NT of A v Sambono - [2003] NTSC 96

NT of A v Sambono & Anor [2003] NTSC 96
PARTIES:NORTHERN TERRITORY OF AUSTRALIA

v
VINCENT JOHN SAMBONO
AND:
GONZALES MUNGATOPI

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction
FILE NO:LA 3/03 (20205293)
DELIVERED:  5 September 2003
HEARING DATES:  15 August 2003
JUDGMENT OF:  THOMAS J
CATCHWORDS:

REPRESENTATION:
Counsel:
Appellant:V Farmer
1^st Respondent:  D Alderman
2^nd Respondent:  No Appearance
Solicitors:
Appellant:Withnall Maley & Co
1^st Respondent:  Halfpennys
2^nd Respondent:  No Appearance
Judgment category classification:        C
Judgment ID Number:  tho200329
Number of pages:  15

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
NT of A v Sambono & Anor [2003] NTSC 96
No. LA 3/03 (20205293)

BETWEEN:
NORTHERN TERRITORY OF AUSTRALIA

Appellant
AND:
VINCENT JOHN SAMBONO

First Respondent
AND:
GONZALES MUNGATOPI

Second Respondent

CORAM: THOMAS J
REASONS FOR JUDGMENT
(Delivered 5 September 2003)

This is an appeal pursuant to s 19 of the Local Court Act from a decision of a stipendiary magistrate sitting in the Local Court at Darwin to award compensation to Maggie Tipungwuti and Charlena Tipungwuti who are children of the second respondent Gonzales Mungatopi.
On 24 January 2003, the learned stipendiary magistrate ordered a certificate of compensation to the abovenamed persons pursuant to s 5(1) and s 5(2) of the Crimes Compensation Act.
On that date his Worship ordered the issue of a compensation certificate under s 5(1) of the Act in the sum of $15000 each in favour of Charlena Tipungwuti and Maggie Tipungwuti in respect of an injury suffered on 1 November 1989.
There is no appeal from this order.
The appeal is solely in respect of orders made by the learned stipendiary magistrate pursuant to s 5(2) of the Crimes Compensation Act.
Under this provision his Worship issued a certificate in favour of Charlena Tipungwuti in the sum of $6750 being 45 per cent of $15000, the statutory maximum. This certificate was issued to compensate Charlena Tipungwuti in respect of the financial loss suffered as a consequence of the murder of her mother, Thecla Tipungwuti, on 1 November 1989.
A further certificate was issued pursuant to s 5(2) of the Crimes Compensation Act in favour of Maggie Tipungwuti in the sum of $8250 as a dependent of Thecla Tipungwuti in respect of the financial loss suffered as a consequence of the murder of her mother, Thecla Tipungwuti, on 1 November 1989.
The learned stipendiary magistrate made further orders that these amounts be paid to the Public Trustee to be held on trust and released to each of the recipients upon attaining 18 years of age. He further ordered the Northern Territory pay the applicant’s costs to be taxed or agreed.
The grounds of appeal are as follows:
“1.The learned Magistrate erred in awarding a compensation certificate when there was no evidence before the learned Magistrate as to the quantum of actual financial loss suffered by the Dependents of the victim;
2.The learned Magistrate erred in…

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: [2003] NTSC 96
Decision Date: 5 September 2003

CaseChat Overview and Summary

The case of NT of A v Sambono was heard in the Supreme Court of the Northern Territory. The appellant, the Territory of Australia, sought to appeal against a decision by the Stipendiary Magistrate to award a compensation certificate to the dependents of a deceased victim. The primary issue in the case was whether the Stipendiary Magistrate erred in awarding the compensation certificate in the absence of evidence of the actual financial loss suffered by the dependents. The appellant argued that there was no evidence of the financial situation of the families that the dependents lived with and no evidence from the applicants that there was any financial detriment. The court had to determine whether the Stipendiary Magistrate's findings were supported by the evidence.

The court considered the relevant provisions of the Crimes Compensation Act and found that the term "financial loss" was not defined in the Act. The court held that the term "pecuniary loss" as referred to in section 9(c) of the Act differed from "financial loss". The court found that the Stipendiary Magistrate had erred in awarding the compensation certificate in the absence of evidence of the actual financial loss suffered by the dependents. The court noted that the Stipendiary Magistrate had made a finding that the dependents had suffered a financial loss as a result of the death of their mother, but this finding was not supported by evidence. The court held that the award of the compensation certificate was therefore improper.

The court allowed the appeal and set aside the award of the compensation certificate. The court found that the Stipendiary Magistrate had erred in making the award in the absence of evidence of the actual financial loss suffered by the dependents. The court held that the award of the compensation certificate was therefore improper and set it aside. The case highlights the importance of ensuring that there is sufficient evidence to support findings of fact when making decisions under the Crimes Compensation Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I will deal with each of the grounds of appeal.Ground 1: The learned magistrate erred in awarding a compensation certificate when there was no evidence before the learned magistrate as to the quantum of actual financial loss suffered by the dependents of the victim.Ground 2: The learned magistrate erred in awarding a compensation certificate when there was no evidence at all of the financial position of the Dependents as at the date of the offence. The submission made by Ms Vanessa Farmer on behalf of the appellant is that “financial loss suffered by the dependents” pursuant to s 5(2) of the Crimes Compensation Act must be actual financial loss or incurred financial loss. Section 5(2) of the Crimes Compensation Act provides as follows:“(2)Where a victim has died, as a result of the injury suffered by the victim prior to the issue to him or her of an assistance certificate, a person who, in the opinion of the Court, is a suitable person to represent the interests of the dependants of the deceased victim may, within 12 months after the death of the victim, apply to the Court, on behalf of the dependants of the deceased victim, for an assistance certificate in respect of the financial loss suffered by the dependants.(2A)Where a victim has died as a result of the injury suffered by the victim –(a)the widow or widower, or the de facto partner; or(b)where the victim at the date of death had not attained the age of 18 years, a parent,of the victim may, within 12 months after the death of the victim, apply to the Court for an assistance certificate in respect of the grief suffered by that person as a result of the death of the victim.” The Act does not define the term financial loss. Dependant is defined in s 4 as:“‘dependant’, in relation to a deceased victim, means a relative of the victim who – (a)at the time of the death of the victim was wholly or substantially dependent upon the victim financially; or (b)would have been so dependent but for the injury suffered by the deceased victim;” Section 9(c) of the Crimes Compensation Act refers to “pecuniary loss”. It is the submission on behalf of the appellant that “pecuniary loss” differs from “financial loss”. On the appellant’s submission there was no evidence of financial loss, in that there was no evidence as to the financial situation of any of the families that the dependents lived with and no evidence from the applicants that there was any financial detriment. The learned stipendiary magistrate found that Charlena and Maggie Tipungwuti were totally dependent upon their mother Thecla Tipungwuti and their father the second respondent for all their financial needs. He found that as from 1 November 1989 Charlena and Maggie became dependent upon the generosity of other extended family members. His Worship referred to the difficulties of obtaining an accounting of the financial situation from each of the families the children had lived with. The learned stipendiary magistrate made the following finding (tp 85):“I’m satisfied that Charlena and Maggie have both suffered a financial loss as a result of the death of their mother. As a sequelae to that death, and the fact that the death was brought about by the second respondent, is a natural consequence that they have lost the financial support of the second respondent also.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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