Re Her Honour Judge Schoombee
[2011] WASCA 129
•10 JUNE 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: RE HER HONOUR JUDGE SCHOOMBEE; EX PARTE ATTORNEY GENERAL FOR WESTERN AUSTRALIA [2011] WASCA 129
CORAM: BUSS JA
MURPHY JA
HALL J
HEARD: 15 FEBRUARY 2011
DELIVERED : 10 JUNE 2011
FILE NO/S: CACV 8 of 2010
MATTER :Application for a Writ of Certiorari and a Writ of Prohibition against HER HONOUR JUDGE SCHOOMBEE of the District Court of Western Australia
EX PARTE
ATTORNEY GENERAL FOR WESTERN AUSTRALIA
ApplicantAND
HER HONOUR JUDGE SCHOOMBEE
First RespondentRANDALL GRAHAME DEVOS
Second Respondent
Catchwords:
Criminal injuries compensation - Proper construction of s 37(3)(a) and s 37(3)(b) of the Criminal Injuries Compensation Act 2003 (WA) - Proper construction of the phrase 'the vehicle was used for the purpose of committing the offence' within s 37(3)(a) - Proper construction of the phrase 'the offence is a crime' within s 37(3)(b) - Offender convicted of the offence of dangerous driving causing grievous bodily harm to the second respondent, contrary to s 59(1) of the Road Traffic Act 1974 (WA) - Whether it was necessary for the second respondent to prove under s 37(3)(a) that the offender's subjective state of mind was deliberately to use his vehicle for the purpose of driving dangerously and causing grievous bodily harm - Whether the offender's summary conviction in the Magistrates Court of the offence of dangerous driving causing grievous bodily harm was a conviction for an offence that is a 'crime' within s 37(3)(b)
Legislation:
Criminal Code (WA), s 1, s 3(5)
Criminal Injuries Compensation Act 1985 (WA), (repealed), s 24B
Criminal Injuries Compensation Act 2003 (WA), s 13, s 14, s 15, s 16, s 17, s 37(3), s 42
District Court of Western Australia Act 1969 (WA), s 8, s 80
Income Tax and Social Services Contribution Assessment Act 1936 (Cth) (renamed as Income Tax Assessment Act 1936 (Cth)), s 260
Interpretation Act 1984 (WA), s 19, s 67
Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 3A, s 3B, s 3C, s 4(1), s 6(1), s 8
Road Traffic Act 1974 (WA), s 59
Result:
Orders nisi discharged
Category: A
Representation:
Counsel:
Applicant: Mr R M Mitchell SC & Ms L A Eddy
First Respondent : No appearance
Second Respondent : Mr J C Curthoys
Solicitors:
Applicant: State Solicitor for Western Australia
First Respondent : No appearance
Second Respondent : Sorgiovanni Legal
Case(s) referred to in judgment(s):
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Australian Capital Territory (Chief Minister's Department) v Coe [2007] ACTSC 15; (2007) 208 FLR 448
Bilney v Western Australian Transport Board [1961] HCA 2; (1961) 105 CLR 630
Caddy v Assessor of Criminal Injuries Compensation (1997) 18 SR (WA) 1
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Collector of Customs v Agfa‑Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389
Commissioner for Railways (New South Wales) v Agalianos [1955] HCA 27; (1955) 92 CLR 390
Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405
Craig v South Australia (1995) 184 CLR 163
Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602
Devos v James [2009] WADC 161
Kaighin v The Queen (1990) 1 WAR 390
Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531
Maunsell v Olins [1975] AC 373
McPherson v Lucas [2008] WASCA 56; (2008) 49 MVR 429
Minister Administering the Environmental Planning and Assessment Act 1979 v Carson (1994) 35 NSWLR 342
Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85
Newton v The Federal Commissioner of Taxation (1958) 98 CLR 2
Northrope v City of Hawthorn [1941] VLR 178
Peate v Federal Commissioner of Taxation [1964] HCA 84; (1964) 111 CLR 443
Pellew v The State of Western Australia [2011] WASCA 86
Plaintiff S157 v The Commonwealth [2003] HCA 2; (2003) 211 CLR 476
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Berchet (1690) 1 Show KB 106 [89 ER 480]
R v Brown [1996] AC 543
Salvation Army (Vic) Property Trust v Fern Tree Gully Corporation [1952] HCA 4; (1952) 85 CLR 159
Shilcock [2007] WADC 168
Spanos v Lazaris [2008] NSWCA 74
Talbot v Lane (1994) 14 WAR 120
Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331
Travelex Ltd v Commissioner of Taxation [2010] HCA 33; (2010) 84 ALJR 683
Turner v Hughes [2000] WASCA 276; (2000) 32 MVR 225
Union Shipping NZ Ltd v Port Nelson Ltd [1990] 2 NZLR 662
Williams v Oataway [2005] VSCA 137; (2005) 11 VR 529
BUSS JA: On 13 November 2004, the second respondent, Randall Grahame Devos, suffered an injury to his right lower leg. Mr Devos was putting oil in his wife's motor vehicle at a service station in Waikiki. Another vehicle being driven by Matthew James reversed into the vehicle in which Mr Devos was putting oil. Mr James' vehicle pinned Mr Devos between the two vehicles, injuring his right lower leg.
On 6 September 2005, Mr James was convicted in the Magistrates Court of three offences arising out of his driving on 13 November 2004. One conviction was for the offence of dangerous driving causing grievous bodily harm to Mr Devos, contrary to s 59(1) of the Road Traffic Act 1974 (WA) (the RTA).
On 12 November 2007, Mr Devos, by his solicitor, made an application under the Criminal Injuries Compensation Act 2003 (WA) (the 2003 Act) for an award of compensation in respect of the injury to his right lower leg. When the application was made, Mr Devos's solicitor revealed that Mr Devos had previously made a claim for damages under the Motor Vehicle (Third Party Insurance) Act 1943 (WA) (the Insurance Act) in respect of the injury in question. That claim had been settled. The purpose of making the application under the 2003 Act was to endeavour to obtain general damages which Mr Devos had been unable to recover in his claim under the Insurance Act. Also, Mr Devos sought to recover under the 2003 Act future anticipated medical expenses in excess of the sum of $2,000 which had been paid for that head of damage in his claim under the Insurance Act and, in addition, loss of income beyond that allowed in the earlier claim.
On 26 May 2008, an assessor under the 2003 Act refused to make an award of compensation to Mr Devos on the ground that s 37 of the 2003 Act prohibited the making of the award.
On 13 June 2008, Mr Devos appealed to the District Court against the assessor's decision.
On 21 October 2009, the first respondent, Schoombee DCJ, allowed the appeal. Her Honour decided that s 37 of the 2003 Act did not preclude the assessor from making an award of compensation to Mr Devos. She ordered that the appeal be allowed. In her reasons, her Honour said that she saw no reason why the court would not be entitled 'to refer the assessment of the compensation payable back to the Assessor': Devos v James [2009] WADC 161 [69].
On 23 December 2009, the Attorney General made application to the Supreme Court for a writ of certiorari to quash Schoombee DCJ's decision, alternatively, a writ of prohibition to prohibit her Honour from making an award of criminal injuries compensation under the 2003 Act or directing the assessor to make an award.
On 21 January 2010, Martin CJ granted orders nisi for certiorari and prohibition, and decided that the orders to show cause should be heard by this court.
The relevant legislative framework: s 59 of the RTA
At the material time, s 59 of the RTA provided, relevantly:
(1)A person who causes the death of or grievous bodily harm to another person by driving a motor vehicle in a manner (which expression includes speed) that is, having regard to all the circumstances of the case, dangerous to the public or to any person commits a crime and is liable to the penalty in subsection (3).
Summary conviction penalty: imprisonment for 18 months or a fine of 160PU and in any event the court convicting the person shall order that he be disqualified from holding or obtaining a driver's licence for a period of not less than 2 years.
(2)For the purposes of this section ‑
(a)a person causes the death of or grievous bodily harm to another person whether he does so directly or indirectly;
(b)it is immaterial that the death or grievous bodily harm might have been avoided by proper precaution on the part of a person other than the person charged or might have been prevented by proper care or treatment;
(c)when a person causes grievous bodily harm to another person and that other person receives surgical or medical treatment, and death results either from the harm or the treatment, he is deemed to have caused the death of that other person, although the immediate cause of death was the surgical or medical treatment if the treatment was reasonably proper in the circumstances and was applied in good faith; and
(d)the term 'grievous bodily harm' has the same meaning as is given thereto in The Criminal Code.
At the material time, s 1 of the Criminal Code (WA) (the Code) defined the term 'grievous bodily harm' to mean 'any bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health'.
The offence of dangerous driving causing grievous bodily harm, contrary to s 59(1) of the RTA, was designated in s 59(1) as a 'crime'.
