Appellant v Respondent

Supreme Court of Victoria|2009-04-23|Before: KAYE J

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL - Appeal to Supreme Court - Whether reasons inadequate so as to constitute an error of law.

1 On 9 January 2006, the appellant ("BR") made an application to the respondent, the Victims of Crime Assistance Tribunal ("VOCAT"), for assistance pursuant to the Victims of Crime Assistance Act 1996 ("the Act"). In her application, BR alleged that she had been the victim of violence, consisting of sexual assault and threats to kill, by her husband D from 2001 to 2005. BR's application was heard by VOCAT on 6 June 2007. On 22 June 2007, a member of that Tribunal delivered its decision, rejecting BR's application for assistance. On 18 September 2007, BR made an application to the Victorian Civil and Administrative Tribunal ("the Tribunal") for review of the decision of VOCAT. That application was heard by a deputy president of the Tribunal on 30 April 2008. By her decision dated 25 August 2008, the deputy president affirmed the decision of VOCAT, and dismissed the application for review by BR. The appellant, by leave, now appeals the decision of the deputy president of the Tribunal pursuant to of the .

2 Under the Victims of Crime Assistance Act 1996, any person who is a "victim" of an "act of violence" is entitled to apply to VOCAT for compensation. Section 3(1) defines "act of violence" to mean a criminal act, or a series of criminal acts, which have directly resulted in injury or death to one or more persons. "Injury" is defined by s 3(1) to include both actual physical harm, and mental illness or disorder.

3 The appellant's case, before VOCAT and the Tribunal, and in this Court, is that during her relationship with D, she was subjected to acts of violence, consisting of a number of acts of rape. Section 38(2) of the Crimes Act provides that a person commits rape if he (or she) intentionally sexually penetrates another person, without that person's consent, either while being aware that the person is not, or might not be, consenting, or while not giving any thought to whether the person is not, or might not be, consenting. Section 36 of the Crimes Act defines "consent" to mean "free agreement". It further provides that the circumstances, in which a person does not freely agree to an act, include (inter alia) the following:

"(a) The person submits because of force or the fear of force to that person or someone else;

(b) The person submits because of the fear of harm of any type to that person or someone else."

4 The evidence before the Tribunal consisted of two statements made by the appellant to the police dated 15 December 2005 and 21 December 2005. The appellant also gave evidence before the Tribunal, and she was briefly cross-examined.

5 The appellant was born in 1978. She met D in October 2001, and they married in November 2002. There were two children of the marriage, a daughter born in January 2003, and a son born in November 2004. The appellant and D separated in December 2005, shortly before the appellant attended upon the police.

6 It is not necessary to set out the appellant's evidence at length. During the first six months of their relationship, the appellant and D were both using amphetamines. The appellant desisted from taking that substance when she became pregnant with her daughter. Shortly after they commenced living together, D's flat was burgled and vandalised. At that time, D was on parole, and he was reporting to parole officers. Early in their relationship, D told the appellant that his late stepfather "M" had been a "hit man", and that friends of M were "looking out for him". He told the appellant that associates of M were "hanging around our place and us, keeping us safe". He told the appellant a lot of stories about different people who were after them. In her statement, she said that D seemed to know a lot about hit men and bounty hunters "and stuff like that".

7 In about August 2002, D told the appellant that M was in fact alive. D continued to tell the appellant that people were still "after" them, and that they were still being given protection. At about that time, D began to tell the appellant that M and other people would contact him and make demands, such as that D's and the appellant's house had to be cleaned within a short time, and that they had to purchase particular items for the house. D told the appellant that one of the people who was watching them and providing them with protection, "T", wished to have sex with her. D told the appellant that at that time he was getting threatening phone calls. The appellant states that she was "getting quite fearful by this stage", so that D telephoned T and said that she would have sex with T. D then told the appellant that T first wished to watch D and the appellant having sex. D told the appellant that T had had cameras installed in the house so that he could watch what was going on.

8 In the next three years D, on a number of occasions, told the appellant that T, M and other people would telephone him and demand that he and the appellant perform particular sexual acts together. D told the appellant that the cameras which had been installed in the house would enable those people to see what they were doing. D told the appellant that the men who were making the demands would require that certain sexual acts be performed, often for lengthy periods of time, and, on some occasions, several times in one day. The appellant stated that she believed the threats that were being made to D, as relayed to her by D.

