L v Carey [2010] TASSC 54

Criminal Law - Procedure - Criminal injuries compensation - Tasmania - Evidence and procedure - Acquittal on criminal charges - Whether Commissioner effectively bound by verdict - Role of Commissioner to consider evidence afresh.

Victims of Crime Assistance Act 1976 (Tas), ss4(1), 5(1), (2), 7(3).

Judicial Review Act 2000 (Tas), s17(2).

Attorney-General: Director of Public Prosecutions

Judgment Number: [2010] TASSC 54

1 RL made an application seeking compensation under the Victims of Crime Assistance Act 1976 ("the Act"). The basis for her application was that she was the victim of sexual crimes perpetrated by her stepfather during the period 1991 to 1997 when she was between 11 and 16 years of age. In order for her claim to succeed, the applicant had to satisfy the Commissioner that she was the victim of an offence or offences. The applicant's stepfather had been charged with ten counts of sexual crimes involving indecent assault, attempted sexual intercourse with a young person under the age of 17 years, and unlawful sexual intercourse with a young person under the age of 17 years. A criminal trial had been held in March 2009 and the jury had delivered verdicts of not guilty with respect to all counts. The application for compensation was made in April 2009, and disclosed the verdicts of not guilty.

2 The feature of this application for criminal injuries compensation which sets it apart from usual cases brought pursuant to the Act, is that the alleged perpetrator had been acquitted of the criminal conduct. It seems that most often, if not invariably, the circumstances for bringing applications are that the perpetrator has been found guilty, has pleaded guilty or that there have been no criminal proceedings for various reasons such as that the identity of the perpetrator is unknown.

3 Criminal Injuries Compensation Commissioner Carey heard the application for compensation and delivered his decision and written reasons, dated 22 February 2010, dismissing the application. In considering the issue of whether or not criminal conduct had occurred, he applied the criminal standard of proof beyond reasonable doubt. In light of the jury's verdict he concluded that he was unable to be satisfied that the offences, the subject of the application, had occurred. Before me now is an application under the Judicial Review Act 2000 to review the decision of the learned Commissioner dismissing the application. The questions raised by this application for review are whether by applying the criminal standard of proof to the issue of whether the alleged criminal conduct had occurred, the learned Commissioner erred in law, and whether his approach of adopting the jury's verdict also involved an error of law.

4 In support of the application for compensation various documents were provided to the Commissioner: the transcript of the criminal trial, Crown papers, bundle of documents from the Victims Assistance Unit file, and a report of psychologist, Mr Michael Marriott, regarding the impact of the criminal conduct on the applicant and an opinion about her veracity. The transcript of evidence given at the criminal trial included the applicant's evidence and supporting evidence from her mother, sister and partner. Her mother's evidence included an account that the applicant's stepfather had admitted sexual conduct with the applicant, that she had witnessed sexual conduct in relation to one of the alleged incidents the subject of the charges, and evidence of "recent complaint" by the applicant.

5 The Victims Assistance Unit file included correspondence and file notes held by or involving the Devonport CIB and the Office of the Director of Public Prosecutions. One of the documents was correspondence from Devonport CIB noting, "that there is a substantial amount of evidence against the defendant in this matter" and an email from Crown counsel who conducted the trial stating that she did not believe the verdict "reflects against the cogency of the complainant's evidence".

6 The report from Michael Marriott also supported the application. My attention was drawn to page 7 of his report in which he stated with respect to the applicant that in his view there was nothing to suggest that she was "in any way fabricating or exaggerating her story".

7 The application for compensation included information about the effect of the alleged crimes upon the applicant. A victim impact statement was included in the materials provided to the Commissioner. In that statement the applicant described the damage the incidents caused to her relationship with her mother and her lack of confidence and self esteem at school. She was suicidal between the ages of 17 and 22. The applicant had received assistance from a doctor and counsellor at the Centre Against Sexual Assault where she attended regularly in relation to her depression. She had been prescribed anti-depressants for a period of seven years until she was 27 years of age. She had had a lot of time off work caused by her depression and stress levels.

8 The report from Mr Marriott included a history and the results of the Personality Assessment Inventory (PAI) test. The applicant reported that in early adulthood she had experienced unpleasant dreams and she would frequently wake-up crying, suffered panic attacks and anxiety, together with a fear of encountering her stepfather. In Mr Marriott's opinion the applicant had suffered from an Adjustment Disorder with Mixed Anxiety and Depressed Mood for many years. He considered that there was not a continuing need for the applicant to receive psychological treatment. He noted some ongoing issues that the applicant would face, for example, he expected that she would struggle to have her own needs met in her relationship and that it is likely that she would be an overly protective parent.

9 The Commissioner was provided with the application for compensation dated 6 April 2009 and supporting material mentioned above. It is evident from the Commissioner's reasons for decision that in the proceedings before him counsel for the State of Tasmania did not formally concede that the applicant suffered injuries as the result of a criminal act, and that counsel for the parties had been invited to make submissions in relation to the standard of proof to be applied in determining whether or not criminal conduct had occurred. It is also evident that the submissions had referred to the decision of Walker v Carey [2009] TASSC 25.

