D v B [2008] TASSC 36

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Orders for compensation, reparation, forfeiture and other matters relating to disposal of property - Compensation - Tasmania - Sentencing Act 1997, s68 - Documents admissible on application.

Sentencing Act 1997 , ss4, 68, 81.

R v Monks [2001] TASSC 41; (2001) 122 A Crim R 324; R v McDonald [1979] 1 NSWLR 451; R v Bowen (1969) 90 WN (NSW) 82; Fitzpatrick v R [2004] WASCA 99; (2004) 146 A Crim R 332; Australian Associated Motor Insurers Limited v Galvin [2005] TASSC 87; (2005) 15 Tas R 104; R v Kneeshaw [1975] 1 QB 57 referred to.

Judgment Number: [2008] TASSC 36

1 On 7 August 2007, KTB ("the respondent") entered a plea of guilty on an indictment dated 29 June 2007 to one count of maintaining a sexual relationship with a young person under the age of 17 years contrary to the Criminal Code Act 1924, s125A. Upon that plea being taken, a Crown statement of facts was read, a victim impact statement was provided and counsel for the respondent put forward a plea in mitigation. On 10 August 2007, the respondent was convicted of the crime and sentenced to a term of imprisonment.

2 On 4 January 2008, a written application for compensation pursuant to the Sentencing Act 1997 ("the Act"), s68, was filed with the Court on behalf of TAD ("the applicant"). It was supported by an affidavit of the applicant sworn 14 December 2007. The sexual relationship, the subject of the respondent's plea, subsisted between 21 February 1972 and 20 August 1975. The applicant was the victim of the crime. She was born on 25 April 1963 and was, therefore, 8 years old when the relationship began and 12 years old when it ended.

"68 (1) If a person is found guilty or convicted of an offence and the court finds that another person has suffered injury, loss, destruction or damage as a result of the offence, the court -

(a) must, if the offence is burglary, stealing or unlawfully injuring property; and

order the offender to pay compensation for that injury, loss, destruction or damage.

(2) In making an order under subsection (1), the court may direct that the compensation be paid by instalments and that, in default of payment of any one instalment, the whole of the compensation remaining unpaid becomes due and payable.

(3) An order under subsection (1) may be made by the court -

(i) by a person in whose favour the order is sought; or

(ii) on that person's behalf by the DPP, if the sentencing court was the Supreme Court, or the complainant or police prosecutor, if the sentencing court was a court of petty sessions.

(4) An application under subsection (3)(b) is to be made as soon as practicable after the offender is found guilty or convicted of an offence.

(5) Nothing in subsection (3)(b)(ii) requires the DPP or the complainant or police prosecutor to make an application on behalf of a person.

(6) A court may exercise its powers under this section if the facts sufficiently appear from any evidence or material presented to the court, or from the available documents, together with admissions made by or on behalf of any person in connection with the proposed exercise of the powers.

(7) In subsection (6),

'the available documents' means -

(a) any written statements or admissions that were made for use, and would have been admissible, as evidence on the hearing of the charge; or

(b) the depositions taken at the committal proceeding; or

(c) any written statements or admissions used as evidence in the committal proceeding.

(8) Nothing in this section takes away from, or affects the right of, any person to recover damages for, or to be indemnified against, any injury, loss, destruction or damage so far as it is not satisfied by payment or recovery of compensation under this section.

(9) In determining, for the purposes of this section, the amount of loss, destruction or damage to property that a person has suffered as a result of an offence, the court is not bound by the rules of evidence and it may inform itself in any matter in any way it considers appropriate."

4 On 4 February 2008, the learned sentencing judge held a directions hearing in respect of the application for compensation which was attended by counsel for the applicant, the respondent and the Crown. He had identified issues which he anticipated would result in the application being opposed. After hearing submissions, his Honour ordered that:

- The applicant file and serve any material upon which she proposed to rely in relation to the question of whether her application had been made as soon as practicable.

- The applicant's counsel provide a list of that material he proposed should be had regard to in the event the court exercised its discretion in the applicant's favour.

- Whether the application was made as soon as practicable.

- If yes, should the Court exercise its discretion in the applicant's favour (what do "facts" mean)?

- If yes, what material is admissible upon the assessment of damages and can the respondent challenge any of it?