9 In her first statement, the appellant stated that every time she questioned what the people wanted them to do, D would tell her that they would say "you value your kids' lives don't you?". In her evidence in chief before the Tribunal, the appellant stated that she complied with the threats, which were relayed to her by D, because of her fear that otherwise the appellant, D and their children would be in danger. She said that D told her, "If you don't do it, you'll get killed. They'll come after you". She also stated that on one occasion a threat was made to interfere with her young daughter, if she did not comply with the particular requests which, D said, were made by the other people.

10 The appellant stated that although she would have continued to have sexual intercourse with D if the particular threats had not been relayed to her, she would not have indulged in the particular acts required of her by D, unless he had told her of the threats which were being made by the other people. She stated that early in their relationship D had requested her to perform those acts, and she had refused. She had told D that she did not like performing those acts. In her evidence before the Tribunal, she stated that she found those acts made her feel "disgusting".

11 Ultimately, in December 2005, the appellant spoke to her church pastors. They told her that she could either continue doing what she was doing, stay with D and refuse to perform the acts required of her, or go to the police. She said that she had previously suggested to D that they should go to the police, but he had told her that it was dangerous, that she would be dead within a week, and that M would take their children and train them to be hit men. A few days after consulting the pastors, the appellant and her children left D, and she went to her mother's residence. It was then that she first consulted the police.

12 In the proceedings before VOCAT, the appellant relied on two statements to the police. In addition, the senior constable, who was responsible for investigating the complaint of the appellant, gave evidence. He stated that he believed that the appellant had been telling him the truth, when she stated that she truly believed that her life, and the lives of her children, were at risk if she did not do as she was told. When D was interviewed, he made no comment in response to the allegations made by the appellant. The brief of evidence was not authorised for prosecution, and advice from the Office of Public Prosecutions confirmed that it was not appropriate to charge D. The VOCAT member stated that she found that the appellant had been honest in her evidence that she had believed her husband's lies. However, the member was unable to conclude that the acts, which the appellant had been required to perform with her husband, constituted "acts of violence". Accordingly, she dismissed the application.

13 During the interlocutory stages of the application by the appellant to the Tribunal, the parties each filed submissions. The respondent's "statement of legal contentions", filed with the Tribunal, noted that the review by the Tribunal was a hearing de novo, but that the respondent accepted the facts contained in the appellant's two statements to the police. The respondent's written submissions stated that the "issue for determination" was whether those facts, as contained in the appellant's two statements, constituted an "act of violence" within the meaning of s 3 of the Act. In the written submissions, the respondent contended that the acts, described in the appellant's statements, did not constitute acts of violence. In response, submissions were filed on behalf of the appellant, contending that the acts described by the appellant in her statements did constitute acts of violence for the purposes of s 3 of the Act.

14 Notwithstanding the concession made by the respondent in its written submissions, when the matter came on for hearing, the respondent's counsel submitted that there was an issue of fact to be determined by the Tribunal, namely "whether or not a reasonable person would have, in fact, believed the threats to have been real". The deputy president decided that she should hear evidence from the appellant. Accordingly, the appellant gave viva voce evidence, and was briefly cross-examined. It is relevant to note that it was not suggested in cross-examination, nor in final submissions on behalf of the respondent, that the appellant had concocted her account, or that she had been untruthful in any respect in her evidence.

15 In oral submissions before the Tribunal, it was submitted on behalf of the appellant that, during the period of her relationship with D, she had been raped by D. It was submitted that D had made threats to the appellant that she, and her children, would be harmed or killed, if she did not comply with the requirements made of her. The appellant participated in the particular sexual acts required of her because of the "second hand threats" related to her by D. Accordingly, it was submitted that the appellant had not consented to the acts, as she had submitted to them because of a fear of harm or force to her and to her children. Thus, it was submitted that D had raped the appellant during the period of their marriage.

16 In reply, it was submitted by counsel for the respondent that the only question for issue for determination by the Tribunal was a "legal question", namely whether the fear of force or harm required by s 36 of the Crimes Act "must be a reasonably held belief" by the appellant. He further submitted that the Tribunal must determine whether the offender (D) was aware that the appellant was not, or might not, be consenting, because of her fear of the threats relayed to her.

