NT of Australia and Chisolm v Scollen - [2001] NTSC 46

NT of Australia & Chisolm v Scollen [2001] NTSC 46
PARTIES:THE NORTHERN TERRITORY OF AUSTRALIA
and
KEVIN CHISOLM
v
ALAN MICHAEL SCOLLEN

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL UNDER THE CRIMES (VICTIMS ASSISTANCE) ACT 1982 (NT) exercising Territory jurisdiction
FILE NO:49/2000 (20015287)
DELIVERED:  19 June 2001, Alice Springs
HEARING DATES:  18 May 2001
JUDGMENT OF:  THOMAS J
CATCHWORDS:

APPEAL – APPEAL UNDER THE CRIMES (VICTIMS ASSISTANCE) ACT 1982 (NT)
Interpretation of subsection 12(e) of the Crimes (Victims Assistance) Act 1982 (NT)
Crimes (Victims Assistance) Act 1982 (NT), s 12(e)
REPRESENTATION:
Counsel:
Appellant:GJ Stirk
Respondent:  JG McBride
Solicitors:
Appellant:Povey Stirk
Respondent:  John G McBride
Judgment category classification:        C
Judgment ID Number:  tho200119
Number of pages:  6

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
NT of Australia & Chisolm v Scollen [2001] NTSC 46
No.49/2000 (20015287)

BETWEEN:
NORTHERN TERRITORY OF AUSTRALIA
and
KEVIN CHISOLM

Appellants
AND:
ALAN MICHAEL SCOLLEN

Respondent

CORAM: THOMAS J
REASONS FOR JUDGMENT
(Delivered 19 June 2001)