5 By way of compliance with the first direction, the applicant filed with the Court two affidavits, one by her solicitor Robert John Blissenden sworn 6 March 2008 and one by herself sworn 17 March 2008. By way of compliance with the second direction, the applicant's solicitors wrote to the Court and advised that the following material would be relied on for the purpose of any assessment:

(a) affidavit of Robert John Blissenden sworn 6 March 2008;

(b) Victim Impact Statement signed by the applicant dated 27 July 2007;

(c) statutory declaration of the applicant dated 5 September 2006;

(d) Crown statement of facts and transcript of their being put to the Court;

(e) the indictment upon which the respondent pleaded guilty;

(f) the comments on passing sentence on 10 August 2007;

(g) the report of clinical psychologist Dr Julian Watchorn dated 2 October 2007;

(h) plea in mitigation presented by counsel for the respondent and the transcript thereof; and

(i) affidavit of the applicant sworn 13 March 2008.

6 The preliminary issues came on for hearing on 17 April 2008, by which date the learned sentencing judge no longer held office. No issue was raised at the hearing about the power of a judge of the Court, other than the learned sentencing judge, to deal with the application for compensation generally.

7 For the purpose of determining the three identified preliminary issues, counsel for the applicant sought to rely on three affidavits, being those sworn by the applicant on 14 December 2007 and 17 March 2008, and that sworn by the applicant's solicitor on 6 March 2008. Counsel for the respondent expressed some concern about this because she did not wish to concede admissibility of all material for the purpose of the application for compensation as a whole without the ability to challenge it. It was agreed that, for the purpose of determining the preliminary questions, the contents of those affidavits could be relied upon by the applicant and would otherwise be taken de bene esse. The parties also had available to them a transcript of the sentencing hearing to which reference was made, and a transcript of the directions hearing proceedings.

The first question - Was the application made as soon as practicable?

8 During the sentencing hearing on 7 August 2007, the following exchange occurred between Crown counsel, Mr Stoddart, and the learned sentencing judge:

"MR STODDART: Thank you, your Honour. May I, on behalf of [TAD], foreshadow an application that may be made to you by a private practitioner on her behalf pursuant to s68 of the Sentencing Act, which is the compensation provisions.

HIS HONOUR: So who's going to make this application?

MR STODDART: Mr Blissenden.

HIS HONOUR: Sorry?

MR STODDART: Mr Robert Blissenden, not on this date, your Honour, he's seeking legal aid to enable him to do that, but he's asked me to just foreshadow that he may make an application to the Court in this matter for [TAD] under s68 of the Sentencing Act.

HIS HONOUR: All right. Need I look at it now?

MR STODDART: No, your Honour, it's just an order for compensation."

By letter of the same date, Mr Stoddart wrote to the Court and said:

"The two complainants in this matter have given notice that a claim for compensation may be made under S68 of the Sentencing Act 1997. Two practitioners, Mr R Blissenden of Blissenden Lawyers and Ms K Bradshaw of Clerk Walker may make this application, if granted legal aid to do so.

In the course of the disputed plea before the Chief Justice, I gave notice of this application.

I request this report (prepared for trial) be filed with the [KTB] papers in anticipation of any claim being made."

The report referred to related to a complainant other than the applicant.

9 It is quite clear that the issue of a compensation claim by the applicant pursuant to the Act, s68, was being contemplated well prior to the date upon which the respondent was sentenced. Mr Blissenden corresponded with Mr Stoddart about a possible application as early as March 2007, and sought counsel's advice about the applicant's eligibility, by letter dated 19 April 2007. That advice was received on 24 May 2007, and shortly thereafter Mr Blissenden wrote to the Director of Public Prosecutions. Mr Ellis SC responded in the following terms:

"Subject to further discussion which I am more than happy to have with you, I think the best position for me would be to instruct counsel to make the application on behalf of your client upon [KTB's] conviction, assuming that will transpire, and then have that adjourned for argument to be taken over by you on behalf of your client as to whether it is appropriate that an order be made at all and, if so, how compensation will be assessed."

At the time, the applicant was being treated by a psychologist. On 1 August 2007, Mr Blissenden, for the purpose of ascertaining whether there was merit in proceeding with an application, wrote to the applicant's psychologist asking certain questions. In particular, he asked whether the applicant had suffered a psychiatric injury as a result of the respondent's abuse and, if so, what the nature of that injury was, and when did it manifest itself. As a consequence of the response he received, he telephoned Mr Stoddart, and referred him to Mr Ellis' advice. He made a note of the conversation to the effect that "He'll make application and request that it be adjourned to be argued by other counsel". Mr Blissenden spoke again with Mr Stoddart after the sentencing hearing. His note of that conversation was "Application pursuant to Section 68 was foreshadowed and noted on the file by the Chief Justice."