17 At the conclusion of the proceedings before the Tribunal, the deputy president reserved her decision. She gave written reasons for that decision on 25 August 2008. In paragraphs 1 to 11 of the reasons, she set out the background to the matter, and quoted some extracts from the appellant's statements to the police. The deputy president then (in paragraphs 12 to 16) described the nature of the application made by the appellant, the nature of the proceedings before the Tribunal, and the requirement that the appellant establish an "act of violence" under s 3 of the Act. She noted that the appellant's counsel had submitted that the appellant had engaged in sexual acts without her consent as defined by s 36 of the Crimes Act, and accordingly that she had been subjected to rape by D. The Deputy President then stated her conclusions as follows:

"19 It is evident from her statements and her evidence that her whole relationship with BD (D), starting when they were both taking amphetamines, had an air of fantasy about it, including some at least of the sexual activity.

20 Her response now is that such sexual activity was not consensual. That is in hindsight. Whether she did consent, or perhaps whether it can be shown that her husband knew that she was not consenting, is quite another matter.

21 In the circumstances therefore, where I have to be satisfied on the balance of probabilities that a relevant offence has been committed, dependant on both her absence of consent and his knowledge that her consent was not full, I am not so satisfied.

Decision

22 For these reasons, I affirm the decision of the respondent."

18 The notice of appeal contains five grounds of appeal. Essentially, they may be reduced into three separate grounds. First (grounds 1 to 3), the appellant contends that the Tribunal failed to give adequate reasons for its conclusions. Secondly (ground 4), the appellant contends that the Tribunal erred in its construction of s 36(2) of the Crimes Act in holding that a person could not be guilty of rape unless the person knew that the consent of the victim was not "full consent". Thirdly (grounds 5.1, 5.2), it is contended that the Tribunal erred in failing, in the face of the appellant's uncontradicted evidence, to be satisfied that the appellant had not freely consented, and that D knew or was aware that the appellant's participation was induced, or might be induced, by a fear of harm arising from the threats related to her by him.

19 The main focus of the submissions before me was on grounds 1 to 3, relating to the adequacy of the reasons given by the deputy president of the Tribunal for dismissing the appeal before her. Mr J Lavery, who appeared with Mr D Hancock for the appellant, submitted that, both pursuant to s 117(1) of the Victorian Civil and Administrative Tribunal Act 1998, and the common law, the Tribunal was required to provide adequate reasons for its decision. Mr Lavery submitted that the written decision of the Tribunal does not identify whether the Tribunal member accepted or rejected the evidence of the appellant as to the acts which, she had alleged, she had been required to perform with D. Further the deputy president did not state, in her reasons, whether she accepted, or rejected, the evidence of the appellant as to the threats which, the appellant alleged, had been conveyed to her by D. Nor did the deputy president state whether or not she accepted the evidence of the appellant that, as a result of those threats, she had been placed in fear, both for her own safety, and also in respect of the safety of her children. In particular, it was submitted that the Tribunal member failed to give any reasons as to why she was not satisfied on the balance of probabilities that the appellant had not consented to the sexual acts described by her in her evidence. It was further submitted that, if the deputy president had rejected the appellant's evidence to that effect, then she should have stated some reasons for doing so, given that that evidence was not only uncontradicted, but also not contested by the respondent before the Tribunal.[1] Further, it was submitted that, if the Tribunal accepted the evidence of the appellant as to the threats related to her by D, and that she had been put in fear as a result of those threats, the Tribunal gave no reasons for failing to be satisfied, in those circumstances, that D was aware that the appellant was not, or might not have been, consenting to the sexual acts alleged by her.

20 In respect of ground 4, it was submitted that the Tribunal member erred in law in holding that she was obliged to be satisfied that D did not know that the appellant's consent to the sexual acts "was not full". Mr Lavery submitted that there is no requirement that the prosecution prove that the accused was not aware (or might not have been aware) that the complainant's consent was not "full". It is only necessary for the prosecution to prove that the accused was aware that the complainant was not, or might not be, consenting to the act of sexual penetration complained of.

21 Finally, in relation to ground 5, Mr Lavery accepted that it was open to the Tribunal not to be satisfied of the account of the allegations given by the appellant. However, if the Tribunal accepted the account of the appellant, then, it was submitted, the Tribunal could have been in "no doubt" that D had been aware that the appellant was not, or might not have been, consenting to the acts of sexual penetration complained of by her.

