In these appeals, the appellant was an inmate of a Children's Home and the offender the Manager. The acts were committed by the same offender against the appellant over a prolonged period of time and it was the association, contact or 'relationship' between the parties that enabled the repetition of the offence in those circumstances. … The nature of the acts was generally the same although there were instances of other acts committed at the same time. All of the acts were committed at various locations within the property of Beth Carr Children's home. I am satisfied for the purpose of section 5(3)(b) that the acts are related acts constituting a single act of violence."
Consideration
38 The approach to be taken on appeal, or on application for prerogative relief, is not to comb over-zealously through the reasons of the tribunal looking for error or presuming error. Administrative tribunals, even when required to issue reasons, need only disclose the process by which they arrived at the result, so as to allow the parties before the tribunal the capacity to understand the basis upon which they have either succeeded or failed in their application.
39 It is difficult to discern the reasons that the Tribunal was satisfied that the acts specified were all related. Nevertheless, it came to that view. It expressed a view that a number of factors were not necessarily inconsistent with acts being related and, as set out above, seems to have come to the view that because the acts were committed against the same victim, by the same offender, and arose out of the same "relationship" (a term expressly used by the Tribunal in the same way that it was used by Blanch CJ in MJW, supra), the acts were related.
40 In that regard, the Tribunal noted that the nature of the acts was generally the same (although there were differences), noted that the acts occurred at different locations and noted that the different age of the appellant at the time of the various acts did not "necessarily" give rise to a finding of separate acts.
41 It may be that the Tribunal took the view that it was self-evident that the acts were related. It may be that the Tribunal took the view that the reason that the factors raised by JM did not give rise to separate acts of violence was intuitively that they did not. But, if intuition were to be the basis for the finding, there is nothing intuitive about the proposition that a rape (penile penetration) of a 5 year old is a related act to penile penetration of a 15 year old, just because the victim was the same, the perpetrator the same, and the location generally the same.
42 Intuitively, one would find such a conclusion illogical. It seems that the Tribunal has taken the view that a rape or sexual assault in one week is, for the factors it outlined, related to a rape or sexual assault in the second week, which in turn is related to a rape or sexual assault in the third week, and so on, for ten years. The difficulty, as a matter of logic, with such a proposition, is that it assumes event 1 is related to event 500, because event 1 is related to event 2 and event 2 is related to event 3 and so on.
43 The first ground upon which the plaintiff challenges the determination is error of law, which seems to be the submission that the Tribunal reversed the onus of proof. In that sense, JM submits that because the Tribunal took the view that the age of JM, at the time of the various acts, did not necessarily give rise to claims for separate acts, the Tribunal was imposing upon JM an onus of proof to prove separate acts. Ancillary to the submission in relation to an error of law in the construction of the statute, which addresses the reversal of the onus of proof, is the submission made by the plaintiff that the Tribunal has misconstrued the Act, by holding that the mere fact that the victim and the perpetrator were the same and they were in the same "relationship" to one another meant that the acts were related. In so doing, it seems that the Tribunal relied on MJW.
44 Onus of proof is not a matter that is overly important. The plaintiff claims compensation and must prove (and did prove) that she was a primary victim. It was for the Tribunal to determine, itself, whether there was one or more acts of violence that gave rise to the injuries. I do not consider that the Tribunal reversed the onus.
45 However, it seems that the Tribunal, while discussing each of the matters raised by JM before it, and concluding that, of themselves, they did not render the acts anything other than related acts , did not weigh in the evaluation process the factors of location, different offences and age of the victim against the factors that the Tribunal would consider rendered the acts related. The Tribunal seems to have taken the view that the mere fact that the "relationship" was the same meant that the acts were related and, in that regard, misapplied the statements of Blanch CJ in MJW.
46 I should add that the foregoing does not countenance the view that the relationship was the same. The mere fact that the perpetrator was the manager for the whole of the period and the victim was a resident at the home for the whole of the period, does not equate with the proposition that the relationship was the same. The relationship between a person in authority and a 5 year old is ordinarily very different from the relationship between a person in authority and a 15 year old. It is for that reason, amongst others, it seems, that Blanch CJ took the view in MJW that there were three different acts of violence, each of which related to different stages of the development (and age) of the victim.
47 I consider that the approach of the Tribunal discloses error in that it treats relationship as defined, simply, by the formal positions of perpetrator and victim, and treats the fact of the same relationship as mandating a finding that the acts were related, without regard to the changing circumstances of the victim, in terms of age, location and the nature of the offences.
48 JM also raises as a ground of appeal the illogicality and irrationality of the Tribunal's reasons. In one sense, as noted by the Fund in its submissions, this is a complementary submission to the first ground. The ground of appeal relies on the comments, to which reference has already been made, of the High Court in S20, supra, in which McHugh and Gummow JJ commented that a decision which, according to the legislation, turned upon the formation of an opinion, would be affected by jurisdictional error, if it were "irrational, illogical and not based upon findings or inferences of fact supported by logical grounds". (S20 at [34].) In turn, this relied upon the comments of Gummow J, to which reference has also been made, in Eshetu. Such a ground allows the Court to quash the decision of a body, required to act judicially, on the basis that the conclusion it reached was arbitrary, capricious or irrational.
49 In some respects, the final determination of this ground is unnecessary. Given that error of law has been found in misunderstanding the test as to that which amounts to "related acts", it is strictly unnecessary to determine, finally, whether the result is "irrational".
50 On one view, the error of law has brought about an irrationality in result. On another view, the result is not "irrational", as it derives from an error of law. It is sufficient, for current purposes, to note that were error of law not to have been found, a result that concluded that a rape of a person at the age of 5 and a rape of person at the age of 15, even if perpetrated by the same person in the same place, were related acts of violence is wholly irrational and capricious. The fact that the victim has been raped weekly in the intervening period does not alter that conclusion. The result is so manifestly untenable that, without identification of an error, it must have been based upon an incorrect understanding of the tests to be applied.
51 A similar analysis dictates the outcome of the remaining ground of appeal, namely, a failure by the Tribunal to give reasons. The Court has found that the reasons of the Tribunal for the finding of related act are that, in circumstances where the same perpetrator engages in violent conduct against the same person and the perpetrator and victim have the same formal relationship, there is a related act. The Court has determined that such reasoning evidences an error of law. If that is not the reason that the Tribunal has come to the conclusion in this case, then the reasons for decision do not disclose the process by which the Tribunal arrived at the conclusion that it did. In those circumstances, but for the finding in relation to the first ground of appeal, above, there would be a failure to give adequate reasons, as is required by the Act and by the duty imposed by the common law.
52 The Court has come to the view that there has been error of law in the ultimate determination of the Tribunal, being an error of law on the face of the record, which, for present purposes, includes the reasons expressed by the Tribunal for its ultimate determination. As a consequence, the Court makes the following orders: