Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Victims Compensation Fund Corporation v JM [2011] NSWCA 89
• Hearing dates: 7 March 2011
• Decision date: 13 April 2011
• Before: Macfarlan JA at [1]; Young JA at [8]; Sackville AJA at [52]

Decision

Appeal upheld with costs.

Judgment of Rothman J set aside.

Decision of Tribunal restored.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: JUDICIAL REVIEW of administrative decisions- appeal from an overturned decision of the Victims Compensation Tribunal- whether the Tribunal committed error of law and its decision was wholly irrational and capricious- Tribunal found 500 sexual assaults were "related acts" within the meaning of the Victims Support and Rehabilitation Act s 6(3), (4)- whether the Tribunal failed to take into account factors of age and location or failed to give them adequate weight- Tribunal's statutory construction of "related acts" was within its mandate- the reasons given by a tribunal are not to be construed minutely and finely with a keenly attuned eye to the perception of error- appeal upheld with costs- decision of Tribunal restored.
• Legislation Cited: Victims Support and Rehabilitation Act 1996, ss 3, 5, 6, 10, 27, 36, 38, 39
• Cases Cited: Attorney General v Cohen [1937] 1 KB 478; Attorney General (NSW) v Quin [1990] HCA 21; 170 CLR 1; Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353; Collector of Customs v Pozzolanic (1993) 43 FCR 280; Director-General of The Attorney-General's Department v District Court of NSW and Stark (1993) 32 NSWLR 409; Distillers Co Bio-Chemicals (Aust) Pty Ltd v Ajax Insurance Company Ltd (1974) 130 CLR 1; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259; Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611; MJW v Victims Compensation Fund Corporation (1997) 3 NSWCR 33; R v Connell; Ex parte The Hetton Bellbird Collieries [1944] HCA 42; 69 CLR 407; R v Sheffield Crown Court; Ex parte Brownlow [1980] QB 530; Victims Compensation Fund Corporation v Brown [2002] NSWCA 155; 54 NSWLR 668; Victims Compensation Fund Corporation v Brown [2003] HCA 54; 201 ALR 260
• Category: Principal judgment
• Parties: Victims Compensation Fund Corporation (Appellant); JM (First Respondent); Victims Compensation Tribunal (Second Respondent)
• Representation: Counsel: N Hutley SC and C Spruce (Appellant); R Beech-Jones SC and R Graycar (First Respondent); Second Respondent submitted; Solicitors: I V Knight, Crown Solicitor (Appellant); Women's Legal Services NSW (First Respondent)
• File Number(s): CA 2009/325679

Decision under appeal

• Citation: JM v Victims Compensation Fund Corporation [2009] NSWSC 1300
• Date of Decision: 2009-12-02 00:00:00
• Before: Rothman J
• File Number(s): SC 2009/30033

Judgment

1 MACFARLAN JA : I agree with the orders proposed by Young JA and with the reasons that he and Sackville AJA give for the making of those orders. I add the following observations concerning the respondent's submission that the Tribunal's decision was irrational.

2 As Young JA points out, the question before this Court is not whether the Tribunal's decision is correct. The Victims Support and Rehabilitation Act 1996 does not confer any right to appeal to this Court against that decision. The right of appeal that is conferred is one to appeal to the District Court on a question of law (s 39(1)) but an appeal on the question presently in issue, that is, whether acts are related and constitute a single act of violence, is expressly excluded (s 39(3)).

3 This exclusion emphasises the legislative intent apparent from s 3(b) that the determination of whether acts of violence are related is to be left to the subjective opinion of the Assessor and, when there is an appeal from the Assessor, to the Tribunal.

4 Whilst the Act does not attempt to exclude this Court's supervisory jurisdiction to conduct a judicial review of the decision, the opportunity for an applicant for compensation to mount a challenge by way of judicial review to a decision of the Tribunal that acts of violence are related is a very limited one. The grounds upon which this may occur are described in the following passage from the judgment of Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353:

"But it is for the commissioner, not for me, to be satisfied of the state of the voting power at the end of the year of income. His decision, it is true, is not unexaminable. If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law" (at 360).

