Nichol v VOCAT [2000] VCAT 840

1. On 12th of March 1998 the present applicant, Ms Nichol was at her home. Mr Levends, her defacto husband, or perhaps more accurately, former defacto husband, was resident with her in Creswick at that time for the purpose of undergoing detoxification. Mr Levends has had a long history of what Ms Nichol described as poly-drug abuse. He was, it seems, at the time, part of a methodone program. In 1992 there had been an incident in which he inflicted serious damage upon the property of Ms Nichol and as a result they had separated.

2. In 1997 whilst Mr Levends was in jail, a reconciliation was effected. Ms Nichol says however that Mr Levends was at her house, not as part of a renewed cohabitation but for the short-term purpose of detoxification. According to Ms Nichol, Mr Levends had for some time been performing well in the detoxification process and had been abstaining from drugs and alcohol. On this evening however, he seemed in an odd mood and quite aggressive. She became frustrated at the fact that he was obviously regressing, though at that stage she did not know the precise nature of his regression. In frustration she struck him on the back with a forearm, a blow which she says was given in frustration and not in hostility and was in any event, not a particularly serious one. This provoked what she herself described as a short but numerous rain of blows. They moved through various rooms in the house and eventually a far more serious assault took place.

3. She fled to a neighbour's house and the neighbours called the police. The police seemed initially uninterested in attending. Eventually however they stopped and apprehended Mr Levends around the corner. He was at the wheel of his car which it seems had stolen number plates. It was this that attracted police attention. When he was breathalysed he was found to be over the limit. Ms Nichol made an initial statement to Constable Van Roussum who was about to go on holidays. He said that when he returned from holidays the matter would be investigated further.

4. Some weeks went by and Ms Nichol it seems felt that the police were once again showing the same lack of interest that they had displayed when summoned to the scene on the night of the assault. After consultation at the Victims Assistance Program she made a further approach to the police and charges were laid.

5. On the 11th of January this year, the matter came on for hearing in the Melbourne Magistrates Court. The day before the hearing date, after consultation both with the police prosecutor and counsel representing the offender, she elected to withdraw the charges. At the request of the police prosecutor she attended the Court on the day and entered into discussion with the Magistrate Ms Hannan, who it seems explained to Ms Nichol the consequence of what she was doing. As a result of Ms Nichol's decision and her wish not to proceed, the police withdrew the charges. Ms Nichol made a claim for compensation under the Victims of Crime Assistance Act 1996.

6. On the 25th of May this year, the Tribunal constituted by Mr Stone, Stipendiary Magistrate, decided to dismiss that compensation application. He did so in reliance upon Section 52 of the Victims of Crime Assistance Act 1996. That section states inter alia:

"The Tribunal must refuse to make an award of assistance if--

(ii) the applicant failed to provide reasonable assistance to any person or body duly engaged in the investigation of the act of violence or in the arrest or prosecution of any person by whom the act of violence was committed or alleged to have been committed unless the Tribunal considers that special circumstances brought about that result."

7. Ms Nichol seeks a review of the decision of the Victims of Crime Assistance Tribunal, contending first, that in the circumstances she did not fail to render reasonable assistance to the police and even if she did, there are in the circumstances special circumstances which brought about that result.

8. The decisions which Ms Nichol made is explained in a closely typed letter of some 4½ pages dated the 28th of July 1999 and addressed to this Tribunal. She says that she gave lengthy consideration to the likely effect of the prosecution. Mr Levends had a long criminal history. As a result of his apprehension over the limit at the wheel of a car on the night of this incident he had already been sentenced to a term of imprisonment. He had, it seemed, served numbers of other sentences. Her discussions with the police prosecutor and Counsel representing him, led her to conclude that the inevitable consequence was that he would be sentenced to a further term of imprisonment. The proper approach in her view, was that he should be referred to a drug rehabilitation program. Upon consideration, she was satisfied that his actions on that night were as a result of the effects of methadone and alcohol and he should be given reasonable consideration in light of those matters. It would in her opinion be detrimental to his welfare and a waste of the community's money to simply sentence him to another term of imprisonment. That was the basis of her opinion. She explains it at some greater length than the summary that I have given and she attaches literature as to research on the effect of drug and alcohol dependency on criminality. It is evident from what I have said that this was a well considered decision and not one taken upon a whim.

9. Ms Galvin who appeared on behalf of Ms Nichol submits first, that in the circumstances there is no ground for concluding that there was any lack of reasonable assistance to the police. The matter was reported to the police immediately upon its occurrence. The police only proceeded as far as they did after having been given it seems, a "rev up" at one stage by Ms Nichol. Even though she expressed a desire that the prosecution not go on, Ms Galvin submits that the Crimes Act and in particular Section 400 provided the police with the mechanism to force the matter on whether Ms Nichol desired it to go on or not. The disposition of the proceeding was by way of the withdrawal of charges and in the circumstances therefore it remains open to the police to bring on further charges. Mr Levends would not have the advantage of any plea of autrefois acquit.