22 In her skilful submissions in response, Ms R Ellyard, who appeared for the respondent, commenced by identifying the principles applicable to the appeal. First, she correctly pointed out that an appeal, under s 148 of the VCAT Act, is not an appeal on the merits. Rather, the appeal is in the nature of a judicial review, limited to an examination of the legal correctness of what the Tribunal has done.[2] Secondly, where the question is the adequacy of the reasons for decision given by the Tribunal, it is important to take into account that a Tribunal is not expected to provide reasons which are as thorough as those of a court. Further, it is recognised that the reasons of the Tribunal should be construed beneficially, and the court should not be concerned with "looseness of language" or infelicitous language adopted by the Tribunal.[3] Thus, in construing and examining the reasons given by a Tribunal, it is important that they be read and analysed in the context of the materials put before the Tribunal, and the evidence given to the Tribunal.[4]

23 Ms Ellyard submitted that it was implicit, from paragraph 19 of her reasons, that the deputy president did accept the account given by the appellant of the sexual acts of penetration by her husband D. She submitted, however, that the deputy president was not satisfied, to the requisite degree of satisfaction, that the appellant did not consent to those acts, nor was she satisfied that D was aware that she was not, or might not have been, consenting to them. In this context, Ms Ellyard referred to a part of the transcript of the evidence of the appellant before the Tribunal. At the conclusion of the appellant's evidence, and the cross-examination of her, the deputy president questioned the appellant about her evidence that the impression she gained from D was that if she went to the police she would be dead within a week, and that M would have her children "to train them as hit men". When asked by the deputy president, the appellant stated that, at that time, her youngest child was not even one year of age. The deputy president then asked "Well, how on earth could that be the case if they were that age?" Ms Ellyard submitted that that question, asked by the deputy president, demonstrated that the deputy president had reservations as to the credibility of the appellant. In paragraph 19 of her reasons, the deputy president referred to the appellant's evidence of having "an air of fantasy". In paragraph 20, she stated that the allegation by the appellant, that the sexual acts of which she complained were not consensual, was "in hindsight". Ms Ellyard submitted that those three matters, taken together, are sufficient indications, in the reasons of the Tribunal, that the Tribunal was not sufficiently satisfied with the evidence given by the appellant so as to be persuaded, on the balance of probabilities, that the sexual acts of which she complained were not consensual, and, in addition, that D had been aware that she was not, or might not have been, consenting to them. Ms Ellyard submitted that the Tribunal is a busy Tribunal, and that such a statement of reasons by it was a sufficient indication to convey the basis upon which the appellant's appeal to the Tribunal failed.

24 Ms Ellyard further submitted that ground 4 of the appeal should be rejected. She submitted that the use by the deputy president of the term "full consent" was a shorthand method of referring to the relevant principle, namely, that the appellant was required to establish that D was aware that she had not been, or might not have been, consenting to the sexual activity of which she complained. In respect to ground 5, Ms Ellyard submitted that it was open to the Tribunal to reject the appellant's evidence. Further, if the Tribunal accepted the appellant's evidence, it was nonetheless open to the Tribunal to not be satisfied on the balance of probabilities that D had been aware that the appellant had not been, or might not have been, consenting to the sexual activity complained of.

Grounds 1 to 3: adequacy of the reasons for decision of the Tribunal

25 There are two principal reasons why a court is required to give adequate reasons for its decision. Those reasons apply, with appropriate adjustment, to a body, such as the Tribunal, which is required by law to give reasons for its decision. First, in cases in which an appeal lies, the provision of reasons for a decision identifies for the appellate court the reasoning and basis upon which the decision under appeal was made.[5] Secondly, a failure by a judge, or Tribunal, to provide appropriate reasons can engender a real sense of grievance by the losing party, who is left ignorant as to why the decision, adverse to its interests, has been made. In that way the provision of adequate reasons is important in maintaining public acceptance of judicial, and quasi judicial, decisions, and the integrity of the judicial process.[6]

26 Where, as with s 148 of the VCAT ACT, an appeal to a court or tribunal is confined to an appeal on a question of law, the degree of detailed reasoning required of the Tribunal is less than that required of a court whose decision might be appealed on a question of fact.[7] In such a case, what is required is that the decision of the Tribunal reveal the ground for the decision made by the Tribunal.[8] Thus, in Lucas v Transport Accident Commission[9], Osborn J described the requirement of the Tribunal in the following terms:

"It is nevertheless generally incumbent upon a tribunal such as VCAT which is obliged to give reasons, and exercises a quasi judicial function in cases where argument and analyses are advanced on either side, to enter into the issues canvassed before it and explain why it prefers one case over the other."