5 The statement of principle by Latham CJ in R v Connell; Ex parte The Hetton Bellbird Collieries [1944] HCA 42; (1944) 69 CLR 407 at 432 was to similar effect (see also Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [131] - [137] and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [23], [34], [104]-[105] and [122]). As pointed out in SZMDS at [105], Avon was a case in which no reasons were given by the decision-maker (there being no obligation to do so). The position was the same in Connell . Whilst a challenge will still be difficult where (as here) reasons for decision are given, a challenge will to some extent be facilitated by the Court's ability to examine the decision-maker's reasons.

6 An applicant's difficulty in challenging the Tribunal's decision is exacerbated by the legislature's lack of guidance as to what is involved in the concept of acts of violence being related for the purposes of the Act. The features that are intended to characterise acts of violence as related are left unstated. As a result widely different views may be reached about the same factual situation. The legislature has given primacy to the subjective view of the Tribunal (where there has been an appeal from a decision of an Assessor). Unless that view falls outside the range of reasonable and rational views that could possibly be arrived at (or reflects one of the other errors described in the authorities to which I have referred above), it is not open to challenge. Bearing in mind the breadth of the concept of relationship and the lack of delimitation of this concept by the Act, I do not consider that the Tribunal's views in this case fell outside that range.

7 It follows that I respectfully disagree with the view expressed by the primary judge that "a result that concluded that a rape of a person at the age of 5 and a rape of [a] person at the age of 15, even if perpetrated by the same person in the same place, were related acts of violence is wholly irrational and capricious" (Judgment [50]). By reason particularly of the intervening and uninterrupted pattern of acts, the relationship of the perpetrator and the victim, and the location of the acts, a finding that the acts were related was in my view open to the Tribunal.

8 YOUNG JA: This is an appeal from a judgment of Rothman J in the Common Law Division of this Court on a summons brought by the respondent, a woman now in her thirties, who both below and in this Court, has been nominated simply as "JM".

9 JM sought to get prerogative relief against the Victims Compensation Fund in respect of the compensation it assessed she should receive as a result of the criminal conduct of a Mr Gibson.

10 Essentially, the background facts are that JM became a resident in a children's home in Brewarrina when she was very young, and that, between the ages of 5 and 15, she was raped almost weekly by Gibson. Gibson was eventually charged and found guilty of three counts of rape against JM and sentenced to a long term of imprisonment.

11 JM initially made a claim under the legislation that is now named Victims Support and Rehabilitation Act 1996. The first application was made in 2001 and was a claim in respect of the whole period in which there were approximately 500 separate sexual assaults. However, she later changed her solicitors and the new solicitors filed six more applications in 2007 in respect of specific offences and it was commonly assumed that the original application covering the remaining incidents, mainly those occurring after Sunday School, had virtually been superseded.

12 I should now pass to set out the principal provisions of the legislation. Section 6 makes it clear that the primary victim of an act of violence is eligible for statutory compensation under the Act. Section 5 defines "act of violence". Essentially, the definition is that an "act of violence" means "an act or series of related acts" that has resulted in injury and has apparently occurred in the course of the commission of a crime. The section makes it clear that sexual assaults are comprehended. Subsections (3) and (4) should be set out in full:

"(3) An act is related to another act if:

(a) both of the acts were committed against the same person, and

(b) in the opinion of the Tribunal or compensation assessor, both of the acts were committed at approximately the same time or were, for any other reason, related to each other.

...

(4) For the purposes of this Act, a series of related acts, whether committed by one or more persons, constitutes a single act of violence."