10. In any event says Ms Galvin the reasons which led Ms Nichol to her decision are properly to be regarded as special circumstances. They were dictated not by any selfish motive but rather by a concern for the welfare of Mr Levends and a concern that a pointless and damaging step should not be taken, namely placing him under a further sentence of imprisonment.

11. I was told that there is no available decision upon what the expression "special circumstances" in the passage from Section 52 which I have quoted means. There is no shortage of law as to the proper meaning of the expression to be found elsewhere. If one were to refer to Stroud's Judicial Dictionary one would find no less than 22 lines of authority referred to. These are not for the most part references to single individual decisions but rather to entire lines of cases. They go back over a hundred years and range over a very wide collection of subject maters. If one goes to the words and phrases section of the Third Edition of the Australian Digest one finds a page and three-quarter of references to the expression "special circumstances".

12. I will therefore limit my reference to case authority to some reasonable range. Consideration of all the authorities on the expression might take literally years. An expression such as this to my mind requires a consideration of the particular facts in the particular case and is not perhaps well adapted for further explanation and gloss. In some respects it might be thought to be similar to the hallowed expression "beyond reasonable doubt". Be that as it may, I was referred to a number of authorities on the meaning of the word. Ms Galvin took me to the definition to be found in the Oxford English Dictionary which refers to something out of the ordinary. To the same effect is the dictum of Burchett J in the case Minister for Community Services v Thoo [1988] FCA 54; (1988) 78 ALR 307, 324 where His Honour was speaking as a member of the Full Court of the Federal Court consisting of himself and Davies and Wilcox J.J.

13. Mr Heathcote also referred me to another decision of Burchett J. in the matter of Jess v Scott where once again he was a member of a Full Court of the Federal Court (1986) 70 ALR 185. The Court there considered a large number of previous authorities, this time in the context of whether circumstances existed to justify an extension of time where a party had apparently lost rights by failing to meet a time limit.

14. Mr Heathcote also took me to an unreported decision of Deputy President Forrest of the Administrative Appeals Tribunal of Victoria, given 22nd December 1986 in the matter of Scott v Crimes Compensation Tribunal wherein a slightly different context the learned Deputy President was prepared to make an award of compensation under previous legislation despite Mr Scott having failed to perfect the report to the police of the incident in which he was injured. The learned Deputy President made the award of compensation despite the failure to perfect that report because according to his view the failure by Mr Scott was caused at least in part by the consequences of his injury. That is it was the result of external circumstances rather than Mr Scott's own voluntary decision.

15. My own research took me to a number of recent authorities. In Denysenko v Dessau [1996] VicRp 65; [1996] 2 VR 221, 224 Beach J of the Supreme Court of Victoria was considering whether special circumstances existed within the meaning of Rule 56(2)(3) of the Rules of Civil Procedure with respect to an application for judicial review. At page 224 His Honour said:

"Special when used in this connection must mean something unusual, uncommon, exceptional or extraordinary."

16. His Honour's dictum was considered by Balmford J. in the matter of No. 2 Pitt Street Pty Ltd v Wodonga Rural City Council [1999] VSC 133, a judgment delivered on the 27th of April 1999. At paragraph 24 Her Honour took leave to disagree with what Beach J. had said in so far as he suggested that special circumstances would exist only if those circumstances were "extraordinary or exceptional". At paragraph 28 she suggested that "out of the common run" might be a better formulation. In the context of Social Security benefits French J. in the matter of Secretary of the Department of Social Security v Hales [1997] FCA 1565; (1998) 153 ALR 259, 267 said:

17. We might with Lord Macmillan in his celebrated speech in Donoghue v Stevenson [1932] AC 562, 619 say that the categories of special circumstances are never closed.

18. However what must be demonstrated to my mind for circumstances to be special is that they are "out of the ordinary" to adapt the terminology used by Balmford J.

19. I turn therefore to the facts once again and consider first whether in the circumstances Ms Nichol could be regarded as having rendered reasonable assistance to the police. Certainly at the outset she rendered perhaps almost more than assistance because it was only as a result of her persistence so far as one can make out that this matter proceeded to a court prosecution. The police it will be recalled seemed uninterested on the night in attending the crime scene and after the ultimate prosecuting officer went on leave it seems it was only as a result of Ms Nichol's persistence that the matter was taken up and brought to court.

20. What however are we to make of her decision to seek to have the prosecution withdrawn, a decision made on the eve of the hearing? First, it is somewhat difficult to accept the submission made by Ms Galvin that in the circumstances her client remained able and willing to co-operate with a prosecution of this matter. The entire tone of Ms Nichol's letter dated the 28th of July 199 addressed to the Tribunal was that she deliberated upon the matter and for the reasons which she explained in great detail and by reference to research literature on the subject decided that this prosecution ought not to proceed. In the last paragraph of her letter Ms Nichol said:

"I believe that the decision to dismiss charges was as a result of the above mentioned issues and I believe this to be taking special consideration to the problems faced by not only the offender but myself also."

