State of South Australia v Nguyen

[1992] HCATrans 90

...

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• -,~·~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A36 of 1991

B e t w e e n -

THE STATE OF SOUTH AUSTRALIA

Applicant

and

MA.NH THUONG NGUYEN and KIM

BANG TRAN

Respondents

Application for special leave

to appeal

BRENNAN J
TOOHEY J

McHUGH J

Nguyen 1 13/3/92

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 13 MARCH 1992, AT 9.33 AM

Copyright in the High Court of Australia

MR J.J. DOYLE, QC, Solicitor-General for South Australia:

May it please the Court, I appear with my learned

friend, MR W.P. WHITE for the applicant.

(instructed by the Crown Solicitor for South

Australia)

MR S.W. TILMOUTH, QC:  May it please the Court, I appear

with my learned friend, MS D.J. ESZENYI, for the

respondent. (instructed by Camatta Lempens)

BRENNAN J: Yes, thank you, Mr Solicitor. The Registrar of

the Court has been informed by Messrs Johnston

Withers, solicitors for the second respondent in

these proceedings, Kim Bang Tran, that they have

been instructed not to appear on the special leave

application. Yes, Mr Solicitor.

MR DOYLE:  If the Court pleases. The point on which we seek

special leave in this matter is the state of
section 7(9)(b) of the Criminal Injuries

Compensation Act. Our submission is that the

majority was wrong in holding that the attack by

the victim, as I may call him, on the defendant was

not a relevant circumstance under that provision

or, if it was relevant, that it was insignificant.

TOOHEY J:  Mr Solicitor, is that the only point on which

special leave is sought?

MR DOYLE: It is, Your Honour.

TOOHEY J:  So the broader questions of public policy and so

on relevant to the reduction or disqualification in

respect of the incident which gave rise to the

claim we can put to one side, can we?

MR DOYLE:  To this extent, Your Honour: although

Justice Olsson said that our submissions raised

public policy in a very broad fashion, our

submission was all along simply that it is a matter

of what is relevant and what we put was that

sometimes what is relevant may look like public policy but the argument was never advanced as a separate argument under the head of public policy

and any submissions were put were put all along

under the rubric of circumstances relevant. So

public policy as an independent head is not

advanced.

TOOHEY J: But to the extent that it arises, I understand

from what you say that it arises only in relation

to the later incident.

MR DOYLE: That is so, Your Honour. Before the Full Court

the question of the extent of the reduction because

of conduct contributing under subparagraph (a) was

Nguyen 2 13/3/92

raised, but we do not suggest that that is a point

warranting the grant of special leave. So the only

matter which we suggest warrants the grant of

special leave is the issue under subparagraph (b).

TOOHEY J: Yes, thank you.

MR DOYLE:  Your Honours, in relation to subparagraph (b), in

brief our submissions our these, or the submissions

we would put if leave was granted. First of all,

that there is simply no reason to restrict

subparagraph (b), as the majority did, to

circumstances analogous to those in

subparagraph (a). That was basically the approach

which the majority took and we submit that as a

matter of first impression, when one looks at the

section, there is really no reason to approach it

that way.

BRENNAN J:  Where is the passage in the judgment which

indicates that, Mr Solicitor?

MR DOYLE: Well, probably three passages, Your Honour.

Page 54, line 10 - there Justice Olsson is

referring to a Victorian case, but that dealt with
a section which was, to all intents and purposes,

identical and it is clear that he was indicating

his reasoning in relation to our section and so he

said it had "to be read ejusdem generis with the

phraseology immediately preceding it". Page 54,

line 30, he says:

Whilst there is no doubt that

sub-paragraph (b) of sub-section (9) clearly

contemplates a sphere of consideration wider

than that specifically identified in

sub-paragraph (a) it must, nonetheless, take

its flavour from the section as a whole.

And then, page 55, line 30 he gave an example - and he is referring to an example given by the trial

who gets injured in a mantrap while he is tending	judge which was a person tending a marihuana crop
the crop and he says, "Well, that is analogous to
(a) in the sense that it is a circumstance relevant to the circumstances in which the injury was
suffered but that is really as far as (b) goes",
and so whilst he never made it very clear - and
perhaps, in fairness to him, it is not easy in
advance to say just what the scope of (b) is - what the scope was, it was clear that he was restricting
it in some way to circumstances analogous to (a)
and our submission is that that is wrong.

Could I also say, Your Honours, while those

pages are before you, that they indicate what, in

our submission, are probably two other errors in

Nguyen 3 13/3/92

the reasoning. The court, when it looked at

subparagraph (b), seems to have read the word
"relevant" as "relevant to the injury''. That is
the impression one gets from their reasoning,
whereas, in our submission, the natural reading of

it is "circumstances relevant to the application".

So while we challenge, in any event, the

holding of the majority that the ejusdem generis

principle applies, it is also our submission that

their reasoning appears to have been flawed in that

sense, that they read "relevant" as relating to

injury rather than relevant to the application.

BRENNAN J: Is that matter of inference only though from the

terms of the judgment? In an application for

special leave, one can understand that if there is

a construction placed upon a statute of importance

and the question turns out to be one of importance,

one looks at the terms of the judgment to see the
misapplication of the section. But one does not
try to tease out from a judgment a misapplication

in order to found an application for special leave.

MR DOYLE:  No, Your Honour. Our fundamental point is that

this is a section which we would submit in the

scheme of the Act is an important section - or

subparagraph which is important - and which opens

up for consideration a wide range of circumstances,

and that the court has fundamentally erred in

giving the section really quite a limited scope in

simply reading it as applying to a restricted range
of matters and as excluding matters which, in our

submission, should in principle be relevant and, as

happened here in particular, we would submit,

conduct of the applicant after the injury is

suffered which in no way could be said to be within

(a), certainly no way contributing directly or

indirectly, and in no way analogous. We submit

that subparagraph (b) does go into that further

field, and that in principle the court was wrong in

saying that paragraph (b) simply did not reach that far.

BRENNAN J:  On the positive side of it, what do you say is

the relevance of what happened subsequently?

MR DOYLE:  Your Honour, in our submission, what is relevant

here - and one can put it perhaps broadly or

narrowly - the broad approach to the section is to

say simply, is the applicant a person who merits

the receipt of benefit from the public funds, but

that is perhaps just to restate the issue. What we

submit is that it is relevant that this applicant

for compensation was prepared, after the event, to

take the law into his own hands and himself to

inflict injury upon the very person in respect of

Nguyen 4 13/3/92

whose conduct he now claims compensation, and
whether one says that was a revenge type action, as
we submitted and Justice Matheson accepted, or
whether one says it was because he still feared the
man and thought further threats were emanating from

him, is neither here nor there. In our submission,

it is relevant to the application that this is an

applicant who was prepared subsequently to take the

law into his own hands. So he broke the law. And

the other relevant feature is that he inflicted

injury on the very person in respect of whose

conduct he now claims compensation.

TOOHEY J:  I am not sure what you mean by the first of those propositions, Mr Solicitor. When you say he

subsequently took the law into his own hands, do

you mean that if he had committed offences, even

say comparable offences, but not upon the person

who had injured him, that would be a relevant

consideration?

MR DOYLE:  It may well be, Your Honour. I would submit that

I should not have to say, as it were in global terms, what is the scope of (b) because, in the

end, the word is relevant. But in our submission

conduct of an applicant is relevant and, in

particular, conduct which shows a disregard of the

law. But this case, we submit, is an appropriate

one for leave because it raises the point so

sharply. What we have is conduct in breach of the

law; conduct which is similar to what Tran did to

the applicant - I mean similar in the sense of a

personal assault - and it involves the person who

seeks the compensation having made an attack on the

very person in respect of whose conduct he now

seeks the compensation.

