Mercer v NT of Australia

[2006] NTMC 17

CITATION: Mercer v NT of Australia [2006] NTMC 017

PARTIES: DEBORAH LEE MERCER

v

NORTHERN TERRITORY OF AUSTRALIA

TITLE OF COURT: Local Court

JURISDICTION: Crimes (Victims Assistance) Act

FILE NO(s): 20420470

DELIVERED ON: 23 February 2006

DELIVERED AT: Darwin

HEARING DATE(s): 14th February 2006

JUDGMENT OF: Judicial Registrar Fong Lim

CATCHWORDS:

Application of Crimes Compensation Act [1982]

REPRESENTATION:

Counsel:
Applicant: Ms Tregear
Respondent: Mr Moss

Solicitors:
Applicant: Hunt & Hunt
Respondent: Morgan Buckley

Judgment category classification: C
Judgment ID number: [2006] NTMC 017
Number of paragraphs: 21

IN THE LOCAL COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 20420470

BETWEEN:

Deborah Lee Mercer
Applicant

AND:

Northern Territory of Australia
Respondent

REASONS FOR JUDGMENT

(Delivered 22 February 2006)

Judicial Registrar Fong Lim:

1. The Applicant makes application for an assistance certificate to issue in her favour regarding an alleged offence in 1985, pursuant to section 5 of the Crimes ( Victims Assistance) Act (“the Act”).

2. The Applicant was successful in her application for an extension of time in which to make her application. The Respondent accepts that the Applicant is a “victim” pursuant to the Act however argues that section 12(f) of the Act prevents her from having an Assistance certificate issue in her favour.

3. The Applicant submits that section 12(c) does not apply to her because the applicable legislation in her case is the Act as it was before the 1989 amendments which introduced section 12(c).

4. Section 12(c) precludes the issue of an Assistance certificate :

(c) where an applicant or victim has failed to assist the Police Force in the investigation or prosecution of the offence;

5. The history the crimes compensation legislation in the Northern Territory is a little confusing. At the time of the offence the Crimes Compensation Act [1982] was in operation then in 1989 the act was amended to change its name to the Crimes (Victims Assistance) Act and also to include, inter alia, section 12(c).

6. It is clear from section 6 of the amending act that the Act as it was in 1982 is applicable in relation to this Applicant’s claim. Section 6 states:

“This Act ( the Act as amended after 1989) except where specifically provided, applies to offences committed, and to applications made under section 5 after commencement of this Act, and an application made under section 5 which has not been determined before that commencement, or is made after that commencement in respect of an offence committed before that commencement, shall be heard and determined in accordance with the Principal Act as in force before that commencement, as if this Act had not come into operation.”

7. The provision is clearly intended to negate any possibility of and retrospectivity of the Act and it is clear that this application is an application made “after the commencement” of the amendment “in respect of an offence committed before that commencement”.

8. I concur with the Applicant’s solicitor that the Act as it existed before 1989 is the applicable act in relation to this application.

9. The question raised was whether or not a Judicial Registrar has the jurisdiction to hear an application pursuant to the 1982 act. In 2002 the Act was amended to include section 15(4):

“A Judicial Registrar appointed under section 9(1) of the Local Court Act may exercise all the powers and perform all the functions of the Court under this Act subject to practice directions given by the Chief Magistrate.”

10. The jurisdiction of the Judicial Registrar was created in 2002 and there was no jurisdiction pursuant to the 1982 Act. Under the Act as it stood in 1982 required the Applicant to make the application to the “Court” and the “Court” was defined as the “Local Court of Full Jurisdiction”.

11. In the schedule attached to the Act as it now is defines the Act as including the Crimes Compensation Act 1982 and subsequent amendments to the that act.

12. The jurisdiction of the Judicial Registrar is to have “all powers and all functions” which must be equivalent to the Local Court of Full Jurisdiction there is no other logical interpretation. If the Judicial Registrar has power to determine an application made pursuant to the Act then that includes the power to determine an application made pursuant to the Crimes Compensation Act 1982.

13. Given the above I find that a Judicial Registrar does the jurisdiction to preside and make the final determination in this matter. I further find that the provision of section 12 do not apply to the Applicant in this case.

14. The only exclusions included in section 12 as it was before the 1989 amendments were:

“(a) in respect of an injury or death in respect of which compensation is, or would but for this Act be payable under a law of the Territory, a State the Commonwealth or any other Territory of the Commonwealth that relates to the payment of compensation by an employer in respect to the injury to, or death of, persons in his employment resulting from accidents occurring in connection with that employment; or

(b) in respect of an injury or death caused by, or arising out of, the use of a motor vehicle”

15. Section 12 as it then was clearly doesn’t exclude the Applicant from the issue of an assistance certificate on the basis that she had failed to assist the Police.

16. If the present section 12(c) did apply to the Applicant it is my view she would not have been successful in her application for assistance see Northern Territory of Australia v Longmair [2006] NTMC 5 .

17. Given that the Applicant is not excluded from an assistance certificate by section 12(c) it remains for the court to assess the quantum of the Applicant’s claim.

18. The Applicant suffered a brutal rape where she was raped vaginally and anally by three different men. She has produced to the court a report of Mr Mullins a psychologist who consulted with her in February and March of 2005. Mr Mullins in accepting all of the history provided to him by the Applicant diagnoses her as having post traumatic stress disorder. The Applicant reported to Mr Mullins that she had been suffering nightmares anxiety and self destructive behaviour from the time she suffered the attack to about 5 years ago when things started improving.

19. Mr Mullins accepted that the Applicant was clearly in a better state than she had reported to him as her state 5 years prior to her consultation with him but was still of the opinion that she had residual symptoms of post traumatic stress disorder eg episodes of anxiety when confronted by certain situations. The Applicant still felt anxious around “rough looking men” with beards or tattoos or riding motorcycles.

20. I am satisfied that on the balance of probabilities the Applicant has suffered post traumatic stress disorder arising out of her rape in 1985 and that she continues to suffer some residual symptoms of that condition some 19 years later.

21. My orders are as follows:

21.1 A crimes compensation certificate issue in favour of the Applicant in the sum of $15000.00

21.2 The Respondent to pay the Applicant’s reasonable costs and disbursements to be taxed in default of agreement.

Dated this 22 day of February 2006
_________________________
Tanya Fong Lim
JUDICIAL REGISTRAR