Lynch v Victims Compensation Fund Corporation
[2012] NSWDC 17
•02 March 2012
District Court
New South Wales
Medium Neutral Citation: Lynch v Victims Compensation Fund Corporation [2012] NSWDC 17 Hearing dates: 16 February 2012 Decision date: 02 March 2012 Jurisdiction: Civil Before: Levy SC DCJ Decision: 1.Leave to appeal is granted;
2.The appeal is allowed;
3.The orders of the Victims Compensation Tribunal made on 22 August 2011 pursuant to s 29 of the Victims Support and Rehabilitation Act 1996 in proceedings numbered 149612C in that Tribunal are set aside pursuant to s 39(5)(a) of that Act ;
4.The proceedings and the Victims Compensation file are remitted to the Victims Compensation Tribunal to be dealt with according to law and in conformity with paragraphs 113 and 114 of these reasons;
5.The respondent is to pay the costs of the appellant on the ordinary basis unless otherwise entitled;
6.Liberty to apply in 7 days notice for further orders if required.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: ADMINISTRATIVE LAW - victims compensation - PTSD following home invasion - whether Tribunal had regard to improper considerations in determining it should refuse the appellant an award of compensation - whether determination involved a question of law - construction of s 30(1)(a) of Victims Support and Rehabilitation Act 1996 - whether temporal connection between previous criminal behaviour of victim and claimed injury must be established - consideration of "directly or indirectly contributed to the injury" - something more than unsubstantiated gossip, rumour or opinion is required for finding disentitlement to compensation - remittal for rehearing Legislation Cited: Victims Support and Rehabilitation Act 1996, s 5(1)(a) & (b), s 24, s 29, s 30(1)(a), s 38(3), s 39(1), (5) & (5)(a) Cases Cited: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Director-General of the Attorney General's Department v District Court of NSW and Stark [1993] 32 NSWLR 409
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
Minister for Ethnic Affairs v Wu Shang Liang (1986) 185 CLR 259Category: Principal judgment Parties: Jason Brian Lynch (Applicant/Plaintiff)
Victims Compensation Fund Corporation (Respondent/Defendant)Representation: Mr S Friend (Applicant/Defendant)
Mr M Ting (Respondent/Defendant)
Friend & Co (Appellant/Plaintiff)
Victims Services (Respondent/Defendant)
File Number(s): 2011/376366 Decision under appeal
- Citation:
- Victims Compensation Tribunal
- Date of Decision:
- 2011-08-22 00:00:00
- Before:
- Mr Lulham, LCM
- File Number(s):
- 149612C
Judgment
Table of Contents
Nature of case
[1] - [2]
Decision under appeal
[3] - [5]
Grounds
[6] - [9]
Issues
[10]
Legislation
[11] - [14]
Applicable legal principles
[15] - [16]
Reasoning of the Tribunal
[17]
Evidence
[18] - [19]
Facts
[20] - [41]
The act of violence and related investigations
[21] - [25]
Appellant's claim for victims compensation
[26]
Rejection of claim by Assessor
[27] - [28]
Appeal to the Tribunal
[29] - [41]
Chronology of procedural events
[42] - [73]
Chronology of lodgement to initial assessment
[44] - [66]
Chronology of the appeal before the Tribunal
[67] - [72]
Appeal to the District Court
[73]
Submissions of the parties
[74] - [75]
Consideration
[76] - [113]
Disposition
[114]
Costs
[115]
Orders
[116]
Nature of case
The plaintiff appellant, Mr Jason Brian Lynch, brings this appeal by way of a summons filed pursuant to s 39(1) of the Victims Support and Rehabilitation Act 1996 ["the Act"]. The summons seeks leave to appeal and to have set aside a determination made by the Victims Compensation Tribunal on 22 August 2011. The effect of a determination of the Tribunal was to refuse the appellant an award of compensation as a victim of an act of violence committed against him in the course of an armed robbery during an invasion of his home.
The application for leave to appeal, and the hearing of the appeal, proceeded concurrently. I have granted the appellant leave to appeal as the appeal raised a question of law. In the paragraphs that follow, I set out my consideration of the matters raised by the appeal which have led me to the conclusion that the decision of the Tribunal should not stand, and must be set aside.
Decision under appeal
On 22 August 2011, the Chairman of the Victims Compensation Tribunal, Mr Lulham, LCM, found that as a result of the act of violence in question, the appellant had acquired a psychological disorder or condition, described as chronic post-traumatic stress disorder, that in ordinary circumstances, would have attracted an award of compensation in the range $7,500 to $15,000.
Despite those matters, the Tribunal nevertheless determined that because it considered that the act of violence was perpetrated upon the appellant as a warning to him to desist from selling drugs from his premises which were the subject of the home invasion, a factual matter which the appellant disputed, the Tribunal found that the appellant was disentitled to an award of compensation, by reason of the provisions of s 30(1)(a) of the Act. That provision entitled the Tribunal to have regard to the appellant's past behaviour, including past criminal activity, that either directly or indirectly contributed to the injury.
As a consequence of the appellant being refused compensation, he has filed the present appeal.
Grounds
The appellant claimed that the Tribunal erred in applying the provisions of s 30(1)(a) of the Act to refuse him compensation.
