James v Northern Territory [2012] NTSC 51

[7] The assessor did not state how she arrived at the figure of 75 percent.

[8] At the time that she made the award the assessor did not have a lot of information before her about the spousal relationship between the appellant and the offender. There was an email from Ms Olivia Henderson of the Central Australian Aboriginal Family Legal Unit dated 3 September 2010 which stated, "further to our telephone conversation on 24 August 2010, Rosemary's instructions are that she continues to be in a relationship with the offender." There was a report from a clinical psychologist which was received on 12 April 2010 that stated, "Ms James reported that she is a Papunya woman of 35 years (actually 36 years). She reports that she 'has no man now' but Wilson still 'looks after her', but she does not know where he lives now. She stated that she and Wilson came back together after the bashing of 2007 for a while but she took out a domestic violence restraining order upon him when she was in hospital the last time. .... Having a domestic violence restraining order taken out against Mr Wilson helped with her sleep as did the news from his sister that he had left town. .... She stated that 'she came back with Mervyn [Wilson] for a while [after the 2007 assault]. We got together for a while. He still looks after me.' This was while the order not to violate was in place. .... She reports that she will not have Wilson back now. Even though he lives at Papunya she is not frightened of him because 'the policemen watch him'. She is able to talk with him and is still firm with him e.g. he 'humbugs' her for stereo and CDs and she tells him, 'no, those CDs cost me too much' and then he walks away. .... Ms James needs help to address the many psycho social stressors that are impinging upon her partly as the result of the violent relationship she has endured and has now ceased".

[9] On 11 October 2010 the appellant filed a notice of appeal in the Local Court at Alice Springs. The grounds of appeal are as follows.

1. The respondent erred as a matter of fact and/or law in deciding that it was more beneficial for the applicant to claim separate compensable injuries pursuant to Part 2 of the Schedule to regulation 16 of the Victims of Crime Assistance Regulations than to claim domestic violence injuries pursuant to regulation 5 and Schedule 3, Part 2 of the Victims of Crime Assistance Regulations.

2. The respondent failed to give any or any adequate reasons for their decision to reduce the applicant's award pursuant to s 41 of the Victims of Crime Assistance Act.

3. The respondent failed to give any or any adequate reasons for their decision to reduce the applicant's award by the amount of 75 percent.

4. The reduction of the applicant's award by the amount of 75 percent was not reasonable in the circumstances.

[10] On or about 19 October 2010 the appellant received the sum of $2,136.25.

[11] Consistent with the requirements of a reservation of a question of law Birch SM has stated a number of facts for the Court. The primary stated facts are as follows.

[12] The appellant and the offender began a spousal relationship in or about 2000. Their relationship has involved severe domestic violence, periods of cohabitation and periods of separation. The appellant and the offender are currently living together.

[13] On 4 February 2003, the appellant was granted a non-violence domestic violence order against the offender until 3 February 2004.

[14] On 19 November 2004, the appellant was granted a non-contact domestic violence order against the offender until 18 November 2005.

[15] On 14 March 2006, the appellant was assaulted by the offender. As a result of the assault, the appellant sustained lacerations to her eyebrows (requiring two sutures each), her right elbow and right ankle and a graze below her left nipple. The offender was charged with aggravated assault and unlawful causing serious harm. He was convicted of both charges and sentenced to 22 months and two weeks imprisonment.

[16] On 14 June 2006 the appellant was granted a non-contact domestic violence order against the offender until 13 June 2007.

[17] On 18 October 2007 the appellant was assaulted by the offender. As a result of the assault, the appellant sustained a fractured clavicle, fractured nose and multiple abrasions to her face. The offender was charged with aggravated assault and unlawfully causing grievous harm. He was convicted on the first charge and sentenced to eight months imprisonment. The second charge was later withdrawn.

[18] The appellant and the offender were living together in a spousal relationship at the time of the appellant's application for financial assistance was determined by the assessor. While the relationship continues to involve periods of separation, the appellant and the offender are currently living together.

[19] The appellant spent the amount of $2,136.25 which was awarded to her on a television, a refrigerator and clothing for herself. The television and the refrigerator are kept in the residence which she occupies with the offender during their cohabitation.

