Lynch v Victims Compensation Fund Corporation and Anor

[2013] HCATrans 62

[2013] HCATrans 062

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S288 of 2012

B e t w e e n -

JASON BRIAN LYNCH

Applicant

and

VICTIMS COMPENSATION FUND CORPORATION

First Respondent

DISTRICT COURT OF NSW

Second Respondent

Application for special leave to appeal

HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 MARCH 2013, AT 11.04 AM

Copyright in the High Court of Australia

MS S. NORTON, SC:   If the Court pleases, I appear for the applicant in this matter with my friend, MS M. FRASER.  (instructed by Friend & Co Lawyers)

MR C.L. LONERGAN:   If the Court pleases, I appear for the first respondent.  (instructed by Crown Solicitor (NSW))

HAYNE J:   There is a submitting appearance, I understand, for the second respondent, is that right?

MR LONERGAN:   That is so.  That forms part of the application book.

HAYNE J:   Yes.  Ms Norton.

MS NORTON:   Thank you, your Honour.  This is an application for special leave which involves not very much money and a claimant whose past is not without its shadows, but it is our submission that it raises ‑ ‑ ‑

HAYNE J:   A promising opening, Ms Norton.

MS NORTON:   I thought I would get the worst out of the way first.

HAYNE J:   Lance the boil.

MS NORTON:   We say it does involve some important principles.  There are in this State, and in other States, a large number of tribunals which are quasi‑judicial and which are not bound to follow the rules of evidence.  There are more every year, it seems.  Some guidance about what principles do apply when the rules of evidence do not apply would be of great assistance.  In short, was the trial judge correct when he said that even if the rules of evidence do not apply, you need something more than suspicion and rumour before you reach a determination?

You are probably not familiar with the scheme here, so if I shortly outline it – the scheme of victims compensation in New South Wales involves, first, an initial assessment before an assessor and then there is an appeal by way of review to the Tribunal.  Neither the assessor nor the Tribunal are bound to follow the rules of evidence.  You can have an oral hearing at the tribunal stage but it is at the election of the Tribunal, itself otherwise, there is no oral hearing.  After that decision from the Tribunal, there is, then, no appeal to a court of law except on a point of law and that goes to the District Court with leave and then, of course, there is a prerogative writ.  So, it is very much an administrative process but decides judicial‑type issues.

We are not quite sure, in this case, where the burden of proof lies once – as in this case – the applicant has proved that there was an act of violence and an injury as a result of that act of violence because unlike a court, this particular Tribunal has investigative powers and it is the one who gets certain evidence and, in this case, the evidence it got was the bail report and the extra report from the police officer.  So, it has its own evidence‑gathering powers.  Who, in those circumstances, has the onus to prove an exception?  One would think it is not the applicant.  That is all I can say about that.

In the present case, it was accepted the applicant had been a victim of an act of violence which involved a home invasion his house was ransacked, they did find a small amount of marijuana there, and, they threatened him and they went away.  Due to some evidence obtained by the Tribunal, itself – or the assessor – from a police officer who made a comment and some evidence that the applicant, himself, had given as to what was said by the perpetrators when they were invading his house, it was determined that the cause of this home invasion was the fact that the applicant was selling drugs from his premises.  In those circumstances, it was determined there is an option either to reduce the amount of compensation or to refuse it and so, it was refused in that case.

Our main issue with it is, really, as I have already said, is the trial judge correct, in these circumstances, in saying, when you are deciding something which – although it is about a small amount of money – what has happened here is that in the absence of the applicant, he has been found to have committed a very serious criminal offence which disentitles him from compensation, in circumstances where a lot of the evidence for that comes from a police officer who, if he had the requisite level of conviction as to this suspicion, one would have thought would have investigated and laid charges.  No charges were ever laid by the police who investigated this.

BELL J:   Another way of looking at this, is that it is a statutory fund and accepting that the police were not in possession of evidence sufficient to permit the laying of a charge respecting a particular act of supply, the circumstance that the police made inquiries and that the neighbours reported activity consistent with the activity one would suspect if a person were supplying drugs, that drugs were in the premises and that the persons who carried out the assault gave as their reason “wanting to put a competitor out of business” why are those not matters capable of supporting a conclusion of the nature that the Tribunal came to?

MS NORTON:   Well, against it there was the statutory declaration of the applicant, himself, that he had not been selling drugs.  That was attacked by reference to his criminal history where there had been some convictions of supply.  As the trial judge correctly mentioned in passing, supply and sale – although supply includes sale – sale is slightly different than supply, so, question whether, really, was that contradiction that the assessor found between those two things.  The two things could be true.  Because of that, they disbelieved his evidence.  There is a requirement in this Tribunal - there is a guideline about when oral hearings should be held - it is set out in our submissions - but, despite the fact it appears that the applicant’s credit was very strongly in issue.  If he was accepted with respect to his statutory declaration, then it was difficult to see how there could be any causal link between whatever behaviour was in the bail report – unverified – and whatever behaviour the perpetrator had said, and whatever the police had spoken to the unidentified neighbours about, it would be of any weight at all.

So, without informing the applicant that they were going to use that evidence to disregard his statutory declaration, without giving him the opportunity of an oral hearing to explain anything, without the opportunity to cross‑examine the police officer this evidence was said to be at a sufficient height to make what is a really serious finding.

