Walker v Carey
[2009] TASSC 25
•24 April 2009
[2009] TASSC 25
CITATION: Walker v Carey [2009] TASSC 25
PARTIES: WALKER, John Patrick Eric
v
CAREY, Stephen
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 1030/2008
DELIVERED ON: 24 April 2009
DELIVERED AT: Hobart
HEARING DATE: 31 March 2009
JUDGMENT OF: Evans J
CATCHWORDS:
Criminal Law – Procedure – Criminal injuries compensation – Tasmania – Whether applicant the victim of an offence.
Aust Dig Criminal Law [3208]
REPRESENTATION:
Counsel:
Appellant: W A Ayliffe
Respondent: Notice of submission filed
Attorney-General: P Turner
Solicitors:
Appellant: Hilliard & Associates
Respondent: Director of Public Prosecutions
Attorney-General: Director of Public Prosecutions
Judgment Number: [2009] TASSC 25
Number of paragraphs: 18
Serial No 25/2009
File No 1030/2008
JOHN PATRICK ERIC WALKER v STEPHEN CAREY
REASONS FOR JUDGMENT EVANS J
24 April 2009
At about 1.15am on 1 January 2008, the applicant was found by police unconscious, lying on the footpath near a cab stand in Collins Street, Hobart, adjacent to the Mall. He was suffering from serious head injuries. He has no recall of how he came to be injured, but believes he was assaulted. He applied for compensation under the Victims of Crime Assistance Act 1976 ("the Act"). The respondent, a Criminal Injuries Compensation Commissioner, rejected the application on the basis that it had not been established that the applicant had been assaulted. The applicant is not entitled to appeal that decision as the Act, s10, provides that a decision of a commissioner under the Act is final and no appeal lies therefrom. The applicant can, however, by means of an originating application, seek an order of review in relation to the decision under the Judicial Review Act 2000, and he has done so.
The limited evidence of how the applicant came to be injured included:
· A report from the Royal Hobart Hospital, Department of Neurosurgery, dated 6 May 2008 signed over the following:
"Dr Roy Kwan
Neurosurgical Registrar for
Mr Albert ErasmusConsultant"
That report records the diagnosis of the applicant as being a closed head injury from an alleged assault and lists the injuries as follows:
"1) Multiple haemorrhagic cerebral contusions bilaterally
2) Right frontal subdural haemorrhage
3) Subarachnoid haemorrhage overlying right convexity and parafalcine
4) Right basal ganglia haemorrhage
5) Left parietal bone fracture (undisplaced)
6) Left squamous temporal bone fracture (undisplaced)
7) Soft tissue swelling/haematoma overlying left parieto-occipital region"
The report also advised that when examined, Mr Walker was clearly intoxicated and his blood alcohol level was found to be 66 mmol/L. [This equates to a blood alcohol reading of 0.26 per cent.]
· An addendum to the above report dated 2 June 2008, signed by Dr Russell Fayers, over the following:
"mr albert m erasmus
fracs
neurosurgeon
(dictated by) dr russell fayersneurosurgical registrar"
The report refers to the diagnosis of injuries contained in the report of 6 May 2008 and says:
"The injuries are [sic] enumerated in the diagnosis and sustained by Mr Walker are consistent with Mr Walker receiving blunt forced trauma to the head, occasioned as a result of the alleged assault on 1 January 2008."
· A report from the Royal Hobart Hospital, Department of Neurosurgery, dated 22 July 2008 from Albert M Erasmus, FRACS, Neurosurgeon, which refers to the above report and addendum and says:
"The extensive injuries to the brain as referred to in the report and addendum are as previously stated consistent with Mr Walker receiving Blunt force trauma to the head arising out of the alleged Assault. It would be unlikely for these to occur if Mr Walker simply tripped and hit his head upon falling to the ground."
· A memo from Detective Constable J P Rowbottom, dated 16 June 2008 containing the following:
"On about the 9th of February 2008, I was contacted by John walker, who informed me that he had just been released from hospital as a result a [sic] serious head injury which occurred in the early hours of the morning of the 1/1/2008.
He stated that he had been at a new years eve party and had been consuming alcohol, but did not believe he was overly intoxicated. He left the party around 1am. He can remember walking up Collins St towards the taxi rank outside Central Bar and Café to catch a taxi. However, that is the extent of his memory recall from around that time. He does not remember the incident which resulted in his hospitalisation but he has been advised by his doctors that his injuries are consistent with being assaulted. He did not wish to make an official report at the time because he was did [sic] not know the circumstances of what had occurred and did not know whether it was due an [sic] assault or a fall.
