Chadwick v VCFC

[2002] NSWDC 24

New South Wales

District Court

CITATION:	Chadwick v VCFC [2002] NSWDC 24
TRIBUNAL:	Victims Compensation Tribunal
PARTIES:	Janet Chadwick v Victims Compensation Fund Corporation
FILE NUMBER(S):	469 of 2001
CORAM:	Bell DCJ
CATCHWORDS:	act of violence - s5
LEGISLATION CITED:	Victims Support and Rehabilitation Act 1996 Drug Court Act 1998
CASES CITED:	Bourke v The Victims Compensation Fund Corporation, delivered 16 December 1999 ; Chandler v The Director of Public Prosecutions (2000) NSWC A125; Jenkins v The Victims Compensation Fund, delivered 25 August 2000
DATES OF HEARING:	15 August 2002
DATE OF JUDGMENT:	15 August 2002

JUDGMENT:

HIS HONOUR JUDGE BELL: Janet Chadwick is the appellant against the determination dismissing her application for compensation under the Victims Support and Rehabilitation Act 1996.

In the appeal I am concerned only with one event, namely that which took place on 30 June 1997. On that date the appellant was a member of the police service. The learned magistrate found that as she left her vehicle, the offender’s vehicle approached, “and when about ten metres from the police vehicle, the vehicle accelerated at speed”. The appellant later saw the offender parked in his vehicle nearby.

Later again when the appellant was opening the door of her car in order to alight, the learned magistrate found that she:-

“Saw the headlights of the vehicle approaching us. I had my door open and was half out of the car and half on the roadway. The car approaching me was driving with its headlights on and I could hear the engine revving. The car drove towards where I was getting out of the car. At the time the car was driving fast and the engine was revving excessively ... I could see the car was in the middle of the road and if I had remained standing half out of the car, I have no doubt I would have been hit by the car and been injured”.

Following this incident the appellant left her vehicle to cross the road and again she:-

“Saw headlights coming towards me from the hill the car had just gone over. I saw the lights and again could hear the engine revving. The headlights were on high beam and the car was again driving towards me as I shut the car door. I yelled at Lisa and ran from my side of the car on to the footpath next to our car. At about ten metres away from me the car accelerated and revved loudly passing close to the driver’s door from which I had run”.

The learned magistrate referred to a corroborative witness.

In his reasons he held:-

“In the present circumstances the evidence in respect of the incidents is that the vehicle had his lights on high beam and the driver accelerated and revved loudly on the occasions that it passed close to the appellant”.

He was not satisfied that that conduct constituted an act of violence within the meaning of s 5, having regard to the provisions of s 5(1)(b). S 5(1)(b) requires that the act of violence, “Has involved vile conduct against one or more persons”.

In reaching that conclusion the magistrate referred to a decision in this Court of Judge McGuire in Bourke v The Victims Compensation Fund Corporation , delivered 16 December 1999 and the decision of the Court of Appeal in Chandler v The Director of Public Prosecutions (2000) NSWC A125, these having been relied upon by the appellant.

The relevance of the Chandler decision, which otherwise dealt with drug offences and the Drug Court Act is to an expression that, “Driving would not normally be regarded as violent conduct”.

I would think commonsense requires that that expression be read as `normal driving would not be regarded as violent conduct’ because there are many forms of driving which could be regarded as violent conduct but are not normal. As an extreme example, an offender deliberately driving his car or her car into the car of another person with intent to do damage to the vehicle or the car.

When this matter was before the Court on 12 August, I raised with counsel the definition of the word violent as it appears in s 5(1)(b). Mr Longhurst, counsel for the appellant has provided the Court with the extracts from the Shorter Oxford English Dictionary, Third Edition, and the Macquarie Concise Dictionary, Second Edition. From the Oxford Dictionary I extract the relevant statements under violent:-

“Of things: Having some quality or qualifies in such a degree as to produce a very marked or powerful effect; intense vehement very strong or severe.

Of persons: Acting with or using physical force or violence especially in order to injure, control or intimidate others; committing harm or destruction in this way; acting illegally taking illegal possession (the latter being a late middle-English usage).

Of persons, etc: Displaying passion excessive ardour or lack of moderation in action or conduct”.