[20] The stated facts reveal that the appellant has taken a number of steps to protect herself from the offender. She has obtained domestic violence orders against the offender on at least three occasions and she has made complaints to the police about the offender's violence against her. The stated facts also reveal that the appellant's and the offender's cohabitation has not been continuous. There have been significant periods when they have lived separately and apart while the offender has been in prison or a non-contact domestic violence order has been in force or one or other of them has moved to live in a different area.

[21] Before setting out the provisions of s 41 of the Victims of Crime Assistance Act it is to be noted that the Court was informed by counsel for the respondent that 75 per cent of victims who claim assistance under the Act are victims of domestic violence and that 20 per cent of those applicants remain in a spousal relationship with the offender. That is, 15 per cent of applicants for victims of crime assistance are victims of domestic violence who remain in a spousal relationship with the offender.

[22] It is a notorious fact that many women who are in violent relationships experience great difficulty getting away from their violent partners for a variety of reasons including fear, lack of finances and lack of economic capacity. They remain trapped with little assistance available to them to extricate themselves from such a relationship. In Central Australia and elsewhere they continue to suffer horrendous violence which degrades and humiliates them and places a significant burden on scarce medical resources and on law enforcement resources.

[23] Section 41 of the Victims of Crime Assistance Act states:

(1) The assessor may reduce an award after taking any of the following matters into account:

(a) if the applicant is a primary victim or secondary victim of a violent act - any behaviour (including past criminal activity), condition, attitude or disposition of the victim that directly or indirectly contributed to the injury or financial loss;

(b) whether the applicant participated in the violent act, encouraged another person to commit the violent act or gave assistance to the offender;

(c) whether the applicant failed to take reasonable steps to mitigate the extent of the injury or financial loss, such as seeking appropriate medical advice or treatment or obtaining counselling, as soon as practicable after the violent act occurred;

(d) whether the award is likely to benefit the offender because of a relationship or connection between the applicant and offender[emphasis added];

(e) any other matters the assessor is satisfied justify the reduction.

(2) The reduction must be of an amount the assessor considers reasonable in the circumstances.

[24] The insertion of s 41(1)(d) (which deals with whether the award is likely to benefit the offender because of the relationship or connection between the applicant and the offender) into s 41 of the Victims of Crime Assistance Act is somewhat unusual. Section 41 primarily deals with circumstances where blame or fault of one kind or another attaches to the victim. The victim has either contributed to the injury or loss that the victim sustained; or participated in the violent act; or failed to mitigate the extent of the injury or financial loss. It seems a somewhat archaic and chauvinistic to imply that a victim who continues in a violent relationship is at fault or is to blame for the injuries that she has sustained as a result of the offender's past violence.

[25] Section 41(1)(d) of the Victims of Crime Assistance Act stands in contrast to s 36 of the Criminal Injuries Compensation Act 2003 (WA) which simply states that an assessor must not make [emphasis added] a compensation award in favour of a victim, or a close relative of a deceased victim, if the assessor is of the opinion - (a) that there is a relationship or a connection between the person who committed the offence and the victim or close relative; and (b) that by reason of the relationship or connection any money paid under the award is likely to benefit or advantage the person who committed the offence. The object of the provision is clear. The policy choice of the Western Australian Parliament is that the offender is not to benefit at all from an award of compensation even if it means that the victim receives no compensation. There is no artifice in the text of s 36 of the Criminal Injuries Compensation Act 2003 (WA). The text clearly expresses the object of the provision.

[26] The interpretation of s 41 the Victims of Crime Assistance Act is complicated by its heading, 'When award may be reduced', and the use of 'may' in the stem of s 41(1) and 'must' in s 41(2) of the Act. The complexity of the interpretation task is heightened by the fact that s 42 of the Act is headed, 'When award must be reduced', and uses the word 'must' throughout the section.

[27] The Macquarie Dictionary gives the following meaning for 'reduce': "to bring down to a smaller extent, size, amount, number; to adjust or correct by making allowances." The Shorter Oxford Dictionary gives the following meaning for 'reduce': "Diminution of bulk. To bring down, diminish to a smaller number, amount, extent, etc., or to a single thing. To lower, diminish, lessen. To become lessened or limited."

