Alfonso v Northern Territory of Australia & Anor [1999] NTSC 117; 131 NTR 8; 153 FLR 286

Territory of Australia" for "The Solicitor for the Northern Territory".

On 14 May 1997, the appellant, who is a traditional Aboriginal woman then

aged 57 years, was raped by Thompson Jagamara Driver (the offender) at

her home � a tin shed at Kargaru Camp, Tennant Creek. At the time, she did

not know the identity of the offender, another Aboriginal. She later told her

niece what had happened. The matter was reported to the police and the

appellant was taken to the Tennant Creek Hospital where she was medically

examined. Subsequently, the offender was charged and after a committal

hearing, he was dealt with by this Court. On 27 February 1998, this Court

convicted him of attempted rape and sentenced him to a term of

At the hearing before Ms Deland SM, the learned Magistrate accepted that

on the evidence placed before her, the appellant had in fact been raped.

The appellant's evidence before the learned Magistrate consisted of: a

certificate of conviction (which was tendered but not marked as an exhibit �

the certificate is nevertheless on the Local Court file); a number of

affidavits (principally those of the appellant); and a number of letters,

medical reports and a psychological report. No witnesses were called to

give evidence or to be cross-examined. No evidence was led on behalf of

the respondents. The learned Magistrate held that she was unable to be

satisfied that the offence had resulted in any injury to the appellant, and

The Notice of Appeal, as amended, alleged that the learned Magistrate erred

in law in not finding that the appellant suffered an "injury" as defined and

that the learned Magistrate should have found that the appellant suffered

bodily harm, mental injury and shock. It is not necessary to consider the

other grounds of appeal. The situation in this case is that the facts are not in

dispute. If the appellant can show that the evidence can reasonably lead to

but one conclusion, viz., that the case falls within the meaning of "injury" in

the statute, and that no different conclusion is reasonably possible, that is an

error of law: see Chabrel v Northern Territory of Australia and Mills

(1999) NTSC 113, at para [19], and the authorities therein referred to.

"Injury" is defined by s4(1) to mean "bodily harm, mental injury, pregnancy,

mental shock or nervous shock", but does not include an injury arising from

the loss of, or damage to, property (unless loss or damage is the result of an

offence relating to that property). Mr Lawrence, counsel for the appellant,

submitted that the uncontested evidence established that the appellant had

Counsel for the respondent, Mr Anderson, submitted that the expression

"bodily harm" should be given the same meaning as it is given by the

definition section (section 1) of the Criminal Code, viz., "any physical

injury that interferes with health". Mr Anderson referred me to Wayne v

Boldiston [1992] NTSC 42; (1992) 85 NTR 8, a decision of my own, where I examined the

meaning to be given to that definition. Mr Lawrence submitted that the

meaning to be given to the expression "bodily harm" in t he Code is more

restricted than the meaning to be given in the Crimes (Victim Assistance)

Act, but that, in any event, the appellant satisfied the criteria discussed in

There are some circumstances when courts have resorted to definitions of a

term in one Act to ascertain the meaning of the same term in another Act. In

Federal Commissioner of Taxation v Henderson [1943] HCA 46; (1943) 68 CLR 29, Latham

CJ, with whom Rich J concurred, referred to the definition of the word

"mine" in the Mines Act (Victoria) to show that the words "mining

operations" in s78 of the Income Tax Assessment Act were not limited to

excavation or underground mining and may include the sluicing and

treatment of tailings: see also Imperial Chemical Industries of Australia

and New Zealand v Federal Commissioner of Taxation [1972] HCA 75; (1972) 46 ALJR 35 at

41, per Walsh J, and, on appeal[1972] HCA 75; , (1972-73) ALR 715 at 730, per Gibbs J.

However, as Pearce and Geddes, Statutory Interpretation In Australia, 3

Edition, at 54, point out, "whilst definitions of terms in like Acts must be

viewed with caution, they should not be entirely disregarded". The question

is whether the Acts are "like Acts" or, if the Acts were in para materia. As

Sugarman J pointed out in M Collins & Son Pty Ltd v Bankstown Municipal

Council (1958) 3 LGRA 216, interpretation clauses very often involve some

artificial extension or limitation of the natural meaning of a word or

It is difficult to see how it could be suggested that the Criminal Code and

the Crimes (Victims Assistance) Act are "like Acts" or Acts in para materia.

