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NT of A v Dean [2005] NTSC 66

IN THE MATTER OF AN APPEAL UNDER THE LOCAL COURT ACT

PARTIES: NORTHERN TERRITORY OF AUSTRALIA

GARY ROY DEAN

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction

FILE NO: LA16/05 (20115735)

DELIVERED: 10 October 2005

HEARING DATES: 30 August and 20 September 2005

JUDGMENT OF: THOMAS J

CATCHWORDS:

REPRESENTATION:

Counsel:
Appellant: G Clift
Respondent: J McCormack

Solicitors:
Appellant: Halfpennys
Respondent: John McCormack

Judgment category classification: C
Judgment ID Number: tho200511
Number of pages: 19

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

NT of A v Dean [2005] NTSC 66
No. LA16/05 (20115735)

IN THE MATTER of an appeal under the LOCAL COURT ACT

BETWEEN:

NORTHERN TERRITORY OF AUSTRALIA
Appellant

AND:

GARY ROY DEAN
Respondent

CORAM: THOMAS J

REASONS FOR JUDGMENT

(Delivered 10 October 2005)

[1] This is an appeal under s 19 of the Local Court Act from a decision of a magistrate pursuant to the Crimes (Victims Assistance) Act.

[2] On 15 April 2005 the learned stipendiary magistrate delivered written reasons for his decision to award damages to the respondent Gary Dean for injuries he received when assaulted by Dave McKinnon.

[3] It is not in dispute that on 12 October 2000, Mr McKinnon assaulted Mr Dean. Mr McKinnon punched, kicked and kneed Mr Dean and hit him with a bar stool. On 14 October 2002, Mr McKinnon was convicted and sentenced for the assault with two circumstances of aggravation:

1) that Gary Dean suffered bodily harm.

2) that Gary Dean was threatened with an offensive weapon, namely a bar stool.

As a result of the assault, Mr Dean suffered injuries.

[4] Mr McKinnon was convicted and sentenced to three months imprisonment. He was released forthwith on a suspended sentence. The operational period was fixed at 12 months.

[5] There is no challenge to the finding of the learned stipendiary magistrate that Mr Dean is a “victim” within the meaning of the Act, that he is the victim of an “offence” within the meaning of the Act and that he suffered “injury” within the meaning of the Act.

[6] The basis of the appeal involves an interpretation of s 10 of the Crimes (Victims Assistance) Act which involves a consideration of the conduct of the victim in assessing the amount of damages to be awarded.

[7] The relevant facts that form the background to this matter are somewhat convoluted and are set out in affidavits of Catherine Louise Spurr sworn 23 June 2005 and supporting annexures and the findings of the learned stipendiary magistrate which are not subject to challenge. I have summarised them as follows:

[8] As at 10 October 2000, Gary Dean was employed by Paspaley Pearls as a gardener/handyman. During his days off he was staying at the house of J who was the girlfriend of Dave McKinnon. Shortly after 5.30 pm…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NTSC 66
Decision Date: 10 October 2005

CaseChat Overview and Summary

The appeal in NT of A v Dean was brought by the Northern Territory of Australia against Gary Roy Dean, challenging a decision made by a magistrate under the Crimes (Victims Assistance) Act. The magistrate had awarded damages to Dean for injuries he received in an assault by Dave McKinnon. The appeal centred on the interpretation and application of section 10 of the Act, which requires consideration of the victim's conduct when assessing the amount of damages. The appellant argued that the magistrate erred in law by not considering Dean's conduct towards J, who accused Dean of rape, as contributory to his assault by McKinnon. The magistrate had concluded that Dean's conduct towards J, which occurred two days before the assault, was not temporally proximate enough to be considered contributory.

Thomas J, in dismissing the appeal, found that the magistrate did not misdirect himself or apply a wrong principle. The court emphasised that whether a victim's conduct contributed to their injury is a matter of fact and degree, to be determined by applying a commonsense test of causation. The magistrate exercised his discretion under section 10 of the Act and reasonably decided that Dean's conduct towards J was not proximate enough to the assault to be considered contributory. The court also noted that the magistrate was not obligated to characterise Dean's conduct as criminal, as it was a discretionary decision based on the facts and circumstances of the case. The appeal was dismissed, and the monies paid into court were ordered to be paid to Dean.

Orders