10 The decision of Walker v Carey featured prominently in the Commissioner's reasons. It is convenient before turning to the substance of the Commissioner's reasons to mention this decision. Like the application here, that decision was concerned with an application for judicial review of a determination made regarding a claim for criminal injuries compensation. The question of the burden of proof did not need to be decided in that case. It is apparent from the reasons for judgment that Evans J had raised the question with counsel who indicated they had not given consideration to the matter and requested that the hearing proceed on the basis that the applicable burden of proof was on the balance of probabilities. Evans J proceeded with the hearing as requested, noting that whether the burden of proof was on the balance of probabilities or beyond reasonable doubt, had no bearing on the grounds of review pursued by the applicant in that case. Evans J made obiter remarks relating to the standard of proof to be applied in establishing that the applicant was the victim of a crime of violence, expressing a view he described as a "preliminary view", that the standard was beyond reasonable doubt. He observed that if "the situation was otherwise, subject to an argument as to estoppel, an applicant who could prove on the balance of probabilities that a person had committed an offence, could substantiate a claim under the Act even though that person had been acquitted of the offence" (par[7]). Evans J noted two South Australian authorities of In Re E (1976) 14 SASR 179 and Bartsch v McIlroy and State of South Australia (1980) 24 SASR 506 which held that for the purpose of similar legislation in that jurisdiction, the offence had to be established beyond reasonable doubt.

11 In the case of this application, the Commissioner heard submissions from counsel regarding the standard of proof with regard to whether criminal conduct had occurred and the authority of Walker v Carey. Having done so, the Commissioner dismissed the application and gave the following reasons relevant to these proceedings:

"However, as to what standard of proof ought apply I am not persuaded that I ought disregard the comments of His Honour Evans J, notwithstanding that they were clearly obiter. Although the Act is silent as to the applicable standard of proof as regards the occurrence of criminal conduct, it does set as a prerequisite for an award of compensation that a victim has suffered injury as a result of an offence. An offence has to entail criminal conduct and criminal conduct is determined by reference to satisfaction beyond reasonable doubt.

In addition, Section 5(2) of the Act states that the standard of proof in relation to the fact that the injury resulted from an offence is on balance of probabilities thereby differentiating that test from the standard to be applied in relation to proving that the offence occurred.

It might be suggested that applying such a standard would prejudice a victim where the offender is not convicted due to matters of fact or law that did not affect the ultimate finding of fact that the alleged conduct occurred, for example the defence of insanity. However such circumstances are specifically provided for in Section 4(1)(a) of the Act.

The jury in the trial of the offender in this matter had the opportunity to hear all of the evidence, observe the witnesses, and then reach a finding upon the relevant facts. I have perused the transcript of trial and I can appreciate the inconsistencies and issues raised by the evidence that could well have caused the jury some concern. However it is not my role to second guess the determination by the jury. It is not my role to consider all the evidence afresh and make my own assessment as a proper finding has already been made in accordance with the applicable standard of proof as to whether or not criminal conduct occurred.

Given the acquittal of the offender I am unable to be satisfied that the offences, the subject of this application, occurred and therefore the application is dismissed."

12 The grounds of this application for review under the Judicial Review Act are set out in the originating application, as well as a document dated 19 August 2010, titled Response to request for further and better particulars dated 6 May 2010 of the originating application. In this response the applicant abandoned two of the original grounds. The remaining grounds are as follows:

"GROUNDS OF APPLICATION

The grounds of the Application include that the failure of the Commissioner to make a Decision in the Applicant's favour (and/or the dismissal of the Applicant's Application for compensation) was not a proper exercise of the power conferred by the Victims of Crime Assistance Act 1976 (the Act), pursuant to Sections 17(2) ... of the Judicial Review Act, 2000 in that:-

...

(b) The Decision involved an error of law and/or was contrary to law in that:-

...

(ii) the Commissioner failed to take into account the evidence before him, in the Crown papers, in Michael Marriott psychologist's report and from the Applicant in her Application.

(iii) the Commissioner failed to be satisfied on the balance of probabilities that the criminal conduct had occurred and been established and that the Applicant was therefore entitled to compensation;

(iv) the Commissioner wrongly determined that he could not be satisfied that the offences had occurred and in so doing relied on a requirement that there be a finding beyond reasonable doubt and not on the balance of probabilities.

(c) That the Commissioner having been satisfied that there was criminal conduct in his Decision to extend the time for the Applicant to seek criminal injuries compensation (Decision 13 January 2009) then determined that there had not been criminal conduct.

(d) That the Decision was contrary to the weight of evidence or other material before the Commissioner including the Crown papers and the Applicant's application and was sufficient for the Commissioner to determine, on the balance of probabilities, that there had been criminal conduct in respect of which the Applicant was entitled to compensation."

13 It can be seen that ground (c) of the grounds of review refers to a decision to extend time dated 13 January 2009 and in particular, a determination made in connection with that decision that the Commissioner was satisfied that there was criminal conduct. A comparison is drawn with the later decision made in April when that determination was not made.

14 This ground was not advanced at the hearing of the application. However, it has not been abandoned so I need to consider it. It does not require detailed consideration. In November 2009 the applicant brought an application to extend time under the Act, s7(1C), to allow an application for compensation. Section 7 provides a three year time limit for the bringing of applications, which had expired in this case. Commissioner Carey delivered a decision on 13 January 2009 concluding that special circumstances existed to justify the delay in making a claim for compensation. The Commissioner stated that he was satisfied that the applicant's inability to make disclosure to the authorities was due to the nature of the criminal conduct and the effect it had upon her.

15 The Commissioner's decision to allow an extension of time was based on the materials placed before him at that time. The issue of whether or not criminal conduct had occurred did not arise for consideration at that stage. It was appropriate for him to assume that criminal conduct had occurred, leaving that question for another day, and to focus on the reason/s for delay. This appears to be exactly what the Commissioner did. His reasons and any assumptions made by him were not binding when he later came to determine whether the claim was substantiated. The earlier decision extending time does not undermine the later decision or indicate error. There is no need to consider this ground of review any further.

16 The application for judicial review with respect to the Commissioner's decision relies on the Judicial Review Act, s17(2)(a), (b), (f) and (i). These provisions are in the following terms:

"(2) The application may be made on any one or more of the following grounds:

(a) that a breach of the rules of natural justice happened relating to the making of the decision;

(b) that procedures that were required by law to be observed relating to the making of the decision were not observed;

(f) that the decision involved an error of law (whether or not the error appears on the record of the decision);

(i) that the decision was otherwise contrary to law."