13 Section 10 introduces a schedule of compensable injuries. That schedule, by clause 6, splits sexual assaults into three categories, essentially, category 1 is indecent assault, category 2 is unlawful sexual intercourse, whilst category 3 is defined as follows:

• "A pattern of abuse involving category 1 or category 2 sexual assault, or
• unlawful sexual intercourse in which serious bodily injury is inflicted, or
• unlawful sexual intercourse in which two or more offenders are involved, or
• unlawful sexual intercourse in which the offender uses an offensive weapon."

The schedule then goes on to specify a money sum for various assaults, the maximum for category 2 sexual assault is $25,000 and for category 3, $50,000.

14 The seven claims made by JM involve three claims at $50,000 and four at $25,000, so that she claims a total of $250,000. The appellant says that the claims are all related and that she is entitled to only $50,000.

15 There is no doubt at all that JM is entitled to compensation and that the real difference between the parties is whether the 500 assaults are properly said to be a series of related acts of violence.

16 However, in one sense, that is too facile a way of looking at this case. The structure of the legislation is that it is for a "compensation assessor" to deal with every application for statutory compensation without conducting a hearing (s 27).

17 Section 36 provides that "an applicant for statutory compensation who is aggrieved by the determination of a compensation assessor in respect of the application may appeal to the Tribunal against the determination." The Tribunal is apparently constituted by a magistrate and is the second respondent to this appeal.

18 Section 38 provides that the appeal is to be determined on the evidence and material provided to the compensation assessor with liberty to the Tribunal to receive further evidence. The appeal is almost a rehearing and the Tribunal takes the place of the Compensation Commissioner.

19 Section 39 then provides that an applicant for statutory compensation may, with the leave of the District Court, appeal to that Court on a question of law arising in any determination of the application by the Tribunal. However, s 39(3) provides:

"For the purposes of this section, the following matters are not questions of law:

(a) ...

(b) a determination of whether a series of acts are related and constitute a single act of violence."

20 It is common ground that s 39(3) does not apply when the Supreme Court is reviewing a decision made by the Tribunal under its prerogative jurisdiction. There was no reliance on s 39(3) by any party to this appeal. However, I would not wish it to be thought that s 39(3) in an appropriate case may not be of some value to the Supreme Court when it is construing the Act generally.

21 In the present case, compensation was determined by a Tribunal, there was an appeal to the District Court and Judge Quirk set the assessment aside and remitted the matter to the Tribunal. The Tribunal redetermined the matter on 2 October 2008. After setting out the facts, the magistrate who constituted the Tribunal said (Blue 56) that JM's representatives had submitted that the assessor failed to take into account the individual facts constituting the crimes, first that her age at the time of the assaults was a significant factor in distinguishing them, secondly, that each claim involves a particular type of offence and those offences differ. Further, that these factors, combined with the different locations and circumstances of the sexual assaults, clearly indicate the sexual assaults were not part of a single transaction.

22 The Tribunal said that the ongoing abuse occurred in a situation where JM was an inmate of a children's home and the offender was an employee of the organisation that conducted the home, so that -

"in other words there was an ongoing association/relationship between the appellant and the offender over a prolonged period of time. I use the words 'association/relationship' in the sense in which Blanch J used the word 'relationship' in MJW - a relationship 'where the appellant was manipulated and exploited by the offender who was a much older person and where the appellant was a young boy'. In the circumstances of these appeals where the abuse was ongoing I do not consider that the age of the appellant at the time of the various acts necessarily gives rise to claims for separate acts."

The reference to "MJW" is a reference to the decision of Justice Blanch as Chief Judge of the District Court in MJW v Victims Compensation Fund Corporation , 18 November 1997, reported in (1997) 3 NSWCR 33.

23 The Tribunal continued with a reference to the decision of this Court in Director-General of The Attorney-General's Department v District Court of NSW and Stark (1993) 32 NSWLR 409. The Tribunal said (Blue 57):

"As submissions point out, 'Stark clearly establishes that it is not necessarily important that the sexual assaults be of a different nature or involve different types of offences'. Blanch J in MJW in determining whether or not various acts were related did take into account, inter alia, the nature of the acts. I do not consider that the nature of the various acts is the sole factor in determining whether or not the acts are separate or related ...".