Several observations may be made about the offence of dangerous driving causing grievous bodily harm as embodied at the material time in s 59(1) of the RTA. First, negligence is not an element of dangerous driving. That is, negligent driving is not necessarily dangerous driving. The offence is not established by the prosecution proving that the incident resulting in grievous bodily harm was caused by the accused failing to drive with due care and attention. See McPherson v Lucas [2008] WASCA 56; (2008) 49 MVR 429 [24] (McLure JA, Wheeler & Miller JJA agreeing); Kaighin v The Queen (1990) 1 WAR 390, 395 (Malcolm CJ, Walsh & Ipp JJ). Secondly, for driving to be 'dangerous' within s 59(1), it must in reality be actually or potentially dangerous to the public or another person. See Kaighin (395). Thirdly, a momentary lapse of attention may constitute dangerous driving. See Kaighin (395). Fourthly, the test as to whether driving is dangerous is objective. See Kaighin (395). Fifthly, it is not an element of the offence, and it is unnecessary for the prosecution to prove, that the accused deliberately, recklessly or intentionally drove dangerously or deliberately, recklessly or intentionally created a danger to the public or another person. See Turner v Hughes [2000] WASCA 276; (2000) 32 MVR 225 [18] ‑ [21]. Sixthly, although intention is not an element of the offence, liability under s 59(1) is not absolute. It does not extend to involuntary acts. Also, the defence of mistake under s 24 of the Code may be invoked and, if the accused satisfies the evidential onus, the prosecution must negative the defence beyond reasonable doubt. See McPherson [21] ‑ [23].
The relevant legislative framework: the Insurance Act
At all material times, s 3A ‑ s 3C of the Insurance Act, which were introduced by the Motor Vehicle (Third Party Insurance) Amendment Act 1994 (WA), applied to the awarding of damages in respect of bodily injury to a person directly caused by, or by the driving of, a motor vehicle. The effect of those provisions was to impose restrictions on the awarding of damages for non‑pecuniary loss.
At the material time, s 4(1) of the Insurance Act provided:
When any motor vehicle is on a road there is required to be in force in relation to the motor vehicle a contract of insurance entered into by the owner of the motor vehicle under which the owner has insured subject to and in accordance with this Act against any liability which may be incurred by the owner or any person who drives the motor vehicle in respect of the death of or bodily injury to any person directly caused by, or by the driving of, the motor vehicle.
At the material time, s 6(1) of the Insurance Act provided that, in order to comply with the Act, a policy of insurance must:
(a)be issued by the Commission;
(b)except as provided in this section insure the owner of the vehicle mentioned in the policy and any other person who at any time drives that vehicle, whether with or without the consent of the owner, in respect of all liability for negligence which may be incurred by that owner or other person in respect of the death of or bodily injury to any person directly caused by, or by the driving of, the vehicle in any part of the Commonwealth; and
(c)be in a form substantially similar to that contained in the Schedule. (emphasis added)
The form of insurance policy contained in the schedule to the Act provided for insurance in respect of 'all liability for negligence' which may be incurred by the owner of the motor vehicle or any other person who drove that vehicle, whether with or without the owner's consent. The form of insurance policy also included a warranty by the owner of the vehicle that the vehicle would not be 'driven by or in charge of himself or any other person … who is under the influence of intoxicating liquor'.
At the material time, s 8 made special provision in relation to uninsured motor vehicles. By s 8(1):
Where ‑
(a)judgment against the owner or driver of an uninsured motor vehicle has been entered in respect of the death of or bodily injury to any person directly caused by, or by the driving of, that motor vehicle;
(b)such death or bodily injury is one against liability in respect of which the judgment debtor, had there been in force a contract of insurance under this Act relating to such motor vehicle, would have been insured; and
(c)the judgment debtor does not satisfy the judgment in full within one month after the same has been entered ‑
the judgment creditor may claim from the Commission payment of the amount (including costs) unpaid in respect of the judgment or the amount to which the liability of the Commission might have been limited had there been in force a contract of insurance under this Act relating to such motor vehicle, whichever is the smaller amount, and where the Commission fails to pay the amount the judgment creditor may recover it in an action in a court of competent jurisdiction as a debt due to him by the Commission.
The Commission was empowered under s 8(3) to recover from the owner or the driver of the motor vehicle, and if they were both liable from them jointly and severally, such sum as the Commission had paid in settlement, payment or compromise of the claim of, or any judgment obtained by, the judgment creditor against it.
The relevant legislative framework: the 2003 Act
The long title to the 2003 Act states that it is an Act to provide for the payment of compensation to victims of offences 'in some circumstances', and for related matters.
By s 12(1) of the 2003 Act, a person who suffers injury as a consequence of the commission of a 'proved offence' may apply for compensation for the injury and any loss also suffered. If an application is made under s 12(1), an assessor must not make a compensation award in respect of the application unless satisfied that the claimed injury and any claimed loss has occurred and did so as a consequence of the commission of a proved offence: s 12(3)(a).
The term 'proved offence' is defined in s 3 to mean 'a crime, misdemeanour or simple offence of which a person has been convicted'. The term 'convicted' has a meaning affected by s 5, but it is unnecessary to refer to that provision.
Section 24(2) of the 2003 Act empowers an assessor to make, or refuse to make, a compensation award in respect of a compensation application.
On a compensation application in respect of injury suffered by a victim as a consequence of the commission of an offence, an assessor may award such compensation that the assessor is satisfied is just for the injury and for any loss also suffered: s 30(1).
Section 37 of the 2003 Act provides:
(1)In this section ‑
motor vehicle has the meaning given by the Motor Vehicle (Third Party Insurance) Act 1943.
(2)This section applies in relation to an offence committed on or after 1 July 1993.
(3)An assessor must not make a compensation award in favour of ‑
(aa)an injured victim in respect of the injury or any loss suffered by the victim; or
(ab)the personal representative of a deceased victim, in respect of any loss suffered by a close relative of a deceased victim,
as a consequence of the commission of an offence if satisfied that the injury or death was caused directly by, or by the driving or other use of, a motor vehicle unless ‑
(a)the motor vehicle was used for the purpose of committing the offence; and
(b)the offence is a crime.
By s 55(1) of the 2003 Act, an 'interested person', as defined in s 3, may appeal to the District Court against an assessor's decision, relevantly, to make or to refuse to make a compensation award. The term 'interested person' includes the applicant for a compensation award.
Section 56(2) of the 2003 Act provides that, on an appeal under s 55, the District Court may do any or all of the following:
(a)exercise any power of an assessor under this Act, other than a power under section 19(1)(b), 24(1) or 25;
(b)confirm, vary or reverse the assessor's decision, either in whole or in part;
(c)make any order that an assessor could make under this Act;
(d)order an unsuccessful party to the appeal to pay a successful party's costs as set by the Court in accordance with the scale of costs prescribed by the regulations;
(e)refer a question of law that arises in the appeal to the Court of Appeal for determination;
(f)make any necessary consequential order.
By s 57 of the 2003 Act, the District Court's decision on an appeal made under s 55 'is not appealable'.
Section 24B of the Criminal Injuries Compensation Act 1985 (WA)
The Criminal Injuries Compensation Act 1985 (WA) (the 1985 Act) was the precursor to the 2003 Act. Section 73 of the 2003 Act, read with sch 2 cl 1 of that Act, repealed the 1985 Act.
Section 24B of the 1985 Act was introduced by the Criminal Injuries Compensation Amendment Act 1996 (WA). It commenced operation on 13 November 1996. Section 24B was the precursor to s 37 of the 2003 Act.
Section 24B of the 1985 Act read:
(1)Subject to subsection (2), the Chief Assessor shall not make an award to an applicant for compensation in respect of an injury or loss if the Chief Assessor considers that the injury or loss is directly caused by, or by the driving of, a motor vehicle within the meaning of the Motor Vehicle (Third Party Insurance) Act 1943.
(2)Subsection (1) does not apply to an injury or loss if ‑
(a)the injury or loss was directly caused by the driving or other use of the motor vehicle for the purpose of committing the offence to which the application relates; and
(b)that offence is a crime as defined by section 3 of The Criminal Code.
(3)Subject to subsection (4), this section is deemed to have come into operation on 1 July 1993.
(4)Subsection (3) does not apply in relation to awards made before the commencement of section 8 of the Criminal Injuries Compensation Amendment Act 1996.
The decision and reasoning of Schoombee DCJ
By s 37(3) of the 2003 Act, relevantly, an assessor must not make a compensation award as a consequence of the commission of an offence if satisfied that the injury or death in question was caused directly by, or by the driving or use of, a motor vehicle, unless the vehicle was used for the purpose of committing the offence (par (a)) and the offence is a 'crime' (par (b)).
Schoombee DCJ concluded that the 'proviso' (as she described it) in s 37(3)(a) and s 37(3)(b) of the 2003 Act applied to Mr Devos's compensation application on the basis that 'a motor vehicle was used in the commission of the offence as a consequence of which [Mr Devos] suffered injury and the offence is a crime' [66].
Her Honour, in arriving at this conclusion, departed from two previous decisions of the District Court, namely, Caddy v Assessor of Criminal Injuries Compensation (1997) 18 SR (WA) 1 and Shilcock [2007] WADC 168.