[28] Counsel for the respondent, Ms Brownhill, submits that 'may' in s 41(1) of the Victims of Crime Assistance Act means 'must'. There is a duty on the assessor to reduce the award if the assessor determines that the conditions attached to the power to reduce the award are made out. The application of s 41 of the Act to a particular case involves two steps. The first is a decision as to whether or not the award will be reduced from what it otherwise would be; the second, which flows only if the award will be reduced, is a decision as to the amount of the reduction. Together the two steps comprise a discretion which is to be exercised on the assessor's part. The discretionary aspect occurs at the second step, not the first. That is, if the assessor finds facts which establish that the award is likely to benefit the offender because of a relationship or connection between the applicant and the offender then the assessor must [emphasis added] reduce the award, and must go on to decide the amount of the reduction which is reasonable in the circumstances.

[29] Ms Brownhill submitted that s 41(1)(d) of the Act was primarily directed at well recognised relationships or connections between an applicant and an offender such as spousal relationships or parent/child relationships where there was a common sense or "objective" expectation that the benefits of the award would be shared in some way or another with the offender. If the relationship between the offender and the applicant was of a kind that meant the award was likely to benefit the offender in any way or to any degree whatsoever then the amount of any award must be reduced. Ms Brownhill said that the extent of any reduction was determined by the likelihood of the offender receiving a benefit of any value even a de minimis benefit. This, in turn, depended solely on the class of the relationship between the applicant and the offender and its proximity. Consequently, the amount of the reduction should be directly proportional to the proximity of the relationship or connection between the applicant and the offender because it is that proximity which determines, objectively, the likelihood that the award will benefit the offender and the extent of that likelihood. Where the relationship or connection between the applicant and offender is a spousal relationship with cohabitation, the likelihood that the offender will benefit from the award is substantial, and the reduction should reflect that likelihood. On the other hand, where the relationship or connection is more distant, say that of siblings or friends or business colleagues, the likelihood that the award will benefit the offender will be significantly lower.

[30] On a scale of likelihoods of benefit based on the proximity of the relationship, a relationship where the benefit to the offender from the award was a virtual certainty would be reflected by a reduction close to 100 per cent. If the relationship was of a category or class where there was a 75 per cent likelihood of benefit to the offender the award should be reduced by 75 per cent and so on.

[31] According to Ms Brownhill the legislature did not intend that it was the task of an assessor to inquire into the true or actual nature and character of any arrangements, obligations, habits or customs that constitute any particular spousal relationship or connection between a victim and an offender. In other words, it was not the intention of the legislature that the assessor's task was to enquire into the actual circumstances of any relationship or connection between an applicant and an offender. It was neither necessary nor appropriate for the assessor to make detailed enquiries as to the financial arrangements between the applicant and the offender generally, or in respect of the proposed award in particular, and the evidence to support a conclusion within s 41(1)(d) of the Act is not going to come any other way.

[32] Where the relationship or connection is a domestic one the usual practice followed by assessors is to enquire of the applicant or applicant's solicitor, whether the relationship is ongoing, and whether the applicant and the offender continue to cohabit. It is reasonable to expect that, in the context of a couple cohabiting in a spousal relationship, the receipt by one party of a significant sum of money would give rise to a benefit to the other party. 'Benefit' in its ordinary meaning, is a wide expression meaning an advantage, profit or gain. For the purpose of making an administrative assessment of the facts [emphasis added] and payments of amounts based on those facts, that reasonable expectation is sufficient for an assessor to find that an award is likely to benefit the offender within s 41(1)(d) of the Act. It is the nature of the relationship which creates a likelihood of benefit.

[33] Ms Brownhill's submission assumes that all spousal relationships have a particular level of functionality or proximity and are of the classical paternal European kind. Indeed, according to the respondent's submissions, there is in existence a series of categories or classes of relationships that are the same or similar proximity. Any award obtained by a female spouse will be shared with a male spouse. There are no other members of the victim's family who for cultural reasons or because of traditional familial obligations have a higher claim than the offender to any award moneys. Women are incapable of saying no to the male partner and of managing and planning their own financial affairs. Anything they say about their future plans is inherently unreliable. The vicissitudes of dysfunctional alcoholic relationships where partners regularly come together, collide and then separate for significant periods of time, where any sharing is somewhat hit and miss, are to be ignored.