I conducted some enquiries in relation to the incident to try and determine if there had been an offence committed. Those enquiries consisted of checking the Elizabeth Mall cameras and contacting the police who located walker. I spoke to the attending police, Constables Tom gordon and Justin wolf, who called the job in via radio (cacs No 00014-08), they observed walker unconscious while on mobile patrol. They informed me that they had spoken to two males who witnessed walker trip on the kerb and fall and hit his head. They did not get the males names. I viewed the camera footage from the Elizabeth Mall southern end, it does not show any incident because it was not facing in the direction of where walker was located.
I have been unable to disclose any offence during my investigation and recommend this matter be filed pending further information."
· Correspondence from the applicant that included:
(1)A letter dated 14 July 2008 in response to a letter from the Victims' Assistance Unit that referred to the above memo from Detective Constable Rowbottom and concluded:
"Unfortunately there is not enough evidence to support the assertion that you have been the victim of criminal conduct …".
The applicant's response included:
"In relation to the Police evidence, I agree that it is inconclusive and does not show direct evidence of the perpetrators and nothing was caught on Camera. It is not helped by the fact that no details of the two males were obtained at the time by the attending officers. Though Constable Rowbottom did say to me when I spoke to him in February that if they were involved, they were not likely to admit it to the attending Officers, and he further said that there had been a number of similar unprovoked Assaults in and around the CBD at the time and up until recently, which they were and are still investigating. I further understand most of these were also reported in the Media."
(2)A submission dated 24 September 2008 which includes the following under the heading "Facts":
"It was New Years Eve and I can recall being at a friends place at number one Collins Street Hobart until approximately 12.30 am and then leaving that residence and walking up Collins Street alone looking to catch a Taxi home.
I can recall reaching the Cab stand outside the City Bar and Café in Collins street, adjacent to the Mall and waiting for a taxi. I can also recall making a couple of telephone calls and wishing friends Happy New Year. My telephone records show (copy enclosed) that the last telephone call I made was at 1.03 am. And then nothing after that until 11.50 am on 2.1.08 when my partner had my phone.
The Police attended and found me unconscious at the Cab Stand at approximately 1.15 am as advised by the Police, they then called an Ambulance and I was taken to the Royal Hobart Hospital.
Due to the fact that I was rendered unconscious and suffered extensive brain damage including post traumatic amnesia I cannot recall the actual incident, but I can vaguely recall being woken by Medical staff at the Hospital."
In his reasons for decision dated 6 November 2008, the Commissioner said the following referable to the claim and his reasons for dismissing it:
"In the early hours of the 1st January 2008 the applicant was found unconscious lying on the footpath in Collins Street. The applicant can recall walking up Collins Street towards a taxi rank outside a licensed premises and making some telephone calls whilst awaiting a taxi. He has no other recollection of what occurred. Prior to this the applicant had left a party where he had consumed alcohol but the applicant does not believe that he was intoxicated to any significant extent.
The applicant suffered serious head injuries and was hospitalised for a number of weeks. Although the applicant has no knowledge of the circumstances in which he suffered his injuries, the treating neurosurgeon, Dr Erasmus has provided a report stating that the nature of the head injuries suffered by the applicant are consistent with having received a blunt force trauma to the head arising out of an assault. The attending police who found the applicant recall speaking to two males who stated that they witnessed the applicant tripped on the kerb and fell and hit his head. Mr Erasmus has expressed the view that it would be unlikely that such an incident could account for the injuries suffered by the applicant. The mere fact that the injuries received by the applicant may be consistent with having been caused as a result of an assault does note, [sic] in my view establish on balance that in fact an assault did occur. When admitted to hospital the applicant was noted to be 'clearly intoxicated' and he had a blood alcohol level of 66 mmol/L. This corresponds to a blood alcohol reading in excess of 0.26g/100 ml of blood or 0.26%. This is a significant reading which would have resulted in a marked decrease of the applicant's motor skills. In those circumstances there would be an increased likelihood of falls and a decreased ability to protect himself should there have been a fall or falls. That the injuries were suffered as a result of an assault is clearly one possibility, however with no evidence at all, it is merely supposition.
The application is therefore dismissed."