Schoombee DCJ held, inconsistently with the view of Commissioner Greaves in Caddy, that the phrase 'for the purpose of committing the offence', in s 37(3)(a), only requires that the motor vehicle was used in the commission of the offence as a consequence of which the injury was caused, and that it was irrelevant whether or not Mr James intended to drive dangerously or intended to cause harm to another person [40].
When Mr James was convicted in the Magistrates Court on 6 September 2005, s 3(5) of the Code provided, relevantly, that if a person is convicted by a court of summary jurisdiction of an 'indictable offence', the conviction is to be regarded as being a conviction of a 'simple offence' only, unless another written law provides otherwise. Also, when Mr James was convicted, an offence designated as a 'crime' was an 'indictable offence': s 67(1a) of the Interpretation Act 1984 (WA).
Her Honour also held, inconsistently with the view of Groves DCJ in Shilcock, that s 3(5) of the Code does not apply to s 37(3)(b) and, in consequence, the fact that Mr James was summarily convicted in the Magistrates Court of the crime created by s 59(1) of the RTA did not preclude Mr Devos's claim for criminal injuries compensation.
The grounds of the Attorney General's application
The grounds of the Attorney General's application for certiorari are that Schoombee DCJ made a jurisdictional error of law, in that:
(a)The Judge mistakenly asserted the existence of jurisdiction to make a compensation award in favour of the Second Respondent ('Devos') for the injury or loss suffered by Devos as a consequence of the commission of a proved offence against s 59(1) of the Road Traffic Act 1974 by Matthew James on 13 November 2004, of which James was convicted in the Magistrates Court at Rockingham on 6 September 2005 ('the Proved Offence'), when s 37(3) of the Criminal Injuries Compensation Act 2003 ('the 2003 Act') prohibited the making of a compensation award because:
(i)the Assessor and the Judge were satisfied that the injury was caused directly by, or by the driving or other use of, a motor vehicle;
(ii)the motor vehicle was not 'used for the purpose of committing' the offence within the meaning of s 38(3)(a) of the 2003 Act; and
(iii)the offence was not a 'crime' within the meaning of s 38(3)(b) of the 2003 Act, as s 3(5) of the Criminal Code required that the proved offence be regarded as a simple offence only.
(b)The Judge misapprehended the nature and limits of her power to make such a compensation award by concluding that:
(i)the phrase 'for the purpose of committing the offence' contained in s 37(3)(a) of the 2003 Act only requires that the motor vehicle was used in the commission of the offence as a consequence of which the injury was caused, and that it was irrelevant whether James intended to drive dangerously or to cause harm to another person or not: [2009] WADC 161 at [40], Blue Application Book, p 20; and
(ii)section 3 (5) of the Criminal Code does not apply to s 37(3)(b) of the 2003 Act, so that the fact that James was summarily convicted in the Magistrates Court is no bar to Devos' claim for criminal injuries compensation [2009] WADC 161 at [65], Blue Application Book, p 26.
The grounds of the Attorney General's application for prohibition are that s 37(3) of the 2003 Act prohibits the making of a compensation award in favour of Mr Devos for the injury or any loss suffered by him as a consequence of the commission of the proved offence, in that:
(a)the Assessor and the Judge were satisfied that the injury was caused directly by, or by the driving or other use of, a motor vehicle;
(b)the motor vehicle was not 'used for the purpose of committing' the offence within the meaning of s 37(3)(a) of the 2003 Act; and
(c)the offence was not a 'crime' within the meaning of s 37(3)(b) of the 2003 Act, as s 3(5) of the Criminal Code requires that the proved offence be regarded as a simple offence only.
During oral argument before this court, counsel for the Attorney General accepted (correctly, in my view) that if certiorari were to be granted then prohibition would be unnecessary.
Counsel for Mr Devos did not challenge the finding by the assessor and Schoombee DCJ that Mr Devos's injury was caused 'directly by, or by the driving or other use of, a motor vehicle' within s 37(3).
The critical issues raised by the grounds of the application
The critical issues raised by the grounds of the application are as follows. First, did Schoombee DCJ make an error by misconstruing s 37(3) of the 2003 Act? Secondly, if her Honour did make an error by misconstruing s 37(3), was the error jurisdictional or non‑jurisdictional? Thirdly, if her Honour made an error by misconstruing s 37(3), does certiorari (alternatively, prohibition) lie?
The relevant principles of statutory construction
The modern approach to statutory construction is purposive. The statutory text is the surest guide to the Parliament's intention. A decision as to the meaning of the text must begin by considering the context, in its widest sense. This will include the general purpose and policy of the provision. See Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] (McHugh, Gummow, Kirby & Hayne JJ); Alcan (NT)Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47] (Hayne, Heydon, Crennan & Kiefel JJ); Travelex Ltd v Commissioner of Taxation [2010] HCA 33; (2010) 84 ALJR 683 [82] (Crennan & Bell JJ).
The general rule and the exception in s 37(3) of the 2003 Act
Section 37(3) of the 2003 Act contains a general rule and an exception to that rule.
The general rule is that an assessor must not make a compensation award in favour of, relevantly, an injured victim in respect of the injury or any loss suffered by the victim 'as a consequence of the commission of an offence' if satisfied that the injury was 'caused directly by, or by the driving or other use of, a motor vehicle'.
The exception is that an assessor may make a compensation award in favour of, relevantly, an injured victim in respect of the injury or any loss suffered by the victim 'as a consequence of the commission of an offence', even if the assessor is satisfied that the injury was 'caused directly by, or by the driving or other use of, a motor vehicle', if:
(a)the vehicle was 'used for the purpose of committing the offence'; and
(b)the offence is a 'crime'.
The phrase 'as a consequence of the commission of an offence', in the statement of the general rule, requires that the injury or any loss follow as an effect or consequence of the offence being or having been committed. The phrase 'caused directly by, or by the driving or other use of, a motor vehicle', in the statement of the general rule, requires a direct or proximate (as distinct from an indirect or remote) relationship of cause and effect between the motor vehicle or the driving or other use of the vehicle, on the one hand, and the injury or any loss suffered by the victim, on the other.
The exception in s 37(3)(a) states, in effect, that the motor vehicle must have been 'used for the purpose of committing the offence'. The word 'used' includes the driving of the vehicle. This is apparent from the phrase 'by the driving or other use of, a motor vehicle' in the general rule. (emphasis added)
The proper construction of s 37(3)(a) of the 2003 Act
The word 'purpose' has been described as a 'flexible if not slippery word'. See Bilney v Western Australian Transport Board [1961] HCA 2; (1961) 105 CLR 630, 636 (Dixon CJ). The phrase 'for the purpose of' may, in some circumstances, carry with it the notion of a subjective intention to achieve a particular object or aim and may, in other circumstances, indicate that, objectively, something has been used to facilitate the attaining or execution of a particular goal or task. The meaning to be ascribed to 'purpose' or 'for the purpose of' in a statute depends on the context and the apparent object of the provision in which the word or phrase appears. The word or phrase must not, of course, be construed in isolation but as an integral part of the provision as a whole. Generally, see and compare the discussion as to 'purpose' in other and very different statutory provisions in Peate v Federal Commissioner of Taxation [1964] HCA 84; (1964) 111 CLR 443, 466, 468 ‑ 469 (Kitto J, McTiernan and Owen JJ agreeing); Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331, 348 ‑ 349 (Deane J); Union Shipping NZ Ltd v Port Nelson Ltd [1990] 2 NZLR 662, 707 ‑ 709 (McGechan J & Blunt).
Section 37(3)(a) is concerned with the particular use that was made of the vehicle 'for the purpose of committing the offence'.
The grammatical structure of this provision is passive, not active. It is not expressed by reference to the offender or accomplice who made use of the vehicle or by reference to his or her purpose.
Section 37 does not create an offence and is not part of the criminal law. When an application is made for a compensation award, the offence in question will, of course, have already been committed.
Although an offender's subjective intention will sometimes be an element of the relevant offence, on other occasions it will not. For example, subjective intention is not an element of the offence created by s 59(1) of the RTA. See [12] above.
In my opinion the subjective state of mind of the offender or any accomplices (including his, her or their subjective purpose in driving or using the motor vehicle) is not the 'purpose' with which s 37(3)(a) is concerned. Rather, s 37(3)(a) is concerned with, and the phrase 'for the purpose of' expresses, the necessity for a connection in fact between the driving or other use of the vehicle, on the one hand, and the commission of the offence, on the other. The driving or other use will be use 'for the purpose of' committing the offence if the driving or other use objectively caused, assisted, was conducive to or otherwise facilitated the commission of the offence. It is not essential that the driving or other use be an element of the relevant offence for the use to be characterised as 'for the purpose of' committing the offence.
The 'purpose' for which a vehicle was driven or being driven or otherwise used (in particular, whether the vehicle was driven or being driven or otherwise used 'for the purpose of' committing the offence) will always be a question of fact to be determined objectively. In answering this question, it will be necessary to have regard to all of the facts and circumstances involved with and surrounding the relevant driving, journey or use (including the actions and omissions of the offender and any accomplices) and the nature and character of the offending.