The appellant further claimed that the Tribunal wrongly considered facts which were incorrectly inferred, and not based upon evidence, but upon unsubstantiated opinion evidence to the effect that the appellant had relevantly dealt in drugs, and had therefore erred in determining that the appellant's entitlement to compensation should be reduced to nil on account of that alleged behaviour, without applying proper consideration to his claim.
The respondent to the appeal, the Victims Compensation Fund Corporation, appeared through its solicitor, and made submissions seeking to resist the relief sought by the appellant, arguing that mere factual errors on the part of the Tribunal, did not warrant interference on appeal, with the orders made by the Tribunal.
The appellant argued that the contended errors went beyond mere factual errors, and involved a matter of legal construction and procedural unfairness.
Issues
The central issue to be determined in this appeal is whether the Tribunal erroneously referred to, and took into consideration and account, material involving rumour as to the appellant's activities, and his past criminal record, in a manner that was not temporal but extraneous to the determination of the claim for victims compensation, and if so, whether this involved a question of law within the meaning of s 39(1) of the Act.
Legislation
An appeal to the District Court from a decision of the Victims Compensation Tribunal is only available on a question of law: s 39(1) of the Act. Questions of law can include questions of statutory construction, procedural fairness, and whether the appropriate standard of evidentiary proof was applied.
The Tribunal was bound to consider the provisions of s 30(1)(a) of the Act which, for the purposes of these proceedings, relevantly provides:
" 30 Reasons for not making award or for reducing amount of compensation payable
(1) In determining whether or not to make an award of statutory compensation and in determining the amount of compensation to award, the compensation assessor must have regard to the following:
(a) any behaviour (including past criminal activity), condition, attitude or disposition of the primary or secondary victim concerned that directly or indirectly contributed to the injury or death sustained by the victim,
..."
In victims compensation proceedings, the Tribunal is not bound by the rules of evidence, and, subject to considerations of procedural fairness, it may inform itself on any matter and in such manner as it thinks fit: Sch 2, Pt 3, r 12(1) of the Act.
In the event that the appellant is able to establish that there has been an error in the decision of the Tribunal on a question of law, the required order is for the remittal of the matter to be considered and determined again by the Tribunal (either with or without the hearing of further evidence): s 39(5) of the Act.
Applicable legal principles
It is well settled that an erroneous conclusion of fact does not necessarily attract correction on appeal. It is also well settled that an unreasonable application of the law to the facts will attract correction on appeal. An award will not be set aside on account of wrongful reception of evidence unless a substantial wrong or a miscarriage of justice has occurred, so that wrongly admitted evidence which does not influence a decision, provides no ground of appeal: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, at 153A, 157D - F.
In this context, for errors to be appellable, they must be shown to be crucial to the decision and not trivial: Minister for Ethnic Affairs v Wu Shang Liang (1986) 185 CLR 259.
Reasoning of the Tribunal
I set out the relevant parts of the concluding reasons stated by the Tribunal for the conclusions under challenge. The portions of the extract that are emphasised in bold text are similarly emphasised in the original document:
"...
13. Detective Senior Constable P. Biffin provided the following report to Victims Services;
"The victim Jason Lynch freely admitted that the proceeds stolen during the offence was cannabis. This cannabis was later located on "the perpetrator" and seized by police.
During the investigations a witness was established that admitted he had attended Jason Lynch's place to purchase cannabis from him and had done this on prior occasions.
On arresting "the perpetrator" he stated to police on interview that the reason he committed the home invasion was to steal drugs as he knew that Jason Lynch was supplying them from his home.
Neighbours of Jason Lynch were also spoken to as part of the investigation. They also stated that they believed that prior to the offence Jason was supplying drugs as there were always people coming and going from his house."
14. Detective Senior Constable Biffin completed his report by stating;
"It is of my opinion through conducting a thorough investigation into the home invasion that Jason Lynch was a victim of a home invasion at 2/124 Barton Street Monterey on 22 October 2008 as he was supplying prohibited drugs from the location namely cannabis."
15. The Compensation Assessor drew the appellant's solicitor's attention to the matters indicated in the police report and requested the solicitors to make submission in relation to the application of s.30. The solicitors replied by forwarding a statutory declaration from the appellant dated 21 October 2010 in which he declared as follows;
"1. My name is Jason Lynch. I am the applicant for compensation.
2. I have read the COPS report sent to my solicitor, Friend and Co. Lawyers undercover of the VCT their letter of 20 September 2010.
3. I deny any suggestion in the COPS report that I was engaged in the supply of prohibited drugs from my premises at 2/124 Barton Street Monterey NSW 2217.
4. I do not sell illegal drugs and have not done so. At the time of the home invasion on my property on 22 October 2008 I was home alone. I had a small amount of cannabis in my house which was for my personal use. I was not charged with possession of cannabis. I admitted to the police that I had a small quantity of cannabis for my personal use."
The difficulty with the appellant's statutory declaration is that he declared that; "I do not sell illegal drugs and have not done so". The bail report form forwarded by the NSW Police Force details a conviction on 16 June 1997 for supply prohibited drug and a conviction on 13 July 2000 for supply prohibited drug. I am clearly required to take those matters into account. I am also able in these circumstances, in my view, to take into account the balance of the appellant's criminal record which details many convictions for dishonesty and drug related (possession of drug) offences.