So we submit this particular case throws the point up in to very sharp focus. We would submit,

more broadly, that unlawful conduct generally can be relevant, but again, we do not submit for a	moment, as the majority seem to think, that - and	they gave this example - if a man is walking down
Rundle Mall, he is a housebreaker, and he gets
injured, that then he does not get compensation
under this Act. That, of course, may cause
Your Honours to say to me, "Well, why not?" and I
can really say that I would rather not endeavour to
answer that in this particular application, but
just endeavouring to indicate the general scope of our submissions, we submit unlawful conduct is
relevant but we are not submitting that a person who has behaved unlawfully at some stage automatically misses out on compensation under the
Act.

Nguyen	13/3/92
BRENNAN J:	What makes this point one of general public

importance?

MR DOYLE:  Your Honour, that was very faint. Was

Your Honour asking me what makes it a point of

general importance?

BRENNAN J: Yes.

MR DOYLE:  Your Honour, two or three things. First of all,

that on our approach this subparagraph is important

in the operation of this Act and the view which the majority has taken has relegated it to a relatively peripheral position. Secondly, Your Honour, there

are similar provisions - almost identical - in

three States: in Queensland and Victoria where the

provision is almost word for word, and in New South

Wales, where the relevant subsection is somewhat

longer but has both features in it, that is conduct

contributing and then other circumstances which are

relevant.

So, in our submission, it is a central

provision in this Act - or, on our argument it is;

it is a provision which is found in the enactments

of three other States. I think that is about as

far as I can take it on that point, Your Honour.

BRENNAN J: At the end of the day, if you were granted

special leave and if your appeal was successful,

you would have a judgment which said that if a

person claiming compensation for personal injury in

an assault case has taken the law into his own

hands and has inflicted an injury upon his

assailant, at some subsequent time that fact is

relevant.	Now, is that a matter of general public
importance?

MR DOYLE: It is, Your Honour, because what such a judgment

would indicate, in our respectful submission, is

that the majority were wrong in their approach to
subparagraph (b).	We do not suggest for a moment

that this - who knows what the Court may be able to

do - but we are not suggesting that the Court will

necessarily be able, as I said earlier, to say in

an encyclopaedic sense when and where the section

operates.

But this application, I submit, sharply raises

the issue of principle, because the Full Court has

said that matter is simply not relevant. It has

nothing to do with subparagraph (b), and so it is
not a relevant issue, and one would infer from that

judgment that generally, conduct of the applicant

after the injury will never be relevant. And in

our submission, although the particular facts

before the court are confined and the judgment of

Nguyen 6 13/3/92

the court on the particular facts may not give

general guidance, it would, at least to this

extent, make it plain that subparagraph (b) does
reach to the sort of conduct to which we refer, and

in particular to conduct of the applicant after the

injury is suffered which, by no stretch of the

imagination, can be brought within (a). So, in our
submission, the point is clearly there, and at the
moment as the majority judgment stands, there would
be no point endeavouring to bring before the Court

events occurring after the injury is sustained.

TOOHEY J: Well, you would really have to express it in some

proposition such as conduct by the applicant
subsequent to the sustaining of the injury giving
rise to the claim for compensation does not thereby
cease to be a relevant circumstance for the purpose
of paragraph (b). It would have to be a sort of

negative proposition that you would be asking the

Court to uphold.

MR DOYLE: Well, yes Your Honour, although when one moves

from the particular case to universal, we would

argue that there may also be conduct prior to the

injury, which again you could not bring within (a),

it would in no sense be conduct directly or

indirectly contributing, but again we would say, it

might well fall within (b) and, this may not be a

good example but, if one imagines a man who has

assaulted people - this is extreme, but say he has
assaulted people once a week over ten weeks and

then he is assaulted and there is no way in which

you can link those earlier assaults to his assault,

now, we would submit that that may well be conduct that comes within (b). So we would not accept that

(b) is confined to conduct after the event, but

what the court have said here quite clearly is

conduct after the event that you cannot get within

(a) is not relevant at all, and we submit that is a

clear issue of principle and it lays down an

approach to the section which will obviously be

followed by the courts here, unless the High Court

says otherwise.

BRENNAN J:  I can understand that argument, Mr Solicitor,

but I am not sure that I see that the point is one
of such importance as to justify the grant of
special leave. It is a question of the
construction of the meaning of the word "relevant"

in a statute dealing with criminal compensation.