The grounds on which the applicant seeks an order of review of the decision are:
"1The Commissioner erred in law in that he failed to address a central question raised in the case for the applicant and accordingly has constructively failed to exercise the jurisdiction conferred on him by Section 5(2) of the Victims of Crime Assistance Act 1976.
Particulars
(a)The learned Commissioner failed to address or otherwise deal with that part of Dr Erasmus' report which asserted the injuries sustained by Mr Walker were inconsistent with Mr Walker tripping and hitting his head upon falling to the ground.
(b)The learned Commissioner confined himself only to that part of the report of Dr Erasmus which asserted that the injuries sustained by Mr Walker were consistent with an assault;
(c)The learned Commissioner treated Dr Erasmus' evidence as raising only a consistent hypothesis rather than additionally presenting a case negating the alternative hypothesis that Mr Walker tripped and hit his head upon falling to the ground.
2The learned Commissioner erred in law by ignoring relevant material which represented an important part of the applicant's case.
Particulars
The learned Commissioner ignored the applicant's case that his injuries were inconsistent with tripping and hitting his head upon falling to the ground.
3The learned Commissioner erred in law in failing to exclude and not take into account the evidence that 'the attending police who found the applicant recall speaking to two males who stated that they witnessed the applicant tripped on the kerb and fell and hit his head' because the reception of such evidence was unfair and in breach of natural justice.
Particulars
(a)The evidence was third hand hearsay;
(b)The apparent witnesses were unidentified and therefore could not be interviewed or cross-examined by the applicant;
(c)The report did not set forth what the unidentified witnesses had said but simply an interpretation of a conclusion attributed to unidentified witnesses that the applicant had tripped on the kerb; and
(d)The evidence was inherently unreliable, inherently unfair and unable to be challenged.
4The learned Commissioner erred in law in specifically directing himself to take no account of the police report dated 16th June 2008 which asserted:
'They informed me that they had spoken to two males who witnessed Walker trip on the kerb and fall and hit his head'.
Particulars
The applicant repeats the particulars to ground 3 hereof."
Before addressing the grounds, I will refer to some provisions in the Act and the burden of proof. In general terms the Act provides for the payment of compensation to persons who suffer personal injuries as a result of an offence involving violence. For relevant purposes:
· section 4(1)(a) provides that subject to s6, compensation may be awarded where a person suffers injury as a result of the act of another person that constitutes an offence;
· section 2 provides that "offence" means an offence that involves violence by one person against another;
· section 6(1) specifies a number of circumstances in which compensation may not be awarded, one of which is when the injury was caused by, or arising out of, the use of a motor vehicle;
· section 7(3) provides that proof of the conviction of any person for an offence shall, in relation to any application for an award, be taken to be conclusive; and
· section 5(2) provides that the Commissioner shall not make an award in respect of an injury unless "satisfied, on a balance of probabilities, that the … injury was the result of criminal conduct".
In order to establish an entitlement to compensation, it was necessary for the applicant to prove:
· that he was the victim of an offence that involved violence against him; and
· that he suffered injuries as a result of that offence.
In the course of his decision, the Commissioner said:
"The mere fact that the injuries received by the applicant may be consistent with having been caused as a result of an assault does note, [sic] in my view establish on balance that in fact an assault did occur."
The Commissioner's use of the phrase "establish on balance" strongly suggests that the burden of proof that he was applying to the first precondition to the establishment of liability, that is, whether the applicant was the victim of a crime of violence, was proof on the balance of probabilities. I am dubious that this is correct. In the ordinary course, the first precondition is established by proof of the conviction of the offender for the offence. Pursuant to s7(3), that proof is conclusive for the purposes of an application for an award under the Act. The burden of proof that applies to a conviction is beyond reasonable doubt. My preliminary view is that the same burden of proof should be applied when an offender has not been convicted of the offence but it is claimed that the applicant was a victim of an offence involving violence. If the situation was otherwise, subject to an argument as to estoppel, an applicant who could prove on the balance of probabilities that a person had committed an offence, could substantiate a claim under the Act even though that person had been acquitted of the offence. None of this has any bearing on the burden of proof that applies in relation to the second precondition for the establishment of a claim, which is that the applicant suffered injuries as a result of the offence. Section 5(2) expressly provides that the burden of proof as to this issue is on the balance of probabilities.