The Tribunal then mentioned that the offences did occur at different locations but noted that they were all within the confines of the Children's Home. Finally, the Tribunal referred to the fact that whilst the Act was a piece of beneficial legislation, its language is to be construed in the light of authority.

24 The respondent says that the Tribunal just never mentioned at all the effect on the victim of the assaults and while it did not altogether dismiss the matter of age, it did not give any weight to it. In the Tribunal's penultimate paragraph it noted that the acts were committed by the same offender against the same victim over a prolonged period of time in the course of an association, contact or relationship which enabled repetition, the nature of the acts were generally the same and that, in the opinion of the Tribunal, the acts were related acts constituting a single act of violence.

25 On appeal, by way of prerogative order, Justice Rothman disagreed with the Tribunal. His Honour said at [47]:

"I consider that the approach of the Tribunal discloses error in that it treats relationship as defined, simply, by the formal positions of perpetrator and victim, and treats the fact of the same relationship as mandating a finding that the acts were related, without regard to the changing circumstances of the victim, in terms of age, location and nature of the offences."

26 Mr Hutley SC, who appeared for the appellant with Ms Spruce, puts that, with respect to his Honour, that was not a fair and accurate summary of the Tribunal's decision.

27 The appellant's argument correctly states that there are three aspects to the error that the primary judge attributed to the Tribunal, viz:

(a) The Tribunal defined "relationship" as simply the formal relationship of victim and perpetrator;

(b) The Tribunal treated the mere fact of a formal relationship of victim and perpetrator as sufficient to result in the acts being related; and

(c) The Tribunal failed to have regard to the victim's age and the location of the offences.

28 The appellant submits that when one applies the test discussed by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259, 272 and 291, the Tribunal did not make any such error at all. In my view, that submission should be upheld but I will deal with it in more detail shortly.

29 The primary judge also considered that the decision of the Tribunal was wholly irrational and capricious and that the Tribunal gave inadequate reasons. I consider these matters are really bound up in the same considerations as the first and that neither is established.

30 I am conscious that when one is construing an Act one is in many respects performing an easier task than the person who drafts the Act, but with respect, the present Act is not well drafted to deal with fact situations which can vary immeasurably, one from the other.

31 The focus is on what are "related acts". Lord Denning MR said in Regina v Sheffield Crown Court; Ex parte Brownlow [1980] QB 530, 539 that the word "related" can mean "closely related to", or indirectly or distantly related to, or somewhere in between. Insofar as personal relationships are concerned, in one sense it can be said we are all related to Adam but people generally would more easily understand one saying that one is related to one's son or daughter. It is a matter for construing each piece of legislation to see what the legislator intended. Unfortunately, little indication is given in the present legislation.

32 Section 5(3) says that an act is related to another act if both are committed against the same person at approximately the same time. However, one can see that there may be situations where a person is unfortunate enough to be mugged by two separate gangs on the same day and it would not appear sensible to say that the act meant that those two crimes were related.

33 Then we get "for any other reason related to each other". Normally one would read those words ejusdem generis except that there is no genus, one cannot even apply the rule that general words are read noscitur a sociis; again there are no "friends" of the word "related". Again the legislature is a little obscure in that subs (3) deals with two acts and uses the word "both" but subs (4) then goes on to talk about "a series of related acts". So one looks to see whether two acts are related under subs (3) and if the answer to that is in the affirmative, then one has related acts and then one has to proceed and ask whether acts other than those two form part of a series.