10 Over the next two months, Mr Blissenden sought a detailed report from the applicant's psychologist. That was received on 22 October 2007. He then prepared an affidavit for the applicant and had it sworn. Some delay occurred during this process, referable to the applicant's psychological difficulties which prevented her leaving her home and attending upon various professionals. On 7 November 2007, Mr Blissenden sent a letter to counsel from whom he had sought advice in April. That letter read as follows:

"We refer to previous correspondence. We are now in a position to proceed with TAD's application.

What I have done is forwarded to you the correspondence to the court together with the application and supporting documentation. I have done so in the hope that you are happy to cast your eye over the documentation before it is filed, and if you find no fault with it to send it onto the court. Obviously the court will return the sealed documentation to me whereupon I will arrange service upon [KTB] and send you the other set."

The letter to the Court sent to counsel read as follows:

"We act for the Applicant and enclose for filing:

1 Application pursuant to Section 68 of the Sentencing Act, 1997;

2 Applicant's Affidavit in support of application; and,

3 Applicant's Submissions prepared in anticipation of the issue of jurisdiction; being a preliminary matter for the court's consideration.

Please note that Counsel William Ayliffe has been briefed to appear on the hearing of the application."

11 On 23 November 2007, counsel advised he had misplaced the documents sent to him. He undertook to look further for them, but confirmed on 4 December they were lost. Mr Blissenden had heavy work commitments over the next week or so. He also found that he had not kept full copies of material obtained from the Crown for the purpose of the application. He therefore not only had to obtain further copies of that material from the Crown, but also to recreate and have re-sworn his client's affidavit. Once that was done, he repeated the exercise with counsel by sending all the new material to him under cover of a letter dated 17 December. Mr Ayliffe subsequently forwarded the documents to the Court.

12 Counsel for the applicant analysed the reasons for the delay in filing the application between 10 August 2007 and 4 January 2008. He submitted that a proper analysis of the activity between those dates was that Mr Blissenden was of the view that it was at least highly desirable, if not essential, that a report of the applicant's psychologist was filed with the application. He appeared to be of the view, in effect, that the application should be in a position to be argued when filed, and that it was insufficient to simply file the application and have it adjourned to obtain supporting material. This would seem to be a fair assessment by counsel of the situation.

13 The application for compensation in this case was made by the person in whose favour the order was sought (the Act, s68(3)(b)(i)). The Act, s68(4), required that such an application "is to be made as soon as practicable" after the relevant conviction. This issue was dealt with by Evans J in R v Monks [2001] TASSC 41; (2001) 122 A Crim R 324. There were distinct parallels between that case and that of the applicant. The applicant in that case was the victim of sexual offences and sought compensation for a psychiatric injury. The application was not made at the time of sentence. It was made two months and 17 days later. The respondent in that case opposed the application on the basis it was not made as soon as practicable. He also opposed it on the basis that it was not an appropriate case in which the Court should exercise its discretion to grant compensation.

14 At pars7 and 8 of his decision, Evans J dealt with the issue of the time within which the application was made. He said:

"Pursuant to s68(4) the Court's jurisdiction is contingent upon the application for the compensation order having been made "as soon as practicable after the offender is found guilty or convicted". The phrase, "as soon as practicable" is intended to impose a time limit on the making of an application and that limit is to be assessed by reference to considerations of reasonable practicality. A determination as to whether or not something has been done as soon as practicable after an occurrence, requires the consideration of all the surrounding circumstances; MMI-CMI Insurance Limited & Zaganite Lake Asphalt Co (Tas) Pty Ltd v Budgen (unreported, Supreme Court, Tas, Green CJ, No 5 of 1992, 21 February 1992) at p 3 and McMillan v Territory Insurance Office [1988] NTSC 155; (1988) 57 NTR 24 at 26 - 27. The purpose of s68 is to provide a means for straightforward claims to be dealt with quickly and at minimal cost. It is intended to facilitate claims and, consistent with that intent, I consider that the requirement for claims be made as soon as practicable should be construed generously in favour of claimants. I adopt the following passage from Vision Nominees Pty Ltd v Pangea Resources Ltd (1988) 14 NSWLR 38, Bryson J at 43:

'The range of facts and circumstances which can bear on what is practicable is a wide range: the choice of that word is a choice away from the narrow, the restrictive and the theoretical. A requirement that a meeting is to be held as soon as practicable is not a requirement that a meeting be held as soon as possible, nor in the least time which can be arranged.'