At the outset of the hearing of the originating application, I raised with counsel my concern that the wrong burden of proof had been applied to the issue of whether an offence had been committed. Neither counsel had considered the matter and both counsel requested that I proceed with the hearing on the basis that the applicable burden of proof was on the balance of probabilities. I have done so as it seems to me that this question has no bearing on the grounds of review pursued by the applicant. Having briefly researched the issue, I should say that my concern remains. In In Re E (1976) 14 SASR 179, Jacobs J dealt with a contention that for the purposes of the Criminal Injuries Compensation Act 1969 (SA), s7(4), it was sufficient to establish the commission of an offence on the balance of probabilities. The relevant portion of that provision was:
"If the Court is satisfied that the applicant has sustained injury by reason of the commission of an offence … it may …".
Jacobs J rejected the contention and held that the offence had to be established beyond reasonable doubt. In Bartsch v McIlroy and South Australia (1980) 24 SASR 506, Mohr J dealt with a contention that the Criminal Injuries Compensation Act 1977 (SA), s8(1), enabled a claimant for compensation to succeed by proving the commission of an offence on the balance of probabilities. Section 8(1) provided that: "Any fact to be proved by the claimant in proceedings under this Act is sufficiently proved if it is proved on the balance of probabilities". Mohr J, at 509, found that the contention ran contrary to the reason and the scheme of the Act and, in effect, held that the burden of proof was beyond reasonable doubt. He also held that "issue estoppel" barred a claim for compensation in relation to an offence in respect of which the offender had been acquitted. The question of the applicable burden of proof was put beyond doubt in South Australia by the insertion of subs(1a) into the Criminal Injuries Compensation Act 1977 (SA), s8, in 1982. Whilst s8(1) of that Act continued to provide that any fact to be proved by a claimant for compensation was sufficiently proved if it was proved on the balance of probabilities, that provision was made subject to subs(1a) which provided that no order for compensation could be made unless the commission of the offence to which the application related had been proved beyond reasonable doubt. As it is not necessary for me to reach a concluded view on the burden of proof that is applicable in this case, I will not take this question any further.
Grounds 1 and 2 assert that the Commissioner erred in law. This ground is available pursuant to the Judicial Review Act, s17(2)(f). The error of law alleged relates to a statement in the report from Dr Erasmus dated 22 July 2008 that:
"The extensive injuries to the brain as referred to in the report and addendum are as previously stated consistent with Mr Walker receiving Blunt force trauma to the head arising out of the alleged Assault. It would be unlikely for these to occur if Mr Walker simply tripped and hit his head upon falling to the ground."
On the basis of this evidence from Dr Erasmus, the applicant contends that it would be unlikely for his extensive injuries to have occurred if he simply tripped and hit his head upon falling to the ground, and the Commissioner failed to address this evidence (ground 1) and ignored this evidence (ground 2).
Consistent with many decisions on the approach to be taken by a court reviewing the reasons for an administrative decision, I am mindful that the reasons of the decision-maker are not to be construed minutely and finely with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287, and Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291. However, in this case, nothing has been raised that calls on me to heed those cautionary words. The meaning of the Commissioner's decision is plain on its face. In the second paragraph of his decision, which is set out in par[3] of these reasons, the Commissioner refers to the police who found the applicant, being told by two males that they witnessed the applicant trip on the kerb, fall and hit his head and the Commissioner continues: "Mr Erasmus has expressed the view that it would be unlikely that such an incident could account for the injuries suffered by the applicant. The mere fact that the injuries received by the applicant may be consistent with having been caused as a result of an assault does note, [sic] in my view establish on balance that in fact an assault did occur." In so doing, the Commissioner expressly addressed the evidence in question and did not ignore it. Moreover, he obviously had this evidence in mind in what followed in his decision when he said:
"When admitted to hospital the applicant was noted to be 'clearly intoxicated' and he had a blood alcohol level of 66 mmol/L. This corresponds to a blood alcohol reading in excess of 0.26g/100 ml of blood or 0.26%. This is a significant reading which would have resulted in a marked decrease of the applicant's motor skills. In those circumstances there would be an increased likelihood of falls and a decreased ability to protect himself should there have been a fall or falls. That the injuries were suffered as a result of an assault is clearly one possibility, however with no evidence at all, it is merely supposition."
I am accordingly not satisfied that grounds 1 or 2 are established. I should say that these grounds were argued before me in a manner that assumed that there were only two possible explanations for the applicant's injuries; either, an offence (an unlawful assault), or a fall. This assumption is not correct. If the force that caused the applicant's injuries was applied by another person, the possibility that the force was applied in self-defence or by mistake needed to be addressed, as did the remote possibility that a motor vehicle had been involved in his injuries. It is to be remembered that the applicant was found on the pavement beside Collins Street.
