Clarke v Victims Compensation Fund Corporation

[2001] NSWDC 26

New South Wales

District Court

CITATION:	Clarke v Victims Compensation Fund Corporation [2001] NSWDC 26
TRIBUNAL:	Victims Compensation Tribunal
PARTIES:	Kathryn Clarke Victims Compensation Fund Corporation
FILE NUMBER(S):	9953 of 2001
CORAM:
CATCHWORDS:	act of violence - question of law
LEGISLATION CITED:	Victims Support and Rehabilitation Act 1996
CASES CITED:
DATES OF HEARING:	22/1/02
DATE OF JUDGMENT:	22 January 2002

JUDGMENT:

JUDGMENT - on notice of motion

HIS HONOUR: Before the Court is a notice of motion under section 39 of the Victim’s Support and Rehabilitation Act seeking leave to appeal on a question of law from the determination of the Chairperson of the Victim’s Compensation Tribunal on 1 August 2001 dismissing an application for compensation under this Act.
Under section 39 of the Act an applicant may with the leave of the District Court appeal to this Court on a question of law arising in any determination of the application by the Tribunal.
It is clear therefore that the jurisdiction of this Court is only to correct an error of law. The issue in the present case is whether the Chairperson made an error of law in his determination. Under subs 2 of s 29 of the Act, the onus is upon the applicant for compensation to establish his or her entitlement to the satisfaction of the Tribunal on the balance of probabilities. Entitlement to compensation occurs only when a person sustains an injury by an act of violence. Such an act is defined in s 5 as meaning an act or series of related acts that has apparently occurred in the course of the commission of an offence and that has involved violent conduct against one or more persons and that has resulted in injury to one or more of those persons.
In the light of these principles of law it is now necessary to go to the determination of the Chairperson. The determination points out that the appellant said that on 4 July 1998 she had been drinking with friends from Cronulla and then went to the North Cronulla Hotel. When she left she says that she was well effected. The appellant was walking with her boyfriend Aryan(?) Scheibel. The appellant says,
“we got to the corner where the Commonwealth Bank is, near the play ground equipment. I don’t remember anything past this point. The next thing I can recall is lying on the ground. I can remember lifting myself off the ground to sit up properly. I realised at this point that some of my front teeth were missing. I was just looking down at the ground with my hand to my face.”