16. I consider that I am also able to take into account in this matter under s.30(l)(a) that Psychologist Borenstein, who prepared the ARW report, indicated that up to the stage the appellant left school there was an absence of behavioural problems. The appellant's criminal record would indicate that within that time the appellant had had three attendances before the Children's Court. Unusually, there is no reference to any problems which the appellant had with the criminal law referred to in Psychologist Borenstein's report. I accept that, although it would be unusual, it may be that Psychologist Borenstein did not seek information in relation to such matters.
Summary and Conclusion re Application of S.30(l)(a)
17. The police COPS entry system establishes that the perpetrator stated at the scene that the purpose of the entry into the appellant's home and the subsequent armed robbery was to warn the appellant to stop selling drugs as the perpetrator "owned" the particular area. Detective Senior Constable Biffin's report confirms the reason for committing the home invasion was to steal drugs as the perpetrators knew the appellant was supplying them from his home. Detective Senior Constable Biffin's report establishes that the police made further enquiries which satisfied them that the appellant was supplying drugs from his house. It is difficult to accept the appellant's denial in his statutory declaration that; "I do not sell illegal drugs and have not done so" in light of the matters disclosed in his criminal record.
18. I am satisfied, on the balance of probabilities, that the appellant had used his house for the purpose of selling drugs. I am satisfied that he did so for some time prior to the act of violence. I am satisfied that the perpetrators' motive for the armed robbery was to intimidate the appellant and warn him off continuing to sell drugs. The perpetrators saw him as a rival in the selling of drugs. I am satisfied that it was the appellant's criminal activity that directly contributed to the armed robbery and to the injury sustained by the appellant. I am satisfied that the appellant's behaviour was such as to justify an award not being made in this matter pursuant to s.30(l)(a) of the Act.
19. I indicate to the appellant that if I had come to a different decision and if I was required to consider compensable injury that I am satisfied that the appellant has not established the compensable injury of Category 2 chronic psychological or psychiatric disorder that is severely disabling. Whilst I am satisfied he suffers from a psychological disorder, I am not satisfied that the evidence establishes that the psychological disorder is severely disabling. I note that Psychologist Borenstein assessed the appellant under the Global Assessment of Functioning (GAF) scale with a score of 55, indicating moderate difficulty in social, occupational or school functioning.
20. I note that the appellant would have established the compensable injury of Category 1 chronic psychological or psychiatric disorder that is moderately disabling with a standard range of compensation of $7,500 to $15,000. For the reasons given, I am not prepared to award compensation for that compensable injury because of the provisions of s.30(l)(a). I gave consideration to reducing the compensation rather than not making an award. For the reasons I gave, I consider the appropriate decision, because of the seriousness of the appellant's activity, was to not make an award pursuant to s.30(l)(a)."
Evidence
The appellant relied upon the affidavit of his solicitor, Mr Stephen James Friend, sworn on 16 February 2012. Both the respondent and the appellant relied upon the contents of the compendious file of the Victims Compensation Tribunal, including the correspondence portion of that file, which both parties agreed I should read, and which should form part of the evidence to be read in the appeal. I shall return to the chronological events described in that correspondence after first identifying the relevant facts.
The only material that contained the suggestion that the appellant was involved in selling drugs from his premises, was hearsay material contained in the COPS papers that were before the Tribunal.
Facts
In the paragraphs that follow I trace the chain of events that have led to this appeal.
The act of violence and related investigations
At about 9.00pm on Wednesday 22 October 2008, the appellant was at his home when he answered a call at the door. Two men then forced their way into his premises and physically assaulted him. They ransacked his premises and threatened to stab him with scissors, as well as making other serious threats, and they intimated that they might return.
These men took the sum of $370 from the appellant's wallet, as well as a small plastic bag belonging to the appellant containing 2 grams of cannabis, which the police ultimately recovered and destroyed. In this regard, the police were satisfied that the appellant had been in possession of that quantity of cannabis for his own personal use, and ultimately, no charges were laid against the appellant in respect of his possession of that quantity of cannabis.
Before the two men left the appellant's premises, they threatened and admonished him, and intimated to him that he should desist from selling drugs in what they claimed was their " area ". The appellant denied any involvement in that activity.
In the course of those events, the appellant obtained information which led to the police being able to identify one of his assailants, who was later arrested, charged, convicted and sentenced to a term of imprisonment, after admitting his involvement in the attack on the appellant.
For the purposes of determination of this appeal, it is unnecessary to relate the detail of the violence laden expletive language that the perpetrators had directed towards the appellant in those events. It is sufficient to state that the appellant justifiably suffered significant psychological problems since receiving those threats, as was accepted by a clinical psychologist who had examined him and reported on that issue at the request of the Tribunal, which in turn accepted the opinion of that psychologist.
Appellant's claim for victims compensation
Subsequently, the appellant made a claim for victims compensation. The appellant's claim was supported by the report of the clinical psychologist who was appointed by the Tribunal to examine the appellant, and who confirmed that the plaintiff suffered chronic post-traumatic stress disorder.
Rejection of claim by Assessor
On 4 May 2011, the victims compensation claims assessor determined that the appellant should not be awarded statutory compensation as the assessor was satisfied that the armed robbery and act of violence was directly linked to the appellant's sale of drugs from his premises: s 30(1)(a) of the Act. This was a conclusion strongly disputed by the appellant through argument in this appeal.