[34] In my opinion, the above assumptions are invalid. While women who are victims of domestic violence may be in a vulnerable situation they do not lack capacity or integrity. However, there is considerable force in Ms Brownhill's submission that cohabiting spousal relations are inherently sharing relationships.

[35] Ms Brownhill's submissions are based on the following premises. The statutory machinery permitting victims of crime to obtain awards of financial assistance is subject to numerous express restrictions. Even if a restriction or reduction on the amount of a claim was irrational, anomalous or harsh that was not fatal to the construction of a provision if the text of the provision otherwise required it. The "liberal approach" to construing beneficial legislation was inappropriate when construing a section of an Act that was intended to be limiting. Under the provisions of the Victims of Crime Assistance Act, assessors are provided with a tightly circumscribed regime within which assessments are to be made. Assessors have no discretion or quite limited discretion in respect of the amounts payable for compensable injuries. The scheme of financial assistance provided by the Act is a scheme that provides for the assessment of facts and payments of specified amounts based on those facts. The objects of the arrangements which comprise the scheme of financial assistance under the Act are simplicity and efficiency. The legislature has endeavoured to create an efficient administrative process for the determination of applications for financial assistance.

[36] The appellant submits that s 41 of the Victims of Crime Assistance Act is cast in permissive terms. The word 'may' means 'may'. Before any decision to reduce an award may be made by an assessor there must be some evidence beyond that of the mere existence of an ongoing spousal relationship. It must be apparent from the available evidence about the particular relationship of the applicant and the offender that it is likely that the award will benefit the offender. What is a reasonable reduction in the circumstances of any particular case should depend upon an application of the appropriate guidelines. However, despite the fact that the Act commenced on 1 May 2007, no guidelines relating to the performance of functions by assessors have been issued by the Minister under s 65 of the Act. As there are no guidelines the assessment of what is a reasonable reduction in the circumstances of any particular case must involve an objective assessment based on all of the available evidence.

[37] When considering the operation of s 41 of the Victims of Crime Assistance Act, regard should be had to the approach taken by the Court of Appeal to s 10 of Crimes (Victims Assistance) Act 1982 (NT) in Northern Territory of Australia v Dean[1]. Whether the factum specified in s 41(1)(d) of the Victims of Crime Assistance Act is made out is a matter of fact and degree which is to be determined in the light of the particular circumstances of each case and by the assessor exercising common sense. Subsection 41(1)(d) involves a consideration of both the nature and character of the relationship or connection between the applicant and the offender and any appropriate criteria for reducing the award. The appropriate criteria include the needs of the applicant and the object of the Act. There must be a sufficient set of conditions to establish that the award is likely to benefit the offender. While the type or class of the relationship or connection between the applicant and the offender per se is a relevant factor it is not always the determinative factor when a court is considering whether the award is likely to benefit the offender.

[38] The proper approach to the interpretation of s 41(1)(d) of the Victims of Crime Assistance Act involves the following steps. First, a consideration of the text of the section and the ordinary meaning of the words. Second, a consideration of the objects of s 41(1)(d) and the objects of the Act. Third, a consideration of the section in its statutory context. Fourth, a consideration of the consequences of the competing constructions of the section. Having considered each of these matters I have come to the following conclusions.

[39] I accept Ms Brownhill's submission that s 41(1) of the Victims of Crime Assistance Act involves the grant of a power with a concomitant duty to act. If the information before an assessor establishes the existence of one of the factums that are specified in s 41(1)(a) to (e) the assessor must reduce the award by an amount the assessor considers reasonable in the circumstances. The nature of each factum is such that if any one of them is established there would be no justification for not reducing the award.