The latter Act is remedial legislation, designed to provide compensation to

the victims of crime. The Criminal Code purports to be a codification of the

Not all statutory provisions similar to the Crimes (Victim Assistance) Act in

other jurisdictions use the expression "bodily harm", although some do, or

have done so. In Queensland, at least until 1995, the relevant provisions

were included in the Criminal Code (Qld), Chapter LXVA, and the

definition of "injury" in s663A included "bodily harm" which was in turn

defined by s1 to mean "any bodily injury which interferes with health or

comfort". In R v Morrison, ex parte West (1998) 2 Qld R 79, the Court of

Appeal considered that the statutory definition limited, not extended, the

meaning of "bodily harm". In New South Wales, the relevant definition of

"injury" under s437(4) of the Crimes Act and s2 of the Criminal Injuries

Compensation Act meant "bodily harm and includes pregnancy, mental

shock and nervous shock". In Reg. v Fraser (1975) 2 NSWLR 521, Wootton

...these words are intended to embrace all forms of personal injury,

whether physical or psychological. The words "bodily harm", even

when accompanied by the adjective "actual", are themselves

understood to include any hurt or injury calculated to interfere with

the health or comfort of the victim. They have been specifically held

to include an injury to the victim's state of mind: R v Miller [1954] 2

...In short, it seems to me that under this section compensation for

injury can be just as comprehensive as damages for personal injury in

In S v Turner (1979) 1 NTR 17, Muirhead J considered the meaning to be

given to the expression "bodily harm" as it appeared in the definition of

"injury" in the fore-runner to the Crimes (Victims Assistance) Act , viz., the

Criminal Injuries (Compensation) Ordinance 1976. At that time, the

definition of "�njury" was defined by s2 as meaning "bodily harm and

includes pregnancy, mental shock and nervous shock". At that stage, the

Criminal Code (N.T.) had not been enacted. His Honour followed and

adopted the approach of Wootton J in R v Fraser, supra.

In my opinion, there is no justification for giving the expression "bodily

harm" the restricted meaning given to that expression in the Criminal Code.

The preferred meaning is that explained by Wootton J in R v Fraser as

expounded by Muirhead J in S v Turner. This follows from a number of

considerations. First, the words "bodily harm" were so interpreted in similar

Acts not affected by the definition in the Code. Secondly, the Crimes

(Victims Assistance) Act and the Criminal Code are not similar Acts and are

not in para materia. Thirdly, being remedial legislation, the Act should be

Mr Lawrence submitted that the mere fact that the appellant was raped, was

in itself bodily harm. In S v Turner, supra, Muirhead J said, at p20:

It seems to me that the act of rape, sexual intercourse without

consent, must be taken into account and regarded in itself as "bodily

harm" compensable as injury. To hold to the contrary would have

the result in some cases of denying other than nominal compensation

to those who have been victims of one of the worst crimes of

violence known to the criminal law. So in assessing compensation in

this case I pay regard to the violation of this young woman's body

during the commission of the offence and I categorize such violation

In this case, in addition to the mere finding that the appellant was raped,

there was in fact other evidence of bodily harm. The circumstances of the

rape, according to the appellant's evidence, were that as she entered her

home, she was grabbed at by the offender. She told the offender to go away,

that she was tired and wanted to sleep. She lay down on her bed. The

offender then pulled his pants down, climbed onto the bed, and pulled her

skirt up. She resisted him and yelled out for help. He pulled her pants

down, put his hands around her neck and over her mouth, and told her to

shut up. He then had vaginal sex with her. She was left crying and upset,

but because of her intoxication, fell asleep for a short time. She said that it

hurt inside her for a week afterwards. On examination at the hospital, only

an hour after the rape, the examining doctor, Dr Hand, observed that she had

a sore shoulder, which was markedly tender to touch; the front part of her

neck was swollen and also markedly tender; there was marked reduction in

the range of movement in her right shoulder; there was soreness in the right

arm, and a very small superficial laceration to her right check. The

following morning, Dr Hand said that the neck was still swollen and tender.

The report of a psychiatrist who examined the appellant six months later,

...diminished movement on her right side, particularly around the

shoulder. She often rubbed her right shoulder with her left hand.

When I asked about her shoulder problems she hinted that this was a

product of being grabbed around the neck apparently at the time of

The learned Magistrate said, in her written reasons, that the basis for the

claim was that there was a mental injury. Her Worship did not consider

whether or not there was bodily harm. It is clear that counsel who appeared

for the appellant submitted that she had suffered bodily harm. I note that

her Worship was not referred to S v Turner, supra. Perhaps, had counsel in

the court below referred her Worship to that case, the result would have

been different. Nevertheless, it is clear that the evidence established that

the appellant suffered bodily harm and her Worship erred in refusing her a

Mr Lawrence also submitted that there was evidence that the appellant

suffered a mental injury. I was referred by counsel to a number of

authorities which examine the meaning to be attributed to "mental injury" as

it appears in the definition of "injury". It is not necessary to review them,

as I have recently referred to the relevant authorities in Chabrel v Northern

Territory of Australia and Mills, supra, at paras [12] and following. The

evidence of a mental injury is to be found in the report of a psychologist, Ms

Jane Vadiveloo, who referred to the appellant being:

...visibly upset when she spoke of the rape. She became silent and

teary and it was very difficult for her to communicate her

experiences. At times she gave a brief laugh of embarrassment as

she explained what she experienced...Ms Alfonso expressed her fear

at the time of the assault when she was grabbed by the man. She also

explained her ongoing fear which is acute at night time. She

indicated that she continues to think about the event every day.