The reasons for my preferred construction of s 37(3)(a) are as follows. First, my construction is consistent with the statutory text. Secondly, my construction is consistent with the apparent purpose of s 37(3)(a) and s 37(3)(b), read together. See [64] ‑ [67] below. Thirdly, my construction does not render otiose the words 'the purpose of' in s 37(3)(a). That is, my construction does not equate the statutory language, 'the motor vehicle was used for the purpose of committing the offence', with 'the motor vehicle was used for committing the offence'. As I have mentioned, the phrase 'for the purpose of' in s 37(3)(a) expresses the connection in fact which must exist between the driving or other use of the vehicle, on the one hand, and the commission of the offence, on the other. Fourthly, as s 59(1) of the RTA demonstrates, an offender's subjective state of mind will not necessarily be an element of the offence, or relevant in fact to the commission of the offence, on which an application for a compensation award is based. Fifthly, if the Parliament had intended that the precondition in s 37(3)(a) should embody the notion of a subjective intention by the offender or an accomplice to achieve a particular object or aim (in the present case, the subjective intention of Mr James to drive his motor vehicle dangerously or to cause grievous bodily harm to Mr Devos), it is likely that the Parliament would have expressly referred in s 37(3)(a) to the offender or any accomplice and to intention instead of purpose. Sixthly, a compensation award may be made under the 2003 Act, not only in the case of a 'proved offence', but also in the case of an 'alleged offence'. The term 'alleged offence' is defined in s 3 to mean 'a crime, misdemeanour or simple offence of which no person has been convicted'. For example, no person may have been convicted because the charge was withdrawn or dismissed, or the alleged offender died before the charge was dealt with, or the alleged offender was mentally unfit to stand trial or the alleged offender was not apprehended. See s 13, s 14, s 15, s 16 and s 17. It is unlikely that the Parliament would have intended, in the circumstances I have just described, that an applicant for a compensation award should bear the burden of satisfying the assessor that at the material time the alleged offender had the requisite subjective state of mind. Seventhly, although Caddy was decided before the 1985 Act was repealed and replaced with the 2003 Act, the principle of statutory interpretation that where the language of a statute has received judicial interpretation, and the Parliament again employs the same language in a subsequent statute dealing with the same subject, there is a presumption that the Parliament intended that the relevant language in the subsequent statute should be given the meaning which has been judicially attributed to it, is, at most, a 'valuable presumption'. See Salvation Army (Vic) Property Trust v Fern Tree Gully Corporation [1952] HCA 4; (1952) 85 CLR 159, 174 (Dixon, Williams & Webb JJ). However, this presumption should not lead a court to perpetuate the construction of a statutory provision which it considers to be erroneous. See Salvation Army (174). I will assume, without deciding, that the presumption applies to decisions of the District Court in its appellate jurisdiction under s 55 of the 2003 Act. See Minister Administering the Environmental Planning and Assessment Act 1979 v Carson (1994) 35 NSWLR 342, 362 ‑ 363; Australian Capital Territory (Chief Minister's Department) v Coe [2007] ACTSC 15; (2007) 208 FLR 448 [12] ‑ [17]; and compare Northrope v City of Hawthorn [1941] VLR 178, 182 ‑ 183; Williams v Oataway [2005] VSCA 137; (2005) 11 VR 529 [20]. In the present case, the presumption should not be given any weight. Caddy was decided by a commissioner of the District Court, the appellant/victim's brother was unrepresented, the commissioner's decision involved assertion and was unsupported by legal reasoning, and his view of s 24B(2)(a), being the precursor to s 37(3)(a), was, in my respectful opinion, erroneous.
The proper construction of s 37(3)(b) of the 2003 Act
At all material times before 21 May 2004, the Code provided that:
(a)there were three kinds of offences, namely, crimes, misdemeanours and simple offences (s 3);
(b)crimes and misdemeanours were indictable offences (s 3);
(c)a person charged with an indictable offence that may be dealt with summarily could, with some exceptions, elect to have the charge tried either summarily or on indictment (s 5); and
(d)when a person had been summarily convicted of an indictable offence, the conviction was deemed to be a conviction of a simple offence only (s 673).
On 21 May 2004, the Criminal Code Amendment Act 2004 (WA) commenced. This statute repealed s 3, s 5 and s 673 of the Code and inserted a new s 3 and a new s 5. The statute also inserted definitions of 'indictable offence', 'simple offence' and 'summary conviction penalty' in s 67 of the Interpretation Act.
When Mr James was convicted in the Magistrates Court on 6 September 2005, s 3 of the Code provided, relevantly:
(1)This section applies to offences in this Code and in any other written law.
(2)An indictable offence is triable only on indictment, unless this Code or another written law expressly provides otherwise.
…
(5)If a person is convicted by a court of summary jurisdiction of an indictable offence, the conviction is to be regarded as being a conviction of a simple offence only, unless … another written law provides otherwise.
When Mr James was convicted, s 67 of the Interpretation Act provided, relevantly:
(1)Offences are of 2 kinds: indictable offences and simple offences.
(1a)An offence designated as a crime or as a misdemeanour is an indictable offence.
(2)An offence not otherwise designated is a simple offence.
(3)The procedure for prosecuting and dealing with offences is set out in the Criminal Procedure Act 2004.
The 2003 Act commenced on, relevantly, 1 January 2004.
The term 'crime' is not defined in the 2003 Act. It appears in the following provisions:
(a)in s 3, as I have mentioned, 'alleged offence' is defined to mean 'a crime, misdemeanour or simple offence of which no person has been convicted';
(b)in s 3, as I have mentioned, 'proved offence' is defined to mean 'a crime, misdemeanour or simple offence of which a person has been convicted';
(c)in s 14(1), it is stated that s 14 applies 'if a person is found not guilty of a crime, misdemeanour or simple offence (the charged offence) on account of unsoundness of mind'; and
(d)in s 37(3)(b).
Crimes, as a category of offences, are more serious than misdemeanours and simple offences. Misdemeanours, as a category of offences, are more serious than simple offences. The term 'crime' was used in s 37(3)(b) of the 2003 Act as part of a scheme to confine the operation of the exception. In particular, the term 'crime' in s 37(3)(b) denotes the status and the seriousness of the offending conduct which will enable an injured victim who satisfies the precondition in s 37(3)(b) and the precondition in s 37(3)(a) to obtain a compensation award.
As McLure P noted in Pellew v The State of Western Australia [2011] WASCA 86, the category of conviction under the deeming provision in s 3(5) of the Code is based on the seriousness of the circumstances of the actual offending, and not on the seriousness of the offence itself [27]. That observation also applies to the deeming provision in s 673 of the Code, which was in operation when the Parliament enacted the 2003 Act.
In my opinion, the Parliament used the term 'crime' in s 37(3)(b) to describe the status and seriousness of the offending conduct as an offence, as distinct from the seriousness of the circumstances of the actual offending in question. I am of that opinion for these reasons. First, my construction is consistent with the statutory text. Secondly, my construction is consistent with the apparent purpose of s 37(3)(a) and s 37(3)(b), read together. See [64] ‑ [67] below. Thirdly, as I have mentioned, other provisions of the 2003 Act distinguish between crimes, misdemeanours and simple offences. If the Parliament had intended to distinguish between a conviction for some indictable offences (that is, crimes) tried on indictment, on the one hand, and a conviction for some indictable offences (that is, crimes) tried summarily, on the other, it is likely that this distinction would have been expressly reflected in s 37(3)(b). Fourthly, s 37(3)(b) refers to crimes, but not misdemeanours. It would be curious (if not incongruous) if the Parliament had intended that the term 'crime' in s 37(3)(b) should encompass a conviction for a misdemeanour that was tried on indictment, but not a conviction for a crime that was tried summarily. Fifthly, although the term 'proved offence' is defined to mean 'a crime, misdemeanour or simple offence of which a person has been convicted' (emphasis added), the words 'has been convicted' are used in the definition to distinguish it from the definition of 'alleged offence', which is concerned with an offence for which no person has been convicted. The definition of 'proved offence' does not support the construction of s 37(3)(b) contended for on behalf of the Attorney General. Sixthly, although Shilcock, like Caddy, was decided before the 1985 Act was repealed and replaced with the 2003 Act, in the present case the presumption referred to in Salvation Army (174) (assuming, without deciding, that it applies: see [54] above) carries little or no weight in that the reasons for decision in Shilcock were unreported and, in my respectful opinion, Groves DCJ's construction of s 24B(2)(b), being the precursor to s 37(3)(b), was in error.
The proper construction of s 37(3)(a) and s 37(3)(b) of the 2003 Act: apparent purpose as discerned from the statutory text
The apparent purpose of s 37(3)(a) and s 37(3)(b) is to be discerned from those provisions as a composite whole. The exception applies where the vehicle was used for the purpose of committing an offence which is a crime. The exception has been expressed in two paragraphs (being par (a) and par (b)) as a matter of drafting style and to facilitate understanding of its components.