The reasoning of the claims assessor for rejecting the claim included the following extract:
"S30 (1) provides: In determining whether or not to make an award of statutory compensation and in determining the amount of compensation to award, the compensation assessor must have regard to the following:
(a) any behaviour (including past criminal activity), condition, attitude or disposition of the primary or secondary victim concerned that directly or indirectly contributed to the injury or death sustained by the victim, (sic)
Police detail that based on their investigation and past criminal activity of the applicant they considered the subject incident was directly related to the applicant's sale of drugs from the subject premises. Police further detail that the offender, witnesses to the incident and neighbours of the applicant all indicated that the applicant was actively involved in the sale of drugs.
The applicant in his statutory declaration dated 21st October 2010 indicates the following: " I do not sell illegal drugs and have not done so ".
Clearly this statement is not correct. The applicant's criminal record has been obtained. The applicant has an extensive criminal record and has convictions for possess, cultivate and supply prohibited drug.
In the circumstances I accept details contained in the police report and consider the act of violence to be directy (sic) linked to the applicant's criminal activity through the sale of drugs. In the circumstances taking into account the provisions of s30 (1) (a) I consider an award should not be made to the applicant.
Application dismissed"
Appeal to the Tribunal
On being dissatisfied with the decision of the claims assessor, the appellant filed an appeal to the Tribunal, claiming that the assessor had erred in determining that the appellant had engaged in criminal activity, and that such alleged criminal activity contributed to the act of violence which in turn contributed to the offence. In his appeal to the Tribunal, the appellant also claimed that the claims assessor had erred in the exercise of discretion, which he claimed was readily apparent from the disclosed facts.
Before the Tribunal, the appellant sought to agitate the view that an examination of the VCT file and material available to the assessor did not reasonably permit the conclusion that the home invasion in question " was directly related to the applicant's sale of drugs from the subject premises ".
The Tribunal had wide powers to either affirm or set aside the assessor's determination, and if the latter, remit the application to be determined again: s 38(3) of the Act.
Before the appeal was determined, the Tribunal made an administrative determination that the appeal could be decided without a hearing, and it was accordingly determined on the material available to the Assessor: s 38(3) of the Act.
On the appeal from the decision of the claims assessor, the Tribunal was satisfied that the appellant had in fact suffered psychological harm as a result of the claimed act of violence: s 5(1)(a) and (b) of the Act. The Tribunal was also satisfied that there were no reasons for any order detrimental to the appellant to be made pursuant to s 24 of the Act.
However, in giving consideration to the provisions of s 30(1)(a) of the Act, the Tribunal made the finding which I have cited at paragraph [17] of my reasons, citing paragraph [18] of the Tribunal's reasons, and which was adverse to the appellant on a critical matter. The appellant claimed that in those circumstances he was denied procedural fairness.
In making its determination, it is plain that the Tribunal gave consideration to the appellant's statutory declaration in which he stated that " I do not sell drugs and have not done so ". This was a matter to which the Tribunal was required to give consideration.
In applying that consideration, the Tribunal had regard to a document in the victims compensation claim file which named the plaintiff, and which had been forwarded to the Tribunal by the NSW Police Force. The document was entitled "New South Wales Police Force Criminal History - Bail Report".
Relevantly, the document in question contained a disclaimer at the top of the first page, in capital letters, in the following terms:
"PARTICULARS CONTAINED IN THIS PRINTOUT ARE THE RESULT OF A NAME CHECK, AND NOT VERIFIED BY FINGERPRINTS. THEREFORE THERE IS NO GUARANTEE THAT THE RECORD REFERS TO THE PERSON OF INTEREST".
In arriving at its decision, the Tribunal drew upon the contents of that document, and in particular, on details of a reportedly recorded conviction on 16 June 1997, " for supply prohibited drug ", and a reported conviction recorded on 13 July 2000 " for supply prohibited drug ".
The Tribunal went on to find, on account of those matters, " that I am also able in these circumstances, in my view, to take into account the balance of the appellant's criminal record which details many convictions for dishonesty and drug related (possession of drug) offences ".
That finding was made in the absence of any evidence establishing a temporal connection between the appellant's past criminal record and the home invasion.
It is those findings that the appellant challenges in this appeal as raising questions of law. In order to understand and give consideration to the challenge made by the appellant, it is relevant and necessary to set out the background of chronological events that emerge from the correspondence within the Tribunal's file.
Chronology and procedural events
The appellant's claim followed a tortuous procedural path over the course of the 30 months that elapsed from the time of filing his claim on 20 February 2009, until the date of determination of the appeal by the Tribunal on 22 August 2011. The expectation was that such matters were to proceed expeditiously.
In the paragraphs that follow, I set out some relevant dates and events that emerge from the Tribunal correspondence file because, when those matters are read as a whole, they provide the relevant background and sequence of events as to the route by which the Tribunal informed itself in relation to the appellant's claim, and then arrived at its conclusions.
Chronology of lodgement to initial assessment
On 20 February 2009, the appellant's solicitor lodged the claim for compensation and this initiated the process.
On 13 October 2009, after the passage of almost 8 months after lodgement, the claim was acknowledged in writing, and the appellant's solicitor was advised the matter had been allocated the claim number 149612C for future reference.
On 19 November 2009, the VCT appointed a clinical psychologist to examine the appellant on a date yet to be fixed. In due course on 30 December 2009, that psychologist provided the VCT with his report, which was stamped as having been received by the VCT on 11 January 2010.