Time should be allowed to address any matters which warranted attention before the making of the application including the lapse of some time, provided it was a short time, in the course of that process; Richards v Schutt (1978) 18 SASR 421 at 425 and Magain v Roberts (1991) 14 MVR 313 at 320."

Having set out the law, Evans J applied it to the facts of the case and said at par9:

"No satisfactory explanation has been given for this delay. Nothing the applicant's solicitor did during the intervening period warranted the delay. I am accordingly of the view that the application was not made as soon as practicable after the respondent's conviction."

15 Counsel for the applicant does not cavil with the law to be applied in relation to this issue as canvassed by Evans J and, with respect, I adopt the statements from Monks (supra) set out above. Counsel, however, does submit that there are factual differences between that case and the present which should result in there being a different outcome.

16 In the present case, the applicant's solicitor had, prior to sentence of the respondent, obtained advice about the making of an application and liaised with the office of the Director of Public Prosecutions. It is clear that he anticipated that, at the sentencing hearing, consistent with correspondence from that office and discussions with the relevant Crown counsel, Crown counsel would make an oral application for compensation, and then have that application adjourned. Crown counsel, who appeared on the sentencing hearing did not, however, make the application. He "foreshadowed" an application by the applicant's solicitor. Mr Blissenden was aware that was what had happened, and I infer, assumed his client's position was protected by what had occurred. There can be no doubt, however, that the respondent was, as at the date of his sentence, on notice that an application was to be made.

17 There is, in this case, as distinct from Monks, an explanation for the delay which then occurred before the written application was filed. That explanation encompasses a number of different matters. Principally, there was the applicant's solicitor's approach in obtaining a detailed psychological report prior to filing. That, in my view, was not an unreasonable approach to take. This was an application out of the norm in that it relied on psychiatric injury, and the solicitor clearly anticipated an argument about jurisdiction. Not unreasonably he wished to be well prepared. The process he undertook to fulfil that wish was then frustrated by a number of other events. There was the applicant's own psychological difficulties, delays by her psychologist, and delays caused by the need to recreate documentation to support the application when documents were lost by counsel. All of this was against the background of the respondent having been put on notice of the application on 7 August. These facts lead me to the conclusion that, in the circumstances of this case, the written application filed 4 January 2008 was made as soon as practicable.

The third question - What material is admissible upon the assessment of damages and can the respondent challenge any of it?

18 Counsel for the applicant submitted that it would be more appropriate to deal with the third of the preliminary questions before the second. Counsel for the respondent did not oppose that course of action.

19 The parts of the Act relevant to this question are s68(6) and (9), which are set out in par3 of these reasons. The Act, s68(6), provides that a court may exercise its powers, that is, to order the payment of compensation, if it has found a person has suffered injury, loss, destruction or damage as a result of an offence, if the facts sufficiently appear from:

- any evidence or material presented to the Court, or

- any written statements or admissions that were made for use, and would be admissible, as evidence on the hearing of the charge; or

- the depositions taken at the committal proceeding; or

- any written statements or admissions used as evidence in the committal proceeding;

- together with admissions made by or on behalf of any person in connection with the proposed exercise of the powers.

Section 68(9) provides that the Court is not bound by the rules of evidence and may inform itself in any appropriate way when determining "the amount of loss, destruction or damage to property" suffered. This subsection is expressed to apply only to the determination of claims with respect to loss, destruction or damage to property, and not those arising from injury.

20 Counsel for the applicant submitted that the approach adopted by Evans J in Monks' case to the interpretation of the Act, s68, insofar as the question of what evidence was admissible on the assessment of damages, was unduly restrictive and that his views on this issue are no longer good law. He submitted that the views were expressed without his Honour being referred to decisions such as R v McDonald [1979] 1 NSWLR 451 and R v Bowen (1969) 90 WN (NSW) 82, which were referred to in Fitzpatrick v R [2004] WASCA 99; (2004) 146 A Crim R 332, which decision, he submitted, was cited with approval in Australian Associated Motor Insurers Limited v Galvin [2005] TASSC 87; (2005) 15 Tas R 104.