17 The challenges to the Commissioner's decision raised by this application for review were succinctly summarised by the applicant's counsel, Mr Bartlett, during submissions as:

(a) the Commissioner failed to apply the correct standard of proof; and

(b) the Commissioner failed to take into account all of the available evidence and evaluate it before making the decision.

18 This summary of the challenges made to the Commissioner's decision is encapsulated in the grounds of the application. I adopt that summary as a convenient reference to the issues to be decided in this application. I will deal first with the Commissioner's approach of applying the criminal standard of proof in determining the issue of whether criminal conduct had occurred. Secondly, I will deal with the Commissioner's approach of following the jury's verdict and the weight given to that verdict in his consideration of the matter.

19 Mr Bartlett submitted that the standard of proof for the purpose of establishing criminal conduct under the Act is the balance of probabilities, and that the comments of Evans J in Walker v Carey are obiter, do not represent a concluded view and should not be followed. Mr Bartlett noted the purpose of the legislation is remedial and ought to be interpreted to benefit the victim. He also had regard to the scheme of the Act, drawing support for his submission from the Act, s5(2). Reference was made to cases from Victoria as support for the proposition that the proceedings are civil in nature and that the standard is the balance of probabilities with a gloss derived from Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, that in assessing whether that standard of proof is discharged the gravity of the issues must be taken into account:

"But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal." (Dixon J at 362)

20 Counsel for the Attorney-General, Mr Turner, addressed the scheme of the Act, noting that the jurisdiction to award compensation is delivered by the Act, s4, which makes reference to an "act ... that constitutes an offence", submitting that this phrase and the notion of an offence necessarily connotes proof beyond reasonable doubt. Mr Turner conceded that if the standard of proof was not beyond reasonable doubt, then an error had been made by the Commissioner for the purposes of the Judicial Review Act and the application must succeed_._

21 Mr Turner acknowledged that the long-time practice of lawyers and Criminal Injuries Compensation Commissioners in this State has been to treat the burden of proof as on the balance of probabilities for all purposes under the Act. Mr Turner emphasised the lack of curial examination of the burden of proof in relation to establishing criminal conduct. It is interesting to note that the Act commenced in 1976, albeit under a different name (Criminal Injuries Compensation Act 1976, until an amendment in 2005), and while there have been various amendments since the commencement date, core provisions of the Act and the operation of the compensation scheme have remained essentially the same.

22 It seems that this hearing is the first occasion that the issue of the standard of proof in relation to establishing criminal conduct, absent a conviction or plea of guilty, has fallen squarely for determination. The submissions that I have mentioned raise issues of the purpose of criminal injuries compensation, the scheme of the Act, and the meaning of particular provisions in the Act.

23 It is beyond contention that criminal injuries compensation legislation is properly described as remedial legislation and thus should be construed beneficially and given a liberal construction (see Re Applications of Foster [1982] 2 NSWLR 481 per O'Brien CJ, at 484, Schmidt v South Australia (1985) 37 SASR 570 per Bollen J at 573, Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666 per Murphy J at 675). It is regarded as "unsound" to interpret remedial statutes with meticulous literalism (Re Applications of Foster at 484). However, in having regard to the purpose or object of the Act, and in ascertaining whether a particular interpretation best reflects the purpose or object of the Act (see Acts Interpretation Act 1931, s8A), it must also be borne in mind that there are "boundaries to the benevolence which the Act distributes": Bollen J Schmidt v South Australia (supra). The fact that an Act is remedial does not enable it to be interpreted to extend the scope of the legislation producing a result that was not intended.

24 It can be seen from the terms of the Act that, like similar legislation from other jurisdictions, there are pragmatic limits to the compensation scheme provided for victims of criminal conduct. An example is the statutory ceiling for the quantum of awards (prescribed maximum under the Act, s6A, is presently $30,000 for a primary victim where there is a single offence, $50,000 where there is more than one offence). In many cases this will be significantly less than an applicant might be entitled to recover at common law.

25 Observations made in the cases about the remedial purpose of criminal injuries compensation legislation commonly accompany descriptions of the legislation as providing a quick and effective remedy to victims of crime. Another observation that is often made about the legislation is that the statutory scheme for compensation is equivalent to a civil procedure. In the case of In Re Poore; In Re Scully (1973) 6 SASR 308 at 310 - 311, Bray CJ considered the Criminal Injuries Compensation Act 1969 - 1972 (SA), s4(1), and the statutory maximum, in order to decide whether that was to be regarded as the limit of an artificial scale. Consideration was given to the purpose of the legislation:

"It follows that I also agree that the purpose of the legislation is to afford a quick remedy to the injured party in addition to his ordinary remedies, together with the recognition of an obligation on the part of the community in appropriate cases to see that those injured by violent crimes are not deprived of effective relief up to the statutory limit because of the impecuniosity of the wrongdoer."

Bray CJ went on to conclude that the court should proceed to assess damages as it would in a civil court subject to the restrictions provided for in the legislation.

26 In Re Applications of Foster (supra), O'Brien CJ of the Criminal Division of the New South Wales Supreme Court held that the provisions of the New South Wales Criminal Injuries Compensation Act 1967 and the Crimes Act 1900 (NSW), s437, are "intended to provide some measure of relief for persons sustaining injury by reason of criminal conduct especially where such persons have no resort (or no effective resort) to any individual responsible for the injury" (at 484). Further, O'Brien CJ stated:

"The scheme provides for resort to public funds for the relief it provides, although if there be an individual who can effectively be brought to account, provision is made whereby that result can be achieved, either to compensate the aggrieved person directly or to reimburse public funds where relief has been provided from them. But lack of any effective remedy against an individual is by the scheme not to deprive the aggrieved person of the measure of relief it provides."

27 In a later decision of Re Application of Hanratty (1984) 14 A Crim R 36, O'Brien CJ referred to his judgment in Re Applications of Foster describing his approach as holding that in effect the legislation provides the equivalent of a civil proceeding for compensation for injury.

28 In those two decisions of Re Applications of Foster and Hanratty, O'Brien CJ determined that the standard of proof that applied in establishing the commission of the conduct was the civil standard. It is apparent that the general scheme and purpose of the criminal injuries compensation legislation, and the civil nature of the proceedings assumed significance in that determination. The conclusion did not turn on provisions peculiar to that jurisdiction. The importance of these considerations to the conclusion that the civil standard of proof applied is clear from the reasons of O'Brien CJ in Hanratty when he spoke about his determination in Re Applications of Foster, at 44:

"Taking this approach I there held that in effect s4 provides a summary procedure the equivalent of a civil proceeding for compensation for injury sustained by conduct which, though it may be criminal in nature, is yet compensable as a civil wrong. Being the equivalent of a civil procedure the applicant under s4 bears the onus of proving the commission of the conduct in question upon the civil standard of a balance of probabilities."

29 The observations made in those two cases by O'Brien CJ about the scheme of the legislation in New South Wales and the Crimes Act (NSW) are applicable to the Tasmanian Act. Our Act may properly be described as providing a scheme that is equivalent to a civil proceeding. It can also be seen that the provisions of our Act operate as an alternative to common law proceedings when that does not provide effective redress but also recognise that, in some cases where offenders have means, common law proceedings may be viable, in which case the offender is to be pursued at common law or the public purse may be reimbursed. The Act, s5(4), operates to disentitle applicants if the person has an adequate remedy in civil proceedings and to require the Commissioner to have regard to any amount recovered or that would be likely to be recovered by way of damages or compensation in determining the amount of the award. Section 7A is also noted which allows recovery of a compensation award from an offender. It may be observed that given the way the legislation operates as providing an alternative remedy to common law proceedings, it would be reasonable for Parliament to have intended that the civil standard under the Act should apply so that a person who is left to pursue redress under the Act does not have a more onerous burden of proof to discharge, compared with a person who is able to pursue common law proceedings. Otherwise a victim of crime is disadvantaged merely because of the vagaries of the financial circumstances of individual offenders.

30 In my view, these considerations support the applicant's contention that the standard of proof that Parliament intended should apply to prove applications for compensation is the civil standard. I will be returning again to the two judgments of O'Brien CJ which I have found particularly helpful in the context of particular provisions.

31 I leave these general considerations and turn now to consider particular provisions in the Act relevant to the issue of the standard of proof. I will examine whether these provisions reveal an intention that either the civil or criminal standard should apply to proof of criminal conduct in these proceedings. Submissions of counsel focussed on the Act, s4(1). To establish an entitlement to compensation an applicant must satisfy the requirements of s4(1):

"4 Basis of awards of compensation

(1) Subject to section 6, compensation may be awarded under this Act where a person is killed or suffers injury -

(a) as a result of the act of another person that constitutes an offence or would have constituted an offence, but for the fact that that other person had not attained a specified age, or was insane, or had other grounds of excuse or justification at law for his or her act; or

(b) in assisting a police officer in the exercise of the power to arrest a person or to take action to prevent the commission of a crime by a person."

"6 When compensation not to be awarded

(1) Compensation must not be awarded under this Act -

(a) in respect of a death or injury caused by or arising out of the use of a motor vehicle within the meaning of the Vehicle and Traffic Act 1999; or

(b) by way of exemplary or vindictive damages or by way of aggravated damages; or

(d) in relation to any matter referred to in section 4(2), (3) or (4) for which compensation has been paid, or is payable, under a compensation law; or

(i) under Part II of the Health Insurance Act 1973 of the Commonwealth; or

(ii) from a health benefits organisation registered under the National Health Act 1953 of the Commonwealth."

Section 2 defines relevant terms appearing in s4(1):

"2 Interpretation

(1) In this Act, unless the contrary intention appears -

...

'criminal conduct' means -

(a) an act referred to in section 4(1)(a); or

(b) any act of a person referred to in section 4(1)(b) as a result of which an award may be made;

...

'offence' means an offence that involves violence by one person against another and includes a crime under section 127, 127A, 185, 186, 191A or 192 of the Criminal Code;

'offender' means a person whose act constitutes criminal conduct; ... "

32 Mr Turner contended that the Act, s4(1), and in particular the words "the act of another person that constitutes an offence" carries by implication a requirement that proof of that offence must be established beyond reasonable doubt. For a number of reasons I am convinced that that is not correct.

33 The Act, s4(1), sets out the possible bases for entitlement to compensation under the Act and in doing so establishes the ambit of the Act. There are two bases for entitlement: where a person is killed or suffers injury as a victim of an offence (s4(1)(a)), or in assisting police in an arrest, or to prevent the commission of a crime (s4(1)(b)). Section 4(1) is not concerned with matters of proof or the establishment of a claim_._ The word "offence" in the context of that provision does not address the issue of proof. While an offence needs to be established to invoke the Act, in the context of statutory proceedings that are civil in nature, the word "offence" on its own or the words an "act of another person that constitutes an offence" does not convey proof of that conduct beyond reasonable doubt. An "offence" may be proved on the balance of probabilities or proved beyond reasonable doubt. These words in s4(1) do not assist in establishing the standard of proof for the commission of an act that constitutes an offence.

34 The argument advanced for the State is that the words "an act ... that constitutes an offence" necessarily convey the criminal standard of proof. It seems to follow from this argument that in any context, including civil proceedings, if it must be established that a crime or offence was committed, then the criminal standard of proof applies.