This is an appeal from a decision of the Deputy Chief Magistrate in Alice Springs who on 18 August 2000 issued an Assistance Certificate under the Crimes (Victims Assistance) Act to the respondent.
The decision involves an interpretation of subsection 12(e) of the Crimes (Victims Assistance) Act 1982 (NT) which provides as follows:
“The Court shall not issue an assistance certificate -
(e)in respect of an injury or death caused by, or arising out of, the use of a motor vehicle except where that use constitutes an offence under the Criminal Code.”
In particular the issue for determination in this appeal is whether subsection 12(e) of the Crimes (Victims Assistance) Act has any application in a situation where there has been a conviction under s 154 of the Criminal Code.
The background facts to this matter are contained within the exhibits tendered at the hearing before the learned Deputy Chief Magistrate on 25 May 2000. These include an affidavit sworn by the respondent on 23 May 2000 (Exhibit A4). The respondent, Alan Michael Scollen deposes to the fact that on 5 May 1999 at approximately 6.35 pm he was driving along the South Stuart Highway from the Alice Springs Airport to the township of Alice Springs. At a point on the highway approximately 200 metres past the turn off to Adelaide, Mr Scollen commenced to overtake a vehicle. As he was about to complete the overtaking he observed a vehicle travelling in the opposite direction without its headlights illuminated. He took immediate evasive action by attempting to turn into the bush to his right. A collision occurred. The point of impact being with the left hand side of Mr Scollen’s motor vehicle which struck the centre of the oncoming car, Mr Scollen was injured. His affidavit sworn 23 May 2000 details the injuries he suffered. Mr Scollen lodged an application for compensation under the Crimes (Victims Assistance) Act. At the hearing of the application on 29 May 2000, the applicant tendered a certificate of conviction which was marked Exhibit A1.
The learned Deputy Chief Magistrate stated in her reasons for judgment at par 13:
“The driver of the other motor vehicle, was convicted in the Alice Springs Court of Summary Jurisdiction on 6 December 1999 of various offences including doing an act that caused serious actual danger to the lives of the public or a member of it in circumstances where an ordinary person similarly circumstanced would have clearly foreseen such danger and not have done that act. This offence is contrary to section 154 of the Criminal Code.”
There is no challenge to this finding that as a consequence of the collision of the motor vehicles the subject of this application the driver of the other vehicle, Mr Chisolm, was convicted of an offence of dangerous act under s 154 of the Criminal Code 1983 (NT).
The issue raised by the appellant before the Court of Summary Jurisdiction related to whether “intention” was an essential element of the offence which was the subject of the application under the Crimes (Victims Assistance) Act.
That issue was dealt with by the learned Deputy Chief Magistrate who rejected the submission made on behalf of the Northern Territory of Australia that because there is no suggestion Mr Chisolm intended to cause the particular result which he did, that the offence does not include intention as an element of the offence and therefore is not a criminal offence of the type which the Crimes (Victims Assistance) Act provides assistance for.
The appellant does not seek to agitate that issue again before this Court but rather state in the written outline of submissions that:
“The issue for determination in this appeal is whether section 12(e) of the Crimes (Victims Assistance) Act (the ‘CVA Act”) has any application in a situation where there has been a conviction under section 154 of the Criminal Code. Put in another way, the Appellant’s argument is whether there are any circumstances in which an Applicant can fail to recover an Assistance Certificate after receiving an injury where the offender has been convicted under section 154. To the extent to which the Court is of the view that there are no such circumstances, the appeal must fail. To the extent to which the Court determines that there are such circumstances, then it would be contended that the Magistrate has erred in law and the Court must allow the appeal and remit the matter.”
It is the appellant’s submission to this Court that the Court should interpret subsection 12(e) to incorporate the concept of the manner of use of the motor vehicle. The submission is that motor vehicles cannot operate independently of a human factor, that therefore the Court needs to consider the conduct of the person driving the vehicle.
The appellant further claims that the learned Deputy Chief Magistrate failed to have regard to the nexus between the injury and the offence. The submission is that the error occurs at par 21 and par 22 of her Worship’s reasons for judgment. These paragraphs state as follows:
“21.The intention of the Act, and I consider implicit in Mr Mansey’s speech, (which I consider notes ‘an ordinary accident which did not involve criminal action) is that use of a motor vehicle is not to be considered to be sufficient to justify a payment under the Crimes Victims Act unless it is accompanied by a criminal offence of such a serious nature that it is an offence under the Criminal Code. Therefore offences against the Road Traffic Act or the Summary Offences Act would not be sufficient, these generally being lesser offences. However where a serious offence against the Criminal Code (of which Section 154 is plainly one), must be within the contemplation of the Crimes Victims Assistance Act, whether or not any danger so caused is caused by the use of a motor vehicle or for example a rifle.”
22.I am satisfied the applicant is a victim of an offence which is compensible under the Crimes Victims Assistance Act and the offence for which the second respondent was convicted is not an offence excluded by section 12.”
Mr Stirk, on behalf of the appellant, raises what he considers to be some anomalies. His examples are a person who steals a motor vehicle and injures a person. Does the theft or unlawful use of the vehicle of itself constitute an offence under the Criminal Code, which would entitle the injured person to claim under the Crimes (Victims Assistance) Act? Mr Stirk contrasts this to the position when a person is driving the vehicle he owns at excessive speed and a person steps out from behind a vehicle into the path of the car and suffers an injury. This is put forward as an example of a situation where the vehicle is being used lawfully but the manner of driving may constitute an offence.
I do not consider these examples have any relevance to the appeal in this matter. Neither do I consider it appropriate on this appeal for this Court to attempt to canvas a variety of situations involving the use of a motor vehicle or to attempt to answer the questions raised by the appellant on a hypothetical case.
In the appeal before this Court there is apparently no dispute that arising from the collision between the motor vehicles driven by Mr Scollen the applicant and Mr Chisolm the second respondent, the applicant was injured. As a consequence of the collision and the injuries inflicted on Mr Scollen, Mr Chisolm was convicted of an offence of dangerous act under s 154 of the Criminal Code. In my opinion, that is all the applicant was required to establish to bring himself within the provisions of subsection 12(e) of the Crimes (Victims Assistance) Act.
On my reading of subsection 12(e) it is clear and unambiguous. It is not necessary to refer to the Second Reading Speech or the history of the legislation or other legislation such as the Motor Accident (Compensation) Act 1979 (NT).
On a plain reading of the section, together with the undisputed facts to which I have already referred, Mr Scollen is entitled to an assistance certificate.
Accordingly, I would dismiss the appeal.

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