34 The word "series" connotes "cases where the relationship between the [assaults] is an integral and not a fortuitous one depending merely on such circumstances as contiguity in time or place" (per Greene LJ in Attorney General v Cohen [1937] 1 KB 478, 491). In Distillers Co Bio-Chemicals (Aust) Pty Ltd v Ajax Insurance Company Ltd (1974) 130 CLR 1 at 6, Menzies J said: "The word 'series' does, I think, normally carry with it the notion of a sequence with some connection between the items in the sequence." In the same case, Stephen J said at 21 that series denoted "a number of events of a sufficiently similar kind following one another in temporal succession." He followed what Lord Justice Greene had said in Cohen's case.

35 I believe that it is of some significance that in defining category 3 sexual assault the word "pattern" of abuse is used. The prime meaning of "pattern", according to the Oxford English Dictionary, is "an example or model deserving of imitation". A pattern of abuse indicates that there has been a particular form of abuse and thereafter it has been either exactly imitated or alternatively, other acts which fit in closely with the original model have occurred.

36 If one has to look first for that sort of pattern, it would be odd if one also had to look for the same thing for related acts because, almost by definition, where there has been a pattern of abuse there must be related acts if that were so. However, that argument was not relied upon by the Tribunal and this is not a case where we are ourselves making the decision: we are deciding whether the primary judge was wrong in finding that the Tribunal made the wrong decision.

37 Prima facie what we have here is a series in the sense referred to by those learned judges. However, it would be falling into error to decide this case on such a basis because the question here is not what this Court would have done, but rather whether the Tribunal, to whom the matter was committed, has made a determination outside its mandate.

38 Accordingly, matters of speculation have little part to play in our consideration. I say this because it does not take much imagination to see that the legislation, as construed by the Tribunal, can have bizarre consequences. For instance, if, in the instant case, the attacks on JM had ceased for a few years and then recommenced, it may well have been that she would have received multiple awards of $50,000 for each tranche of the assaults. That position might even have been the same had there been persons in authority at the home who, independently of each other, assaulted JM at different times. It is odd that, in a worse situation for JM, which in fact occurred, where she was raped regularly week by week and either whipped with the "red strap" or beaten with a pepper tree branch if she did not submit, she gets far less compensation.

39 There is nothing to suggest, one way or the other, whether the Tribunal took these matters into account and it may need be that there are other examples based on different constructions of the Act which may also lead to apparently bizarre results. It may well be that this is why the legislature enacted s 39(3) so that there would not be litigation over what is essentially a rather difficult matter of degree. It will be remembered what is called "the beard argument", that is, although it is very difficult to draw the line between a man whose facial hair has grown after not shaving for a few days from a man who has actually started to grow a beard one can still truly say "that man has a (or has no) beard". So in the present case it may be very difficult to draw the line as to where there are related matters and where there is not and the legislature's intent is to leave these matters to the Tribunal without further close examination.

40 I earlier referred to the case of Wu Shan Liang.

41 The plurality at 272 quoted with approval the words of Brennan J in Attorney General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 35-36:

"The duty and jurisdiction of the Court to review administrative actions do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the Court avoids administrative injustice or error, so be it; but the Court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."

42 As to the reasons, in Wu's case the plurality at 271-272 quoted the decision of the Federal Court in Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287, "the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error". The High Court then said:

"These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed."

43 Kirby J, who agreed with the plurality, set out a number of propositions at 291-293 to the same effect. However, his Honour did note that, whilst the basal proposition was directed to a tribunal consisting of lay people, it was appropriate to take into account the fact that the Tribunal did not consist of untrained lay people, and indeed in Wu's case consisted of lay people who were specialised in that area of decision-making and had access to good legal advice (p 292, proposition 6). Likewise, in the instant case, one takes into account the fact that the Tribunal does appear to have been constituted by a legally trained and highly qualified magistrate.

44 In the present case, we have here a reasoned decision. The decision considers the principal aspects of the matter, and it is not appropriate to speculate that it may have perhaps not considered other factors to be of importance, or alternatively, given more weight to some factors and less weight to others than this Court would have done. Furthermore, the matter of what is related, at least by inference from s 39(3), is a very awkward matter which the legislature seems to have committed to the Tribunal.