35 Such a proposition is contrary to well established authority. In Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 363, Dixon J said:

"When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues (Doe d Devine v Wilson; Boyce v Chapman; Vaughton v. London and North Western Railway Co, Hurst v Evans; Brown v McGrath; Motchall v Massoud; Nelson v Mutton; Gerder v Evans; sed quœre as to the statement of Swift J in Herbert v Poland; see, further, Wigmore on Evidence, 2nd ed (1923), vol v, p 472, par 2498 (2) (1))."

In Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 it was held that the defendant's acquittal for murder did not operate to conclude the issue in civil proceedings of his responsibility for killing the deceased. In the civil action the deceased's next of kin sought to establish that he had unlawfully killed the testatrix and on that ground was disabled from occupying the office of executor or taking under the will. This had implications for whether evidence could be led in the civil trial to establish that the defendant unlawfully killed the testatrix. In the judgment of Dixon, Evatt and McTiernan JJ, regard was had to the standard of proof in relation to this issue in the civil action, at 713:

"In the Full Court a difficulty was felt about a passage in a recent judgment of the Privy Council, which it was thought, laid it down that where in civil proceedings an issue rose as to the commission of a crime, the fact that the criminal act was done must be proved beyond reasonable doubt. The contrary was directly decided by the Judicial Committee in Doe d Devine v Wilson (1), and such a statement would be opposed to a stream of authority. The matter is discussed in Briginshaw v Briginshaw (2), where the authorities are collected_._"

"The present case and perhaps that cited illustrate the wisdom of the observation of Professor Wigmore cited in Briginshaw's Case (2) as to undue elaboration of the simple statement that in a civil case the same high degree of certainty is not required as in a criminal case, but reasonable satisfaction according to the nature of the case."

36 In considering the contention that proof beyond reasonable doubt is implicit in the concept of an "offence" in the context of criminal injuries compensation the judgment of O'Brien CJ in Hanratty provides an analysis that is very useful. Consideration was given to a provision in the Criminal Injuries Compensation Act 1974 (NSW), s4, which provides for trial judges after an acquittal to grant a certificate enabling an award of compensation to a person alleging to be aggrieved by reason of the "commission of the offence". The section provides:

"On the acquittal of ... a person accused of any offence the ... judge before whom that person was tried may, on application by a person alleging himself to be aggrieved by reason of the commission of that offence, grant a certificate ... "

37 The remedy arises as an adjunct to a criminal trial and involves the trial judge before whom the accused was tried and acquitted having to reach a determination on the material presented at the trial. In Hanratty O'Brien CJ considered an application for a certificate after an accused had been acquitted. He had presided over a criminal trial and during the hearing of the application for a certificate it was argued that the section only applies where the commission of the crime is not disputed at the trial. In declining the application O'Brien CJ gave detailed reasons, and in doing so, he concluded that the standard of proving the commission of the conduct in question was according to the civil standard. O'Brien CJ spoke about fundamental differences between civil proceedings for compensation and criminal proceedings, explaining away any tension that might be thought to exist between a verdict of not guilty in criminal proceedings, and an award of compensation under criminal injuries compensation legislation for the same conduct. The passages from the judgment of O'Brien CJ setting out his analysis are as follows, at 45:

"The basic distinction between criminal proceedings for crime and civil proceedings for compensation for offending conduct causing injury must, therefore, be fully appreciated. Crime is an offence against society, a finding of guilt of crime attracts punishment from society and this is directed primarily to the deterrence of crime apart from the rehabilitation of the offender. It would be unfair to a person accused of crime with its consequent punishment that he should be found guilty except upon a high standard of proof amounting to proof beyond reasonable doubt. The only parties to such proceedings are the person accused and the Crown representing the community. The alleged victim is not a party to the proceedings even though called as a witness. A verdict of guilty establishes beyond reasonable doubt the commission of the offending conduct charged as a crime and an application under s437 of the Crimes Act proceeds on that basis. On the other hand a verdict of not guilty discharges the person accused of the commission of a crime but it is not a finding that the offending conduct charged as a crime was not committed. It is no more than a finding that there was some legitimate doubt as to the commission of the crime. It is not, therefore, a decision that there was no probability that the conduct occurred. It is not a decision affecting the alleged victim.

Section 4 of the Criminal Injuries Compensation Act takes up that question. In proceedings under that section the alleged victim becomes a party seeking compensation from the Government. In those proceedings the accused is not a party. He is not concerned in them and his acquittal is not impugned by them. They are in effect civil proceedings between the applicant and the Government in which the applicant will succeed if the offending conduct is proved on the civil standard as more likely than not to have occurred. Thus, although such conduct may be shown for the civil claim probably to have occurred, there may in the criminal prosecution be legitimate doubt as to its occurrence. That the two can stand together is the premise on which s4 is based."

38 There are unquestionably significant procedural differences between the scheme in Tasmania and New South Wales. It can be said that s4 of the New South Wales Act clearly reveals Parliament's intention that claims for compensation would be instituted subsequent to verdicts of juries acquitting accused. However under the New South Wales legislation, just as in Tasmania, the provision did not address the issue of the standard of proof to be applied. It is plain from the analysis of O'Brien CJ that this issue was to be resolved by broad considerations regarding the nature of civil and criminal proceedings and the purpose of statutory compensation schemes. These remarks have general application to our Act. The remarks identify considerations that weigh in favour of the applicant's contention that Parliament intended that the civil standard should apply to proof of an offence.

39 It is interesting to note that under the Act awards of compensation are not tied to outcomes of criminal proceedings. The Act could have provided that compensation proceedings would be contingent on the finalisation of criminal proceedings, by a plea of guilty, finding of guilt, or a conviction. However, compensation proceedings are contingent on the commission of an offence not whether guilt has been established by criminal proceedings. It is clear from the scheme of the Act that in order to attract the application of the compensation scheme there need not have been any criminal proceedings held establishing guilt, whether by verdict or plea (acknowledging that often it will be desirable that any criminal proceedings be heard before the application for compensation is dealt with, see the Act, s7).