My preferred construction of s 37(3)(a) and s 37(3)(b), read together, is consistent with their apparent purpose, as conveyed by the statutory text; namely, circumscribing the circumstances in which a compensation award may be made where the relevant injury and any loss was directly caused by the driving or other use of a motor vehicle.
Also, my preferred construction confines the ambit of the exception to the general rule in a manner which enables ample scope for the application of the general rule. For example, at the material time, the vast majority of the numerous offences created under the RTA and the Road Traffic Code 2000 (WA) were not designated as 'crimes'. See, for example, s 59A, s 60, s 61, s 62, s 63, s 64, s 64AA and s 64A of the RTA. The exception would not be satisfied where driving which constituted an offence under any of these provisions directly caused the injury or any loss suffered by an injured victim.
Further, my preferred construction does not give rise to 'double recovery'. It is true that a person who has suffered injury and loss as a result of another person's negligent driving may make a claim for common law damages (to which the Insurance Act applies), and may also make an application under the 2003 Act for an award of compensation if the negligent driving falls within the exception in s 37(3)(a) and s 37(3)(b). However, the damages or compensation which may be recovered or awarded are, in each instance, compensatory, and any amount recovered for a head of damage in a common law claim would have to be brought to account in assessing the amount of any compensation to be awarded for that head of damage under the 2003 Act.
The proper construction of s 37(3)(a) and s 37(3)(b) of the 2003 Act: extrinsic evidence
Section 19(1) of the Interpretation Act permits a court to refer to extrinsic material, in the interpretation of a provision of a written law, if the material is capable of assisting in ascertaining the meaning of the provision, in order to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision, taking into account its context in the written law and the purpose or object underlying the written law, or to determine the meaning of the provision when the provision is ambiguous or obscure or when the ordinary meaning conveyed by the text of the provision, taking into account its context in the written law and the purpose or object underlying the written law, leads to a result that is manifestly absurd or unreasonable. By s 19(2), the extrinsic material that may be considered in accordance with s 19(1) includes, relevantly:
(f)the speech made to a House of Parliament by a Minister on the occasion of the moving of a motion that the Bill containing the provision be read a second time in that House.
At common law (that is, independently of s 19 of the Interpretation Act), a court is permitted, in construing a statutory provision, to have regard to the words used by the Parliament in their legal and historical context and, if appropriate, to give them a meaning that will give effect to any purpose of the legislation that can be deduced from that context. See CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85, 112 ‑ 113.
As I have mentioned, s 24B of the 1985 Act, which was introduced by the Criminal Injuries Compensation Amendment Act 1996, was the precursor to s 37 of the 2003 Act. The Parliament, in substance, re‑enacted s 24B of the 1985 Act as s 37 of the 2003 Act. There is no material difference, in substance, between the text of s 24B and the text of s 37.
The Minister for Health, in his second reading speech on the Bill which upon enactment became the Criminal Injuries Compensation Amendment Act 1996, referred to the restrictions in the Insurance Act (s 3A ‑ s 3C) on the awarding of damages for non‑pecuniary loss, and explained the rationale for the introduction of s 24B, as follows:
Amendments to the Motor Vehicle (Third Party Insurance) Act place a threshold, currently $10 000, below which no claim may be made under that Act. A number of claimants in this category and their legal representatives now see an application to the Assessor of Criminal Injuries Compensation as an alternative means of gaining access to compensation. The Criminal Injuries Compensation Act was never intended to accommodate this category of claim, yet there is no legislative impediment at present to such claims being made.
An indication of the potential impact of this category of claims on the funds available for the payment of awards made under the Criminal Injuries Compensation Act is that in 1992-93 claims of less than $10 000 under the Motor Vehicle (Third Party Insurance) Act amounted to more than $24m. Payment of even a small fraction of this total to applicants injured as a result of motor vehicle accidents would place a severe strain on the availability of funds intended to compensate victims of those offences for which the Act was intended.
To address this problem, the Bill will amend the Criminal Injuries Compensation Act to remove any rights to compensation under the Act for injuries arising from motor vehicle accidents except where the motor vehicle was used for the commission of the crime that caused the injury or loss. The term 'crime' as defined in section 3 of the Criminal Code is used to define the gravity of the offence to which the relevant provision ‑ section 24B(1) ‑ does not apply.
An added complication arises if the entitlement under the Criminal Injuries Compensation Act is substituted for an action in negligence arising from an ordinary motor vehicle accident. Not only would this bring everyday accidents within an Act that is directed to compensation for criminal activities, but also it would impose an obligation on people involved in accidents to pay that compensation. When an award is made under the Act the offender becomes liable to pay it However, a driver would not be entitled to be indemnified by the State Government Insurance Commission because the statutory liability to pay compensation does not fall within the liability that is indemnified under the Motor Vehicle (Third Party Insurance) Act. Therefore, ordinary people involved in motor vehicle accidents resulting in personal injury, who although at fault are not criminals, could incur a liability with no right of indemnity. This device is contrary to the intent of both this legislation and the Motor Vehicle (Third Party Insurance) Act. (emphasis added)
See Western Australia, Parliamentary Debates, Legislative Assembly, 15 October 1996, page 6440 (Mr Kevin Prince, Minister for Health).
There was no relevant discussion about s 37 in the Minister's second reading speech on the Bill which upon enactment became the 2003 Act.
My preferred construction of s 37(3)(a) and s 37(3)(b), read together, is consistent with the purpose or object underlying those provisions as revealed by the Minister's second reading speech in relation to s 24B; in particular, with the passage I have emphasised.
Did Schoombee DCJ make an error by misconstruing s 37(3) of the 2003 Act?
It will be apparent from my reasons in relation to the proper construction of s 37(3)(a) and s 37(3)(b) of the 2003 Act that, in my opinion, Schoombee DCJ did not make a material error in construing s 37(3).
In the present case, the exception to the general rule embodied in s 37(3) applied.
As to s 37(3)(a), Mr James' vehicle was used 'for the purpose of' committing the offence of dangerous driving causing grievous bodily harm, contrary to s 59(1) of the RTA, in that his use of the vehicle objectively facilitated the dangerous driving and also objectively caused the grievous bodily harm, being the requisite elements of the offence. As I have explained, the pre‑condition in s 37(3)(a) did not require Mr Devos to establish that Mr James' subjective state of mind was deliberately to use his vehicle for the purpose of driving dangerously or causing grievous bodily harm.
As to s 37(3)(b), the offence against s 59(1) of the RTA committed by Mr James was a 'crime'. As I have explained, the term 'crime' in s 37(3)(b) describes the status and seriousness of the offending conduct as an offence, as distinct from the seriousness of the circumstances of the actual offending in question. Section 37(3)(b) extends to a conviction for a crime that is tried summarily.
The other critical questions fall away
As Schoombee DCJ did not make a material error in construing s 37(3) of the 2003 Act, the other critical questions raised by the Attorney General's application fall away.
Conclusion
I would discharge the orders nisi.
MURPHY JA: I agree with the conclusions reached by Buss JA, generally for the reasons which he gives. I wish, however, to add the following particular observations on the principal point of construction in the application - the proper construction of s 37(3)(a) of the Criminal Injuries Compensation Act 2003 (WA).
In Collector of Customs v Agfa‑Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 the High Court approved the speech of Lord Simon of Glaisdale in Maunsell v Olins [1975] AC 373, 391, including the following:
In other words, statutory language must always be given presumptively the most natural and ordinary meaning which is appropriate in the circumstances.
In Collector of Customs v Agfa‑Gevaert (397) the High Court also approved the following statement by Lord Hoffmann in R v Brown [1996] AC 543, 561:
The fallacy in the Crown's argument is, I think, one common among lawyers, namely to treat the words of an English sentence as building blocks whose meaning cannot be affected by the rest of the sentence … This is not the way language works. The unit of communication by means of language is the sentence and not the parts of which it is composed. The significance of individual words is affected by other words and the syntax of the whole.
Section 37(1) and (3) of the Criminal Injuries Compensation Act 2003 provides:
37.No award if injury is from motor vehicle in certain cases
(1)In this section ‑
motor vehicle has the meaning given by the Motor Vehicle (Third Party Insurance) Act 1943.
…
(3)An assessor must not make a compensation award in favour of -
(aa)an injured victim in respect of the injury or any loss suffered by the victim; or
(ab)the personal representative of a deceased victim, in respect of any loss suffered by a close relative of a deceased victim,
as a consequence of the commission of an offence if satisfied that the injury or death was caused directly by, or by the driving or other use of, a motor vehicle unless -
(a)the motor vehicle was used for the purpose of committing the offence; and
(b)the offence is a crime.
Section 3 defines 'offence' and 'victim' as follows:
alleged offence means a crime, misdemeanour or simple offence of which no person has been convicted;
offence means an alleged offence or a proved offence;
proved offence means a crime, misdemeanour or simple offence of which a person has been convicted;
victim means a person who suffers injury, or who dies, as a consequence of the commission of an offence.