27 In order to succeed before the Tribunal, the appellant was required to satisfy the Tribunal, on the balance of probabilities, that she had been subjected to acts which constituted the crime of rape. Thus, essentially, she had to prove, on the balance of probabilities: first, that she had been subjected to acts of sexual penetration by D; secondly, that those acts were done by D without her consent; and, thirdly, that D was aware that, or did not give any thought to whether, the appellant had not been, or might not have been, consenting to those acts.

28 The ultimate conclusion by the deputy president was that the appellant had failed to prove, on the balance of probabilities, that she had been subjected to acts of rape by D during their relationship. In determining the adequacy of the reasons given by the deputy president for that decision, the appropriate starting point is the evidence of the appellant, in her two witness statements which were tendered, and in her viva voce evidence, before the Tribunal. In her evidence, the appellant described a number of sexual acts which, she stated, she had been required to perform with D, including acts of sexual penetration. She said that before she had performed those acts, D had relayed to her threats that, if she did not perform those acts, her children and herself would be harmed, or killed. In her evidence, she stated that she believed those threats, which caused her to be fearful for the safety and lives of herself and her children. She stated that she had participated in those acts, including acts of sexual penetration, because of her fear for the lives and safety of herself and her children. She further stated that she would not have participated in those acts, but for the fear engendered by the threats related to her by D.

29 Thus, if the Tribunal had accepted the evidence of the appellant, to which I have just referred, the Tribunal would, necessarily, have concluded that the appellant had submitted to acts of sexual penetration by D without her consent. I agree with Ms Ellyard's submission that it is implicit in the reasons of the deputy president that she accepted the evidence of the appellant that the particular sexual acts were participated in by the appellant. Nevertheless, the deputy president was not satisfied that the appellant did not consent to those acts, nor was she satisfied that D had been aware that the appellant had not been, or might not have been, consenting to them. However, there is nothing contained in the reasons of the Tribunal as to why the deputy president was not satisfied as to those two elements of the crime of rape. There are some "hints" contained in the brief reasons for decision, and in particular by the reference of the deputy president to "fantasy" and "hindsight". It may be possible to infer some dissatisfaction by the deputy president with the evidence given by the appellant, at least in respect of the threat she stated was made to her that, if anything happened to her, M would gain possession of the children, and would influence them to become hit men. However, those "hints" are not an adequate substitute for proper reasons.

30 In the first place, the reasons of the Tribunal do not indicate the basis upon which the deputy president was not satisfied, on the balance of probabilities, that the appellant had not consented to the acts of sexual penetration of which she complained. In particular, it is not clear, from the brief reasons given by the deputy president, whether she was not satisfied as to the evidence of the appellant that threats had been relayed to her by D, or as to the evidence of the appellant that those threats caused her to fear for the life and safety of herself and her children, or both. That is, it is not clear whether the deputy president accepted or rejected the whole, or part, of the evidence of the appellant, that, during their marriage, D had related to her various threats to the life and safety of herself and her children. Equally, it is not clear whether the deputy president accepted or rejected, in whole or in part, the evidence of the appellant that those threats made her fearful for the life and safety of herself and her children, and that, as a result of that fear, she agreed to participate in the sexual acts of which she now complains.

31 Thus, the reasons of the deputy president simply do not identify the basis upon which the deputy president was not satisfied as to the evidence given by the appellant that she had not consented to the sexual acts of which she now complains. It is, therefore, not possible for an appellate court to assess whether the Tribunal made an error of law in not being satisfied that the appellant had not consented to the acts of sexual penetration, of which she complained to the Tribunal. In particular, it is not possible to determine whether the Tribunal applied the correct legal tests to determining that issue. In light of the uncontested evidence of the appellant that she would not have participated in those acts if not for the fear engendered by the threats related to her by D, the appellant would be entitled to entertain a real sense of grievance in the absence of any explanation for the failure of the Tribunal to be satisfied as to the absence of her consent to the acts.[10]