Grounds 3 and 4 invoke the Judicial Review Act, s17(1)(a), which authorises the review of a decision where there has been a breach of the rules of natural justice. The breaches asserted in support of these grounds involve the assertion that the Commissioner should have excluded, and not taken into account, the following portion of the memo from Detective Constable Rowbottom:
"I spoke to the attending police, Constables Tom gordon and Justin wolf, who called the job in via radio (cacs No 00014-08), they observed walker unconscious while on mobile patrol. They informed me that they had spoken to two males who witnessed walker trip on the kerb and fall and hit his head. They did not get the males names."
The applicant submits that the Commissioner's receipt of this evidence was unfair and a breach of natural justice. As to the quality of the evidence, counsel for the applicant submits that:
· it was third-hand hearsay;
· the witnesses were not identified and could not be interviewed or cross-examined by the applicant;
· the memo did not detail what the witnesses had said; and
· it was inherently unreliable, inherently unfair, and unable to be challenged.
Save for the proposition that the evidence was inherently unfair, I accept the thrust of these submissions insofar as they go to the weight to be given to the evidence. The receipt of the evidence was not inherently unfair. The applicant was well aware of the evidence. He in fact provided a copy of the memo containing it to the Commissioner.
As to the Commissioner's receipt of this evidence, the Act, s7(2), provides:
"(2) In the consideration of an application for an award, the Commissioner is entitled to inform himself as he sees fit."
There are no other rules of evidence in the Act, and no general exclusionary rules of evidence apply to the Commissioner. In these circumstances, the Commissioner had no entitlement to exclude the evidence. As noted in Cross on Evidence, 7th Australian edition, LexisNexis Butterworths, 2004, par11120, at 352:
"It is interesting to note in proceedings where the general exclusionary rules of evidence do not apply, for example in some tribunals, there is no room for an exclusionary discretion. Where statute has sought to extend the range of material available to the tribunal, it is not for the tribunal to cut it down as it chooses by the exercise of any such discretion. Rosedale Mouldings Ltd v Sibley [1980] ICR 816 at 822."
In R v Public Vehicles Licensing Appeal Tribunal ex parte: Transport Commission, Serial No A41/1971, Burbury CJ said the following with reference to a decision of the chairman of the tribunal in question to rule relevant evidence inadmissible on the grounds that it was hearsay:
"It was assumed in argument that the Tribunal is not bound by the rules of evidence. That assumption is I think correct. The Tribunal is not a Court and is therefore not bound by the rules of evidence. Like a Royal Commission or a Board of Inquiry or any statutory tribunal not expressly made subject to the rules of evidence it may base its decision on any material which appears to it to have probative value. It is bound to follow the rules of natural justice but the technical rules of evidence are not part of the rules of natural justice. I need do no more than cite the valuable judgment of Diplock LJ in R v Deputy Industrial Injuries Commissioner ex parte Moore [1965] 1 QB p456 where at p488 the learned Lord Justice said:
'These technical rules of evidence however, form no part of the rules of natural justice. The requirement that a person exercising quasi judicial functions must base his decision on evidence means no more than it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue'."
See also Martin v Medical Complaints Tribunal (2006) 15 Tas R 413 at par[14] where I said:
"That a tribunal is not bound by the rules of evidence means that it may have regard to evidence that is logically probative regardless of whether it is legally admissible under the rules of evidence; R v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 and Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482, Brennan J at 493. It is perfectly consistent with concepts of procedural fairness to apply a provision that a tribunal is not bound by the rules of evidence so as to admit evidence that may not be legally admissible but is logically probative; Bowen-James v Walton NSWCA 5 August 1991 unreported at 6 and Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82 at 90. This does not mean that the rules of evidence are to be ignored as being of no account; Bott (supra) at 256 and Pochi (supra) at 492. That a rule of evidence would apply to exclude otherwise logically probative evidence may be a guide as to its reliability and weight."
I am unpersuaded that there was any unfairness or breach of the rules of natural justice in the manner in which the Commissioner received and dealt with the evidence in question. He did not give it too much weight. He would have erred had he excluded it. Even in its absence, the possibility that the applicant's injuries were caused by a fall had to be considered. That possibility was raised by the evidence of the extent of the applicant's intoxication. I reject grounds 3 and 4.
The originating application is dismissed.
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