Consideration
76At the outset of the consideration it must be recognised that the Tribunal was not bound by the rules of evidence concerning formal proof of relevant matters, and in that regard, some reliance on hearsay evidence is permitted: Sch 2, cl 12(1) of the Act.
77However, procedural fairness requires that a reasonable standard of proof or satisfaction should be critically applied for proof of matters of gravity that affect the rights of a party with a claim before the Tribunal. This must be so, particularly where allegations of wrongdoing by the appellant are sought to be relied upon as factors disentitling him to compensation: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362.
78In the present case, the disentitling conduct as found by the assessor and by the Tribunal concerned the appellant's reputation in allegedly supplying prohibited drugs from the premises, matters the appellant disputed, and for which only unsubstantiated and anonymous hearsay was offered as evidence.
79Procedural fairness together with the necessary application of the required civil standard of proof that was appropriate to the gravity of the asserted criminal behaviour required that such matters should not be determined by unsubstantiated opinion evidence.
80The opinion evidence relied upon by the Tribunal to deny the appellant compensation was clearly based upon unattributed anonymous hearsay. In this case, when that hearsay is examined for its substance, it is revealed to be based upon nothing more than neighbourhood gossip or rumour.
81I use that expression advisedly, because the only material put forward in support of the allegations that the appellant was supplying drugs from the premises, was the opinion of Detective Senior Constable Biffin. It is clear from the police documents that were provided to the Tribunal, that his opinion in that regard was stated to have been based on hearsay obtained from unnamed neighbours of the plaintiff in the form of " comment ".
82In essence, the polarisation of the material before the Tribunal was the opinion evidence of Detective Senior Constable Biffin on the one hand, and the appellant's sworn evidence on the other. The resolution of that polarisation required a weighed and reasoned resolution before rejection of the appellant's sworn denial of the alleged activity.
83With one qualification, the appellant's denial of the disentitling conduct alleged against him was substantially framed in the present tense and provided no basis for a relevant temporal connection between the rumoured activity and the home invasion. The basis of the Tribunal's rejection of the appellant's sworn evidence was the reported 1997 and 2000 convictions for the supply of prohibited drugs, the details of which came from an unverified bail report.
84The rejection of the appellant's denial of dealing in drugs is open to criticism for at least two reasons.
85First, assuming for the purpose of analysis, that there is no relevant difference between selling and supplying drugs, and also assuming that the unverified bail report accurately recorded the appellant's criminal history, given the significant interval of time that separated the 1997 and 2000 convictions of the appellant for supplying prohibited drugs, and the 2008 home invasion, no reasonable temporal connection between these events could be inferred as being either directly or indirectly contributory to the 2008 home invasion. That lack of a temporal connection is an important consideration in the appeal.
86In my view, such a temporal connection is an essential pre-requisite for the denial of the claim for compensation on a construction and an application of s 30(1)(a) of the Act.
87Secondly, in preferring the evidence in the unverified bail report form over the appellant's sworn denials of the activity referred to in the opinion of Detective Senior Constable Biffin, as was set out in the statutory declaration, the Tribunal appears not to have weighed the relative probative value of the respective bodies of evidence, and simply preferred the unverified and significantly qualified bail report material, which was not vouched for or guaranteed for the accuracy of its contents, to the evidence that comprised the appellant's sworn statement.
88The determination of the Tribunal did not disclose an appropriately reasoned basis for in effect preferring inferences drawn from the contents of the unverified list of convictions in the bail report document, over the appellant's evidence on oath.
89The matters relied upon by the VCT for rejecting the appellant's claim on account of alleged disentitling conduct were matters of specificity that ought to have been specifically drawn to his attention to enable him to specifically rebut those matters.
90It is apparent that what the Tribunal took to be opinion evidence, and which was in fact only proffered by Detective Senior Constable Biffin as " comment ", was based on hearsay or rumour and did not constitute evidence in the commonly accepted sense. This raises the legal question of whether such hearsay material was permissibly used by the Tribunal to deny the appellant compensation, or whether the use that was made of that material amounted to an error of law.
91In my view, the denial of entitlements to victim compensation on account of rumoured criminal conduct on the part of the appellant was unreasonable and unsatisfactory: Briginshaw v Briginshaw .
92Furthermore, the fact that the police accepted the appellant's admission of possession of 2gms of cannabis for his personal use was not a proper basis from which to infer disentitlement to compensation on account of alleged dealings in drugs.
93The material comprising the opinions and comments prepared by Detective Senior Constable Biffin cannot be reasonably said to rise above mere speculation or conjecture. As such, the material does not constitute proof of the disentitling conduct on any acceptable civil standard, nor does it provide a proper basis for a reasoned inference in favour of disentitling conduct. The inference of a direct or indirect contribution of the appellant's conduct to the home invasion, as drawn by the Tribunal, was in my view flawed by the absence of a relevant temporal connection to any disentitling conduct on the appellant's part.
94The applicable principle of statutory construction is that the utmost relief be afforded as allowed by the fair meaning of the language employed in the statute: Director-General of the Attorney General's Department v District Court of NSW and Stark [1993] 32 NSWLR 409, per Sheller JA at 421F.