21 It is useful to start an examination of these questions by looking at the context in which the issues were dealt with in Monks' case. That case was disposed of on the basis the application was not made as soon as practicable. However, Evans J went on to consider the second basis for opposition even though he did not have to. The second basis was that the Court should exercise its discretion to refuse the application.

22 His Honour firstly considered the role of compensation legislation of this type generally. He said at par11:

"Legislation giving a court dealing with an offender power to order the offender to pay compensation to a victim is common throughout Australia and the United Kingdom. The general purpose of the legislation is to provide a summary and inexpensive method of compensating a victim for personal injuries or property damage. In an appropriate case, the legislation provides a convenient means for a victim to avoid instituting separate civil proceedings to recover damages. The legislation is not intended to cater for claims involving complicated or extensive inquiry or investigation; Kneeshaw [1975] QB 57 at 60, Braham [1977] VicRp 11; [1977] VR 104 at 110 - 111 and Ferrari [1997] QCA 73; [1997] 2 Qd R 472. If it appears to the court that there is a real issue to be determined, it should decline to make an order and leave the question to be determined by a civil court in accordance with its normal procedures; Landolt (1992) 63 A Crim R 220 and 223."

He ultimately concluded that the case under consideration was particularly difficult and complicated.

"The court may exercise its power to make a compensation order 'if the facts sufficiently appear from any evidence or material presented to the court, or from the available documents together with admissions' made by the offender for the purposes of the proposed order; subs(6). The evidence or material presented to the court is the evidence given on the offender's trial or material presented during the sentencing hearing. Section 68 makes no provision for the court to conduct a hearing in the nature of a trial to receive further evidence about a claim, save as provided when it is determining "the amount of loss, destruction or damage to property that a person has suffered"; subs(9). In that event, the court may inform itself in any way it considers appropriate. It is noteworthy that the application of subs(9) is confined to the court's determination of the amount of a property claim and it has no application to a personal injury claim. Whilst subs(1) empowers the court to make a compensation order when a 'person has suffered injury, loss, destruction or damage', a phrase which encompasses compensation for both personal injury and property damage, the occasions on which the court, when considering the amount of its determination, may have regard to evidence beyond that covered by subs(6) are confined by subs(9) to occasions when the court is determining 'the amount of loss, destruction or damage to property that a person has suffered'.

The applicant's claim for compensation is for his psychiatric condition, a personal injury. Ordinarily the information available to the court following an offender's conviction is patently insufficient to enable the court to assess the compensation payable to a victim who has suffered personal injury as a consequence of the offender's conduct. Much of the evidence that is relevant to a victim's entitlement to compensation is irrelevant and thus inadmissible on the offender's trial. This is particularly so in the case of a claim based on the psychiatric consequences of an offender's misconduct. It would be most unusual for expert evidence on these consequences to be given in the course of the trial. The same problem arises in relation to other aspects of a claim for compensation for personal injury. It is unlikely in the extreme that the victim would give evidence in the course of the hearing which adequately delineated an entitlement to compensation for such things as pain and suffering, past and future loss of earning capacity, past and future hospital and medical expenses and other items of special damage."

His Honour concluded that s68(6) referred to material available for the trial or sentencing process and that there was insufficient evidence available to provide any foundation upon which the court could assess the applicant's entitlement to compensation. Having reached the conclusions he did, he said that, had he been satisfied the application had been made as soon as practicable, he would have declined to exercise his discretion in favour of the applicant.

24 The cases to which counsel for the applicant referred dealt with legislation in three different States, New South Wales, Western Australia and Tasmania. R v Bowen and R v McDonald both dealt with the Crimes Act 1900 (NSW), s437. That section permitted a victim of crime to seek a direction for the payment of compensation on conviction "or at any time thereafter". The court in which the application was made had a discretion whether to make the direction, and the discretion to do so was not limited to any great degree. Street CJ said at 462 in McDonald's case (supra):

"As is noted in an instructive article upon the New South Wales provision, and similar provisions in other States, by Mr Westling in 48 ALJ 428, this approach has been expressly adopted in each other State where the legislation contains a provision such as s 437. But, whilst the provision is of a very summary nature, having the degree of procedural flexibility and informality noted by Reynolds J in R v Bowen (1969) 90 WN (Pt 1) (NSW) 82, at p 83, it is necessary to ensure at all times that there is due regard to the basic requirements of natural justice, that the parties have due notice and that they are afforded a sufficient opportunity of being heard. Whether or not this involves additional evidence being received will depend upon the particular circumstances of the case but ordinarily, as Reynolds J said in Bowen (supra), 'it was basically intended that the trial judge should inform himself from the evidence given at the trial or that other judge of the court should inform himself from the transcript'.