The Macquarie Concise Dictionary provides relevantly the following:-

“ 1 . acting with or characterised by uncontrolled, strong, rough force. 2 . acting with, characterised by, or due to injurious or destructive force. 3 . intense in force, effect, etc; severe, extreme. 4 . roughly or immoderately vehement, ardent, or passionate. 5 . furious impetuosity, energy, etc”.

I have no difficulty whatsoever in being able to describe the conduct as found by the learned magistrate within the framework of the expressions contained in those dictionary definitions. However the matter does not rest there.

I think it is appropriate to record from the judgment of his Honour Judge McGuire in Bourke , his Honour’s decision which dealt with s 5(a) in these terms:-

“As I read s 5(a) the act of violence does not have to involve the offering of intentional violent conduct against the victim. It simply means that there has been an act which is violent, that occurred in the commission of an offence which has resulted in violent conduct against the victim.

The intention of the perpetrator is irrelevant, it may well be that he merely considered himself to be acting in a violent fashion against an inanimate object. However if this results in violent conduct against the victim then there has been an act of violence within the meaning of section 5(a)”.

In that case his Honour was dealing with a female who sustained a severe cut to her hand at a time when an intruder was seeking to enter - or was committing the offence of break and enter in respect of her property. The facts of course there are quite different from the facts here.

But his Honour in the later decision of Jenkins v The Victims Compensation Fund , another case which involved entry into a home, his Honour gave this illustration of violent conduct:-

“If an elderly and infirm motorist was confronted by an interstate truck at night proceeding without lights towards her on its incorrect side of the road and she was forced to take evasive action to avoid collision. Then without collision if she suffered a heart attack as a direct result of the fear engendered by that incident, I consider that she has been the victim of violent conduct. There has been an act of violence which occurred in the commission of an offence, that is to say driving on the incorrect side of the road without lights. The heart attack that she suffered would in my view clearly attract the provisions of this act”.

I note that his Honour delivered that judgment against the Victims Compensation Fund Corporation on 25 August 2000. In this appeal the offender did in fact commit an offence for his Worship found that s 5(1)(a) had been satisfied.

In the course of the commission of that offence there was a driving of a vehicle twice towards the appellant causing her to take evasive action. At the time of the driving, the car was driving fast and the engine was revving excessively (the first passing), and the headlights were on high beam and the car engine was revving in relation to the second passing. So that when it passed the appellant she was able to report, “The car accelerated and revved loudly passing close to the driver’s door from which I had run”.

Having regard to the law as stated in the judgments of Judge McGuire, and finding nothing to the contrary to that statement of the law in the judgment of the Court of Appeal, as referred to and set out in the reasons of judgment by the magistrate in Chadwick’s case, it is clear that the driving caused the applicant to move from the position for fear of injury. The driving was characterised by an engine revving excessively and the car being driven at speed.

I must say that I am unable to see how that did not satisfy the learned magistrate, that such driving as a matter of law constituted violent conduct against the appellant. I am certainly satisfied that on the question of law, the facts relied upon do constitute violent conduct and that as a matter of law the learned magistrate erred in interpreting violent conduct to exclude it.

In those circumstances, having if not previously done so, I formally give leave to the appellant to appeal. T he appeal is upheld and the matter is remitted to the Tribunal for further determination in accordance with the decision of the District Court and the question of law concerned.

Is there anything further in that order that I need to make Mr Moore?

MOORE: No your Honour.

HIS HONOUR: And in relation to costs?

LONGHURST: I’d ask for costs.

HIS HONOUR: Anything to be said?

MOORE: No your Honour.

HIS HONOUR: I order the respondent Tribunal to pay the appellant’s costs of the appeal. I take it Mr Moore the Tribunal either automatically gets a copy of the judgment or applies for a copy of the judgment?

MOORE: Yes your Honour.

HIS HONOUR: There’s no need for me to order it to be taken out is there?

MOORE: No but it would assist your Honour.

HIS HONOUR: Very well. I direct that my reasons be taken out, my associate can put the application in straightaway. Before I finish, did I cover everything that I need to cover in case there’s anything outstanding?

MOORE: No your Honour.