The applicant contends, in substance, that s 37(3)(a) of the Criminal Injuries Compensation Act should be construed in accordance with the construction placed upon predecessor legislation by Commissioner Greaves in Caddy v Assessor of Criminal Injuries Compensation (1997) 18 SR (WA) 1. Commissioner Greaves' decision was summarised, accurately, by her Honour in the court below in Devos v James [2009] WADC 161 as follows:
Commissioner Greaves came to the conclusion that the words 'for the purpose of committing the offence' meant 'with the intent of doing the act which comprises the offence'. In Caddy the brother of the applicant for criminal injuries compensation was killed as a result of a collision between the brother's vehicle and a stolen vehicle driven by the offender. The offender entered an intersection at high speed against a red light and was convicted of manslaughter. In applying his interpretation of the relevant words to the facts of the case Commissioner Greaves came to the conclusion that the applicant for compensation had to establish on the balance of probabilities that the offender drove or otherwise used the motor vehicle 'with the intention, in this case, of unlawfully killing the brother of the appellant'. Commissioner Greaves therefore interpreted the words 'for the purpose of committing the offence' as not only requiring a subjective mental element by the offender, namely intent, but also that the offender intended to kill the brother of the applicant. This finding was made even though intent to kill is not an element of the offence of manslaughter [18].
In Caddy, the second respondent represented himself. The extent to which Commissioner Greaves construed the predecessor equivalent of s 37(3) is found in the following passage of his Honour's reasons for judgment:
Counsel for the Chief Executive Officer submitted that upon a proper construction of s 24B of the Act a motor vehicle is not driven or otherwise used, 'for the purpose of' committing an offence unless the offender drives, or otherwise uses, the motor vehicle with the intent of doing the act which comprises the offence which is said to have caused the injury or loss for which compensation is claimed. I accept that submission.
Section 24B(1) excludes claims for compensation under the Act in circumstances where the injury or loss giving rise to the claim is directly caused by, or by the driving of a motor vehicle. Section 24B(2) creates an exception to the prohibition in s 24B(1) of the Act. That exception occurs in circumstances where a person suffers injury or loss, within the meaning of the Act, in consequence of an offence which is a crime as defined by s 3 of the Criminal Code.
In addition, the applicant for compensation must establish on the balance of probabilities that the offender drove or otherwise used the motor vehicle with the intention, in this case, of unlawfully killing the brother of the appellant, whose death is assumed to have caused the relevant loss for which compensation is claimed. Section 24B(1) of the Act excludes all other loss caused by, or by the driving of a motor vehicle whether as a result of negligence or otherwise.
The appellant in this case conceded that the evidence does not establish that the respondent intended to cause the death of his brother by the driving or other use of the motor vehicle concerned. In my opinion, therefore, the loss which the appellant claims to have suffered in consequence of the commission of the offence of manslaughter or stealing a motor vehicle is not compensable under the Act.
It is apparent that Commissioner Greaves read the words 'caused by the driving or other use of the motor vehicle for the purpose of committing the offence to which the application relates' as 'caused by the driving or other use of the motor vehicle where the offender drives, or otherwise uses, the motor vehicle with the intent of doing the act which is said to have caused the injury or loss for which compensation is claimed' (emphasis added).
In my view, the construction adopted by Commissioner Greaves, for which the applicant contends, ought not be accepted. First, there is no direct reference to 'intent' or 'intention' in s 37(3). Those words, commonly associated with the criminal law, do not appear in the words used by Parliament. They are conspicuous by their absence. Secondly, had the word 'with' been used to link the words 'driving or other use of the motor vehicle' to the words 'the purpose of committing the offence', it may have been easier to infer that the wording of s 37(3)(a) is impliedly concerned with the state of mind of the offender. However, the word 'with' is also absent.
Thirdly, in ordinary parlance, the words 'for the purpose of committing' an offence are entirely apt to describe, in relation to an inanimate object, the means by which an offence has been committed. For example, in ordinary parlance, it may be said that a gun was used for the purpose of committing an armed robbery. Although it is implicitly understood (in the example given) that a human agent was involved in the armed robbery, the statement that a gun was used for the purpose of the armed robbery directs attention to the objective use to which the gun was put, and not to the state of mind of the robber.
Fourthly, Commissioner Greaves' construction appears to me to be at variance with the structure of s 37(3)(a), and at variance with the structure of s 37(3) as a whole. In s 37(3)(a), the subject is the motor vehicle, because the sentence is in the passive voice. The words 'was used' form the predicate, which contains the verb. The phrase 'for the purpose of committing the offence' is an adverbial clause of purpose which modifies or describes the verb. If the sentence had read, instead, 'a motor vehicle was used by the offender for the purpose of committing the offence', then the 'offender' would have been the object of the sentence and it would have been more amenable to a construction which focuses on the offender's intention. The structure of the first of the two enumerated limbs of the exception (ie, the structure of s 37(3)(a)) invites attention to the objective use to which the vehicle is put, and not to the subjective state of mind of the person using the vehicle. For example, on this construction (which I will call the 'objective construction'), if a vehicle is used in a ram raid to steal property, the offence of stealing is objectively the use to which the vehicle is put. That example may be contrasted with the case of a person who is assaulted and who, when driving a vehicle to hospital in the resultant dazed state, blacks out and has an accident, causing injury to a pedestrian. Whilst the vehicle is the direct cause of the injury to the pedestrian, and whilst it may be said that the pedestrian's injury arose as a consequence of the offence of assault, the vehicle could not be regarded as having been used for the purpose of the offence of assault. Similarly, a bystander may be struck by a driver who is fleeing from an offender who has threatened to kill or endanger the driver (contrary to the provisions of ch XXXIIIA of the Criminal Code). The bystander may be injured as a consequence of the offence of threat committed against the driver, but the motor vehicle could not be said to have been used for the purpose of committing that offence.
The structure of s 37(3) also lends support to the objective construction, in that it is unlikely that s 37(3)(a) was intended to address within one limb, two separate topics (objective use and subjective intention) when the exception which is prefaced by the word 'unless', is given expression by two separately enumerated limbs.
Fifthly, the commissioner has, in effect, substituted for the word 'offence', the words 'the act which is said to have caused the injury'. This is done, no doubt, in an attempt to accommodate offences in which intent is not an element of the offence (eg, manslaughter and the Caddy case). However, the additional and replacement words are unnecessary if the provision is given the objective construction referred to above.
Sixthly, it is important to notice that the word 'offence' when used throughout the Criminal Injuries Compensation Act is not confined to offences other than ones in which the use of the motor vehicle is an element of the offence (for convenience, I will refer to offences in which the use of the motor vehicle is an element of the offence as 'driving offences'). Indeed, neither party in this application suggested that the word 'offence' in s 37(3) does not include driving offences.
Offences involving the use of a motor vehicle are principally located in the Road Traffic Act1974 (WA). Most of the offences in the Road Traffic Act are not 'crimes'. The only offences in that statute which refer to the commission of a 'crime' are s 54(3), s 56(2), s 59(1), s 59A(3a) and s 67(3a). Section 56(2), s 59(1) and s 67(3a) are offences in relation to incidents in which there is death, 'bodily harm' or 'grievous bodily harm'. Section 54(3) is concerned with a driver's failure to stop and assist where the incident has involved occasioning 'bodily harm' to another person. Section 59A(3a) is concerned with, in effect, an offence occasioning 'bodily harm' where the driver is driving under the influence and incapable of being in proper control of the vehicle, or in a manner that is dangerous to the public or to any person, in specified circumstances of aggravation (which involve, in effect, unlawfully driving without the consent of the owner, driving at a speed in excess of 45 km per hour above the speed limit, and where the vehicle is the subject of a police pursuit). By s 49AA, each of 'grievous bodily harm' and 'bodily harm' has the meaning given to it in the Criminal Code. Other offences in the Road Traffic Act1974, such as dangerous driving causing bodily harm under s 59A in the absence of circumstances of aggravation, reckless driving under s 60, dangerous driving under s 61, careless driving under s 62 and various offences for driving under the influence in div 2 of pt V of the Road Traffic Act, are not crimes.
Accordingly, whilst the Criminal Injuries Compensation Act does not in its general application exclude offences which are 'driving offences', s 37(3)(b) operates, amongst other things, to exclude compensation in respect of injuries received in consequence of the commission of driving offences which are not crimes. Thus, the objective construction of s 37(3)(a) operates harmoniously with s 37(3)(b) in relation both to driving offences and other offences. With respect to the former, it operates to exclude compensation in various offences under the Road Traffic Act, but not others - for example, s 59(1) and s 59A(3a), neither of which involve intent as an element of the offence.
These considerations combine to indicate that the language of s 37(3)(a), 'in its most natural and ordinary meaning' (Maunsell v Olins), is addressing a single topic in an objective sense, namely, whether the motor vehicle was used to facilitate the commission of the offence (whether a driving offence or otherwise), and is not addressing the additional topic of the subjective mind of the offender.
The applicant's approach to construction, by replacing the word 'for' with 'with', 'purpose' with 'intent', and 'offence' with 'the act which is said to have caused the injury' seems to me to stem from parsing the statutory language in a manner which does not accord with the principles in R v Brown, referred to by the High Court in Collector of Customs v Agfa‑Gevaert.