40 This does not support Mr Turner's argument. While an offence or criminal conduct is often linked or associated with proof beyond reasonable doubt, that association is in the context of the criminal law and trial process. The same association with proof beyond reasonable doubt does not occur in a civil context. Even more so where an accused is not a party to the proceedings and criminal proceedings may not have taken place. The reality is that the context in which an offence connotes proof beyond reasonable doubt is in criminal proceedings and the same connotation does not exist in the context of the Act.

41 Mr Turner also relied on the terms of s4(1)(a) in their entirety and the structure of the provision, drawing my attention to the bifurcation in the subsection. One aspect of the subsection refers to an act that constitutes an offence and in the other aspect refers to acts that would have constituted an offence but for excuses or justifications at law. It is submitted that the first category relates to offences that are established beyond reasonable doubt and the second category, "would be" offences, provides specific exceptions to the first category and allows for the application of the Act in relation to those exceptions. It was submitted that this limited category of exceptions does not identify the situation where the person was found not guilty.

42 This approach to the interpretation of s4(1)(a) urged by Mr Turner adopts a mind-set that for the purpose of considering whether there has been an "offence" the point of reference in any case, is the criminal proceedings. However, situations may arise under the Act where there have been or will be no criminal proceedings determining whether an offence has been committed and related questions of justification or excuses at law. If not for s4(1)(a) of the Act, an applicant claiming compensation in cases where the perpetrator has a defence of insanity or doli incapax may have difficulties proving an offence was committed for the purpose of compensation proceedings. Of course, the reason for there being no criminal proceedings commenced may be because of the existence of such a justification or excuse. If the word "offence" does not connote a crime that has been proved beyond reasonable doubt (which I consider to be so for the reasons I have given above), then this provision does not touch on the issue of the standard of proof at all. I see matters of proof and the standard of proof as an entirely different issue to grounds of excuse or justification that are the subject of the Act, s4(1)(a). There is nothing about that provision which excludes cases that fall short of that standard of proof_._ I consider that s4(1)(a) provides Commissioners with a discretion to award compensation for conduct that is a crime or offence to be established but does not speak about the standard of proof or address that issue at all.

43 Section 5(2) of the Act is the only provision that deals with the standard of proof regarding applications for compensation under that Act. Section 5(2) provides:

"5 Jurisdiction of Commissioner to make awards

(2) The Commissioner shall not make an award in respect of a death or injury unless he is satisfied, on a balance of probabilities, that the death or injury was the result of criminal conduct."

44 Mr Bartlett argued the reference to the civil standard of proof in s5(2) was a clear indication that that was the standard for all purposes. Mr Turner argued that the fact that there was a specific provision relating to the standard of proof with respect to causation, suggested the standard of proof in relation to the other aspects of an application was the criminal standard.

45 The submissions from both counsel assumed that this provision was confined to proof of causation, ie proof that the death or injury was the result of criminal conduct. It may be noted that the Act, s5(2), covers situations falling within the extended definition of "criminal conduct", defined to include acts mentioned in s4(1)(b), involving "assisting a police officer in the exercise of the power to arrest a person or to take action to prevent the commission of a crime by a person."

46 It is arguable that s5(2) is to be read as having a wider effect than relating to causation and could be read as addressing the standard of proof in relation to death/injury, "criminal conduct" (capturing the conduct in s4(1)(a) and (b)) and causation. Even if that is not a correct reading of the Act, s5(2), the terms of that provision do not suggest that it deals in an exclusive fashion with those matters which must be proved on the balance of probabilities. It is just as feasible that s5(2) was included in order to impose and highlight the requirement of a causative link between death or injury and "criminal conduct", and to make it clear that proof of the isolated facts of criminal conduct and death or injury is not enough to substantiate a claim without proof of a causative link. I conclude that the reference to standard of proof in s5(2) either relates to the essential elements of a claim (including criminal conduct) or, if the provision only relates to causation, its purpose was to draw attention to a requirement that might otherwise be overlooked. Section 5(2) does not indicate that the standard of proof for the elements of an application for compensation not covered by the section must be other than the civil standard.

47 The other provision relied upon for the contention that the criminal standard of proof applies is the Act, s7(3):

"(3) Proof of conviction of any person for an offence shall, in relation to any application for an award, be taken to be conclusive of the fact that the offence has been committed, unless an appeal against the conviction is pending or a new trial has been directed."

48 In Walker v Carey this provision was regarded by Evans J as giving rise to doubts about whether the standard of proof was on the balance of probabilities for establishing that the applicant was the victim of a crime of violence. Evans J (at par[7]) noted that the burden of proof that applies in obtaining a conviction in criminal proceedings is beyond reasonable doubt. He added that his "preliminary view is that the same burden of proof should be applied when an offender has not been convicted of the offence but it is claimed that the applicant was a victim of an offence involving violence."

49 Section 7(3) facilitates proof of an offence by providing that a conviction is conclusive proof of the fact that an offence has been committed. This provision aids in establishing an application for compensation so that if a person has been convicted of an offence there can be no argument that the offence was indeed committed. If it were not for this provision an applicant for compensation would need to prove an offence had been committed despite a conviction. This section is concerned with proof of an offence and not with the standard of proof that must be reached before a claim can be established. There is nothing in s7(3) that is at odds with the applicant's contention that all elements of the claim must be proved on the balance of probabilities. The two concepts of proof of an offence being on the balance of probabilities and a conviction, involving proof beyond reasonable doubt, amounting to conclusive proof of an offence are harmonious concepts. Further, I see no practical difficulties in the application of this provision if the civil standard applies.