45 Although one might at first blush think that a decision which says that a woman who has been raped 500 times between the age of 5 and 15 by the same man are so related that she should only get one piece of compensation is capricious, when one looks at the structure of the legislation that conclusion does not follow. Indeed, the Act is so drafted that it may well be that whatever construction one puts on the Act, one comes to an odd result in many cases.

46 Thus I do not agree that the Tribunal's reasons were inadequate.

47 Nor do I agree with Rothman J's assessment that the Tribunal's decision was capricious. It may be that an uninformed layperson could consider the Tribunal's decision or its consequences to be bizarre. However, that is the fault of the way the legislation is drafted rather than the fault of the decision maker. Furthermore, as noted earlier and further noted below, whatever construction of the legislation one takes, one probably ends up with some strange consequences.

48 Accordingly, in my view, there was insufficient justification, with respect to his Honour, to set aside the Tribunal's decision.

49 It must always be remembered that it is the role of this Court to supervise the Tribunal and to see to it that proper decisions are upheld and defective decisions set aside. The Supreme Court's views of the merits are irrelevant. On this point I gratefully adopt Macfarlan JA's exegesis of the legal principles.

50 The result of this case may well be thought by many in the community to be one which should be studied hard by the proposed Committee that is to review the procedure in New South Wales courts for reviewing decisions of inferior tribunals. It may be that a power to review decisions like this one on the merits may have turned in a different result. It may be that the community generally would have thought that a different result was appropriate. However, all of that at the moment is irrelevant as this Court's sole function is to say that the decision was committed to a tribunal, the Tribunal has made its decision within its powers and it has to be upheld.

51 Accordingly, in my view, the appeal should be upheld with costs, the judgment of Rothman J set aside and the decision of the Tribunal restored.

52 SACKVILLE AJA: Young JA has set out the background to this appeal and the relevant provisions of the Victims Support and Rehabilitation Act 1996 (NSW) (" VSR Act "). The arguments advanced by the appellant were narrow in scope.

53 Mr Beech-Jones SC, who appeared for the first respondent (" JM "), did not submit that the Victims Compensation Tribunal (" Tribunal ") had misconstrued s 5(3) and (4) of the VSR Act , the terms of which have been set out by Young JA. Nor did Mr Beech-Jones seek to support a number of criticisms made of the Tribunal's decision by the primary Judge.

54 Mr Beech-Jones' principal argument on the appeal was that the Tribunal, in determining that all of the offences perpetrated against JM were related acts or a " series of related acts ", did not take into account the great differences in JM's age at the times the various offences occurred. It followed, so he argued, that the Tribunal had failed to take a relevant consideration into account. The Tribunal therefore committed an error of law which justified the primary Judge's grant of prerogative relief.

55 In my opinion, the Tribunal's reasons, when read fairly in the manner required by Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259, at 272 per Brennan CJ, Toohey, Gummow and Gaudron JJ, demonstrate that the Tribunal did take into account that JM was subjected to repeated sexual assaults when she was aged from five to 15. The Tribunal also clearly appreciated that the nature of a sexual assault on a five year old child may be different from a sexual assault perpetrated on a 15 year old girl, although each is obviously an extremely serious criminal offence.

56 The Tribunal expressly noted that JM's representatives had argued that the differences in her age at the times the various assaults occurred provided a basis for distinguishing each of the assaults for the purposes of s 5(3) and (4) of the VSR Act . The Tribunal also noted that JM's written submissions had developed the argument summarised in the Tribunal's reasons. This was clearly a reference to the written submissions incorporated in JM's notice of appeal to the Tribunal. Those submissions contended that there was a significant difference between a sexual assault on a young girl aged five and a sexual assault on a girl aged thirteen. JM's written submissions also argued that:

"[t]he different ages, maturity and understanding of the acts of violence [of the victim] suggest that they are separate and not part of the same pattern."