[40] However, 'likely' in s 41(1)(d) of the Victims of Crime Assistance Act means more probable than not. If the award is more likely than not to benefit the offender because of a relationship or connection between the applicant and offender then the award may be reduced to close to zero or, alternatively, the award may be significantly reduced with some allowance being made for the vicissitudes of the particular relationship. On the other hand, if the award is not more likely than not to benefit the offender because of a relationship or connection between the applicant and offender then the award should not be reduced at all as in those circumstances the factum specified in s 41(1)(d) of the Act does not exist.

[41] Butterworths Australian Legal Dictionary ascribes the following meaning to 'likely': "Having a degree of probability greater than merely possible, but less than certain. The location of 'likely' on the probability spectrum varies according to the statutory context." As I have stated, it seems to me that in the context of s 41 of the Victims of Crime Assistance Act 'likely' means more probable than not. This interpretation of the word 'likely' is consistent with both the object of the Act and the object of s 41(1)(d) of the Act. The object of the Act is to assist the rehabilitation of victims of violent acts by implementing schemes to provide counselling and financial assistance for financial loss and compensable injuries. The object of s 41(1)(d) is to prevent the offender from receiving any benefit under the Act. While the "liberal approach" is inappropriate when construing a section of an Act which is intended to be limiting[2], and that is the principle which must be applied in this case, reducing the amount of an award on purely speculative grounds would defeat the object of the Act. As Gleeson CJ stated in Russo v Aiello[3], the objects of an Act are not an exercise in apologetics. They may give practical content to the understanding of the terms used in an Act. Further, a sliding scale of reduction, as suggested by the respondent is intrinsically illogical. It perpetually defeats both the object of the Act and the object of s 41(1)(d) of the Act. As Mr Stirk said, it is a spiral to the bottom.

[42] The above construction of s 41(1)(d) is also consistent with the other provisions of s 41(1)(a),(b) and (c) of the Victims of Crime Assistance Act. Those provisions have considerable affinity with the common law notions of contribution, volenti non fit injuria and mitigation of damages. With respect to each of those factums the assessor is under a duty to make all of the necessary findings of fact according to his or her belief in the reality of what is found to have occurred based on the information that is before the assessor. Whether the factum specified in s 41(1)(d) of the Victims of Crime Assistance Act is made out is a matter of fact and degree which is to be determined in the light of the particular circumstances of each case and by the assessor exercising common sense. Subsection 41(1)(d) of the Act involves a consideration of both the nature and character of the relationship or connection between each particular applicant and offender.

[43] When considering whether the award is likely to benefit the offender because of the nature of the relationship or connection between the applicant and the offender, an assessor is required to weigh up or compare the competing possibilities and determine where the preponderance of probability lies. The assessor is required to assess the information before her in a commonsense manner and determine if it is more likely than not that the award will benefit the offender because of the relationship or connection between the applicant and the offender. The requisite level of satisfaction cannot be met by a mere mechanical comparison of possibilities independently of any belief in the reality of the nature of the relationship or connection between the applicant and the offender and its consequences.

[44] An assessor is required to make a proper decision and has power to obtain all documents and information which are necessary to make a proper decision. An assessor may defer the decision until the assessor has obtained further information or reports considered necessary to make a proper decision. The assessor may obtain information and make the enquiries the assessor considers necessary to make a proper decision. The assessor may, by written notice, require the applicant to give the assessor further information or documents relevant to the application. The assessor may, by written notice, require any other person to give the assessor the information or documents described in the notice within the time specified in the notice.

[45] The approach I have taken to the constructions of s 41(1)(d) of the Victims of Crime Assistance Act is consistent with the decision of the Court of Appeal in Northern Territory of Australia v AB[4]. While the Court of Appeal determined that the Victims of Crime Assistance Act had replaced a court-based litigation type scheme of compensation by an administrative scheme of assessment of financial assistance in accordance with strict guidelines, the Court of Appeal recognised that an assessor was still required to make all necessary findings of fact and obtain information and undertake enquiries considered necessary to make a proper decision.