MR DOYLE:  Yes.

BRENNAN J: It is a matter in a statute which State courts

are quite capable of dealing with and construing as

they see fit.	Why should it engage the attention
of this Court?

Nguyen 13/3/92

MR DOYLE: Well, Your Honour, in part we would rely on the

fact that it is a statute which is replicated in

three other States; in part, Your Honour, simply on

the point that here is a clear issue of principle

and it is one thing, in our submission, to take the

approach which Your Honour has taken when one is

dealing with a section which one might say is just

part of the nuts and bolts of the Act. One can

fairly say the High Court should not concern itself

with that sort of issue and that should be left for

better or worse to the court of the State.

In our submission, subsection (9) is in no

sense part of the nuts and bolts of this Act. If

one wanted to understand how this Act worked, this
would be one of the key provisions to which one
would go and if one were endeavouring to describe

the nature of the scheme, it is one of the key

provisions to which one would go and in our
submission, for that reason, it is appropriate for

the Court to consider the matter and, for what it

is worth I add, Your Honour, that criminal injuries

compensation schemes are found in all States,

although I cannot go beyond it and say that this

particular problem arises in all States.

I suppose I could also perhaps add,

Your Honours, that in our submission it is not the

sort of case where one should say, well, if

Parliament did not intend what the court has held,

then let Parliament alter it. In our submission,
in a sense one could say, well, these words are as

clear as could be and really Parliament should not

have to go back and start spelling out what it

means by "relevant" here. In our respectful

submission it is a clear point of principle and

appropriate for the Court's consideration.

They are our submissions, if the Court

pleases. I think the approach we take to the

substance of the section is fairly well set out in

the dissenting judgment of Justice Matheson and I

have said all I can usefully put on the issue of

why the matter warrants the grant of special leave.

If the Court pleases.

BRENNAN J: Yes, thank you, Mr Solicitor. Yes, Mr Tilmouth.

MR TILMOUTH: If the Court pleases, in resisting the

application for special leave, we make several

basic points. The first is, Your Honours, that the

point is really, with respect, a fairly simple and
narrow point of statutory construction in which the

principles are well accepted. There is nothing

novel about construing a statute according to its

general tenor and its context.

Nguyen 8 13/3/92

Secondly, we would submit that what the

application is really asking the Court to do is to

place a judicial gloss or imply words which are
plainly omitted from the statute and we would

submit, contrary to my learned friend's last point,

that if Parliament intended the scope of this

section or subsection to be enlarged it could have

done so quite easily, much in the manner of the

United Kingdom legislation considered in

Thompstone's case, which is relied on by

Justice Matheson.

Your Honours would have read, in all of the

judgments, not the section there involved but a

summary of it and that section plainly was cast in

much wider and plainer terms than this Act or,

indeed, the other Acts the learned Solicitor has

referred to.

The third point we would make, Your Honours,

is, with respect, the one partly identified already

arguendo that the case turns on a very narrow

factual situation and unless, as Your Honour

Justice Toohey has pointed out, a satisfactory

proposition in the negative can be framed, the case

would only stand as a case decided, really, on its

own very narrow facts indeed.

TOOHEY J: But does it stand for that negative proposition?

MR TILMOUTH:	I am sorry, I missed that, Your Honour.
TOOHEY J:	Does the decision now, having regard to the way

in which it was expressed by the majority, stand

for the negative proposition that conduct

subsequent to the sustaining of the injury is not a

relevant circumstance for the purpose of the Act?

MR TILMOUTH:  Not quite, may it please Your Honour. The

touchstone in this case is the touchstone that came

from Chief Judge Brebner in Wundersitz which is
whether there was a sufficient nexus.	We would

submit that judgment, and it is referred to

throughout the papers, does not quite go as far as

Your Honour Justice Toohey puts it but it does
require some kind of temporal connection rather

than casual connection with the offence giving rise

to the application.

BRENNAN J:  Can you identify that passage for us in the

appeal book, Mr Tilmouth?