She presents with clear indications of trauma as reported in her

heightened fear of night time since the event, and her repeated

thoughts of the event on a daily level...There does not appear to be

indicators for depression or severe anxiety...She presents with post-

trauma symptomology as a result of being raped...She continues to

feel intense emotions of sadness and shame when discussing the

event...The assault that she experienced is likely to result in

persistent fears and sensitivities, particularly at night time.

The evidence before the learned Magistrate contained other material which

was admittedly not helpful. The report of the psychiatrist, Dr Jackson,

indicated that the appellant had no memory whatever of the rape or any

surrounding details, and spoke of the difficulties he had in elucidating any

useful information from her. It is not surprising that a relatively elderly

Aboriginal woman, living a traditional life-style and whose command of the

English language is limited, would have difficulty discussing this with a

white, male doctor. This was commented upon by Ms Vadiveloo as well,

Age, cultural and language issues limit the type and depth of

information shared in interviews such as this. In this circumstance

an older woman was having to communicate her experiences

surrounding a rape to a younger woman (the writer) from a different

cultural and language background...The use of formal assessment

tools and diagnostic criteria for the assessment of...disorders is not

Her Worship does not seem to have rejected the claims because of the

inability of the appellant to describe her experiences to Dr Jackson. Her

Worship seems to have accepted Ms Vadiveloo's report. She said:

Whilst I accept, she may have some heightened awareness,

particularly at night, an an (sic) ongoing recollection of the event, I

am not satisfied without further symptoms, that that constitutes a

I consider that the learned Magistrate's conclusion is erroneous. In Chabrel,

supra, paras [14] to [17], I followed the South Australian authorities which

held that it is not necessary to show that the appellant suffered any mental

or psychiatric illness, and that mental injury includes emotional upset if it

caused actual injury to physical or mental health going beyond mere grief.

Clearly the evidence in Ms Vadiveloo's report fits this description.

The appeal must be allowed. As the facts are not in dispute, I consider that

I should myself decide upon the quantum of the certificate rather than

The appellant was aged 57 years at the time of the rape. She is married with

a number of children and grandchildren. She lives a traditional lifestyle.

Her first language is Alyawarr. She has lived in the Tennant Creek area

most of her life. She presented to the psychologist as a quiet and dignified

woman. The rape was violent, although it was not the most violent of its

kind. She was placed in fear. She suffered a terrible affront to her dignity

and invasion of her privacy, followed by humiliation and hurt, and ongoing

shame and fear which has remained and is lik ely to result in persistent fears

and sensitivities, particularly at night time. In the assault she suffered

injuries to her shoulder and neck, and mild pain in her right arm, and a small

laceration to her face. The injury to her shoulder has produced some

limitation of movement to her right shoulder which was still evident six

months later, although, there is no evidence that the injury to the shoulder is

permanent. She was also tender in the vaginal area for about a week after the

rape. No allowance under the act is permitted for aggravated or exemplary

damages (as to which, see LMP v Collins and Others [1993] NTSC 12; (1993) 112 FLR 289 at

304. and leaving those factors aside, I am satisfied that an award of damages

would, particularly in view of her ongoing mental injury, exceed $25,000. In

LMP v Collins, supra at p309, Kearney J adopted an observation of Mr Gray

SM in J v Northern Territory (unreported, Local Court, N.T., 2 August

In this, as in most, if not all, rape cases, the emotional and

psychological impact was infinitely more serious than the short term

physical impact and trauma. Indeed the true trauma is of

In this case there was also some bodily harm which was of more than a

transient nature, but otherwise this is an apt description. I also note the

observations of Wootton J in R v Fraser, supra, at 523-525 adopted by

Kearney J in LMP v Collins at pp 310-311, especially where the authorities

discuss the difficulties of witnesses being able to express in their own words

the nature and extent of their psychological injury, and the need for the

court to approach the task "in a broad and largely arbitrary or subjective

assessment of what, according to current community attitudes, would be

I therefore order that a certificate be issued for the sum of $25,000.

Pursuant to s8(10) of the Act, I further order that the respondents pay the

appellant's costs and disbursements in the Local Court action to be taxed by

the Local Court, and that the Northern Territory of Australia pay the

appellant's costs of this appeal to be taxed by the Master.