[46] The answer to question one is that the mere fact of cohabitation as husband and wife may be sufficient for an assessor to determine that an award is likely to benefit the offender because of the relationship or connection between the applicant and the offender. In my opinion, the mere fact that an applicant and an offender are continuing to cohabit as husband and wife, without any further evidence, does give rise to an inference that the award is likely to benefit the offender because of the relationship between the applicant and the offender. Such a relationship is intrinsically a sharing relationship. An assessor may reach such a conclusion on the balance of probabilities based on common sense and the assessor's life experience.

[47] However, the inference referred to in par [46] above may be rebutted by other information which, for example, demonstrated that the parties have historically conducted their affairs in such a way that the award would not be shared in any way or by information which demonstrated that the applicant had made appropriate and effective arrangements to ensure that the offender would not benefit as a result of the applicant receiving the award.

[48] The assessor is required to consider all relevant information that is received by the assessor and goes to the issue of whether the award was likely to benefit the offender for the reasons specified in s 41(1)(d) of the Act; and, at the election of the assessor, the assessor may obtain further information to assess the veracity and reliability of any information received by the assessor.

[49] In my opinion, the answer to each and all of questions 2(a) and (b) is yes. 'Benefit' in its ordinary meaning, is a wide expression meaning any advantage, profit or gain. The answer to 2(c) will depend on the particular circumstances of each case. If the use of the goods and services by the offender was only incidental, then the reality may be that no benefit is obtained by the offender.

[50] In my opinion the answer to question 3 is no. I accept the submissions that have been made on behalf of the respondent. There is no power express or implied in the Victims of Crime Assistance Act which would permit such an arrangement to be made. An assessor's overarching function under the Act is to decide an application, in accordance with the Act, by awarding financial assistance or refusing to award financial assistance. While assessor's have certain incidental powers under the Act, those incidental powers do not give an assessor capacity to enter into contracts or to receive other documentary assurances, or to create or administer trusts, or to develop and give effect to other similar arrangements.

[51] However, if information was placed before an assessor to the effect that a trust or some other arrangement, such as a power of attorney, had been set up to ensure that the award was used for the sole benefit of applicant and the lawyers for the applicant had been given an irrevocable authority to pay any award into that trust or in accordance with the appropriate arrangement, then that information may rebut any likelihood of the offender receiving a benefit. In which case, the factum created by s 41(1)(d) of the Victims of Crime Assistance Act would not be made out and there would be no reduction in the award that the applicant was to receive.

[52] In my opinion the answer to question 4 is yes. The reasons for this are set in par [38] to par [45] above.

[53] It is unnecessary to answer this question.

[54] If the assessor finds that the factum specified in s 41(1)(d) of the Victims of Crime Assistance Act is established on the available information, the assessor may reduce the award to close to zero. Alternatively, the assessor may make some allowance for the vicissitudes of the spousal relationship in question and significantly reduce the award for financial assistance. The reasons for this approach are set in par [38] to par [45] above.

[55] While the ordinary meaning of reduce is set out in par [27] above, s 41(2) of the Victims of Crime Assistance Act requires the reduction to be of an amount that the assessor considers is reasonable. As the object of the factum created by s 41(1)(d) of the Act is to prevent the offender from obtaining a benefit under the Act, a reasonable reduction would be a reduction of close to the whole amount of the award if it was more likely than not that the offender was going to receive a benefit.

[56] In my opinion the answer to this question is yes. Subsection 44(1) of the Victims of Crime Assistance Act states that as soon as practicable after deciding an application, the assessor must give the Director a notice, in the approved form of the assessor's decision. Subsection 44(2)(c) of the Act states that a notice awarding financial assistance must state the amount by which the award has been reduced and the reason for the reduction. Subsection 44(4)(a) states that a notice refusing to award financial assistance must include the reasons for the decision.

[1] [2006] NTCA 6; (2006) 17 NTLR 178 at par [42], [43], [47].

[2] Victims Compensation Fund v Brown [2002] NSWCA 155; (2002) 54 NSWLR 668 at [8] - [12] per Spiegelman CJ approved by the High Court in Victims of Compensation Fund v Brown [2003] HCA 54; (2003) 77 ALJR 1797 at [12].

[3] [2003] HCA 53; (2003) 215 CLR 643 at 645.

[4] (2010) 28 NTLR 1.