MR TILMOUTH: Justice Matheson - I deal with him first

because of his dissent - at page 32 deals with this

issue in the case and Your Honours will see that

the decision of senior Judge Brebner of the

Nguyen 9 13/3/92

district court is outlined at page 33. The key

passages, perhaps, are at 34, about lines 7 and 8:

I respectfully agree with the learned judge

that sub-section 7(9) will, in appropriate

cases, enable questions of public policy to be

considered by the Court. Of course, the

circumstances to be considered must be

'relevant' to the issue of determining either

the entitlement to or the quantum of

compensation.

In our submission the question of the

appropriate nexus therefore derives from the

opening words of the section which the learned

Solicitor has referred to, namely, it has to be

relevant either to the offence itself or to the

degree of harm that was involved.

Justice Olsson, with whom Justice Mohr agreed,

also dealt with this issue. There are a number of

passages, but perhaps the best is at 55 and 56

where he poses - as did the trial judge at first

instance - at line 3:

The rhetorical question -

which is the relevant question, "What do the words

of the subsection mean?" -

"relevant to what?" ..... The very concept of
relevance must necessarily involve the general
types of consideration with which the

sub-section is otherwise pre-occupied; and

can scarcely be seen to open the door so wide

to admit to consideration an almost unlimited

and nebulous area of concern falling under the

rubric of what was euphemistically described
by the Solicitor-General as "public policy"

considerations.

And over on to page 56, Your Honours, to complete

the cycle, after the quotation from another

district court case, Judge Rice, at line 12:

In the instant case, not only was the shooting by Nguyen of Tran removed a great

distance in point of time, but, in a real

sense, its genesis was extremely remote from

the incident which gave rise to Nguyen's

injury -

key ones. But the operative word, to

and so on. There are some other passages, they are the

return to Your Honour Justice Toohey's question, is

there must be a nexus between the offence which

t,;guyem 10 13/3/92

gives rise to the application and the subsequent

conduct.

TOOHEY J:  Mr Tilmouth, that might be the very point of

principle involved here, might it not? I mean,

when you say "a nexus" you appear to be referring

to some connection between the circumstances giving

rise to the injury and the conduct said to be

relevant. But the Crown's argument is, I think,

put quite differently: that there does not have to

be a nexus in the sense in which you are using the

expression, but there are wider considerations such

as, the Solicitor says, taking the law into your

own hands, which could constitute a relevant

circumstances for the purpose of the Act. Now,

whether that is right or wrong is another matter,

but it does point up a real distinction between the

way in which you are putting the proper

construction of the Act and the way in which the

Crown puts it.

MR TILMOUTH:	Of course, that is true, with respect. That focuses the issue, but my answer is the one I made
earlier, that it would have been easy for
Parliament to say so, employing quite simple words. It has not done so, and I repeat that the
legislation partly relied upon from the UK through
Thompstone's case was quite different. That is
what is missing here and, with respect, I end where
I began.  What the Crown is asking the Court to do
is to place something judicially in the statute
which is simply not there, as it could easily be in
plain words.
BRENNAN J:	Mr Tilmouth, I notice that the majority accepted the construction of the section put on it by the
trial judge, and at page 18, line 25, His Honour
gives his construction of paragraph (b). Do you
support the construction placed upon paragraph (b) by His Honour in that passage?

MR TILMOUTH:  Yes, we have to, if the Court pleases. That

essentially comes in its turn from the Wundersitz

case, although not exclusively, but in its turn it

does come from there.

BRENNAN J:  So relevant to the offence or the injury?

MR TILMOUTH: That is right.

BRENNAN J:	Or the consequences of the injury?
MR TILMOUTH:	That is right. The construction currently is

almost a causal - there must be a causal link in

the wide sense, whereas to use words - the learned

solicitor is saying a casual link is sufficient.	A
subsequent conduct, for example, discreditable

Nguyen 11 13/3/92

conduct might be within the rubric of those words.

But in our submission, if the Court pleases, it

involves no principle of statutory interpretation;

is used at about line 7, Your Honours, in the

the principles are accepted. If I could take the again

quotation from Faehrmann's case:

is not a sufficient nexus between the

applicants' disrespect for the law with regard

to the possession -

The cases as they have developed, mainly through the district court and this judgment of the Full

Court, come back to the question of whether a nexus

is required or not. If the Court pleases, they are

my submissions.