On 11 April 2010, the appellant's solicitor was advised by letter from the VCT of the same date that the application for compensation was listed to be determined by a claims assessor at the first available opportunity on, or after the month of June 2010. Submissions and relevant documents were requested to be lodged by the appellant's solicitor at least 7 days prior to 11 June 2010. In that correspondence the solicitor for the appellant was advised that "... The application will be determined solely on the documentation before the assessor on the date of determination. When a decision is made you will be notified of the result ".
On 21 May 2010, the solicitor for the appellant made submissions in support of the claim as was required by the correspondence dated 11 April 2010. Those submissions referred to the relevant act of violence, the fact of the convictions of the perpetrator, enclosed a copy of the COPS report, and a copy of the appellant's statement to the police. The submissions also pointed to the diagnosis made by the psychologist, and claimed the criteria for compensation had been satisfied.
On 7 September 2010, there was a listing of the claim before a claims assessor but the assessor decided to adjourn the matter, as he was entitled to do: Sch 2, cl 20(1) of the Act. It was not until 8 October 2010, a month later, that the appellant's solicitor was informed of the reason for the adjournment, despite his earlier requests for that information.
On 10 September 2010, a letter as sent to the appellant's solicitor by the VCT advising that the next available date for re-listing for determination of the application was " on or after the month of January 2011 ". The VCT then made a request of the appellant's solicitor for any other documentation in support of the claim to be submitted by 1 January 2011. The appellant's solicitor was again advised that the claim would be determined solely upon the documentation before the assessor on the date of determination.
On 15 September 2010, the appellant's solicitor wrote to the VCT acknowledging the letter of 10 September 2010, but in that letter he pointed out that the last page of an annexure that was said to set out the reasons for adjournment had not been sent to him.
In reply, on 17 September 2010, the VCT wrote to the solicitor for the appellant in the following terms: " I advise a vetted copy of the COPS report will be made (sic) to the NSW Police on your behalf and will be provided to you on receipt ". On the same day, the VCT wrote to the appellant's solicitor and enclosed a copy of the COPS event document " to assist with your submissions ". At this time, the requested reasons for the adjournment had not been given to the appellant's solicitor.
The VCT did not advise the appellant's solicitor of any particular facts, matters or circumstances that called for specific submissions. The appellant's solicitor was not on notice of any matter that was thought to require specific submissions other than the standard formal submissions in the form of those prepared by the appellant's solicitor and dated 21 May 2010.
On 17 September 2010, the VCT also wrote to the Commander of the St George Local Area Command of the NSW Police Force acknowledging receipt of the COPS event document in relation to the incident in question. The VCT letter went on to make the following request:
"The compensation assessor has requested the police provide details concerning the applicant's activities prior to the act of violence."
It is clear from the VCT file that apart from unsubstantiated and anonymous rumour, no information was forthcoming or made available concerning any criminal activity on the part of the appellant in the events immediately leading-up to, or during, the act of violence which based the claim for compensation.
On 17 September 2010, the VCT also wrote to the Subpoena Unit of the Legal Services Branch of the NSW Police Force enclosing a notice to produce the criminal record of the appellant.
On 20 September 2010 the appellant's solicitor, who was by then obviously concerned about delays, requested an opportunity to inspect the appellant's VCT file " for the purpose of investigation submissions we have been invited to make on particular aspect[s] of the matter ". At that time, the appellant's solicitor had not been put on any specific notice of any particular issues that might affect the claim.
On 20 September 2010, the appellant's solicitor also wrote to the VCT and referred to the VCT letter dated 17 September 2010, advising that the first page of the reasons for determination of the need for an adjournment had not been received, and instead, only a blank first page had been sent. By this letter the appellant's solicitor requested another copy of the reasons for the adjournment ordered on 7 September 2010.
On 21 September 2010 the VCT wrote to the appellant's solicitor advising the appellant's VCT file could be inspected on 24 September 2010 " on a confidential basis and the information is to be used solely for the purpose of preparing the applications " on behalf of his client.
On 8 October 2010 the VCT sent a letter to the appellant's solicitor which eventually disclosed the reasons for the adjournment on 7 September 2010. The reasons were quoted in the following terms:
"I refer to your correspondence of 20 September 2010.
I advise the compensation assessor adjourned the matter on 7 September 2010 for the following reasons:
" After reading the police details concerning the incident that is the subject of this claim it is strongly suggested that that (sic) the applicant seek a copy of this police report by making a suitable application under the provisions of the Freedom of Information Act. A copy of this application is enclosed to assist the applicant.
Whilst the initial cost of this application must be met by the applicant this cost can be repaid to the applicant as a disbursement when this matter is finally determined.
In the circumstances submissions addressing s30 may need to be made.
Matter adjourned for four months "
If you have any enquiries regarding the above, please do not hesitate to contact the Tribunal on (02) 8688 5511 or 1800 633 063 and quote our reference number 149612C."
The above letter did not put the appellant's solicitor on notice of any specific matter requiring submissions relevant to the exercise of discretion in the assessment of the claim for compensation.
It is plain that the unverified bail report that was before the assessor, disclosed no criminal activity on the part of the appellant between the last recorded matter in that list, namely on 17 February 2005, and the act of violence that occurred on 22 October 2008.
On 26 October 2010 the appellant's solicitor wrote to the VCT enclosing the statutory declaration of the appellant in which he denied any disentitling activity on his part. The terms of that denial have been fully incorporated in the reasons of the VCT under present appeal, and cited at [17] of my reasons.