32 Further, if the deputy president rejected, in whole or in part, the evidence of the appellant that threats had been related to her by D, or that as a result of those threats she submitted to the sexual acts to which she now takes exception, it was necessary for the Tribunal to provide reasons for rejecting those aspects of the evidence of the appellant. The testimony of the appellant was not only uncontradicted, but, more importantly, it was not challenged before the Tribunal by the respondent. Indeed, the evidence had been accepted as credible by VOCAT. In a case such as this, in my view, it was incumbent upon the deputy president to state, albeit in brief compass, why she did not accept a particular aspect or aspects of the evidence of the appellant as to her lack of consent to the sexual acts, if indeed the Tribunal did not accept such evidence. A magistrate, whose decision might only be reviewed on an issue of law, is nonetheless required to give reasons for rejecting uncontradicted reasonable and inherently probable evidence.[11] That requirement equally applies to a body such as the Tribunal, whose decisions might be appealed to the Supreme Court on a question of law. The requirement is particularly pertinent in a case such as this where, as I have stated, the evidence of the appellant was not under challenge before the Tribunal, either in cross-examination, or in final address. In those circumstances, if the Tribunal were to have rejected a material aspect of the evidence of the appellant - in particular, that D had relayed to her threats to the safety of herself and her children, or that she had subjected herself to the sexual acts because of those threats - the rejection of that evidence by the Tribunal should not only be clearly stated, but should also be justified by the provision of appropriate reasons.

33 In the same way, in my view, the Tribunal has failed to give any reasons or explanation as to why it came to the conclusion that it was not satisfied that D knew that she had not, or might not have, consented to the sexual acts of which she complained. In her second statement, the appellant described how, at the commencement of her relationship with D, she told him that there was "no way" that she would participate in the sexual acts, which she stated she later did participate in because of the threats to the safety of herself and her children. In her first statement, she stated that every time that she questioned the demands related to her by D, she would be told, "You value your kids' lives don't you?". When she suggested to D that they should report the matter to the police, D told her that it was dangerous. In her evidence, she said that D would tell her that if she did not do the acts required of her, "You'll get killed, they'll come after you". She said that she felt "disgusting" when she engaged in the sexual activities required of her. She said that she told that to D, who responded that he could not do anything about it. In her first statement, she stated that on one occasion she sought to test the story of D by turning off the mobile phone from which D claimed to have been receiving his instructions. When D saw her doing so, he said "I'm only going to tell you this once, don't touch his phone".

34 As I stated, if the Tribunal accepted the evidence of the appellant that she only performed the sexual acts because of the threats relayed to her by D, then the Tribunal would, necessarily, be satisfied that the appellant had not consented to the acts of sexual penetration described by her in her evidence. It would be a matter for the Tribunal whether it would also be satisfied of the third element to the crime of rape, namely, that D had not been aware that the appellant had not been, or might not have been, consenting to those sexual acts. However, if the Tribunal accepted the evidence of the appellant which I have set out above, it would be surprising, to say the least, if the Tribunal did not infer, on the balance of probabilities, that D had been aware that the appellant had not, or might not have, consented to the sexual acts described by her.[12] In those circumstances, it behoved the deputy president either to identify the part or parts of the evidence of the appellant, to which I referred, which she did not accept, or to explain why, notwithstanding her acceptance of that evidence, she was not satisfied on the issue of the awareness of D of the lack of consent by the appellant. Further, to the extent to which the deputy president did not accept a relevant part or parts of the evidence of the appellant to which I have referred, the deputy president was obliged to state why she did not accept that part or those parts of the evidence of the appellant.

35 Accordingly, in my view grounds 1 to 3 of the notice of appeal are made out. The Tribunal failed to give adequate reasons for its decision. As stated by Mandie J in SMA Projects Pty Ltd v Jovanovic[13]:

"... A failure by VCAT to give adequate oral reasons (where written reasons have not been requested) constitutes an error of law because inadequate reasons are not 'reasons' within the meaning of section 117(1) of the VCAT Act, and further, or alternatively, because the inadequacy of itself constitutes an error of law, or leads to the inference that the tribunal has not exercised its powers according to law."

36 Accordingly, the appellant has established that the Tribunal made an error of law, in failing to give adequate reasons pursuant to s 117(1) of the VCAT Act. In light of those conclusions, I shall deal only briefly with the remaining two grounds of appeal.