The applicant nevertheless contends that the construction adopted by Commissioner Greaves is the preferable construction because otherwise the words 'for the purpose of' would be tautological. It is, of course, well recognised that a court construing a statutory provision must strive to give meaning to every word of the provision so that 'no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction, they may all be made useful and pertinent': R v Berchet (1690) 1 Show KB 106 [89 ER 480] cited by Griffith CJ in Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405, 414; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [71].
Nevertheless, in my view, the argument based on tautology is not compelling in this case. The suggestion that the provision could simply have said, relevantly, 'caused by the driving or other use of the motor vehicle in committing the offence' does not, in my opinion, establish tautology. The word 'in' itself may mean 'object or purpose' (Macquarie Dictionary). The fact that a statute could, logically, use different words or even fewer words to attain the same end does not itself necessarily mean that the words actually used are superfluous.
It may, nevertheless, be accepted that on the objective construction, the words 'for the purpose of committing the offence' do not, logically, add much, other than perhaps emphasis, where the offence is a driving offence. However, once it is recognised that the word 'offence' applies to offences beyond driving offences, it cannot be said that, on the objective construction, the words in s 37(3)(a) are superfluous or otherwise devoid of meaning. Moreover, insofar as the words appear to be unnecessary in their application to driving offences, that, in my view, is not a sound basis for infusing, in effect, the whole of s 37(3)(a) with the requirement of subjective intention. The requirement to prove intention, in relation to offences where intent is not an element of the offence, involves imputing to the legislature an intendment that victims of crime must not only prove the offence, but also a matter additional and extraneous to the commission of the offence, namely, the criminal's state of mind. It is difficult to discern that intendment from the language of s 37(3)(a) and the structure of s 37(3), for the reasons given earlier. It is also to be recalled that the word 'offence' includes 'alleged offence' and the system of compensation is designed to compensate victims of an 'alleged offence': see ss 13 ‑ 17 of the Act. These provisions, in my view, confirm that it is unlikely that Parliament intended that an applicant for compensation should bear the onus of establishing intent as a precondition to recovering compensation.
There is no doubt that s 37(3)(a) presents difficulties in construction. Nevertheless, the objective construction accords more, it seems to me, with the 'general purpose and policy' of the provision and operates with greater 'consistency and fairness' than Commissioner Greaves' construction, relied upon by the applicant (see Commissioner for Railways (New South Wales) v Agalianos [1955] HCA 27; (1955) 92 CLR 390, 397).
Finally, I note that the construction of s 37(3)(a) which I favour does not involve 'double recovery' where the applicant under the Criminal Injuries Compensation Act also receives other compensation or damages for the injury or loss in question: see s 42(3), s 42(4) and s 68 of the Criminal Injuries Compensation Act. Whilst, by virtue of s 3A, 3C and 3D of the Motor Vehicle (Third Party Insurance) Act 1943 (WA), there are certain statutory limitations on the awarding of damages in respect of bodily injury to a person directly caused by, or by the driving vehicle of, a motor vehicle, s 7 of the Criminal Injuries Compensation Act provides that subject to s 42(3), s 42(4) and s 68 of that Act, that Act must be construed as being in addition to, and not in derogation of, any other law.
I would discharge the orders nisi.
HALL J: I have had the benefit of reading the reasons of Buss JA in draft. I have come to a different conclusion regarding the interpretation of s 37(3)(a) of the Criminal Injuries Compensation Act 2003 (WA). In my view, for the reasons that follow, the application for a writ of certiorari to remove and quash the decision of the primary judge should be granted.
The factual background and relevant statutory provisions are detailed in Buss JA's reasons and, accordingly, it is unnecessary for me to repeat them. The issue is to what extent the prohibition on making a compensation award where the victim has incurred injury as a consequence of use of a motor vehicle is limited by s 37(3)(a).
The structure of s 37 is that it mandates a general prohibition on the making of compensation awards where the victim of an offence has incurred injury as a consequence of the driving or other use of a motor vehicle, but provides for an exception to this prohibition. The exception will arise where two specified conditions are met. These conditions are that the motor vehicle must have been used for the purpose of committing the offence (s 37(3)(a)) and that the offence in question must be a crime (s 37(3)(b)). Both conditions must be satisfied for the exception to arise.
In the present case, the appellant submitted that neither of the conditions was satisfied. As regards the proper interpretation of the 'crime condition' (s 37(3)(b)) I agree with Buss JA. However, for the exception to be availed of the other condition must also be met. The interpretation of s 37(3)(a) is thus, in my view, of critical importance in the determination of this matter.
The word 'purpose', used as a noun, as here, may have a number of meanings. The two which are open for consideration are:
(1)'an intention or aim'.
(2)'the reason for which something is done or made, or for which it exists' (Shorter Oxford English Dictionary)
The first meaning refers to a state of mind. The second meaning does not necessarily do so; an inanimate thing may have a purpose, a reason for existence, independently of any individual person. Examples of this which come readily to mind are lighthouses, doorbells and telephones. For ease of reference I will refer to the first meaning as subjective and the second as objective.
The conjunction of the word 'purpose' with an inanimate object does not necessarily mean that an objective meaning is intended. In many (if not all) cases where the word is used in relation to an inanimate object that object will be a manufactured or constructed thing. Such things may serve an objective purpose, but they may also be used by a person for a purpose of that person. Accordingly, the intended meaning will depend upon the grammar and context in which the word is used.
It has been suggested that the word 'purpose' can be used in some circumstances to indicate that something has been used to facilitate the attaining or execution of a particular goal or task. Arguably this is only a reformulation of the subjective meaning as reference to a goal or task implies that a person is seeking to achieve that goal or undertake that task. If, however, this suggested meaning is that a thing is merely used or employed in an objective sense, then a problem arises. To apply that meaning here would be to incorporate an element of tautology into s 37(3)(a). It would be unnecessary to say that the vehicle 'was used' and 'for the purpose' if the latter phrase had that meaning. If the words 'for the purpose' meant nothing more than the motor vehicle was utilised in the execution of a goal then those words would become redundant. They add nothing because the same meaning would be achieved simply by saying that the motor vehicle was used in committing the offence.
Nor does it seem to me that a distinction can be drawn between a vehicle being used incidentally and one being used in a way that demonstrates a connection in fact with the commission of an offence. This is for two reasons. First, the general prohibition relates to injuries not only suffered as a consequence of the commission of the offence but 'caused directly' by driving or use of a vehicle. This implies that the prohibition applies where commission of the offence involved use of a vehicle. The material connection between use of a vehicle and the commission of the offence seems to necessarily flow from this. That being so, an objective interpretation of 'purpose' in s 37(3)(a) would be inconsistent with the general prohibition. Secondly, though s 37 is not specifically confined to driving‑related offences, that is the area of its obvious application. It is difficult to think of any driving‑related offence that does not involve a factual connection between the use of a vehicle and the commission of the offence. Thus any distinction between mere use and use to facilitate a goal would be of no consequence in practical terms.
Turning to the text of s 37(3)(a), the words 'the motor vehicle was used for the purpose of committing the offence' relate the word 'purpose' to the words 'used' and 'committing'. In my view, this clearly implies that the purpose is that of the person who commits the offence and thereby uses the vehicle. The conjunction of the verbs 'used' and 'committing' with the noun 'purpose' is consistent with the latter word referring to the intention of the offender. It is not consistent with 'purpose' meaning the reason for the existence of the motor vehicle.
The reference to 'used' must be to the words immediately preceding s 37(3)(a) which refer to the driving or other use of the motor vehicle. This can only be a reference to the driving or other use of the motor vehicle by the offender. In these circumstances, the words 'was used' must mean 'was used by the offender' and make it necessary to then read 'the purpose' as being the purpose of that offender.
It is true that the phrase in s 37(3)(a) adopts the passive voice. No doubt it would have been simpler had the phrase read 'the offender used the motor vehicle for the purpose'. However, the use of a passive voice does not necessarily imply that there is no agent. Indeed, critics of the passive voice usually refer to vagueness and awkward construction as reasons why it should be avoided rather than because it favours a particular meaning: Oxford Companion to the English Language. No doubt the passive voice can be employed to obscure the identity of the agent of an action. This is one of the reasons that in his essay Politics and the English Language George Orwell proposed the principle 'never use the passive where you can use the active'. Even in such a case, however, use of the passive voice does not favour an interpretation that there is no actor for the act described.
Another reason for coming to the conclusion that s 37(3)(a) refers to the subjective purpose of the offender is that it is clearly intended to be a limitation upon the general prohibition. If it was to be read as referring merely to an objective purpose its limiting effect would become non‑existent. It is difficult to imagine a circumstance in which injury is caused by the driving or other use of a motor vehicle which does not objectively involve use of a motor vehicle in committing the offence. It is important to favour an interpretation that can, so far as possible, give meaning to all of the words of the statute: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 382 [71] (McHugh, Gummow, Kirby and Hayne JJ). In my view, only an interpretation that the words 'for the purpose' refer to the subjective purpose of the offender can meet this objective.