50 Counsel referred to a number of cases from other jurisdictions. Largely, the cases focussed on particular provisions in the relevant legislation, and given differences in the legislation with our Act were not a great deal of assistance. Indeed, a consideration of these cases leads to an excursion spent comparing and contrasting legislation and away from an analysis that advances a consideration of our Act.

51 However, because of the attention these cases received during submissions, I will discuss them briefly. As a general remark, criminal injuries compensation legislation in other jurisdictions has been interpreted as involving a civil standard of proof. The exception is South Australia where the legislation has been interpreted as requiring proof beyond reasonable doubt. Mr Turner referred to some South Australian cases as well as helpfully providing references to decisions from Western Australia and New South Wales that were not in line with his argument.

52 Mr Bartlett's submissions referred to two Victorian authorities: Re Lemon and Crimes Compensation Tribunal (1994) 7 VAR 203, Re Smith and Crimes Compensation Tribunal (1991) 4 VAR 467. Those decisions applied the civil standard of proof qualified with reference to the Briginshaw v Briginshaw gloss so that the Tribunal can only regard a fact as established if it can entertain a reasonable satisfaction of its truth.

53 Mr Turner referred me to the South Australian cases of In Re E (supra) and Bartsch v McIlroy and South Australia (supra), referred to by Evans J in Walker v Carey. In the case of In Re E, Jacobs J held that for the purposes of establishing the commission of an offence required on an application under the Criminal Injuries Compensation Act 1969 - 1974 (SA), s7 (concerned with the situation where the accused has not been brought to trial), the degree of proof is proof beyond reasonable doubt. It appears from a consideration of the reasons In Re E, that the conclusion that the commission of the offence must be proved beyond reasonable doubt turned on the particular wording of the relevant provisions in the South Australian legislation which is different to the Tasmanian Act.

54 In Bartsch v McIlroy (supra), Mohr J considered a finding of a magistrate in relation to a private complaint of assault, holding that an acquittal in a court of summary jurisdiction bound, by way of estoppel, the applicant for criminal compensation where he was the complainant in those proceedings. It seems that concerns that led to a construction of the legislation that the standard of proof was beyond reasonable doubt were the ramifications of private prosecutions and the ease with which claims for compensation might be established if the civil standard applied, as well as a concern about issue estoppel in the context of the facts of that case (see 508 - 509). I will return to consider the concern about issue estoppel.

55 In Puric v State of South Australia [2009] SASC 107, it was held by the Full Court of the Supreme Court of South Australia that the clear intent of the Victims of Crime Act 2001 (SA) was that the standard of proof for establishing the commission of an offence is proof beyond reasonable doubt. The South Australian legislation had been amended since Bartsch and In Re E. By the time of Puric the legislation expressly stated that in relation to the commission of the offence the standard of proof is beyond reasonable doubt and that other facts on which the application is based are to be proved on the balance of probabilities. This provision reflected the interpretation of the South Australian Act in earlier cases. Kourakis J examined the legislation which is different in significant respects to our Act and the history of criminal injuries compensation legislation in South Australia.

56 In R v Field [1982] 1 NSWLR, 488 consideration was given to legislation which provided for a certificate to be granted by the trial judge in the case of acquittals which arose if an applicant alleges himself to be aggrieved "by reason of the commission of the offence". Yeldham J considered that in determining whether an offence has been committed the trial judge must determine that upon the balance of probabilities. Yeldham J noted the decision of In Re E (supra) but distinguished it noting that while s7 of the South Australian legislation relating to acquittals was similar to the provision in the New South Wales Act there were important differences. Yeldham J had regard to a decision of the New South Wales Court of Criminal Appeal which considered the Crimes Act, s437, and held that the relevant standard in relation to quantum is the civil standard. Yeldham J held that the "commission of the offence" fell to be determined on the balance of probabilities. Yeldham J noted the beneficial purpose of the provision and then stated at 492:

"There cannot be any question of punishment involved in a section which only comes into operation where the accused is acquitted and hence there is no logical reason for proof beyond reasonable doubt."

57 Mr Turner also referred me to Bas v The Estate of Nas (Dec) [2000] WASCA 270 which noted the settled approach taken in that State that the standard of proof in criminal injuries compensation cases is the civil standard (par[11]).

58 One of the reasons supporting the criminal standard of proof contention which features in some of the cases is a concern about "issue estoppel". In Walker v Carey, Evans J referred to the case of Bartsch v McIlroy and the statement of Mohr J, at 509, that "issue estoppel" barred a claim for compensation in relation to an offence in respect of which the offender had been acquitted. That consideration was touched on in Mr Turner's submissions in the context of the South Australian cases but, as I understand his argument, not relied upon as an independent rationale for rejecting this application for review. While a concern about "issue estoppel" emerged from the South Australian case of Bartsch, it was not considered in any depth. It is not clear from the judgment of Mohr J whether it was regarded as a broad concern with regard to claims of compensation beyond the facts of that case.

59 In Helton v Allen (supra) it was held that an acquittal cannot operate as an estoppel in civil proceedings, per Dixon, Evatt and McTiernan JJ at 710. Some of the judgments in the New South Wales decisions that I have mentioned have considered issue estoppel in relation to claims for criminal injuries compensation, and a view has been expressed in line with Helton v Allen. Those judgments reveal an acquittal is not regarded as concluding the issue of whether an offence has been committed for the purpose of an application for compensation. In R v Field, Yeldham J noted that a question of estoppel could not arise "as the parties to the application are not the same as, nor are they privies of, those involved in the criminal trial" (at 492). In Hanratty, the conclusion was reached that there is no impediment in principle to statutory proceedings commencing after an acquittal. The consideration given by O'Brien CJ in Hanratty with respect to fundamental differences between criminal and civil proceedings for compensation, in the lengthy quote set out above, led to his conclusion that proceedings for compensation do not have the effect of impugning an acquittal. That analysis provides a complete answer to the concern about issue estoppel.