37 I do not consider that ground 4 of the notice of appeal has been sustained. I agree with the submission by Ms Ellyard that the reference by the deputy president, in paragraph 21 of her reasons, to the question of the appellant's consent not being "full", was merely a shorthand, if infelicitous, reference to the requirements that the appellant establish that she did not consent to the acts complained of, and that D was aware that she had not, or might not have, consented to those acts.

38 Ground 5.1 of the grounds of appeal is that the Tribunal erred in failing to be satisfied that the appellant had not freely consented to the sexual acts of which she complained. In submissions, Mr Lavery accepted that it was open to the Tribunal to reject the evidence of the appellant as to her lack of consent to the sexual acts, provided it gave adequate reasons for doing so. Thus, Mr Lavery did not pursue ground 5.1 of the notice of appeal. Similarly he accepted that it was open to the Tribunal not to be satisfied that D knew, or was aware, that the appellant might not have been consenting to the acts. In each respect, Mr Lavery's point remained that the Tribunal had failed to give any, or any adequate, reasons for not being satisfied of the issue of consent and as to the issue of D's knowledge of the lack of consent.

39 For the reasons which I have set out, I uphold grounds 1 to 3 of the grounds of appeal. In particular, I am satisfied that the Tribunal erred in law in failing to give any, or any adequate, reasons for its conclusion that it was not satisfied, on the balance of probabilities, that the appellant had not consented to the sexual acts of which she complained, and that D had been aware that she had not, or might not have, consented to those acts.

40 It was common ground that if I found that the Tribunal erred in law in that respect, I should uphold the appeal, and remit the matter to be heard by a differently constituted Tribunal. I agree with the parties that, in the circumstances of this case, such a course is appropriate.[14]

41 Accordingly, and subject to hearing from counsel, I propose to make the following orders:

(1) The appeal from the decision of the deputy president of the Victorian Civil and Administrative Tribunal dated 25 August 2008, be allowed.

(2) The decision of the Victorian Civil and Administrative Tribunal dated 25 August 2008 be set aside.

(3) The matter be remitted to the Victorian Civil and Administrative Tribunal for re-hearing before a Tribunal other than the deputy president who heard the matter below.

[1] Read v Nerey Nominees Pty Ltd [1979] VicRp 6; [1979] VR 47, 52.

[2] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue of the State of Victoria [2001] HCA 49; (2001) 207 CLR 72, [15]; Whitehorse City Council v Golden Ridge Investments Pty Ltd & Ors [2005] VSCA 198, [8]-[9].

[3] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 271-272.

[4] Tower Australia Ltd v Filippis [2007] VSC 236, [13] (Bell J).

[5] Pettitt v Dunkley [1971] 1 NSWLR 376, 388 (Moffitt JA).

[6] Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; [1989] VR 8, 18 to 19 (Gray J); Beale v Government Insurance Office of NSW (1997) 48 NSWLR 440, 442 (Meagher JA); Fletcher Construction Australia Pty Ltd v Lines Macfarlane & Marshall Pty Ltd (No 2) [2002] VSCA 189; (2002) 6 VR 1, 30-34 [99]-[106]; Intertransport International Private Ltd v Donaldson [2005] VSCA 303, [18] (Chernov JA).

[7] Perkins v County Court of Victoria [2000] VSCA 171; (2000) 2 VR 246, 273 (Buchanan JA).

[8] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 282 (McHugh JA).

[10] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 442 (Meagher JA).

[11] Hardy v Gillette [1976] VicRp 36; [1976] VR 392, 396 to 397 (Anderson J); Read v Nerey Nominees Pty Ltd [1979] VR 46, 52 (Marks J).

[12] Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470, 480-481 (Williams, Webb, Taylor JJ); Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125, 129 (Winneke P), 141 (Tadgell JA); Chapman v Cole [2006] VSCA 70, [14] (Callaway JA).

[13] [2006] VSC 176, [38]; see also Hamilton v White [2001] VSC 2, [32]-[37] (Balmford J).

[14] Cf Body Corporate Strata Plan (No 4166) & Ors v Stirling Properties Ltd [1984] VicRp 73; [1984] VR 903, 913 (Ormiston J); Clarke v National Mutual Life Insurance Ltd [2007] VSC 398, [70] (Forrest J); Treacy v Newlands [2008] VSC 395, [31] (Beach J).

Crime Assistance Act 1996

Civil and Administrative Tribunal Act 1998

At a glance

Court

Decision date

Before

Source

Judgment (66 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (8)