These observations are particularly appropriate where compensation is sought by the victim of a rape, inasmuch as there is wide recognition of the need to alleviate, so far as the principles of justice will permit, the ordeal undergone by the victim in being required to give evidence of the circumstances. On the other hand, a claim to have compensation assessed by reference to the whole spectrum of the aggrieved person's injuries, psychological as well as physical, could involve consideration of a body of evidence which would not have been admissible on the criminal trial. Again, a convicted person could on occasions justly seek the recall, for further cross-examination, of the aggrieved person or some other witness on the issue of compensation; he may seek also to call evidence himself on the issue. The aggrieved person may, and perhaps ordinarily does, only seek compensation 'merely on account of the damages which the injured party might recover in a civil court': Re Poore (1973) 6 SASR 308, at p 311, and thus might not seek to supplement the evidence. The determination of the quantum of compensation would not affect, as an issue estoppel, res judicata or otherwise, the amount of damages in a civil claim. Section 437A (2) commences: 'A direction under section 437 (1) shall not affect the right to bring the civil proceedings and the damages in the civil proceedings shall be assessed without regard to the direction ...'

The convicted person, however, as the party against whom the direction is enforceable, is entitled, if he so desires, to contest in the ordinary way the factual basis on which compensation is sought, be it all-embracing or be it limited."

25 Fitzpatrick v R (supra) was a decision of the Court of Criminal Appeal in Western Australia. In the judgment of the court, their Honours said at pars43 - 44:

"However, if an application for a compensation order in favour of a victim of the offence is made to a court sentencing an offender the court will have the power and the duty to consider any evidence which may be material to that application, whether in relation to issues of causation, quantum of loss or other factors which may, in the particular circumstances, be relevant to determine whether or not any loss established should be compensated in full or at all. The Judge who is required to assess compensation under s 117 should proceed by reference to the same principles as those which would apply in an action for damages for personal injury: R v Fraser [1975] 2 NSWLR 521 at 525 - 526 and R v McDonald [1979] 1 NSWLR 451 per Street CJ and Lee J. This approach will include the application of such rules as, by statute or otherwise, are currently applied in an ordinary common law action for damages, for example those relating to contributory negligence and mitigation of damages (Sentencing Act, s 113). The rules of natural justice must be observed. This will include an obligation to ensure that the parties, and in particular the offender, have due notice of the intended application and a sufficient opportunity of being heard. The onus of establishing an entitlement to compensation will be upon the applicant, that is either the State or the victim, and, except where this is agreed there will need to be evidence to establish the identity of the victim, the causation of the loss and its extent as well as any other facts which may need to be established in the particular case. Where there is a real issue whether the person claiming compensation has suffered any loss or as to the amount of his or her loss, the Court may not make a compensation order based merely on the prosecutor's representations to the court, but must require evidence proving the amount claimed as compensation: R v Horsham Justices; Ex parte Richards [1985] 1 WLR 986. Whether or not the hearing will involve the taking of further evidence will depend upon the circumstances of the case, but ordinarily the evidence given at the trial should be sufficient: R v Bowen (1969) 90 WN (Pt 1) (NSW) 82 at 83 and R v McDonald (supra). The facts which need to be established to make an order for compensation must be established according to the civil standard of proof: s 114 of the Sentencing Act and R v Field [1982] 1 NSWLR 488.

This may involve the court receiving evidence beyond that given at the trial. If the application for compensation is heard some time after the conviction and before a Judge other than the one who presided in the criminal proceedings - see Sentencing Act s 111(3) - then that Judge should determine the application on the basis of the transcript of the criminal trial together with such further evidence as may be necessary. Whenever the court is asked to consider making a compensation order, it may take into account as evidence any or all of the matters specified in s 112 of the Sentencing Act including: the evidence given during proceedings for the offence; any evidence given by a victim or offender in relation to the making of a reparation order; any pre-sentence report given to the court; any victim impact statement given to the court and any mediation report."

Slicer J quoted par43 with approval in Australian Associated Motor Insurers Limited v Galvin (supra). However, the issue of whether s68 was confined to material presented at, or prepared for, trial or sentence, in the context of a claim in respect of a personal injury, was not one he had to determine. That case dealt with an application to recover an asserted financial loss.