On 12 April 2011, the appellant's solicitor wrote submissions to the VCT in the following terms:
"We make the following further submissions in relation to his application for compensation.
1. As outlined in the COPS report, the victim admitted to police that he had 2 grams of cannabis at his home for personal use which was stolen by the home invaders.
2. There is no evidence in the police report or elsewhere that the victim was dealing cannabis.
3. There is no connection between the victim's possession of a small amount of cannabis and the home invasion.
4. The victim's criminal behavior (sic) did not contribute (directly or indirectly) to the injury sustained and therefore cannot be considered by the tribunal as a reason not to award compensation or to reduce the amount of compensation paid under section 30 of the Victims Support and Rehabilitation Act 1996. The fact that the offenders may have had delusions that the Applicant was a drug supplier does not make it a causal connection which can reasonably be made."
On 4 May 2011, the VCT determined the application for compensation. The assessor's determination dismissed the application after considering the application of s 30(1) of the Act, and in doing so, the assessor gave the reasons I have already cited at paragraph [17] of these reasons.
On 9 May 2011 the VCT sent the appellant's solicitor what was described as a Determination Package, which enclosed a copy of the assessor's reasons for determination, which, amongst other matters, also contained advice as to the appellant's rights of appeal.
Chronology of appeal before the Tribunal
It was that determination dated 4 May 2011, which led to the appeal to the Tribunal.
On 10 June 2011, the appellant's solicitor prepared a notice of appeal to the Tribunal, which was lodged on 14 June 2011. The grounds of appeal filed were:
" GROUNDS OF APPEAL
1. The assessor erred in determining that the appellant had engaged in criminal activity at the time of the offence.
2. The assessor erred in determining that the appellant's alleged criminal activity had contributed to the act of violence contributing to the offence.
3. The assessor misused his or her discretion in making the determination.
4. The assessor erred when determining on the facts that the appellant had engaged in criminal activity.
ORDER SOUGHT
1. The Appellant seeks an order of the Magistrate determining this appeal, upholding the appeal and making (sic) award in favour of the Appellant."
On 14 June 2011 the Registrar of the Tribunal wrote to the appellant's solicitor acknowledging the notice of appeal, and advised the appeal was listed for a call over on 12 July 2011. The letter also requested that the appellant's solicitor provide " all the grounds of appeal and full details of those grounds of appeal " by 8 July 2011. An accompanying note stated " the solicitors are requested to provide any submissions prior to the hearing ".
On 13 July 2011, the Registrar wrote to the appellant's solicitor advising that no reply had been received to the letter dated 14 June 2011 requesting particulars and submissions. The letter also informed the appellant's solicitor that the appeal was listed for determination at the first available opportunity on or after the week commencing 8 August 2011. The letter went on to state:
"...
The Tribunal will advise you in writing of the outcome.
Any further material, submissions, evidence and full particulars in accordance with the rules and regulations to be relied upon, and/or adjournment application, must be filed with the Tribunal by 5.00pm on 5 August 2011
..."
[Emphasis as in the original]
The solicitor for the appellant had already made submissions on 12 April 2011, and it appears that he was content to rely upon those submissions on the appeal as that material would have to be considered in an appeal.
On 22 August 2011 the Tribunal determined the appeal and dismissed it for the reasons cited at paragraph [17] of those reasons. On 23 August 2011, the Tribunal informed the solicitor for the appellant of the dismissal of the appeal, and enclosed the reasons of the Tribunal Magistrate to that effect.
Appeal to the District Court
On 24 November 2011, the appellant filed the summons which instituted the present appeal. On the return date of the summons, on 23 December 2011, the appeal was fixed for hearing for 16 February 2012.
Submissions of the parties
On behalf of the appellant, Mr Friend argued that in this case, a relevant error and question of law has been demonstrated because the Tribunal's findings of the appellant's disentitlement to victims compensation were made without proper evidence upon which such findings could have been reasonably made, and that such findings were made contrary to the principles of procedural fairness.
On behalf of the respondent, Mr Ting argued that the terms of s 30(1) of the Act required that the Tribunal consider the disentitling factors that were in fact considered by the Tribunal. He argued that despite the apparent harshness of the outcome of the appellant's claim for compensation, when the determination of the Tribunal is considered as a whole, despite any claimed errors of fact, it becomes apparent that the Tribunal considered all relevant matters. The appellant took issue with that argued conclusion.
Consideration
At the outset of the consideration it must be recognised that the Tribunal was not bound by the rules of evidence concerning formal proof of relevant matters, and in that regard, some reliance on hearsay evidence is permitted: Sch 2, cl 12(1) of the Act.
However, procedural fairness requires that a reasonable standard of proof or satisfaction should be critically applied for proof of matters of gravity that affect the rights of a party with a claim before the Tribunal. This must be so, particularly where allegations of wrongdoing by the appellant are sought to be relied upon as factors disentitling him to compensation: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362.
In the present case, the disentitling conduct as found by the assessor and by the Tribunal concerned the appellant's reputation in allegedly supplying prohibited drugs from the premises, matters the appellant disputed, and for which only unsubstantiated and anonymous hearsay was offered as evidence.
Procedural fairness together with the necessary application of the required civil standard of proof that was appropriate to the gravity of the asserted criminal behaviour required that such matters should not be determined by unsubstantiated opinion evidence.