It is clear therefore that the applicant has no relevant recollection of the events which caused her injury.
Her boyfriend Aryan Scheibel said that he drank very little because his girlfriend, the appellant, had been drinking quite a bit that night. He says that as he and the appellant walked down the laneway where the play ground equipment is, a couple passed going in the opposite direction. They did not say anything and did not appear to look in the direction of Mr Scheibel and the appellant. Mr Scheibel said he did not say or do anything while passing that couple. He says that he and the appellant continued and he heard someone call out, “oy”. Mr Scheibel turned to see the male whose name is Mr Pla-Mena running back. This man took off his jacket, dropped it, went straight to the appellant, swung with one of his arms and Mr Scheibel says he saw him swing and the appellant lift off the ground and fly backwards. She landed face down on the road and he saw that her two teeth came out as a result of hitting the pavement. Mr Scheibel says that the male assailant said nothing and went to walk away and Mr Scheibel attempted to restrain him and was then attacked and people came to Mr Scheibel’s aid.
On the basis of Mr Scheibel’s version of events, the appellant was clearly injured by an act of violence on the part of Mr Pla-Mena.
Justine Stafford who was the girlfriend of Mr Pla-Mena said that as she and her boyfriend walked past Mr Scheibel and the appellant, Mr Scheibel’s called out, “you wog”. She said that she and Pla-Mena kept walking and then turned round and Pla-Mena said, “pardon”, to which Scheibel replied, “you wog cunt”. Miss Stafford says that Scheibel then swung at Pla-Mena and she saw Pla-Mena push Scheibel towards the chest region and after that Scheibel tried to hit Pla-Mena. Miss Stafford said that she then saw the appellant and Scheibel fall down and Scheibel got off the ground, pushed Rick to the ground, other men then arrived and at no time, she says, did Pla-Mena hit the appellant. On Miss Stafford’s evidence the conduct of Pla-Mena does not amount to the commission of an offence and therefore he was not guilty of an act of violence which resulted in injury to the plaintiff.
Mr Pla-Mena gave evidence that after he and Miss Stafford left a restaurant he passed Scheibel and the appellant and Scheibel called out, “wog cunts”. Pla-Mena says that he then turned and said, “pardon”, at which point Scheibel walked towards him and went about thirty to forty centimetres from him. Scheibel swung at him with his left hand with a closed fist. Pla-Mena says that he pushed Scheibel in an automatic response to his chest to defend himself and girlfriend. Pla-Mena says that both Scheibel and the appellant fell to the ground because they were arm in arm. He says he didn’t see how the girl hit the ground but Scheibel fell on top of her. Pla-Mena said that Scheibel got off the ground and pushed him to the ground screaming, “you fucking cunt”, and called the police. He denies assaulting the appellant and he said he pushed or punched Scheibel only in self defence. Clearly, on his version of facts, there was no act of violence on his part.
There is also a statement from Mr Van Der Linden who did not see any assault and his statement adds little to the knowledge of what occurred at that time.
A Mr Logue was called out onto the balcony by a Miss Waugh. He saw a female sitting on the ground with her hands in front of her and palms outwards with her fingers spread out. He said that she was trying to shield herself from Mr Pla-Mena who was standing over her. Her right hand appeared to be holding back his left arm. His feet were positioned inside her legs. He was facing her and bending down towards her from where he stood. He then saw a man pull back his right hand twice. However he did not actually see the woman hit, as each time he tried to, another man restrained him by grabbing his arm.
However the Chairperson went on to say that the evidence of Logue was at odds with the evidence of Pla-Mena and Scheibel and for that and other reasons he concluded that he could not rely on Mr Logue’s evidence which otherwise may have supported a claim that Pla-Mena was the aggressor.
There is no doubt that Mr Logue gives a version which tends to support the evidence of Scheibel but the Chairperson rejected this evidence. This is a finding of fact which was open to him and does not involve any matter of law.
A further witness was Julienne Waugh who said that before midnight she was on her verandah and heard a girl carrying on in the mall, screaming. She looked down and saw two guys standing over her. She thought that the girl was getting raped. Neither of the two men were having a go at each other and she could not remember a great deal more. Clearly on her version, nothing material is added to the knowledge of what occurred at that particular time.
After considering all of these facts, the Chairperson made three findings. The first was that the appellant had lost her teeth as a result of hitting the pavement. The second was that he was satisfied that Scheibel made some remark to Pla-Mena which provoked him and that Pla-Mena came back to where Scheibel and the appellant were standing. The third is that he was not satisfied as to how the appellant sustained the damage to her teeth and he was not satisfied that an act of violence was established.
So it can be seen that the Chairperson was satisfied on the balance of probabilities that Pla-Mena came back to where Scheibel and the appellant were standing but that the state of the evidence was such that the appellant had failed to satisfy him on the balance of probabilities as to what happened thereafter and in particular whether the appellant’s injuries resulted from inter alia, the commission on an offence which involved violent conduct against one or more persons.
The resolution of this appeal is complicated by a somewhat unfortunate wording of questions which the Chairperson posed. At page four of his determination, he says,
“How did the appellant lose her teeth? One, did Pla-Mena push or strike her deliberately, causing her to fall and strike the pavement. Two, did he push or strike her in his attempt to push or strike Scheibel, causing her to fall and strike the pavement. Three, did Scheibel fall against her when Pal-Mena struck him, causing her to fall and strike the pavement.”

If one looks at this passage in isolation then it appears that the Chairperson was considering only the cause of the appellant losing her teeth rather than at the question he had to decide, namely, whether the injuries to the appellant apparently occurred in the course of the commission of an offence involving violent conduct.
However when one looks at this passage, in the context of the overall determination it is quite clear that the Chairperson was then using words which were quite consistent with the task he was required to perform. He had considered all of the evidence to determine whether or not the appellant’s injuries resulted from an act of violence and he then came to the conclusion that the appellant had failed to satisfy him on the probabilities that this was in fact the situation. Support for this is given by the paragraphs which follow the passage just quoted. He says,
“Mr Scheibel says that it was a deliberate act. Both Miss Stafford and Pla-Mena say that he did not strike the appellant but he did push Scheibel who together with the appellant fell to the ground. I am not satisfied as to how the appellant sustained the damage to her teeth. I am not satisfied that an act of violence is established.”

There is a further matter which needs to be considered. On behalf of the appellant it was submitted that if Pla-Mena struck or pushed Scheibel as an act of reasonable self defence to an unlawful assault or offer of violence by Scheibel and if as a result Scheibel fell taking the appellant with him then the appellant’s injuries resulted from an act of violence by Scheibel and she would be entitled to compensation on that basis. The short answer to this submission is that the Chairperson found that the state of evidence was such that he was unable to be satisfied on the balance of probabilities as to what in fact took place after Pla-Mena came to where Scheibel and the appellant were standing. Hence he was not satisfied on the balance of probabilities that this version of facts was to be accepted.
In short the whole basis of the Chairperson’s determination was that the appellant had failed to satisfy him on the balance of probabilities as to what, in fact, occurred and in particular, as to whether her admitted injuries resulted from an act of violence. This is clearly a question of fact. In my view it does not give rise to any question of law. For all of these reasons I am not satisfied that the appeal to this Court involves a question of law and accordingly the determination of the Chairperson and the Tribunal is affirmed.