BRENNAN J: Thank you, Mr Tilmouth. Mr Solicitor?

MR DOYLE:  The only point in reply, if the Court pleases, is

that it would not have been simple for Parliament
to add other words. The difficulty is: the more

you start spelling out other things that are to be

relevant, the more you detract from the broad

sweep, in our submission, of what Parliament
intended. In other words, if you start saying

character and conduct, whether before the event or

after, unless you go on from there to list factor
after factor, you run the risk, in my submission,

of then miscuing by not going far enough. The

issue here is simply whether Parliament really did
intend the broad scope apparently indicated by

those words. If the Court pleases.

BRENNAN J: Thank you, Mr Solicitor. The Court will

consider its decision in this application and will

give its decision in this matter at 2 o'clock South

Australian time.

AT 10.05 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 1.34 PM:

BRENNAN J:  The majority of the Full Court held that

Nguyen's shooting of Tran in the buttocks, sixteen

months after Tran had stabbed Nguyen, was not a

circumstance relevant to the determination of

Nguyen's application for compensation under

section 7 of the Criminal Injuries Compensation Act

Nguyen 12 13/3/92

1978 (S.A.). Section 7(9) of that Act reads as

follows:

In determining an application for, and

the quantum of, compensation, the court must

have regard to -

(a) any conduct on the part of the victim

that contributed, directly or indirectly, to
the commission of the offence, or to the

injury to the victim;

and

(b) such other circumstances as it considers

relevant.

Justice Olsson construed subsection (9)

paragraph (b) in this way:

Whilst there is no doubt that sub-

paragraph (b) of sub-section (9) clearly

contemplates a sphere of consideration wider

than that specifically identified in sub-

paragraph (a) it must, nonetheless, take its

flavour from the section as a whole. Like the learned trial judge, I am of the view that the sub-section does not contemplate the taking

into account of considerations which are so

removed in point of time or relationship to

the injury sustained by the victim that,

logically, they can have no bearing upon it or

the award of compensation in relation to it.

His Honour concluded:

In the instant case, not only was the shooting by Nguyen of Tran removed a great distance in point of time but, in a real

sense, its genesis was extremely remote from

the incident which gave rise to Nguyen's
injury.	The offence by Nguyen was, as the

learned sentencing judge accepted, the product

of threats made by Tran at about the time that

he was due for release from serving his

sentence for the very injury to which the
present matter relates; which operated upon

the vulnerable personality of Nguyen in such a

way as to cause him to take pre-emptive

action. It was not even a "payback"

situation. Indeed, I would go so far as to

hold that, having regard to a careful

consideration of the circumstances of the

later offence, even if they were relevant in a

technical sense, then the weight to be

attributed to them, in all the circumstances,

was minimal.

Nguyen 13 13/3/92

The Solicitor General seeks special leave to

appeal to challenge this conclusion, submitting

that relevancy is not restricted to the

circumstances of the commission of the offence or

the injury. He was concerned to argue that

circumstances occurring after the commission of the relevant offence and the infliction of the relevant

injury would not exclude it from consideration

under paragraph (b).

So much can be conceded. But Justice Olsson

was surely right to say that the circumstances must

have some bearing upon the injury or the award of

compensation. The conclusion was one of fact.	In
the light of the view of the shooting thus formed
by the majority, their Honours were entitled to

conclude that that circumstance was not relevant to

the determination of the application or the

assessment of compensation. We do not say that we

agree with the conclusion; we say only that the case is not a suitable vehicle for the grant of

special leave. Accordingly, special leave will be

refused.

MR DOYLE:  If the Court pleases, and I do not oppose an

order for costs, if sought.

BRENNAN J: Yes, Mr Solicitor.

MR TILMOUTH:  I make that application, if the Court pleases.

BRENNAN J: Very well, the application will be dismissed,

with costs.

AT 1.39 PM THE MATTER WAS ADJOURNED SINE DIE

Nguyen 14 13/3/92