HAYNE J:   But what does it come to?  The administrator, or the administrative body, could not act on this material; the administrative body should not have acted on this material in the particular facts and circumstances?  It is sounding like an appeal on the merits.

MS NORTON:   No, I like the first one.

HAYNE J:   Well, it is a bit ‑ ‑ ‑

MS NORTON:   I know.

HAYNE J:   That was a Greek bearing gift, the first one, Ms Norton.  The first one was, cannot act on that material.  Why not?  It is an administrator administering public funds, not bound by rules of evidence, not trying any issue between parties, why not?

MS NORTON:   If I can answer that by first taking you to the paragraph in the decision of the Court of Appeal that most troubles us, and then taking you to what the Full Court of the Federal Court has said about different circumstances, but about suspicion versus evidence.  That is in the application book, page 66, paragraph 23, when Justice Meagher is dealing with the so‑called evidence:

When measured against the rules of evidence, there were deficiencies associated with the material before the Tribunal.  It was second‑hand hearsay.  With the exception of the “perpetrator”, the sources of that hearsay were not identified.  The subject matter of some of the hearsay would not have been admissible even if sought to be given by direct evidence; specifically ‑ ‑ ‑

HAYNE J:   But, the sting comes in the last sentence, does it not?

MS NORTON:   Yes, I was going to read it all.

HAYNE J:   I know that and I was cutting you off, very rudely.  But, what is wrong with the sting?

MS NORTON:   Well, we say, that this evidence was so remote and so involved in hearsay that it had no probative value.  It was not referred to in our written submissions because, although I had a memory of it, I could not find it until Wednesday, I think - the Minister for Immigrationand Ethnic Affairs v Pochi (1980) 31 ALR 666 – and that was a case where a man had been found guilty cultivating a rather large amount of marijuana but dealt with on the basis that he was a farm worker and he had spent his time in jail and he got out and the Minister decided to deport him. It then went to the Tribunal and then to the Full Court of the Federal Court.

Again, the facts are different and it was pointed out a number of times in that case, that this was a very serious issue, the man had lived here for, I think, over 12 years, he had his family here and we were going to deport him.  We do not say you entitlement to compensation is at that level of importance but to be found, in effect, guilty of selling drugs from your premises when you said you had not, we say, it has some importance.  In that case, what had happened was that a police officer had given some oral evidence – that is at page 682 – of much wider production and him having a higher role to play in it.  There was cross‑examination allowed but the representatives were not allowed to get instructions from their client.  So, there was a limited amount of cross‑examination but, we say, more than we were entitled to in this case.  We could not even confront the police officer at all with where he got this information from.

We say it is tied in with the rules of natural justice.  If you go to 689 at about point 30 – again, after citing a case where Lord Justice Diplock, ended with the same kind of idea, the evidence must be capable of having some probative value.  If it is, what weight you give it becomes a question of fact.  We have to accept that.  If it has not any probative value.  There has to be a bar.  Where is the bar, is the issue here.  It was said in that case:

It would be both surprising and illogical if, in proceedings before a statutory tribunal involving an issue of the gravity of deportation of an established resident, the rules of natural justice were restricted to the procedural steps leading up to the making of a decision and were completely silent as to the basis upon which the decision itself might

be made.  There would be little point in the requirements of natural justice aimed at ensuring a fair hearing by such a tribunal if, in the outcome, the decision maker remained free to make an arbitrary decision.  If the decision, in such a case, were to be based on mere suspicion or speculation, the rules of procedure aimed at governing the process of making findings of material fact would involve no more than a futile illusion of fairness.

So, we say, there has to be some kind of – even in a tribunal that is administrative and dealing with providing compensation for victims of crime - this man was a victim of crime.  That had been found.  To what level does the evidence about conduct that would disentitle him from compensation, what level does that evidence have to reach before it can logically have the effect of being considered by the Tribunal?

We say, in those circumstances, the highest the evidence ever got in this case would be to provide a motive for the people who invaded his house.  The perpetrators may well have believed he was selling drugs from there but there was no evidence that he was.  All they found was a very – and they ransacked the house quite substantially – all they found was a very small amount of marijuana.  So, there is no objective evidence that this idea the perpetrators had, was correct.  Yes, people were coming and going quite frequently to the house, apparently, but that can have a very innocent explanation.  He could have had a lot of friends.  We do not even know how many people were living in the house.

So, it is our submission that it is a case where there are a lot of these claims each year.  It is not as if, we say, the applicant has to establish that he does not have any disentitling conduct.  There must be – if the person who is making the decision is going to be the one getting the evidence and they do not, as a general rule, actually supply copies of the evidence they get to the people who are making the applications – there has to be some safeguard in there about the level of that evidence before it can be used to make a very important decision like this.

HAYNE J:   Yes, thank you, Ms Norton.

MR LONERGAN:   Thank you, your Honours.

HAYNE J:   Just one moment, Mr Lonergan.  We need not trouble you, I think.  Thank you, Mr Lonergan.

In our opinion, an appeal to this Court would enjoy insufficient prospects of success to warrant a grant of special leave to appeal.  Special leave is refused.

MS NORTON:   If the Court pleases.

MR LONERGAN:   Does your Honour intend to make an order for costs?

HAYNE J:   Ms Norton.

MS NORTON:   I have no submissions I can make with respect to costs, your Honour.

HAYNE J:   Yes, with costs.

AT 11.19 AM THE MATTER WAS CONCLUDED