26 The provisions in New South Wales and Western Australia are in different terms from those in Tasmania. A common theme, however, is that the procedure for compensation following a conviction for a crime is seen to be of a summary nature. However, further evidence where necessary, beyond that given at trial or presented to a sentencing judge, is not precluded.

27 Section 68(6) permits the Court to exercise its powers "if the facts sufficiently appear from ...", identified material. That relates to any application under the section, whether it be one where the court must make an order or whether it is one where it may. Section68(9) then goes further, empowering the court, in circumstances limited to determining an amount of loss, destruction or damage to property - but not the quantum of damages relating to injury - to disregard the rules of evidence and inform itself in any appropriate way. These provisions go beyond those considered in the New South Wales and Western Australian cases to which the Court has been referred. In those circumstances, the Act, s68, should be interpreted according to its own ordinary meaning.

28 By s68(6) the legislature has limited the circumstances in which a court may exercise its powers to a particular situation, that is, to one where "the facts sufficiently appear". It has then permitted further material to potentially be considered, but only in a limited set of circumstances which do not apply here. I am of the view, in all the circumstances, that, insofar as this matter is concerned, that is an application relating to personal injury, the phrase "any evidence or material presented to the court" means any such material provided to the learned sentencing judge at the time of plea and sentencing. Such material, together with any "available documents" and any admissions made "by or on behalf of any person in connection with the proposed exercise of powers", is the admissible material upon which a court may exercise its power to order a payment of compensation.

29 Counsel for the applicant submitted that what the Court should have regard to on the assessment of damages for the applicant is:

- all material (including submissions) presented to the Court in the process of sentencing, including the Crown statement of facts and the applicant's victim impact statement;

- the "available documents" as defined by the Act, s68(7); and

- any evidence or material presented by either the applicant or the respondent during the course of, and for the purposes of, the assessment of damages.

30 The applicant's solicitors had already specifically identified what they sought to rely on. This is set out in par5 of these reasons. By reference to my determination as to the compass of s68(6) and the documents identified in the list in par5, the admissible documents are items (b), (c), (d), (e), and (h) in that list. Counsel for the applicant suggested that this approach would create an anomaly because this Court has had to have regard to further material for the purposes of considering the issue of whether this application was made as soon as practicable. There is, in my view, no such anomaly. The issue to which the further affidavit material, in particular the affidavit of Mr Blissenden, was directed was that of the Court's jurisdiction to even entertain the application, and not how the jurisdiction, if confirmed, was to be exercised.

31 The question then arises, should the respondent be at liberty to challenge the material to which the Court has regard on an application for compensation? The application is made under the Act and is, in effect, part of the sentencing process. Such an application flows from a finding of guilt or conviction. In the present case, the respondent's conviction followed the reading of a Crown statement of facts, the presentation of a victim impact statement, and submissions from counsel. The Act, s81, provided the respondent with an opportunity to challenge any of that material. Had he done so, it would have had to have been proved "in like manner as if it were to be received at trial" (s81(4)). There was no challenge to the material. The compensation issue is a phase which follows the formal sentence, but in proceedings under the same Act. The reference in s68(6) to the facts sufficiently appearing clearly suggests a reference to facts already determined and hence facts to which no further challenge may be made. To refuse the respondent the capacity, in such circumstances, to challenge material he has already declined to challenge affords him in my view no prejudice.

32 Having said that, there is material within the category to be had regard to, which the respondent has not already had an opportunity to challenge. That is contained in the applicant's statutory declaration. To the extent that that material is relevant to the issue of compensation and relied upon by the applicant, fairness, if nothing else, dictates the respondent should have an opportunity to challenge it.

The second question - Should the Court exercise its discretion in the applicant's favour?

33 An issue identified by the learned sentencing judge at the directions hearing by reference to s68(6) was just what "facts" should sufficiently appear from the material to which the Court was to have regard. Evans J in Monks recognised that, where an offender was found guilty of an offence after a trial, it was unlikely that material necessary for a compensation claim would have been led or even been admissible on the trial. As a consequence most applications, unless the necessary material was presented at the sentencing stage, would fail for the same reasons expressed by Evans J. His Honour did not advert to the issue raised by the learned sentencing judge in the present case. In effect, it is suggested that the material to which the Court is to have regard must contain not only facts relevant to liability, but also facts sufficient to enable the Court to determine quantum.