95Even when applying the required beneficial statutory construction to the words of s 30(1)(a), to sustain the inference that the appellant had been engaged in criminal conduct that had either " directly or indirectly contributed to " the act of violence in question, as was found by the Tribunal, a temporal connection must nevertheless still be shown to exist between the act of violence and the appellant's past criminal activity. An interpretation of those words that permitted events that were remote in time to be characterised as " directly or indirectly " contributory would be an unreasonable construction.
96That temporal connection was entirely lacking in the evidence in this case, and the inference drawn to the contrary by the Tribunal was entirely speculative: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352.
97As a matter of law, the rules of procedural fairness must be observed in considering what weight, if any, was to be applied to the opinion evidence upon which the Tribunal based its findings. The Tribunal's decision to rely upon the appellant's distant in time criminal convictions as a disentitling factor, was unjustified because of a lack of temporal connection to the events of the home invasion.
98In this case, it is plainly apparent from the reasoning of the Tribunal, that unattributed, unparticularised, and unchallengeable hearsay as to what some unidentified neighbours of the appellant had said of him was relied upon by the Tribunal in order to deny the appellant his rights to compensation: Tribunal reasons, paragraph [13]. That occurred without an appropriately reasoned analysis of the weight, if any, to be given to such material. If such material had been so weighed, the inescapable conclusion would have to have been that the material in question had no probative value.
99It is also plainly apparent for the reasoning of the Tribunal that unsubstantiated opinion evidence as to the character of the appellant, as proffered by the investigating police officer, which in reality was only a comment, was relied upon by the Tribunal in arriving at its conclusions: Tribunal reasons, paragraph [14].
100There is no doubt the Tribunal, and at an earlier stage, the assessor, was entitled to seek information of the appellant's past criminal record. That course was open and was pursued pursuant to a statutory power and the receipt of that material into evidence was permitted: Sch 2, cl 12(1).
101The ultimate question is whether the material was used unreasonably, with the result that the appellant was wrongly denied compensation. In my view it was, and I consider that this involved an error on a question of law: Azzopardi v Tasman UEB Industries Ltd , at p 157A-F.
102I consider this to be so because the material in the form of opinion evidence based on unsubstantiated rumour had no probative value or evidentiary quality having regard to the gravity of the conduct alleged against the appellant by means of that opinion evidence: Briginshaw v Briginshaw at 362.
103For the Tribunal to be in a position to reasonably infer that the appellant's past criminal record for drug-related activities in 1997 and 2000, constituted a direct or indirect contributor to the home invasion in 2008, acceptable non-speculative evidence beyond conjecture was required.
104This required that the evidentiary material supporting a denial of compensation rose above mere unsubstantiated and anonymous rumour. The opinion evidence of the investigating police officer did not satisfy that requirement. The Tribunal did not recognise this and instead, drew upon that unsatisfactory material when it rejected the appellant's evidence on oath. That was an error involving a question of law.
105Reasonable minds may perhaps differ on whether procedural fairness required that the Tribunal should have invited the appellant to make specific rather than general submissions on whether the inference that was ultimately drawn against him was available and reasonably open, as to there being any contributory connection between his past criminal activity and the matters raised in the opinion of Detective Senior Constable Biffin.
106The compelling view is that in the legal setting of the Tribunal considering the appellant's claim for compensation, even where the Tribunal was not bound by the rules of evidence, it was a given that the material within the opinion of Detective Senior Constable Biffin could not have reasonably constituted probative evidence for the proposition that if accepted, would have had the effect of denying the appellant compensation in an application of s 30(1)(a) of the Act.
107On any view, that opinion evidence could not reasonably be considered to be probative of anything other than the fact that there were rumours in the neighbourhood about the plaintiff's activities. Legal rights, entitlements and disentitlements are not properly determined on the basis of such material lacking in probative value.
108The solicitor for the appellant had made cogent submissions on the contentious material in the form of his letter dated 12 April 2011, in which the quality of the evidence now in question was canvassed.
109The appellant's solicitor's submission was to the effect that the 2gms of cannabis belonging to the appellant was for his personal use, evidenced by the fact that the police had laid no charges against the appellant in relation to his admitted possession of that cannabis.
110That submission also correctly pointed out that there was no evidence, either " in the police report or elsewhere " that the appellant was dealing in cannabis. That submission was a compelling one, and there was no evidence other than non-probative rumour to the contrary.
111The appellant's solicitor's submissions went on to rebut the suggestion of the existence of a direct or indirect contribution or causal connection between the appellant's possession of a small amount of cannabis, and the home invasion. That rebuttal was on the basis of an absence of relevant evidence of such a connection. That submission was also a compelling one.
112The Tribunal's determination which rejected that submission in favour of the opposite contention involved a misapplication of the law to the available evidence: Azzopardi v Tasman UEB Industries Ltd p 157A-F. This was a fundamental matter crucial to the decision of the Tribunal, and not one that could be regarded as trivial or inconsequential in the review of administrative decision making: Minister for Ethnic Affairs v Wu Shang Liang (1986) 185 CLR 259.
113For these reasons I consider that the appeal should be allowed. In my view, on the foregoing analysis and on the construction of s 30(1)(a) of the Act, the Tribunal's reliance on that provision to deny the appellant's compensation should not stand, with the result that the orders made in the Tribunal must be set aside and the matter should be remitted to the Tribunal to be reheard without regard to the opinion evidence to the effect the appellant was dealing in drugs from the premises.