The opinion evidence relied upon by the Tribunal to deny the appellant compensation was clearly based upon unattributed anonymous hearsay. In this case, when that hearsay is examined for its substance, it is revealed to be based upon nothing more than neighbourhood gossip or rumour.
I use that expression advisedly, because the only material put forward in support of the allegations that the appellant was supplying drugs from the premises, was the opinion of Detective Senior Constable Biffin. It is clear from the police documents that were provided to the Tribunal, that his opinion in that regard was stated to have been based on hearsay obtained from unnamed neighbours of the plaintiff in the form of " comment ".
In essence, the polarisation of the material before the Tribunal was the opinion evidence of Detective Senior Constable Biffin on the one hand, and the appellant's sworn evidence on the other. The resolution of that polarisation required a weighed and reasoned resolution before rejection of the appellant's sworn denial of the alleged activity.
With one qualification, the appellant's denial of the disentitling conduct alleged against him was substantially framed in the present tense and provided no basis for a relevant temporal connection between the rumoured activity and the home invasion. The basis of the Tribunal's rejection of the appellant's sworn evidence was the reported 1997 and 2000 convictions for the supply of prohibited drugs, the details of which came from an unverified bail report.
The rejection of the appellant's denial of dealing in drugs is open to criticism for at least two reasons.
First, assuming for the purpose of analysis, that there is no relevant difference between selling and supplying drugs, and also assuming that the unverified bail report accurately recorded the appellant's criminal history, given the significant interval of time that separated the 1997 and 2000 convictions of the appellant for supplying prohibited drugs, and the 2008 home invasion, no reasonable temporal connection between these events could be inferred as being either directly or indirectly contributory to the 2008 home invasion. That lack of a temporal connection is an important consideration in the appeal.
In my view, such a temporal connection is an essential pre-requisite for the denial of the claim for compensation on a construction and an application of s 30(1)(a) of the Act.
Secondly, in preferring the evidence in the unverified bail report form over the appellant's sworn denials of the activity referred to in the opinion of Detective Senior Constable Biffin, as was set out in the statutory declaration, the Tribunal appears not to have weighed the relative probative value of the respective bodies of evidence, and simply preferred the unverified and significantly qualified bail report material, which was not vouched for or guaranteed for the accuracy of its contents, to the evidence that comprised the appellant's sworn statement.
The determination of the Tribunal did not disclose an appropriately reasoned basis for in effect preferring inferences drawn from the contents of the unverified list of convictions in the bail report document, over the appellant's evidence on oath.
The matters relied upon by the VCT for rejecting the appellant's claim on account of alleged disentitling conduct were matters of specificity that ought to have been specifically drawn to his attention to enable him to specifically rebut those matters.
It is apparent that what the Tribunal took to be opinion evidence, and which was in fact only proffered by Detective Senior Constable Biffin as " comment ", was based on hearsay or rumour and did not constitute evidence in the commonly accepted sense. This raises the legal question of whether such hearsay material was permissibly used by the Tribunal to deny the appellant compensation, or whether the use that was made of that material amounted to an error of law.
In my view, the denial of entitlements to victim compensation on account of rumoured criminal conduct on the part of the appellant was unreasonable and unsatisfactory: Briginshaw v Briginshaw .
Furthermore, the fact that the police accepted the appellant's admission of possession of 2gms of cannabis for his personal use was not a proper basis from which to infer disentitlement to compensation on account of alleged dealings in drugs.
The material comprising the opinions and comments prepared by Detective Senior Constable Biffin cannot be reasonably said to rise above mere speculation or conjecture. As such, the material does not constitute proof of the disentitling conduct on any acceptable civil standard, nor does it provide a proper basis for a reasoned inference in favour of disentitling conduct. The inference of a direct or indirect contribution of the appellant's conduct to the home invasion, as drawn by the Tribunal, was in my view flawed by the absence of a relevant temporal connection to any disentitling conduct on the appellant's part.
The applicable principle of statutory construction is that the utmost relief be afforded as allowed by the fair meaning of the language employed in the statute: Director-General of the Attorney General's Department v District Court of NSW and Stark [1993] 32 NSWLR 409, per Sheller JA at 421F.
Even when applying the required beneficial statutory construction to the words of s 30(1)(a), to sustain the inference that the appellant had been engaged in criminal conduct that had either " directly or indirectly contributed to " the act of violence in question, as was found by the Tribunal, a temporal connection must nevertheless still be shown to exist between the act of violence and the appellant's past criminal activity. An interpretation of those words that permitted events that were remote in time to be characterised as " directly or indirectly " contributory would be an unreasonable construction.
That temporal connection was entirely lacking in the evidence in this case, and the inference drawn to the contrary by the Tribunal was entirely speculative: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352.
As a matter of law, the rules of procedural fairness must be observed in considering what weight, if any, was to be applied to the opinion evidence upon which the Tribunal based its findings. The Tribunal's decision to rely upon the appellant's distant in time criminal convictions as a disentitling factor, was unjustified because of a lack of temporal connection to the events of the home invasion.
In this case, it is plainly apparent from the reasoning of the Tribunal, that unattributed, unparticularised, and unchallengeable hearsay as to what some unidentified neighbours of the appellant had said of him was relied upon by the Tribunal in order to deny the appellant his rights to compensation: Tribunal reasons, paragraph [13]. That occurred without an appropriately reasoned analysis of the weight, if any, to be given to such material. If such material had been so weighed, the inescapable conclusion would have to have been that the material in question had no probative value.