21. The tone of that letter is that her decision was what stopped the prosecution and she writes upon the basis that she had the power to do so. At least in theory it would have been possible for the police to seek to bring the matter on against her will. Mr Heathcote however has submitted and I think plausibly that in the circumstances the police would have reasonable apprehension as to whether Ms Nichol as the complainant would swear up to the statement which she had made. In truth I think the proper characterisation of what happened is that Ms Nichol pulled the rug out from under the police at the last minute. This is not to my mind the rendering of reasonable assistance.

22. I turn then to consider whether what has been urged constitutes special circumstances. What it comes down to is this, that Mr Levends was a poly-drug user who had had many difficulties in his life. Has been through many vicissitudes and had had many brushes with the judicial and prison system. Further processing through that system would not be any good to him. I ask myself is this in any way out of the ordinary? I think it is so notorious that a very large or perhaps the majority of crime in our society is as the result of the abuse of drugs and alcohol. That is particularly so for violent crime. Moreover it is notorious that these factors are two factors in domestic violence. A further factor which one must consider with respect to domestic violence, which is no small sector of the total crime in our society, is that once the incident is over, the victim has to consider both in his or her own interests and in the interests of someone who may have been and may continue to be a loved one, whether it is appropriate to bring the full weight of the law down upon that individual for whom that person may continue to have feelings either of tenderness or a wish to redeem from drug or alcohol abuse.

23. In truth this story is a depressingly common one. Not one out of the ordinary at all and for that reason I cannot regard the circumstances that led to the termination of Mr Levends' prosecution as being any sort of special circumstance. Throughout this century people in all parts of society have questioned the utility of imprisonment and the various forms of sanction and rehabilitation projects which are used as part of the judicial system. The fact that serious crime persists in our society indicates that the misgivings and concerns that people have as to the effectiveness of our society institutions are well based but again I have to say that is not out of the ordinary run of things, it is depressingly common not special. In those circumstances I believe that the decision of the Victims of Crime Assistance Tribunal was correct and I would therefore affirm its decision.

24. I have just given my reasons for affirming the decision of the respondent Victims of Crime Assistance Tribunal. As a consequence of that decision Mr Heathcote who appears for the respondent Tribunal seeks an order that the applicant Ms Nichol, pay the Tribunal's costs of the proceeding. He notes that at a compulsory conference held in the course of this proceeding, the applicant was warned that if her application was unsuccessful, the Tribunal would seek a costs order against her. In the circumstances therefore, Mr Heathcott says a costs order should follow.

25. Ms Galvin however submits that her client brought her claim sincerely in circumstances that have led to her failing in this proceeding were a decision made for no selfish reason but rather based upon what Ms Nichol concedes were the best interests of Mr Levends. In those circumstances Ms Galvin says an adverse costs order would be highly inappropriate.

26. Costs in these proceedings are governed by Section 109 of the Victorian Civil and Administrative Tribunal Act 1998. Sub-section (1) provides and establishes a presumption that in Tribunal matters costs are to lie where they fall. Sub-sections (2) and (3) permit this prima facie situation to be departed from in a number of circumstances. The last of those circumstances referred to in paragraph (e) of Section 109(3) is "any other circumstances which seem to the Tribunal to be relevant". The consequence therefore is to give this Tribunal a discretion in the widest possible terms as to what costs orders ought to be made, subject of course to the presumption that generally costs would lie where they fall. In considering Section 109 in the course of a seminar at Leo Cussen Institute on the Retail Premises Reform Act 1998 Mr Golvan QC said that the section provided the widest possible discretion to the Tribunal and I respectfully agree with that opinion.

27. What then are the circumstances which are relevant here? I accept Ms Galvin's submission that her client brought this review application in the spirit of sincerity and that the evidence which she gave to me was thoroughly candid. On the other hand she has proceeded in this matter in the face of a costs warning given at the compulsory conference. Amongst the matters specifically referred to in Section 109(3) as relevant to the exercise of the cost discretion is the strength of the claim brought by a person considered to be the subject of a costs order. Ultimately I did not find this a difficult matter to resolve against this applicant. It seemed to me that the matter was fairly clear. On the other hand it is conceded that there is no existing decision within the Tribunal as to the meaning of the expression "special circumstances" where it is found in Section 52 of the Victims of Crime Assistance Act. In those circumstances it seems to me that one should not fault the applicant for seeking to obtain a favourable decision in an area of the statute which was res integra and I think the proper decision in the circumstances is to go with the presumption which one finds in Section 109(1) of the Victorian Civil and Administrative Tribunal Act namely that costs should lie where they fall. Accordingly I will make no order as to the costs of this proceeding.