34 Given the interpretation which I have placed on s68(6), it makes no sense to interpret the words "the facts" in any other way. In other words, if there is to be an application for compensation for personal injury, sufficient material must be placed before the sentencing court and/or, if it is admissible, led on the trial, to enable the Court to determine the offender's liability to pay compensation and the quantum of the order.

35 One of the bases upon which Evans J indicated in Monks' case that he would have refused to exercise his discretion in favour of the applicant, was that the claim was particularly difficult and complicated. I have already set out in par22 what he said at par11 of his decision. Those comments were made in the context that a civil remedy may not have been available to the applicant because of a limitation defence pleaded in proceedings which had indeed been instituted.

36 In the present case, there was no direct evidence as to the existence or otherwise of any civil proceedings. However, the inference I have drawn is that none had been instituted or could now be. Counsel for the applicant submitted that while the Act, s68, should ordinarily be restricted to claims not involving complicated or extensive enquiry or investigation, it is not the case that it should never be utilised in such cases. In support of this contention he referred to a passage in R v Kneeshaw [1975] 1 QB 57, where Lord Widgery said at 60:

"It has been stressed in this court more than once recently that the machinery of a compensation order under the Act of 1972 is intended for clear and simple cases. It must always be remembered that the civil rights of the victim remain. In a great majority of cases the appropriate court to deal with the issues raised by matters of this kind is in the appropriate civil proceedings. A compensation order made by the court of trial can be extremely beneficial as long as it is confined to simple, straightforward cases and generally cases where no great amount is at stake.

Even then the matter is discretionary and the court should hesitate to embark on any complicated investigation of this kind even at the suit of an applicant making a positive application."

In that case, the applicant retained a right of civil action. Counsel referred to passages in the other cases referred to by Evans J in Monks, which all contained references to the availability of alternate means of recovery. In effect, counsel's contention was that all the cases referred to were decided in the context of there being available to the applicant an alternative civil remedy, and that, where no such remedy existed, the courts should not, on the ground of complexity alone, decline to exercise a discretion to entertain an application.

37 His Honour, in my view, did not indicate that he would have declined to exercise his discretion in favour of the applicant simply because the matter was complicated and difficult. The more important factor in the context of the complexity of the matter, was the inadequacy of the available material. His Honour said at 328, "The available evidence is insufficient to provide any foundation upon which the court could assess the applicant's entitlement to compensation."

38 In the present case, however, counsel for the applicant submitted that in the material before the learned sentencing judge, there was sufficient material for the Court, firstly, to be able to make a finding as to the respondent's liability to pay compensation and, secondly, to be able to make a broad assessment to compensate the applicant for pain and suffering and loss of amenities of life associated with her condition of post traumatic stress disorder (PTSD).

39 As to the issue of liability, there is no dispute the respondent was convicted of a crime, and that the applicant was the victim of that crime. There is evidence contained within the Crown statement of facts of the sexual assaults which gave rise to the conviction. Is there evidence of injury as a result of the offending? In her victim impact statement, the applicant says she has been diagnosed with PTSD by her psychologist. There is, in my view, sufficient material in that statement to establish the existence of an injury. Therefore the question of liability would appear to be sufficiently addressed.

40 Does the available material otherwise disclose sufficient facts from which the Court could assess compensation? Counsel for the applicant has emphasised the limited nature of the claim made, which he says can be quantified broadly from the available material. However, the content of Dr Watchorn's report emphasizes the material which will not be available to the Court, and which would be needed to make a proper assessment of any compensation amount. It is not for the applicant to, in effect, say, I will take whatever I can get on the basis of the material that may be had regard to. The question is, do the facts sufficiently appear to enable the Court to make an order of compensation for the injury she claims. I am not satisfied that they do.

41 I am mindful that the applicant may have no alternative remedy available to her. That is a factor that would have been relevant had other factors not overtaken it. I also accept that the applicant's claim is not per se complex and difficult. However, the absence of further material makes it so.

In the circumstances of this case, the application was made as soon as practicable.

(a) The indictment upon which the respondent pleaded guilty.

(b) The Crown statement of facts.

(c) The statutory declaration of applicant dated 5 September 2006.

(d) The victim impact statement dated 27 July 2007.

(e) The plea in mitigation.

(f) Any relevant "available documents".

The respondent should have the opportunity to challenge such of the above material which is relevant, which he has not previously had an opportunity to challenge.

Second question - Should the Court exercise its discretion in the applicant's favour?