for VCAT to reach the conclusion it did on the effect of delay. I reiterate, of course, that it is not for this Court on an appeal on a question of law to go beyond finding that there was evidence upon which that conclusion could be reached.
That conclusion effectively disposes of the two arguments or grounds (see [30] above) that depend upon me accepting that VCAT had failed to identify the way the delay threatened its capacity to make a fair decision.
Before leaving this issue, I should briefly mention an argument put forward on the construction of s29(3)(e). At one point BFK appeared to argue that, on its proper construction, the provision required VCAT to find that the delay ‘prevents’ it from ‘making a decision’ rather than ‘threatens the capacity’ to make a ‘fair’ decision. Such a construction materially alters the meaning of the words of the section. No amount of beneficial construction authorises this Court to ignore the actual words in the text or to emasculate their meaning. Parliament’s choice of words posits a lower test than prevention, and capacity is to be measured by reference to making a ‘fair’ decision, not just any decision.
Did VCAT conflate the tests for striking out and for determining the substantive issue?
BFK suggested that in hearing the issue concerning whether to strike out the application together with the substantive merits of the application itself, VCAT confused or conflated the tests applicable to each, with the result that it applied a more stringent test on the strike-out question than it should have applied.
On a strike-out, BFK argued, a tribunal should allow a matter to proceed unless it was fanciful or there was no arguable case. Instead, in this case, VCAT found that there was potential merit in the case[30] yet still decided that the application should not proceed but be struck out.
[30]Ibid [146(b)].
BFK even submitted that if a tribunal found there was an arguable case — that is, that there was potential merit in the application — it must allow the application to proceed and not order that it be struck out. In discussion, BFK seemed to soften that position, arguing that if the particular circumstances at least show potential merit in the case that should usually justify VCAT not striking out the case.
BFK’s foundation for this argument was an erroneous construction of s 29.
As I understood it, BFK’s argument had three steps:
(a) section 29(3) is decoupled from sub-section (2); with sub-section (2) dealing with strike-out and sub-section (3) dealing with a different step, namely whether to further hear the case, rather than supplying the criteria for deciding whether to strike-out under sub-section (2);
(b) section 29(2) therefore has no explicit statutory criteria guiding how the strike-out is decided so it imports the ‘usual’ civil test of whether a case is fanciful or hopeless;[31]and
(c) in hearing the strike-out together with the merits of the case VCAT confused itself and, on the question of strike-out, applied the ‘higher test’ of having to be satisfied on the balance of probabilities that the rape occurred rather than simply considering whether there was a non-fanciful claim.
[31]Eg, such as the test drawn from General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125 or perhaps s 63 of the Civil Procedure Act 2010.
There are a number of problems with this argument.
First, as to the first two steps in the argument, the language of s 29 simply does not support the test which BFK advocated. Sub-section (3) plainly, in my view, supplies the criteria to guide VCAT making the decision under sub-section (2): the reference in both to ‘application made out of time’ makes it clear that both are concerned with the same issue and the structure of the whole section supports that conclusion.
Secondly, as to the third step, the VCAT member carefully delineated between the strike-out question and the merits question. Ultimately, he confined any observations about merit to the issue of ‘potential merit’, being one of the discretionary criteria for deciding the strike-out question. He did not purport to draw any final conclusion on the merits. That said, there were numerous signs (especially at [139] and [140] of his reasons) that, had he needed to decide the merits of case, on the evidence as it stood (which was the complete evidence) the VCAT member would not have been satisfied of proof on the balance of probabilities of one of the key elements of the crime of rape.
In conclusion, the VCAT member had proper regard to the criteria set out in s 29 (3) applicable to the decision whether or not to strike out the application. He was not obliged, as BFK sought to suggest, only to consider whether the application was fanciful or hopeless. And he did not confuse or conflate the ultimate merits test for the strike-out test.
For these reasons I reject the argument that VCAT erred in law by applying a higher test than the statute required to the question whether to strike-out the application.
Conclusion
In conclusion, I would extend time within which to file the appeal, grant leave to appeal but, for the reasons stated, dismiss the appeal.
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