Jenkins v Victims Compensation Fund Corporation

[2000] NSWDC 7

New South Wales

District Court

CITATION:	Jenkins v Victims Compensation Fund Corporation [2000] NSWDC 7
TRIBUNAL:	Victims Compensation Tribunal
PARTIES:	Natasha Jenkins Victims Compensation Fund Corporation
FILE NUMBER(S):	34 of 2000
CORAM:	McGuire DCJ
CATCHWORDS:	act of violence - s5 :- apprended violence act of violence - s5 :- violent conduct
LEGISLATION CITED:	Victims Compensation Act 1996
CASES CITED:	Bourke v Victims Compensation Fund Corporation
DATES OF HEARING:	25/8/00
DATE OF JUDGMENT:	25 August 2000

JUDGMENT:

HIS HONOUR: The applicant by Notice of Motion seeks leave to appeal against a determination of the Chairperson of the Victims Compensation Tribunal of 16 November 1999. It is asserted that the learned chairperson erred in law in failing to find that the victim was affected by an act of violence pursuant to s 5 1 b of the Victim's Compensation Act and in failing to find that a home invasion constitutes an act of violence.

Briefly stated the factual position is that the appellant or the applicant was at home with her two infant children on 18 June 1997, she heard noises which clearly related to efforts being made by intruders to enter her dwelling.

Upon looking outside she saw some males, there upon she telephoned 000 and reported the matter to the police. After hanging up the phone she stood against the wall of her bedroom. She saw a male person walk into the back bedroom, another male walked into the bedroom where she was standing. She effectively terminated his attendance on her premises by commanding him to "fuck off". He did so, in that he ran off and two other males followed him. It is to be noted that her children were sleeping, or at least one of her children was sleeping in an adjacent bedroom.

The learned Chairperson upheld a determination by an Assessor and found that the applicant's claim must fail because in his view there was no evidence whatsoever of violent conduct against her within the meaning of s 5 1 b of the Victims Compensation Act.

He went on to say that the fact that she apprehended violence is not violent conduct in the circumstances, particularly when that apprehension arose, when the offender kicked the door open. An allegation which he rejected as being inconsistent with her police statement.

If a person invades the home of a victim who is fearful of harm to herself or her child, in my view she has been clearly subjected to an act of violence.

It is not necessary for her to demonstrate some physical damage to her person due to a blow or actual assault. She is assaulted if she has been placed in fear by being confronted by the invader. The fact that the invader did not orally threaten, raise a fist, make a gesture with a weapon, suggestive of physical harm being suffered is not a necessary constituent of an of violence. I consider that the invasion of the home, after breaking in, in this case, the opening of a door, with intent to commit a felony is undoubtedly criminal conduct. It would constitute an offence under either s 111 or s 113 of the Crimes Act.

The fact that the purpose of the unlawful entry is not known, is irrelevant. The most obvious inference is that the invader intended to commit a felony of stealing. It is of course feasible that the invader or invaders intended to sexually assault the victim. It really does not matter if she has experienced fear or apprehension brought about by the violent conduct described.

True it is that the invader left when commanded to do so in effective terms. There is no different in principle if the invader had covered his face with a terrifying mask and had a machine gun in his hands, and grenades on his belt. That may lead to greater fear or terror, it is only a matter of degree. It is subjective effect upon the victim which is relevant.

Section 5 of the Act defines an act of violence as an act or series of related acts whether committed by one or more persons; (a) that has apparently occurred in the commission of an offence; and (b) that has involved violent conduct against one or more person and that has resulted in injury or death of one or more persons.

I am told that the question of injury is not relevant to my determination, as it is not in issue.

The learned Chairperson found that conduct apparently suggested by the applicant of the kicking in of her door, didn't occur. Apparently this finding was made on the basis that such conduct was not mentioned in her statement to the police. He may well have been correct in his finding, and I make no comment as to this matter, that is to say it may or may not have occurred that the door was kicked in. However, I don't consider that it was necessary for the learned Chairperson to determine that that particular act had or had not occurred, in order to establish an act of violence.

Clearly an offence had been committed, and clearly in my view this involved violent conduct towards the applicant. She suffered an injury, which of course would include psychological, or psychiatric damage, by being involved in violent conduct, that is to say the fear engendered in her by the threat of violence by the presence of the invader.

In Bourke v VCFC a decision of mine of 16 December 1999 I found that there was violent conduct in the circumstance of a person seeking to break into the victim's dwelling. His actions constituted a violent act towards the premises. This was violent conduct it occurred in the commission of an offence, and it was sufficient to attract the benefits of the Act.

In my view, violent conduct can be demonstrated without any physical contact whatsoever, involving either premises, some object or the victim. By way of an extreme example. 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 a collision. Then even 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.

The learned chairperson has mis-directed himself in his interpretation of what constitutes an act of violence.

Accordingly, I grant leave to appeal.

What other orders are necessary Mr Quickenden?

QUICKENDEN: Appeal upheld your Honour.

HIS HONOUR: The appeal is upheld.

QUICKENDEN: I remit the matter--

HIS HONOUR: And the matter is remitted to the tribunal for further determination to be dealt with according to - in accordance with the decision of the District Court on the question of law concerned. The Tribunal is to pay the appellant's costs of this application.

QUICKENDEN: There are two file of course which your Honour will have identical orders in. The mother and the daughter.

DRIVER: Crystal is the other one.

HIS HONOUR: I make identical orders in the matters of Natasha Jenkins and Crystal Jenkins.

QUICKENDEN: Your Honour I apologise I ought to have said in relation to the cost orders in each case that they really involve the one issue and if costs can't be agreed that the Assessor ought to take into account that each matter involved the single issue, rather than getting a full set of costs on each. Make any sense to your Honour.

HIS HONOUR: It does make sense but what do you want me to do about it?

QUICKENDEN: Simply say that.

HIS HONOUR: It is to be noted that although there were--

DRIVER: Your Honour might I be heard on that.

HIS HONOUR: Yes very briefly and then I'll find against you.

DRIVER: Two matters, we had to do two lots of work, read two lots of findings, prepare two lots of documents and two lots of --

HIS HONOUR: Yes I understand that. It is to be noted that although there are two applications, that the issue on each application was the same, there will of course be consideration given to the fact that it was necessary to file two lots of documents. However, all right I will say no more.