57 Further, the Tribunal expressly found that the offences occurred over a period when JM was aged five to 15 years. The reasons recorded her age at the time of each of the offences upon which she relied on to support her claim to compensation and stated that she had endured " ongoing sexual abuse over a period of some 10 years ". However, the Tribunal observed that in circumstances where the abuse was ongoing, JM's age at the times the various sexual assaults occurred did not necessarily lead to the conclusion that the assaults were not related acts.

58 Under the heading " Are the acts related acts ?", the Tribunal reasoned as follows:

"The acts were committed by the same offender against [JM] over a prolonged period of time and it was the association, contact or 'relationship' between the parties that enabled the repetition of the offence in those circumstances ... The nature of the acts was generally the same."

59 In determining whether the Tribunal failed to take into account JM's age at the times of the various offences, it is necessary to bear in mind a number of matters: the Tribunal accurately summarised the argument advanced on JM's behalf; it correctly recorded her age at the time the various offences occurred; and it gave reasons, albeit brief, for rejecting the argument that her age at the relevant times militated against a conclusion that the offences were not a series of related acts. In these circumstances, I do not think it can be said that the Tribunal failed to take into account JM's age at the time the offences occurred in reaching its conclusion.

60 Mr Beech-Jones also submitted that the Tribunal had erred in that it treated the fact that the victim and the perpetrator had an ongoing relationship as sufficient to establish that each of the sexual assaults was related to the others and that the assaults constituted a series of related acts. In making this submission, Mr Beech-Jones appeared to adopt the primary Judge's view (at [39]) that it was difficult to discern the Tribunal's reasons for being satisfied that the sexual assaults perpetrated on JM were all acts related to each other in the relevant sense.

61 In my opinion, the Tribunal did not assume that a relationship between the victim and the perpetrator was sufficient to establish that each criminal act was related to the others. The Tribunal took into account a number of other factors, which it identified in its reasons. These included the common nature of the sexual assaults perpetrated on JM; the position of dominance maintained by the perpetrator over JM for the entirety of their relationship; the fact that all the assaults took place at the same general location; and the regularity of the abuse, on average once a week, through the whole of the period.

62 I therefore do not think that the primary Judge was correct in concluding that the Tribunal had not explained its finding that the sexual assaults were related to each other. Nor do I think that the Tribunal committed the error of law attributed to it by Mr Beech-Jones.

63 As Young JA points out, the result in the present case might be seen by many as harsh. It is, however, the consequence of a statutory scheme which provides compensation for victims of crime, but in a manner which attempts to curtail the costs of the scheme. Not infrequently, legislation which seeks to reconcile competing objectives can lead to apparently anomalous or harsh results.

64 In Victims Compensation Fund Corporation v Brown [2003] HCA 54; 201 ALR 260, Heydon J (with whom all other members of the Court agreed) commented (at [29]) on the approach to construction of the VSR Act :

"It is ... not a decisive argument against [a particular] construction that it is possible to point to various outcomes of it which might be thought irrational, anomalous or harsh. ... Even if [the construction] were considered harsh or anomalous, it could not be said that this would be fatal to the construction urged by the appellant if the text otherwise required that construction. The introduction of caps and limitations upon recovery, usually justified by reference to supposed affordability, has been a relatively common feature of Australian compensation legislation in recent times."

See also Victims Compensation Fund v Brown [2002] NSWCA 155; 54 NSWLR 668, at [8]-[11], per Spigelman CJ.

65 If the statutory scheme provides inadequate compensation to a victim of the appalling pattern of sexual abuse to which JM was subjected, the solution must be found in a review of the legislative scheme that has produced the result. The difficulty facing policy makers, within a framework in which the resources available to compensate victims of crime are limited, is to ensure that curing one anomaly or injustice does not create worse anomalies or injustices.

66 For these reasons, I agree with the orders proposed by Young JA.

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Decision last updated: 13 April 2011