60 In light of the considerations referred to above, I conclude that the standard of proof to be discharged by an applicant to establish that an offence has been committed pursuant to s4(1)(a) of the Act is the civil standard of proof. The word "offence" in the context of that provision does not import the criminal standard of beyond reasonable doubt. The Act is properly described as remedial legislation providing proceedings that are civil in nature. The purpose of the Act and the nature of the proceedings point naturally to the civil standard of proof. As set out fully in the reasons above, there is persuasive authority that in civil proceedings generally and also specifically in proceedings under criminal injuries compensation legislation, crimes and offences are to be proved on the balance of probabilities.

61 The terms of the Act do not give an indication that the criminal standard of proof applies. Furthermore, the only reference to a standard of proof is to the balance of probabilities in s5(2) of the Act, and there is no reason to doubt that this is the standard of proof for all aspects of a claim under the Act. Having concluded that the civil standard applies, it follows that the learned Commissioner erred in applying the criminal standard of proof. It is clear that for this reason the decision involved an error of law and the decision was contrary to law (s17(2)(f) and (i)).

Failed to take into account all the evidence and evaluate it

62 The other challenge to the Commissioner's decision has two components. The first is that the learned Commissioner failed to have regard to all the evidence. The second is that the Commissioner failed to independently evaluate the evidence and that he treated verdicts of the jury in the criminal trial as binding.

63 The assertion that the learned Commissioner failed to have regard to all the evidence relies on the Commissioner's reasons for decision. In particular, Mr Bartlett relies upon the reasons in which the Commissioner states:

"I have perused the transcript of trial and I can appreciate the inconsistencies and issues raised by the evidence that could well have caused the jury some concern".

64 The real grievance here is that the only evidence considered by the Commissioner was the transcript of the trial. However, the reasons do not suggest that the transcript of the trial was all that was taken into account. It appears from the Commissioner's reasons that he was alert to other materials that he had been provided with and conscious that he would need to consider all the materials provided and not just the evidence relied upon by counsel. Just because the Commissioner did not mention taking into consideration other materials does not mean that he failed to do so.

65 The second component to the challenge to the Commissioner's reasons that he did not independently evaluate the evidence relies on the following part of those reasons:

"However it is not my role to second guess the determination by the jury. It is not my role to consider all the evidence afresh and make my own assessment as a proper finding has already been made in accordance with the applicable standard of proof as to whether or not criminal conduct occurred."

66 The challenge to the determination is that, regardless of the standard of proof to be applied and whether or not the learned Commissioner correctly or incorrectly applied the criminal standard of proof, he was required to independently evaluate the evidence before him. Mr Turner conceded that if the Commissioner treated himself as bound by the jury verdict and did not determine for himself the issue of whether an offence had been committed, that approach would amount to a failure to exercise jurisdiction in the sense of a failure to apply himself to a question which the law prescribed: Jackson v Building Appeal Board [2010] TASSC 29, pars[30] - [45]. Mr Turner submitted however, that a benign interpretation of the reasons was available and should be attributed to them (Attorney-General (Tas) v Cameron [2007] TASSC 22 per Slicer J at par[9] and Blow J at [55]) and the Commissioner may have independently determined the issue but not expressed that in his reasons. Furthermore, Mr Turner submitted that while the Commissioner could not adopt the jury verdict he was permitted to give some weight to it (the Act, s5(1)).

67 The reasons given by the Commissioner do not permit the benign interpretation urged by Mr Turner that the Commissioner independently considered the question of whether offences had been committed. In fact, it is clear from the reasons that the Commissioner considered that he should not undertake that independent assessment and that he was bound by the jury's verdict.

68 The relevant part of the Commissioner's reasons appears after the Commissioner has concluded that the standard of proof is the criminal standard. For the reasons set out above, this conclusion as to the criminal standard of proof is incorrect and the standard is the balance of probabilities. However, even if the Commissioner was correct that the criminal standard applied, that would not mean that he was bound by the jury's verdict. As noted above in par[39] the Act does not tie the claim for compensation to the jury's verdict or the outcome of criminal proceedings. A claim for compensation is a new proceeding with new parties and often, as here, involving new evidence. Various documents such as Mr Marriott's report, the Crown papers and documents from the Victims Assistance Unit file did not form part of the evidence before the jury.

69 With respect, I must disagree with the learned Commissioner's statement that it was not his "role to consider all the evidence afresh and make my own assessment". It was his role to do just that. I wish to add that the Commissioner's view of the limitations of his role was no doubt based on the conclusion he reached regarding the application of the criminal standard of proof, and also deference to the verdict of the jury in the criminal trial relating to the same allegations by the applicant that were before him. However, when consideration is given to the role of the jury in criminal trials and the role of commissioners in assessing victims of crime compensation applications under the Act and the matters of general principle discussed in cases such as Hanratty, it can be seen that verdicts are not undermined by the process of independently evaluating the evidence for the purpose of assessing the applications and determining whether there has been an offence committed.

70 The decision of the Commissioner was contrary to law in that the standard of proof that should have been applied under the Act was the civil and not the criminal standard. Furthermore, even if the Commissioner had been correct in applying the criminal standard, then the failure to assess the evidence and the approach of treating himself as bound by the jury verdict also amounted to an error of law.

71 The application is allowed. It seems that the appropriate orders, pursuant to s27(1)(a) and (b) of the Judicial Review Act are as follows:

1 The decision of Commissioner Carey dated 22 February 2010 be set aside.

2 That the claim be remitted to the Commissioner for further consideration and determination in accordance with law.

72 Before proceeding to make orders I will give counsel an opportunity to be heard.