It is also plainly apparent for the reasoning of the Tribunal that unsubstantiated opinion evidence as to the character of the appellant, as proffered by the investigating police officer, which in reality was only a comment, was relied upon by the Tribunal in arriving at its conclusions: Tribunal reasons, paragraph [14].
There is no doubt the Tribunal, and at an earlier stage, the assessor, was entitled to seek information of the appellant's past criminal record. That course was open and was pursued pursuant to a statutory power and the receipt of that material into evidence was permitted: Sch 2, cl 12(1).
The ultimate question is whether the material was used unreasonably, with the result that the appellant was wrongly denied compensation. In my view it was, and I consider that this involved an error on a question of law: Azzopardi v Tasman UEB Industries Ltd , at p 157A-F.
I consider this to be so because the material in the form of opinion evidence based on unsubstantiated rumour had no probative value or evidentiary quality having regard to the gravity of the conduct alleged against the appellant by means of that opinion evidence: Briginshaw v Briginshaw at 362.
For the Tribunal to be in a position to reasonably infer that the appellant's past criminal record for drug-related activities in 1997 and 2000, constituted a direct or indirect contributor to the home invasion in 2008, acceptable non-speculative evidence beyond conjecture was required.
This required that the evidentiary material supporting a denial of compensation rose above mere unsubstantiated and anonymous rumour. The opinion evidence of the investigating police officer did not satisfy that requirement. The Tribunal did not recognise this and instead, drew upon that unsatisfactory material when it rejected the appellant's evidence on oath. That was an error involving a question of law.
Reasonable minds may perhaps differ on whether procedural fairness required that the Tribunal should have invited the appellant to make specific rather than general submissions on whether the inference that was ultimately drawn against him was available and reasonably open, as to there being any contributory connection between his past criminal activity and the matters raised in the opinion of Detective Senior Constable Biffin.
The compelling view is that in the legal setting of the Tribunal considering the appellant's claim for compensation, even where the Tribunal was not bound by the rules of evidence, it was a given that the material within the opinion of Detective Senior Constable Biffin could not have reasonably constituted probative evidence for the proposition that if accepted, would have had the effect of denying the appellant compensation in an application of s 30(1)(a) of the Act.
On any view, that opinion evidence could not reasonably be considered to be probative of anything other than the fact that there were rumours in the neighbourhood about the plaintiff's activities. Legal rights, entitlements and disentitlements are not properly determined on the basis of such material lacking in probative value.
The solicitor for the appellant had made cogent submissions on the contentious material in the form of his letter dated 12 April 2011, in which the quality of the evidence now in question was canvassed.
The appellant's solicitor's submission was to the effect that the 2gms of cannabis belonging to the appellant was for his personal use, evidenced by the fact that the police had laid no charges against the appellant in relation to his admitted possession of that cannabis.
That submission also correctly pointed out that there was no evidence, either " in the police report or elsewhere " that the appellant was dealing in cannabis. That submission was a compelling one, and there was no evidence other than non-probative rumour to the contrary.
The appellant's solicitor's submissions went on to rebut the suggestion of the existence of a direct or indirect contribution or causal connection between the appellant's possession of a small amount of cannabis, and the home invasion. That rebuttal was on the basis of an absence of relevant evidence of such a connection. That submission was also a compelling one.
The Tribunal's determination which rejected that submission in favour of the opposite contention involved a misapplication of the law to the available evidence: Azzopardi v Tasman UEB Industries Ltd p 157A-F. This was a fundamental matter crucial to the decision of the Tribunal, and not one that could be regarded as trivial or inconsequential in the review of administrative decision making: Minister for Ethnic Affairs v Wu Shang Liang (1986) 185 CLR 259.
For these reasons I consider that the appeal should be allowed. In my view, on the foregoing analysis and on the construction of s 30(1)(a) of the Act, the Tribunal's reliance on that provision to deny the appellant's compensation should not stand, with the result that the orders made in the Tribunal must be set aside and the matter should be remitted to the Tribunal to be reheard without regard to the opinion evidence to the effect the appellant was dealing in drugs from the premises.
Disposition
The result of the appeal is that the appellant has succeeded in establishing that the determination of the Victims Compensation Tribunal involved an error on a question of law as claimed. Accordingly, the appellant is entitled to the orders as sought in the summons, which require setting aside the orders of the Tribunal and remittal for a hearing in the Tribunal according to law.
Costs
As the appellant has succeeded on the issues calling for decision his appeal should be allowed. As a result, he is entitled to have his costs paid on the ordinary basis, unless it can be shown that he is entitled to some other order for costs.
Orders
I make the following orders:
(a) Leave to appeal is granted;
(b) The appeal is allowed;
(c) The orders of the Victims Compensation Tribunal made on 22 August 2011 pursuant to s 29 of the Victims Support and Rehabilitation Act 1996 in proceedings numbered 149612C in that Tribunal are set aside pursuant to s 39(5)(a) of that Act;
(d) The proceedings and the Victims Compensation file are remitted to the Victim's Compensation Tribunal to be dealt with according to law and in conformity with paragraphs 113 and 114 of these reasons;
(e) The respondent is to pay the costs of the appellant on the ordinary basis unless otherwise entitled;
(f) Liberty to apply on 7 days notice for further orders if required.
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Decision last updated: 03 March 2012
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