As Buss JA points out, the word 'purpose' has been considered in respect of other statutory provisions. However, in my view, the differences in those provisions make other cases of limited assistance. In Peate v The Federal Commissioner of Taxation of the Commonwealth of Australia (1964) 111 CLR 443 the issue was whether an arrangement entered into by a taxpayer was in breach of s 260 of the Income Tax and Social Services Contribution Assessment Act 1936 ‑ 1960 (Cth) (as the Income Tax Assessment Act was then called). That section declared void any arrangement that had or purported to have the purpose or effect in any way, directly or indirectly, of avoiding any liability imposed by the Assessment Act. At 469 Kitto J said that what was critical was the purposes or effects of the arrangement itself rather than the purposes in the minds of the parties to that arrangement. His Honour referred in that regard to Newton v The Federal Commissioner of Taxation (1958) 98 CLR 2.
Newton was also a case relating to s 260. On appeal to the Privy Council from the High Court it was held that s 260 was not concerned with the motives of individuals. Lord Denning (delivering the judgment of their Lordships) said:
It is not concerned with their desire to avoid tax, but only with the means which they employ to do it. It effects every 'contract, agreement or arrangement' (which their Lordships will henceforth refer to compendiously as arrangement) which has the purpose or effect of avoiding tax. In applying the section you must, by the very words of it, look at the arrangement itself and see which is its effect - which it does - irrespective of the motives of the person who made it (8). (emphasis in original)
In Newton it was significant that the word 'purpose' was specifically referable to 'it', being the arrangement made or entered into by the taxpayer. It was also apparently important that 'purpose' was used in conjunction with 'effect'. That contrasts with the provision in issue here. Section 37(3)(a) does not read as referring to the purpose of the motor vehicle in the course of events that led to the commission of an offence. Rather, it refers specifically to the use of that motor vehicle, which can only mean the use by the offender.
The evident purpose of s 37 is to limit access to compensation awards by victims who are eligible to obtain compensation pursuant to the Motor Vehicle (Third Party Insurance) Act 1943 (WA) (Insurance Act). That broad objective is confirmed by the second reading speech to an amending act that introduced a previous provision in the same terms as s 37 and that is extracted in Buss JA's reasons. No specific reference was made in that speech to the condition that is contained in s 37(3)(a). However, the factual circumstances of this case serve to illustrate that if that condition is interpreted as referring only to the objective use of a motor vehicle it will not prevent applications where the offence was a crime notwithstanding that compensation has already been sought and paid under the Insurance Act.
I accept that there would be no risk of double recovery given that an insurance entitlement would be deducted from a compensation award: s 42 Criminal Injuries Compensation Act. However, it seems reasonable to infer that the Insurance Act was intended both to make provision for those who suffer injuries in traffic accidents and to provide some limits on the amounts recoverable. The effect of those limits could be avoided if additional compensation could be sought under the Criminal Injuries Compensation Act.
It is true that many offences that might be committed in circumstances constituting civil negligence will not qualify as crimes and thus the condition in s 37(3)(b) will not be met. However, the offence of dangerous driving causing grievous bodily harm is a crime and may be committed in circumstances that would qualify as negligence under the Insurance Act. This case is such an example. Whilst there is no element of negligence required to be proved in respect of the offence, the same facts and circumstances may result in conviction for such an offence and a finding of civil liability for negligence.
If the legislature considered that the object referred to could be achieved by limiting the prohibition on compensation awards to those offences that were not crimes then s 37(3)(b) would have been sufficient. Clearly, however, it was envisaged that there would be cases involving offences which, although they were crimes, ought not be exempted from the general prohibition. It is in this respect that s 37(3)(a) would have some work to do. In my view, it is an additional requirement that must be met and which is intended to serve the purpose of excluding cases that might otherwise be compensable for negligence. This weighs in favour of the interpretation I have suggested above.
As against the interpretation I have suggested it might be said that to require proof of a subjective purpose of the offender would be to effectively incorporate an additional element in some cases. For example, in the present case, it would require proof that the offender had the purpose of using the vehicle to commit the offence of dangerous driving causing grievous bodily harm though no element of specific intent is required for proof of that offence. I accept that that is the effect, but it does not necessarily suggest that an alternative interpretation should be favoured.
As I have already pointed out, the purpose of s 37(3)(a) appears to be to limit the range of circumstances in which compensation is payable. Furthermore, it does not follow that because a person has been convicted of a driving offence that does not involve proof of a specific intent that they did not in fact have any purpose in using the vehicle in the commission of that offence. The procedure, onus and standard of proof required to prove that a motor vehicle was used for the purpose of committing an offence when making a victim compensation claim is different from that required to prove an offence in a criminal court. In my view, s 37(3)(a) ensures that even in those cases where an offender is convicted of a crime that does not involve any specific intent, compensation under the Criminal Injuries Compensation Act is not payable unless it is proved by the claimant that the purpose of the offender in using the car was to commit the offence.
I have also taken into account that a compensation award may be made in circumstances where no offender has been convicted: s 13, s 14, s 15, s 16 and s 17. I accept that in these circumstances it may be difficult for an applicant for a compensation award to prove that an alleged offender had the requisite subjective purpose. This, however, may well depend on the circumstances. It would not necessarily be impossible for state of mind to be proven. It may well depend upon the reasons why a conviction was not recorded. If, for example, the offender died before the criminal proceedings were resolved it may still be possible to prove state of mind on the basis of the evidence that was collected as part of the police investigation. It should also be borne in mind that state of mind is frequently proven as a matter of inference from all of the available circumstances rather than as a result of statements or admissions made by the accused. In any event, the existence of this difficulty does not persuade me that s 37(3)(a) should be interpreted in a way different to that I have suggested.
The interpretation I have proposed is also consistent with the District Court decision in Caddy v Assessor of Criminal Injuries Compensation (1997) 18 SR (WA) 1. That decision was made before the earlier Act was repealed and replaced with the existing 2003 Act. In my view, the decision in that case was not clearly erroneous and the presumption that where language of a statute has received judicial interpretation and Parliament again employs the same language in a subsequent statute, that Parliament intended the relevant language to be given the meaning which has been judicially attributed to it should be applied: Salvation Army Property Trust v Shire of Ferntree Gulley [1952] HCA 4; (1952) 85 CLR 159, 174 (Dixon, Williams and Webb JJ).
Accordingly, for the reasons I have given, in my view, Schoombee DCJ was in error in coming to the conclusion that the assessor had jurisdiction to make a compensation award in the circumstances of this case. In particular, it was an error to conclude that s 37(3)(a) only required that the motor vehicle was used in the commission of the offence as a consequence of which an injury was caused.
Given my conclusion, it is necessary for me to consider whether relief should be granted. As I am in the minority, and it was unnecessary for Buss JA and Murphy JA to consider this issue, I will state my reasons briefly.
The proceedings in the District Court were by way of appeal from an assessor. There is no right of appeal from the decision of a District Court judge on such an appeal: s 56. In these circumstances, the only relief that may be available is by way of judicial review. An inferior court will fall into jurisdictional error if it mistakenly asserts the existence of jurisdiction or if it misapprehends the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist: Craig v South Australia (1995) 184 CLR 163, 177 ‑ 178 and Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531, 172 ‑ 174 [66] ‑ [72].
In the present case, in my view, the primary judge mistakenly asserted the existence of jurisdiction to award compensation where none existed. Furthermore, her Honour misapprehended the nature and limits of her functions and powers by misconstruing s 37(3)(a) of the 2003 Act. Accordingly, the judge committed a jurisdictional error of law which will ground certiorari.
Although s 80 of the District Court of Western Australia 1969 (WA) limits the application of certiorari in respect of District Court judges, it refers to 'judgment or orders'. The decision in this case was not a judgment or order to which s 80 applies. When exercising the jurisdiction conferred by the Criminal Injuries Compensation Act the District Court acts as an inferior court of record: s 8 of the District Court of Western Australia Act. There is no provision which gives the District Court the authority to make final and binding decisions about the extent of its own jurisdiction in relation to matters under the Criminal Injuries Compensation Act or which makes an order of the District Court under that Act valid and binding until set aside.
Section 80 of the District Court of Western Australia Act refers to a judgment or order of a District Court judge, not a purported judgment or order. Provisions which prohibit the grant of certiorari have consistently been interpreted as being referable to those circumstances where the ground for the issue of certiorari is an error of law on the face of the record. Certiorari for jurisdictional error remains untouched by such provisions: Plaintiff S157 v The Commonwealth [2003] HCA 2; (2003) 211 CLR 476, 501 ‑ 507; Talbot v Lane (1994) 14 WAR 120, 132 ‑ 134; Spanos v Lazaris [2008] NSWCA 74, [14] ‑ [15]; Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602, 635; Kirk v Industrial Relations Commission of New South Wales.
In my view, therefore, certiorari is available in the circumstances of this case. I am also of the view that there would be no discretionary reason for refusal of the relief. Accordingly, for the reasons I have given I would have granted the application, ordered that the order nisi for a writ of certiorari be made absolute, with the effect of the removing and quashing the decision of the primary judge.
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